Lords Sitting of 13 January 2000

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

Road Accidents: Child Deaths
Lord Davies of Oldhamasked Her Majesty's Government:
What policies are being developed to reduce the number of child deaths caused by road accidents.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, we are preparing a new road safety strategy and casualty reduction targets for a 10-year period to 2010. We expect to publish the strategy early this year, and clearly the improvement of child safety will be a central component within it.
Lord Davies of Oldham: My Lords, I declare an interest as President of the Royal Society for the Prevention of Accidents. On behalf of the society, I am pleased to hear the Minister's response, but does he recognise the distress of so many fellow citizens to learn that we kill and maim more children on our roads per head of population than most other countries in Europe? Therefore, is it not essential that in the forthcoming review of strategy the Government look very carefully at the question of traffic-calming measures and the reduction of speed limits on our residential roads, particularly those on which schools are sited?
Lord Whitty: My Lords, clearly child road deaths are a serious and tragic aspect of our society. It must, however, be put into perspective. Britain's road safety record is the best in Europe and probably the world in general. Although it is correct that we have a relatively bad record in relation to child pedestrians—it is an area of road safety policy that we must specifically address—it is not true of children in cars where the safety record is greatly improved, in part as a result of the better application of seat belts and vehicle design; nor is it the case in relation to cycling. Child pedestrians are at risk and traffic-calming and other such measures to curb speed will make a great difference.
Lord Brougham and Vaux: My Lords, is any advice given by teachers to children about running across the road? Yesterday I drove down Lupus Street and two children ran within a very short distance of my vehicle. One of them ran in front of me and caused me to brake
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very sharply. I also congratulate the noble Lord, Lord Davies, on assuming the position which I held and which my noble friend Lord Astor also held.
Lord Whitty: My Lords, I pay respect both to the noble Lord and my noble friend in that capacity. The work done by RoSPA in this area is very important, as is the education provided in schools. Clearly, some of the problem is related to children's behaviour. It is important that road safety features in our schools, and we are making a particular effort in that regard. That forms part of the education of children, not only when they are very young but at the point when they transfer between junior and secondary schools, where the level of accidents is particularly high. We are addressing that problem.
Lord Dormand of Easington: My Lords, is my noble friend aware of the scale of this problem? For example, in County Durham, 120 young people between the ages of 10 and 18 are either killed or seriously injured every year, and that has been the case for some time. Does my noble friend agree that more emphasis should be placed on road safety education in schools? I am concerned that once road safety was a very significant part of school curricula but that is not now the case. Does my noble friend agree that it would be advantageous if the Government did something about that?
Lord Whitty: My Lords, there is already substantial support to teachers and others within schools, including visits by police, but we are paying attention to the need to improve the educational aspect of road safety. Although my noble friend is right to say that there is still a problem in this area, I remember that when I was at school—which was a few years ago and traffic was not at anything like its present level—road safety teaching used the slogan "Three Like Me Killed Every Day". It is much, much fewer than that now; indeed, even in the past 10 years we have cut casualties among child pedestrians, which is the worst area, by 63 per cent. We are making progress but there is still some way to go.
Lord Elton: My Lords, the first supplementary of the noble Lord, Lord Davies of Oldham, asked whether the Government were aware that other European countries killed fewer children on the roads than we do. What steps are the Government taking to find out what others are doing that we are not?
Lord Whitty: My Lords, in this respect last year the department carried out specific research commissioned from the University of Leeds. One of the factors is the social aspect. Children in lower socio-economic groups are the most vulnerable. Children in Britain are more likely to be unaccompanied and need to cross busy roads. Therefore, we need to address that in terms of the total traffic management system, and that we shall do in our road safety strategy.
Lord Bradshaw: My Lords, in a recent letter to me the Minister said that motorists hated speed cameras. Are not the Government being somewhat swayed towards motorists? Is the noble Lord aware that every recent poll conducted by MORI, and the crime and disorder audits carried out in counties, showed that speeding often gives rise to people's greatest fear, particularly for their children?
Lord Whitty: My Lords, a few weeks ago we had a debate in which the noble Lord made a very effective maiden speech. Speed, particularly in residential districts, is a major cause of injuries to children and other pedestrians. We have recently received a technical report on speed which will be taken into account in our road safety strategy.
Lord Randall of St Budeaux: My Lords, how can we be confident that the measures referred to by my noble friend will work, bearing in mind that we have projections of huge increases in the number of car journeys in this country? What are the Government doing to help Surrey County Council, which has the highest death rate of any council in Britain?
Lord Whitty: My Lords, Surrey has proposed a number of traffic calming measures. It is true that the projections of traffic indicate a more severe danger. However, reductions in road casualties over the past few years have been achieved in the face of a substantial increase in road traffic.
On the point raised by the noble Lord, Lord Bradshaw, although motorists who are caught hate speed cameras, by and large motorists are themselves parents and therefore recognise the need for restrictions on speed particularly in areas where children are likely to be present.
Earl Attlee: My Lords, child casualties are distressing. However, can the Minister say what wider road safety improvements will be implemented by the Transport Bill being considered by another place?
Lord Whitty: My Lords, road safety is not covered specifically by the Transport Bill in any great detail because most of the improvements in relation to road transport can be undertaken without new primary legislation. Some secondary legislation will stem from our road safety strategy. If the noble Earl will be patient for a week or two, or perhaps slightly longer, he will see the full range of what I believe to be a comprehensive and welcome contribution to road safety improvement.

Wales: Transport Needs
3.14 p.m.
Lord Islwynasked Her Majesty's Government:
What further consideration they are giving to the transport needs of Wales.
Baroness Farrington of Ribbleton: My Lords, responsibility for most aspects of transport in Wales
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was transferred to the National Assembly for Wales on 1st July 1999. The main exceptions are railways, air and sea transport, which remain a matter for central government working in close consultation with the Assembly on matters affecting Wales. The Government are also involving the National Assembly as necessary to ensure that Welsh needs are reflected in the Transport Bill.
Lord Islwyn: My Lords, will the Minister appreciate that, when travelling with a first-class ticket from Paddington to South Wales on 2nd December last, I had to stand all the way to Swindon? The following day I protested to Dr M Mitchell, the general manager of First Great Western. To date I have not had the courtesy of an acknowledgement. Does the Minister appreciate that this is not untypical of the rail service that is being provided to and from Wales? It needs to be very much improved.
Baroness Farrington of Ribbleton: My Lords, my noble friend is right. I, too, have experienced sitting in an unmanned station for over an hour in Wales waiting for a connection.
I am sure my noble friend is aware that no one is guaranteed a seat without a reservation. However, should the situation that he described occur in future, contact should be made with staff on the train explaining the failure to obtain a seat and asking for an endorsement to the ticket. Not having received a reply to his complaint, my noble friend should take up the matter with the RUCC for Wales, which will investigate it on his behalf. I shall write to him with full details of the address of the Rail Users' Consultative Committee for Wales in Cardiff.
Lord Thomas of Gresford: My Lords, is the Minister aware that her problem as regards lonely and deserted stations, and the problem of the noble Lord, are derived from the fact that seven separate franchises serve Wales? That is a ridiculous situation. Will the noble Baroness encourage the proposed strategic rail authority to introduce an all-Wales service so that the railways in Wales will at least become co-ordinated?
Baroness Farrington of Ribbleton: My Lords, the noble Lord raises an interesting question. As my noble friend identified in his Question, and as I am sure the noble Lord, Lord Thomas, is aware, over 90 per cent of long rail journeys involving Wales include leaving Wales to travel to England and back to Wales, or vice versa. For that reason, we believe that having a Welsh member on a strategic rail authority can better serve the aim of an integrated rail system that the noble Lord identifies.
Lord Roberts of Conwy: My Lords, may I divert the Minister's attention to roads in Wales? They are also an integral part of the transport system.
Is the noble Baroness aware that under this Government the expenditure on motorway and trunk road maintenance is less than half the amount expended in the last four years of the Conservative

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Government? Will that not have a damaging effect on the Welsh economy, including the economy of Cardiganshire—I am told that it will have a by-election shortly—and on Wales' links with the remainder of the United Kingdom?
Baroness Farrington of Ribbleton: My Lords, in his final point the noble Lord raises the important issue of the need for close co-operation, in particular with regard to the transport links of the north-west, mid-Wales and south-east Wales across the border into England. The noble Lord referred to the level of expenditure. I respectfully remind him that, on coming into office, during the period of the comprehensive spending review the Government considered a pattern which had been established by the Government of which he was a distinguished member.
Resources available for transport in Wales, while the responsibility of the Westminster Government, included an additional £12.5 million subsidy over three years to improve public transport networks. We are confident that the Assembly will continue to build on the work which we did prior to the establishment of its responsibility for roads in Wales.
Lord Glentoran: My Lords, does the Minister agree that the noble Lord, Lord Islwyn, was fortunate to be able to buy a ticket?
Baroness Farrington of Ribbleton: My Lords, I am aware that many people have such a difficulty. I am sure that the Rail Users' Consultative Committee, be it for Wales or for England, will be interested in taking up the experience of anyone in the country who has a difficulty.
Lord Geraint: My Lords, can the Minister give an assurance that road and rail services to Ceredigion will be improved for the by-election on 3rd February?
Baroness Farrington of Ribbleton: My Lords, I cannot give an assurance that the Assembly will be able to improve the road and rail networks, but I shall be in a position to comment on the effectiveness of the networks.

Monetary Policy: House of Lords Committee
3.20 p.m.
Lord Barnettasked the Chairman of Committees:
When the House of Lords committee on the Monetary Policy Committee of the Bank of England will be set up again.
The Principal Deputy Chairman of Committees (Lord Tordoff): My Lords, first, I must apologise for the fact that the Chairman of Committees is unable to answer the Question. He is in Australia attending the conference of Commonwealth Speakers on behalf of the Lord Chancellor.
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Noble Lords will be aware that the Monetary Policy Committee of the Bank of England was set up as an ad hoc committee following the report of the Liaison Committee of 20th July 1998. The question of whether it should be set up again will be considered at the next meeting of the Liaison Committee on 7th February.
Lord Barnett: My Lords, I should make it clear that I do not blame the noble Lord for that totally inadequate reply because he is not even a member of the Liaison Committee. However, I do blame the House's authorities, whoever they are. Some noble Lords will know who they may be, and perhaps those in the usual channels, who are sitting not too far away, can tell us.
Is the noble Lord aware that when the subject was debated on 4th November, there was on all sides of the House agreement and a strong demand for the committee to be set up again as a new Select Committee? Can he assure us that he will at least press the House's authorities for an earlier meeting of the Liaison Committee than is at present planned? Is there any reason why it cannot meet without the Chairman of Committees, or should we all move out to Australia in order to hold it? Indeed, it might be better to hold a meeting of the Liaison Committee without the noble Lord because the demand is that the committee shall meet as quickly as possible to set up a committee on the Monetary Policy Committee.
The Principal Deputy Chairman of Committees: My Lords, the House's committee on the Monetary Policy Committee was discussed at the meeting of the Liaison Committee in July. That was before the debate on the report. Indeed, it was before the report was published, although we had a pretty good idea of what was happening. I say "we", but the noble Lord is correct in saying that I am not a member of the Liaison Committee. However, I attend in my role as chairman of the European Communities Committee.
There were a number of items for discussion and several suggestions came from members who wanted ad hoc committees set up. The subject was deferred until the autumn. I am aware that the autumn has passed, but it should be borne in mind that until late in the year there was some confusion in your Lordships' House about who would be here. I believe that that is one of the reasons for the delay.
Baroness Hogg: My Lords, can the House be given a waiting time guarantee on this Question, given that an Answer is long overdue?
The Principal Deputy Chairman of Committees: My Lords, the Question was tabled for today, but as regards when the committee will be set up I can say only that it will be discussed at the meeting of the Liaison Committee on 7th February. There is no chance of bringing the meeting forward.
Lord Bruce of Donington: My Lords, is the noble Lord aware of any steps that may have been taken in the meantime by Her Majesty's Government to ensure

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that the committee is provided with accurate and consistent statistics upon which to make proper judgments?
The Principal Deputy Chairman of Committees: My Lords, I am not clear to which committee the noble Lord refers; the Liaison Committee or the committee on the Monetary Policy Committee.
Lord Jenkin of Roding: My Lords, perhaps I may reinforce the point made by the noble Lord, Lord Barnett. It always was a mistake that it should be regarded as an ad hoc committee. The report described its task as one of critical interpretation. Is it not a fact that the arrangements affecting the Monetary Policy Committee and the Bank of England are not those for a temporary phenomenon but one that is here for the long term? Therefore, is it not right that the same consideration should apply to the committee in order to make use of the expertise which exists in all parts of the House?
The Principal Deputy Chairman of Committees: My Lords, that may well be so; no doubt the Liaison Committee will take it into account when it deliberates on 7th February. However, the committee was originally set up as an ad hoc committee almost two years ago and was regarded as such until the end of its deliberations when the results of the report suggested that it should be made permanent.
Lord Peston: My Lords, is the noble Lord aware of how puzzled I am by his answers? The report was published last July and was widely acclaimed. It contained several explanations of why the committee must carry on. We discussed the subject in a widely acclaimed debate. Like the noble Lord, Lord Jenkin, I believe that the committee should be made permanent, but that is another point.
One is left in a complete puzzle about what goes on in this place. One does many things and produces reports which are a credit to your Lordships' House and then no one does anything about anything! Those of us on the Back Benches must then ask how the place organises itself so that it is capable of taking a rational decision on a matter of some importance. I would never criticise my good friend, the Principal Deputy Chairman of Committees, but is he aware that many of us would like someone to do something sooner rather than later and learn a lesson about taking other decisions on other matters?
The Principal Deputy Chairman of Committees: My Lords, yes, I am aware and, I am being made increasingly aware.
Lord Mackay of Ardbrecknish: My Lords, is the noble Lord aware that the importance of the Monetary Policy Committee was underlined this morning and therefore the importance of this House having a committee to monitor it is equally important and
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underlined? Is he also aware that we on these Benches support the proper establishment of a permanent committee on this issue?
The Principal Deputy Chairman of Committees: My Lords, I am now aware. I suggest that the noble Lord may want to make the leader of his party aware. He is a member of the Liaison Committee which is charged with the allocation of resources to sub-committees.
Lord Wallace of Saltaire: My Lords, is there a settled view among the appropriate authorities on how many committees the House can manage? Are there any physical or other limits to the number of committees we may have as regards Clerks and rooms? Only a small minority of our now active membership sits on committees, but I am sure that some of the newer Members would welcome such an opportunity. What is the view of the appropriate authorities on the future of the committee structure of this House?
The Principal Deputy Chairman of Committees: My Lords, I cannot give a definitive answer. There are restrictions in terms of rooms, support from the Clerks and membership. However, that is changing with the increasing membership of your Lordships' House. Speaking as chairman of the European Communities Committee, after a difficult period during the summer when we did not know who would be available, we managed to staff and fill all the places on the Select Committees and the sub-committees. If rumour is true that there is to be a further infusion of new Members, I am sure that the task will become easier. However, the Clerks of this House have been seriously overworked in recent times. The situation has improved, but, as the noble Lord will know, some Clerks in the Committee corridor have run two committees, which is more than flesh and blood can stand.

The English Nation
3.29 p.m.
Baroness Youngasked Her Majesty's Government:
Whether they consider that the English are a violent nation.
The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, no! We do not believe that the English are a violent nation. We believe that in the new millennium we have the opportunity to promote a different sense of Englishness which focuses on the virtues of tolerance and ethnic and cultural diversity and continues to celebrate the nation's powerful contribution to the world of artistic, industrial, commercial and cultural endeavour. Let us in the new millennium collectively promote a new, more confident vision of our eclectic nation.
Baroness Young: My Lords, will the Minister accept that his Answer bears absolutely no relation to the remarks made by the Home Secretary, which were

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racist, untrue and a complete insult to all the English men and women who fought in two world wars entirely so that people such as the Home Secretary and other Members of the Government might enjoy the free speech that we all enjoy today? Is he proud of the fact that the Home Secretary has now been reported twice to the Commission for Racial Equality for his racist remarks?
Lord Bassam of Brighton: My Lords, I do not accept that my right honourable friend the Home Secretary is in any way a racist. He has an excellent track record on that question. It is entirely a matter for individuals whether they decide to report the Home Secretary to the Commission for Racial Equality. The noble Baroness has taken his comments from an extensive programme on the question of "The Brits" on Radio Four entirely out of context. If she studies the transcript she will realise that my right honourable friend the Home Secretary was talking about the historical development of the United Kingdom.
Lord Baker of Dorking: My Lords, is the Minister aware that the Home Secretary said that in their history the English began by coshing the Welsh, then they coshed the Scots, then they coshed the rest of the world through the British Empire? Will the Minister remind his friend the Home Secretary that the British Empire was largely established, sustained and expanded by Scots? They really should not be denied their role in the hall-of-coshing fame.
Does not the whole episode reveal that, as a result of their constitutional changes, the Government have released an English backlash? Having created a voice for Scotland, a voice for Wales and a voice for Northern Ireland, and having done nothing about England—which is democratically and constitutionally unjust—they will not actually resolve that problem until they bring forward proposals to ensure that England's democratic deficit is reversed. Until they do that, their constitutional changes will be inherently unstable.
Lord Bassam of Brighton: My Lords, there seemed to be many questions in the noble Lord's contribution to the discussion—
A noble Lord: Answer one of them!
Lord Bassam of Brighton: I shall endeavour to do so. As to the question of whether there should or should not be an English parliament, as the noble Lord is well aware that is not the policy of Her Majesty's Government. We continue to have confidence in the Parliament here at Westminster. It is worth reminding ourselves that some 80 per cent of the Members of the House of Commons are English MPs. The House of Commons is entirely competent to deal with all those matters for the United Kingdom which fall to it.
Lord Lipsey: My Lords, will the Minister agree with me that, although nowadays the English are of course a most peaceable people, they can nevertheless be provoked to violence by insensitive, poor, unthinking, unlistening government, such as the kind of government that provoked the Poll Tax riots in 1989, a tax of which—as I remember—the noble Lord, Lord Baker, was such a fervent advocate?
Lord Bassam of Brighton: My Lords, my noble friend makes a powerful political point. In our new millennium we must encourage tolerance and diversity. Those values are ones which I want to see promoted throughout the United Kingdom.
Lord Cope of Berkeley: My Lords, I should perhaps first declare an interest as a vice-president of the Royal Society of St George. The Minister says that the Home Secretary's remarks were taken out of context. Will he therefore tell us how it came about that there was so much leaking in advance of the particular opinion of the Home Secretary that the English are extremely aggressive and violent? Was that leaking perhaps done by Mr Alastair Campbell?
Lord Bassam of Brighton: My Lords, I have absolutely no knowledge as to who did what leaking where, when and how. As I said, I believe that the comments were taken out of context, but there is the beginning of an important and valuable debate about what "Englishness" actually is.
Lord Chalfont: My Lords, before this all becomes too serious, is the Minister aware that my experience on the rugby field leads me to believe that the English are not an especially violent race? When I was playing in a match at Twickenham many, many years ago, an English forward was lying on the field after an especially untidy scrum when a Welsh wing forward came up and kicked him vigorously in the head. The Englishman's response was simply to look up and say, "Did you wish to speak to me?"
Does the Minister agree that whatever may be the failings of the English—and they are many—violence is not one of them?
Lord Bassam of Brighton: My Lords, many strange things happen in scrums.

Race Relations (Amendment) Bill [H.L.]
3.36 p.m.
Lord Bassam of Brighton: 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 it self into Committee.—(Lord Bassam of Brighton.)
On Question, Motion agreed to.
House in Committee accordingly.
[THE PRINCIPAL DEPUTY CHAIRMAN OF COMMITTEES (LORD TORDOFF) in the Chair.]
Clause 4 [Criminal investigations and proceedings]:
The Principal Deputy Chairman of Committees: Before the noble Lord, Lord Lester, makes his speech, I should perhaps point out that if Amendment No. 19 is agreed to, I shall not be able to call Amendment No. 20 under the pre-emption rules.
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 19:
Page 6. line 7, leave out from ("19B,") to ("a") in line 9 and insert ("the court in granting such relief or remedy, or making such order, within its powers (other than the award of damages) shall have regard to the need to avoid serious prejudice to").
The noble Lord said: The Bill as it stands provides that no remedy other than damages shall be obtainable in an action brought against the police or the prosecution service unless the court is satisfied that such a remedy will not prejudice a criminal investigation or prosecution. In other words—if one can penetrate the double negatives in that rather unattractively drafted provision—the court must essentially find that the remedy is harmless to any possible investigation before it may be granted. That is an extremely stiff test, made worse by the use of the highly imprecise word, "prejudice". No degree of prejudice is specified; any prejudice will do, with the result that the test is to be applied by the courts in a vague, ill-defined and narrow way.
That stiff and ill-defined test applies to all non-pecuniary damages, including declaratory relief. In practice, that means that even where there is a clear-cut case of intentional direct racial discrimination, the court will not even be able to make a declaratory order that the police or the prosecution have acted unlawfully until it has satisfied itself completely that no possible investigation or prosecution could in any way be hindered. That is quite unnecessarily narrow and frustrates the need for an effective remedy.
The amendment aims to remedy those serious defects by providing that in exercising its discretion—I emphasise that this is a matter of judicial discretion, on which our courts are eminently well suited to decide on whether there should be a remedy—in deciding whether to award a non-pecuniary remedy—that is, a remedy other than damages, which are in any case always awarded subject to the courts' discretion—the courts should have regard to the need to avoid serious prejudice to any potential investigation or prosecution.
The requirement in the amendment for "serious prejudice" means that there must be a possibility of real and substantive harm before a complainant who has suffered racial discrimination is deprived of the relief to which he would otherwise be entitled. The amendment is modest. It preserves the vital right of the accused to a fair trial while ensuring that those who suffer from the civil wrong of racial discrimination can obtain effective remedies. Therefore, it seeks to preserve that vital fair balance between the rights of the accused in a criminal case and the rights of victims in civil proceedings.
That will mean that a court will be more able to grant a declaratory remedy where discrimination has taken place. That is important for the very good practical reason that one needs to have what is called a "finding" by a court or tribunal of an act of unlawful discrimination as a precondition for subsequent monitoring and enforcement action by the Commission for Racial Equality; for example, under Section 62 of the 1976 Act. Unless there is a finding, which means a declaratory judgment or order, the Commission for Racial Equality is powerless to take steps effectively to stop the discrimination from happening again.
As the Bill stands, the CRE will be unable to mount effective enforcement action against the police or the prosecution service unless the court is satisfied that no prejudice can arise. In making it easier to obtain a declaration, the amendment makes it easier for the CRE to use its powers where necessary. We can trust the courts to make quite sure, as they always do, that they will exercise their discretion before granting a declaration and to ensure that it is granted only in the interests of the justice of everyone.
The Macpherson report made clear that the police and prosecution service must be subject to the full force of the Race Relations Act, Although that seems extremely technical, it is not at all technical. As it stands, the Bill threatens, in the way that I have tried to explain, to restrict severely the possibility of obtaining effective redress in those, it is hoped, very rare cases where the police service or the prosecution discriminate on racial grounds. The amendment aims to remedy that fault. I beg to move.
3.45 p.m.
Lord Cope of Berkeley: It is difficult not always to have some sympathy with the noble Lord, Lord Lester, particularly when he speaks about matters of which he has very great knowledge, as he does on this Bill and other issues.
I come to this matter very much as a layman. I am not a lawyer, as your Lordships know. However, in picking up some of the phrases used by the noble Lord, Lord Lester, it is important that where a question arises of a criminal investigation and a criminal trial, that should, at least in some respects while the matter is proceeding, take second place to the civil remedy for unlawful discrimination. I do not mean that every crime which is likely to lead to a criminal trial is inherently more important than unlawful discrimination. Clearly, unlawful discrimination can be of the most appalling character and can overtake all kinds of lesser criminal offences. That is what creates the difficulty in the whole design of this particular part of the Bill.
The noble Lord hoped that it would be possible for someone who believed he had suffered unfair discrimination at least to obtain a declaration or a decision on the matter from the tribunal or court. However, his amendment mentions relief and remedies as well as a declaration. During debate on the next amendment I shall come to the question of damages in

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comparison with other remedies. It seems to me that remedies of whatever character are likely to prejudice an investigation, perhaps even only in a small way.
However, I believe that a more serious point also arises from what the noble Lord, Lord Lester, said. I give an example: the police may be in the middle of investigating a criminal offence—perhaps a serious one—and take a little while to complete their investigations, find the people they are looking for and gather all the necessary evidence, and so on. That can take a long time. In the course of that, someone who is involved may believe that the person being investigated has committed unlawful discrimination and begin the legal process for civil action against that character. That may occur while the criminal investigation is still proceeding. If the tribunal or the court decides that there has been unfair discrimination, the CRE then becomes involved and, presumably, from that point on, every morning looks over the shoulders, as it were, of the police who are investigating the crime. The same is true not only of the police in the course of the investigation but of the prosecuting authorities in the course of deciding whether or not to bring a prosecution, as well as of the court itself once it leads to a case.
I believe that, at least in ongoing cases, the mechanism of the race relations aspect of the case should await the decision of the court on the criminal offence. To do anything else seems to me to risk prejudice. Of course, I fully accept that that does not entirely extricate us from the problem. In a way, criminal investigations which do not lead to a court case in a comparatively finite period of time are never fully closed. The file is closed, as it were. However, if new evidence arises, maybe some months or, in some cases, many years later—I read of such a case recently in a newspaper—the file can be re-opened. If one had to wait until the file was completely closed, the race relations aspects would never cut in at all. Therefore, I am aware that there is a difficulty about the matter. But with respect to the Government and the noble Lord, Lord Lester, I do not believe that either has been successful in hitting upon the solution to the problem.
Lord Lester of Herne Hill: I am sure that the noble Lord is right that our attempted solution may not be perfect. But is he aware that that is part of a quite normal problem in relation to civil and criminal proceedings? For example, if there are traffic offences and negligence proceedings the courts are frequently in the position of having to decide how to deal with civil proceedings—perhaps for negligent driving—and criminal proceedings for driving without due care or reckless driving.
Does not the noble Lord agree that it is a matter for the courts' discretion to decide how to deal with those problems rather than seeking to fetter them in a particular way in the context of this particular Bill?
Lord Cope of Berkeley: The noble Lord may be right. As I understand it from my limited knowledge of the matter, generally speaking, in the circumstances which the noble Lord outlined the negligence part of
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the proceedings waits until the criminal case has been completed. The civil proceedings then get going and a decision is made as to whether or not there was negligence.
Of course, in civil proceedings there is a different standard of proof and a different mechanism altogether for deciding the issue. That is part of the difficulty. The requirement in a criminal trial is to prove the matter beyond a reasonable doubt whereas the requirement in a civil case is less. That is one of the reasons that the negligence claim must be left until the criminal matter has been dealt with.
I agree with the noble Lord, Lord Lester, that a certain amount of discretion will have to be left somewhere, not least to overcome the problem to which I referred earlier of when exactly the file may be regarded as having been closed so that the civil issues can proceed. But at this point in time I am not entirely convinced that either formulation will provide a satisfactory answer to the problem.
Lord Bassam of Brighton: The noble Lord, Lord Cope, has begun to point us in the right direction. It is not an unusual or unique problem; but this amendment raises the issue of whether the test should be lower than that which is presently in the Bill.
The intention of the test in new Section 4A in Clause 4(1) is to ensure that as far as possible the courts are satisfied that relief sought does not prejudice the investigation or prosecution of the process, thus preserving the criminal court as the forum for determining guilt or innocence.
It also serves to reinforce our commitment to trying to achieve the aims of reducing crime and the fear of crime and dispensing justice fairly and effectively. That is an objective which we all share. The test proposed in this amendment would shift the balance of the test which the civil court should apply. In our view that may bring about the undesirable outcome of civil cases being allowed to proceed notwithstanding that there may be some adverse effect on the criminal process, which, again, falls short of serious prejudice.
Furthermore, in order to determine whether the remedy sought will cause serious prejudice—I use the noble Lord's term—the civil court will have to examine in more depth the substance of the criminal investigation. Such action may itself prejudice the investigation or subsequent proceedings, particularly where media publicity, as often is the case in such matters, begins to arise from the civil proceedings.
The proposed amendment may, therefore, undermine our overall objective of ensuring that granting the relief sought will not prejudice a criminal investigation, any criminal proceedings or decision to institute criminal proceedings. Prejudice in those circumstances means detriment.
Lord Lester of Herne Hill: But on that view I do not understand why the Government would allow a remedy in damages to be awarded. The present clause states that,
"No remedy other than damages shall be obtainable".

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Therefore, the Government are to allow a damages award to he made, even though the court is not satisfied about whether it will prejudice a criminal investigation. I do not understand the logic of saying that you can obtain damages for racial discrimination when there is a criminal investigation but you cannot obtain a finding of discrimination.
Surely an award of damages is predicated upon a finding of unlawful discrimination. If that is so, why cannot the court make a declaration giving the finding and therefore allowing the CRE to use its follow-up powers? I simply do not understand the logic of the Government's position.
I understand the logic of the position of the noble Lord, Lord Cope of Berkeley. He says that there should be no remedy, including damages. That is what I understand his later amendment provides. But the Government's position is that you can have a damages award but not a declaratory award. There can be no finding. I find that completely impossible to understand.
Lord Bassam of Brighton: The problem is the complexity of the test which the noble Lord seeks to impute into the legislation.
Lord Lester of Herne Hill: I am not addressing whether the prejudice should be serious or not. That is the question of the test. Let us leave that to one side and assume that I am wholly wrong and that the test should be simply one of prejudice. I am asking why the Government intend to allow damages to be awarded but not a finding of unlawful discrimination.
Lord Bassam of Brighton: I believe that I understand the point which the noble Lord, with his usual legal wisdom, is making. But is not the case that a declaration or injunctive relief could prejudice the case and also the issue of damages, which may be separate from that? Of course I listen to what he has to say on this point. But in these circumstances we are concerned that prejudice will mean detrimental disadvantage, which is what we are trying to avoid. We believe that there is little point in complicating what is essentially a straightforward matter by identifying degrees of prejudice.
We believe that this merely places an additional and unnecessary burden on the civil courts. Having listened to that point, I hope that the noble Lord will agree to withdraw Amendment No. 19. I shall take account of the points which he has raised in the debate. I shall read what he said in Hansard and reflect further upon it. But we wish to keep things simple. Therefore, although all these mechanisms may not be perfectly in place, I hope that we can make some more progress on this issue.
Lord Cope of Berkeley: I am sorry not to be entirely satisfied with the Minister's reply. When I move Amendment No. 20, I shall deal with the point about damages as opposed to other remedies.
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I am concerned that the investigation process should not be prejudiced in any respect while it is proceeding, not only in the legal sense of prejudicing it but also in the more ordinary sense of the criminal investigation being delayed and confused. The police will be doing their best to solve the crime; to bring together the evidence; and to find the right people to charge and to give evidence. I am concerned that in the course of doing all that they may be delayed and the matter much complicated by the necessity to respond at that stage to the racial accusation.
Afterwards, when the investigation has run its course and the individual concerned has been prosecuted and the criminal aspect has been dealt with, those concerned should be answerable for what happened in the course of the investigation. But we do not want the life of the police, the prosecuting authorities and the courts made more difficult in the pursuit of solving crime by having those proceedings taking place at the same time.
I am not making a judgment that no racial discrimination can possibly be worse than all crime. Of course that is not the case. Slightly looser wording and perhaps the introduction of the word "serious" in respect of the prejudice may be a partial answer to this very difficult question. But it seems that we are still left with a considerable difficulty.
4 p.m.
Lord Bassam of Brighton: I begin to see more degrees of difficulty having listened to what both the noble Lord, Lord Lester, and the noble Lord, Lord Cope, said. I recognise what the noble Lord, Lord Lester, says about the implications of awarding damages. We will seek to reconcile the issue. The noble Lord, Lord Cope, is right about the complexity and the fact that the civil proceedings may have a bearing and undermine the validity.
Lord Goldsmith: Does the noble Lord agree that a degree of confusion creeps in over the question of remedy in the event that proceedings are concluded and whether proceedings should be continued during the time that there is a criminal investigation or criminal proceedings? My understanding of the Bill is that new subsection (4D) deals with the point made particularly by the noble Lord, Lord Cope, that proceedings would not continue for racial discrimination so long as there were criminal proceedings afoot or a criminal investigation had been decided upon. It happens to be the same test which the noble Lord, Lord Lester, criticises under new subsection (4A), but I do not see, unless I have misunderstood, that he seeks to amend that test under new subsection (4D). However, the test there is whether or not there will be prejudice to any criminal proceedings. Does the Minister also agree that the court is likely, when looking at prejudice, not to have regard just to any fanciful prejudice but to something which it is satisfied is, indeed, prejudice?
Lord Bassam of Brighton: That was a helpful intervention. I think that the noble Lord, Lord

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Goldsmith, has read the situation accurately. For that reason I believe it would be most helpful if the noble Lord, Lord Lester, would kindly withdraw his amendment. I am quite happy, as I said earlier, to pick up any loose points that may have arisen from today's debate. We believe that our simple approach is perhaps the best way forward.
Lord Lester of Herne Hill: I am grateful to everyone who has taken part, including the noble Lord, Lord Goldsmith, for a very helpful intervention with which I agree. I shall come later to new subsection (4B). It may require separate consideration. It is right that the Bill gives two kinds of protection of criminal investigations. One appears in new subsection (4A) and the other in new subsection (4D). New subsection (4A) deals with the remedies that can be granted for unlawful racial discrimination. New subsection (4D) deals with the kind of protective orders that are necessary to preserve the integrity of, for example, criminal proceedings.
To make clear beyond doubt what our position is, it is very important that the Commission for Racial Equality—which certainly supports the amendment—should be in a position to have findings of unlawful racial discrimination as the foundation for its monitoring and follow-up powers under the 1976 Act. The problem about awards of damages alone is that they do not qualify, technically, as a finding. But I repeat that it is wholly illogical to allow an award of damages to be made which is predicated upon there having been a finding of unlawful discrimination without allowing the actual finding to be made.
I can see that the defect in my amendment is that it may go too far in allowing, for example, injunctions to be granted that may be wholly unnecessary. If the Government do not do so themselves, I am minded to narrow the scope of my amendment at Report stage to make sure that a finding can be made or a declaration granted in addition to an award of damages, but not an injunction. That is very easy, technically, to do. One comes later to new subsection (4D). I hope that I have made our position clear. I hope that we can reach a consensus before Report stage as to how to reconcile the rights of the accused with the rights of victims in this context. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Cope of Berkeley Lord Cope of Berkeley moved Amendment No. 20:
Page 6, line 7, leave out ("other than damages").
The noble Lord said: This is a continuation of the previous debate. The point has already been made by the noble Lord, Lord Lester. I do not see what the difference is between the award of damages, on the one hand, and the other remedies which may be open to the court, on the other. Any other remedy, any other finding, is apparently likely, in some circumstances at any rate, to prejudice the criminal proceedings or the investigation whereas damages will never do so. That seems to me an inherently unlikely proposition to write into the statute book.
To put it at its lowest, I do not think that this amendment can do any harm. If damages never do look like prejudicing criminal investigations or
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proceedings, then the court would be able to grant them just as they could another remedy. On the other hand, if the amendment is not passed and the damages at some stage—in some circumstances which we may or may not be able to envisage at the moment—do seem likely to be prejudicial, then, with the Bill as it stands, nothing could be done about it. The prejudice would take place, and nothing at all could be done. At its lowest, it seems to me that the amendment has something to commend it. I commend it to the Committee.
Lord Bassam of Brighton: Our intention in framing new subsection (4A) is to strike the right balance between the interests of individuals in pursuing a legitimate claim under the Race Relations Act, on the one hand, and reducing delays in the criminal justice system, on the other, meeting the legitimate needs of victims and witnesses and promoting confidence in the criminal justice system.
The amendment tabled by the noble Lord, Lord Cope, and the noble Viscount, Lord Astor, would, as we understand it, remove the ability of a claimant under new Section 19B of the Bill to pursue any remedy in a case against the public prosecutor or investigator unless they could satisfy the civil court that the remedy itself would not prejudice the criminal investigation. That much is clear.
The main thrust of the Race Relations Act is to provide financial redress for victims of discrimination. We consider it highly unlikely that the award of damages would, of itself, prejudice criminal proceedings or investigations whereas other remedies, such as injunctive relief, may have that effect. For that reason we think it right that claimants should be able to obtain financial redress wherever possible. The present wording of new subsection (4A) makes that clear. However, in the few cases where consideration of the award of damages might have a prejudicial effect, the civil court could, in such circumstances, exercise its power to stay the proceedings until such time as the risk of prejudice to the criminal proceedings had passed. As it currently stands, the Government could not therefore agree to Amendment No. 20. I hope that the noble Lord will consider withdrawing it.
I am, however, happy to consider the points made in this and the earlier debate, look at the two amendments together and see if we can better perfect the situation so that there are no apparent contradictions in the way in which the legislation seeks to work.
Lord Cope of Berkeley: I accept entirely that the Minister and the Government are trying to seek the right balance. We are all trying to seek the right balance in this matter. However, I am still not in the least clear what is special about damages. The Minister said that he thought it highly unlikely—not impossible—that damages could prejudice a case or an investigation. If the possibility exists, we should not rule it out. The noble Lord did not say that it is certain that damages could not prejudice a case. He just said that it is highly unlikely. That is probably right. But he

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also pointed out that, with regard to the matters to which we shall come a little later, the court has the right to stay proceedings. I fully understand that. However, that does not affect the immediate right to have a remedy such as damages, or for that matter another remedy, which might or might not prejudice the ongoing investigation and proceedings. The fact that there is a stay is a separate matter which is valuable and important and provides some of the balance that is required by otherwise preventing or limiting the remedy that there might be.
Lord Goldsmith: If the Act works as the Bill intends, does the noble Lord agree that in a case where criminal proceedings are taking place, there will be a stay of those proceedings until the criminal proceedings have come to an end? At that stage, the proceedings would revive. If the applicant cannot get damages in the proceedings, there will be nothing the applicant can get at all. Does the noble Lord agree that at that stage the only prejudice could be in relation to subsequent or other proceedings where an injunction might give rise to prejudice but an award in the instant case would not?
Lord Cope of Berkeley: I am not sure that I follow all the ramifications of what the noble Lord said. In the first place, I am concerned not only about proceedings but also about investigations and matters before the proceedings take place. In the second place, I realise that quite often the stay in the civil proceedings is what will prevent the prejudice taking place in the criminal proceedings. But I do not see that anything in the Bill, if it were amended in accordance with my amendment or, for that matter, if it were unamended, would prevent damages or any other remedy being awarded when the civil proceedings restart after the criminal proceedings have been concluded, whichever way that turns out.
4.15 p.m.
Lord Lester of Herne Hill: Perhaps I may help the noble Lord by suggesting what would happen. Let us suppose that there is a whole series of multiple complaints by black alleged victims alleging racial discrimination and that criminal proceedings against them and against the police are really complicated, which is not unheard of. One might then need to be able to grant effective remedies and at the same time preserve a fair trial. Is not the noble Lord, Lord Goldsmith, right that it is important to have the prophylactic protective order under new subsection (4D), which is there to ensure that one can hold up the civil proceedings until after the criminal proceedings have occurred in a particular case but then be able to award the victim in that case an effective remedy, whether by way of damages or a finding, thereafter? Is there not otherwise a danger in such a multiple case
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that someone who is wholly innocent and a victim of race discrimination simply will not receive an effective civil remedy?
Lord Cope of Berkeley: He would receive his remedy, whether by damages or otherwise, when the civil case proceeded following the stay.
Lord Lester of Herne Hill: I have not made that point clear. There will then be other investigations and other proceedings. They may be wholly separate. With the very loose test here, the danger is that fettering the judge's discretion in the way that the noble Lord's amendment would do would mean that there was no remedy at all.
Lord Cope of Berkeley: I now understand. The point that the noble Lord was seeking to make was with regard to multiple proceedings affecting different people. I do not see that that alters the considerations as to whether damages are special enough to be given a special position under new subsection (4A) by comparison with other remedies. It is just as important that someone in the unconnected case which has been completed should be able to get any kind of remedy—not only damages but any kind of remedy which might otherwise have been available—assuming that it will not prejudice some of those in the multiple case.
The point of the amendment is to ask why damages are special. I am not trying to deny someone having a remedy. It is the stay which will delay the remedy. Certainly, we do not want to prejudice other cases or investigations or have other cases or investigations prejudiced. But I still do not see why damages are so special in this respect that they should be singled out as permissible in new subsection (4A) when nothing else is and when, by definition, if they are awarded, they will be prejudicial as it were.
The Minister does not seem inclined to speak again, but he said earlier that he would consider the matter further. In view of that, I do not think that noble Lords would wish to make a final decision, even on Amendment No. 20, which deals with the lesser of the two points involved. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 21:
Page 6, leave out lines 43 to 48.
The noble Lord said: This is a continuing dialogue on another version of the same problem. New Section 57(4D) states:
"Where the decision to institute criminal proceedings has been made or the criminal proceedings have been instituted, the court shall grant a stay or [in Scotland] list of the proceedings … unless it is satisfied that the continuance of those proceedings would not prejudice any criminal investigation and would be unlikely to affect any issue which might arise in the criminal proceedings".
One has there a very broad prophylactic power, where criminal proceedings have been commenced, for the court to be able to grant that protective order.

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However, new subsection (4E) at the moment deals with the opposite—where no decision to institute criminal proceedings has been made. It states that,
"the court shall not grant a stay … unless it is satisfied that the continuance of those proceedings would be contrary to the public interest or might prejudice any criminal investigation, the decision about instituting criminal proceedings or any subsequent criminal proceedings".
I am not aware that I have ever seen anything quite like that in any other statute. I do not understand why the provision is necessary. This is exactly the kind of situation where common law discretionary powers in the courts could deal with some unforeseen problem. The danger of the provision as it stands is that it deals with cases where criminal proceedings are not instituted. Therefore, it deals with cases where new subsection (4D) is not necessary. We do not understand why new subsection (4E) is then included. It seems to us that new subsections (4A) and (4B) between them enable the courts to make quite sure that any remedy granted will not prejudice a prosecution. In other words, they give adequate powers to secure a fair balance between the rights of the accused in criminal proceedings and the rights of the victims in civil proceedings. This is therefore a probing amendment to try to understand why the Government think that what seems like a fairly extraordinary provision is necessary. I beg to move.
Lord Goldsmith: I do not know the answer to the question posed by the noble Lord. I look forward to hearing it myself. One of the difficulties may be that the new subsection (4D) contains an important power. I believe that noble Lords agree with that. Perhaps one needs to spell out why it is important. The potential prejudice to criminal investigation may be, for example, that people who are defendants in such criminal proceedings find that in civil proceedings they are required to undermine or prejudice their defence by giving evidence or giving explanations. There are all kinds of examples of that. I do not understand there to be any doubt that the new subsection (4D) is an important prophylactic power, as the noble Lord has said.
Some noble Lords may have been concerned that in the absence of something along the lines of the new subsection (4E), the court may take the view that it now has power to stay in circumstances which do not fall within (4D). I have much sympathy with the point made by the noble Lord, that the common law would normally provide such a power. However, I understand the concern, where specific powers are given in one circumstance, that it may be thought that, unless the position is spelt out that the court has discretion in the other circumstances, it may believe that it does not. That is the only suggestion that I can offer on this matter. If that is why it is there, in substance it may be a good thing to include it.
Lord Cope of Berkeley: There is a sense in which these two new subsections—(4D) and (4E)—are in the wrong order. The situation in which there is no decision to institute criminal proceedings for the time
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being is likely to arise before criminal proceedings are instituted as opposed to afterwards. I do not argue that the drafting should be altered in that respect.
I believe that there is the difficulty of possible prejudice to continuing investigation before a decision to prosecute has been taken one way or the other. Therefore, in law there has to be something like new subsection (4E). As to whether that needs to be specified in the Bill, or whether it is covered by common law is a matter upon which I do not feel qualified to pronounce. Such discussions as I have had on the point suggest that it is desirable that it should be in the Bill. I leave that to those who know more about it than I do.
The important point is that no prosecutor, the police or other investigator should get into the position—which they may if this amendment were carried and nothing else happened—of being pushed into taking a decision to institute proceedings by a pending civil action so as to seek the advantage of new subsection (4D) and a stay in those proceedings if (4E) or some common law substitute were not available.
Lord Bassam of Brighton: I believe that my explanation will be helpful. The presumption in subsection (4E) in Clause 4(1) of the Bill, is that proceedings will not be stayed where no decision has been made to institute criminal proceedings, unless the court is satisfied that to continue the civil proceedings would be contrary to public interest or might prejudice any criminal investigation, the decision about instituting criminal proceedings or any subsequent criminal proceedings. That will place a heavy burden on an investigator or prosecutor seeking a stay. They will have to be in a position to satisfy the court on the likelihood of prejudice to criminal investigations or proceedings before they could secure a stay of a claim under the Act.
It is necessary to have this power available so that when there is justification, the court can hear arguments to allow it to decide whether a stay is appropriate. Of course, a stay does not remove the availability of a remedy. Proceedings, which have been stayed, can be resumed once the grounds for the stay are no longer present. It may be argued that the court could grant a stay without this provision. That is correct, but without the test in new subsection (4E) of the Bill, the courts may apply a lesser test—that is the critical issue—when deciding to stay a claim under the Act which would not be beneficial to claimants.
I hope, with that explanation, that noble Lords will feel able to withdraw their amendment.
Lord Lester of Herne Hill: Before the Minister sits down, perhaps he can help me to decide what to do. He said that there is a heavy presumption in favour of the alleged victim of race discrimination. If he looks at new subsection (4D) and compares it with new subsection (4E) he will see that in new subsection (4D) the test is that the circumstances "would not prejudice" any criminal investigation. Looking at new

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subsection (4E) one sees a looser test: "might prejudice". The test is not "would prejudice", but "might prejudice". In addition, there are the words,
"would be contrary to the public interest or might prejudice".
Given that new subsection (4E) is an obstacle to the right of effective access of an alleged victim of race discrimination to justice—in other words, it operates to debar an alleged victim of race discrimination by, let us say, the Police Service—I do not understand why what seems to be a stricter test against the alleged victim is inserted in (4E) than in new subsection (4D). What is meant by,
"contrary to the public interest"?
That is an additional test—in addition to the "might prejudice" test rather than the "would prejudice" test. Why does it say "might prejudice" rather than "would prejudice" if the Government's intention is that this should be a strict test in favour of the victim rather than something that may violate Article 6 of the convention on human rights read with Article 14, the right of effective access to justice?
Lord Bassam of Brighton: I can see why the noble Lord may be concerned. He is helpfully drawing attention to the different quality of tests that may apply in each of the subsections. I am happy to reflect further on the way in which those tests may operate, on their interrelationship and on how they may work. If the noble Lord is happy to withdraw his amendment today, I am happy to agree to look further at the wording so that there is consistency of application in this area where there may be good cause to have that kind of consistency.
Lord Lester of Herne Hill: I am happy to withdraw the amendment in the hope that the Home Office will think carefully, not only about the debate, but also about Articles 6 and 14 of the convention on human rights on the right of effective access to justice.
Lord Cope of Berkeley: Before the noble Lord actually withdraws the amendment, he should give some thought to the question of which is the tougher test in the circumstances. In the subsection (4E) case, where the criminal proceedings have not been started—indeed they have not even been decided upon and the investigation is continuing—it would be extremely difficult to prove that a civil action would definitely be prejudicial. Inevitably, it is a little more unlikely. That is why the words "might prejudice" are in there, whereas the test in subsection (4D), which is expressed the other way around, says "would not prejudice".
Lord Lester of Herne Hill: I shall not prolong this matter, but perhaps I can make my concern clear. The starting point is the common law right and the convention right of effective access to justice for the remedy for unlawful racial discrimination. That is the starting point. That has to be balanced against the
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right of the accused to a fair trial in criminal proceedings. New subsection (4E) deals with a case where there are no criminal proceedings.
Lord Goldsmith: Would my learned friend—sorry, that is my day job—would the noble Lord consider that new subsection(4E) does not impose an obligation on the court to stay where there are those tests? It is a prohibition on the court from staying, except where that test is satisfied. Therefore, a court would still have a discretion. The noble Lord may also take into account that in considering that discretion the court would be likely to balance considerations. One aspect would be how long the stay would be before the criminal investigation had been concluded, and balance that against the hardship to the victim of having to wait for his remedy. I offer those suggestions as the noble Lord is considering this amendment and they may assist in understanding why the word "might" is there.
Lord Lester of Herne Hill: Perhaps I may complete my point. The problem is that we cannot oust the jurisdiction of the court or deprive a person of effective access to a remedy under the human rights convention except where necessary; that is, not where it might be contrary to public interest or might prejudice a criminal investigation, but where it is necessary and proportionate to protect a legitimate stated aim.
My concern is that that confers a power on the courts to exercise their discretion in a loose way. Although the Human Rights Act may come to the rescue, it ought not to be left to the Human Rights Act; we should get it right in this Bill. We should not write on the face of the Bill something which gives too wide a power to prevent the victims of race discrimination having effective access to justice. I have made my points, supplemented by the points made by other noble Lords. The Minister indicated that he will reflect upon this, as I am sure we all will. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.30 p.m.
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 22:
Page 7, line I, leave out subsection (2).
The noble Lord said: Amendment No. 22 is part of the continuing problem and deals with the questionnaire procedure which, if I may say so without being self-regarding, was my invention in the 1976 Bill. It is a useful procedure which allows potential victims of discrimination to question someone they feel has been discriminating against them before deciding whether or not to launch proceedings. If the person being questioned refuses to answer or answers in a tricky way when the matter comes to the county court or employment tribunal, they are able to exercise a wide discretion in deciding, as a matter of evidence, what to make of the way in which the respondent has or has not replied to the questionnaire. It is similar to what lawyers call a "letter before action" but is of a statutory and formal kind.
Amendment No. 22 seeks to remove the proposed special right of public authorities—nobody else—as respondents in claims in new Section 19B to apply to the court to prevent any inference from a failure to reply to the questions in the statutory questionnaire, or from any particular reply where such reply would prejudice criminal proceedings or reveal the reason why a prosecution was not brought forward.
We entirely accept that there is a need to prevent discrimination cases turning into a civil version of a criminal trial. That is common ground. But there appears to us to be no need for this provision because Section 65(2) of the 1976 Act already says that a court or tribunal can draw inferences only if the respondent,
"deliberately, and without reasonable excuse",
failed to reply in an adequate manner. The fear that a reply would prejudice criminal proceedings or turn a discrimination ca se into a guilt-determining exercise would surely qualify before any court as a reasonable excuse for failing to reply. This provision is therefore unnecessary because it is already adequately dealt with in the 1976 Act. I beg to move.
Baroness Whitaker: Can my noble friend the Minister tell the Committee how the Bill will implement the relevant undertaking of my right honourable friend the Home Secretary contained in his letter of July to the CRE—it was copied to me as the then vice-chairman of the Camden Race Equality Council so I should perhaps declare an interest—when he wrote,
"We accept that there should be a duty on courts and tribunals to draw inferences from the failure of respondents to complete s.65 questionnaires and that there should be a time limit of 8 weeks".
The point at issue is that the answers to the questionnaire giving details of the respondent's personnel procedures and practices, and so forth, are a crucial aid in proving discrimination. If an applicant is well represented, the legal representative can tease all this out, but it is often the case that the applicant is unrepresented. Without the evidence from the questionnaire it is difficult to flush out what we call "institutional racism". A refusal, therefore, to answer questions is important.
I hope that we shall see a duty on courts and tribunals to draw an inference from a refusal, particularly as my right honourable friend the Home Secretary said that this will be implemented. As far as I can see it belongs in this part of the Bill but, as will be evident, I am net a learned Lord and shall be happy to see it wherever it fits. Perhaps the Minister will give his attention to that for a later stage of the Bill.
Lord Goldsmith: The noble Lord, in moving this amendment, in a sense said that the reason for tabling the amendment is simply because the clause is unnecessary. It is relevant to consider, therefore, that there is no issue in relation to two aspects. First, I agree with the noble Lord that there is no issue on the importance of the questionnaire procedure and of the courts having an ability and, in appropriate circumstances, a duty to draw adverse inferences. As my noble friend Lady Whitaker said, sometimes that
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is the only way of proving discrimination and it is an important weapon. The second point not at issue is that the court would and should be able to take the view that an adverse inference should not be drawn because of the circumstances.
All that comes down quite simply to this. Section 65(2) of the Act to which the noble Lord, Lord Lester, referred says that the court will not draw such an inference where it appears that the respondent had a reasonable excuse for not answering the question. The clause makes it plain on the face of the Bill that it would be a reasonable excuse if a criminal investigation was under way. For my part, I feel that that should be a reasonable excuse if it would significantly prejudice that criminal investigation.
It is right, therefore, that the Bill should make it plain that there is that exception in those circumstances—limited to those circumstances—as a way, as the Minister said earlier, of making sure of a balance between protecting victims of crime, of seeing a criminal investigation properly pursued and the rights of those subject to discrimination being properly maintained.
Lord Cope of Berkeley: We have to be careful. First, I entirely agree that the questionnaire procedure is important. It needs to be preserved and continued in a valid way in the context of this Bill as it worked under the Act. The noble Lord, Lord Lester, explained that it was his invention in the first place and he is to be congratulated on the fact that it was an important element in making the existing Act effective.
We are also all agreed, as has come out already, that we do not want to prejudice either proceedings or-investigations of criminal offences. Clearly in some cases the answers to questionnaires could do that. What struck me was the difference between proposed new subsections (4A) and (4B). For example, the Crown Prosecution Service could, presumably, always say, "Well, we won't reveal the reasons behind a decision not to introduce criminal proceedings". Indeed, taken by itself, new subsection (4A) would be a complete let-out for the CPS from the whole effect of the Bill. It is only when it comes to the consideration of such an application by the court that questions of prejudice have to be considered.
I would have expected mention of the word "prejudice" to appear in subsection (4A) in that those who make the otherwise unsatisfactory reply, as it were, to the questionnaire would have to do their best to explain to the court why they thought it would prejudice proceedings. In some cases that would be obvious and those concerned would not need to "bang on" about it, but in others it may be a matter of doubt. We certainly do not want to give the CPS, or anyone else for that matter, a free run under this legislation.
I agree with the Government in their response to the comment made by the noble Lord, Lord Lester, that this provision is specifically directed at public authorities. Of course, it is not public authorities generally; it relates to those concerned with criminal

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investigation and prosecution. I believe that they should have a special position. However, whether that special position arises from the necessity to include such a clause or whether Section 65(2) of the Act can be relied upon is a different question. Either way, it places investigation and prosecution authorities in a different position.
I should also point out that the reason I do not think that the prosecuting and investigating authority should be left out of the matter is that this was absolutely central to the Lawrence case. The decisions that were made in the course of that investigation regarding whether or not to prosecute were absolutely crucial in the Macpherson report. Indeed, as we all know, a private prosecution was mounted at one point; so there can be no question of leaving such authorities out in these matters.
We should also bear in mind the point I made earlier that, in one sense, no criminal investigation is ever wholly closed. The possibility of it being re-opened and considered again can occur at more or less any point, even many years after the file has lain dormant or been put into the long-term pending filing system of the police. I give way to the noble Lord.
Lord Lester of Herne Hill: I am grateful to the noble Lord. Following his line of reasoning, I wonder whether the noble Lord will agree with me in the following example of a case of someone who has been the victim of race discrimination in this context. New Subsection (4B)(a) applies to a case where no decision to institute criminal proceedings has been made. The noble Lord will see that it is very wide in giving what the noble Lord, Lord Goldsmith, referred to as a proper reason within the statute. It refers to,
"any decision to institute criminal proceedings or any subsequent criminal proceedings and would not be contrary to the public interest".
That is not just the criminal proceedings in relation to the alleged victim. We are dealing with a case where there has been no decision to institute criminal proceedings of any kind. Does the noble Lord agree that that, at any rate, seems to be far too wide a protection of the investigative and prosecutorial system and that it would entirely frustrate or negate the ability of a victim to obtain an effective remedy?
Lord Cope of Berkeley: The noble Lord has made a good point. In a sense, it brings us back to his earlier point about multiple investigations and proceedings. In particular, the inclusion of the word "any" is a difficulty in this respect.
However, when discussing an earlier amendment the noble Lord also questioned the meaning of the phrase,
"contrary to the public interest".
I must admit that my first expectation was that this was a term of lawyers' art, which would be well documented in some books. Indeed, I made enquiries in that regard when considering the Bill but did not get a very clear answer as to what might be "the public
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interest". I think that it could be used extremely widely in some cases. The noble Lord has also made a good point in that respect.
4.45 p.m.
Lord Bassam of Brighton: I should, first, register my gratitude to all those Members of the Committee who have contributed to this short debate, which has been very illuminating. I am grateful for the comments made from all sides of the Chamber.
My noble friend Lady Whitaker is absolutely right to remind the Committee that the Government have agreed that there should be a duty on courts to draw adverse inferences from the failure of respondents to complete the Section 65 questionnaire. Indeed, that is one of the issues that the Government intend to consider and address in the equalities Bill that we promised in our equality statement on 30th November last. My noble friend gave us a very helpful and valuable reminder in that respect.
The Government accept that there is some force in the argument advanced by the noble Lord, Lord Lester, that it may be unnecessary to provide an opportunity for an early court decision on whether a refusal to respond to a questionnaire issued under Section 65 of the Act is reasonable where a public investigator or prosecutor believes that a reply may prejudice a criminal investigation or proceedings.
However, we feel that it is essential for claimants, investigators, prosecutors and the courts alike to make clear on the face of the Bill that a Section 65 questionnaire need not be completed where it might prejudice criminal proceedings or investigations. We believe that this is consistent with the theme running through Clause 4 of trying to strike a balance between the ability of an individual to seek redress through the civil courts, while ensuring that the commitment to reduce crime, and the fear of crime, to dispense justice fairly and effectively and to promote the rule of law is not undermined or weakened.
For that reason, I am able to tell the Committee that the Government are prepared to reconsider Clause 4(2). On that basis, I rather hope that the noble Lord, Lord Lester, will be content and feel able to withdraw his amendment.
Lord Avebury: Before the Minister sits down, I should remind him that this is the second time that he has been asked about the phrase,
"contrary to the public interest".
Is it not possible for the noble Lord to give Members of the Committee some explanation of the meaning of the phrase in the two contexts that have been mentioned?
Lord Bassam of Brighton: It would perhaps be helpful to give some further thought to what is "in the public interest". I believe that it is in the public interest for us to get this piece of legislation right; that is what we seek to do. Indeed, that is the purpose of this debate

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and the important discussions that we have had. I think that we should rely on that. We will take this matter away and consider it further.
Lord Lester of Herne Hill: It is very good news that there will he an equality Bill and that the point about drawing inferences raised by the noble Baroness, Lady Whitaker, will be addressed in it. It is not, of course, worth debating that issue today. It is also very good news that the Government have agreed to reconsider this matter because of the need to ensure effective access to justice in cases of this gravity. Therefore, on that basis, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Clauses 5 to 7 agreed to.
[Amendment No. 23 had been withdrawn from the Marshalled List.]
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 24:
Before Clause 8, insert the following new clause—
GENERAL DUTY ON PUBLIC AUTHORITIES
(" . For section 71 of the Race Relations Act 1976 there shall be substituted—
"General duty on public authorities.
71.—(1) Without prejudice to its obligation to comply with any other provision of this Act, a public authority to which this section applies shall have due regard to the need—

(a) to eliminate unlawful racial discrimination;

(b) to promote equality of opportunity between persons of different colour, race, nationality or ethnic or national origins; and

(c) to promote good relations between persons of different racial groups.

(2) The compliancy of each public authority to which this section applies with the requirements of this section shall be subject to inspection and appraisal in accordance with regulations to he made by the Secretary of State after consultation with the Commission for Racial Equality.
(3) This section applies to every body or other person specified in Schedule A1 or of a description falling within that Schedule."").
The noble Lord said: I believe that this amendment is the most important amendment that we are considering. It is as important as the amendment that we considered on Tuesday. It seeks to impose a positive and enforceable duty,
"to eliminate unlawful racial discrimination … promote equality of opportunity between persons of different colour, race, nationality or ethnic or national origins; and to promote good relations between … different racial groups".
If I may say so, in an equality Bill one would expect this to apply not only to race but also to other forms of forbidden discrimination, such as gender discrimination. The all-important enforcement mechanism is for now to be determined under this amendment by the Secretary of State after consultation with the Commission for Racial Equality. I shall explain a little later why we have left the provision in that form at the moment.
The significance of a positive duty is that it would require public authorities to act to prevent racism, which is preferable to using the law only to seek redress after discrimination has taken place. Only a positive duty can prevent delay and prevarication by public bodies in confronting and eradicating institutional racism which the Stephen Lawrence inquiry identified as all too common in some of our public authorities.
A duty to promote racial equality is not a novel concept in our race relations legislation. Section 71 of the 1976 Act—this was very much a child of the late Alex Lyon MP as Minister of State, as I recall—imposes a similar duty on local authorities, but, without any effective means of enforcement, this has had a limited and uneven impact. The purpose of our amendment is to create a clearer, more enforceable and more direct positive duty covering all public authorities and not just local authorities.
As the Minister has indicated, a few days before the publication of this Bill the Government published their equality statement, acknowledging that an obligation on public bodies to promote racial equality needs the force of statute. We very much welcome that. They have undertaken to legislate for this,
"as soon as parliamentary time permits".
Why cannot this be done now in this Bill in relation to race discrimination? That would then serve as a model and as an experiment when parliamentary time is found for the wider equality Bill. There is no need for delay; the Bill constitutes a perfect opportunity to introduce such a duty.
The Government have made progress in requiring public bodies to take action to eliminate inequality. The legislation establishing the Greater London Authority, the Welsh Assembly and the Metropolitan Police Authority all provide for a duty to promote racial equality. My noble friend Lord Dholakia played a particularly prominent part in relation to the Greater London Authority provision; namely, Section 404. But the problem with these statutory duties is that they remain essentially unenforceable. Any duty must be backed with a strong enforcement mechanism developed in consultation with the Commission for Racial Equality, as our amendment requires.
There is one example of an elaborate enforcement mechanism; namely, the detailed procedure in Schedule 9 of the Northern Ireland Act 1998 which requires designated public authorities to adopt schemes for the regular appraisal of the extent to which they are abiding by their duty to promote equality. The Government were happy to introduce such a scheme for Northern Ireland; why therefore should not a similar enforcement mechanism be introduced here?
It is intended that the Secretary of State will specify measures that public authorities will need to take and will give additional powers to the Commission for Racial Equality to require evidence of compliance and to take enforcement action where there is evidence of non-compliance. The central purpose is to create an effective but not excessively bureaucratic system of monitoring and enforcement modelled, for example, on the Northern Ireland scheme.
The CRE has repeatedly expressed its disappointment that the Government have failed to require all public bodies to use their purchasing power to promote equality by building equality requirements into their external contracts, service level agreements and grants. I recall what is often forgotten; namely, the White Paper of the noble Lord, Lord Jenkins of Hillhead, entitled Racial Discrimination of September 1975. This is what the second Wilson government committed themselves to. Paragraph 19 of the paper states:
"Since 1969 all Government contracts have contained a standard clause requiring contractors in the United Kingdom to conform to the provisions of the Race Relations Act 1968 relating to discrimination in employment and to take all reasonable steps to ensure that their employees and sub-contractors do the same".
Paragraph 20 states:
"it would be the intention of the Government when new legislation about racial discrimination is enacted—
that was the 1976 Act—
"to require a similar undertaking to comply with its provisions as a standard condition of Government contracts. The Government has considered whether its duty to take an active role to eliminate discrimination requires something additional. It would be an unacceptable burden to require all contractors to supply as a matter of form full particulars of their employment policies; but the Government cannot passively assume that a formal condition in a contract is all that is required. It is therefore intended that it should be a standard condition of Government contracts that the contractor will provide on request to the Department of Employment such information about its employment policies and practices as the Department may reasonably require".
That never happened. After the noble Lord, Lord Jenkins of Hillhead, left to become president of the EEC Commission, the commitment disappeared. Therefore, although that is the provision that the White Paper promised, it never came into being. Oddly enough, it was introduced across the Irish Sea when in 1989 the government of the noble Baroness, Lady Thatcher—of which the noble Lord, Lord Cope of Berkeley, was a distinguished member—introduced some extremely strong and effective monitoring in the Fair Employment (Northern Ireland) Act 1989. However, we still do not have fulfilment of the commitment in the 1975 White Paper on race discrimination. We still have nothing that is equivalent to the situation in Northern Ireland.
The Cabinet Office has published strong guidelines providing that all government departments must implement policy appraisal in order to assess the impact of their measures. In those circumstances we see no good reason why, now that we have the Bill before the Chamber, an opportunity should not be taken to introduce the positive duty. We have left out of this amendment the schedule that is in the Northern Ireland Act. The reason we have left it out is simply because we do not want to tie the Government's hands, or the hands of the CRE, in negotiating a sensible method of monitoring which is effective without being too onerous. We could have written in the Northern Ireland provisions literally verbatim.
The reason we refer to the positive duty applying to public authorities designated in a schedule—this goes back to a point that we raised at the very beginning in
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Committee—is because this is a different situation from the one we were considering previously as regards the duty on public authorities not to discriminate unlawfully. When one is dealing with a positive duty, it is vital that there be a schedule with a list of public authorities to which the positive duty can be applied in a well targeted and phased way so that we do not impose unnecessary handicaps on very small bodies, for example, and become unnecessarily legalistic or bureaucratic.
I hope that the Committee will consider that the amendment is well designed and is not over-intrusive. It does not seek to legislate for everything. It leaves a discretion with the Government, in consultation with the CRE, to work out an effective system of monitoring. It is much more modest than anything which occurred under the Conservative government or under the Labour government with regard to Northern Ireland. We very much hope that the Government will take the opportunity provided by this Bill to begin the experiment of having a proper, enforceable positive duty in Great Britain, as exists in Northern Ireland. I beg to move.
5 p.m.
Lord Cope of Berkeley: The noble Lord, Lord Lester, was right when he said that one of the most important things to consider when putting a statutory duty on public authorities to take some action or to have regard to some matters is the way in which it will be enforced and appraised. The weakness of his amendment is that it leaves that issue extremely vague. When I say "weakness", I mean weakness as far as Parliament is concerned. We are given no indication in the amendment—nor, unless I missed it, were we given a great deal of indication in the noble Lord's speech—as to how this inspection and appraisal might work.
Lord Lester of Herne Hill: Perhaps I can help. It is all in a schedule to the Northern Ireland Act 1998. I have not spelled it out on the face of the Bill but, of course, that can be easily looked up and provided. The model is in the Northern Ireland Act which Parliament passed in 1998. As I said, I can be criticised for being too flexible, but that is where one finds the best model nowadays.
Lord Cope of Berkeley: When I said "weakness", I was thinking of a weakness as far as concerns Parliament and the way it will work. It is, of course, a strength—governments like legislation that is vague enough to allow them to put it into action the best way they can. I know that from being on the other side of tables of this kind.
The noble Lord said that the Northern Ireland legislation is a model. I have some knowledge of that from the time when I was a Minister in Northern Ireland in 1989, at a time when all this was coming into being. The situation in Northern Ireland is now different in a number of respects. First, it was certainly different in 1989 in that there was on-going, extremely violent terrorism and many deaths at that point—3,000 in total in the past few decades. There was a

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tremendous background of violence which required extremely strong measures to try to reassure the public. It also meant that extremely strong measures were much more acceptable to people as a matter of fact.
Secondly, the discrimination causing the difficulty in Northern Ireland was of a simpler character. There were two basic sides, as it were—two parts of the population in Northern Ireland to consider—as opposed to the large number of people who, potentially, may be discriminated against in the context of this legislation—not only from the racial point of view in the sense of ethnic minorities, but also gypsies and so on, as we discussed the other day. So it is a much more complex situation.
I appreciate that the Northern Ireland example may be the model that the noble Lord, Lord Lester, has in mind, but there is nothing in the amendment to say so. If we were to pass the amendment as it is, it would be entirely for the Government to decide—with very little say from Parliament's point of view—how the enforcement, the appraisal and the inspection should be managed. I should prefer an amendment which would leave Parliament in greater control of what might happen.
In a sense, that is a quibble about the drafting of the amendment. As far as concerns its main point, the Government have already accepted that there should be a general duty of this character, presumably enforced in some way that we have yet to hear about in any detail. I am not conscious that we have heard in outline how the Government intend that that should happen. We have this wonderful expression of "when parliamentary time is available", which one has heard before. Indeed, one has used it before on other occasions.
The Home Office appears to have taken up an enormous slice of parliamentary time this year without succeeding in getting round to this particular piece of legislation. It obviously has a great deal of other priorities ahead of this at the moment. In those circumstances, the opportunity to insert the duty in this Bill—and to avoid the necessity of bullying the noble Lord the Captain of the Honourable Corps of the Gentlemen-al-Arms, and his colleagues in the Commons, into finding yet more time for the Home Office—is one which most departments, if they are keen on something, would be happy to accept. This gives the impression that perhaps the Government are not so keen on the idea, or at least that they want to kick it into the long grass at some point. I leave the Minister to explain what is meant by the different phrases that have been used.
Lord Patel: I support the amendment moved by the noble Lord, Lord Lester of Herne Hill. I repeat that I am not a lawyer and that I cannot speak on the finer legal points, nor can I pretend to fully understand them. But I know that the noble Lord, Lord Lester of Herne Hill, who is an expert, will keep us right.
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I speak in support of the new clause, which gives Secretaries of State the duty of inspection and appraisal to ensure that the public authorities actively promote racial equality policies. It is not good enough for authorities to prove that they have a written policy; active steps must be taken to eliminate racial discrimination, direct and indirect, and to promote equal opportunities.
My experience is of the National Health Service. Everyone in the health service should be personally committed to a culture in which prejudice of any kind is unacceptable. I support the Department of Health in its efforts to tackle racism and I support its pledge of zero tolerance of discrimination, whether caused by patients or by staff.
I also welcome the circular sent to managers across the NHS in March 1999 which stated that,
"employees must be proactive and positive in tackling racism".
But I question whether managers have taken heed of this directive. It is vital that NHS trusts, health authorities and primary care trusts, when they are established, have an equal opportunities policy. This new clause will ensure that such NHS bodies are appraised so that their policies are promoted actively.
An important issue for the health service is its recruitment and selection procedures, to which I referred at Second Reading. Equal opportunities practices for doctors in employment and within general practice ensure justice for all applicants for posts, enable selection of the best available candidates and deliver services to the community by a workforce which reflects its diversity. Organisations reflecting diversity in their staff can develop more fully their businesses and social potential, which will lead to more cost effective use of resources.
Some doctors—such as women, certain ethnic groups, overseas doctors and disabled doctors—often fail to gain the post for which they are qualified. The British Medical Association identifies that one of the main causes of under-representation of these groups can be attributed to lack of equal opportunity practices in recruitment and selection procedures. There is a serious anomaly in the race relations legislation, an issue I raised at Second Reading. I k now that the Minister replied that this would be covered in employment legislation.
I had intended to move an amendment because the Race Relations Act does not provide protection to a large number of GPs in partnerships, or to doctors seeking to become partners in general practices. Those in partnerships of five or fewer are outside the protection of the Act. There are 5,000 practices with two to five partners, involving 17,500 doctors. However, I have not been able to do so as such an amendment would not fall within the Long Title of the Bill. However, I am in favour of a positive legal duty on public authorities to act to prevent discrimination. That may prove to be a partial remedy for what I have been unable to do through the Public Bill Office.
I refer again to the Government equality statement mentioned by the noble Lord, Lord Lester of Herne Hill, and I support what he had to say. A statutory,

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enforceable obligation to promote racial equality and to eliminate discrimination is required to prevent prevarication and delay by public bodies, including the NHS, in confronting, and taking action to eradicate, institutional racism. That is far preferable to using the law to seek redress only after discrimination has taken place. I support the new clause since at least it will provide for monitoring of compliance in public authorities in promoting equality of opportunity.
5.15 p.m.
Lord Dholakia: I, too, support the amendment tabled in the name of my noble friend Lord Lester and those of the noble Baronesses, Lady Prashar and Lady Howells, and the noble Lord, Lord Patel. I was delighted to hear of the examples given by the noble Lord, Lord Patel, in his contribution to the debate.
We should bear in mind that what we are proposing is in effect already on the statute book as regards Section 71 and how it affects public authorities. However, what we are proposing here is in reality an amendment to the Race Relations Act that will include public authorities in that Act. I shall argue and give examples of why Section 71 has not been effective. For that reason it is right and proper that, although the provisions of Section 71 apply to public authorities, there needs to be a more fundamental approach in terms of compliance provision. It is vital, therefore, that we support this amendment.
During the passage of the Greater London Authority Bill I was fortunate enough to be able to impress upon the Minister the need for such a provision to be included in that legislation. I recall going to see the noble Lord, Lord Bassam, and I do not believe, in the early stages, that he was happy about it. However, over a period of time the strength of our argument was such that not only did I receive the support of his party but also that of the Conservative Party in promoting the measure. Should the Minister give me a nod and a wink that he is prepared to listen again, I shall shut up and sit down and save much effort in putting forward my arguments once more.
Many of the arguments have already been put to the Committee. My noble friend Lord Lester spoke of the position in Northern Ireland. However, we should not forget that provisions are already in place as regards the Scottish Parliament and now for the Greater London Authority and for the Metropolitan Police. We are discussing substantial powers. Earlier I mentioned the Government's own recently published statement on equality which acknowledged an obligation upon public authorities to promote equality needs. Therefore, as my noble friend Lord Lester said, this amendment should act as a model for other equality provisions in further legislation that may be brought forward.
In our view, the enactment of a strong, clear, enforceable legal duty ought not to be delayed. Only by imposing such a duty upon public bodies will the Government give tangible reality and consistency to their commitment to racial equality. Obviously, that
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was reflected in the Stephen Lawrence inquiry. A statutory duty of the obligation to promote racial equality and to eliminate racial discrimination is required to prevent prevarication and delay by public bodies in confronting and taking action to eradicate institutional racism.
For a number of years I worked for the Commission for Racial Equality. It sees no real evidence that the present non-statutory guidelines, such as those in place for civil servants in relation to policy appraisal for equality of treatment, have been effective in changing the factors that influence government policies. Similarly, the obligations on local and police authorities that have been in place since 1976 under Section 71 of the Act have had a very uneven and limited impact. That is why it is significant that we need a positive legal duty to oblige public authorities to act to prevent discrimination.
I have mentioned Section 71, which places duties on all local authorities. However, when one examines those duties, one finds that the performance indicators on racial equality in local authorities' annual reports to the Audit Commission show clearly that, despite Section 71, areas of local government employment practices and service delivery remain wholly outside equal opportunity programmes. No longer can we depend upon the power of the commission, because a close examination shows that there is none. The commission has become a laughing stock. Matters are simply left to local authorities. If an authority is well intentioned it will put in place good practices, but if it is not, then nothing can be done about it.
Furthermore, one can examine the confirmed high level of complaints to industrial tribunals where 15 per cent of all cases heard before those tribunals come from local authorities. That reveals how ineffective are the local authorities themselves in eradicating discrimination. We shall miss a golden opportunity, which has been pointed out not only by Macpherson but also by Scarman, if we continue to keep faith with the section in the Race Relations Act. It has hardly worked at all.
The noble Lord, Lord Cope of Berkeley, put the argument to the Committee that we must define in precise terms what we are approving here. It is right and proper that, if the Government decide to take these proposals on board at Report stage, then it will be possible to implement them by regulation. It is also perfectly feasible to indicate those public authorities that should be included under such regulations. These proposals are not out of place. All that is required is the will of the Government.
Many noble Lords who have contributed to the debate on this amendment represent, to a large extent, the interests of ethnic minority communities. They have stated in clear terms again and again that it is about time that the Government looked at this provision. They have the experience and the examples of what is happening in their areas. I hope that the Government will take account of the body of opinion that exists in the Chamber. If they do so, they will be delivering a great public service in relation to other

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legislation and how equality issues may affect it. Occasionally, such matters are overlooked. For that reason, it is not good enough to wait for some later date or until after the next general election. Harold Wilson said that a week is a long time in politics and no one can anticipate what will happen at the next election. I hope that the Minister, who was wise enough to agree with the amendment I tabled to the GLA Bill, will now say, "Yes, this is the right approach" and will take it on board.
Lord Avebury: My Lords, in the debate in this House yesterday a noble Lord remarked that, if a week is a long time in politics, a decade is a short time in diplomacy. I would say that, when we look back to the 1976 Act, 20 years is an even shorter time in the field of race relations. As my noble friend said, I hope that we shall now seize this opportunity to impose a duty on public authorities which has been so widely demanded by ethnic minorities throughout the country. If we do riot take up the opportunity we have today then I fear that we shall have to wait for another 20 years. As my noble friend Lord Lester pointed out, in 1976 we missed our chance of putting into place something along these lines.
I also wish to take up what the noble Lord, Lord Cope, said about my noble friend omitting to include a schedule in this amendment, which is equivalent to Schedule 9 of the Northern Ireland Act. I am sure that my noble friend would have done that if there had been time to consult the Home Office and the Commission for Racial Equality and arrived at a suitable form of words which would be the equivalent of that schedule.
I believe that my noble friend Lord Dholakia hinted at a solution to the problem. If the Commission for Racial Equality already has firm ideas about how that should be translated in terms relevant to England that would be satisfactory. I do not accept entirely what my noble friend said as regards Schedule 9 reading across exactly to English conditions. There may have to be some minor variations. But if the conditions are of relatively small character and consultation with the Commission for Racial Equality could take place between now and Report stage, then we would not have to give the wide discretion to the Government which the noble Lord, Lord Cope, has criticised. I agree with him that it would be much better if we can put this matter on the face of the Bill, but if we do not have the agreement of the Government in principle to the amendment then we shall be wasting our time in entering into consultations.
I wish to take this opportunity to ask the noble Lord, Lord Bassam, another question which arises out of this brief discussion, particularly its relationship to Northern Ireland legislation. As the noble Lord will recall, under Section 75 of the Northern Ireland Act, United Kingdom departments which operate i a Northern Ireland had to he designated under Section 75(3). As I believe is usual in these cases the procedure is that the Secretary of State for Northern Ireland had to write to all the United Kingdom departments to ask whether they had any objection to being designated. When I last
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made inquiries about this matter I was told that every single United Kingdom department had responded favourably to the request except the Home Office. That was at about the time we rose for the Christmas Recess and Section 75 of the Act was due to come into operation on 1st January. Can the noble Lord say whether the Home Office replied to the Secretary of State for Northern Ireland before the deadline and was it willing to be designated under Section 75 of the Northern Ireland Act?
It is not a trivial point. One would hope that there is a certain degree of conformity in legislation on both sides of the Irish Channel. If the Home Office is to be subject to Northern Ireland legislation it would surely be highly incongruous if it did not have a similar obligation as regards the rest of the country. Otherwise one is saying that Northern Ireland is a separate land. It is treated in a very superior way as regards obligations placed on public authorities. I believe that the noble Lord, Lord Cope, will agree that paradoxically the scope of the legislation is far wider even though there are only the two communities. Northern Ireland legislation extends to gender, nationality and so forth, whereas we are talking about a more limited sub-set of provisions in Northern Ireland.
As I say, paradoxically, even though one has the major problem of religion between the two communities, Northern Ireland legislation extends through a wide spectrum of differences between different sections of the population. When we consider gender later on I hope that the same considerations will apply and that we shall place on public authorities the obligations contained in the Northern Ireland legislation which provide an extremely valuable model. If the noble Lord, Lord Bassam, can answer my question, I believe that it would help the Committee in its deliberations on this particular legislation.
Baroness Uddin: I had no intention of speaking in this debate because I have been absent for much of it. I therefore beg the Committee's indulgence to speak in support of this particular clause.
Unless we promote legislation imposed by statute on local authorities and public bodies, then we shall fail to respect the confidence of the community. It is not simply a matter of being 20 years too late as regards race relations legislation. So much has happened since the death of Stephen Lawrence. The community had such expectation not simply in the black and Asian sectors but across all sections of it. So much aspiration relies on this one Bill in finally laying to rest assumptions that we will tolerate racism under any statutory obligation and through the services that we provide. There has been a great deal of discussion about indirect discrimination. I have great concerns about that. I hope that we shall be able to address that fairly soon.
Leaving that matter to one side, as a long-standing councillor for Tower Hamlets I remind the noble Lord, Lord Lester, of the dreadful way in which the Liberal council used Section 71 to champion racist policies against the communities in that borough. I say

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that because of what the noble Lord, Lord Dholakia, said about the ineffectiveness of Section 71 over a very long period. I shall refrain from commenting any further on the record of the Tower Hamlets Liberals and their abuse of authority and power and the degradation of the Asian and Muslim community in that part of the borough.
I very much urge the Minister to accept this particular clause because, after all that has been done since this Government came to power and the aspirations which have been raised in the community across the country, I do not believe that we can afford to lose the confidence of the community and fail the aspirations of every single person who has supported the Stephen Lawrence report. We cannot possibly let those people down. I do not believe that it is a party political matter or that we can wait for the equal opportunities statement to be produced and treated as an afterthought. That is how it will appear. I urge my noble friend to accept this new clause and I am delighted to support it.
Lord Bassam of Brighton: It is always interesting and perhaps difficult for Ministers to disagree with something when they have every sympathy with the proposal put in front of them. The nature of our disagreement on this particular amendment is not as regards its principle, spirit, intent or direction but simply a matter of timing and content. It is for that reason we are unable to support the amendment which the Committee is discussing.
I have found the contributions to the debate very interesting, helpful and illuminating. I believe that all Members of the Committee who have spoken have made very important points which take our discussions forward. I was much impressed by what the noble Lord, Lord Lester, said in his opening remarks on this issue. He addressed it very practically, forcefully and laid out a very good case. We agree with it. As I have made clear in the past, it is the Government's intention to legislate to promote a positive duty in this field. There is no disagreement between us on that matter.
The noble Lord also gave us a very interesting history lesson on the development of this particular aspect of legislation. It was very thoughtful and helpful in reminding us about the position from which we started. In that context it is worth saying to the Committee that Labour, whether in local or national government, has always been at the forefront of these arguments. We have an excellent track record as regards this issue.
The Committee will be aware that my political background is local government in which I spent a long time—perhaps too long in the view of some colleagues. I was very proud to lead an authority which was at the forefront of these issues. Although race was perhaps not the biggest consideration in my local authority area, certainly it was an important concern. Issues of sex equality and race were very much part of the authority's forward thinking. In many respects I believe that local government has in its policymaking
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and thinking made out a clear case for introducing a positive duty. In a sense, in many areas national government has caught up with the best achievements of local government. I believe that local government should be congratulated on that. Positive promotion has spread not simply across local government but into a whole range of areas within the public service. I believe that over the years the public service has in general responded well in that respect.
The Government have made clear their position. It is not their intention to kick this issue into the long grass. We have made clear our intention to consult on how a duty to promote equal opportunities in relation not only to race but to sex and disability may work in practice. We are fully committed to the introduction of a legislative duty when that consultation has taken place and we have had the opportunity to take into account the views of all concerned when they have been properly sought. That opportunity for consultation is very important. We want to get it right and ensure that in this complex legal field we create that positive duty in the right framework.
5.30 p.m.
Lord Lester of Herne Hill: Can the Minister inform the Committee what consultation took place in Northern Ireland before the very extensive system in the Northern Ireland Act 1998 was imposed by Parliament?
Lord Bassam of Brighton: I am confident that the noble Lord is aware that there was not necessarily extensive consultation in Northern Ireland. But a very special set of circumstances applies to Northern Ireland and I believe that that must inform our debate this evening.
We want to achieve a society in which public bodies uphold the duty to promote equal opportunities so that it makes a practical, telling difference to the way that citizens live their lives. That must be right. For that to happen we need to explore how to set up workable arrangements to which public authorities can adhere and develop proposals for an effective and proportionate system of enforcement.
The noble Lord, Lord Cope, raised the whole question of enforcement. He pointed out that there might well be weaknesses in the amendment in that it rather side-stepped the issue of enforcement. Some may argue that precedents in Northern Ireland provide a good model. However, it is far from clear that it would be appropriate simply to transpose those arrangements lock, stock and barrel to Great Britain. For example, the scale of activity required to appraise and inspect all the public authorities, as the amendment requires, would be phenomenally resource intensive. We cannot afford to set up a bureaucratic, administrative nightmare. I say to those members of the Committee who, quite rightly, support the spirit of this amendment that we must focus further time and attention on the important issue of how a positive duty to promote is to be introduced, policed and made to work. We believe that workability is very much at the heart of our debate.

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The Government are committed to introducing a duty on public bodies to promote equality of opportunity in the areas of race, sex and disability. We want to present our options and proposals for consultation later this year before we introduce legislation. At that point we shall be able to seek and positively encourage views from all quarters on what will be a wide-ranging duty to promote positively equal opportunities. We have not been slow to move forward in this Area. In the meantime, we shall continue to press ahead with administrative action, as we have been doing throughout the life of the Government. We have built on the mainstream guidelines issued to policymakers, making careful progress, but progress nevertheless, on the targets set for ethnic minority recruitment, retention and promotion. I am sure the Committee accepts that that has been an important aspect of the administrative work of the Government to take forward this whole area of policy.
I am reluctant to become too embroiled in the matter raised by the noble Lord, Lord Avebury, except to say that I am conscious that the Home Secretary replied to the question and that we must make progress in that field. The Home Office, as with all other departments, is very much on side in the context of Northern Ireland. I ask the Committee to consider very carefully what I have said. We all want to make progress and clearly there is a political consensus.
Lord Avebury: I did not really expect the Minister to give me an answer on the Floor of the House. Will the noble Lord write to me, and place a copy in the Library, saying whether the Home Office has signed up to Section 75(3) of the Northern Ireland Act? Can he do so before Report stage?
Lord Bassam of Brighton: I shall happily ensure that the noble Lord receives a reply to clarify the situation. There is a political consensus on this matter. But we need to work to give it practical effect by its introduction into legislation across the whole range of equality issues. For that reason we need a process of careful consultation. I shall carefully reflect on what has been said this evening. We shall continue to keep the matter very much at the forefront of our thinking. I hope the Committee accepts that the Government have not merely expressed good faith in this matter but have, since May 1997, made progress in policy and implementation in this field. I congratulate all those who have given effect to that progress, particularly those in the public service. On that basis, I ask the noble Lord to accept the Government's good faith in this matter and to withdraw the amendment.
Lord Lester of Herne Hill: Of course we accept the Government's good faith. What we do not accept is the Minister's dismal and deeply disappointing reply. We all agree on the political objective: in that sense there is a consensus. What deeply divides us is that we on these Benches believe that the means to give effect to that objective must be found now in this Bill and not at a
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future indeterminate date. We have the opportunity in the Bill to give the Government the authority to introduce a satisfactory scheme.
I have been criticised, perfectly fairly, by the noble Lord, Lord Cope of Berkeley, for not seeking to write into the Bill the kind of detail that appears in the Northern Ireland Act so that Parliament can examine it in detail. My reason for not doing so is my desire to preserve flexibility for the Home Office, other government departments and the Commission for Racial Equality to be able, with the authority of Parliament, to come up with a scheme sooner rather than later related to race discrimination and equality as an experiment or model which can be examined when there is an equality Bill either during the lifetime of this Parliament or, if necessary, at a later date. The Minister has given no coherent reason for the need to delay. As far as I am aware, there was no consultation about what happened in Northern Ireland.
I should like to address the question of the difference between Northern Ireland and Great Britain, which was referred to by the noble Lord, Lord Cope. I am sure the noble Lord did not mean to imply that the problems of race discrimination are any less serious in Britain than those of religious and race discrimination in Northern Ireland. I should like to share with him and the House a recollection pointing to the danger of any other point of view.
Some years ago, on behalf of a Home Secretary no longer alive, I was consulted by an extremely senior and now retired Home Office civil servant. He took me to lunch and said, "I should like to ask you what we should be doing about race equality and race relations". I was about to travel to Belfast in order to give advice there about human rights in Northern Ireland. With this senior official, I went through all the options, platitudes and obvious things that needed to be done, including the need for a positive duty. Each time I came to another proposal he said, "That is politically impossible". I asked "Why are all these proposals, including a positive duty, politically impossible?" He replied, "There is not sufficient political will". I said, "I am going to Northern Ireland this afternoon where there is plenty of political will because they have burnt the place down. The place is full of rioting and killing. Is the only way in which we shall get action in Britain for us to distribute boxes of matches to the ethnic minority to follow suit so that there is sufficient political will?" He sighed and said, "I cannot see how I can get my political masters"—they were Conservative, not Labour—"to have sufficient political will in Britain because in Britain race relations are still relatively peaceful".
Lord Bassam of Brighton: I have listened with interest to the point the noble Lord makes. In a sense—I invite him to agree—he makes the case for the argument that I put. It is accepted that there is a political consensus here. We need to get this right. It is right that we find the time to have important consultations on this issue not least because we are not talking just about a positive duty to promote race equality but a positive duty to promote a number of

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other equality issues. For that reason we need to get it right. We have the political consensus. Now let us get right the interrelations between that positive duty and its multifaceted aspects.
I invite the noble Lord at least to reflect that consultation is important. It may not have been an absolute priority and necessity in the urgent and special circumstances of Northern Ireland, but with the complexities that this issue brings, such consultation is right.
Lord Lester of Herne Hill: I fully agree with that. That is why the amendment gives authority to the Government to apply that duty in a manner which is based on consultation between the Government and the Commission for Racial Equality. If necessary, we can add a wider consultation duty. But the amendment gives the necessary authority so that the Government can proceed now in the field of race discrimination rather than waiting to deal with all the complexities of other kinds of discrimination.
The United Kingdom has been criticised by the UN Human Rights Committee for not taking steps with sufficient vigour, and by the UN Committee on the Elimination of Racial Discrimination as recently as 1997. It criticised the United Kingdom for the lack of a similar positive legal duty on bodies working in the fields of health, education, social services, planning and housing as that which applied to local authorities. So we stand condemned by two respected international human rights bodies in the race discrimination field.
I do not use emotive or exaggerated language. I simply say that it is unacceptable for the United Kingdom to be pilloried in that way because of the refusal by consecutive governments to take effective action. The time is right. There is no reason why that duty cannot be included in this Bill any more than in the Greater London Authority Act, or in the Northern Ireland Act.
The noble Baroness, Lady Uddin, mentioned the sad story of the Liberals in Tower Hamlets. The first appalling job I had to do when I became a Member of this House was to investigate what some members of my party had done in Tower Hamlets. My somewhat strong report speaks for itself. We took, I hope, effective action—if one makes party political points, stronger action than has been taken by some parties in some parts of the country. The Liberal Democrats in Tower Hamlets needed this duty to be imposed on them, as do Labour and Conservative members in all public authorities.
We will not wait. The noble Lord, Lord Patel, kindly described me as an expert. I am not an expert. He is an expert. The reason that the noble Lord and the ethnic minority Peers in this House are experts is because they are potential or actual victims of race discrimination. They have the kind of expertise that I as a white, middle class liberal lawyer living not in Hampstead but in Herne Hill, next to Brixton, lack. I may be Jewish, but I am not visibly different in the same way that
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people of a different colour are. This House has a special expertise. Thanks to this Labour Government there are Members of this House from the ethnic minorities. I ask the Minister to listen carefully. From all sides of the House, they will not tolerate any further prevarication.
Therefore, I shall press something like this amendment with or without further detail. I shall withdraw the amendment, but I promise to return to the issue at Report stage. If we do not have a commitment by then, I propose to divide the House. I hope that we shall then at last unite together to get something sensible on the stocks so that we can proceed not with all deliberate prevarication but with all reasonable speed.
I am sorry if I sound a little cross; I am very cross. The answer given by the Minister is wholly unsatisfactory. I hope that Members of the Committee on all sides agree with me. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 agreed to.
Remaining schedules and clause agreed to.
House resumed: Bill reported to the House without amendment.

Care Standards Bill [H.L.]
5.48 p.m.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, in moving that the House do now again resolve itself into Committee on this Bill. I should like to apologise to the House for something I said on Monday. The noble Lord, Lord Clement-Jones, moved Amendment No. 5 intended to ensure that private GP call-out services would be regulated under the Bill. In reply, I indicated that all wholly private GPs would be covered by the provisions in the Bill and that we would not be regulating only premises.
I am sorry that my comments were not wholly accurate. The Bill as currently drafted will regulate premises where private GPs provide treatment but not all private GP services. I apologise to the House for the error. I am grateful to the noble Lord, Lord Clement-Jones, for drawing attention to the issue and I recognise fully the concerns which prompted his amendment. We shall look carefully at the options for tackling those concerns, in particular whether we might seek to use this Bill for that purpose or whether there are other more appropriate approaches. I shall, of course, let the noble Lord know the outcome of our thinking. I beg to move.
Moved, That the House do now again resolve itself into Committee.—(Lord Hunt of Kings Heath.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Murton of Lindisfarne) in the Chair.]
Clause 20 [Regulation of establishments and agencies]:
Lord Clement-Jones Lord Clement-Jones moved Amendment No. 46:
Page 10, line 28, leave out ("may-) and insert (-shall").
The noble Lord said: Without being out of order, perhaps I may take the opportunity to thank the Minister for his response. He made it as soon as he was aware that his previous statement was incorrect. I look forward to hearing the result of the ruminations within the department.
In moving Amendment No. 46, I shall speak also to Amendments Nos. 55, 57, 61 and 62. I am getting too long in the tooth to trade wording with Ministers, particularly as regards "may" and "shall", and I should not like the Minister to believe that I do not accept that for many technical and historic reasons the vast bulk of duties on Ministers exist as "may" rather than "shall". However, in Committee it is important to try to elicit from Ministers the depth of their commitment, hence I propose the use of the word "shall". I give the Minister due warning that I shall not take the proposal through to Report stage.
It is important for the Minister to give an assurance. Those from the voluntary organisations who have briefed me are concerned that the wide discretion to make provision in regulations covering many important aspects of the regulation of private healthcare—for instance, complaints procedures—could dilute the effectiveness of the measure. They and we on these Benches want to see a firm commitment from the Government to make provision as regards the essential details of the regulations.
Amendment No. 55—and I see that Amendment No. 56, tabled by the noble Earl, Lord Howe, is similar—is designed to tease out more about the meaning of the word "welfare" because it is not clear. The proposal in Clause 20 provides regulation-making powers which will cover the management, staff, premises and conduct of establishments and agencies. Subsection (1) provides for regulations which will be key to the registration of establishments and agencies.
Subsections (1)(d) and (1)(e) provide powers to make regulations to ensure that, overall, children's homes, care homes, residential family centres and independent fostering agencies must secure the welfare of the people placed in or through them. The proposal to make establishments responsible for the welfare of persons is warmly supported by ourselves and by others who take a strong interest in the Bill. It is a welcome move from previous legislation, which merely concentrated on premises and facilities. However, we believe that the clause should be strengthened still further by defining the word "welfare". If it is not defined, it leaves open the possibility of the unscrupulous home owner responding in very narrow terms.
The incorporation in statute of the promotion of health, the prevention of ill health and the rehabilitation and recuperation of individuals in support of their daily activities places greater emphasis
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on the quality of care and treatment and leaves little room for ambiguity. I urge the adoption of Amendment No. 55.
Finally, we on these Benches strongly support Amendments Nos. 58 and 59, tabled by the noble Earl, Lord Howe. I beg to move.
Earl Howe: I rise to speak to Amendments Nos. 49, 51, 52 and 63. I shall speak also to Amendment No. 56 which closely resembles Amendment No. 55. The Delegated Powers and Deregulation Committee of your Lordships' House has observed that the Bill, of its very nature, requires a substantial number of powers to be delegated to secondary legislation. I do not seek to argue with that judgment. It is a framework Bill and it is not appropriate to include everything in it. Ministers must have flexibility to amend regulation in the light of changing circumstances. However, we need to be certain that the scope of such delegated powers is appropriate.
One of the risks in a Bill of this kind, which is almost bursting at the seams with regulatory provisions, is that there is a temptation for a government to regulate just a little too much. That tendency seems to be manifest in Clause 20. I should like to hear from the Minister why, for example, he feels it appropriate to regulate the fitness of premises to be used as an agency as distinct from premises in which there are residents or patients—and I quite understand why they need to be regulated. We need to know why the number of people working in an agency is a matter for government.
The financial position of a business and the way in which it keeps its accounts are of considerable importance for its viability and for all who depend on it. However, are they matters for government to pronounce upon and to regulate? In any case, how are inspectors supposed to make a judgment on what the financial position of an establishment or agency is? Will they be qualified in finance and accounting? I doubt it. I doubt, too, that an inspector even when presented with, say, a business plan and a detailed cash-flow forecast, could be sure that they made sense. Still less could he be sure that a bank manager would continue to place his confidence in the management of a particular business.
I am prepared to accept that clear and accurate record keeping is important for the proper operation of any of the establishments covered by the Bill, but is it necessary to include Clause 20(3)(c) when subsection (1)(f) provides for the management and control of the operations of an agency? If it is, I should like to know why.
In considering Clause 20, the Committee needs to bear one general point in mind. The raison d'être of the Bill, as the Government have repeatedly emphasised, is to minimise the scope for abuse or poor treatment of vulnerable people and generally to raise standards of care. Any power to regulate that appears on the face of the Bill should therefore pass a simple test: do such regulations contribute significantly to those two overriding aims? If the answer is "no", the Bill should

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not provide for them. I believe that it focuses too much on management and administration and not enough on the quality of care.
Lord Rix: Before speaking to Amendment No. 70, which is included in the group, I, too, want to clear up a point which arose in the report of Hansard on Monday this week. In col. 437, it was reported that I said:
"For that reason, noble Lords may wonder why I have tabled so many soulless amendments".
I remember once many years ago, when I was an actor, an unkind critic once accused me of not knowing my farce from my elbow—I hasten to add that the word is spelt: F-A-R-C-E. It is quite clear that, unfortunately, the Hansard reporter last Monday did not know her Middle English from her Latin, soul being Middle English and solus, "alone", being Latin, often in a dramatic context. I believe that the actress Greta Garbo was fond of saying that she wanted to be alone, but she never said that she wanted to be solus, as far as I am aware. I hope that the matter is cleared up and I should like to say that the Hansard department was quick to apologise and printed a correction the following day, but your Lordships might not be aware of that particular correction.
I turn now to Amendment No. 70. Many publicised abusive situations involving adults demonstrate the need for clearer prescription by way of regulations, regarding what is acceptable behaviour management for adults as well as for children. In many circumstances, restraint is nothing more than gross violation, but in a small number of cases it may have a legitimate role in serious risk management. Mencap is currently involved in three pilot projects exploring methods for responding to challenging behaviour in non-aversive ways. I believe that the Government have a legal responsibility to advocate and enforce best practice in behaviour management so that assault is no longer legitimised in the name of restraint.
6 p.m.
Lord Laming: Amendments Nos. 46, 47 and 48 deal with a real issue; that of "may" or "shall". Clause 20 places a wide range of responsibilities on the Government to deal with the regulation of establishments and agencies. Although I have a certain sympathy with the point made by the noble Lord, Lord Clement-Jones, I believe that for such a wide range of functions, the use of "may" rather than "shall" is helpful. I regret that I cannot support Amendment No. 63 because the Burgner report, which looked into many of the issues relating to the regulation of establishments, identified the need for establishments to maintain good records.
Such establishments deal with people who not only have a wide range of needs but who often come from many different parts of the country. Bad record-keeping was one of the reasons why abusive situations were allowed to develop in some establishments. The regulations do not need to be intrusive, but together they create a framework which is the foundation for
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good practice. I greatly hope that it will be accepted that good practice depends on good administration, good management systems and proper systems which are capable of being evaluated by external sources which include inspectors.
Baroness Gardner of Parkes: I have been in the House too long to enter into a lengthy argument about "may" or "shall"—I have heard it so many times—but I slightly prefer "may" for the reasons given by the noble Lord, Lord Laming.
I want to comment on the point made by my noble friend Lord Howe about agency premises. It is important that there is not legislation in too many forms covering the same matter. Premises for any kind of office or business, which is what an agency basically is, already come under town-planning law and would certainly come under health and safety legislation also. I wonder whether including this provision in the Bill in that way would make them subject to too many different forms of legislation.
Lord Hunt of Kings Heath: I shall speak first to my Amendments Nos. 68 and 115 to 118. Amendment No. 68 is a minor amendment to ensure existing Children Act powers are fully replicated in the Bill. The regulation-making power is already contained in the Children Act 1989, in Schedule 4, paragraph 4(2)(i). Under that power, the Children (Secure Accommodation) Regulations 1991 have been made, governing specific requirements made of children's homes where children's liberty is restricted.
I should point out that the Bill allows the continuation of the current system, whereby such establishments are not only duly registered as children's homes by the national care standards commission, but will also then be subject to a further approval on behalf of the Secretary of State before they may be used as secure accommodation for children.
The regulatory powers in Schedule 4 of the Children Act are repealed by the Bill's provisions. Any regulations made under those powers would fall with that repeal, unless the powers are re-enacted. The power on secure accommodation was omitted in error in the drafting of the Bill. It is essential to provide proper protection for children in such establishments. Among their other provisions, the existing regulations provide for the important approval of the Secretary of State in respect of such matters as the placement of children in secure accommodation, the appointment of persons to review placements and the requirements for record-keeping. The amendment allows the provisions of the existing regulations to remain in force.
I turn now to Amendments Nos. 115 to 118. The amendments are intended to ensure that Clause 44 properly reflects the provision in Clause 20 which sets out the regulation-making powers for independent fostering agencies. Our intention is to enable, as far as

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is appropriate, the same requirements to be made of local authority fostering services as are made of independent fostering agencies.
The amendments bring the provisions into line. In practice, they mean that regulations may be made about staff in local authorities who carry out work on the fostering functions covered by that part of the Bill. Rather than applying only to fully employed staff, as currently provided for in the Bill, the amendments would ensure that regulations made under those powers in respect of relevant fostering functions would apply to staff who are locum and self-employed, but who carry out functions for the local authority.
I turn now to the amendments moved by other Members of the Committee. Amendments Nos. 46, 57, 61 and 62 raise the issue which, as the noble Lord, Lord Clement-Jones, suggested to us, is familiar: whether the legislation should say "shall" rather than "may". We discuss that issue on just about every Bill which passes through your Lordships' House and indeed, I have no doubt that the noble Earl, Lord Howe, when he was a Minister, defended the use of "may", as opposed to "shall".
However, I understand that Members want me to specify our commitment in terms of the regulations. The reality is that the regulations will be made. The legislation in front of us simply would not work if the regulations for regulated services to meet were not set out. The intention is quite clear and I doubt if there is any disagreement on the matter.
I turn now to the concerns raised by the noble Earl, Lord Howe, as to whether the sum total of the regulations that will be enacted will place too many burdens on the establishments to be regulated. I understand that concern, but I believe that he will understand also that a careful balance has to be drawn in terms of protection of the public interest and ensuring that we are not over-burdensome on the homes and other establishments that will be regulated under the Bill. I believe that we have the balance right.
I turn first to Amendment No. 49, which would exclude domiciliary care agencies, fostering agencies and voluntary adoption agencies from regulations made under Clause 20(1)(c) to ensure the fitness of premises. I understand why noble Lords have asked why the premises of an agency must be so regulated. In fact, there are a number of very good reasons why that needs to happen. First, agencies will usually hold confidential records about service users. We believe that the registration authority will need to be able to ensure that an agency's premises are secure in order to prevent unauthorised persons gaining access to areas where such records are kept.
Additionally, agencies will often need to have space to meet in private. I t is proposed, for example, that the national minimum standards for domiciliary care will include standards relating to the supervision of staff. That is likely to involve an annual interview between an individual member of staff and his supervisor. That would need to be ir private and, therefore, an agency's premises would need to facilitate that. I understand the point raised by the noble Baroness, Lady Gardner, but
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I am not at all sure that the provisions which she mentioned in relation to town planning or health and safety will meet the requirements which we believe are needed in relation to those offices.
The effect of Amendment No. 51 will be to exclude registered agencies from the regulatory provisions relating to the numbers and types of persons required to work at an establishment or for the purposes of an agency. We regard the regulation of agencies as being as important and necessary as the regulation of establishments such as care homes. We cannot agree that the regulatory powers for agencies should be weaker than they are for establishments; for example, it is essential that the power exists to ensure that staff who deal with vulnerable children in fostering or adoption agencies hold relevant professional qualifications and have appropriate experience where the position demands it. Such a requirement forms part of the present inspection arrangements for adoption agencies. Certainly, we would not want regulation of those agencies by the commission to be any less comprehensive and rigorous than the current system. I can assure your Lordships that the regulations and standards set on staffing will be reasonable and based on consultation with all interested parties.
I turn to Amendment No. 52, which seeks to remove a critical power of the new commission to protect those who depend on regulated care services. This concerns the issue of financial viability. We believe that it is especially important that organisations which provide care should be financially sound and unlikely to put at risk the vulnerable people who depend on them to meet their everyday needs. That principle has been recognised in a judgment relating to fitness under the Registered Homes Act 1984, and we do not want to weaken the protection which current legislation affords us. By making it clear that the financial position of an establishment or agency will be made the subject of requirements, we are ensuring that would-be providers are thoroughly prepared to demonstrate that they have the means to run their business.
In answer to the point raised by the noble Earl, Lord Howe, the type of information which is sought now and which will be required in future relates to cash flow forecasts, business plans, audited accounts of previous trading, and so on. Of course, I accept that the routine inspection officer should be able to read those accounts. However, I am certain that the commission itself will be able to employ expert people who can advise on those issues.
I turn to Amendment No. 55. I support entirely the noble Lord's concern to ensure that a wide interpretation is taken of the meaning of "welfare". Equally, we must be careful not to define it in a way which might be limiting. However, we are currently considering whether the Bill is drafted in a way which ensures that "welfare" includes promotion of health in particular. If that is not the case, or if there is any doubt, we shall bring forward an amendment at

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Report stage. I believe that the noble Earl, Lord Howe, will accept the same response in relation to his Amendment No. 56.
I turn to Amendment No. 63, which relates to record-keeping. The principle of regulating record-keeping in nursing homes, private hospitals and residential homes is already well established under the Registered Homes Act 1984. There are extensive requirements on homes to maintain records concerning the conduct of the home, including the care, nutrition and health of residents, the recruitment and training of staff, and the health and safety precautions taken. It is essential to maintain those if a service is to be run effectively and monitored by the regulatory authority. I believe that record-keeping as evidence of the care provided—or not—has featured regularly in tribunal decisions about the fitness of a home.
I turn to Amendment No. 70. I doubt whether any Member of your Lordships' House would ever accuse the noble Lord, Lord Rix, of being "soulless". Those of us who had the pleasure of watching him for many years in the Whitehall farces believe that he has brought great joy to many people and he continues to do so in this House. I agree with the noble Lord's amendment and the sentiments which he expresses that the physical management of users in residential and other settings requires improvement. We know that there have been a number of worrying occurrences over recent years, culminating in the recent television programme "Macintyre Undercover", which have indicated that staff sometimes do not act in an appropriate way when caring for people who need protection from physical harm. Occasionally, techniques are used which are entirely inappropriate to users of care services.
Perhaps I may say to the noble Lord, Lord Rix, that the Department of Health is working with the British Institute of Learning Disabilities to consider the best ways to provide guidance for care providers on the appropriate use of physical intervention with people in their care. In addition, it is certainly our intention to make regulations regarding the appropriate use of physical constraint for adults where it is unavoidable. We had intended to make such regulations under Clause 20(1)(d) —the clause which we have just discussed—for securing the welfare of persons accommodated in homes. However, I can assure the noble Lord that we shall introduce a specific regulation-making power at Report stage if there is any doubt that that power is wide enough to extend to physical management. We shall certainly take away this matter and give it further consideration.
6.15 p.m.
Lord Rix: Perhaps I may thank the Minister, first, for his very kind words about my past life and my present occupation and say how grateful I am for the recognition of the need for regulations in regard to restraint. I am happy to accept those assurances and I know that Mencap, too, will be delighted.
Earl Howe: I express my thanks to the Minister for that very comprehensive reply. Obviously, I shall read carefully what he has said and reflect on it. I am particularly grateful for what he said about the two amendments regarding the definition of "welfare". That was most helpful. Of course, I understand that in any Bill of this kind a balance must be struck between the amount of regulation that will impose burdens, and considerations of protecting the public. However, at the same time, as the Minister will recognise, quite a lot of the regulation in Clause 20 is new if compared to the 1984 Act. I believe it is right that we should at least explore the rationale for each of the new provisions.
On the question of agency premises, I take on board what the Minister has said. Of course, it is important that there should be locked filing cabinets and secure record-keeping. However, there appears to be a provision in Clause 20(1)(f) which fits more neatly the point that he seemed to be making. That provision requires that regulations may,
"make provision as to the management and control of the operations of an establishment or agency".
I should have thought that the security of a set of premises would fit more neatly into that.
Lord Hunt of Kings Heath: I am grateful to the noble Earl for giving way. I am advised that he is quite right to point to that subsection. However, I am also advised that that might not necessarily extend to the keeping of records, which is why we have a specific power to make regulations about records.
Earl Howe: I am grateful. I must obviously take that very seriously.
As regards record-keeping, I stress that I am not in the least worried about that provision appearing in the Bill. Clearly, records must be kept and kept properly. But Clause 20(1)(f) seems to be a new provision compared with what is in the 1984 Act. It refers to,
"the management and control of the operations of an establishment or agency".
It occurred to me that that would embrace record-keeping and I am all in favour of Occam's Razor applying wherever it can.
Lord Clement-Jones: This has been a slightly disparate debate with rather different amendments being brought together in this grouping. However, I know that the Committee will be grateful to the Minister for, in particular, his undertaking to look again at whether a definition of "welfare" is required. I am grateful too for what he said about Amendment No. 70 in the name of the noble Lord, Lord Rix, in terms of whether physical management is brought within the existing wording.
I thank the Minister for his assurance on the lead amendment, Amendment No. 46. I take that to mean that essentially he is saying that the regulation of care

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and other establishments will not work unless regulations are made in each of those areas covered by Clause 20. I am grateful for that assurance. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 47 to 49 not moved.]
Earl Howe Earl Howe moved Amendment No. 50:
Page 10, line 41, leave out ("numbers of persons, or").
The noble Earl said: I kept this amendment separate from those in the previous group because the issues which I wish to raise under its umbrella are rather different from those which we have just been discussing.
On Second Reacting, I spoke of my concern that this Bill and, in particular, the statements of minimum standards due to be introduced under Clause 21 for all their merits—and I understand the merits of wishing to have minimum standards—pose an extremely serious difficulty for many residential care homes which currently do not meet one or more or the proposed standards.
I shall expand on that issue when we reach Clause 21. But there is one aspect of it which I wish to raise now; namely, staffing ratios. One of the consequences of eliding the definitions of "care home" and "nursing home", as the Bill does, is that any attempt to arrive at a neat formula for staffing ratios runs into difficulties. Until now, residential homes and nursing homes have each had their own formulae to determine appropriate staffing numbers. They are not particularly sophisticated formulae but are based broadly on numbers of beds in use.
In so far as a formula can ever be acceptable to everybody, in the case of care homes and nursing homes, it has, in each case, performed a useful role. But with a single legal definition of a "care home" under this Bill, what possible formula will work? How will it be possible to assess the staffing requirement without knowing what are the needs of the individual user? The only way that I can see which would be fair to all would be to have in place some sort of nationally accepted mechanism for assessing such need.
Have the Government given any thought to that issue? What conclusions have they reached? Is the Minister aware of a system by the name of Minimum Dataset which is in use in a number of states of America, I understand, mandatorily, as well as in several other coumries, which is designed to generate standardised data on the type and degree of services that are needed to deliver the desired outcome? Is there not a case for looking carefully at such a system in order to avoid what would inevitably become an unlevel playing field around the country and, what is more, an unlevel playing field which is difficult to level out?
Some of us were disappointed not to see in the Bill any role for the commission in planning and predicting the need for services in care homes and in assessing unmet need and regional variations in the level of unmet need. Do the Government plan to give the
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commission such a role, as was proposed by the Royal Commission on Long-Term Care? If they do, how do they believe that that could be done without some sort of accepted national formula such as I have described?
We return again to the point that it is not just the quality of management in an establishment which governs the quality of service; it is whether the purchaser of that service is purchasing the right sort of service to meet the needs of the user—in other words, whether the resources devoted to meeting those needs are appropriate. The commission should be assessing that.
Leading on from that is the whole question of fees. If the users in care home A have a different level of need from the users in care home B, that would argue for two different rates of fee. I realise that that is very difficult territory but I should be grateful if the Minister will tell me whether my logic is right—I do not mind if he tells me it is wrong—and, if so, how the Government approach that issue. I beg to move.
Baroness Gardner of Parkes: My noble friend has raised a number of points and I wish to add more questions to what he has said. He mentioned the question of fees. There were stages in the past when the fees for nurses went up and up until they reached the point at which all local authorities decided they would pay only a maximum amount. That helped to control the prices.
But if certain standards are imposed on the care home—there must be X number of staff—it may be impossible to comply with that and keep within the price which the local authorities and the Department of Health are prepared to reimburse.
I am greatly concerned that much of this care legislation is designed specifically to ensure that all those services are paid for 100 per cent by the people in the homes or, in cases of need, by someone who pays on their behalf, as opposed to being paid for by the National Health Service. Of course, that is free at the point of delivery. We still have no satisfactory clarification on that. There has been clear demarcation in a court case with regard to care which should come under the National Health Service and be totally free to the patient and care which should be paid for by the patient. That issue arises here. We must be quite sure that a major purpose of this Bill is not to push a dividing line between those two aspects in order to ensure that as many people as possible have to pay.
As the Minister knows, I believe that we should look again at the whole of the National Health Service rather than trying to find different ways of dividing up the cake. My noble friend said that the Bill creates a single, legal definition of a "care home". Therefore, it is defining the difference between national health provision and a care home.
Lord Hunt of Kings Heath: I am sure that we are all indebted to the noble Earl, Lord Howe. In his short amendment, he has opened up an enormously wide area for debate. I hope that Members of the Committee will forgive me if I duck the opportunity of

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rising to the challenge in particular of the noble Baroness, Lady Gardner, in terms of the funding of long-term care and so on. The noble Baroness will know that the Government set up a Royal Commission. We are still considering the deliberations of that commission and both the majority and minority reports.
I should say also, in relation to the specific question of the impact of regulation on the costs of running such homes, that we are likely to deal with that issue, as the noble Earl suggested, a little later in our debate this evening. But I recognise that it is a matter of considerable interest and, clearly, it is a matter at which we must look extremely carefully.
This Bill is about maintaining the public interest. It will help to raise standards in those establishments where many vulnerable people are receiving care and support.
I turn to the specific issue raised in relation to staffing and the specification of staffing numbers and ratios, to which the noble Earl has drawn our attention. The first point I wish to make is that current legislation governing nursing homes contains similar powers for specifying numbers of staff. We start from the premise that we would not want to introduce legislation that actually weakened existing law in this area. I should also say that the quality of care provided by social care agencies must now relate closely to the number of staff available and their quality and training. Setting standards as to numbers is an important element of the process of regulation.
Under Section 25 of the Registered Homes Act 1984, health authorities may make it a condition of registration of a nursing home that a specified number of nurses with particular qualifications must be on duty at specific times, the numbers calculated according to the number of patients and their condition. In this way, health authorities can ensure that an adequate standard of nursing care is provided. In the Bill, we wish to take forward this power and extend it to cover the staffing arrangements in other residential establishments or agencies. I should say to the noble Earl, Lord Howe, that we will ensure that the commission takes a reasonable approach and is not too prescriptive.
As noble Lords are aware, Clause 21 gives Ministers the power to set minimum standards. These will have to be followed by the commission. Its decisions as to whether regulations and national minimum standards regarding staffing levels are being met will need to be based on the assessed needs of those receiving the service, including their dependence on others to carry out their activities of daily living as well as their need for nursing care or general support and supervision. The minimum standards, in particular, will flush out the details of that. The staffing requirements will vary according to type of home. I hope that that gives the noble Earl some assurance on the point he raised.
I should also say specifically in relation to ratios that the noble Earl might have pointed to the standards proposed in Fit for the Future? that set a ratio of qualified nurses to unqualified care assistants for residential and nursing homes for older people. I
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should stress, as I have stressed before, that this is a consultation document. While I think that there are many things in it that are extremely valuable, there are other matters which, as a result of consultation, we would wish to change. We are not convinced that adopting ratios is the only way to approach staffing requirements. I should certainly be happy to look at Minimum Datasets and any other suggestion as one way forward. I do believe that at the end of the day effective regulation does require that a view is taken about issues to do with staffing.
6.30 p.m.
Earl Howe: I am once again extremely grateful to the Minister. Obviously, the whole question of staffing ratios is an important matter. I do not seek to evade that point for one second. Neither would I suggest that the law should be weakened in any way. My point was simply how do you specify what the correct ratio should be when user needs vary so very widely once one has brought together those two definitions?
The Minister was most helpful in a number of things he said, particularly that assessed needs will govern staffing ratios that are laid down for each type of care home and that minimum standards will vary according to the type of home that is under consideration. I am grateful also for the assurance that the Government's approach to the proposals in Fit for the Future? are being approached with an open mind by Ministers. I think that is good to hear. I know that some of the feedback that the department has received has been positive and some not so positive. Provided that we know that nobody is wedded rigidly to the proposals, I think that does give us some comfort.
Lord Hunt of Kings Heath: I hope the noble Earl will allow me to intervene. I think that because a lot of the debate about the consultation paper that we have issued has concerned matters to do with staffing ratios and room sizes, people may perhaps have had the impression that the paper is only concerned with those aspects. I think that a reading of the document will also indicate that it is concerned with other indicators of quality. Clearly, when we come to consider the results of that consultation we shall have to take into account the comments raised by your Lordships about the need to have indicators of outcome of quality and not just issues to do with staffing and size of room. However, I do think that size of room and staffing are also important issues.
Earl Howe: Yes, I entirely agree. It is the fact that there are other quality indicators that means that so many care homes out there would fail to meet the standards in one way or another if Fit for the Future? were to be enshrined in regulation or at least in ministerial direction. It is not simply room size and staffing ratios that are proving the problem for a number of places.
I think that this has been a very useful exchange. I will read carefully what the Minister has said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 51 to 53 not moved.]
Lord Clement-Jones Lord Clement-Jones moved Amendment No. 54:
Page 11, line 5, at end insert—
("( ) All regulations applying to the care of children away from their homes may—

(a) ensure that those providing such care are under a general duty to safeguard and promote the welfare of children in their charge;

>(b) ensure, so far as is practicable, that children's wishes and feelings are ascertained by those caring for them on all matters affecting them and are given due consideration, having regard to the children's age and understanding;

(c) secure that children have ready access to—

(i) confidential information and advice;

(ii) help from an independent advocate; and

(iii) complaints procedures with an independent element;

(d) prohibit corporal punishment and other humiliating or otherwise inappropriate forms of punishment, including the deprivation of food, drink, clothes, sleep and contact with relatives or the imposition of distinctive clothes or labels;

(e) prohibit children's restriction of liberty as a method of punishment or control, unless secure accommodation has been approved by the Secretary of State and a court order has been obtained under section 25 of the 1989 Act;

(f) prohibit the use of medicine or the withholding of medicine as a method of punishment or control;

(g) take active measures to prevent and deal with bullying;

(h) make provision for the periodic review of the child's placement and welfare.")

The noble Lord said: In moving Amendment No. 54, I wish to speak also to other amendments in the group. Perhaps I may make two apologies in reference to this group of amendments. I intend to speak to each of these amendments in turn. Clearly, there are a large number of points to be made on these amendments and it will take me a little time to go through them.
Principally, I wish to apologise on behalf of the noble Baroness, Lady David, who is unable to move these amendments. I was very pleased to attach my name to the amendments. The noble Baroness has been unavoidably detained on other business.
First, I shall deal with Amendment No. 54. This is an attempt to give some degree of consistency across the regulations governing the lives of children who are placed away from home. It seeks to list the basic safeguards to which all children should be entitled when living away from home. All except for paragraph (g) on bullying strategies currently apply to children looked after in children's homes but not all other institutions. The duty to take steps against bullying now applies to schools but not residential homes. The obvious merit of listing these safeguards in primary legislation is that they secure consistency across regulations and are much more visible, with the result, it is to be hoped, that all children and all staff are aware of them at all times.
It is profoundly unsatisfactory that children in the care of local authorities or otherwise placed away from home are protected only by regulations offering a
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variety of rights and safeguards. Many such children experience changes in placement. Why should the change in placement mean that their needs or rights change? Why should these rights be embedded in rather obscure regulations about which frequently even the adults in charge do not know?
I move to Amendment No. 60, which is designed to secure that local advocacy services and independent complaints procedures may also be regulated. It attempts to introduce regulation-making powers in relation to two crucial local services for children affected by the Bill— independent complaint procedures and independent advocacy services. There are regulations under the Children Act requiring complaint procedures by local authorities and voluntary organisations accommodating children, but Part II services covers a much wider group of children.
The Government have confirmed the importance of both these services and yet do not give the Secretary of State powers to regulate them in the Bill. The purpose of this amendment is, therefore, simply to enable the Secretary of State to make regulations without recourse to further primary legislation in the future.
Turning to Amendment No. 108, it is well recognised that the Bill has come into being as a result of an appalling series of scandals arising from the treatment of children living in institutions and other placements away from home. One important safeguard against the abuse of such children is to provide them with advocates who are entirely independent of the services the children receive. We have already had some discussion as to that in Committee. Their only function is to listen to the children and promote their interests.
The need for independent advocacy has been confirmed by the official reports in this area. For example, the Warner Report. Residential Care: a positive choice, proposed that children in all forms of residential care should have access to an independent advocate. The Scottish review, Another Kind of Home, recommended that children,
"should be able to call on someone to act as their advocate".
The Warner inquiry report, Choosing with Care, said that children in children's homes should,
"have the support of their own advocates when pursuing serious complaints against star.
The Utting Report, People Like Us, commended the use of independent representative services such as that provided by A Voice for the Child in Care.
The safeguard of independent advocacy has been recognised by the Government in their Quality Protects programme, under which authorities are encouraged to provide independent advocacy services, but until such services are a statutory requirement children will be dependent on the goodwill and energy of individuals in the statutory and private sector. 'This amendment is designed to ensure that the current patchy service of locally based children's rights advocates and national advocacy services is transformed into comprehensive provision for all children who are living away from home.
I turn to Amendment No. 167. It is necessary to describe the powers and duties of the children's rights director in primary legislation—that is what the amendment attempts to do—so that this position can develop as the strongest possible defender and protector of children's rights. We had our earlier discussion about the possibility of a children's commission, but that does not at present form part of the Government's thinking.
Much of the thinking behind the Care Standards Bill as it relates to children is built upon the knowledge that thousands of children living away from home have been so badly neglected or abused in the past. We cannot waste this opportunity to develop a substantial national figure in the form of the children's rights director. who will ensure that children are never again failed in such a comprehensive way.
Finally, it is important in the composition of the commission that there is a member who has special responsibility for children's rights issues and also a member who has special expertise in disability and special educational needs as they relate to children. That is what Amendments Nos. 152 and 153 are designed to achieve. I beg to move.
The Earl of Listowel: I should like to comment on Amendment No. 108, which deals with the right to an independent advocate. I completely endorse what the noble Lord, Lord Clement-Jones, said. I would simply add that recently the Minister was kind enough to assure me that he had considered carefully with his advisers my questions to him and that my questions had affected his thinking. That is exactly the assurance that looked-after young people need. They need to know that their concerns are properly considered and play a part in decisions made about them. The right to an independent advocate would provide them with that assurance. I hope that the Minister will give the amendment sympathetic consideration.
Lord Laming: I very much hope that the Minister will look favourably on Amendment No. 54. I say "look favourably" because I have a reservation about paragraph (e). From time to time—sometimes more often than that—any good parent has to restrict the liberty of a child. The way in which paragraph(e) is worded undermines, in a way with which I do not feel comfortable, the authority of staff to control children and young people. However, I hope that the Minister will look favourably on the general thrust of Amendment No. 54.1 hope also that the Minister will support Amendment No. 108. We have referred on a number of occasions to the need for these vulnerable young people in care to have access to an independent advocate. The noble Lord, Lord Clement-Jones, referred to a number of authoritative documents that recommended access to independent advocates for children and young people in care. This is an opportunity for the Government to enact legislation to make that a reality for these young people. If the Government are able to accept Amendment No. 108, which I hope will be the case, Amendment No. 60,
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dealing with the need to have regulations to inform that piece of legislation, follows on from that. I very much hope that Amendments Nos. 54, 108 and 60 will find favour with the Government.
6.45 p.m.
Lord Hunt of Kings Heath: We had earlier discussions about the Bill as it affects the rights and welfare of children. The group of amendments is also about that important subject. The protection of children and the promotion of their best interests are among the strongest driving forces behind the reforms that the Bill will put in place.
I hope to be able to assure the Committee as to the strength and comprehensiveness of the provisions for safeguarding children and protecting their interests that the Bill will put in place. We are all aware of the cases where the current systems have failed, and where children have been harmed. Many Members of the Committee have of course been intimately involved in the inquiries into such cases. We are mindful of the forthcoming report of the Waterhouse inquiry.
Perhaps I may begin with Amendment No. 54. I welcome the opportunity to confirm the Government's commitment to ensuring the safety of children living away from home. A large part of that will be delivered by the regulatory system requiring children's homes and other places to meet strict standards for children's welfare. The Government have carefully considered Amendment No. 54. We fully support the motives behind the amendment, but believe that it is mostly unnecessary. By and large, the powers which it seeks to introduce already exist within the Bill or existing legislation. However, the amendment has brought to our attention the fact that the Bill probably does not give us all the powers we need to make regulations to protect children and promote their welfare in establishments and agencies covered by the commission. That is, in particular, the case in relation to children in hospices and private healthcare establishments. We will look at this point further and bring forward a government amendment in due course.
The noble Lord, Lord Clement-Jones, raised an important point about the need to bring the regulation-making powers together so that there is clear understanding of the protection available for children living away from home. We will consider, when drafting the national minimum standards, how that can be achieved.
Perhaps I may turn to Amendments Nos. 60 and 108, which deal with advocacy for children. Advocacy is about effectively articulating the child's view, right or wrong. It is not about what the advocate thinks is best or in the child's welfare. Advocacy is grounded in Article 12 of the UN Convention on the Rights of the Child, which assures to children capable of forming their own views the right to express those views freely in all matters affecting them. Although Members of the Committee have suggested that current provision is patchy, it would be right to acknowledge much of the good work undertaken by advocacy services provided

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directly by local authorities or contracted by them to voluntary organisations. In addition, we are fortunate to have a number of national advocacy organisations which undertake important work with a wide range of children. The Department of Health has funded these organisations to prepare national standards for children's advocacy services. These were made the subject of extensive consultation last year and are due to be published in the spring.
Listening to children is a major theme of the safeguards review and the Quality Protects programme. Children's participation is a priority area for special grant under Quality Protects. This is a major initiative to improve service to children. It has at its heart children's participation and children's rights. A comprehensive programme of work with local authorities was launched last year.
We issued guidance to local authorities in October 1999 which stressed the importance of local authorities securing independent advocacy services for looked-after children. Local authority plans to develop these and related services are due to be returned to the department by 31st January 2000 and regional development workers are available to work closely with authorities on these issues.
Indeed, in taking forward children's participation as a basic principle underlining most of the Quality Protects programme, the Quality Protects project team within the Department of Health has focused on issuing good practice guidance to local authorities; commissioning a training pack for front-line social services staff to improve practice; arranging regional seminars for child-en; and working with representative agencies from the area of advocacy as well as national agencies to address, as far as is practical, their main concerns.
I have spoken at length because I believe that already we are making good progress in that area. However, to seek to regulate the provision of independent advocacy services is unnecessary. As I said, we have issued guidance on those services, consulted widely on national standards and are actively promoting that area through the Quality Protects initiative. Against that background we do not consider it necessary to regulate in this area.
The second part of Amendment No. 60 significantly duplicates current provisions available in the Children Act 1989 as to complaints as well as the powers in this Bill at Clause 20(3)(j) to make regulations requiring all registered providers to establish complaints procedures.
I turn briefly to Amendment No. 108. I am advised that using the terminology,
"all children … who are living away from home",
would cover a wide range of children. Not only would that cover all "looked-after" children, wherever placed. It would also extend to other children where currently local authorities do not have a role; for example, where a child, following separation or divorce, moves from one parent to another.
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I turn to Amendments Nos. 152 and 167 which, in their different ways, are concerned with how the national care standards commission will, as a body, reflect the rights and interests of children in its management and governance. The proposal in Amendment No. 152 for a specific member on the commission's board with responsibility for children's rights, would, I feel, go against our intention as to how the commission will be managed and governed.
The commission must have the right balance of members to ensure that it undertakes its work effectively. It must be able to command the confidence and respect of the users of the services and their representatives as well as those who deliver them. Appointments will be made on the overriding principle of merit so as to achieve a board with the right balance of skills and background. We are not persuaded that there should be specific seats set aside for those from any specific interest or group. We shall, of course, ensure that some members of the commission have significant experience of children's social services and related issues.
If one were to make children's rights and welfare the responsibility of a particular member there would be the risk of marginalisation of this issue. It is important—this applies to many, if not all, public bodies—that all members of such a body should have the interests of all the registered services and their users at heart.
Amendment No. 167 seeks to pre-determine the role of the children's rights director by specifying responsibilities and functions on the face of the Bill. The Government's approach has been not to specify such responsibilities in primary legislation because of the risk that we may not get it quite right. The responsibilities to be carried out by the children's rights director will require further consideration and consultation and the role will no doubt develop and change according to how the commission settles into its important responsibilities.
Perhaps I can repeat a point I made in Committee only three days ago: this is an extremely important post. It will ensure, we believe, that the issue of children's rights and safeguards are given the highest priority by the commission. It strengthens the Government's commitment to improve children's safeguards. For that reason, we have said that the children's rights director's functions should be specified in regulations. We shall not leave the commission to decide what the responsibilities should be, but we expect that the role of the children's rights director will include a number of functions listed in the amendment. From what I have said I hope that the noble Lord will understand our determination to view this as an important appointment and one consistent with the whole thrust of the Bill.
Lord Clement-Jones: I thank the Minister for that comprehensive reply. I appreciate the care taken in considering each of the amendments in turn. I appreciate also his individual replies. As he will understand, the amendments were put together by a consortium of a number of voluntary organisations; in

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fact, the key voluntary organisations concerned with children. Clearly, there are strong feelings that further safeguards are needed, particularly in the area of independent advocacy. I notice that the Minister referred to Article 12 of the UN convention. He recognised the work of the advocacy services and described excellently the way in which the Quality Protects programme is proceeding.
At the end of the day, the key point is whether such children have the right to advocacy. We can try to ensure that local authorities do things by circular; we can try to establish standards, programmes and so on, but in the end the UN convention requires the child to have the right to independent advocacy. I appreciate the Minister's attempt, within his parameters, to answer the matter in the most helpful way possible. But this is a major campaign that needs to be brought to fruition. That is strongly felt by the voluntary organisations, on these Benches, and elsewhere. We may want to return to the matter on Report.
I appreciate the Minister's reply on other matters. We have a great deal of food for thought, particularly in terms of Amendment No. 54. I appreciate his undertaking to look at the clause to see whether all the necessary powers are given to the commission in relation to children in hospices or private healthcare establishments and the undertaking to look at how all the standards applicable to children should be brought together in future. We shall read Hansard carefully in respect of that reply.
On Amendments Nos. 152 and 153, we had debates on the Health Act about the composition of various matters, such as PCGs, and so on. Of course, I appreciate the need to have a balance of expertise. Clearly, the Minister understands that it is important to have people who understand the issues. There is no question of trying to put a straitjacket on appointments to the commission. I believe that the answer lies in the way in which the department consults. The Minister commented, particularly in relation to Amendment No. 167, on the consultation regarding the powers and duties of the children's rights director. I see no reason why the department should not also consult, in relation to the members of the commission, with the same bodies as those with which it would consult on the way in which the children's rights director's duties will be exercised. I believe that that would be the sensible way forward. We look forward to that taking place. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 55 to 57 not moved.]
Earl Howe Earl Howe moved Amendment No. 58:
Page 11, line 9. after first ("or) insert ("either—(a)").
The noble Earl said: In moving Amendment No. 58, I shall speak also to Amendment No. 59. The principle of subsection (2) of Clause 20 is difficult to argue against. Clearly, it is right, in the interests of public protection, that those who look after vulnerable
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people in a care home or other establishment are properly qualified for the purpose. Part of that qualification is that they should have proved themselves to be fit and proper persons to the appropriate registration authority.
Under Part IV of the Bill social care workers will need to register with either the English or Welsh council before they can call themselves by that name. In Clause 20 we find that a condition of being allowed to work in certain capacities at a care home or agency will be that an individual is registered with one or other of the councils.
The question posed by the amendment asks whether it will be necessary for a qualified nurse, who works in a care home and is registered with the UKCC, to take out a further registration with either the English or the Welsh council. I do not believe that it should be a requirement for that person to do so and I hope that the Minister will be able to give me some sort of reassurance on that.
The question branches out into wider territory when we consider the role of healthcare assistants. The Minister knows my views on healthcare assistants, which are that they should be regulated and that if and when they are so regulated, the registration authority should be the same authority that governs nurses. There are all manner of arguments to support that, on which, for the sake of brevity, I do not propose to expound. But one thing is clear. If somebody registers with the UKCC, or whatever body it is that succeeds it, the consequences of doing so will be a distinct kind of professional training and development. The training and development that will ensue from registering with the GSCC or the CCW will be of a different kind.
If my argument is sound that healthcare assistants should be able eventually to register on the nurses' register, because that is where their professional skills and disciplines most naturally lead them, then the Bill ought to allow for that rather than oblige them, as it appears to do now, to register with one or other of the councils. I beg to move.
7 P.m.
Lord Clement-Jones: The Minister was kind enough to write clarifying certain questions that I raised at Second Reading. One of those was that there would be no problems and that we knew what the status of healthcare workers would be—as to whether or not they would be able to register in the future under the nursing regime as opposed to the regime established by this Bill.
The Minister's letter said that the review concerning the need and scope of regulation of healthcare support workers is now under way and is due to report in April. He said that the GSCC and any new regulatory body that might emerge from the review would be complementary; that there would be no overlap as each body will be regulated as a separate workforce.

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We on these Benches are extremely keen to ensure that the Bill does not pre-empt the outcome of the above-mentioned review; that the possibility is retained of enabling the two registration systems to be designed so that healthcare assistants can register with the same body that regulates nursing. As I understand it, the RCN and others are having discussions with the Government on this issue, but we on these Benches seek the Minster's assurance that there will be the option of healthcare assistants being regulated by the body that regulates nursing, and that that option will not be closed off as a result of the Bill. We strongly support the amendments.
Lord Hunt of Kings Heath: I am grateful to the noble Earl for allowing me to clarify the position of nurses, and also to debate a matter that is close to my heart; that is, the potential regulation of healthcare assistants.
There is no intention that qualified nurses should have to register with the general social care council. The definition of social care work in Clause 51 as it stands will extend to nurses working in care homes and domiciliary care agencies; but Clause 51 also allows us to make regulations exempting persons from the requirement to be registered with the GSCC. I can assure the Committee that we will make regulations exempting nurses who are on a statutory authorised register of nurses.
I turn to healthcare workers more generally. I confirm the point made by the noble Lord, Lord Clement-Jones, that in December the Government announced that they had commissioned a review of the roles and responsibilities of support workers in healthcare settings. That review includes a wide-ranging consultation process. It will make recommendations on whether or not there should be some form of regulation of those staff to ensure public safety. It will take into account the Government's decisions about the regulation of unqualified staff in the social care sector. The outcome of that exercise is due in April.
My understanding is that there is no view yet on the outcome of the review. However, there is a clear consensus that healthcare workers should be regulated, though a great diversity on how it ought to be done. The review team is investigating the form that registration might take—registration, other models and costs. Of course, it is aware of the provisions contained in this Bill.
I fully understand the point made by noble Lords, that at the end of the day the last thing we want, as with nurses, is that if we regulate healthcare assistants in the future they will have to be registered under two regulatory bodies. We will, of course, ensure that if proposals are brought forward that will not happen.
Lord Clement-Jones: Does that mean that the Minister can confirm that nothing in this Bill pre-empts a decision that may be made in future?
Lord Hunt of Kings Heath: Nothing in this Bill pre-empts a decision to be made in the future.
Earl Howe: Once again that is an extremely helpful and reassuring response from the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 59 to 66 not moved.]
Lord Rix Lord Rix moved Amendment No. 67:
Page 11, line 50, at end insert ("and other residential provision for children living away from home").
The noble Lord said: In rising to move Amendment No. 67 I fear that some Members of your Lordships' Committee may have a sense of déjà vu, for this amendment runs on naturally from the penultimate amendments moved by the noble Lord, Lord Clement-Jones; but I press on.
Disabled children are three times more likely than other children to live away from home. Where children are living away from home, whether on a longer or a shorter term basis, we want to ensure that there are consistent and safe child care practices, not only in children's homes but also in residential schools, family placements, respite units, NHS respite or longer-term units.
Those who work with "looked-after" children (if I may coin a phrase) should be afforded the best possible guidance and practice frameworks regardless of the location in which they are caring for the child. In view of the Minister's response to the amendments of the noble Lord, Lord Clement-Jones, I cannot believe that he will not accept my belt and braces addition to Clause 20, page 11, line 50. I beg to move.
Lord Hunt of Kings Heath: I cannot go quite that far. However, I can say to the noble Lord that we intend the power to make regulations in respect of the control and discipline of children to cover all settings regulated by the commission. The Bill was drafted with the intention that regulations under Clause 20(1)(d) in relation to securing people's welfare should he sufficiently wide to allow provision in relation to the control and discipline of children. That would therefore give us all the necessary powers to ensure that such tight regulations are set in relation to such matters in any of the settings regulated by the national care standards commission where children are accommodated.
However, the noble Lord's amendment raises doubts about whether the Bill, as currently drafted, achieves that purpose. I am, therefore, very grateful to the noble Lord for raising this matter. We are currently considering this issue and intend to return with a government amendment in due course. We are particularly concerned that, as drafted, the Bill does not appear to give us the appropriate regulation-making powers in relation to hospices and other private healthcare facilities for children. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Rix: With such an admission from the Minister, I cannot possibly press on with my

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amendment. I am delighted to beg leave to withdraw it and look forward to reading the Government's amendment when it is eventually tabled.
Amendment, by leave, withdrawn.
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 68:
Page 12, line 3, at end insert—
("(ba) imposing other requirements (in addition to those imposed by section 25 of the 1989 Act (use of accommodation for restricting liberty)) as to the placing of a child in accommodation provided for the purpose mentioned in paragraph (b), including a requirement to obtain the permission of any local authority who are looking after the child;").
On Question, amendment agreed to.
[Amendments Nos. 69 to 72 not moved.]
Clause 20, as amended, agreed to.
Clause 21 [National minimum standards]:
Lord Clement-Jones Lord Clement-Jones moved Amendment No. 73:
Page 12, line 10, leave out ("appropriate Minister") and insert ("Commission").
The noble Lord said: This is a very straightforward amendment, which is designed simply to ensure that the commission is able to set minimum standards. In addition, it is also designed to elicit an assurance from the Minister that moves are already under way to prepare the "minimum standards" referred to in Clause 21.
As we discussed earlier in Committee, the commission does not have the right at present to create those minimum standards. The appropriate Minister currently has the right to do so. When we deal with a later amendment, we shall discuss what legal status the standards in Clause 21 have. If one looks carefully at the wording of the clause, one realises that the position seems to be rather shaky. However, be that as it may, the commission is the closest to the actual establishments and agencies that are being regulated. As such, it is extremely important that it should have the right to set out what those minimum standards should be. In Amendment No. 85 we set out in a more comprehensive way various other matters which apply to the setting out of minimum standards.
Such amendments are really designed to give the commission a much more proactive role, which is something that many noble Lords have sought to achieve during the passage of this Bill. They are also designed to ensure that the Minister will give us the assurance that those minimum standards are actually being put together currently and that they will be set in place. I beg to move.
7.15 p.m.
Lord Hunt of Kings Heath: I must confess that I was somewhat puzzled by the remarks made by the noble Lord, Lord Clement-Jones, because he did not seem to refer to the issue of whether the Minister or the commission should be responsible. Perhaps the noble Lord would care to say a few further words in that respect.
Lord Clement-Jones: In terms of the amendment, I thought I said that the commission should be responsible simply because it is closer than the Minister to the regulation of the establishments and agencies involved. Therefore, it is entirely appropriate for the commission to be the regulator.
Lord Hunt of Kings Heath: I am most grateful to the noble Lord for that clarification. However, I fear that I must resist this set of amendments. The commission will, of course, be a powerful national body. It will have extensive responsibilities for regulating care services, maintaining standards, ensuring the protection of vulnerable children and adults, and encouraging improvements in the quality of provision. But it is not a policy-making body.
We believe that setting the national minimum standards involves key policy issues and that the responsibility should rest with Ministers. In developing the standards, for example, it will be essential, as already mentioned this evening, to consider most carefully the resource implications and the potential impact of those standards on providers. I believe that it is the Government who should take such questions into account.
Apart from those standards with a resource impact, there will be others that will cover very sensitive areas. We have already discussed the need for regulations covering the appropriate physical management of adults in care homes, where necessary. These are very difficult and sensitive issues and ones which, I believe, should be dealt with by Ministers rather than the commission.
I should point out to the noble Lord, Lord Clement-Jones, that the commission will have an important role to play in assisting in the formulation of those standards. It can, of course, advise the Government on any changes that it believes might be necessary and the Government will always listen most carefully to such representations. I rest my case.
Lord Clement-Jones: I thank the Minister for that reply. There is a good deal in what he says which we shall certainly consider. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 74 to 79 not moved.]
Earl Howe Earl Howe moved Amendment No. 80:
Page 12, line 14, at end insert—
("( ) In preparing or amending the standards set out in the statements, the appropriate minister shall consult any persons whom he considers it appropriate to consult.").
The noble Earl said: In moving the above amendment, I shall speak also to Amendments Nos. 81 and 82. I start with some warm words for the Government's aims. No one can be against the idea of raising standards. It is a self-evidently desirable objective to which the Bill rightly devotes a great deal of attention. A perfectly natural extension of that aim is the thought that there should be standards of care below which no establishment should be allowed to

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fall. That, in turn, begs two questions: first, what should those standards be; and, secondly, how are they best measured?
I do not believe that we can answer either of those two questions properly without acknowledging two facts. The first is that we are where we are. If we take the case of care homes, we may feel that some measurable features of some care homes fall short of what we should like to see. But these are homes where people already live; which have been approved by the relevant local authority for sometimes many years; and where, most importantly, in many—if not most—instances the residents are happy and well cared for.
Secondly, we need to acknowledge that changes to the physical fabric of an establishment or to staffing ratios carry with them a cost. If such changes are so important as to warrant being enforced by law, they need to be justified by arguments that everyone can accept as being robust. We also need to be quite clear who is going to pay.
I do not doubt that the array of minimum standards, such as is set out on the document Fit for the Future? should play an important role in identifying the kinds of matters on which we should be focusing in terms of easily measurable features. But it would be absolute folly—and morally quite wrong—if we were to treat such a document as a formal check-list that required 100 per cent observance. Not only is such a thing impossible if half of the elderly population in care are not to be deprived of their homes, but it would also serve, if I may so put it, to lose the plot. Standards of care in a care home are to be judged by more than simply physical features. We should therefore be extremely cautious in laying down mandatory, prescriptive rules unless there is no argument that they are essential and readily achievable.
What is it, more than anything else, that has prompted this Bill? It is surely the desire to stamp out abuse of vulnerable people. It is not abuse of anyone to ask them to sleep in a room measuring 9.9 square metres. It is not abuse if there happen not to be three double sockets in the room, or if the home does not possess a sluice. Any changes of this kind that are enforced, at any rate on existing care homes, have to be justified in terms of what is demonstrably harmful.
If we exclude for a moment measures to prevent what is demonstrably harmful, what is at stake here is people's personal choice. Some of us may find it odd that there are elderly people in Lancashire who enjoy being looked after in an environment that more closely resembles a boarding-house than a hotel. But there are hundreds of rooms in that part of the world licensed at 80 square feet. Are we now to say that that is unacceptable? Are we to say that there is no place for flexibility of judgment that recognises local practices and preferences? I hope not.
The cost of Fit for the Future?, were it all to be implemented, is, I. fear, a sum that we would find horrifying, if we knew it. We do not know it because Fit far the Future? is currently only a set of proposals and the regulatory impact assessment of the Bill cannot take account of it. However, I can tell the
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Committee that the banks are taking account of it. As we sit here, there are care homes going into receivership as a result of what the banks perceive to be a tidal wave of regulation about to engulf the sector. In Brighton and Hove and in Hertfordshire, there is now an under-provision of nursing home beds, which was not the case a year ago.
There are many who think that the contraction of the sector—unless the Government take action to halt it—will be evident on two fronts: the closure or small, independent homes, for whom an all-purpose set of minimum standards will make no allowance; and the closure of local authority homes, because local authorities, as first-time registrants, will have an even bigger mountain to climb in terms of room sizes. The net effect will be to drive care provision into the hands of large, independent providers. Is that really what the Government want? If they do not want it, they should say now that minimum standards will be non-binding on the commission and that there will be room for flexibility and discretion where good reason exists. They should say also that they are not oblivious to the issue of costs. An earnest of such a statement would be to undertake that fees to care homes will be increased to reflect the cost of upgrading. That has to be a natural and fair consequence of what the Government now propose. Can the Minister provide such an undertaking today?
I return to Fit for the Future? and the many sets of draft minimum standards that are to appear over the next few months. We need reassurance that there will be full consultation on all such proposals with those who are professionally involved in each case. We need to be reassured that those people will be respected and listened to. I believe that it is wholly reasonable, as an additional safeguard, for there to be automatic parliamentary scrutiny of any minimum standards that receive ministerial approval, with the possibility left open for debate under the negative resolution procedure.
Clause 21 allows the Minister carte blanche to publish statements and amended statements whenever-he considers it appropriate to do so. That cannot be right. It cannot be sensible to let Ministers in this, or indeed any government, move the goalposts for a sector of the care industry without full debate on any adverse implications. I hope that the Committee will accept that I am not negative on the concept of national minimum standards, but I am a realist. I beg to move.
Lord Clement-Jones: I wish to speak to Amendments Nos. 83 and 84 which are grouped with Amendment No. 80. They are similar. Both are designed to ensure that where national minimum standards are imposed by the department—in the way that compliance cost assessments are required in certain instances—the Minister and the department are required to,
"publish guidance as to the necessary level of resources which on the best available information are required by such establishments or agencies to achieve such standards".

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I speak to these amendments from the basis of strong support for a regime of national minimum standards and indeed for the standards proposed in Fit for the Future? I am sure that the Minister has seen the responses to the consultation. There is obviously strong support in many quarters for those standards. I do not want to detract from our support either for the detail of the standards or from the principle that they should be imposed. However, the amendment is designed to prevent the arbitrary setting of standards which are in a sense responsibility free. It would be perfectly possible for the department simply to take the view that it was rather removed from the process of regulation and that in any event most of the homes were not run by local authorities, which may need to be funded, but by the private sector which needs to contract to local authorities. The department could take a rather lofty view as regards what the cost of achieving such standards should be.
We are concerned to ensure that when minimum standards are set, careful thought is given to the costs involved. As the Minister knows, different financial issues have arisen in regard to the provision of care. There has been much debate as regards whether adequate resources are available in the system. Certainly, the independent sector believes that in many instances it is not being fairly treated by local authorities who, in turn, complain of lack of resources themselves. We therefore believe that it is not good enough simply to set national minimum standards. There should be an overview as to whether there are adequate resources in the system. That should be an essential part of the process—akin to a compliance cost assessment, as I mentioned.
Amendment No. 84, although similar, is not quite the same. One of the concerns that I expressed at Second Reading is that there will simply not be a sufficient level of resources in the inspection system to ensure that minimum standards will be achieved. On Second Reading I mentioned the Almost Half report of 1992 which made the point that there were not enough resources in the inspection system to ensure that standards were met. It seems pretty fruitless to have a clause that allows minimum standards to be set only to find that there are not sufficient resources in the system to ensure that those standards are achieved. We believe that when minimum standards are set it is important that the department should ensure that the inspection resources will be available to ensure that they are put into effect.
7.30 p.m.
Lord Hunt of Kings Heath: This debate has gone to the heart of most of the concerns expressed about how the regulatory system will work in practice and the impact that it may have on the financial viability of some of the establishments to be regulated. I hope that I can assure the Committee that these matters have been considered and that we intend—as ever—to keep the right balance between understanding the situation which providers will face and the necessary desire to ensure that vulnerable people are properly protected.
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We have made clear our intention to consult on all national minimum standards, as we set out in the White Paper Modernising Social Services. As noble Lords will be aware, we have already produced Fit for the Future?—National Required Standards for Residential and Nursing Homes for Older People, and, as I have made clear on a number of occasions, we are considering responses, the closing date for which is in a couple of weeks' time. We shall give the responses careful consideration. I have indicated the flexibility of approach that we shall take when considering the responses to the consultation.
It is our intention to follow the same practice of consultation for each set of national standards and to seek views from all interested bodies and from people likely to be affected. However, we do not want to prevent the possibility of making minor amendments to standards or, perhaps, of responding rapidly with changes should circumstances warrant. We do not want our responses to be slowed down by a lengthy consultation process. It is here that we need some degree of flexibility. Standards on the use of measures to restrain and control, for example, may need to be amended quickly if they do not cover a particular type of unsafe or harmful practice identified in a particular home.
To summarise, we would expect to consult fully whenever developing national minimum standards, but I would be uncomfortable accepting amendments which would rule out any circumstances where a consultation might not be appropriate.
Amendment No. 81 concerns the discretion with which the registration authority may apply the national standards. I said, both at Second Reading and during our previous deliberations in Committee, that an element of discretion needs to be used when the national care standards commission is exercising its powers to make decisions. We think we have achieved that by the current wording "take into account", which we think is sufficiently flexible for those purposes.
It is worth recalling that the independent sector has, for a long time, been calling for national standards. That is because of the inconsistency of approach among many of the current registration authorities. We are determined to bring fairness and consistency to care services, but we accept that consistency has to be balanced with discretion.
The regulations will, as it were, form the bones on which the standards will form the flesh. So, for example, the regulations may require an establishment to provide adequate and suitable staffing, to take a point we have already discussed. These may be further defined in the standards to require, say, a minimum of 50 per cent of care staff to be qualified at NVQ level 2; they may bring in the ratios we have discussed; and they may bring in the national minimum data that the noble Earl has suggested we consider.
An inspector could find on a visit to an establishment which had hitherto met the standard that a turnover of staff had occurred which meant that the standard was no longer being adhered to at the

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time of the visit We consider that it would be reasonable for the inspector to negotiate with the owner a time-scale within which the new staff should obtain the qualification. However, if it then happened that the establishment continually ran below the standard—perhaps because not enough money was allocated for training staff—the commission would want to issue a formal warning to the owner. If no improvement resulted, the commission would make a judgment as to whether to proceed to a proposal of cancellation of registration or to instigate a prosecution. The persistent failure to meet the standard would, in this case, be relied on as evidence of a breach of the relevant regulation or as evidence of a lack of fitness on the part of the registered person and the service provided. However, I hope that the Committee will see that there is an element of discretion in the way that that would be applied.
The noble Earl also mentioned the question of room sizes. We know that this issue causes concern. We shall consider responses to the consultation in this area; no final decisions have been made. However, to go back to the point I made at Second Reading, the 10 square metres standard, for instance, was contained in a building note issued by the Department of Health in 1973; and the National Association of Health Authorities, in its guidelines published in 1985, also used the same size area. So the issues concerning room size have been with us for many years.
Perhaps I may now turn to the question of whether there is a need for We national minimum standards to be laid before Parliament prior to them being published. As we know, there will be statements of national minimum standards for each type of registered service; each will be a detailed document building on the principles of the regulations to be made under Clause 20, as I have described. The aim of the standards is to give a more detailed indication of what will be required of registered services in those regulations.
We do not believe it is necessary for the national minimum standards to be laid before Parliament when it is already the case that the regulations on which they are based will have been laid before Parliament and subjected to its scrutiny. When one considers the amount of consultation which will take place in the development of each national minimum standard, I am certain that any person who wants to bring a point of view to bear will be heard.
Amendments Nos. 83 and 84 concern the resources needed by the providers and the regulators to implement and en force the national standards. We have already discussed the question of resources to providers. I fully accept the intention of the amendments that all new standards should be based on a realistic estimate of the resources needed to meet them. That is why I have argued previously that the national minimum standards should be decided by Ministers in order that they can take those factors into account. That is why, as a matter of policy, the Government are committed to publishing a regulatory impact assessment alongside any new standards.
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As regards the costs to the providers, much of our discussion relates to Fit for the Future? and the Committee will have seen that that contains such an assessment. We recognise that some homes will have difficulties meeting some of the standards proposed. I can assure the Committee that we intend to give reasonable time-scales within which those standards can be finally agreed and met.
However, we have to recognise that many homes already meet—or even exceed—those standards, in both the private and voluntary sectors. As the noble Earl hinted, one of the sectors which will have most difficulty with the sizes suggested will be the public local authority sector. It is also worth making the point that the trend towards single rooms has risen quite dramatically, from around 40 per cent to more than 70 per cent in the past 10 years. So the market itself has, in a sense, recognised the need to raise standards and many providers are doing just that. One has to ask whether we would be wrong to inhibit that rise in standards.
I can assure the Committee that as the standards are drafted for each service to be regulated, they will be published with similar assessments as to their likely impact. In carrying out this assessment, the Government will pay close attention to any pressures on public expenditure which might arise from a set of standards and will consider these in the Comprehensive Spending Review. I hope that I have gone some way towards meeting concerns on those matters. The noble Lord, Lord Clement-Jones, raised the issue of whether the registration authority itself would have enough resources to carry out its important responsibilities. Of course, the cost implications of any new standard will be considered by the Department of Health and by the Welsh Assembly in their annual determination of the registration authorities' budgets However, I can give a general assurance to the noble Lord that, of course, we want the new regulatory system to work and that means that we accept that the commission must be funded accordingly in order to carry out its work effectively. I hope that I have assured noble Lords on those matters.
Lord Clement-Jones: I thank the noble Lord for his remarks on Amendments Nos. 83 and 84. I shall look carefully at the assurances he has given when considering any further amendments.
Earl Howe: I thank the Minister for covering the ground so comprehensively. I wish to respond only briefly. I am reassured by the intention of the Government to consult widely on each set of draft minimum standards. That will be a good thing. However, the reason why I wanted to put the amendment on the face of the Bill is that, while it is acceptable for the Minister to express what is undoubtedly a sincere intention on the part of this Government, he cannot bind future governments and parliaments. For that reason, there is a case for including a provision as regards consultation arid I shall need to reflect on that.

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I am reassured by his comments on the meaning of "taking into account". Clearly, while that was largely a probing amendment, that form of words did not, so far as I was aware, have a defined meaning in law. The Minister has been most helpful in putting some flesh on the bones. If it does allow for flexibility, then that is a good thing.
As regards the matter of the regulation of room sizes, technically, what the Minister said was correct; namely, that for a number of years room sizes have been laid down to the measurements he mentioned. However, what is also true is that local authorities have been able to exercise discretion. This has been very much a local matter, so that in different parts of the country rooms can vary in size. As I mentioned, in Lancashire the pattern has been to license residential and care homes with much smaller sizes of room. The same is true in areas of the south coast. My concern is that, at a stroke, such care homes, where people are living happily and are well looked after, would be consigned to oblivion. I do not believe that this has been sufficiently thought through and I hope that Ministers will take on board those concerns.
I am very unhappy that the Minister does not agree that there should be parliamentary scrutiny of the minimum standards. While it is true that the regulations will already have been laid—the Minister rightly pointed that out when he gave the example of staffing ratios—they will be phrased in general terms. All noble Lords would approve of regulations covering staff numbers, but, as I said at Second Reading, the devil is in the detail. I am not pressing for the affirmative resolution or making any other such pie-in-the-sky request, but if there are concerns, then Parliament should be given the opportunity to discuss them. I shall have to return to that matter.
The question of resources was addressed by myself and by the noble Lord, Lord Clement-Jones. Resources lie at the heart of this matter and I am sorry that the Minister did not feel able to comment in any way on how the cost of upgrading might impact on the level of fees the Government would be prepared to see in place.
Lord Hunt of Kings Heath: I thank the noble Earl. I thought that I had made clear that the Government will look at the potential cost of the introduction of higher standards. Furthermore, they will take those costs into account in any discussions on public expenditure decisions in the future.
7.45 p.m.
Earl Howe: At that point I must have been paying insufficient attention when the Minister was speaking and I apologise for that. I am most grateful to him.
I should like to point out that the two significant items of expenditure required under Fit for the Future? are, I believe, to enlarge the width of doors to 0.8 metres and to provide three double sockets in each bedroom.
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I have been advised that those are two very costly items. If those requirements are imposed, please can we receive an assurance that they have not been merely plucked from the air, especially in the case of door widths. From what the Minister has already said, I am sure that he will examine that point carefully.
I am aware of the time, but can the Minister answer two specific questions on national minimum standards? First, how does he envisage such standards interacting with national service frameworks and, secondly, how will those standards be reflected in planning regulations?
Lord Hunt of Kings Heath: I presume that the noble Earl is referring to the issue of private healthcare establishments as regards national service frameworks. When we debated this matter I referred to a number of policy developments and institutions concerned with the management of the National Health Service which might inform the standards that would be set for the private healthcare sector. That is the position, I believe. Clearly, when setting out the basis for a framework for the development of consistently high quality services throughout the National Health Service, elements will be contained in that framework that will be relevant to any national minimum standards set in relation to the Bill. However, it is a little difficult to say more than that until we have begun to develop further the national service frameworks.
I suspect that the noble Earl may be suggesting that national service frameworks should automatically be applied to the national minimum standards. However, I would not accept that because I must return to the distinction I drew in our previous debate; namely, that the regulatory function of the commission will be very different from the Government's responsibility to manage the NHS effectively. National service frameworks are concerned with effective management and the delivery of high quality services. However, of course they can inform the development of national minimum standards.
Earl Howe: I am grateful to the Minister for that response. I am not sure whether the Government have reached the point of thinking about how, and to what extent, the setting of national minimum standards will be reflected in planning regulations, which I do appreciate falls outside the remit of the noble Lord. Nevertheless, if national minimum standards are laid down, in however discretionary a way, it is a factor to be taken into account, and I should have thought that planning regulations will also need to take them into account.
As I said, I am aware of the time and at this juncture I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 81 to 84 not moved.]
Clause 21 agreed to.
Lord Burlison: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Air Traffic: Transatlantic Flights
7.49 p.m.
Lord Nasebyrose to ask Her Majesty's Government what is their policy on opening up transatlantic flights to new entrant carriers.
The noble Lord said: My Lords, it is my pleasure to open this debate. Perhaps I may say how encouraged I am to see the Minister of Transport himself here to respond. I thank him in advance for doing me that courtesy.
Some may wonder why I have tabled this Question. The principle reason, as some noble Lords will know, is that I was an RAF pilot. I toyed with joining the airline industry as an executive, but decided otherwise. Before becoming Deputy Speaker and Chairman of Ways and Means in another place, I took some interest in the subject of air travel. Like your Lordships, I read the newspapers. Last November I was conscious that the issue of transatlantic services would come up for negotiation, as I understood it, some time in January 2000 and that the matter had been outstanding for many years. Therefore, I felt that it might be helpful to give the issue a nudge forward. I have been helped in my briefings by material supplied by Singapore Airlines and British Midland. Indeed, had any other airline briefed me, I would have been equally receptive.
It seems to me that there are three main considerations. First is the lack of competition and real choice for air travellers on transatlantic routes from the United Kingdom. Secondly, and equally important, is the continuing under-use of capacity at our regional airports. Thirdly, there are the specific difficulties that seem to be experienced by a number of new entrants, particularly British Midland and Singapore Airlines, in securing transatlantic rights from Heathrow. That is all against the background of the Government's White Paper issued about two years ago which said that transatlantic travel would be opened up.
I start with the first of the three considerations, the lack of competition and real choice on transatlantic routes. We have, a potential market in the United States of about 300 million people—as big as that of the European Union. I am concerned about British travellers. They have a very limited choice of airlines, as the examples will swiftly indicate. Between London and the United States there are 720 services a week, 95 per cent of which are supplied by just four airlines, two US carriers and two United Kingdom carriers. British Airways and American Airlines share 55 per cent of all services including 70 per cent on the London to Chicago route and 60 per cent on the London to New York route.
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The restrictive UK-US bilateral agreement provides for only two carriers from each country to operate from each of the three London airports and only three non-UK/US airlines are allowed to operate on the transatlantic route. That means that the provision is less than 5 per cent.
As I looked into the issue, what really disturbed me was that if one is a British businessman one can only travel direct to 10 US cities. However, a German businessman, with whom we compete extensively in the United States, has no less than 18 direct services from Frankfurt. It appears to me that that is solely due to an "Open Skies" policy which we do not have.
Secondly, Manchester is a very important part o f the industrial base of the United Kingdom. It has only 48 direct services a week operated by only four UK-US airlines to just five cities. There are no services at all to the US west coast. Birmingham is the heart of our metallic industries. It has two airlines, both American, operating just 14 services direct to just two US cities. From Glasgow there is one direct service at the moment operated by Continental Airways to Newark.
This under-use of regional airports is not sensible. All the airports I have mentioned are Category A international airports, all approved for long-haul services. It is true that there are connecting flights via London and a few indirect flights over London to the US. But these are not dedicated flights from regional airports and do not directly benefit the regional airports themselves. Despite the decision of the previous administration to allow US and British carriers—the so-called third and fourth freedom operators—to operate to regional airports without restriction, there are still very few transatlantic services.
Airlines from other countries are still prevented from operating transatlantic services beyond the United Kingdom from regional airports. Surely the time has come to open up regional airports for transatlantic services to foreign airlines which, in the jargon, are called fifth freedom operators.
The Minister will have noted an Early Day Motion in the other place, supported on an all-party basis and signed by a substantial number of Members of Parliament. That indicates that this is a subject of interest right across the political spectrum.
I do not believe that there is much argument about the fact that regional airports play a very important role in job creation, overseas trade and commerce and that they relieve congestion at London. So fifth freedom services will help all those aspects. I ask Her Majesty's Government whether they intend to grant these rights to foreign airlines.
It takes time to build up any kind of service from a regional airport. For example, the Singapore Airlines route from Manchester to Singapore started in 1985 with two services a week. It took a considerable time to build it up to the current daily service. We need to recognise that it has not been a simple success story. There have been ups and downs. But that particular carrier stuck through thick and thin to ensure that the service was maintained. It seems pretty clear that if we

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want to encourage the growth of regional air services we need to encourage airlines to operate from those airports.
I now turn to Heathrow. Considerable difficulties are being experienced by new entrants. London is in a different situation. It is our capital city and the main point of entry for those coming to the United Kingdom. It is absolutely vital that it remains the pre-eminent point of entry. But currently access to London and beyond is highly regulated. The existing bilateral agreement between the United Kingdom and US provides that only four airlines, two from each side, can operate transatlantic services from any one London airport. This agreement frustrates the attempts of British Midland to open a transatlantic service and enables a few airlines to dominate the route.
I am aware that negotiations have been taking place for a very long time. Can the Government say whether there has been any progress at all in liberalising the bilateral agreement and when we can expect a new agreement which will enable British Midland to join the route?
However, a British Midland service, welcome though it would be, would still not provide the greater choice of service that I believe British travellers deserve. The choice would still be between just a British and American carrier. As I mentioned, the other carriers on the route at the moment are Kuwait Airlines, which has three services a week, and Air India, which also has three. So there are six services which are non-British or American out of 175 a week. That is not a vast amount of consumer choice.
Rightly, our Government and our nation pride themselves on the fact that we are liberal country in terms of competition. That was reaffirmed 16 years ago in the Conservative White Paper which stated that the government would promote competition and that they would make it easier for new airlines to enter the market. As said, about two years ago the present Government said:
"We wish to see the liberalisation of transatlantic services…on the basis of fair competition...and with adequate protection for small and new entrant carriers against the abuse of market power".
So far there is little evidence of that happening.I move now from British Midland to Singapore Airlines. That airline, I understand, has been trying for about 10 years to open up a service from Heathrow to the United States. I am unclear why it has taken so long. I wondered whether Singapore was carrying out some kind of protectionism. I could not find any evidence of it. There appears to be a fairly liberal agreement between the UK and Singapore which enables an airline from any country to operate as many services as it wishes between the two countries. Given that we have three international airlines flying to Singapore whereas Singapore has only one, so far the agreement has been to our advantage. As I understand it, the Government of Singapore have granted UK carriers substantial rights beyond Singapore to Australia, including code-sharing rights, of which British
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Airways has, quite rightly and understandably, taken full advantage. I also understand that "hubbing" rights have been made available. Whatever way one looks at it, equity and fairness suggest that Singapore Airlines should at least be given the opportunity to have some form of transatlantic rights.
What is the delay? I remind the Minister that in 1989 the government said that once Singapore Airlines achieved up to 21 services to the UK a week from Singapore the issue would be taken very seriously, but so far no progress has been made. What is the situation in relation to the US/UK agreement? As I understand it, the United States is quite happy for Singapore Airlines to operate across the Atlantic. I am not sure what is holding matters up at this end. It does not seem likely to be due to British Airways fearing competition. By any yardstick, British Airways is a very successful airline, well patronised by the public. Obviously, that is in the interests of the passenger.
Can it be that there is a worry about extensive over-capacity on the route? If passenger numbers fell it would be a worry, but I note from the January issue of Aviation Strategy that the existing British Airways and Virgin services have enjoyed load factors of 77 per cent. Would not every airline in the world wish that it could achieve that? Furthermore, they intend to increase capacity on the route by 10 per cent. The Minister will be aware of recent statements by British Airways that it intends to go up market. Certainly, if British Midland and, to an extent, Singapore Airlines came along, it would ensure that economy class capacity remained fairly constant.
Questions have been raised in the press about shortages of slots. I believe that that is a red herring. Slots are in any event a matter for airport authorities and not the Government. Suggestions have been made that, because Singapore Airlines has made an investment in Virgin, it does not really need this opportunity. I believe that its code-sharing agreement with Virgin is very similar to BA's agreement with Qantas. While British Airways flies direct to Australia and has a code-sharing agreement with Qantas, this is a very similar situation.
Whatever the reason for the delay, as far as concerns the British traveller it has gone on for too long. It is also costly to British industry. If one can travel cheaply to Amsterdam one can then fly to the United States at almost half the price one would pay if one travelled from London. That cannot be in the interests of British exporters. Therefore, I ask Her Majesty's Government whether they will expedite the request of Singapore Airlines for a transatlantic service.
In conclusion, I make four points. First, despite the best intentions of successive governments—I do not make any party political point—air transport remains one of the most highly regulated sectors in the world of transport and commerce. Secondly, that situation is detrimental to passengers and consumers who, according to all the information available, benefit from greater choice and competition. Thirdly, bilateral agreements, which restrict access to routes such as the transatlantic to just two participating

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countries, have not served the interests of the consumer well, particularly the British businessman. Fourthly, those agreements are detrimental to the growth of regional airports.
In the interests of fairness and equity and greater choice and competition on the transatlantic route, I respectfully ask that the Government open up regional airports to fifth freedom carriers, hasten their negotiations with the US over British Midland and expedite the discussions next week, I believe, with Singapore so as to give Singapore Airlines the opportunity to provide greater choice to transatlantic travellers from Heathrow.
8.3 p.m.
Viscount Waverley: My Lords, I apologise to the House for rising to speak but I should like to make two quick points. The whole approach to transatlantic air routes is a throwback to a bygone era and is inconsistent with globalisation endeavours. Therefore, historic protectionist support for selected carriers must end. However, there is one caveat. A mechanism must be found whereby passenger and cargo services are not adversely affected by unprofitable carriers.
The noble Lord spoke about the regions. It has always appeared odd to me that many believe the centre of the universe to be London and the south-east. I believe that this Government should be instrumental in bringing about economic well-being in other regions by diverting, or creating, additional routes.
8.4 p.m.
Baroness Thomas of Walliswood: My Lords, we are indebted to the noble Lord, Lord Naseby, for initiating this brief debate in a comprehensive manner. He put his questions in a broad context and I shall do likewise. This is a good opportunity to point out that in general Liberal Democrats support open skies policies and greater competition within an envelope of concern for improved environmental conditions in the air and around airports. We also favour the encouragement of a greater role for Stansted and, to a lesser extent, Gatwick in air transport and a much greater role for the major provincial airports. That point has also been comprehensively made by the noble Lord. A number of my honourable friends in another place put their names to the Early Day Motion to which the noble Lord referred.
The context of the debate this evening is the Bermuda II agreement between the US and UK which has been the subject of renegotiation for a long time. At the moment, it has the curious effect of creating in the provision of air transport into and from Heathrow what in any other industry would be described as a cartel. If in any other commercial operation only four operators were licensed to provide services, in most cases it would have the distinct ring of a cartel about it. It is certainly anti-competitive. The excellent services that are offered by all four airlines are provided at considerably greater cost per mile than
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similar services from, say, Amsterdam and Paris which are both quite close to southern England. They are also provided at a considerable loss to British businesses, estimated to be £2 billion, that use those airlines because of the range of services and the convenience that they offer to passengers who originate in this country.
A second difficulty that arises under Bermuda II relates to the restrictions on rights of cabotage for UK airlines within the US. I do not believe that in this Chamber I need to waste time by defining "cabotage-. It is important to remember that the US is not similarly prohibited within the European Union, certainly not to anything like the same extent. The Government recently offered Federal Express the right to bring its trade into Prestwick, no doubt with great benefit to business, and to carry it onwards from Prestwick to other airports. Therefore, that limited cabotage right has been granted and we still have not been granted similar rights.
I understand that negotiations continue to consider further the liberalisation of Bermuda II. I understand that the terms of the limited liberalisation—the Government will return to them at the end of this month—are as follows. It would allow British Midland to operate two flights daily to two US cities; two US carriers each to operate two flights daily into Heathrow; a resumption of the Pittsburgh-Gatwick service; and the possible approval (I understand that the United States is not satisfied) of code-sharing between BA and AA. That would provide a new entry for British Midland into the US and a reciprocal increase in the number of US airlines operating into Heathrow but would not provide any abatement of the prohibition on cabotage within the United States.
If finalised, however desirable those arrangements may be to British Midland—it could use some of its current domestic slots to facilitate them—is gradual liberalisation between the UK and the US the right approach to achieve full competition across the Atlantic and fifth freedom rights for UK operators within the US? Does not it risk giving concessions to the US without gaining sufficient concessions in return? Let us be in no doubt. The apple—what everyone wants—is entry into Heathrow. We want onward movement and independent operation within the United States. We must not give away something without getting what we want in return.
In these partial negotiations, is the heavy concentration on the role of Heathrow and London rather than on the UK's regional airports justifiable? The noble Lord made the point effectively. In the context of the Government's most welcome announcement on 10th November last of the preparation of a new air transport White Paper, a key element of which is likely to be an increased role for the UK's regional airports, would it be more logical to encourage more transatlantic traffic to other major centres such Manchester, Birmingham and Glasgow?

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There is also the complicated question about whether or not these bilateral negotiations are the right way to pursue this difficulty in European/United States relations. The EU is committed to an open skies policy. There are those who suggest that the EU would be a more suitable negotiating partner. I should like to hear the Minister on that issue. He will observe that I ask my three major questions at the beginning of my contribution to the debate. I hope that that will enable him to answer those modest queries.
The noble Lord, Lord Naseby, gave a comprehensive picture of the lack of mutuality between Singapore Airlines' position as an operator out of Heathrow towards the United States and BA's ability to operate onward out of Singapore. It has granted us full onward rights; and we are extremely reluctant to grant the same. I am bemused by the recent government response to Singapore Airlines; namely, that they can do nothing about the onward movements out of Heathrow into (for the sake of argument) New York or Chicago until the difficulties of the United States negotiations have been resolved. I understand that the two are not connected. Singapore Airlines has permission already from the United States Government to operate in and out of United States airports. Therefore, there is no difficulty as regards the United States. The difficulty resides in the Government's reluctance to grant to Singapore Airlines the right to leave Heathrow in the direction of the United States. That seems peculiar.
I agree with the noble Lord, Lord Naseby, that slots are not the problem. If the British Government were to give Singapore Airlines the right to such onward flight, as I sincerely hope they are about to do, the issue of slots would be determined by the relevant airlines committee at Heathrow and is nothing to do with the Government. Why do the Government appear to be so reluctant to give a more equal access to Singapore Airlines and thus behave in a balanced fashion?
In some sense airline alliances are an effort by international airlines to outwit the restrictions placed on transatlantic travel under the Bermuda II agreement. The Star alliance contains Lufthansa, British Midland—it has a large number of domestic slots at Heathrow—SAS, United, All-Nippon Airways, Air Canada, Thai Airways, Air New Zealand, Varig, and so on. That huge group of airlines is faced by BA, Qantas, American Airways, and so on, in the Oneworld alliance. One of the features of those groups is an effort to outwit the restriction on flights across the Atlantic through the code-sharing mechanism. Does the Minister agree that most of the other effects are not beneficial to the travelling public?
That increasingly obvious grouping of airlines must involve an anti-competitive aspect. The recent acquisition of shares in Virgin by Singapore Airlines suggests that it may be moving—perhaps reluctantly as regards Virgin—towards greater co-operation with one or other of the airline alliances. Does the Minister agree that there is potential for anti-competitiveness in that relatively new development in the airline industry?
8.20 p.m.
Lord Brabazon of Tara: My Lords, I am grateful to my noble friend Lord Naseby for raising the issue in your Lordships' House—the first time for a long while—and it is good that we have the Minister responsible to answer the Question tonight.
We on this side of the House are entirely in favour of liberalisation and did an enormous amount to achieve it within Europe and elsewhere. However, it must be balanced with the rights and interests of our airlines to maintain their business as best they can with the travelling public.
The Question refers to transatlantic routes; it does not refer specifically to Heathrow Airport. One must remember that Heathrow is not the only London airport; there is Gatwick Airport, too. Heathrow has only two carriers from each side of the Atlantic; British Airways and Virgin Atlantic on our side and American Airlines and United Airlines on the other. I am a veteran of the transfer to United Airlines and American Airlines from Pan Am and TWA, which was a most interesting experience. However, Gatwick, which is just as convenient for many people travelling from London, has no fewer than 11 carriers. Together, they serve 26 United States airports, which is more than any other European city. Therefore, one must look at the issue of competition overall.
We are not in favour of unilateral gestures on competition issues. I remember that a few months ago the noble Baroness, Lady Thomas, asked about the unilateral offer to FedEx and other carriers and fifth freedom rights over Prestwick. It was then thought that we should receive some gesture from the United States, but I do not believe that anything whatever has been achieved. Perhaps the Minister can comment on that.
I am also keen to discover the state of play on negotiations overall. I understand that talks between Singapore and the United Kingdom are to take place in a few days' time. I do not expect the Minister to reveal his negotiating position—it would be wrong of him to do so—but we have more than 50 per cent of the UK/Europe market. That is a considerable achievement and therefore bilateral arrangements with the United States are most important.
Nevertheless, it is alleged that fares for business and first-class travellers are higher here than in the rest of Europe. I do not believe that that is the case for people in the back of the aeroplane because one can find extremely good bargains. I must declare an interest because nowadays my flying is done from Luton Airport which is, as we are all aware, the home of a very good and successful airline. Perhaps we should be looking for transatlantic flights from there! Stelios, where are you?
The issue before us today focuses on two applications; Singapore Airlines' fifth freedom rights and British Midland. Singapore Airlines state that the UK airlines have fifth freedom rights beyond Singapore. That is undoubtedly true, but, if my recollection is right, those rights were granted in exchange for others which Singapore Airlines wanted.

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That was a "done deal". For Singapore Airlines now to say that the right should be extended to it over London is slightly disingenuous because if it wants those rights it should be offering concessions to UK airlines elsewhere. I was under the impression that those earlier rights were bought and paid for on a deal done some years ago.
The other question I have about Singapore Airlines relates to the fact that it has recently bought 49 per cent of Virgin Atlantic Through that partner it already has transatlantic rights from Heathrow, so why does it still want to operate over the Atlantic? That needs to be justified. If Singapore Airlines were granted the right, how many other airlines around the world would come knocking at this door? London to the United States is the biggest airline market in the world. Anyone would want to operate it. Therefore, I caution the Minister to take those points into account before deciding on the application.
As regards British Midland, I hope that the Minister can tell us what progress is being made in negotiations. Perhaps I may also take the opportunity to pay tribute to the department's negotiators. There are not only those who deal with the more glamorous places, such as Bermuda, but there are also those who slave away in places such as Lagos. I remember dealing with the Nigerians, which was an absolute nightmare. All the negotiators do a very good job and tribute should be paid to them.
If a British Midland deal means that two new US airlines have to come to Heathrow, so be it. It would be for the United States Government to decide which two, but that has proved difficult for them because they have many more airlines to choose between. That has been a difficult issue in the past. However, the failure of the British Airways/American Airlines deal opens up the opportunity to take a fresh look at the matter. I hope that the Minister can bring us up to date on how the Government intend to play that opportunity.
At the end of the day "open skies" means more than more airlines operating on UK/US routes. As the Minister will be aware, "open skies" has two different meanings; one which we would give it and one which the Americans would give it. As far as I am concerned, it means ownership and control, cabotage, wet leasing, Fly America and so forth. I am aware that some of those issues are not entirely under the control of the US Government: they are under the control of Congress where previously there have been considerable difficulties.
I am grateful to my noble friend for raising the Question and I very much look forward to the Minister bringing us up to date with the latest state of play in negotiations.
8.28 p.m.
The Minister of State, Department of the Environment, Transport and the Regions (Lord Macdonald of Tradeston): My Lords, I am grateful to the noble Lord, Lord Naseby, for providing the opportunity to debate the Government's policy on
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transatlantic aviation generally and the opportunities for new entrant carriers in particular. If I say that many of the points made today are familiar to me, it is a reflection of the exhaustive nature of the discussions which have taken place over a long time, including expertise in this House which is more extensive than mine. However, I stress that that familiarity results from the frequency of the discussions in past years rather than any paucity of ideas in your Lordships' House today.
The Government's policy on aviation generally is to support liberalisation. By "liberalisation", I mean the removal of those restrictions which stifle competition, inhibit efficiency and deny to consumers freedom of choice. But we must be clear about what liberalisation does not mean. I am grateful to the noble Lord, Lord Brabazon, for preparing the way for me on that point. Liberalisation does not mean liberally conceding competitive advantage to the carriers of any other state; it does not mean asking our carriers to compete with foreign carriers upon whom we may have lavished rights and privileges which have not been reciprocated; and it does not mean putting at risk the thousands of jobs in the UK which are dependent upon a healthy home-based aviation industry.
However, such a declaration of intent towards even handedness is not quite so easy to realise. I mentioned our carriers but they, of course, do not comprise "the industry"; they are a component of a much wider entity. Moreover, the carriers are, as is implicit in this discussion, in competition among themselves. Therefore, although we can often find areas of agreement between them, their competitive relationship means that we can never look to carriers generally to present a single point of view.
The airports, which have been mentioned, must be considered also: the London airports, the English regional airports and the airports in Wales, Scotland and Northern Ireland. The interests of each category of airport and of the wider regions in which they are situated are not invariably the same. Nor are the interests of the airports and the carriers always aligned. Furthermore, the symbiotic relationship of the ancillary sectors of the industry with the carriers and the airports is such that, if the economic vitality of the host industry should be sapped, they too will feel the pinch.
The noble Baroness, Lady Thomas, raised the question of alliances, which is another dimension of more recent origin which we must bear in mind also. The co-operation of carriers in global alliances to provide greater choice can improve flexibility. Yes, of course there is the danger that alliances may work anti-competitively but we are, and shall remain, vigilant to ensure that the consumer is protected from any abuse of a dominant market position.
A respected commentator wrote recently that recording the fortunes of a nation's civil aviation gives an insight into that country's commercial, political and social development. The truth of that axiom is confirmed by an examination of civil aviation over the North Atlantic over the past 50 years, which

831
underlines the importance of the remarks of the noble Lord, Lord Brabazon, about the importance of that market. It is without doubt one of the most important arenas for both UK and US aviation. In 1998, some 17 million passengers and some 673,000 tonnes of air cargo were carried between the UK and the US. It is a credit to our carriers that, between them, they carried 60 per cent of the passenger total and 53 per cent of the cargo. That is the sign of an efficient sector of the industry providing a better service than its competitors.
As has been pointed out, the provision of air services between the UK and the US is governed by the Air Services Agreement commonly referred to as Bermuda II. That agreement confers upon each side a balance of opportunity if the carriers of each side exploit it effectively. That is not to claim that Bermuda II is the ideal template for efficiency and equity; if we can achieve even more opportunities for new entrant carriers to enter the market, the keener will be the competition, the leaner and fitter will be the industry, and the greater will be the advantages accruing to the consumer.
In other words, in UK-US aviation relations our goal must be the removal of anti-competitive restrictions and the ushering in of a new and liberalised regime: skies which are truly open to carriers of both sides, bringing benefits not only to aviation consumers but to UK plc as well—if I may put it that way. There are some problems at present—accusations have been made that the current arrangements cause excessive fares in business class. It is true that there has been a tendency for some business class fares out of the UK to be higher than those for the rest of Europe, but it is true also, as has been said, that economy fares tend to be lower. We recognise that greater competition could help to reduce business fares. That is one of the reasons why we have been pursuing a liberalisation package with the United States.
However, the question of whether we should adopt a more liberal regime, or—as the US would have it—an "open skies" regime is, as the noble Lord pointed out, problematic. The particular template for open skies being commended to us by the United States, for instance, would appear, at a cursory glance, to point the way to the broad, sunny uplands of liberalisation and healthy competition between contracting parties. However, I do not believe that it would work out in that way. The US template on offer would afford their carriers the rich pickings of our domestic market—which of course now includes the European Union countries—while our carriers would be kept firmly locked out of the Americans' domestic market by their denial to United Kingdom airlines of the right to carry passengers between points within the United States (a right known as "cabotage"); by their protectionist "Fly America" policy, under which US carriers have the monopolistic right to carry US public servants; by the US's refusal to countenance the so-called "wet-leasing" of British aircraft with their crews within their
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territory; and finally, by corporate control through strict US limits on inward investment by UK companies.
All of those anti-competitive advantages the US wishes to retain while demanding of us their equivalent value under the so-called "open skies". Under that template, the skies are not open in the sense that I understand the word, nor is it the model for liberalisation of the kind that we should seek to construct.
I turn now to the question of transatlantic fifth freedom rights. We believe that fifth freedom traffic rights should be subject to negotiation with bilateral partners. Generally speaking, the UK seeks a balanced exchange of those fifth freedom rights. We receive many requests for transatlantic fifth freedom rights. They are particularly valuable, as has been said from the Benches opposite, especially as the UK-US aviation market is not fully liberalised and the operations of UK carriers are restricted. Until such time as the UK-US market is liberalised further, and in particular, until such time as all UK carriers wishing to operate from Heathrow to the US may do so, the United Kingdom will normally continue to resist requests for transatlantic fifth freedom rights from London unless a balanced exchange of rights is available.
The noble Lord, Lord Naseby, and others raised the question of those rights for Singapore Airlines. The points I have so far made relate to the bilateral position between the United Kingdom and the United States. Of course, there are other would-be players such as Singapore Airlines: carriers from third countries seeking fifth freedom rights to carry passengers between the UK and the US. Indeed, a number of countries have been pressing us for rights for a number of years; notably, in recent months, Singapore.
The noble Lord, Lord Brabazon, has the advantage over me in the length of his memory of those negotiations. Of course I take on trust what he says. He summed up succinctly the importance of Heathrow access, which I have attempted to underline. I hope that your Lordships will understand that I cannot go into detail on Singapore's request because the bilateral negotiations between our countries are scheduled to take place in Singapore next week, as has been mentioned already. However, I repeat that it has been our policy for some years that such rights are valuable and they will be traded, but only on the basis of mutual benefit to both countries.
The noble Lord, Lord Naseby, the noble Viscount, Lord Waverley, and the noble Baroness, Lady Thomas, raised the question of regional airports. Your Lordships' House will be aware that in 1998 the Select Committee on Environment, Transport and Regional Affairs reviewed access to the regional airports. In June 1998, prior to their appearance before the Select Committee, Ministers announced a new policy on international access to regional airports, which was to offer bilateral partners on the basis of reciprocity unrestricted third and forth freedom access to all UK airports except Heathrow and Gatwick.

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Fifth freedom rights were not included in the offer and they remain the subject of negotiation and exchange of rights, except in exceptional circumstances. The Select Committee recommended that the Government should offer unrestricted access to regional airports. In their response, the Government agreed to review the policy in January 2000. Therefore, officials have been consulting the interested parties, the consultation exercise has just finished, and a decision will be made shortly.
I move on to the particular question of talks between the United Kingdom and the US. The request for the latest round of talks came from the United States. The two main agenda items were the resolution of a US problem relating to services between London and Pittsburgh, and proposals for a liberalised cargo regime.
As your Lordships may recall, in October 1999 British Airways took a commercial decision to suspend operations between Pittsburgh and London. That left Pittsburgh with no direct link to London and no spare gateway under Bermuda II for a US carrier to operate a replacement service. The UK has always been willing to help the US to solve its problems, but on the understanding only that any advantage accruing to the United States from the acquisition of an additional gateway would have to be balanced by advantages for UK carriers.
Currently, we do not require an additional gateway. Therefore, we are looking to agree a package of measures—a "mini-deal—which would allow the United States to re-establish a Pittsburgh service and give a new UK entrant an opportunity to operate to the US from Heathrow. In addition, a question arose about cargo. Reference was made to the encouragement which we had given to the prospects of a deal by opening up facilities at Prestwick to the American carriers—particularly FedEx.
A moment ago, I mentioned the protectionist policies on issues such as wet leasing, cabotage and inward investment, which serve to keep UK cargo carriers out of the United States domestic market. In spite of the ambitions of the US cargo carriers to operate in our United Kingdom market and their promises to bring pressure to bear on their own government to try to open up the liberalisation of the cargo market, we unfortunately remain unable to persuade the United States to level the playing field. Therefore, no progress has been made on that front in the past week.
With regard to the way forward in that area, I stress again that our primary goal is to secure full liberalisation. If we are not to reduce our leverage in future discussions, it is essential that any mini-deal should result in real benefits to the United Kingdom. However, perhaps unsurprisingly, negotiations on both Pittsburgh and cargo liberalisation were tough, and there remain serious differences of view between the two parties. Nevertheless, negotiations will resume in London later this month and we hope that further progress will be made then.
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It was suggested by the noble Baroness, Lady Thomas, that the European Union might be an influential negotiating ally for us in those areas. We are very well aware of that potential, and it is one that we are exploring positively. However, this is a complex issue which the Government keep under review in the light of bilateral talks with the United States.
In concluding, perhaps I may assure your Lordships that we can be certain of one thing; that is, that this Government will be guided in their decisions by an assessment of what is best for UK aviation generally. As your Lordships already appreciate, the challenge arises from the interests of the various players; not least, the consumers are in direct conflict. Therefore, our goal is a liberalised regime where there is equality of competitive opportunity for all carriers, the maximum of choice for consumers who wish to fly across the Atlantic, and economic advantages fairly distributed around the United Kingdom; in short, balanced skies truly open to all where all sides win.

Care Standards Bill [H.L.]
8.46 p.m.
House again in Committee.
Lord Clement-Jones Lord Clement-Jones moved Amendment No. 85:
After Clause 21, insert the following new clause—
("Codes of practice
CODES OF PRACTICE
.—(1) The Commission shall prepare and issue codes of practice giving practical guidance on the standards which are to be observed whether in relation to the national minimum standards applicable to establishments or agencies or otherwise.
(2) The Commission shall, when requested to do so by the Secretary of State, prepare a code of practice dealing with the matters specified in the request.
(3) In preparing a code of practice the Commission shall carry out such consultations as it considers appropriate (which shall include the publication for public consultation of proposals relating to the code).
(4) The Commission may not issue a code of practice unless—

(a) a draft of it has been submitted to and approved by the Secretary of State and laid by him before both Houses of Parliament; and

(b) 40 days (excluding any period when Parliament is dissolved or prorogued or when either House is adjourned for more than 4 days) have elapsed without either House resolving not to approve the draft.

(5) If the Secretary of State does not approve the draft code of practice submitted to him he shall give the Commission a written statement of his reasons.
(6) A code of practice issued by the Commission—

(a) shall come into effect on such day as the Secretary of State may by order appoint;

(b) may be revised in whole or in part, and re-issued by the Commission; and

(c) may be revoked by an order made by the Secretary of State at the request of the Commission.

(7) Where the Commission proposes to revise a code of practice—

(a) it shall comply with subsection (3) in relation to the revisions; and

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(b) the other provisions of this section apply to the revised code of practice as they apply to a new code of practice.

(8) Failure to observe any provision of a code of practice does not of itself make a person liable to any proceedings, but any provision of a code which appears to a court or tribunal to be relevant to any question arising in any proceedings under this Act shall be taken into account in determining that question.
(9) The power to make an order under this section is exercisable by statutory instrument.
(10) Nothing in this section affects the Commission's powers apart from this section to give practical guidance on matters connected with its functions.").
The noble Lord said: I start by giving an apology. This amendment is proposed in my name and that of my noble friend Lady Nicholson, who is also the proposer of a Private Member's Bill on the issue of the regulation of private independent healthcare. The amendment imports what we believe to be one of the key elements of that Private Member's Bill, which we believe to be greatly preferable to Clause 21 in its current form.
During the debate on the previous group of amendments, the Minister spent some time discussing quite usefully what was meant by the words "shall be taken into account". We believe that the codes of practice set out in Amendment No. 85 are much clearer in law in terms of what the duties of the commission would be regarding inspection and enforcement. They are much clearer than simply a set of minimum standards which would be required to be taken into account. For that reason, we propose a set of codes of practice. Clearly, we have added in certain other bells and whistles, which we have already discussed, such as the way in which drafts of the codes of practice are submitted to both Houses of Parliament, the way in which they are laid on the Table, and so on, in terms of affirmative approval.
However, that is not the essence of the amendment. Its essence lies in proposed new subsection (8):
"Failure to observe any provision of a code of practice does not of itself make a person liable to any proceedings, but any provision of a code which appears to a court or tribunal to be relevant to any question arising in any proceedings under this Act shall be taken into account in determining that question".
That is of great importance because it sets a legal standard. I do not believe that it imports a lack of flexibility, which is how in a sense the Minister justified the wording of the current Clause 21. Indeed, it also makes it clear that the codes of practice as a whole will inform the way in which the commission carries out its business.
It is not entirely clear how Clauses 20 and 21 interrelate in terms of the Bill. Amendment No. 85 expresses more clearly the way in which minimum standards will operate. Indeed, under a great many pieces of legislation, codes of practice are the norm. Therefore, this is not an unknown practice; indeed, it is very common, and the legal effect of codes of practice is clearly understood. Therefore, I commend Amendment No. 85 to your Lordships. We believe that it will create a much clearer legal regime than the
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current Clause 21 for the commission and, indeed, for any court or tribunal eventually required to adjudicate on the matter. I beg to move.
Earl Howe: I strongly support the thrust of this amendment. It is important that the commission should not, as it were, simply be the recipient of dicta from on high and implement those instructions. It should have a proactive role in the setting of standards and in relating national minimum standards to what is experienced on the ground and in proposing, up the tree, so to speak, improvements and variations.
The noble Lord has adopted an extremely imaginative and creative approach. Had I drafted the amendment, I might have done one or two things differently. But the essence of it has much merit and I hope that the Minister will take on board the thrust of it.
Lord Hunt of Kings Heath: I am grateful to the noble Lord, Lord Clement-Jones, for explaining the intention behind the amendment. I am not entirely convinced that his approach is better than the approach which we have adopted in the Bill, with a framework of regulations alongside national minimum standards.
The noble Earl, Lord Howe, suggested that there is a need for the commission to have a strong role in setting standards. While it is extremely important that Ministers should make the decisions on the national minimum standards, they will be informed by the views and experience which the commission has gained. One of the great advantages of setting up such a commission at national level is that because of the strong network of regional and local inspectors, it will be able to have a great deal of information and experience to offer the Government when it comes both to looking at national minimum standards and to revising them, as no doubt they will need to be revised, from time to time.
The amendment moved by the noble Lord, Lord Clement-Jones, proposes that there should be codes of practice on the standards which regulated establishments will have to meet. That implies that the national minimum standards require significant interpretation. That will not be the case. They are intended to be free standing. They will also be self-explanatory. The risk is that the code of practice which the noble Lord suggests will add another layer of interpretation and will risk causing confusion as to what is authoritative—the national minimum standards or the code of practice.
If there is a question as to whether the standards will be sufficiently clear, I refer the Committee to the first example that we have published, the document Fit for the Future?. Whatever Members of the Committee may think about some of the points contained in it, the one thing that is clear is that it is not just a broad list of standards. A considerable amount of guidance material has been built into it. That clearly will be a model to follow with other standards as we develop them.

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I have already described the relationship between the regulations and the national minimum standards. The commission's role is not simply checking whether the regulations and standards are being met; it is also expected to assist and advise providers on how to meet those standards. So if anyone has any doubt as to what a particular standard means, he will be able to contact the commission and ask for clarification. We want the commission to be able to hold more formal training events, such as seminars and conferences. I tabled an amendment on Monday to enable the commission to do that.
I assure the Committee that the proposals which we are bringing for ward will introduce tough new regulatory requirements. At the same time, the commission will operate sensibly and properly in relation to the development of national minimum standards. Decisions on those standards will be made by Ministers but they will be informed by the experience and work of the commission. The interrelationship between the two will enable us to develop a rigorous approach to regulation, but with flexibility and the ability to ensure that in developing standards, we shall have full consultation with all those concerned.
Lord Clement-Jones: I thank the Minister for that reply. With this amendment and the previous set of amendments, we have managed to tease out very helpfully from the Minister just what is the basis of Clause 21 and how it will interrelate with the rest of the Bill.
There are still same issues regarding the legal basis of Clause 21 which need to be considered. But it will be helpful to fit together the Minister's replies in response to the last two sets of amendments; to look at Hansard very carefully; and then to consider whether the totality of that is satisfactory. In the mean time, I thank the Minister for his reply and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 86 not moved.]
Clauses 22 to 27 agreed to.
Clause 28 [Inspections by persons authorised by registration authority]:
[Amendment No. 87 not moved.]
Earl Howe Earl Howe moved Amendment No. 88:
Page 13, line 33, after ("time") insert ("in the event of an emergency, and
(b) during normal business hours in all other circumstances.").
The noble Earl said: In moving this amendment, I shall speak also to Amendments Nos. 89, 90, 95, 97,109 and 110. These amendments all relate to the ground rules which should apply to the conduct of inspections. Clause 28 is drafted in a way which is rather too accommodating to the inspectors and insufficiently accommodating to those who are to be inspected.
The vast majority of inspections will be carried out in a constructive and friendly spirit. They will provide opportunities for sharing good practice. Above all, they
838
will need to be conducted in a manner which does not lose sight of their overriding objective, indeed the objective of the Bill; namely, to safeguard the well-being of the care home resident, the hospital patient or the child in the children's home, as the case may be
That being so, we need to look carefully at the powers which the Bill confers on inspectors. Of course, some inspections will be far from easy, where inspectors will need to stand on their authority and where the power to insist on access to people and records will need to exercised in a robust way. But that does not give us an excuse to overlook either people's rights or common sensitivities.
In these amendments, I suggest that it is unacceptable, other than in an emergency, for an inspector to demand entry into a care home or other establishment during the night. It is not fair, in normal circumstances, to inflict such a disturbance on, for example, elderly residents. I suggest that inspectors should produce identification as a matter of routine. We should pay proper regard to the conduct of interviews. Most interviews with managers or staff will be non-confrontational but some will be the exact opposite. If I were on the receiving end of such an interview I should want it to be in private; I should want to have somebody independent sitting on my side of the table; and I should want to be sure that whatever I said was correctly noted down. That is precisely the right that I would have in a police station. I see no real difference of principle if what I say to a police inspector carries with it the possibility of criminal charges being laid against somebody.
I believe that Clause 28 should make it absolutely clear that there are some areas into which an inspector should not consider it his automatic right to enter. The point of my amendment to subsection 3(a) is to relay a concern expressed to me by more than one source. All too often inspectors cannot resist making pronouncements on matters which are not within their remit. The examples quoted to me are pharmacy issues, fire regulations and health and safety matters. All of these are important, but they are not strictly the province of an inspector of a residential home, or such like, and should be left to those who are trained and qualified to give the correct advice. I hope that the Minister will be sympathetic to the thrust of these amendments. I beg to move.
9 p.m.
Baroness Barker: I have every sympathy with the sentiment behind Amendment No. 88 standing in the name of the noble Earl, Lord Howe. Of all the amendments at which I looked, this was the one that caused me the greatest problem. The problem is that abuse and malpractice does not happen during normal working hours. The most blatant of abuse occurs at the time when the most intensely personal care is taking place, and that happens to be very early in the morning and very late at night when people are going to bed.
Secondly it is not good enough to talk about "in the event of an emergency". When we talk about good practice, very small things which are not emergencies

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but add up to the total quality of care in a home can be determined early in the morning. For example, I worked with one group of lay assessors who made very early visits. They looked at how long it took for hot water to come through the taps to fill baths, and so on. We have just been talking about the qualitative standards which are in Fit for the Future? I actually do believe that many of them will be best tested by out-of-hours inspections.
While I understand what has been said about privacy during interviews, I think that the wording of this particular amendment is misplaced. I hope that we can look at some of the spirit to which the noble Earl, Lord Howe, referred, but not use these particular words.
Baroness Pitkeathley: I rise very briefly to support what the noble Baroness, Lady Barker, on the Liberal Democrat Benches said. I understand entirely the spirit of the amendment of the noble Earl, Lord Howe, about invasion of privacy, and such like, but it is at those particular times of vulnerability that we have to be able to prove the standard is still maintained during those occasions. From that point of view, I oppose the amendment.
Lord Laming: Members of the Committee will see that I am not the noble Lord, Lord Rix. I wish to speak to Amendment No. 91 and also Amendments Nos. 92, 93, 94 and 96. I shall start with No. 91. Medically qualified and nurse inspectors have the option, in appropriate cases, of looking at personal medical records and of carrying out physical examinations. This option is, as the Bill stands, subject to the consent of the person concerned: that is, in the case of people who are able to give consent. Therefore, it is eminently reasonable. However, in the case of someone who, because of their disability, is not able to say or indicate either yes or no, there is no power to look at medical records or to examine the person. As a result, those who are most vulnerable have the least protection. If there have been rumours about improper restraint, the more able resident can authorise the doctor to look at their arms for bruises and check their medical records for explanations. With the more severely disabled resident the rumours cannot be followed up and, therefore, run away into the sand.
These amendments would allow the doctor or nurse to do their job properly unless the person refuses consent. In the case of checking medical records, this should not be controversial. In the case of physical examination, it is worth making clear that refusal to consent includes physical and not just verbal refusal; allowing someone without words to refuse examination.
I urge the Minister to take these amendments seriously as an attempt to secure equal protection for those who are the most vulnerable.
I turn to Amendment No. 93. This amendment would allow a third party to be present during examinations or interviews taking place as part of suspected abuse or malpractice cases. Not only may
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this be of general reassurance to the service user, for example, allowing someone of the same sex to be present while being examined by someone of the opposite sex, but it may actually be crucial to determining the facts of the case. People with learning disabilities may lack the communication skills to make their views known without support. They may need support to help think what they want to say, or more likely, may need encouragement to answer a question. Interviews must be made possible, otherwise the most vulnerable people will be denied an opportunity to speak for themselves in often very distressing situations.
I now turn to Amendment 94. In speaking to this amendment I am not suggesting that there should be a requirement on inspectors to consult service users' wider contacts as a matter of course; but in a small number of cases—perhaps where the service user has communication difficulties—it may be appropriate to seek the use of relatives or advocates who may have been in regular contact with both the service user and the establishment in question. It is designed to be a helpful amendment. Under no circumstances should it be used as a substitute for seeking service users' own views, or placing less credence on them.
Finally, I turn to Amendment No. 96. There is something of a clash of principles when it comes to checking on domiciliary services. On the one hand, people are in control of what happens in their own homes and there is something fundamentally wrong about inspectors snooping around someone's home. The other principle is that people are at their most vulnerable in their own homes and deserve protection—better protection than looking through the files at the offices of the domiciliary services agency can offer.
The bridge between these two principles seems to be the right of the householder to invite the inspector in or keep the inspector out. Given that safeguard, enabling inspectors to visit people at home on occasions seems entirely proper and a valuable extension of their ability to be supportive. We have precedents for such visits in, for example, the role of the Lord Chancellor's Visitors. Even without that, and allowing for the necessarily modest scale of such visits, the question is, "Why not?", not "Why?". I believe that the Minister may be able to assure the Committee that such visits are both possible and intended.
Lord Lucas: I have a question which I think goes along with these various amendments. I wonder whether under Clause 28(3)(b) and (c) there is a right for the person making the inspection to obtain these records even if they are not kept at the premises in question.
Lord Hunt of Kings Heath: Perhaps I may first speak to my amendment, Amendment No. 111, which is part of the group. The amendment ensures that the provisions relating to inspection offences and the requirement for an inspector to be duly authenticated apply to Clause 42 as well as to Clause 41. The clauses deal with the inspection of adoption and fostering

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services and it is essential that the provisions apply to both Clauses 41 and 42 to allow the inspectors to carry out their duties properly.
I turn to the other amendments in the group. They raise important issues about the nature of inspections and the balance, as the noble Earl, Lord Howe, put it, between the inspector and the inspected. The noble Earl raised a number of questions concerning the potential behaviour of those appointed as inspectors. One of the great advantages of the arrangements we shall put in place is that the commission will be able to ensure that those inspectors are given appropriate training, that there will be consistency and high standards in the way they operate, and that they will well understand the need for sensitivity, particularly to residents, in their approach to the way in which inspections are carried out.
In relation to Amendments Nos. 88 and 109. I should say that the normal business hours of a 24-hour care establishment would not be nine to five. As the noble Baroness, Lady Barker, pointed out, these establishments provide care in the evenings and at weekends, day or night. If inspection visits were to be limited normally to nine to five, many of the key aspects in the routines of care homes and other establishments would not be observed.
It is essential that inspectors are able to observe the arrangements for getting residents out of bed in the morning, their breakfasting, evening meal and how they are put to bed by staff. As the noble Baroness, Lady Barker, said, unfortunate happenings are not infrequently encountered in visits outside normal business hours. It is the experience of many registering authorities that inspectors have visited residential homes at 6 a.m. and found all the residents out of bed and dressed, simply for the convenience of the day staff coming on shift. An important feature of the draft national minimum standards for residential care of older people is that they must have choice. This should extend to whether residents wish to rise early or late and what they would like to eat. They should not be denied choice for the sake of staffing convenience. The same points could be made about the evening routine. It will be equally important to check that night staff are awake and alert. That can only be accomplished with evening visits.
Importantly, the provision for inspectors to carry out inspections at any time is already in the existing Registered Homes Act 1984 and the Children Act 1989. For the reasons I have outlined and the need to ensure that inspections of statutory and private provision are consistent and effective under the commission, I hope that the Committee will agree that it is important that inspectors have the ability to do what is set out in the Bill.
I agree very much with the concern expressed in Amendment No. 89 that the registration authority's inspectors should act only in accordance with the discharge of the registration authority's statutory duties. However, this amendment is not necessary to achieve that. The registration authority will only be able to take actions necessary or expedient to the
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discharge of its functions. It follows that any person it authorises to work for it will automatically be under the same obligation. If an inspector has been authorised by the commission, he or she cannot do more than discharge its functions.
I can quite understand that there may be occasions—the noble Earl gave a particular example—when an inspector is thought to have acted beyond his powers or, in the case quoted by the noble Earl, in what might be considered to be an unreasonable way. In this case, the provider will have every right to complain to the commission about the inspector's behaviour. I make it absolutely clear that we shall issue directions to the commission to ensure that it has a satisfactory procedure in place for dealing with complaints about its staff and the way in which it exercises its functions.
I also take this opportunity to assure your Lordships that if a complainant is not satisfied with the commission's response, he or she will be able to take the complaint to the Parliamentary Commissioner for Administration as the commission will be a non-departmental public body.
As with Amendment No. 89, I thank noble Lords for suggesting Amendment No. 97, but I am not convinced that it would improve the protection of providers from bogus inspectors or could add anything in terms of preventing inspectors acting beyond their remit.
Turning to Amendment No. 90, I am sympathetic to the proposed change to the Bill's provision for interviewing managers of services. Indeed, there may be instances when it would be necessary to interview a manager in private—perhaps if he or she were unwilling to speak in front of the owner. Therefore, I want to take this away and give it further consideration.
On Amendments Nos. 91, 92, 93 and 94, I am sympathetic to the wish to strengthen the opportunities for residents of establishments to express their views to inspectors. Many noble Lords will have seen the recent television documentary, "Macintyre Undercover", which exposed ill-treatment of residents that had gone undetected by inspectors. In future we shall want to ensure that inspection methods are both sensitive, as I have said, and rigorous so that residents are enabled to express their views about their care in private and with the confidence that any concerns will be dealt with.
We have already commissioned work from the voluntary sector to help to improve communication between inspectors and people with learning disabilities, and to enable more service users to take an active role as lay participants in inspection.
We also intend that inspectors should actively involve relatives, friends and advocates of service users in the inspection process. Of course, staff in good homes will be, and have been, keen to enable this active flow of information. Any reluctance to help inspectors to acquire the fullest picture of what a home feels like to live in should, of course, prompt closer inspection. However, I am not convinced that the details of how those aspects of best practice can be built into

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inspection are best dealt with on the face of the Bill. They can be achieved through directions from the Secretary of State to the commission. I can assure the noble Lord that we shall give directions to the commission on those issues.
In relation to Amendment No. 95, in essence it seeks to formalise the contact between inspectors and persons present during an inspection in a way that would not be conducive to good relations between inspectors and operators of registered services. To my mind, to introduce the idea of independent representation for service users when an inspector is wanting to ask them for their views on the service being received suggests a completely different connotation from that intended. It seems to imply that the service user is making a formal statement, as if in a police interview, and needs representation to safeguard his or her interests.
That is the opposite of what this is all about. We want to enhance the resident's or patient's opportunity to speak openly and frankly. I am concerned that the amendment would have the opposite effect. Inspectors will want to gain an honest view from service users about the quality of care being provided and we cannot, and should not, want them to be inhibited from expressing their views by being prevented from speaking privately.
I return to a point I raised at the beginning. There are many ways in which skilled inspectors can put service users at ease and create informal opportunities for them to talk privately. We do not intend that the general process of gathering information should be carried out as if interviewing anyone for a job, but we want to ensure that inspectors can be firm if they consider that they are being prevented from talking privately by, for example, a manager hovering at someone's shoulder. Nor is it intended that employees, owners or managers should be grilled by inspectors. We want to ensure that staff can feel free to respond honestly to questions, which may include them being asked what induction and training they have had; how well they are supervised; whether or not they have access to the right equipment, and so on, that they need to do the job. Those are the kinds of issues that would be routinely covered on inspections.
In their turn, managers could be inhibited from talking freely about the resources that they have to meet the standards, or they may want to discuss a problem and seek advice from inspectors in private.
One could go further and say that, as it will be necessary for commission staff to inspect without notice, giving the right of representation could allow operators of registered services to hamper or even to obstruct the inspection by refusing to co-operate unless their independent representative were present.
The case is different if something untoward is discovered and an offence is suspected by the commission. In those circumstances—this may be the answer to the noble Earl, Lord Howe—the inspectors would apply a caution under the Police and Criminal Evidence Act and begin a formal interview which would
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then be recorded and may be used in evidence. But that is a different matter altogether. Of course, under those circumstances, persons cautioned have a right to remain silent, though it might harm their defence, and a right to representation. Again I say to the noble Earl that we intend inspectors to be properly trained to distinguish between those circumstances and act accordingly.
I have some anxieties in relation to Amendment No. 110. It would create a right to independent representation for any local authority employee in an inspector interview. In addition, the interviewee would then have the right to receive a written record of the interview. It is important that inspectors are able to do their job. Part of that job requires them to interview staff working for the local authority. It is important to remember the purpose of the interview. It will not usually be the case that the person being interviewed is the subject of a formal investigation. The interview will usually be part and parcel of the normal information-gathering exercise necessary for the inspector to report on the quality of care being offered. It is not likely that an employee will need independent representation to answer straightforward questions about his or her job. It would be difficult for the commission to do its job if the inspectors could not ask a member of staff of a local authority routine questions without that person being represented.
The concerns in relation to Amendment No. 96 are appreciated. The regulation and the domiciliary care process should not be limited to the head offices of domiciliary care agencies. I can assure the noble Lord that visiting service users and talking to their families and themselves will be a key feature of regulation of domiciliary care. Also, the commission will only ever undertake such visits and interviews with the consent of a service user, so there will be no need for any legal powers on the face of the Bill. The commission will be free to do that without specific enabling powers. But to ensure that the commission involves service users in the inspection of domiciliary care agencies, we intend to issue directions to the commission on that issue. We will make similar directions concerning the inspection of adoption and fostering agencies where it will be equally important to involve service users and recipients. In those cases, the commission will be required to interview a selection of the adult carers and also some of the children, where appropriate.
The answer to the noble Lord, Lord Lucas, is "no". The Bill requires certain records to be kept, but those can be inspected wherever they are. I hope that answers the noble Lord.
Lord Lucas: Perhaps I may ask a couple of supplementary questions. I may have misunderstood but I do not believe the Minister addressed the questions raised on Amendments Nos. 91 and 92. Those amendments reverse the sense of the Bill as at present drafted and I do not see how that can be

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achieved by secondary legislation. I should like to know why the Government do not feel that that is appropriate.
Lord Hunt of Kings Heath: I am glad the noble Lord intervened. I was remiss in not responding to those specific points. In fact, I am sympathetic to those arguments and would like to take them away and give them further consideration.
Lord Lucas: My second question concerns a technical point—that may be a polite way of putting it. Clause 28(3)(b) gives the inspector power to inspect and take copies of any records. Subsection 3(c) adds,
"where those records are kept by means of a computer, require the records to be produced in a form in which they can be taken away".
Either that subsection is unnecessary because the inspector has the power to take them away and presumably that means that they are in a form which can be taken away, or this is an attempt to address the problem of encryption. It is very likely that these records will be sensitive. On any modern computer system they will probably be encrypted. If we suppose that they are encrypted, then nothing in subsections 3(b) or 3(c) gives the inspector the right to have a translation of those records into a readable form of English. I do not understand what subsection 3(c) is getting at. If it is addressing encryption, should it not be amended?
Lord Hunt of Kings Heath: That is a very interesting point. The noble Lord will not be surprised if I say that I would rather reflect on that question. I shall either write to him or return to the issue on Report.
Earl Howe: Once again, we have had a useful short debate. I am grateful to the Minister for covering the ground so comprehensively. I am particularly grateful to him for saying that he will take away Amendment No. 90 to see whether there is merit in what I say.
I entirely understand that there will be strong arguments for inspectors making inspections of care homes and other establishments outside normal business hours. On reflection, I think that the wording of my amendment is slightly wide of the mark. Indeed, facing the combined fire power of the noble Baronesses, Lady Barker and Lady Pitkeathley, as well as facing the Minister, can only give me cause to reflect very carefully on the merits of that amendment.
Nevertheless, as the Minister said, there are sensitivities involved and I believe that there is a germ of an idea in that amendment which could perhaps be put into a different form. I should tell the Minister that there are two points of view on the matter. This was not an idea that came out of my own head; indeed, it was strongly suggested to me that there should be some kind of restriction on the rights of inspectors to march into a premises at any time of their choosing.
I am also a little disappointed that Amendment No. 97 did not find favour with the Minister. Its purpose was to ensure that inspectors would be obliged to produce identification under all circumstances. I am
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instinctively averse to the notion of people turning up at the front door of an establishment, demanding to be let in and not necessarily producing identification, unless someone is quick-witted enough to ask for it, before marching in. That does not seem to me to be the way that we should behave in this country and I am sorry that the Minister dismissed that point.
Amendment No. 95 refers to conduct during interviews. This all depends on what one means by "an interview". My idea of an interview is where someone takes a person aside and says, "I would like to talk to you in private about this matter". It is not a casual conversation where you pick up information, as you may do when you go round a care home and converse with someone. That is not an interview; indeed, an interview is something much more formal. Nevertheless, the information from the Minister about the provisions of the Police and Criminal Evidence Act was very helpful. Those are the sorts of circumstances where the interview becomes, shall we say, difficult and confrontational and which could lead to criminal charges. That was my chief concern in drafting the amendment in this way. I am grateful to all Members of the Committee who contributed to this debate and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 89 to 97 not moved.]
Clause 28 agreed to.
Clause 29 [Inspectors: supplementary]:
[Amendments Nos. 98 to 100 not moved.]
Clause 29 agreed to.
9.30 p.m.
Clause 30 [Arrangements which may only be made with a registered person]
Earl Howe Earl Howe moved Amendment No. 101:
Page 15, line 25, at beginning insert ("Subject to subsection (3) below,").
The noble Earl said: In moving Amendment No. 101 I wish to speak also to Amendment No. 105. This is a simple issue. Clause 30 states that local authorities and NHS bodies who wish to delegate the provision of home care to an agency may do so only if the agency is a registered domiciliary care agency. I do not in the least disagree with that as a generality. However, I would not wish it to mean that individuals who leave hospital or a nursing home and then avail themselves of the direct payments system to arrange their own care at home should be prevented from doing so. The direct payments system has been a tremendous success, particularly for younger people requiring care at home. I hope that the Minister will be able to provide some reassurance. I beg to move.
Lord Clement-Jones: I wish to speak to Amendments Nos. 102 and 103. My noble friend Lady Barker will speak to Amendment No. 104. I believe that Clause 30 is one of the measures in the Bill that causes great bafflement. We have been baffled on certain points but the provisions of Clause 30 in particular give rise to the

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question—as I read the clause—that the only domiciliary care agencies that require to be registered are those which discharge functions on behalf of a local authority or a National Health Service body.
Amendments Nos. 102 and 103 are designed to include private establishments in the measure. It seems rather extraordinary, if, in a sense, they are subcontracting from a body which is not a public body, that domiciliary care establishments are not required to be registered. It seems to me that the boot should be on the other foot. If anything, there seems a greater requirement for registration in those cases than where bodies subcontract from an independent clinic or a private hospital.
I hope that the Minister will consider this issue carefully. I do not know the basis on which the clause has been formulated. I do not know whether some issue of resources has been taken into account, or what the motives are behind it. However, it seems rather peculiar and rather unnecessarily limited. I look forward to the Minister's response.
Baroness Barker: Amendment No. 104 needs to be considered in the context of Amendments Nos. 102 and 103. As my noble friend Lord Clement-Jones said, we support and would wish to see the extension of measures which will guarantee the quality of as many domiciliary care services as possible. The Committee may not need to be reminded that perhaps the greatest uncertainty among older people is experienced by those who arrange their own domiciliary care and who do not go through the route of the NHS or local authority bodies. That constitutes a huge problem.
Having said that, Amendment No. 104 may appear rather strange. The objective is to ask the Minister what will happen to existing, workable arrangements under the direct payments scheme with providers who are not, and will not be, registered. I do not want anyone to misinterpret this matter. Anyone who works with older people will realise that the quality and the safety of domiciliary care providers is perhaps one of the biggest issues of concern to older people who are becoming slightly frail and who live in their own homes. This is a probing amendment in relation to the direct payments scheme as it works at present.
Lord Hunt of Kings Heath: I am glad to have the opportunity to discuss with the Committee how the direct payments scheme fits into these arrangements. I believe that all Members of the Committee support the direct payment concept. The Committee will know that we are extending eligibility for direct payments to a greater range of people, including older people.
Let me begin by reassuring the Committee that Clause 30 applies only to local authorities and NHS bodies; it does not apply to persons purchasing their own domiciliary care, even if they are using direct payments to do so.
I should like to take this opportunity to reinforce what I said on Monday about our attitude towards the regulation of domiciliary care agencies. Let me make it
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absolutely clear that we intend that all domiciliary care agencies will eventually be required to be registered, but not from day one of the commission's operation. We believe that it is better to take a more gradual approach because we do not want to overburden the commission when it starts its work. So, with regard to the registration of domiciliary care agencies, the question is "when" rather than "if".
I should also take the opportunity to make it clear that the requirement to register will not extend to arrangements between individuals for the provision of domiciliary care. So if people in receipt of direct payments want to use them to pay another individual, for instance, to come to their house, to get them up in the morning and to wash and dress them, that would never be covered by the provisions in the Bill. Clause 4(3) defines a "domiciliary care agency" as,
"an undertaking which consists of or includes arranging the provision of personal care in their own homes",
for the categories of persons listed. I can assure the Committee that the word "undertaking" here could never be construed as applying to an individual.
With regard to the amendment relating to independent healthcare bodies, it is unlikely that independent healthcare providers will be purchasing domiciliary care services on behalf of their patients in the way that local authorities do on a routine basis. Certainly on that ground I see no necessity to extend Clause 30 to cover independent hospitals and clinics.
Lord Clement-Jones: I thank the Minister for his reply. We shall obviously consider very carefully what he said. In a sense, it is a matter of judgment as to whether there is a need to tighten up the clause. I fully accept the commitment he made that eventually all domiciliary care agencies will be registered, but I am worried about the mechanism by which sub-contracting will be carried out in all cases if it was thought to be important at some stage in the future—for instance, if a mixed economy became rather more prevalent in the healthcare sector. It seems to me that there is not the necessary mechanism in the clause—and, under the Bill, I doubt whether it could be done by regulation—to ensure that the relationship with an independent body is made utterly clear in the way that the relationship between the domiciliary care agency and the local authority and the NHS body is made clear.
If it was thought desirable, for instance, to ensure that a domiciliary agency is registered if it sub-contracts from an independent hospital, it is not clear how that will come about and how, under the Bill, it can be enforced. I am not sure whether there is a legal entitlement to do so. That is why consumer bodies which have spoken to me about this matter are keen that the clause should be widened in the way we have suggested. I am not yet convinced by the Minister. Perhaps he can give some further clarification.
Lord Hunt of Kings Heath: I am not sure that I understand the noble Lord. Perhaps he can explain a little more what he means by "sub-contracting".
Lord Clement-Jones: We are talking about the discharge of responsibility for a relevant function.

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That is what I mean by "sub-contracting". It reflects the terms of the clause, which are wide in respect of an NHS body. But it seems to me that there is a gap; why are there not circumstances in which an independent hospital should not be treated in an identical way? It may be a part of their insurance policy that they are entitled to that form of home care and the domiciliary care agency is undertaking it as a result of that insurance policy. In those circumstances it seems that they need safeguards. While I fully accept that the Minister said that it is intended that domiciliary care agencies should be registered in the future, I am not sure how that will bite if there is a form of sub-contracting along the lines I have described.
Lord Hunt of Kings Heath: It may be that I am being dense here. As regards Clause 30, my understanding is that we are looking at a situation that concerns with whom a local authority or an NHS body may arrange for a relevant function to be discharged. I am afraid that the noble Lord has lost me in relation to where another body to which such a relevant function can be sub-contracted comes into this.
Lord Clement-Jones: The Minister was doubtful about whether there were many circumstances in which independent hospitals could arrange for the discharge of a relevant function. However, assuming that he was prepared to accept that there are circumstances in which they do so and they could do so, why does this clause not also apply to them? I do not believe that the Minister has fully answered that question.
Lord Hunt of Kings Heath: As I explained, in relation to domiciliary care agencies, we have decided to take a gradualist approach to their regulation. The gradualist approach requires those agencies under contract with a local authority or health authority to be regulated. We then stated that, over time, we will gradually extend that regulation to all domiciliary care agencies.
Lord Clement-Jones: How would that happen?
Lord Hunt of Kings Heath: It will happen through the provisions contained in the Bill which allow us to do that.
Lord Clement-Jones: We could spend many happy hours playing tennis on this one. I shall reflect on what the Minister said and no doubt he will do the same on my comments. I shall now leave it to the noble Earl, Lord Howe, to finish his amendment.
Earl Howe: No doubt I shall finish with some relief to all noble Lords. As regards my own amendments, I am most grateful to the Minister for his clarification on the issue of direct payments. He has satisfied a great many people who were uncertain and doubtful about the effects of the Bill on the direct payment scheme. I am delighted to discover that there will be no effects whatsoever. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 102 to 105 not moved.]
Clause 30 agreed to.
Clauses 31 to 33 agreed to.
Clause 34 [Provision of copies of registers]:
Lord Laming Lord Laming moved Amendment No. 106:
Page 16, line 34, at end insert (", including circumstances in which the interested party is in receipt of or has had an application for a direct payment").
The noble Lord said: Before I move Amendment No. 106, tabled in the name of my noble friend Lord Rix, I should draw the attention of the Committee to a misprint on the Marshalled List. The amendment should read:
"(", including circumstances in which the interested party is in receipt of or has made an application for a direct payment')".
In moving Amendment No. 106, I should like to speak also to Amendments Nos. 126 and 128.
These amendments are designed to ensure that users of direct payments are in a position to furnish themselves with high quality information as regards the registration and inspection history of services without financial cost. It is crucial that people who have been awarded public money to support their community care needs are able to make informed decisions on how best to use those resources. Can the Minister confirm that the power to charge for receipt of information will not apply to individual service users? I beg to move.
9.45 p.m.
Lord Addington: My name is attached to Amendment No. 127. It is very straightforward and a comparatively uncomplicated probing amendment. All it suggests is that in talking about registration we are speaking about information. It suggests that the most up-to-date technology should be used. I shall not use the word "modern" because what is modern today is old-fashioned and out of date tomorrow. That will be quicker and probably cheaper. I suggest that that should be allowed by the Bill. I hope that the Minister will confirm that.
Lord Hunt of Kings Heath: I have great sympathy with all the amendments concerned with ensuring that service users can access information free of charge and in the appropriate form. I shall deal first with Amendment Nos. 106, 126 and 128 concerning recipients of direct payments. Under the current regulatory regime, local and health authorities which carry out regulatory functions are already required to provide copies of entries in their registers on payment of such reasonable fee as they may determine.
With the implementation of this Bill, the national care standards commission, or, in Wales, the National Assembly, will similarly be able to require the payment of a reasonable fee for copies of, or extracts from, its registers. Parallel provision is made for the councils to determine the fee for copies of their codes or registers.

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However, the commission, the Assembly and the councils will all provide information free of charge if they consider that appropriate. I can assure Members of the Committee that it would not be normal practice for a fee to be charged for the provision of such information.
Indeed, it is intended that the commission and the councils should supply information from their registers and about any codes freely to all members of the public and not just to recipients of direct payments. In fact, it is only on rare occasions that the commission, or indeed the councils, would want to make a charge for information. If a business asked for a complete copy of the directory giving details of every care home in the country because it wanted to carry out business mailings to them, I believe that it would be reasonable for the commission to make a charge in order to cover the costs. But if the request for information was from an individual who simply wanted to know about care homes in an area, that information should be made available free of charge. Regulations made under Clause 34 will make that clear. Similarly, we intend to give the councils appropriate directions about when charges for their documents may be levied.
Turning to Amendment No. 127, I am rather glad that the noble Lord, Lord Lucas, is not here to ask me more challenging questions about modern information systems. Of course, we want the councils to be able to give as much information as possible. We certainly intend that the registers will be available on the Internet as well as in the form of hard copy. However, the noble Lord's amendment has prompted us to consider whether such a provision is allowed for in the Bill as it stands. I should like to give that matter further consideration.
Lord Laming: I am grateful to the Minister for that very helpful reply. In the light of what he has said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 34 agreed to.
Clause 35 [Service of documents]:
[Amendment No.107 not moved.]
Clause 35 agreed to.
Clauses 36 to 39 agreed to.
[Amendment No.108 not moved.]
Clause 40 agreed to.
Clause 41 [Inspection by registration authority of adoption and fostering services]
[Amendments Nos. 109 and 110 not moved.]
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 111:
Page 19, line 2, at end insert ("and section 42").
On Question, amendment agreed to.
Clause 41, as amended, agreed to.
Clause 42 [Inspections: supplementary]:
[Amendments Nos. 112 to 114 not moved.]
Clause 42 agreed to.
Clause 43 agreed to.
Clause 44 [Regulation of the exercise of relevant fostering functions]
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 115:
Page 20, line 36, leave out ("be employed by") and insert ("work for").
On Question, amendment agreed to.
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendments Nos. 116 to 118:
Page 20, line 42. leave out ("and types of staff to be employed by") and insert ("of persons, or persons of any particular type, working for").
Page 21, line 1, leave out ("the staff') and insert ("such persons").
Page 21, line 3, leave out ("the employment of persons by") and insert ("persons from working for").
On Question, amendments agreed to.
Clause 44, as amended, agreed to.
Clauses 45 to 49 agreed to.
Clause 50 [Care Councils]
Lord Laming Lord Laming moved Amendment No. 119:
Page 21, line 34, leave out paragraphs (a) and (b) and insert ("a body corporate to be known as the General Social Care Council for the United Kingdom.").
The noble Lord said: In moving Amendment No. 119, I hope the Committee agrees that Clause 50 is a very important provision. The general social care council will have a number of important functions, including the approval of courses and the award of qualifications in the social care field. To a large measure, that will influence the attitudes of social care staff and the quality of their work with vulnerable people. The council will also maintain a register of approved workers, handle issues of professional misconduct and maintain a list of those persons deemed unsuitable to work with vulnerable people.
However, the Bill does not establish a council but two separate bodies, one for England and one for Wales. Each will be organised differently. No mention is made of Scotland or Northern Ireland. We have a United Kingdom Central Council for Nursing and a British Medical Association. This clause gives the impression that for social care staff the United Kingdom does not exist. Already questions are raised as to whether the existing social care qualifications meet European standards. Are we to settle for up to four different councils which are separately and differently organised? Even worse, the Bill provides no machinery by which councils can exchange vitally important information or act in concert.
I well understand the implications of devolution, but surely it is possible for the Government to find a solution whereby, in a matter of such importance and sensitivity, it is possible to have a United Kingdom arrangement for the regulation, registration and deregistration of social care staff. It is no use noble Lords from time to time, understandably, expressing

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horror when a member of staff who behaves unacceptably in one part of the country leaves his job only to be employed elsewhere and, at the same time, failing to use this opportunity to create one United Kingdom general social care council. I beg to move.
Baroness Pitkeathley: In rising to speak I declare an interest as chair of the General Social Care Council Advisory Group. In that capacity, I agree with the noble Lord that this is a vitally important part of the Bill. I understand entirely the concerns that lie behind the amendment. In a different scenario I might have been disposed to agree with him. The noble Lord is aware that I try to agree with him when I can. However, we must understand that devolution is a reality and that social care is a devolved function. Therefore, it is not possible to agree to the amendment. But I assure the noble Lord that all members of the General Social Care Council Advisory Group feel as strongly as he does about this matter and are determined to ensure that as far as that group is concerned there is a common approach, understanding and set of standards among the councils to be established. The guiding principle is the protection of vulnerable adults and the right of service users to a standard that applies across the United Kingdom. On that, I am sure we can all agree.
Lord Clement-Jones: That was extremely useful clarification from the noble Baroness, Lady Pitkeathley. Like the noble Baroness, I have some sympathy with the intent underlying the noble Lord's amendment. However, clearly it is a devolved matter. Therefore we are referring to maximum co-operation and commonality of' approach. In a sense we need to live with the devolved system and make it work in the best way we possibly can for those affected by the staffing of the establishments and agencies which are the subject matter of the Bill. When the Minister replies, can he give us an outline of the expected composition of the new GSSC? Can he also state the intended composition of the equivalent body in Wales?
It will be important to take account of the health aspects of care even though that may not be central to the GSSC's remit. Can the Minister confirm that ensuring a balance—I know that that is one of his favourite words—of members of the council will include medical representation?
Baroness Park of Monmouth: I listened to the debate with great interest. It is highly complicated and specialised and I hesitate to intervene. Can we be sure that there would be an absolute duty on the central council to pass on details of someone who behaves in a thoroughly unprofessional and undesirable way in one part of the devolved kingdom to the other bodies? Unless such a provision is in the Bill, it will be difficult to dislodge such a person when he moves from one place to the next. I recognise that in a sense it condemns an individual twice but it seems of little use to have the co-ordination proposed if such practical detail is not included in the Bill.
Baroness Barker: It is a most helpful debate. It is important to recognise that the problem identified by the noble Lord, Lord Laming, has existed for a considerable time. Social work departments in Scotland already come under a different regime from their counterparts in England.
I speak as someone who has spent considerable time in Scotland. It is of equal concern to the Scottish bodies to know that people registered in England who cause offence do not escape across the border. The noble Baroness's point about the need for co-operation between the different bodies responsible for registration north and south of border is valid and under the new devolution procedures it will not be difficult to discuss the issue with our counterparts in Scotland.
Lord Hunt of Kings Heath: It has been an extremely interesting debate. Having listened to the noble Lord, Lord Laming, I feel that we missed his presence during the many happy days we spent debating the Scotland Bill.
The decisions to have separate councils in England and Wales were announced in Parliament two years ago. It is the intention to have a separate regulatory body in Scotland. Scottish Ministers have recently issued a consultation document, Regulating Care in Social Work Services, which contains their legislative proposals for a Scottish social services council. I also understand that Ministers in Northern Ireland are considering their position on these matters.
That said, I entirely accept the spirit behind the noble Lord's amendment. It would be very unfortunate if, contrary to the interests of service users and the public, the regulation of social care workers were subject to significant and unnecessary differences between the four countries.
The logic of devolution is that all four councils can properly adopt different approaches. However, all the countries are committed to alignment where that is possible. The commitment has already been demonstrated; for example, the four UK countries have already commissioned the initial drafting of the codes of conduct for social workers as a joint exercise. That is an excellent foundation on which to go forward.
In due course, we intend to bring forward an amendment to the Bill which will place a duty on the new English and Welsh councils to collaborate. If possible, we will provide for them similarly to collaborate with any future regulatory bodies which may be created for Scotland and Northern Ireland.
In the consultation document, Regulating Care in Social Work Services, Scottish Ministers have said that the Scottish social services council will have a reciprocal duty placed on it. The extent of this collaboration will be to a degree for the councils themselves to decide, but we would expect them to consider in particular, first, collaboration on the standards of conduct and practice; secondly, consistency in the standards of education and training

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for occupational groups leading to registration; and, thirdly, knowledge about individual registrants who have been removed or suspended from a register.
In relation to the composition of the membership, the intention would be a lay chair with a balanced membership of service users, carers and the public. There will also be employers, professional associations, trade unions and educational interests with a membership of 15 to 20. I hope I have demonstrated that we are alive to any potential problems. The preliminary discussions between the four countries seem most promising in terms of ensuring the necessary co-operation.
Lord Clement-Jones: Can the Minister say whether there will be medical representation on the council?
Lord Hunt of Kings Heath: I do not want to go further at present. That matter needs to be considered, but from the broad range of interests involved one can see many potential backgrounds. However, I shall take into account the noble Lord's views.
Baroness Pitkeathley: It may be helpful if I report on the recent discussions of the Social Care Council Advisory Group, in which the issue was aired with great interest. There was a strong feeling that the council should not be aiming for representation, since it is impossible to have representation on all the groups. Rather, it should aim for an organisation which would work and in which the interests of all the user groups would be heard rather than represented.
Lord Hunt of Kings Heath: That is most helpful. It was unfortunate if I used the word "representational", particularly in view of my comments in relation to an earlier amendment. Clearly, at the heart one needs people with common sense. This is one of the most exciting parts of the Bill. It will have an enormous influence on helping to raise the status and professionalism of an extremely important group of people in society. Clearly, people of the highest quality are needed on the council. It is equally important that they must come from a broad range of backgrounds, but when they meet as a council they will meet as one corporate body.
Lord Laming: I am extremely grateful to the Minister for that helpful and carefully considered response. It is a source of great comfort to me that the noble Baroness, Lady Pitkeathley, is chairing the advisory group. I had hoped—perhaps rather naïvely—that it might have been possible to work towards a situation where the four countries of the United Kingdom had proper representation on a council or to work towards properly established regulatory machinery. I accept what the Minister said. The noble Baroness, Lady Barker, is quite right in that we have already experienced difficulties in the past because of the separate arrangements in Scotland. The motivation behind the amendment is simply that we do
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not replicate those difficulties and that we try to avoid exactly the kind of problems to which the noble Baroness, Lady Park, referred.
I still hope that, following the Minister's extremely helpful response, it might be possible to go a touch further, but in the light of what he and the noble Baroness, Lady Pitkeathley, have said, I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Howe Earl Howe moved Amendment No. 120:
Page 22, line 14, at end insert—
("who shall ensure, in particular, that each Council has access to information relevant to the discharge of its functions").
The noble Earl said: This is a straightforward amendment, the point of which is to ensure that full and up-to-date information is furnished to each care council. The background to that is, as I understand it, that the CCETSW has experienced a certain amount of difficulty over the past few years and has not felt itself to be—shall we say—as well briefed as it would like to ensure that training is kept up to date. There is a need to ensure, for example, that each council has access to information about the condition of the various services, about new and important developments which may affect those services and about anything that may affect staff numbers. That is the context in which I have tabled the amendment. I hope that the Minister will understand my purpose. I beg to move.
Baroness Pitkeathley: I again declare an interest: I have every sympathy also with the amendment moved by the noble Earl. Essential information is, of course, vital to the functioning of the councils. I believe that the councils are so welcome and have been so long awaited that the spirit is very willing to ensure that that exchange of information and provision of information will take place.
Lord Hunt of Kings Heath: I am not convinced that the amendment is required but I accept the point that the noble Earl has raised. Ministers are responsible for the way in which the councils carry out their functions and are answerable for them to Parliament and to the Welsh Assembly. Therefore, they will want to ensure as a matter of course that the councils will have full access to whatever information is necessary. As I have said before, it is an extremely important part of the Bill. It would be in the interests and desires of Ministers to ensure that the body had all that it required in the way of information to carry out its job effectively.
Earl Howe: I am in part reassured by that response. I should like to believe that that is the way that it will work. I am sure that at the beginning, everyone will start out with the best of intentions. My fear is that, somewhere along the road, the system may not work as it should. I suppose that if mechanisms are put in place at the outset they will continue. But it is something to which we must be alert. I am comforted by the strength of the Minister's assurance on the issue

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and before I withdraw the amendment, as I intend to do, I see that the Minister would like to add one more comment.
Lord Hunt of Kings Heath: I am sorry to delay the proceedings at such a late hour. However, it is important to remember that this will be a non-departmental public body. It will be subject to review and, therefore, one would expect there to be the closest dialogue between Ministers and the council. It will be possible for problems to be ironed out and for discussions about the future direction of policy to take place. I believe that those will be the circumstances in which Ministers will be able to have confidence in the council and, as a result, will, of course, want the council to have all the information that it requires.
Earl Howe: I am grateful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 50 agreed to.
Clause 51 [Interpretation]:
[Amendment No. 121 not moved.]
Lord Laming Lord Laming moved Amendment No. 122:
Page 22, line 40, at end insert ("or otherwise in connection with the provision of day services").
The noble Lord said: I am delighted that day centre workers will be included under the jurisdiction of the general social care council. Undoubtedly that will go some way towards driving up quality within that sector of work. However, the popular image of day care for someone with a learning disability is five days a week from 10 a.m. to 4 p.m. spent in a day centre. Developments over recent years have meant that the reality is quite different. Now there is a wide range of activities for which the day centre is sometimes the base, but often it is not. Those activities might include voluntary work, the use of local cultural or leisure resources, including the local library, environmental projects, such as collecting newspapers for recycling, and writing and publishing newspapers. The amendment seeks to bring staff who work in all those different settings within the scope of the legislation. Therefore, it is the quality of the support staff that is paramount rather than the location of the resource.
We have already touched on the definition of day services. The Minister was apprehensive of the wider definition. For my part, I cannot see the logic of protecting group activities in the day centres but ignoring one-to-one activities by staff outside them.
Incidentally, reference to day centres in Clause 51 seems to argue for a definition of day services at the beginning of the Bill, even if the day services are not to be included initially in the remit of inspection and registration. I beg to move.
Lord Hunt of Kings Heath: I believe that the noble Lord has raised a most important matter in wanting to ensure that we will have the power to bring into the framework people who are not at present under the definition of "social care worker", if we believe that
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that is necessary. Therefore, we propose to bring forward a government amendment to allow for the definition of "social care worker" to be extended where Ministers see it as an additional safeguard for the public.
Lord Laming: I am most grateful to the Minister for that reply. It gives me enormous pleasure to seek to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 51 agreed to.
Clause 52 [The register]:
[Amendment No. 123 had been withdrawn from the Marshalled List.]
Baroness Barker Baroness Barker moved Amendment No. 123A:
Page 23, line 12, at end insert—
("(5) Each council shall publish, monitor and update a timetable for the training and registration of each and all types of social care workers.").
The noble Baroness said: Late as it is, I should like to spend a little time discussing this amendment, which, I believe, is probably one of the most important. We have talked a great deal over the past few days about the length of time that it will take to get the various commissions up and running. We have talked about the amount of time that it will take to set the minimum standards and to implement them.
This particular clause deals with staff. As your Lordships know, in any social care activity staff and the quality of staff are perhaps the critical factors which determine the quality of care. In the documents that we have so far produced, it seems likely that the training and registration of staff will start at the higher levels. However, the amendment seeks to draw attention to the fact that the most important levels of staff are the lowest ones—those in perhaps the most menial and manual jobs. It is in those kinds of jobs and areas where instances of abuse most frequently take place.
This amendment seeks to discover whether it is possible to start the training at that lower level of activity which is crucially important. We accept that the training and registering of 1.3 million staff will take an extremely long time. It will also have a tremendous effect on the whole care economy. For example, many voluntary organisations which are providers of care are extremely worried about the sudden imposition of the need to train staff. As we have said on many occasions previously, the training of staff has significant resource implications.
Therefore, we are asking for timetables to be set. We are seeking to ensure that the implementation of the training requirement does not lead to a dramatic disruption of services. It is entirely possible that the sudden imposition of a need to train vast numbers of staff may threaten the viability not only of care home providers but of all sorts of providers of social care. I am sure that that is not the Government's intention.
It is extremely important that we look at where there is abuse and seek to tackle that as a priority. Action on Elder Abuse runs a telephone helpline and, of the instances of abuse in care homes which are reported to it, the overwhelming majority are perpetrated by lower grade care staff. Interestingly enough, a very high percentage—from recollection, I believe it is about 25 per cent—of the instances of abuse in care homes is perpetrated by male care attendants. When one considers that the number of male care attendants in care homes is very small—because the vast majority are women—that is a significant factor. Organisations such as Action on Elder Abuse are telling us that that is the priority area and we should listen to what they say.
We have all said many times that we agree about the importance of training. We have also mentioned that having fully trained staff as soon as possible is important. But the whole process must be managed and manageable for providers of care. With those views in mind, I beg to move the amendment.
Baroness Pitkeathley: I declare an interest as a member of the General Social Care Council Advisory Group. The noble Baroness articulates very eloquently the anxieties of the whole field in regard to this matter. Indeed, the Social Care Advisory Group is no exception to that.
It seems to me that the anxieties stem from two sources. First, we have waited so long for this council and we are all keen and anxious that it should now move on and do its work. Secondly, we are all very anxious that there should not be a social work registration but a social care registration. And so there is no dispute about the principles of what the noble Baroness said.
However, there are practicalities involved in this. It is rather too early in the process to be thinking about the timetable. Even the shadow social care council does not yet exist. We are at a very early stage. I hope that we shall all take on board the noble Baroness's views about a timetable but I suggest that it is a little early to be thinking about that matter. However, we should take the principles very seriously and think about that a little further down the line.
Lord Hunt of Kings Heath: I thank the noble Baroness, Lady Barker, for raising this matter. While I do not accept that the amendment is the right way forward, I share her sentiments concerning the need for this process to be manageable.
We all wish to see far greater numbers of the social care workforce trained and qualified appropriately and, in due course, registered with the councils. We see that as a crucial driver to the highest standards of conduct, practice and care that we wish to see.
We have said that we expect that professional social workers will be registered probably early in the life of the council, perhaps by April 2002, given that the council will be up and running by April 2001. Almost all social workers hold a professional qualification.
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With regard to the point raised by my noble friend Lady Pitkeathley, I want to stress that the councils will be responsible for all staff, not just for professional staff, whether they are in the private, voluntary or statutory sector. So we are therefore working towards a registration of residential child care workers as a priority group at the same time as social workers and persons in charge of care homes have been identified as the next priority group for registration. Work to identify the appropriate qualifications for this class of worker is already in hand.
Clearly, we cannot stop there. As a government, we are committed to raising the qualification levels in the wider workforce to much higher levels. That, in turn, will open the way to an extension of registration. To take the words of the noble Baroness, Lady Barker, we need to be realistic. I think it would be difficult for the council to draw up meaningful timetables for training for which it would then be held to account, given the number of other players. In England we have charged the training organisation for personal social services in England with the responsibility for producing a training strategy in consultation with all employment interests in the field. We expect the councils and the wider employment interest to work closely together to discharge their own responsibilities to achieve higher qualification levels.
I say to the noble Baroness, Lady Barker, that I do not think that there is anything between us in wishing not to see sudden imposition, wishing, as she said, to see the process managed and manageable, but overall seeing the process as a crucial way to raise standards in the whole social care field. While I do not wish to accept her amendment, I do very much accept the thrust of her arguments.
Baroness Barker: I wish to thank the noble Baroness, Lady Pitkeathley, for what she said. It is very reassuring to know that there is very little between us in this matter. In withdrawing the amendment, I do so in the knowledge that at this time, with many councils, many providers, looking not only to the national framework but also in the work they are currently implementing—modernising social services—there is a general move towards increasing quality of services. That is beginning to have an effect at local level. In withdrawing the amendment, I accept what the Minister says about needing to identify particular groups and to begin training in their functions. I still reiterate that untrained care staff have to be the next priority group for this kind of measure. I believe it would be one of the single most important ways of stopping abuse. I have been pleased to hear what noble Lords have said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 52 agreed to.
Clause 53 agreed to.
Clause 54 [Grant or refusal of registration]:
Lord Addington Lord Addington moved Amendment No. 124:
Page 23, line 20, leave out paragraph (b).
The noble Lord said: The amendment removes the line from Clause 54 which states:
"(b) is in good health, both physically and mentally; and".
I should think that that line directly contradicts the Disability Discrimination Act. The DDA gives a defence against employing someone who is inappropriate for the job. The defence is reasonableness. I sat on this Bench for more hours than I care to remember going through that Bill and hearing the defence of reasonableness being put forward time and again so that people who were not capable of doing a job did not have to be appointed.
What is in the amendment of the noble Earl, Lord Howe, is much better than the Government's position but I feel that the words may be irrelevant if the DDA is applied. If the rest of Clause 54 is acted on, the training is good and people can acquire the skills, they will, by definition, have proved that they are capable of taking on the job. If we carry on with what the Government propose, we shall end up in the courts very soon. I suggest that the Government have slipped up here. I suggest that we remove paragraph (b) or include an amendment very similar to the amendment standing in the name of the noble Earl, Lord Howe. At the moment, I think that what is proposed breaks existing law.
Earl Howe: I support entirely what the noble Lord, Lord Addington, has just said. I was astonished to read the wording of Clause 54(1)(b). It begs all kinds of questions. The most significant point about it is its ostensible conflict with the Disability Discrimination Act. We really must ask what the provision is supposed to mean. What criteria will be used to assess someone's state of health and what will constitute a failure of this test? To me, someone's state of health is of significance in this context only if it is such as to make him or her inherently unsuitable to do the job of social care worker and therefore to be entered on the professional register. But (hat is not what the Bill says. I really do think that the wording should be looked at again if it is not to cause all kinds of difficulty when the council begins to set about the task of processing applications.
Lord Hunt of Kings Heath: I am very sympathetic to the spirit of the amendments and can immediately reassure the Committee that I shall be bringing forward in due course a government amendment designed to clarify the extent of the councils' concerns about the health of applicants for registration. I want to make it clear that it is not our intention that the councils should be involved in making casual or arbitrary judgments about an individual's health or lifestyle when considering him or her for registration. The workforce must reflect the nature of society at large. We will expect the councils to take a balanced and reasonable approach, which would rule out from registration considerations of such issues as ageism, smoking or other unjustified bars.
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However, I believe that for the service user the health of a social care worker is as much a quality issue as is the holding of an appropriate qualification. The process of making health checks is a common part of regulatory bodies' registration procedures. We are not breaking new ground by introducing them for the new councils. Perhaps I may again make it clear that it is not our intention to disbar people from registration simply because they are disabled or have mental health problems. But because this is a quality issue, we want the councils to be able to ensure that all applicants for registration, whether they are able bodied or disabled, are safe and competent to practise for the type of social care work for which they are applying to be registered.
The amendments also give me an opportunity to clarify the impact of this approach in the light of the Disability Discrimination Act. The noble Lord, Lord Addington, suggested that the proposed good health condition for registration contravenes that Act. We do not accept that that is so. The DDA applies to discrimination in respect of services and facilities provided to the public. It is possible, but unlikely, that a council's decision as to whether an applicant satisfies the registration conditions could be regarded as such a service or facility. Even if it is, the discrimination will not, in our view, be unlawful if it is necessary for the council to discriminate in order to perform its statutory registration function or to avoid endangering the health or safety of any person.
However, in the light of the amendment and the concerns that have been expressed in this area, we do think that our policy intentions should be more clearly expressed. I reiterate that there is no intention to discriminate against disabled people. Therefore, I shall consider the matter further and propose that we bring forward a government amendment at the earliest possible opportunity.
10.30 p.m.
Lord Addington: I believe that is called back-pedalling under fire with considerable good grace. That is something that I hope the Government will take on board generally. I believe that someone was trying to put on belt and braces and realising that they were putting them on the wrong suit. It went very badly wrong; at least it gave a very bad impression.
There are genuine worries in this area. I cannot help but feel that the Government should take on board at least the fact that, when all these other regulations are brought in, the process of proper training courses and individual job interviews—if you are required to use physical exertion, that will come into the equation—would stop the inappropriate person getting through. If this system has any validity or any teeth at all, those things are already there.
I hope that the Government take this on board. I appreciate what the Minister has said. It is as good an answer as we could reasonably expect. I hope that the Minister will take this back and tell his colleagues in his department and others that this type of approach must not happen again. Apart from anything else, it simply wastes our time.
Lord Hunt of Kings Heath: In response to the noble Lord, he has raised an important issue. As I have said, I am happy to take this amendment back. I can assure him that there is no question that this was intended to discriminate against disabled people. Indeed, it would be reprehensible if there were any such intention.
The more general points that he makes are, of course, matters that ought to be considered within a government-wide approach. I believe that the Disability Discrimination Act has been one of the most positive and progressive pieces of legislation that we have seen brought forward in recent years. I believe that it will have a most positive effect on the lives of many disabled people in this country. When one considers the enormous influence that the social care council can have on the lives of so many people, it is important that the criteria under which it operates are as sensitive to the needs of disabled people as can be. In taking this away and looking at what amendments we shall bring forward, we shall be mindful of the kinds of arguments put forward by the noble Lord.
Lord Addington: It is nice to know that we can produce a position that leads to a break-out of cross-party support. It is nice to know that the Government are capable of realising that even the past government got it right once in a while. True, they did so with a bit of prodding, but they did get it right—at least "righter".
Having heard what the noble Lord has said, this is one of those situations where we must pay attention to what has been said and make sure that we maintain the same degree of consensus. We must ensure that we can carry on this pressure so that we have an equal degree of consensus at all future dates when we deal with this problem. If we set something rolling this fast now, we shall ensure that we do not have any such matter in future debates, as the noble Lord has already said. I invite the noble Earl to get to his feet to show that the Opposition will guarantee that they will give us support.
Baroness Pitkeathley: Before the noble Earl rises, perhaps I may say how delighted I am with the Minister's response to the debate. How we see the Disability Discrimination Act in practice is very interesting. I know that all those who are concerned with how the general social care council will work feel that the way in which people with disabilities fit into it is tremendously important. I am grateful to the noble Lord, Lord Addington, for bringing that to our attention. We have to be constantly aware of how people discharge their jobs, without judging them in a way which is discriminatory. I am sure that we are all happy with the outcome of the discussion thus far this evening.
Baroness Barker: I do not wish to delay my noble friend Lord Addington being able to hear the noble Earl, Lord Howe, but perhaps I can make a serious point to the Minister. We are talking about the physical wellbeing of staff. It is important to remember that in this type of work there are already in existence
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quite a number of areas of policy and best practice which have a direct bearing on care homes. There are a great many standard procedures for control of infection, for disposal of waste and so forth, and also in relation to the issues of respiratory infections. Most staff are aware of the standards required when around people with vulnerable immune systems, such as not turning up for work when carrying a degree of infection.
Also, in work relating to lifting and handling, there is already a widely established good practice. For example, people have to be physically fit in order to carry out certain types of work; so some of the fears expressed by my noble friend Lord Addington could be dealt with by simply deleting this provision completely. I hope that that is one of the options the Minister will take into account when he considers his response.
Lord Hunt of Kings Heath: Perhaps I can answer the noble Baroness in that regard. I have said that between now and Report stage we will want to consider in full the best approach to this matter. Indeed, if the noble Baroness has examples of good practice that we can consider I shall be happy to meet her and examine them so that we can explore some of these issues.
The noble Baroness raised the issue of lifting. Coming from a background in the health service one of my great concerns over the years has been the number of injuries to nurses and other healthcare workers which has arisen from the lifting of patients. One of my concerns is that we have known for many years what good practice is in relation to how a patient should be lifted and the equipment that should be available. But despite that, many people are still being injured. It represents a major challenge for those in the health field. I am interested in the remarks of the noble Baroness that this is also an issue in the social care field.
We owe a lot to staff working in those fields and we must make sure that we have strong occupational health programmes and give as much training and support as possible, ensuring that they can lift in the most effective and safe way possible.
Earl Howe: Perhaps I may put in one further word. When I read the amendment of the noble Lord, Lord Addington, I took it to be, in essence, a probing amendment. I now wonder whether there is not merit in the suggestion made by the noble Baroness, Lady Barker, that the Government's best course of action would be to omit Clause 54(1)(b) altogether. I am not sure what led the Government to put this subsection into Clause 54 in the first place. I shall re-read what the Minister said, but there is much to be said for considering the omission of that requirement altogether. The arguments we heard from the noble Lord, Lord Addington, were extremely persuasive.
Lord Clement-Jones: Before the Minister replies, perhaps the noble Baroness, Lady Pitkeathley, has a perspective on that point.
Baroness Pitkeaithley: I thank the noble Lord, Lord Clement-Jones, but I think that I have had as much perspective as is needed tonight.
Lord Addington: Having actually achieved that rare thing of going from a point of being prepared to go into battle to discovering that everyone is actually on your side and there is no one left to fight, I should like to thank all those who have supported my argument. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 125 not moved.]
Clause 54 agreed to.
Clauses 55 to 57 agreed to.
Clause 58 [Codes of Practice]:
[Amendment No. 126 not moved.]
Clause 58 agreed to.
Clauses 59 to 64 agreed to.
Clause 65 [Publication etc. of register]:
[Amendments Nos. 127 and 128 not moved.]
Clause 65 agreed to.
Clauses 66 and 67 agreed to.
Lord Bach: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Alliance and Leicester Group Treasury plc (Transfer) Bill [H.L.]

  Colchester Borough Council Bill [H.L.]
  Presented and read a first time.
  House adjourned at nineteen minutes before eleven o'clock.