Lords Sitting of 18 January 2000

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

  Teachers: Recruitment Campaigns
  Lord Dormand of Easingtonasked Her Majesty's Government:
  Whether they are satisfied with the response to the recent advertising campaign for recruitment of primary school and secondary school teachers.
  The Minister of State, Department for Education and Employment (Baroness Blackstone): My Lords, so far there have been two advertising campaigns as part of the Teacher Training Agency's five-year recruitment strategy on the theme, "No one forgets a good teacher." The first positively influenced a significant number of graduates who later entered teacher training. The second has not yet been fully evaluated. However, during arid immediately after it, the number of inquiries about becoming a teacher was markedly higher than usual. A third campaign began last August.
  Lord Dormand Easington: My Lords, I am pleased to receive that Answer from my noble friend. However, is she aware that in spite of those and other considerable efforts which have been and are being made by the Government, we are failing to attract a sufficient number of teachers to meet the needs of present education policies? That is true in particular in some areas of secondary education. Can my noble friend say what research, if any, is being done with undergraduates and sixth-form pupils to identify their objections and reluctance to train as teachers? We need a clear picture of this serious problem.
  Baroness Blackstone: My Lords, I readily concede that the recruitment of teachers in secondary schools is difficult and has been for some years. However, we are improving on the position that existed a few years ago. The vacancy rates are now relatively small. The advertising campaign and other government measures are reducing the shortages, but I concede that there is more to be done.
  It is also right to ask what encourages and discourages young people about a career in teaching and the Teacher Training Agency is undertaking such evaluation.
  Lord Pilkington of Oxenford: My Lords, is the Minister aware that all of us on these Benches support higher standards of teaching and performance but that in the end a teacher stands on his or her own in front of a class? As teachers are being overwhelmed by
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  instructions from the Department for Education, cannot the number of documents sent to them be reduced? I speak for a member of my family who teaches in Tower Hamlets and finds it rather overwhelming.
  Baroness Blackstone: My Lords, I am sympathetic to the suggestion that it is important not to put too much pressure on teachers by overwhelming them with documents and too many changes. That was one of the reasons why the Government decided not to have root and branch reform of the national curriculum as applied to secondary schools in particular.
  We are also trying to reduce the number of documents going to schools and to send them monthly rather than weekly. However, the advertisements emphasise the demands that are made on teachers. I have one in front of me which shows a picture Of a young man sitting thinking and saying, "I couldn't decide on becoming a manager, an actor or a diplomat, so I chose teaching."
  Lord Quirk: My Lords, does the Minister have any recent data on successful recruitment from abroad? I have in mind, as she may recall from earlier Questions, countries in northern Europe which have a high educational culture, where the teaching of English to all students is of a high level and where, particularly in Germany, there is currently an over-production of teachers.
  Baroness Blackstone: My Lords, I cannot give the noble Lord specific statistics, but I shall be happy to look into the question and write to him. Clearly, if we can recruit good teachers from abroad, that is desirable so long as their qualifications are of the highest level and their English is perfect. I think the noble Lord will agree that that is essential. However, it would be wrong for us to become over-dependent on the recruitment of teachers from overseas.
  Lord Tope: My Lords, does the Minister share my concern that of the Bachelor of Education students choosing to train for primary school teaching, only 12 per cent are men? What is the Government's campaign doing to try to redress that gender imbalance?
  Baroness Blackstone: My Lords, there has been a gender imbalance in primary school teaching going back to the 19th century. I agree that we should try to prevent that imbalance worsening, but there has been a slight shift in that direction during the past decade. Once again, the Teacher Training Agency is looking in particular at ways of encouraging both young and older men because the recruitment of mature students is an important source of supply and often brings in people who have helpful experience. The TTA is addressing that gender imbalance.
  Baroness Park of Monmouth: My Lords, has the Minister considered the possibility of offering scholarships to people who would become teachers? It

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  is fairly certain that a number of people who might have decided upon teaching are deeply discouraged by the prospect of debt, more so than many others because teachers are not exactly highly paid. Is there no possibility of special scholarships for people who commit themselves to teaching? If there were scholarships, there would necessarily be a test of their quality and we should know from the beginning that we were taking on people who could become good teachers.
  Baroness Blackstone: My Lords, there is actually no evidence that the current system of student support is discouraging young people from entering teaching: the numbers have gone up rather than down since the new student support arrangements were introduced. However, it may help the noble Baroness if I say that, regarding PGCEs—the largest shortages are, of course, at the secondary level—a system exists where teachers training and studying for a PGCE do not pay tuition fees.
  The Earl of Listowel: My Lords, will the Minister say what evidence there is that young men actually wish to work with primary schoolchildren? Would her resources, currently used to advertise for such schoolteachers, not perhaps be better spent on recruiting part-time male mentors for primary schoolboys in particular, and Afro-Caribbean boys most especially?
  Baroness Blackstone: My Lords, while most young men seem to prefer to enter secondary teaching, there is a core who want to teach younger children. There is no reason why men should not make good teachers of younger children. The noble Earl's proposal for introducing male mentors is not in any way inconsistent with trying at the same time to encourage more young men to enter primary teaching.
  Baroness Blatch: My Lords, given that the Government have chosen to give above-inflation pay rises to particular groups of nurses, is it their intention to do the same for teachers?
  Baroness Blackstone: My Lords, the teaching profession was given an above-inflation pay rise last year. We are now waiting for the recommendations of the review body. It would be quite wrong for me to pre-judge what the review body will say.

  Disability Rights Task Force
  2.43 p.m.
  Lord Ashley of Stokeasked Her Majesty's Government:
  Whether they intend to implement the main recommendations of the Disability Rights Task Force.
  Baroness Blackstone: My Lords, I announced yesterday during the Second Reading of the Learning
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  and Skills Bill that the Government will be bringing forward a Bill later this Session to give effect to the education recommendations of the Disability Rights Task Force. That will secure comprehensive civil rights for disabled people in school, further, higher and adult education. The Government are already taking forward a number of the task force's other recommendations and are considering the remainder.
  Lord Ashley of Stoke: My Lords, I welcome that reply and the early action by the Government on the recommendations on education and their consideration. However, is my noble friend aware that Britain's 8½ million disabled people want more than that? The only hope they have for comprehensive civil rights is the implementation of all the proposals. Will my noble friend agree that the real problem is timing, especially as it is subject to the turbulent vagaries of politics? The best solution, in my opinion, would be to have a specific timetable for every single recommendation so that disabled people know where they are and, perhaps more importantly, the Government know where they are.
  Baroness Blackstone: My Lords, I am sure that the Disability Rights Commission, the members of which were announced yesterday, will want to remind the Government constantly of the need to have as clear as possible a timetable for implementing the recommendations of the Disability Rights Task Force. However, my noble friend will be well aware that a number of the 150 recommendations of the task force require legislation. It is rather difficult for the Government to have a precise timetable with regard to legislation because it will depend a great deal on parliamentary pressures.
  Lord Campbell of Croy: My Lords, as many of the recommendations are simply that a matter be included in future civil rights legislation, are the Government planning a general civil rights Bill on areas other than education, to which the Minister referred, and if so, what would be its timing?
  Further to my Question last Tuesday, has the Minister noticed that recommendation 7(4) on guide dogs and taxis recommends that Section 37 of the Disability Discrimination Act 1995 be put into force immediately?
  Baroness Blackstone: My Lords, with regard to legislation involving a civil rights Bill, I cannot give an answer to the noble Lord because the Government have not yet been able to make any decisions. We must remember that we received the task force's report only on 13th December. Clearly that matter will have to be looked at. The Government are considering all the recommendations and I hope to be able to let the House know, as that consideration proceeds, what decision the Government have made on that question.

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  I turn to the more specific point that the noble Lord raised about guide dogs and taxis: the Government are consulting on that matter and we have asked for responses by the end of March.
  Lord Addington: My Lords, does the Minister agree, if we are talking about transport in particular, that it is absurd for a journey to be covered by only part of the regulation? With that in mind, will the Minister agree that a date for the access of all disabled people to train services should be introduced straightaway, as already exists for other types of transport, such as buses and coaches?
  Baroness Blackstone: Yes, my Lords, I accept that point. There is incidentally also a strong case for ending the exclusion of transport from the DDA Part III rights currently in force. That will require primary legislation, but the Government will be consulting on that matter also.
  Lord Morris of Manchester: My Lords, I am delighted by the Government's decision to implement the task force's substantive recommendations on education and by Bob Niven's appointment as Chief Executive of the Disability Rights Commission. But can my noble friend say whether any of the other key recommendations will be implemented in the present Parliament and, in particular, those on transport, on extending the Disability Discrimination Act to the uniformed services and on reducing the employment threshold below 15 or, preferably, removing it altogether?
  Baroness Blackstone: My Lords, clearly I cannot say whether those many recommendations will be implemented within this Parliament. Those that require legislation are unlikely to be implemented within this Parliament because the Queen's Speech has already been made and we have a full legislative programme. Where matters do not require legislation, the Government will try to make progress and go ahead as fast as possible. My noble friend raised the specific issue of the small employers' exemption. We had a number of debates about that matter in the Bill setting up the Disability Rights Commission. We agreed that the threshold should be reduced over time. We have already lowered it from 20 to 15, but we want to make progress in partnership with all interested parties, bringing business with us as we go.
  Lord Skelmersdale: My Lords, since we are told regularly by the Government Front Bench that the difference between; ask forces and non-departmental public bodies is that they are ephemeral, will the noble Baroness tell us when the task force to which she has just referred will be abolished?
  Baroness Blackstone: My Lords, the task force has already been wound up with the appointment of the Disability Rights Commission.

  Millennium Wheel
  2.50 p.m.
  Lord Trefgarneasked Her Majesty's Government:
  What is the maximum wind strength which the Millennium Wheel (London Eye) has been designed to withstand (a) when stationary and (b) when in use.
  The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, the Millennium Wheel is designed to withstand a wind speed of 45 miles per hour/20 metres per second when it is in use. The Wheel will not be used at speeds above that. The maximum speed which it is designed to withstand when it is stationary is 94 miles per hour/42 metres per second.
  Lord Trefgarne: My Lords, I am most grateful for that very helpful reply. However, is it not the case that there has been a good deal of disappointment about the condition of the Millennium Wheel and can the Minister now tell us when it is likely to go into full service?
  Lord Whitty: My Lords, I cannot say precisely when that will be. The decision is clearly a matter for British Airways and the operating companies. As they have indicated, they are replacing the clutch system which was found to be faulty before the Millennium, and they will bring it into service as rapidly as possible. However, that is not a matter for government.
  Baroness Trumpington: My Lords, if the Wheel gets stuck, is one meant to wait there for several days or is there a ladder long enough to get one off the top?
  Lord Whitty: My Lords, the procedures that accompany the operation of the Wheel include an emergency exit. I fear that I am unable to explain to the House precisely how that operates, but both the technical advisers to the company and the Health and Safety Executive will insist that such emergency procedures exist.
  Viscount Falkland: My Lords, will the noble Lord tell us approximately how long it will take for the Wheel, with or without assistance from the wind, to make a complete revolution when it is fully loaded?
  Lord Whitty: My Lords, I believe that that is also probably an operational matter for the company concerned. It takes quite a long time—I should think of the order of half an hour. There are 32 carriages and it is quite a big wheel; therefore, I should say that it will take a fair amount of time.
  Earl Baldwin of Bewdley: My Lords, bearing in mind the wind speeds, is 94 miles per hour really going to be enough, considering the recent storms in northern France?
  Lord Whitty: My Lords, 94 miles per hour is the gust speed, and I am assured that that has only ever been reached once—at the time of the hurricane in 1987.
  Lord Avebury: My Lords, will the Wheel have anemometers on the cars?—otherwise, bearing in

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  mind that wind speed is variable according to altitude, how will one know when 45 miles per hour has been reached?
  Lord Whitty: My Lords, the 45 miles per hour speed relates to a certain height of 10 metres. Clearly, the wind speed may well be higher at a higher point. However, the structure is designed to withstand a wind speed of 45 miles per hour in motion and 94 miles per hour when stationary at that height. The structures conform with all the standards that have been promulgated by the health and safety authorities on all steel structures.
  Baroness Gardner of Parkes: My Lords, is the Minister aware that many of us believe that this is a great visual asset to London?
  Noble Lords: Oh!
  Baroness Gardner of Parkes: Well, my Lords, I certainly do. I believe that it is an additional landmark and I am very supportive of it. Will the Minister tell us whether thought is being given to the Wheel continuing there in the long term, rather than just in the short term?
  Lord Whitty: My Lords, I concur completely with the noble Baroness in relation to the Wheel's visual impact. I believe that it is a magnificent addition to the Thames side and, indeed, to the view down Victoria Street. It sets off the rest of those historic buildings most effectively. Clearly, the case for its continuing operation is, in a sense, a matter for the company. However, I understand that the intention is that it will operate for at least five years, and that it is capable of lasting longer.
  Lord Trefgarne: My Lords, in view of the possible mishaps to which the noble Lord has alluded, can the Minister say whether the liability of British Airways to its potential passengers is unlimited or whether it is restricted by some international convention?
  Lord Whitty: My Lords, I believe that that is very much a matter for British Airways, which, I am sure, has covered itself adequately in relation to insurance, as it has done on all safety issues. The Wheel is not an aeroplane and, therefore, so far as I am concerned, is not covered by international conventions.

  Traffic Congestion
  2.55 p.m.
  Lord Montagu of Beaulieuasked Her Majesty's Government:
  Whether they will create new special bus lanes on motorways and trunk roads, consider allowing their use by vehicles carrying two or more persons and establish time limits on the use of such lanes.
  Lord Whitty: My Lords, Her Majesty's Government are committed to making the best possible use of the
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  existing trunk road system in tackling problems of traffic congestion. That may, at certain specific locations, involve designated lanes. However, I do not envisage their widespread use in the immediate future on the motorway and trunk road network outside urban areas. Where such lanes are appropriate, consideration needs to be given on a case-by-case basis as to what vehicles may use them and at what times.
  Lord Montagu of Beaulieu: My Lords, I thank the noble Lord for that Answer. Can he tell us what advice or consultation took place with other countries which have such roads, particularly with regard to their operation, and does he agree that the more commuters car-share the better?
  Lord Whitty: My Lords, I absolutely agree. Clearly, in the long run, a reduction in the number of car journeys is appropriate, particularly at peak commuter times. It is noticeable, for example, that at the moment on the way into London approximately 80 per cent of car travel is made by single occupants. That matter must be addressed, and a policy of education and persuasion must be adopted to get people to change their habits.
  Lord Randall of St Budeaux: My Lords, with regard to congestion, does the Minister agree that, in aggregate terms, the bus lanes are not strategically very significant and that we should be reducing the number of car journeys in this country, first, by genuinely understanding the needs of the public and, secondly, by recognising that 68 per cent of car journeys are terribly short? However, does my noble friend also agree that the suggestion of the noble Lord, Lord Montagu, of encouraging car-sharing is rather a good one?
  Lord Whitty: Yes, my Lords, I believe I have indicated that I consider it to be a good suggestion and one which individuals and employers should encourage. The bus lanes on motorways and trunk roads may be a relatively small feature of our transport system. However, bus lanes within urban areas have proved most effective and have, for example, improved the average journey time of buses in London by 29 per cent. Those journey times could be significantly further improved if there were no obstructions. I believe that, certainly in the urban environment, bus lanes have proved their worth.
  Lord Brabazon of Tara: My Lords, can the Minister confirm a report in The Times today that, rather than reducing traffic or, indeed, holding traffic at present levels, Ministers will concede today that traffic levels will rise by more than a quarter over the next decade? If that is true, would it not be better—I think particularly of the M4 bus lane—to scrap bus lanes altogether because all that motorists see on the M4 bus lane are tourist coaches, taxis and the occasional Government Minister?
  Lord Whitty: My Lords, I am not sure whether I have recently passed a copy of a leaflet to the noble

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  Lord, Lord Brabazon, which proves through independent research that at peak times travel times for car drivers on the M4 have improved significantly. There are always a number of taxis on that road, most of which are full of bona fide travellers and not Government Ministers, who, of course, are bona fide travellers in a different sense!
  So far as concerns the figures which will be released today by my noble friend Lord Macdonald, the base line figures show an increase in traffic in most areas. However, the various combinations of government policy, applied effectively, would reduce significantly levels of congestion and pollution—the most important issue—rather than traffic volume. That is particularly so in urban areas and to a significant degree on motorways, where traffic is likely to increase most. I suggest that the noble Lord reads that document in detail before he comments further.
  Lord Bradshaw: My Lords, will the Minister, in association with his colleagues in the Home Office, take steps to ensure that all police forces in the country co-operate with local authorities in using camera technology to enforce discipline in bus lanes, wherever those bus lanes are?
  Lord Whitty: Yes, my Lords. One of the issues to be addressed in the better funding regime we are piloting in relation to speed cameras is the enforcement of parking and lane restrictions. As I have indicated, that will help to improve traffic flow, particularly in congested urban areas. More generally, police forces and chief constables will be following advice to give greater attention to road safety matters including the congestion of bus lanes.
  Lord Rotherwick: My Lords, will greater consideration be given to allowing powered two-wheelers, which are both economic and environmentally friendly, further use of bus lanes? As the majority of accidents to these vulnerable, powered two-wheelers are ca used by other people, does he think that in heavily congested areas bus lanes would be by far the best place for them?
  Lord Whitty: My Lords, local experiments have been carried out where powered two-wheeler motor cycles have been allowed to use bus lanes. The results are not absolutely clear. Nevertheless, I recognise that in certain circumstances, powered two-wheelers can make a contribution to reducing congestion in urban areas. We would wish an integrated transport policy to take full cognisance of that fact.
  Lord Elton: My Lords, as the Minister has broadened his answers to include digital cameras, can he confirm reports that the cost of installing them will be met by a substantial increase in parking fines, possibly of 50 per cent?
  Lord Whitty: No, my Lords. Perhaps the media and possibly the noble Lord, Lord Elton, are confusing two separate stories. The funding of such cameras and
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  associated road safety improvements is, indeed, being put on a better and more hypothecated basis. However, the increase in the fixed penalty charge recently indicated by the Home Office relates to a general upgrading of fixed penalties. The previous figure had remained the same for over 10 years. Therefore, an increase was well overdue.
  Lord Mackay of Ardbrecknish: My Lords, can the Minister explain how the Government's policy of reducing car use, or at least stabilising it in future, squares with the policy, which I understand that the DTI wants to pursue, of relaxing almost completely the planning rules on out-of-town "mega" shopping areas?
  Lord Whitty: My Lords, again, I believe that the noble Lord is reading too much into newspaper reports. There has been no change in the planning system as regards out-of-town shopping areas. As regards the general approach to car use, there is a huge underlying growth in traffic, as has been discussed, and it is a case of restraining such traffic. The real issue for motorists and society as a whole is to restrict congestion and pollution. We believe that the measures we are taking will achieve those objectives.

  Armed Forces Discipline Bill [H.L.]
  3.4 p.m.
  Report received
  Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 1:
  Before Clause 1, insert the following new clause—
  ("Armed Forces (Human Rights) Court
  RESOLUTION OF CONVENTION RIGHTS UNDER THE SERVICES DISCIPLINE ACTS
  .—(1) An Armed Forces (Human Rights) Court designated by rules in accordance with section 7 of the Human Rights Act 1998 shall be established to adjudicate on questions relating to the application of the European Convention on Human Rights to the provisions of the Service Discipline Acts raised on appeal from the decisions of Courts Martial or the Courts Martial Appeal Court.
  (2) An appeal may only proceed with leave of the Court granted on the grounds that it is arguable that the decision was in breach of Convention as represented in the Notice of Appeal.
  (3) The Court having heard the appeal may either affirm or set aside the decision (or remit the case for further consideration), and make such order as to costs as may be deemed to be just and appropriate.
  (4) New evidence may not be adduced at the hearing (whether oral or on affidavit) unless in the opinion of the Court the demands of justice so require.
  (5) The Court shall be convened by the Secretary of State as and when it is expedient in his opinion to attend to business.
  (6) The composition of the Court shall consist of 2 or 4 members of the Armed Forces appointed by the Secretary of State sitting with a senior member of the judiciary as President appointed by the Lord Chancellor.
  (7) Arrangements to give effect to subsection (6) are to be made in consultation between the Lord Chancellor and the Secretary of State.
  (8) The question arising for determination of the Court under the provisions of this Act may not be raised on an application for judicial review unless leave of the Court was refused by the Court.
  (9) In this section "the Service Discipline Acts" means the Army Act 1955, the Air Force Act 1955, and the Naval Discipline Act 1957.").
  The noble Lord said: My Lords, Amendment No. 1 proposes the setting up of a designated military appellate court solely concerned with the determination of convention issues arising in the course of the disciplinary process under the service discipline Acts on appeal from courts martial or courts martial appeals court in order to ensure compatibility with the convention.
  The amendment is drafted on the assumption that Clause 11 and Clauses 14 to 25 do not stand part at Third Reading. If they were to stand part, subsection (1) of the amendment could be easily redrafted to include the summary appeals court. Consequential amendments to the Bill would be of no material significance.
  The fundamental question arising for your Lordships' consideration is whether such convention issues should be resolved by a military court with relevant specialist expertise of the highest order or as part and parcel of the general appellate jurisdiction as proposed by the Government.
  The strength of the case for the amendment could well be fortified by other questions arising which interact, irrespective of whether a summary appeals court were to be set up, as to which Clause 11 holds the key. The following questions arise. Could the service discipline Acts, as such, be struck down as incompatible with Articles 5 or 6 of the convention? Is the advice tendered by government to such effect as justifying this Bill as requisite to comply with the convention well founded? As no specific breach of any article of the convention under the extant disciplinary process has been asserted by government and none has been identified, is it either profitable or indeed possible to anticipate compatibility as proposed by the Bill?
  Is it not appropriate to seek to amend the service discipline Acts to deal with identified putative breaches as proposed in Amendments Nos. 8 to 14? Is the reason given in the MoD letter received by me yesterday for the Government's change of mind not to set up such a court as is proposed by the amendment, that there would be insufficient calls on such a court to merit its establishment, well conceived? Does the Government's assertion that the summary appeal court and the courts martial appeal court should deal with convention issues as they arise afford a satisfactory means of resolution? Lastly, is Clause 11, which triggers the setting up of the summary appeals court, workable in practice, in particular on active service on armed operations short of war? Would it inhibit the maintenance of good order and discipline or is it requisite under the extant regime where the commanding officer informs the accused that the charge has been proven and there is a right to elect trial by court martial? That is a procedure which no one in the services to whom I have spoken considers to be unfair or discriminatory in any way. Such are the broad parameters of this debate.
  As to the justification for setting up an armed forces (human rights) court, as proposed by the amendment, the main objection in the MoD letter received yesterday is met. This court would only be convened ad hoc; "as and when" the occasion arises; it would be wholly cost-effective. The court would be constituted by the Lord Chancellor and the Secretary of State in consultation, the appointment of a senior member of the judiciary having relevant expertise of the highest order to preside, sitting with two or four duly appointed members of the Armed Forces.
  As there is no binding system of judicial precedent and as the articles of the convention are to be interpreted with flexibility on a case-by-case basis, the form of judicial resolution proposed by Amendment No. 1 is surely to be preferred. Would either a commanding officer or the summary appeal court, as constituted under Clause 17, have the requisite expertise to determine compatibility? Interpretation of the articles in the light of a mass of evolving jurisprudence assuredly warrants the attention of a senior member of the judiciary with the relevant knowledge and expertise, as proposed by subsection (6) of the amendment.
  The court as constituted would afford the most appropriate and effective forum for the determination of these convention issues. Convention rights are to be acknowledged and applied at all stages of the disciplinary process. But before resort may be had to the Commission or the ECHR, domestic procedures must be exhausted. Subsection (8) preserves the supervisory jurisdiction of the High Court only if leave to appeal was refused under subsection (2) (the sifting mechanism).
  Under the extant regime there is the election of trial by court martial (if the case is proven) from which an appeal on a convention issue would lie to the court proposed by Amendment No. 1. Under the Bill, as proposed, the supervisory jurisdiction of the High Court could be invoked at any stage of the disciplinary process.
  Amendment No. 1 derives originally from a proposal of the noble and learned Lord the Lord Chancellor at Third Reading of the Human Rights Bill when opposing my amendment to remove the Armed Forces from the fast-track procedure as inhibiting the due discharge of the summary disciplinary process to maintain good order and discipline. The noble and learned Lord took the point and acknowledged that such process—the disciplinary process—bore scant kinship with the exercise of summary jurisdiction in our civil or criminal courts. He proposed that appeals on convention issues would lie to the courts martial appeal court and be resolved there.
  In a letter addressed to me dated 10th March from the noble Lord, Lord Gilbert, at the MoD, reference was made to a proposal for a designated military court to determine issues solely relating to convention rights, such as is proposed by this amendment. By courtesy of the noble Baroness, Lady Symons of Vernham Dean, copies of all relevant correspondence with the MoD

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  have been made available in the Library of your Lordships' House, and the House is grateful. The letter from the noble Lord, Lord Gilbert, ended,
  "Such a Court as you mentioned would be designated by rules in accordance with c a use 7 of the Human Rights Bill; the rule would be agreed in the period between the Bill receiving assent and its coming into force. I do not think you need to worry therefore about this option being foreclosed if we do not take an immediate view on this proposal. We have enough time to reach a fully considered decision".
  Accepting that assurance, I was wholly content and did not worry until I saw this Bill. The position as stated in the letter of 10th March was that the proposal of the designated military court, for which I am contending, was accepted and should not be foreclosed upon; but that rules as to implementation of that proposal were under consideration. It is not known why that proposal should have been rejected by another letter from the noble Lord, Lord Gilbert, to the noble and gallant Lord, Lord Craig of Radley, on 9th June in favour of referring convention issues arising in the disciplinary process to the civil courts for determination. That letter is not so readily intelligible.
  It is not known why the proposals in that letter should have been rejected. Perhaps—one does not know—some ministerial task force has been at work. If so, your Lordships may wish to examine its instructions and its findings. Perhaps as a result of a series of internal departmental consultations (which included the MoD, the Home Office, the Lord Chancellor's Department and the Foreign and Commonwealth Office) the Government changed direction more than once, became disorientated and eventually lost their way, not only on instructions to prepare for this Bill, but also on the advice tendered to the Chiefs of Staff and the noble and gallant Lords who took part in the debate on the Bill.
  The service discipline Acts apply in a variety of circumstances—in times of peace, in times of war, on armed operations, and on active service short of war, on which now around half of our Armed Forces are engaged. As drafted, Articles 5 and 6 of the convention do not expressly apply to the disciplinary process of the Armed Forces. The House was informed on a previous occasion by my noble friend Lord Renton—who is present and who was involved in the early stages with setting up the constitution for the court—that, as far as he remembers, there was no intention that this Bill should apply to the Armed Forces. Indeed, as your Lordships know, France opted out without any ado.
  As regards adopting the continental approach to interpretation, if the ECHR were to decide that Articles 5 and 6, as such, applied to the disciplinary process, the text would suffer very substantial erosion and limitation upon the rights and obligations conferred on civilians. A flexible approach should be adopted. On the facts and circumstances of any particular case, the doctrine of "proportionality" would be applied, in particular on active service short of war. This convention does not require any signatory state to enact legislation, such as proposed by this Bill, which would inhibit the maintenance of good order and discipline in its armed forces. Most signatory states possess armed forces with disparate disciplinary
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  processes. Amendment No. 16A, which is tabled in the name of my noble friend Lord Renton, is well conceived.
  Compliance with Articles 5 and 6 only requires that the disciplinary process should be fair and conducted under fair procedures without discrimination. No one can foresee or pre-empt the range of circumstances in which these articles could apply as regards compatibility of a disciplinary process with the convention. The facts and circumstances of any particular case mean that a collateral convention issue could well arise, such as, for example, under Article 8, especially in peacetime circumstances.
  Assuredly the convention does not require amendment to the service discipline Acts or the setting up of a summary appeal court, as proposed by the Bill. It is wholly implicit that convention rights and obligations imposed on civilians should stiffer substantial erosion and limitation. The extent of such limitation has not, as yet, been examined by the Commission or the Court. The Court would not strike down the service discipline Acts as such and the means of seeking compatibility, as proposed by this amendment, is commended to your Lordships. I beg to move and, in doing so, I apologise to the House for the time that I have taken.
  Lord Carver: My Lords, in explaining his amendment the noble Lord, Lord Campbell of Alloway, mentioned that he is assuming that Clauses 11 and 14 to 25 will not form part of the Bill. He also mentioned the question that was raised in Committee and on Second Reading about the applicability of the Bill in terms of active service. Your Lordships will remember that in Committee I proposed that Clauses 11 and 14 to 25 should not stand part of the Bill. Therefore, it is appropriate that I should explain at this stage why I have not tabled any such amendment on Report.
  During the Christmas Recess I took legal advice, as I hope the Minister did. I took such advice from sources that are far more familiar than I am with the goings-on at the European Court of Human Rights. That advice was very clearly that if the existing arrangements for the Army and Air Force Acts over election for trial by court martial at the end of summary proceedings rather than at the beginning were to remain, we would almost certainly lose the case at the European Court, even if we did not lose it in a court in this country. However, more importantly, in the course of that being considered by the European Court, the danger is that the whole issue of whether summary proceedings were themselves in conformity with the convention on human rights might be brought into question. That would be extremely dangerous; indeed, far more dangerous than just bringing the election of trial by court martial to the beginning instead of the end of summary proceedings.
  The latter argument has certainly convinced me and it is the one which, I believe, has convinced the senior officers in the Ministry of Defence, as claimed by the Minister in Committee. I accept that they have been

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  converted to full support of this Bill. I should not like to guess exactly when they were converted, but they have been converted.
  I am not quite sure of the extent to which the amendment of the noble Lord, Lord Campbell, is dependent on Clauses 11 and 14 to 25 staying in the Bill. However, I should like to make it clear now that I assume that they will stand part of the Bill, and that I do not oppose them standing part of the Bill. As to the operation of the whole system, particularly the clauses before Clause 11, in times of active service and high intensity warfare—I certainly still agree that it could not be made to work in those circumstances—I accept that there need not be anything in the Bill to cover that situation. I believe that a precedent already exists in the derogation that the British Government made over the civil courts in Northern Ireland, which is fully explained in Schedule 3 to the Human Rights Act, and that that would be the way to deal with the issue.
  However, I am not sure in my mind because I have other worries about the amendment of the noble Lord, Lord Campbell of Alloway, as regards its relation to other courts. If the amendment is dependent on Clauses II and 14 to 25 not remaining part of the Bill, I should make it clear that I am assuming that they will remain part of the Bill.
  Lord Renton: My Lords, I suggest that what the noble and gallant Lord, Lord Carver, has said makes it clear that there is a serious confusion which could cause trouble in the administration of law within the Armed Forces. That confusion is caused by our obligations under the European Convention on Human Rights and is to a great extent confirmed by the Human Rights Act of last year and by this Bill. It is right that an attempt should be made to reconcile those confusions. For that reason, I think that what my noble friend Lord Campbell of Alloway has proposed with his new clause must be regarded as a valiant attempt to reconcile these problems.
  As my noble friend mentioned, I tried to resolve the problem in Committee in a rather short and simple way. However, the noble Baroness, on behalf of the Government, would not accept my amendment. I have tabled the amendment again, although it appears starred on the Marshall List for a strange reason that I may mention when the time comes to deal with it. I believe that the Government really must seriously consider the confusion that can and will arise on many occasions in the three Armed Forces, unless we try to find a way of reconciling the conflicting problems.
  My noble friend has made a splendid attempt in this respect. Of course, one could amend his proposed new clause in various minor ways. However, I think that the Government should, in principle, say that they realise there is this confusion and that it must be resolved somehow. I should have thought that the right thing for the Government to do is to say that they will accept the new clause, realising that they have power to amend it either on Third Reading or when the Bill goes to another place.
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  Before I conclude I hope that I may mention what my noble friend Lord Campbell said about the part that I played half a century ago when I was one of the representatives—I was a Back-Bench Member in another place—attending the Council of Europe. I went there in 1951 and 1952. By the time I got there in 1951 the European Convention on Human Rights had already been approved. My recollection is—I remember looking up the discussion which had taken place before I got there—that the purpose of the convention was to protect the people of Europe from further instances of the kind of terrorism and horror which had prevailed during the Second World War and which many thought would continue afterwards.
  In that context I do not think that there was any attempt to consider and to reconcile the effect of that convention on discipline within the Armed Forces of the European countries. It is rather strange that the conflict could only have arisen almost half a century later. But it has arisen and we have a duty to try to reconcile it. It is for those reasons that I suggest that the Government should apply their minds seriously to this matter and if they do not accept the amendment of my noble friend find a way of their own. However, a good step towards doing so would be to accept his amendment and, if necessary, amend it later.
  3.30 p.m.
  Lord Lester of Herne Hill: My Lords, I have not taken part in the previous debates on this Bill but I have carefully studied the Hansard reports. My military qualifications for taking part are rather meagre. During the Suez war I had the privilege of performing national service in the Royal Artillery first as a field gunner and later as a second lieutenant working with but not of the First Brigade of Guards, based in Kent. I suppose that I was on active service in the sense that we were at 24 hours' notice to embark for Egypt, but perhaps happily for others we never left our barracks in Shorncliffe. As a teenage subaltern I assisted in one court martial and on occasion I had to enforce discipline, including briefly depriving offending gunners of their liberty. That experience scarcely qualifies me as an expert on military law and discipline but it convinced me that the regime for dealing with disciplinary offences was archaic and unfair.
  A better reason for venturing into this debate in the presence of so many noble and gallant Lords, including the noble and gallant Lord, Lord Carver, with whose legal advice I respectfully agree, is my knowledge and experience of the human rights convention and its case law. The Minister has made a statement under Section 19 of the Human Rights Act 1998 of her view that the Bill is compatible with the convention rights. It is unfortunate that the Government have not sought to set up the long-promised Joint Select Committee on human rights because I have no doubt that such an expert committee would agree with the Minister's view. In the absence of such a committee I shall do my best to explain, as an unworthy substitute, why I believe the Bill to be compatible with convention rights, why I think that it

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  is appropriate and necessary and why I believe that the amendment proposed by the noble Lord, Lord Campbell of Alloway, is inappropriate and unnecessary. I shall also try to explain why the recollections of the noble Lord, Lord Renton, are not totally accurate—there is no reason that he would know this—as regards what went on in the Cabinet before we decided to ratify the convention in 1950.
  The Bill secures the convention right to liberty, guaranteed by Article 5, the right to a fair trial by an independent and impartial tribunal, guaranteed by Article 6, and the right to the enjoyment of these convention rights without discrimination, as guaranteed by Article 14. Without this legislation—this Bill—there would be a serious risk that when the Human Rights Act 1998 is in force next October Ministers and senior officers of the Armed Forces would be vulnerable to legal challenge under the existing legislation, with collateral damage to morale, good order and military discipline. The Bill sensibly diminishes that risk—it cannot be eliminated altogether—and the Government are to be commended for introducing a measure to bring our statute book and practice fully into line with convention standards.
  When the Human Rights Act is in force British courts will have not the power but the duty of construing legislation where possible compatibly with the convention rights, applying the well-known principles of legality, fairness and proportionality developed by European and Commonwealth courts. Our courts will do so more rigorously than does the European Court of Human Rights as an international court because that is what Parliament has decided that they should do by enacting the Human Rights Act. With effect from next October all public authorities, including Ministers, government departments and officers of the Armed Forces performing functions of a public nature, including disciplinary functions, will be liable for any failure to comply with convention rights in the way they per Form those functions. Therefore the Government are acting in the interests of commanding officers and in the interests of service personnel as well as in the wider public interest in introducing a system which will protect convention rights and avoid unnecessary litigation by lawyers such as myself.
  In my view the Bill achieves a fair balance between two vital public interests: the public interest in creating a framework of discipline to be applied effectively to the three Armed Forces wherever in the world they are based in peacetime and in times of conflict; and the public interest in ensuring that the civil rights of service men and women are effectively protected against any abuse of essential disciplinary powers. I am fortified in my opinion by the fact that the Chiefs of Staff have been fully consulted on the changes and endorse the need for them.
  Critics of the Bill in this House have made much of the fact that when France ratified the convention in May 1974 it ma de a reservation in respect of the Armed Forces. So, more recently, has Turkey. The French reservation was not open-ended. It was specifically linked 10 the effect of Articles 5 and 6 of
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  the convention on Section 27 of Act No. 72–662 of 13th July 1972 governing the system of discipline in the French armed forces and to the provisions of Article 375 of the French code of military justice. I am not an expert on French law and I cannot inform the House of the scope of those provisions, nor whether their compatibility with convention rights has been challenged. What I can say is that the European Court of Human Rights would interpret the French Government's reservation narrowly to ensure that it did not in any way undermine the very substance of the convention rights to liberty and to a fair trial without discrimination. Opponents of the Bill would be most unwise to draw support from the French Government's reservation, which does not in any event apply to the UK or to any other contracting state. Turkey's reservation has been circumvented by the European Court in the case of Loizidou for slightly different reasons.
  Departing for a moment from this theme, as regards the Attlee government of 1949 to 1950 and the first Wilson government in 1965, having read the debates. I read again overnight the Cabinet papers which recorded what happened before we ratified the convention and before we decided to accept the right of individual petition. The then Lord Chancellor, Lord Jowitt, was concerned that ratification would be incompatible with the visiting forces Act in relation to American forces in Britain and the absence of any right to habeas corpus. That was the only issue with regard to military law which troubled the government in 1949 to 1950. Similarly, when the Wilson government decided to accept the right of petition—although by that time it was perfectly clear from the text of the convention and from case law that it applied to the Armed Forces—the Ministry of Defence and other government departments found no difficulty so far as concerned the absence of a reservation.
  Coming more to the present, pre-trial custody involves an interference with right to liberty for which there must, under the convention, be adequate safeguards against abuse. The Bill provides for adequate internal and external safeguards in three ways: by requiring the commanding officer to review the need for continuing custody; by requiring the commanding officer to apply the criteria prescribed by the Police and Criminal Evidence Act; and by requiring a judicial officer to approve continuing custody in excess of 48 hours. I believe that these changes are necessary to secure full compliance with Article 5, including adequate safeguards against possible abuses of discretionary powers. The fact that the judicial officer will normally be a judge advocate or a naval judge advocate, who exercises independent judicial functions in courts martial, ensures the necessary safeguards of independence and impartiality as well as the necessary expertise.
  The changes made to the procedures for summary discipline are also, in my opinion, needed to secure full compliance with Articles 5, 6 and 14, by giving a right of appeal from summary hearings and by establishing a summary appeal court, consisting of a judge advocate and two independent officers, generally from

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  the appellant's service, with public hearings and a limitation on sentencing powers to ensure fairness and proportionality.
  The amendment of the noble Lord, Lord Campbell of Alloway, would, as we have heard, create an Armed Forces human rights court consisting of between two and four members of the Armed Forces, appointed by the Secretary of State, sitting with a senior member of the judiciary as president, appointed by the Lord Chancellor. The court would deal with appeals from decisions of courts martial or the courts martial appeals court on questions relating to the application of the convention, and would be convened by the Secretary of State as and when it was expedient, in his opinion, to attend to business.
  There are several objections to the amendment. First, it is unnecessary because courts martial and summary appeal courts will be obliged, under the Human Rights Act and under the Bill, to interpret and apply the law compatibly with convention rights, as will every other court and tribunal in the land. There is no need to add a further tier of statutory appellate jurisdiction.
  Secondly, the requirement that the president of the proposed court must be a senior member of the judiciary would impose a considerable and unnecessary additional burden on the already overburdened senior judiciary.
  Thirdly, there is nothing to be gained by the amendment in terms of the composition or expertise of the appellate court. Clause 15 of the Bill provides for judge advocates, who must be of at least five years' standing as qualified lawyers, to be appointed by the Judge Advocate General and the Chief Naval Judge Advocate. Clause 16 provides that officers will be qualified for membership of the summary appeal court if they are commissioned military officers in any of Her Majesty's naval, military or air forces with not less than two years' service. Clause 21 provides for the case stated procedure to the High Court on the ground that the summary appeal court's judgment is wrong in law or in excess of its jurisdiction. The respondent to the appeal could presumably challenge the decision by way of judicial review in the High Court, although that is a matter that the Minister may wish to clarify. Obviously it is important that respondents as well as appellants should have some means of access to the most senior courts.
  Fourthly, under the amendment it would be left to the Secretary of State to decide when to convene the proposed human rights court. It is difficult to understand why the Minister should decide that question. The Bill is more flexible and practical, enabling the summary appeal court for each service to sit in two or more divisions, enabling a number of courts to sit in different places to hear different cases at the same time, as the interests of justice require.
  I regret that I cannot be present throughout the whole of the debate on the Bill—I have to chair a meeting elsewhere—but I hope it is clear from what I have said that I regard the opposition to the Bill as
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  misconceived and contrary to the best interests of the Ministry of Defence and the Armed Forces, officers and service personnel. If I may say so, nothing has been more debilitating to service morale than the completely unnecessary litigation against the Ministry of Defence, involving sex discrimination against pregnant women and others, race discrimination and sexual orientation discrimination. The reason I call it "unnecessary litigation" is that it must have been plain to everyone that all such litigation was bound to lead to defeat for the Ministry of Defence, at enormous expense to the taxpayer and to the morale of people in both the ministry and the Armed Forces. The Government surely are sensible in seeking to avoid further unnecessary litigation by creating a fair, rational and practical new statutory framework.
  3.45 p.m.
  Lord Craig of Radley: My Lords, I have listened with great interest to the noble Lord, Lord Lester of Herne Hill. I hope that he will accept—certainly in my case and, I believe, in that of others—that those of us who have been tabling amendments to the Bill are not against the principle of human rights applying to the Armed Forces. We are seeking to test whether the solution that the Ministry of Defence has come up with in the Bill is the best solution from the service discipline point of view. The wise words of the noble Lord, Lord Renton, and the amendment that we are now discussing, have been very helpful in testing whether the solution brought forward by the Minister is the very best one possible. I hope that the House will approach the matter in that way and not by way of assuming that we are trying in some way to disown the obligations of the Ministry of Defence under the Human Rights Act.
  When the Human Rights Bill was passing through the House I tried very hard to obtain some arrangement which would minimise the impact of the human rights legislation so far as it concerned forces discipline. I failed in that, but I am very pleased that the matter has come forward in this form. I very much look forward to what the Minister has to say in response to the amendment.
  Lord Lester of Herne Hill: My Lords, I agree with the noble and gallant Lord. We all agree about the common objectives; the question is one of means. It is quite clear from Article 11(2) that the convention applies to the Armed Forces. We agree about that.
  Lord Campbell of Alloway: My Lords, is this not Report stage? We do not have points of order, but we do not have more than one speech. The noble Lord perhaps has not been here long enough to realise that.
  Lord Bramall: My Lords, I, too, should hate to see the amendment of the noble Lord, Lord Campbell of Alloway, dismissed like that. It is an extremely helpful amendment.
  Like my noble and gallant friend Lord Carver, I do not want to make it more difficult for the Chiefs of Staff than it is already. There is no question that,

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  however necessary the Bill proves to be, it will be highly unsatisfactory in practice in many ways for the commanding officer and for the administration of justice, particularly on active service. I do not want to go over all the arguments again but I do want to ask the Minister one question: in view of the detailed legal arguments that the House has just heard from the noble Lord, Lord Campbell of Alloway, and in view of the very important observation made by the noble Lord, Lord Renton, can the noble Baroness put her hand on her heart and say that she has gone back to the legal advisers of the Ministry of Defence and asked them whether they must be quite as inhibiting as they have proved to be?
  It has been suggested that some of these contrivances are not really necessary. We want to know that the Ministry of Defence is looking for some way of perhaps reconciling these two opposing issues. I know that the Chiefs of Staff are in a very difficult position; they certainly do not want to expose the various military procedures or in any way lose the powers of a sum nary court. But undoubtedly there will be problems. As has been said many times, the Bill will slow and confuse the administration of justice; it will undermine the authority of the commanding officer; it will be extremely difficult to administer, particularly on active service; and it will greatly add to the workload of the commanding officer and the various staffs involved at a time when they are already extremely stretched. One certainly does not want to do more than is absolutely necessary. I should like an assurance from the noble Baroness that she has looked at this matter again in a questioning manner and asked whether more could be done to rationalise these different points of view.
  Lord Kingsland: My Lords, at Third Reading of the Human Rights Bill on 5th February 1998, the noble and learned Lord the Lord Chancellor said:
  "I urge your Lordships to be of the view that the convention is a flexible instrument. It poses no threat to the effectiveness of the Armed Forces. I have given an indication about willingness to consider designating military courts as the appropriate forum for the consideration of complaints on convention grounds by Armed Forces personnel. On that basis I invite the noble Lord to withdraw his amendment".—[Official Report, 5/2/98; col. 768.]
  At the time the amendment in question was that of my noble friend Lord Campbell of Alloway. Will the noble Baroness look again at the amendment tabled today by my noble friend in the light of that statement by the noble and learned Lord the Lord Chancellor? Furthermore, can she tell your Lordships' House in what way the amendment of my noble friend differs from the aspirations of the noble and learned Lord the Lord Chancellor?
  I listened to the speech of the noble and gallant Lord, Lord Bramall, with great interest. It seems that we can fix ourselves somewhere on the spectrum between the minimum necessary to be compatible with the human rights convention and the maximum possible. I agree with the noble and gallant Lord; I shall be interested to hear from the Minister where she believes us to be on that spectrum.
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  Having listened to the noble and gallant Lord, Lord Carver, in Committee, I thought that his amendments to Clause 11 and Clauses 14 onwards were absolutely spot-on—to have the appeal to a court martial after the summary decision but before sentencing arid to remove entirely the appeal from summary sentence. I submit to your Lordships that that ought to meet the requirements of the convention. It would also remove enormous difficulties for commanding officers. Above all, it would allow the commanding officer to retain that authority in peacetime which we know is so necessary to him if he must go to war.
  In supporting the noble and gallant Lord, Lord Bramall, I urge the Minister to think carefully about whether she can take an initiative of some kind to remove both options so that the provision of one option would satisfy the criteria laid down by the convention.
  Lord Vivian: My Lords, I should like to apologise to the House for not being present at the Committee stage of the Bill. Unfortunately I was ill. I am not a lawyer. Rather, I am speaking to the amendment as a former commanding officer.
  I wonder whether this amendment. which would establish an Armed Forces human rights court, might add yet another level of bureaucracy, cause more expense and possibly extend the time for dealing with disciplinary offences when perhaps the existing military courts would be able to deal with them. During the past week I have read the reports of the Second Reading and the Committee stage, the revised Bill and the Explanatory Notes in considerable detail. I constantly put myself in the position of a commanding officer and, for that matter, the adjutant who is responsible for the staff work of dealing with court martial papers.
  With all due respect to my noble friend Lord Campbell of Alloway, who has worked so hard on the Bill, I am not sure whether an Armed Forces human rights court would simplify the proposed systems in the Bill. A commanding officer will be able to deal summarily with military offences provided that summary appeals courts are established. That would then make summary dealings comply with the European Court of Human Rights. I may have missed the point here, but it seems to me that, although this may not be entirely satisfactory, the aim to ensure that the commanding officer retains his authority to deal summarily with military offences has been achieved. However, this will allow an accused to appeal against finding and sentence which, as many noble Lords have pointed out at various stages, might undermine a commanding officer's authority. However, an accused has always had the right to submit for redress of grievance and this has not undermined the authority of the commanding officer.
  I do not believe that there is a better way than that proposed in the Bill to make trial by the commanding officer compliant with the European Court of Human Rights, or a better way to protect the rights of summary dealings. I do not believe that the staff work will be dramatically increased because the

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  commanding officer will deal with the deputy judge advocate general's department in a similar manner to the way he now deals with the Directorate of Army Legal Services. In other words, the Directorate of Army Legal Services will release some responsibilities which the deputy judge advocate general and judicial officers will then take on.
  If I was a commanding officer, I would willingly accept the proposals in the Bill to ensure that disciplinary offences could still be dealt with by the commanding officer as opposed, perhaps, to having them dealt with in the magistrates' court, which would be utterly disastrous.
  Lord Burnham: My Lords, my noble friend Lord Campbell of Alloway has a habit, which he has used effectively on a number of occasions, of moving amendments to appear before Clause 1. This enables him to get in first and to generate a full-blooded debate, not only on his own amendment, but on the Bill as a whole. It is therefore his fault that we have had the benefit of a full-scale Second Reading speech from the noble Lord, Lord Lester, who, with his great knowledge and wisdom as a lawyer, has added to that a full-blooded Committee stage contribution.
  The noble and gallant Lord, Lord Carver, has raised the important point as to the position, if this amendment is accepted, regarding the opposition in Committee by the noble Lord, Lord Chalfont, and a number of other noble Lords to the Question. That Clauses 11 and 14 to 25 should stand part of the Bill.
  At an earlier stage in the debate the Minister said that one of the purposes of the Bill before us is to demonstrate that life has moved on since the introduction in 1951 of the European Convention of Human Rights, or indeed the original date of the existing Army Act 1955. However, with respect to the noble Baroness the Minister, I suggest that 95 per cent of the purpose of the Bill is to ensure compliance with the Human Rights Act and the European Convention on Human Rights. Throughout the discussions on the amendments moved by my noble friends and others runs the theme that we wish to ask the Government: does this amendment ensure that the Bill is compliant with the Human Rights Act and is it necessary for that Act? In that context, we shall be moving Amendment No. 23, which is an amendment to the Title of the Bill. However, we are now discussing the amendment of my noble friend Lord Campbell of Alloway, which seems, in spite of what may be said by my noble and gallant friend Lord Vivian, to simplify an appeals stage of the court martial procedure. It is in itself not the easiest amendment, but, with respect to the noble and gallant Lord, Lord Carver, it enables us to remove all these other clauses.
  I am delighted to have the support of my noble friend Lord Kingsland, another noble Lord who has immense legal knowledge, whose views I trust implicitly. He and the noble Lord, Lord Campbell, have referred to the remarks of the noble and learned Lord the Lord Chancellor on what is now the Human Rights Act. What the noble and learned Lord said at
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  that time gave absolute assurance that what we had was very nearly, though not quite, what we needed. However, the noble Lord, Lord Campbell of Alloway, has moved his amendment. It is an excellent amendment. I hope that the House will accept it.
  4 p.m.
  The Minister of State, Ministry of Defence (Baroness Symons of Vernham Dean): My Lords, the amendment proposed by the noble Lord, Lord Campbell of Alloway, revisits an issue that first emerged in your Lordships' House during the consideration of the then Human Rights Bill and has since been raised at the Committee stage of this Bill. I am grateful to the noble Lord for the way in which he has argued his case about his specific amendment and also for the opportunity he has afforded the House for a rather wider-ranging exchange.
  At the Committee stage we established that the desire for this amendment arose from the debate on the Human Rights Bill in which my noble and learned friend the Lord Chancellor undertook to look into the question of designating military courts to deal with convention points arising in the Armed Forces. At the Committee stage I advised the House that the Ministry of Defence had given the proposition very careful thought, but in the end had decided against it for the reasons I then stated. I wish to make it clear that when I speak of the Ministry of Defence I am, as with all the other issues concerning the Bill, talking about a process of consultation with the services. Since the noble Lord tabled his amendment, I have of course sought further advice. I have, as the noble Lord, Lord Renton, put it, applied my mind. In the present case, the staffs of all three services were clear that, after careful consideration of the matter, they saw no justification for setting up, training and staffing such a court.
  However, I should say that the proposition that they were focusing on concerned the possibility of convention points arising in isolation from disciplinary proceedings. This amendment, on the other hand, is concerned with convention points arising in the course of disciplinary proceedings. I think it is important to be clear about that distinction.
  We do not consider there to be an issue where convention points arise in the course of proceedings. They can be raised in an accused's defence. If the accused is not content with the outcome of the hearing or trial, he or she has a right of appeal to a court which can deal with any convention points raised in the appeal. These appeal courts are within the service system—either the summary appeal court or the courts martial appeal court. In this respect, I believe that they satisfy the noble Lord's concern that service courts should deal with this kind of convention point.
  As the noble Lord, Lord Lester of Herne Hill, said, we certainly do not need a new court even further up the hierarchy of service courts to deal with convention points alone. If an accused wishes to appeal from the decision of the courts martial appeal court on a convention point or any other point, he or she would

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  be able to seek leave to appeal to this House in its judicial capacity. I have every confidence that the House would be fully capable of understanding any service factors that were relevant to the case, and we should of course appoint experienced lawyers to represent the service interest.
  I mentioned that the services have examined the possible case for a designated military court to deal with convention points arising in isolation from disciplinary proceedings. Quite frankly, the services did not think that there would be enough business to justify its establishment. There is confidence that there will be very few convention points arising solely in isolation in the service environment. That expectation is not borne of complacency, but because it seems likely that most convention points which do not arise in the course of disciplinary proceedings will nevertheless be attached to another cause of action. For those that do arise in isolation, we still consider that the High Court would be the most appropriate place to deal with them. Again, we would make sure that the service interest was not overlooked by these courts, since we would be properly and appropriately represented.
  I have to applaud the persistence of the noble Lord in his pursuit of the cause of creating new courts to deal with convention points in the services. I genuinely believe that there is no difference between the noble Lord's concern and our concern to get the right answers to the questions. However, we are quite firm in our view that there really is no need for such courts. All the various types of cases can be dealt with perfectly adequately elsewhere.
  Moreover, we do not want to incur the expense involved in creating new courts for this purpose. Even an ad hoc court as described by the noble Lord—he said that it would be used as and when needed—would use resources better deployed elsewhere and, more importantly, would not gain the depth of experience necessary to do justice to the claims, experience which is readily available in the civilian judicial system.
  The noble and gallant Lord, Lord Carver, explained why he will not pursue the amendments which he moved at the Committee stage. I am grateful to the noble and gallant Lord for his explanation and, if I may say so, not a little relieved that the advice he has received is so very similar to the advice I myself received.
  I thank the noble Lord, Lord Lester of Herne Hill, for his intervention. His expertise on the European convention is among the best available in this country and is well known in your Lordships' House. I am sure that the lawyers in government service who have advised me, as well as those who have advised the noble and gallant Lord, Lord Carver, will be relieved in that regard.
  The noble and. gallant Lord asked about the derogation that is used in Schedule 3 to the Human Rights Act. The derogation in Schedule 3 is a real example of the use of a derogation under Article 15 of the convention. It is a derogation from the convention in order for Her Majesty's Government to rely upon
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  the provisions of the Prevention of Terrorism Act. The reason for the derogation is that the situation in Northern Ireland might be such that it is in our view a public emergency threatening the life of the nation—to use the words of Article 15 of the convention itself. The noble and gallant Lord asked whether such a derogation can be used in times of armed conflict. The answer to his question is yes—if the armed conflict is a public emergency threatening the life of the nation.
  The noble and gallant Lord, Lord Craig of Radley, made clear that his misgivings about the Bill, which he expressed cogently in Committee, were not because of a lack of concern about human and civil rights in the armed services. I, and I am sure all other noble Lords, accept that absolutely clearly, but I hope that what I am saying does to a certain extent help to satisfy some of his worries.
  The noble and gallant Lord, Lord Bramall, asked me point blank whether I could say "hand on heart"— I believe those were his words—that I had been back to legal advisers. Yes, I can, hand on heart. I have discussed possible alternatives with legal advisers and with officials. I assure the noble and gallant Lord that I have looked at possible amendments in the way I undertook to the House I would. The advice I received was that we have the best possible formulation in front of us now, certainly the best that we in the Ministry of Defence have been able to come up with.
  Lord Renton: My Lords, I am grateful to the noble Baroness for giving way. Does the advice she was given provide guidance as to what happens when the appeal court, which she mentioned and which arises under the Bill, finds that there is a conflict between the needs of military discipline and the application of human rights?
  Baroness Symons of Vernham Dean: My Lords, I assume that the noble Lord means the summary appeal courts. The appeal courts would have to take into account the balance of arguments. I do not believe we are in a position to give advice to appeal courts in that way. The advice we would be giving is advice to commanding officers about what they must take into consideration. If there is anything further that I can say, it will be in advice that we shall put out. We hope to be able to move forward as quickly as possible on giving such advice, which is why I feel that the most expeditious conclusion to this will be best for everyone in the Armed Forces. If there are any further written points that I can give to the noble Lord, Lord Renton, I undertake to do so.
  I say to the noble Lord, Lord Kingsland, that nothing we are doing now is contrary to what my noble and learned friend the Lord Chancellor said in consideration of the 1998 Act. As the noble Lord reminded us, my noble and learned friend spoke of a willingness to consider military courts. We have considered them but feel that the mechanisms we need are there in the way that I described in my opening remarks to your Lordships on the amendment in the name of the noble Lord, Lord Campbell of Alloway.

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  Finally, the noble Lord, Lord Burnham, said, a trifle teasingly I thought, that I made the point that life had moved on. However, he said that it was about compliance with the Human Rights Act. I do not believe that the two are in contention. Life has moved on. One example of how it has done so is that we have taken the convention into domestic law. That is one of the ways in which we have moved on, because it was felt right and proper, by all sides of the House, that we should take that action in bringing the convention into domestic law, as we have.
  I suggest that nothing in what I have said in any way takes away from the point about, on the one hand, trying to have law that is compliant and, on the other hand, the development in human and civil rights. I am pleased that we have moved on considerably in those respects since 1951. I believe that most noble Lords will be able to agree.
  We have given careful consideration to the noble Lord's amendment. I thank him for giving us the opportunity to look at the matter again and for the courteous way in which he approached the issue, both in the House today and in some of the private conversations we have had. I do not believe that the amendment is necessary and hope that on reflection he will feel able to withdraw it.
  Lord Campbell of Alloway: My Lords, I thank the noble Baroness, Lady Symons of Vernham Dean, for the spirit in which she took the amendment and for understanding the spirit and purpose for which it was tabled. However, as yet no specific breach of any article of the convention has been identified which requires this massive amendment to the service discipline Acts. If one were to take the sense of the House, it has been a good debate and according to my card the majority opinion, the sense of the House, is that we should continue to seek a compromise and a middle way. I am prepared to continue to do that.
  I am grateful to the noble and gallant Lords, Lord Craig of Radley and Lord Bramall, for what they said. I am also grateful to my noble friend Lord Renton and my noble friend Lord Kingsland, who was quite right in his interpretation of why I tabled the amendment. I am grateful to my noble friend Lord Burnham; it is quite a change of experience. I was delighted to have such valid support from my own Front Bench.
  I mean it when I say to the noble Lord, Lord Lester of Herne Hill, that I am grateful for all the trouble he took and the expertise which he deployed before the House. It was perhaps unfortunate that in the mass of expertise and exposition he somehow misunderstood the spirit and purpose of the amendment. The noble Baroness did not, but he did. I am grateful to all noble Lords. I wish to read the debate in Hansard and have the opportunity to think again. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  4.15 p.m.
  Lord Burnham Lord Burnham moved Amendment No. 2:
  Before Clause 1. insert the following new clause—
  SERVICE DISCIPLINE ACTS: CONSOLIDATION
  (" . On the day on which this Act comes into force, the Secretary of State shall lay before Parliament a copy of the following Service Discipline Acts consolidated into a single Act and including all the changes with respect to military discipline made following the passing of the Human Rights Act 1998—

  Army Act 1955;

  Air Force Act 1955; and

  Naval Discipline Act 1957.").

  The noble Lord said: My Lords, I am not now, nor was I on a previous occasion, teasing the noble Baroness when I say that a perspicacious Minister—and I rank her as one—would note that the wording of the amendment is similar to that moved in Committee by my noble friend Lord Peyton of Yeovil. The reason it has not changed is that I could not better it. I wish to make a point and I hope that I can obtain succour from the noble Baroness.
  We noticed in Committee that with all amendments there were the Bill is not made easier by the three service disciplinary Acts, which are marginally different. That means that virtually each amendment has had to be put down three times. As the Minister pointed out in Committee, there is also the Manual of Military Law, which is inclined to weigh down the right-hand side of my noble friend Lord Attlee.
  That makes life difficult. The addition, on top of that, of the Bill, the Human Rights Act and all it implies makes life for the military commander and anyone else who has to enforce military discipline very difficult. I hope, therefore, that the Government will be able either to accept the amendment or, if they cannot do so, to give me more than just hope, an assurance, that in the quinquennial Act that we expect in the year 2001 we shall have a reconciliation into one Act of all matters of discipline which affect the Armed Forces. I beg to move.
  Baroness Symons of Vernham Dean: My Lords, it may be convenient to the House if, in responding to Amendment No. 2, I speak also to Amendments Nos. 5 to 7. I am grateful for the opportunity to add to my remarks in Committee in responding to the amendment on the subject of consolidated texts tabled by the noble Lord, Lord Peyton of Yeovil. At that stage I sought to reassure noble Lords that up-to-date texts of the service discipline Acts, having been placed in the Libraries of both Houses, were available to Parliament to assist in consideration of the present Bill.
  However, it emerged during debate on the amendment moved by the noble Lord, Lord Peyton, that there was probably as much concern about the availability of up-to-date texts of the legislation outside Parliament. It is possible that I did not address this legitimate area of interest as fully as I might have done at Committee stage. I have subsequently written to a number of noble Lords to clarify the position, and I am happy to do so again today.

  997
  We ensure that those who have most need of the discipline Acts—members of the Armed Forces—have ready access to them in their current state. Since Committee stage I have been reassured that in all three services commanding officers and others are provided with a manual—for example, the Manual of Military Law in the case of the Army—containing updated texts of all relevant service law, with explanatory footnotes and textual commentary. A number of copies are available within units at all times. Clearly, it is essential that that should he the case, and I hope that the information I have provided reassures noble Lords. The manuals will be updated further after the enactment of the present Bill.
  However, this amendment goes rather further than that tabled by the noble Lord, Lord Peyton of Yeovil. It appears to suggest that the three service discipline Acts should be merged into one. There are two approaches to this. There is the approach implied in the amendment which simply wraps the texts of the three current Acts into a single cover. That does not appear to be very attractive to us. It would produce a piece of legislation for the services to work with which was three times as large as that which each has to operate today. Alternatively, the Government's approach, which is set out in the Strategic Defence Review, is to work towards a genuine tripartite service discipline Act. We believe that this offers very real benefits in an environment where the services work ever more closely together. It will produce a disciplinary regime to match that joint environment. Unfortunately, such an Act cannot be developed overnight or even, as I believe the noble Lord, Lord Burnham, suggested at Committee stage, during the Christmas Recess.
  Our priority is the present Bill. In the next Session we shall consider the quinquennial Armed Services Bill. Both Bills will alter the service discipline Acts. After the quinquennial Bill is enacted in 2001, we shall start substantive work on the major project of creating a new framework for service discipline with the development of a new tri-service Act. Obviously, we shall want Parliament to consider that as soon as an appropriate Bill is ready and parliamentary time is available.
  I have difficulty in understanding Amendments Nos. 5 to 7. The intention appears to be to prevent a day being appointed for a particular purpose until the manuals of service law containing copies of the updated service discipline Acts have been deposited in the Libraries of both Houses. My difficulty lies in knowing to what the words
  "no day shall be appointed for this purpose"
  refer. The amendment is attached to the provisions of the Bill which deal with the arrest of art accused during his trial by court martial. It appears, therefore, that the intended effect of the amendments is to prevent these provisions alone from having an effect until the manuals of service law have been deposited in the Libraries. In speaking to Amendment No. 2, I hope that I have made clear the position as to the availability of the updated texts of the service discipline Acts.
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  We believe it is of the utmost importance that those concerned with the administration of discipline should be aware of both the changes in service law and their significance. I can assure noble Lords that everything will be done to ensure that the changes in procedures envisaged in the Bill are fully understood by the chain of command; that is, commanding officers and all who need to be aware of what is in train. The manuals will be amended and training will be provided. Whatever the purpose behind Amendments Nos. 5 to 7, can assure the House that everything will he done to meet what I believe is their benign intention; namely, to make the new law known to all. I hope that, on the basis of the assurances that I have given, the noble Lord will feel able to withdraw his amendment.
  Lord Burnham: My Lords, I thank the noble Baroness for that explanation. The purpose of Amendments Nos. 5 to 7 is solely to underline what we believe is the necessity to reconcile and consolidate the various discipline Acts. As to Amendment No. 2, I was very happy to hear virtually all that the noble Baroness said. However, she said that after the quinquennial Act the Government would look very seriously at reconciliation of the discipline Acts. I do not now seek anything as ridiculous as completion of the necessary work over the Christmas Recess. A considerable time will elapse before the publication of the Bill. I ask that the quinquennial Act should itself contain the reconciliation of the disciplinary Acts. With that caveat, I have much pleasure in withdrawing the amendment.
  Amendment, by leave, withdrawn.
  Lord Burnham Lord Burnham moved Amendment No. 3:
  Before Clause 1, insert the following new clause—
  APPLICATION OF ACT TO GENEVA CONVENTION OPERATIONS
  (" .—(1) Where a person to whom this Act would otherwise apply is engaged in operations to which the Geneva Convention of 12 August 1949 and the Additional Protocols of 1977 apply, the several time limits set by this Act by reference directly or indirectly to the time at which the person is first arrested shall not start to run until either—

  (a) the arrested person is no longer engaged in operations to which the said Conventions apply; or

  (b) fourteen days have elapsed since the arrest was made, whichever is the first.

  (2) A reasonable belief on the part of the commanding officer or other superior authority concerned that the said Conventions apply shall be an absolute defence against any allegations to the contrary.").
  The noble Lord said: My Lords, we now come to a matter that is a source of substantial worry to a considerable number of noble Lords, particularly those whose experience of administering service discipline is greater than mine. The amendment is related to the impossibility in certain circumstances of administering the Act as set out. One is concerned with timing. We do not believe that under the polar ice cap, in Kosovo or in South Georgia it is possible to apply the time limits contained in the Bill. We have no desire to damage the Bill but we seek to make it possible to apply it effectively.
  Amendment No. 3 has been worded so as to make reference to the Geneva conventions which provide an internationally agreed definition of "armed conflict". That definition is narrower than the UK's definition of "active service", to be found in Sections 224 and 225 of the Army Act and the provisions in the other Acts. The derogation contained in Article 15 of ECHR is not good enough for what we require. We do not suggest that a nation will be in peril very often, which is required for the purposes of that derogation. We seek to apply an acceptable compliant definition of "active service" which, while narrower than the UK working definition, which is also used for other purposes, is a real marker of the dividing line between ordinary service life when the ECHR applies and the extraordinary circumstances peculiar to service life when it is generally recognised that on occasions—this point has been made by a number of noble Lords during debates on the subject—personal liberty must for the time being be subordinated to the requirements of discipline. We talk about additional protocols. The UK became a high contracting party to those additional protocols in 1998. The first additional protocol relates basically to an international conflict and the second to a national one.
  Subsection (2) of the amendment deals with whether those additional protocols cover in British law the situation when, for example, British troops operate under the United Nations as distinct from the United Kingdom authority, as in Kosovo. There is a reasonable belief that they do so but no certainty. Subsection (2) is somewhat like that catch-all phrase to which my noble friend Lord Renton will refer later: offences against good order and military discipline.
  We believe that subsection (2) is a reasonable definition and a requirement which, if applied, would not be in breach of the Human Rights Act or the ECHR. We believe that the amendment is not contrary to the Human Rights Act or the ECHR. It is a practical way, and the only way, in which it will be possible to apply the Act when we are in peril. I beg to move.
  4.30 p.m.
  Lord Carver: My Lords, I recognise that the amendment is an ingenious way of meeting the criticism that I made at Second Reading, in Committee and today about circumstances which I refer to as high intensity warfare. For example, if the Gulf War had continued for a great deal longer, it would not have been practical to apply Clauses 1 to 10 concerning custody and gaining authority from the judge advocate.
  However, I am not happy with the amendment. Subsection (1) would be difficult to apply. To state that those conditions are the ones automatically to apply will lead to considerable difficulties and complications. It would be unsatisfactory to rely on the reasonable belief of the commanding officer.
  I accept that the wording of Article 15 of the convention as a basis of derogation might raise difficulties. But if it can be used as it has been used in
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  respect of the civil courts in Northern Ireland, I cannot understand why it should not be used, as the noble Baroness suggested, in those conditions where it would be impractical to apply the provisions.
  The advantage would be that the British Government would determine when they wanted to make the change and when they did not, whereas there could be difficulties in deciding on the conditions suggested by the amendment. Although I recognise that the intention is admirable, I regret that I cannot support the amendment.
  Lord Vivian: My Lords, to a certain degree this amendment returns to the timing provisions that have been drafted for custody regulation. Like many of your Lordships, I was concerned that the proposals in the Bill for custody would not be workable in operations such as the Falklands, the Gulf and certain peace enforcement situations.
  However, on further scrutiny of the Bill, I have now noted—I missed it at Second Reading—that in the proposed legislation there are adequate provisions for flexibility in those instances when operational imperatives make it impossible to conform to those legal requirements. New Section 75B(4) provides flexibility in reviewing custody. It states:
  "If a review is postponed under subsections (3) [and (4) of this clause]".
  Presumably this would then entitle a commanding officer to postponement of a review provided that it is carried out as soon as is practicable after the expiry of the last authorisation under new Section 75A(4) of the Bill.
  New Section 75E(2) allows the commanding officer flexibility over the timings of custody hearings and reviews, and periods of time in the relevant clauses are to be treated as approximate only.
  Lord Wallace of Saltaire: My Lords, I speak on the same lines as the noble and gallant Lord, Lord Vivian. The serious intent of the amendment is to strengthen the phrase in new Section 75B, "as soon as practicable", and to put it into a stronger form.
  As a layman in many of these matters, during the past week I consulted two acquaintances who have recently held regimental command on whether such an additional amendment was necessary. Their opinions on the quality of the Bill were different. One said, "We have to accept this. It's a necessary evil". The other said, "It's a thoroughly good thing. It's about time we encouraged COs to recognise that justice should reign even on operations". The strongest impression I received is that the communications revolution has made it possible to operate a system where "as soon as practicable" means not a very long time.
  One exceptional circumstance remains: the prospect of a nuclear submarine under a Polar icecap. However, whether one's entire military system should be based upon that one exception needs to be considered carefully. One of those to whom I spoke said, "If you are in deepest Kosovo or Borneo, the Ministry of Defence may not want to speak to you all the time, but

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  the BBC or CNN will be demanding an interview, whatever happens". So the image of long operations which are not in touch with base seems no longer to hold. I therefore suggest that the amendment is not necessary and that the phrase "as soon as practicable" covers the necessary clauses.
  Lord Lea of Crandall: My Lords, I have been a Member of this House for only a few months. It is interesting to note that when this issue, which loomed large only a few weeks ago, is put under the spotlight it reveals that an active service clause is not a sensible idea. Many Members who believed, as did the noble and gallant Lord, Lord Carver, that that was the way forward do not believe so now. During this debate there has been much reference to flexibility. Clause 2 of the Bill refers to Section 75 of the Army Act and indicates that in practice the issue should be dealt with on a common sense basis.
  To reiterate the point in another way, this problem, as perceived by many noble Lords only a few weeks ago, has been thoroughly scrutinised. A broad consensus is emerging on all sides of the House that it has been looked at very carefully and that this is probably not a good solution. The Bill will be debated for many weeks yet in the newspapers and in the country, and those concerned should take note of how this process of scrutiny of this aspect of the Bill has produced a very useful consensus result. It is very useful that the matter has been raised, but I believe that that is the message being received around the House on this point.
  Baroness Hilton of Eggardon: My Lords, I am always reluctant to draw analogies between the police service and the armed services. They have very different roles and functions. But there are similarities structurally—hierarchy, uniform and a discipline code.
  The amendment seeks to make a distinction for armed personnel on active wartime service. One way in which the police service differs from the armed services is that it is permanently on active, operational service. Therefore, discipline proceedings must be juggled between the ability to deal with the policing of riots, football matches, crime investigations and so on. In such emergencies it is nevertheless possible to have a single discipline code. That does not mean that a police officer has a lower standard of entitlement to human rights because he happens to have committed a discipline offence during a riot or some other emergency.
  It is also extremely important when one has a discipline system to have a single discipline system that everybody understands. To have a dual system that applies in some circumstances and not in others could be extremely dangerous. Senior officers and commanding officers in the armed services exercise discipline through mutual respect and trust. It is very important that any discipline system is trusted, respected and understood. To have a dual system would militate against that.
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  It has been said that the system laid down in the Bill would be sufficiently flexible to deal with the situation of being engaged on the frontline in Kosovo or even under the Arctic ice. With modern systems of communications it would surely be possible to be in touch with the judge advocate and receive his authority for custody if necessary.
  My experience is, though, that when officers are actively engaged in an operational situation discipline problems fall away; there are very few in those circumstances. Therefore, the amendment should not be supported.
  Lord Hoyle: My Lords, I always listen with great interest to the noble Lord, Lord Burnham. I always did when I was on the Front Bench, very often having to reply to him. I know the concerns that he expressed that exist in certain quarters in relation to when troops are on armed service. But a very good case has been put forward today. Modern communications overcome many of the problems that the noble Lord poses.
  I think that what is really being said here concerns the need in the cases in question to get hold of the judicial officer, and that can be done by modern telecommunications. As has been said with regard to Kosovo, the commanders-in-chief from the theatre were almost daily on the news conference given by the MoD. Therefore, the logistical concerns expressed by the noble Lord can be overcome.
  There are one or two other good arguments as well. My understanding is that the Armed Forces, and particularly the Chiefs of Staff, support the proposed measures, because they do not want two systems, which would lead to chaos and duplication. We should take on board the views of the Chiefs of Staff as well.
  For all the good reasons that have been given, particularly modern communications, and the views of' the Chiefs of Staff, I hope that the noble Lord, Lord Burnham, will reconsider the amendment and decide to withdraw it.
  4.45 p.m.
  Baroness Symons of Vernham Dean: My Lords, the noble Lord, Lord Burnham, made it clear in Committee that he was likely to continue his quest for a provision to be added that would lessen the impact of certain of the procedures envisaged in the Bill in certain circumstances. Part of his difficulty was to find a means of defining those circumstances. This amendment focuses on the Geneva convention of 1949 and the additional protocols of 1977 as a definition of those circumstances in which there could be what might be called an operational opt-out.
  I should say that I understand the noble Lord's desire for such an opt-out. On the face of it, it appears to be very helpful to the services. We have certainly re-examined the issue since our debate in Committee; that I have done with colleagues in the Ministry of Defence. Since much of our discussion then was about the meaning of the word "war" and the relevance of Article 15 of the European Convention on Human Rights, we have looked at those issues in particular.

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  In Committee the noble Lord, Lord Burnham, told us about the Geneva conventions and protocols, in the context of a possible definition of "war". As he will know, those international conventions apply to an armed conflict, whether or not a state of war is recognised as existing by all or any of the parties. Neither "war" on the one hand nor "armed conflict" on the other is defined in the Geneva Conventions or their Protocols, because it was not necessary to do so.
  The position was accurately summarised by the noble Lord, Lord Campbell of Alloway, when he said,
  "there is no state of war unless there is a declaration of war with all that that entails",
  adding that,
  "so many activities go on all over the world, and have done so since World War II, which are totally akin to war."—[Official Report, 16/12/99; col. 325.]
  As it happens, the United Kingdom has not declared war for 59 years, when Japan entered World War II. All this goes to show the wisdom of the drafters of the Geneva Conventions, when they decided that it was what was actually going on that was of importance, and not what the parties decided to call what was going on. It is significant, too, that the UN Charter does not refer to "war" in any of its operative articles.
  The meaning of "war" arose in relation to Article 15 of the ECHR, because a derogation can occur only
  "in time of war or other public emergency threatening the life of the nation".
  We had cause to reflect on that quotation earlier this afternoon. The qualifying words—
  "threatening, the life of the nation"—
  obviously limit the availability of the power to derogate to extreme situations, and even then Article 15 only allows for derogation
  "to the extent strictly required by the exigencies of the situation".
  The European Convention does not define "war"; nor is it necessary to do so. Whether military operations are a declared war, or are part of armed conflict where no war has been declared, the key question is whether the conflict that is going on threatens the life of the nation. That expression is not defined in the convention, but it has been interpreted by the Court of Human Rights, and it is clear that the primary task of assessing whether the test is satisfied is for the state concerned, subject, of course, to the supervision of the court.
  I hope that that was not too long-winded and was sufficiently clear. I think it is important that we all define the parameters within which we are discussing the noble Lord's amendment.
  A number of noble Lords have asked in particular whether the ability to derogate in respect of our summary discipline arrangements could have arisen in any of our recent military involvements. I was asked particularly about the Gulf and the Falklands in the Committee debate on 16th December, when I remember saying that this was a difficult point. In Bosnia, in Kosovo and in East Timor, United Kingdom ground forces were involved as part of
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  international peacekeeping forces operating under UN mandates, and, of course, with the agreement of the countries concerned. It is difficult to see how such situations could fall within the power to derogate under Article 15.
  In the Gulf War, we were also part of an international coalition, authorised by the United Nations, to use armed force to compel the removal of Saddam Hussein from Kuwait. Again, that was not a situation where the power to derogate could very easily be said to have been triggered. The Falklands were a little different in that the islands were, and still are, British territory—indeed, territory in which the convention applied—so it is perhaps more readily arguable that the right to derogate could in principle have been triggered. However, it would be wrong for noble Lords to assume that Article 15 powers to derogate would axiomatically be triggered whenever UK forces are fighting abroad. I am afraid that that is the flaw that lies at the heart of the noble Lord's amendment.
  In any event, the conclusions we have reached on the subject of a possible opt-out are rather different from those of the noble Lord. Our conclusions reflect our confidence in the measures in the Bill. I am of course aware that the noble Lord's major concern is that the provisions of the Bill may impede operational effectiveness. These concerns are well intentioned, but they are misplaced. The proposals in the Bill have been designed, with the services, specifically so as to be compatible with all circumstances in which the services might find themselves.
  I can assure your Lordships that operational considerations will remain paramount. There must be no misunderstanding on this point. This Government, like any other responsible government, will expect commanders to give appropriate priority to the operational imperatives of the situation and to the lives and security of all those under their command. I hope that is a sufficiently clear and unequivocal statement. There is no conflict between the unwavering intention behind what I have said and the procedures laid out in the Bill.
  It may be that the concerns that there could be such a conflict reflect an exaggerated idea of how frequently some of the provisions in the Bill will need to be implemented. In the vast majority of cases, there will be no need to hold a suspect in custody for periods that will require approval by a judicial officer. It will be known whether or not there is sufficient evidence to prefer a charge well within 48 hours and even if there is not enough information on which to base such a decision within this time-scale, it does not follow that it is necessary to hold the individual in custody. The more extreme the circumstance that we envisage—such as the submerged submarine, referred to by the noble Lord, Lord Wallace of Saltaire—the easier it is generally likely to be to assemble sufficient evidence to prefer a charge.
  Similarly, after charge, it will not usually be necessary to hold an accused in custody, so the need for a custody hearing will not arise. Where there is a

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  requirement for such a hearing, the Bill provides that it should be held as soon as practicable. The noble and gallant Lord, Lord Vivian, drew that to our attention so cogently. This is dealt with in Clause 2. The formula "as soon as practicable" occurs on page 15, lines 19 and 20, for the Army Act; on page 17, lines 5 and 6, for the Air Force Act; and for the Naval Discipline Act, on page 18, line 38.
  This formula gives us the flexibility that we need. Perhaps I may return to the scenario of the submarine, put forward by the noble Lord, Lord Wallace of Saltaire. If it were at the beginning of its patrol, and in the unlikely event that there was a need to hold an individual in custody, there would be no question of the submarine surfacing to enable the individual to be brought before a judicial officer. Such a hearing would have to wait until after the end of the patrol. That would be "as soon as practicable", as provided for in the Bill. I need hardly make the obvious point that, in any event, the accused would have very limited freedom of movement on the submarine in question.
  After a summary hearing, there will of course now be a right of appeal. There will be time-limits within which this right is to be exercised and we shall be debating those later. But the Bill allows for applications to be made out of time—another important point—and it is difficult to imagine a more sustainable reason for such an application other than deployment on a submarine patrol or similar operational exigency. Therefore, I believe that flexibility is contained within the Bill before your Lordships.
  If an assurance is being sought that in the most extreme operational circumstances the requirements of the Bill will somehow be set on one side, I cannot offer that. Indeed, that is to miss the point. A single system—and as my noble friend Lord Hoyle said, we need a single system—capable of operating in all circumstances reduces the scope for confusion and divisiveness. The system we have proposed in the Bill, because of its flexibility, provides that.
  We are not posing commanding officers with the unpalatable dilemma of whether to implement the procedures envisaged in this Bill or, on the other hand, to maintain operational effectiveness. The Bill allows commanders to discharge both those responsibilities.
  I again stress that we regard it as key to the proper fulfilment of our responsibilities that commanding officers must be given proper guidance in the application of these new procedures and the way in which they should exercise the flexibilities that are inherent in the Bill. We shall discharge that responsibility.
  I ask the noble Lord to reconsider his amendment and, more fundamentally perhaps, the concerns which it attempts to articulate. Perhaps I may borrow a phrase of his and say that we have developed the Bill together with the people who know what they are talking about—those who are responsible for these matters in today's services. That is what gives Her Majesty's Government the confidence that with them
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  we have been able to get the Bill right. I hope that I have given the noble Lord sufficient assurance to allow him to withdraw his amendment.
  Lord Burnham: My Lords, I think that I thank the noble Lord, Lord Hoyle, for his personal remarks. I may have to study them again, but I thank him. There is one point on which I disagree with him and other noble Lords; that is, on their reliance on modern communications in the circumstances we envisage if personal contact is not possible. We have previously talked about video links and goodness knows what else and I was amused to note that the Minister did not pray that in defence of her case. Perhaps some of her military advisers nudged her and told her that such bits of kit do not always work!
  I thank the Minister for her clear explanation of her opposition to my amendment. Perhaps I may add to what she said about war. I raised the matter in an intervention in Committee. Different nations treat war in different ways. The United States, with which we are frequently closely associated, has a difficult definition of war. It is not practical to use a declaration of war as a possibility for what I am seeking. As I and other noble Lords have said time and time again, Article 15 is not good enough. It does something, but not enough.
  The Minister understands what I am trying to achieve. However, listening to her and to other noble Lords I get the message that, although the end result is desired, the way in which I have approached the matter does not meet with favour. There is one more stage of the Bill. As a result, I shall go away. "I shall come back"—in the words of General Macarthur—but I hope that I shall be able to come back with an amendment which achieves what I am trying to achieve and which will meet with the approval of the House. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  5 p.m.
  Clause 1 [Custody without charge]:
  Earl Attlee Earl Attlee moved Amendment No. 4:
  Page 2, line 20, at end insert (", or
  ( ) to obtain authority to search him, his possessions or his accommodation").
  The noble Earl said: My Lords, in moving the amendment I remind the House that I am a serving TA officer and I have powers of summary jurisdiction which I exercise on behalf of my commanding officer.
  It occurred to me that the powers of a CO with regard to searches are quite extensive and that they might not be compliant with the ECHR. I have therefore drafted this probing amendment to enable us to debate the issue of searching servicemen or their property and to give the Minister the opportunity to inform your Lordships of any changes regarding the power to order or to undertake searches.
  My amendment provides another reason for detaining a serviceman to those provided in Clause 1: to obtain the necessary authority to undertake a

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  search. It is purely a probing amendment. Perhaps the Minister could tell the House what are the powers of the commanding officer and other officers to order a search, either formal or informal, and whether she is confident that there is no requirement to modify the current rules regarding searches as they obtained at the start of this Parliament. I beg to move.
  Baroness Symons of Vernham Dean: My Lords, in order to investigate an offence effectively, it is axiomatic that searches of a person or his possessions and accommodation may be necessary. That may be the case in any investigation conducted by the service police, or indeed otherwise.
  It is with that requirement in mind that the services were content in the Bill to adopt the long-established wording in the Police and Criminal Evidence Act 1984, without modification. That is from where the wording is drawn. New Section 75A in the Bill currently provides for someone to be detained without charge if there are reasonable grounds for believing that that is necessary for the purposes of securing or preserving evidence relating to an offence for which he is under arrest.
  Because we cannot conceive of any circumstances in which it would be reasonable, in the context of a police investigation, to search a person, his possessions or his accommodation other than for the purposes of securing evidence, we believe that the current provision provides a wide enough definition and that the Bill does not need to be amended in the way that the noble Earl has suggested. I hope that with that explanation he will feel that his probing amendment has revealed sufficient reason as to why the Bill is drafted as it is and will feel able to withdraw his amendment.
  Earl Attlee: My Lords, before I withdraw my amendment, will the Minister say whether there are any plans to amend the Queen's Regulations regarding searches?
  Baroness Symons of Vernham Dean: My Lords, I am unaware of any such plans, but if it is purely a case of my ignorance rather than my wisdom on the point, I shall write to the noble Earl and let him know that I am wrong. However, I do not know of any such plans.
  Earl Attlee: My Lords, I thank the Minister for that reply and for the time being I beg leave to withdraw my amendment.
  Amendment, by leave, withdrawn.
  Clause 6 [Arrest during proceedings]:
  [Amendments Nos. 5 to 7 not moved.]
  Clause 7 [Judicial officers]:
  Lord Burnham Lord Burnham moved Amendment No. 8:
  Page 29. line 14, at end insert ("and shall enjoy security of tenure, in that they may only be removed from office in the same manner as circuit judges").
  The noble Lord said: My Lords, I find myself in some difficulty. This and other amendments have been put together by my noble and learned friend Lord Mackay of Drumadoon. My noble and learned friend is at the present moment in court in Edinburgh. He had thought that he would be able to be here at about this time—or about an hour ago, as he did not believe that the debate would continue for this long. However, at the beginning of the debate I received a message that he would not be with us. Therefore, with apologies to the House, I shall, if I may, blatantly quote from the brief that he has given me on the matter.
  Amendment No. 8 relates strictly to a legal situation which has arisen in Scotland, which has got my noble and learned friend going—which makes it clear that I know even less about the matter than I should have done otherwise. My noble and learned friend says that the Government justify most of the Bill's clauses on the basis that they are required to meet ECHR commitments. He is concerned whether the provisions relating to judicial officers in Clause 7 and the existing law relating to the use of judge advocates are convention compliant. In both instances, the factual basis for his concern and mine in moving the amendment is that they may be appointed on short-term, temporary and renewable contracts. That raises the issue of whether the involvement in court martial procedure means that the provisions of Article 6(1) are being breached. It grants an entitlement to the determination of any criminal charge by,
  "an independent and impartial tribunal established by law".
  In Committee, my noble and learned friend mentioned a criminal case decided by the High Court of Justiciary in Scotland, Starrs v. Procurator Fiscal, Linlithgow. In that case, the appeal court in Scotland held that trial before a temporary sheriff appointed by the Scottish Executive for one year, whose appointment on the one hand could be terminated at any time and, on the other hand, could he renewed from year to year, did not constitute compliance with Article 6.
  The case was decided on 11th November 1999. When my noble and learned friend spoke in Committee on 16th December, there was still a possibility that the Crown would have marked an appeal to the Judicial Committee of the Privy Council. It has chosen not to do so. That means that the UK Government now must indicate whether or not they consider that the case was correctly decided. If so, how can temporary or part-time judges be acceptable in court martial procedure? If not, what are the grounds for saying that the case was incorrectly decided? It is no use saying that that was a Scottish case and has no relevance in England. Court martial law applies throughout the United Kingdom. In any event, the basic principles with which the Scottish court was concerned, both as to the facts and the convention, are just as applicable to court martial law.
  My noble and learned friend is deeply concerned, as we have all been throughout discussion on the Bill, about whether the Bill is compliant with the convention and, as we have said, whether the Bill is over-compliant. But here we are asking whether it is

  1009
  compliant. I do riot know whether the Minister can give an answer at this stage. If she cannot, I believe that it is a matter to which we should return at Third Reading when, I have no doubt, she will be able to give an answer. The amendment is an indication that we are not happy that the Bill achieves what it is said to be trying to achieve. I beg to move.
  Lord Molyneaux of Killead: My Lords, I warmly agree with what the noble Lord, Lord Burnham, has just said; in particular, that Her Majesty's Government will need to take the lead in regularising the matter of part-time sheriffs, judges and justices of the peace. As the noble Lord said, a complaint was made recently which was mentioned in this House by a number of noble Lords from the opposite Benches. A fairly important case was rejected by the European Court on the basis that it had been insufficiently decided and, therefore, was null and void.
  The noble Lord, Lord Burnham, has said that the matter goes much wider than the ramifications of this Bill. I suggest that it will affect, as he correctly said, all parts of the United Kingdom. For example, the phrase "part-time judges" will apply to Northern Ireland. Noble Lords will forgive me for dragging in that obscure part of the United Kingdom!
  At an earlier stage in my career I served for 15 or 20 years as a justice of the peace. The highlight of my career was that I presided over the initial stages of a murder trial. I have raised a question in relation to this matter but have rot been able to obtain an answer. I do not direct that at the noble Baroness, who has been very sympathetic and courteous throughout. However, I want to place on the record that currently my successors as justices of the peace are all part-time justices. Certainly, they provide that service—for example, signing summonses and hearing cases—in their spare time and sometimes at the expense of their careers.
  However, unless we as a Parliament—I include both Houses—are extremely careful, I am afraid that we may find ourselves in a situation where dozens of trials will collapse by reference to the European Court on the insufficiently decided formula simply because, at some stage, the decision was taken by someone who, in the past, was appointed quite legally arid who believed himself to be authorised by the Crown to hear and decide criminal cases. When the lid comes off, we shall see that a whole range of well-meaning people at different levels have presided over the dispensing of justice when, in the eyes of the European Court, they were not entitled to do so.
  Lord Hope of Craighead: My Lords, by way of information, perhaps I should mention that there is another Scottish case which raises the same issue. As has been said correctly, the case of Starrs v. Procurator Fiscal, Linlithgow is not to proceed any further. Therefore, the Judicial Committee of the Privy Council will not have an opportunity to examine the decision in that case.
  However, there is another case (the name of which escapes me) which involves the question of whether a temporary judge—that is, a judge at a higher level than
  1010
  temporary sheriff—is properly appointed. I understand that that case has now been reported tinder Scottish procedure by the temporary judge in question to the Inner House of the Court of Session—this being a civil case—and that the question arises as to whether the Inner House will then refer the matter to the Judicial Committee for decision. I have no doubt that that case is known also to Her Majesty's Government. However, it is right that we bear in mind that those issues arise in a number of ways and affect different judicial officers at different levels. Therefore, for what it is worth, I support the point already made that this matter requires careful attention before a final decision is taken.
  Lord Campbell of Alloway: My Lords, I mention very briefly that my noble and learned friend Lord Mackay of Drumadoon is in court today. My noble friend Lord Burnham asked me if I would stand in to say virtually nothing, other than that I wholly support the amendment. In view of what has just been said by the noble and learned Lord, Lord Hope, there is no question that this matter will need to receive attention.
  5.15 p.m.
  Baroness Symons of Vernham Dean: My Lords, I wrote to the noble and learned Lord, Lord Mackay of Drumadoon, after our discussion in Committee. In all fairness to the noble and learned Lord, who, unfortunately, is not with us this afternoon because of his commitments elsewhere, I should say that he will not have received the correspondence because it was, I believe, placed in his pigeon-hole this morning. However, I make the point to your Lordships that I have tried to pass some information to him.
  Perhaps it will help your Lordships if I put a little more flesh on the bones about the present facts of the matter. In the Army and Air Force, trial judge advocates are mainly the holders of permanent, pensionable judicial appointments, although other part-time judge advocates are also used for around one-sixth of courts martial.
  In the Royal Navy, judge advocates are fully qualified barristers who are, first and foremost, commissioned officers. Once they have sufficient legal experience, they may be rotated into a judge advocate post in the same way as other personnel in the services are posted into different jobs at different points in their careers. Being a naval judge advocate is one of a number of roles, both legal and non-legal, which a suitably qualified officer will perform during his time in the Royal Navy.
  At present, consideration is being given to the detailed arrangements for the appointment of judicial officers provided for in the Bill. As I believe the noble and learned Lord, Lord Mackay of Drumadoon, is aware, my noble and learned friend the Lord Chancellor is considering the implication of the Starrs case and has undertaken to make a Statement to the House when his consideration is complete. Obviously, we shall be guided by his conclusions, but I believe that it would be inappropriate and certainly most unhelpful for me to react to the Starrs judgment outside my

  1011
  noble and learned friend's wider review of the position of the judiciary in the light of that judgment. I assure the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Molyneaux, that the points they raised will be drawn to the attention of my noble and learned friend.
  I hope that in the light of the assurances that I have given the House about the intentions of my noble and learned friend in making a Statement on this important matter, the noble Lord, Lord Burnham, and, in absentia, his noble and learned friend Lord Mackay of Drumadoon will understand my position, and that the noble Lord, Lord Burnham, will be kind enough to withdraw his amendment.
  Lord Burnham: My Lords, certainly I fully understand the noble Baroness's position and I withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 9 to 13 not moved.]
  [Amendment No. 14 not moved.]
  Clause 11 [Right to elect court-martial trial]:
  Earl Attlee Earl Attlee moved Amendment No. 15:
  Page 32, line 19, at end insert—
  ("(3A) An accused who elects for court-martial in accordance with the provisions of subsection (1) above may apply to the commanding officer or appropriate superior authority for leave to withdraw that election.
  (3B) An application by the accused for leave to withdraw election for court-martial shall include a written statement as to those of superior rank with whom he has discussed the application.
  (3C) The record of the grant of leave to withdraw election for court-martial shall include—

  (a) the application together with the statement from the accused required by subsection (3B) above;

  (b) a written statement signed by the person or persons who gave advice to the accused on behalf of the commanding officer or appropriate superior authority and such record.

  (3D) The record of the grant of leave to withdraw election for court-martial shall be delivered forthwith to the Judge Advocate General.").
  The noble Earl said: My Lords, in moving Amendment No. 15, it may be convenient if I speak also to Amendment No. 16. In scrutinising the Bill, we are attempting to balance the rights of the individual with the needs of military discipline. Much has been said by the Minister to advocate those new rights. We discussed the timing of the accused's election for court martial. The Minister put forward an attractive argument that election for court martial after a finding of guilt by the CO could be more by way of an appeal than a court of first instance. It may have been possible merely to alter the rules of procedure to eliminate that possibility. We have not returned to that point at this stage of the Bill, but another place will no doubt re-examine the issue.
  Changing when the accused can elect for court martial is of little value if, in practice, the accused is unable to exercise his choice. Let us suppose that a
  1012
  small piece of army equipment has been lost. I apologise for using an army illustration but it is easier for me, although the argument is the same for each service. The soldier claims that he handed the equipment to an NCO but the NCO denies that. Unfortunately, the unit's receipts and issues register is not in particularly good order. Due to the low value and sensitivity of the equipment, the penalty at summary dealing is likely to be very modest. However, the soldier knows that he did not lose the equipment and his legal advice is that the charges would not be sustainable at court martial.
  In those circumstances, it would be quite reasonable to elect for court martial because at summary dealing, he may well be found guilty. In a later amendment, I shall address the applicability of PACE to summary dealing and courts martial.
  Unfortunately, in the real world, he would not be allowed to exercise his right to elect for court martial for such a trivial matter. Such a matter would initially be dealt with by the officer commanding—the OC—on behalf of the CO. If the CO himself heard that a soldier wanted to elect for court martial and, by implication, did not trust the OC, the CO would not be impressed with the OC. If it happened to the OC a few times, he would be in difficulties with his commanding officer. If the commanding officer's superiors heard that a soldier was electing for court martial, they too would draw unfavourable conclusions.
  So what happens in practice, in the real world, is that heavy pressure is applied to the soldier to withdraw his election. The situation could be one of a warrant officer, the company sergeant major or the regimental sergeant major telling or even forcing a private soldier to withdraw his election for court martial in order to avoid embarrassment for his superiors and, indeed, the whole unit. That is hardly equality of bargaining power.
  The Minister will have to decide whether it is worth while changing when the accused can elect for court martial if, in practice, he cannot freely exercise that right. Is the Minister content with that situation and, if not, what will she do to address the problem?
  My amendment makes it clear that the accused can withdraw his election but provides that he will have to make a statement as to who of superior rank has counselled him to withdraw his election. It does not affect his ability to consult those of the same or lower rank. Those who counsel the soldier on behalf of the CO would also have to make a statement. The records of those statements would then be sent on to the judge advocate-general.
  The rules of procedure, which can be found in the manual of military law, could provide that the accused must be warned before he decides whether or not to elect for court martial that he will have to make a statement if he subsequently withdraws his election.
  I considered other ways of achieving the same ends and, in particular, limiting who could counsel the accused. I also looked at how I could ensure that if something were going horribly wrong in the unit, the provisions of my amendment would precipitate an

  1013
  external inquiry of some kind. Perhaps a provision that no one of superior rank within the unit could counsel the accused would ensure that the accused could talk to someone outside the unit if he thought that he was being unfairly accused.
  I accept that my current amendment may not be the best way of achieving the desired end but it is one way of doing so. I repeat my question. Is the Minister content with a situation in which, in practice, a serviceman cannot freely elect for court martial and, if not, what will she do to address the problems? I beg to move.
  Lord Campbell of Alloway: My Lords, I support this amendment. I understand what it is designed to achieve and I support that but I wonder whether it really achieves it because within it, although it is the best that can be done, there is always the possibility that the Court of Human Rights would say, "Oh, but the procedure as such leans too heavily against the man". I express it in very simple terms.
  For my part, I believe that we may well have to return to the problem of whether Clause 11 should stand part of the Bill. I suggest that that is the only satisfactory way of dealing with this situation in view of some of the arguments which I raised on Amendment No. 1 which really were not controverted by any specific allegation of breach. I shall not return to the Motion that Clause 11 shall not stand part of the Bill unless I am supported in that by my own Front Bench because to do so without that support would be to waste the time of the House.
  Baroness Symons of Vernham Dean: My Lords, although I understand the intention of this amendment with regard to the Army and Air Force Acts, I must say to the noble Earl, Lord Attlee, that I am extremely concerned that he believes that it is necessary to table this amendment in the first place.
  In a sense, the purpose of the amendment is admirable, and I have no doubt that the noble Earl's intentions in tabling it are entirely benign. But it presupposes that there is a problem in the services which is sufficiently serious to warrant primary legislation.
  I really do not believe that that is the case. The services obviously consider it very important that there should be no inappropriate influence exercised in relation to whether or not to elect for trial by court martial or the possibility of withdrawing such an election. I am assured that if there were to be instances where undue pressure was found to have been brought, it would be taken very seriously and those responsible for such actions would be disciplined. The services are rightly proud of their system of discipline and they are rightly proud that that system is seen to be fair.
  The Army and the Royal Air Force currently have a procedure regulating the withdrawal of an accused's election for court martial, and that is laid down in instructions. During the process, the accused has full access to an adviser of his choice whose services will be available once the accused is charged. He will also have access to any legal advice which he has chosen to seek.
  1014
  More importantly, the instructions preclude certain persons from acting as the accused's adviser. Those include the commanding officer, the officer commanding, anyone involved with investigating or prosecuting the offence and anyone advising the officers in command. The current procedures seem to reflect the very system which the noble Earl believes should operate. However, that is in contrast to the provisions of the amendment which seem to presuppose some involvement by a representative of the commanding officer.
  It is difficult to disagree with the sentiments behind the amendment. However, I do not believe that the amendment achieves what it sets out to do. My doubts may be different in character but they mirror those of the noble Lord, Lord Campbell of Alloway; namely, that the amendment does not achieve the objective which the noble Earl stated nor does it usefully add anything to the impartial procedures already in place. The procedures are well understood and we do not believe that there is any reason to tamper with them. On the basis of the assurances that I have given to the noble Earl, I hope that he will feel able to withdraw the amendment.
  5.30 p.m.
  Earl Attlee: My Lords, I am grateful for the response given by the Minister and for that of my noble friend Lord Campbell of Alloway. Perhaps I should have consulted my noble friend before tabling my amendment.
  I am not convinced that Clause 11 should not stand part. As I explained in moving the amendment, Clause 11 is not fatal to military ethos or the moral component of fighting power. But I am concerned that pressure can be applied to a soldier or serviceman to withdraw his election. However, I have listened carefully to what the Minister said. I hope that she will listen carefully to what I have said about the problem. In my experience, this problem can occur, particularly if a soldier or serviceman is being stupid and saying that he wants to elect for court martial when it is not in his best interests to do so. I am certain that heavy pressure would be placed on him to withdraw and that he would not be allowed to go through the court martial procedure. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 16 not moved.]
  Lord Renton Lord Renton moved Amendment No. 16A:
  After Clause 13, insert the following new clause—
  PROCEEDINGS FOR DISCIPLINARY OFFENCES: HUMAN RIGHTS ACT 1998
  (" . No provision of the Human Rights Act 1998 shall prevent proceedings being taken for offences against good order and military discipline.").
  The noble Lord said: My Lords, your Lordships will see that this is a starred amendment on a separate sheet of paper. I moved and withdrew the amendment in

  1015
  Committee and last week I tabled a shortened version, narrower in its effect. It was similar to Amendment No. 16A and read as follows:
  "No provision of the Human Rights Act 1998 shall prevent members of the Armed Forces from being found guilty of offences against good order and military discipline".
  That partly resolves a conflict we had when discussing Amendment No. 1 today and one which we have discussed in various ways in Committee. Last week I tabled a variation of the original amendment in that form. For some strange and invalid reason a clerk in the Public Bill Office refused to table it. I did not know of that until yesterday when I arrived here after 5 o'clock, so I went and discussed it. I was not convinced of the reasons given. However, in view of the short time available I did not press the matter but decided to table the amendment in its original form.
  In view of the valuable debate we had in Committee, I do not now press the amendment, However, I feel I should mention that at Third Reading I shall table the shortened version. In the mean time I beg leave to withdraw the starred amendment.
  Amendment, by leave, withdrawn.
  Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean moved Amendment No. 17:
  Page 39, line 41, leave out ("twenty-one") and insert ("fourteen").
  The noble Baroness said: My Lords, in moving Amendment No. 17, I shall speak also to Amendments Nos. 19, 21 and 22. The purpose of these amendments is to reduce from 21 to 14 days the period in which an accused may lodge, with the summary appeal court, an appeal against the decisions of the commanding officer.
  I am sure that your Lordships will recall that in Committee I agreed to reconsider the period in which an appeal may be brought in response to the amendment tabled by the noble Earl, Lord Attlee, which he graciously agreed to withdraw at that time.
  In Committee I explained that we selected 21 days primarily because it seemed sensible to mirror the civilian system and also seemed a reasonable amount of time to allow an accused to secure legal advice, apply for legal aid and lodge an appeal.
  I was unable to accept the amendment of the noble Earl as the period of seven days, which he suggested, was likely to be incompatible with the convention as being too short a time in which to appeal. The possibility of large numbers of applicants seeking leave to appeal out of time or, indeed, of accused invariably lodging possibly ill-considered appeals simply to ensure that they were within time, seemed to me to be something we would all wish to avoid.
  However, as I indicated, that 21-day period is not set in stone. I am satisfied that 14 days is a period acceptable to both the accused and the services. That will give an accused two working weeks in which to prepare his or her appeal.
  The amendments proposed by the noble Earl, Lord Attlee, suggest that the period should be reduced to 10 days. I believe that that figure is based on the statement I made in Committee that anything less than 10 days would probably be incompatible with the convention. I do not withdraw that statement; nor do I seek to contradict it with this amendment. However, I do not believe that 10 days is an appropriate period in which to allow someone to seek to organise an appeal. It is purely a matter of judgment and of where one believes the realistic time period should fall. We believe the period of 14 days to be reasonable. I do not believe there is any merit in giving someone a right and then making it difficult for such a person to exercise that right. Given the circumstances I have described, I believe that 14 days is a fair and reasonable period; fairer and more reasonable than the 10 days which the noble Earl asked us to consider in the subsequent amendment. I hope that he will feel able to support the government amendment on this point.
  Lord Burnham: My Lords, half a loaf is better than no bread. Amendment No. 17 is not grouped with Amendment No. 18. I give notice at this stage that I still intend to move Amendment No. 18, but I have pleasure and thanks in accepting Amendment No. 17 tabled by the noble Baroness.
  On Question, amendment agreed to.
  Lord Burnham Lord Burnham moved Amendment No. 18:
  Page 39, line 41, leave out ("twenty-one") and insert ("ten").
  The noble Lord said: My Lords, there is a mildly improper story which I should not tell in your Lordships' House, the gist of which is that we establish a principle, and it only remains to determine the sum.
  On this side we started off in discussion with 48 hours against the Government's 21 days, though I cannot remember whether that was put on the face of the Bill. At an earlier stage of the Bill we went to seven days. I believe there is a real problem in that 10 days is too long. We want to get on with things. We may have two men who are given punishments, one of whom is prepared to accept it immediately and the other wishes time to think before he gives an answer.
  I still believe that 10 days is too long, but I am trying to establish a price for the Government. Noble Lords have been telling me throughout discussion on the Bill that communication is easy and that it is possible for a man to be given information, consultation and everything one would care to think of, as referred to in the amendment tabled by my noble friend. He can be told that he has every opportunity to talk, and I believe that can be done within 10 days. I urge the Government therefore to come to us and say "10 days".
  My noble friend, from whom I have taken over the moving of this amendment—slightly to his disgust—may want to add something to what I have said. I beg to move.
  Baroness Symons of Vernham Dean: My Lords, I am not sure of the applicability of the anecdote the noble

  1017
  Lord, Lord Burr ham, sought to draw to our attention in moving the amendment. However, I am made of sterner stuff than that!
  I do not have anything to add to the debate on the length of period that we should grant an accused person in order to lodge an appeal. It is a question of judgment and I do not believe that 10 days is a sufficient period n which to allow somebody to seek to organise an appeal. It is not necessarily a straightforward question of communication; it is a question of drawing together the grounds of appeal and obtaining legal advice. The benefit to the armed services in having properly drawn up appeals is one that we should not forget. Ill-considered appeals will not serve any purpose. We should reflect on the fact that in civilian life 21 days is considered to be the reasonable period for such appeals. To go to a period which is less than half that considered reasonable in civilian life is not a judgment we would wish to make.
  I reiterate: what is the point in giving somebody a right and at the same time making it extremely difficult for him or her to exercise that right? Moreover, although the noble Lord, in putting forward this amendment, believes it will simplify the Bill, in fact it will mean more work because there will be more ill-considered appeals and more grounds for people to feel that they have been badly treated.
  We have moved as far as we can to address the concerns of the noble Lord. We have done so in a spirit of compromise. If the noble Lord, Lord Burnham, does not recognise that spirit of compromise, I hope that others in your Lordships' House will. I hope that the noble Lord will not feel it necessary to press his amendment.
  Lord Burnham: My Lords, I do not remotely agree with the noble Baroness. She failed to recognise my point of what may happen when two people are convicted of the same crime and may want to be treated differently. However, I do not want to prolong this issue. I may have to decide whether or not to come back to it at Third Reading. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean moved Amendment No. 19:
  Page 40, line 12, leave out ("twenty-one") and insert ("fourteen").
  On Question, amendment agreed to.
  [Amendment No. 20 not moved.]
  Schedule 3 [Amendments of 1955 Acts and 1957 Act relating to summary appeal courts]:
  Baroness Symons of Vernham Dean Baroness Symons of Vernham Dean moved Amendments Nos. 21 and 22:
  Page 57, line 20, leave out ("twenty-one") and insert ("fourteen").
  Page 58, line 6, leave out ("twenty-one") and insert ("fourteen").
  The noble Baroness said: My Lords, with the leave of the House, I shall move these amendments en bloc. I beg to move.
  On Question, amendments agreed to.
  In the Title:
  Lord Burnham Lord Burnham moved Amendment No. 23:
  Line 4, at end insert (", to ensure compatibility) with the convention rights within the meaning of section 1 of the Human Rights Act 1998").
  The noble Lord said: My Lords, we come now to a last throw in our attempts to establish once and for all whether or not this Bill does all that is required of it. The wording is that of the Public Bill Office and not that of my noble and learned friend, although we had something similar.
  The amendment is designed to put the responsibility for the compatibility of the Bill with the Human Rights Act and the convention fairly and squarely on the Government. On the front page of the Bill the noble Baroness made a statement that in her opinion the Bill is compatible with the European Convention on Human Rights. We are looking to put it absolutely firmly on the face of the Bill in the Title. We are not trying to achieve anything that is not in the Bill, we are simply a little unhappy that the Bill does not do what it is designed to do. I beg to move.
  Lord Renton: My Lords, I see the intention of my noble friend in moving this amendment. It is desirable that the Long Title should in some way deal with the natural incompatibility between the Human Rights Act and maintaining military discipline.
  Those concerned, whether commanding officers or members of courts martial, will have to give priority to the maintenance of military discipline. I am doubtful—with deep respect to my noble and learned friend Lord Mackay of Drumadoon who is a distinguished Scottish lawyer, and to my noble friend Lord Burnham—whether the word "compatibility" achieves that purpose. I have some doubt about that. I suggest therefore that my noble friend does not press the amendment at this stage. But, in the light of this discussion and what the noble Baroness may say, another amendment may be tabled at Third Reading which achieves his purpose even better.
  Baroness Symons of Vernham Dean: My Lords, during all our debates so far on this Bill I have sought to make it clear that we place great store on ensuring that all our personnel benefit from their convention rights. As your Lordships are well aware, the purpose of this Bill is to address concerns about compatibility with the European Convention on Human Rights. However, we do not believe it is necessary to state that in the Long Title.
  To include this amendment would only be a duplication of what the Human Rights Act 1998 already provides; that is, that all primary legislation is required to be read,
  "in a way that is compatible with the Convention rights".
  That requirement is contained in Section 3 of the Human Rights Act and removes any need for provisions to be included in new Bills, stating that one

  1019
  of the purposes of the Bill is to ensure compatibility. The amendment is therefore unnecessary and I ask the noble Lord to withdraw it.
  Lord Burnham: My Lords, was it the Snark who said,
  "What I tell you three times is true"?
  I may have got that wrong.
  I feel that there would be no damage in the Government re-reiterating that this Bill accords with the European Convention on Human Rights. I listened to what the noble Baroness said, and possibly with even more care to what my noble friend said. In the light of their working in unison, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.

  Care Standards Bill [H.L.]
  5.49 p.m.
  Lord Burlison: My Lords, on behalf of my noble friend Lord Hunt of Kings Heath, I beg to move that the House do now again resolve itself into Committee on this Bill.
  Moved, That the House do now again resolve itself into Committee.—(Lord Burlison.)
  On Question, Motion agreed to.
  House in Committee accordingly.
  [The DEPUTY CHAIRMAN OF COMMITTEES (Lord Methuen) in the Chair.]
  Clause 68 [Amendment of Children Act 1989]:
  Lord Clement-Jones Lord Clement-Jones moved Amendment No. 128ZA:
  Page 30, leave out lines 14 to 22.
  The noble Lord said: Perhaps I may, first, welcome the Minister to Part V of the Bill, as we proceed not at a huge but I hope reasonable pace. In moving this amendment, I shall speak also to Amendment No. 173A. Both amendments relate to exemptions under Clause 68 of the Bill.
  Amendment No. 128ZA relates effectively to nannies. There are up to 100,000 nannies working in the UK, but there is no statutory requirement for a nanny or an au pair to have any training or specific qualifications. Nannies and au pairs are the only child carers not to face some mandatory form of registration. Child minders and day-care facilities will be registered and inspected by the new branch of Ofsted.
  New Clause 79A of the Children Act, which will be inserted by this Bill, excludes nannies, except where they look after the children of more than two families, and au pairs from the provisions of the Care Standards Bill. In our view, and in that of a number of voluntary organisations in the field, it is unacceptable that this Bill will improve the standards of only some forms of childcare but not of others. Children need protection
  1020
  in all its forms. This Bill provides an ideal opportunity to extend regulation to nannies and au pairs to safeguard children in these settings. We do not accept the Government's current argument that such regulation would be bureaucratically impossible.
  Amendment No. 173A is designed to establish whether the current exemption for independent schools under paragraph 1(1)(d) of Schedule 2 will continue to apply. This currently allows any institution registered as an independent school with more than five children aged over five and which employs a qualified teacher not to be subject to regulations and guidance under the Children Act 1989 and under the proposals contained in this Bill. There is concern that such a loophole would potentially allow deregistered day-care facilities to set themselves up as independent schools, employ a qualified teacher and take on a large number of children under the age of five without having to follow regulations and guidance.
  I believe that the department has indicated that an amendment may be tabled to allow for separate regulations on independent schools which would close the loophole. It has also indicated that HMI inspections of independent schools with children under five already ensure that such schools follow current regulations and guidance; and, indeed, that they will be served a notice if they do not. In addition, I understand that a consultation exercise is planned for the spring on independent schools and that this issue will be consulted upon as part of that wider process. I look forward to hearing the Minister's elucidation in that respect. I beg to move.
  Lord Jenkin of Roding: I should like to commend the Government for sticking to their guns on the question of the au pair. This is not always a straightforward relationship. I should perhaps declare an interest here and say that my wife employed a number of very satisfactory au pairs, but with differing degrees of experience. It is an essentially personal relationship; it is an extension of the family. In the ordinary au pair situation, the au pair, who is almost always a girl—but not necessarily—lives with the family, eats with the family and has an understanding as to how much of her time is to be spent looking after the children and how much is available for doing courses (often English-language courses) or for other activities.
  If the Government take the view that to try to regulate this activity is unacceptably bureaucratic, I can only reiterate, "Hear, hear!" If ever there were a case of proportionality, this is it. There are a few unfortunate cases, which always seem to attract newspaper headlines because there is something newsworthy about the au pair relationship. However, they represent a tiny number of the totality of families who have found the au pair arrangement eminently satisfactory. I strongly resist any suggestion that there should now be an entirely new extension of childcare requiring the registration, and all the rest of the paraphernalia, of au pairs. If I may put it this way, I hope that the Government will stick to their guns and

  1021
  not be beguiled by what I am sure will be a very eloquent case made by some of the interest groups and, indeed, by the noble Lord, Lord Clement-Jones.
  Lord Bach: Perhaps I may, first, thank the noble Lord, Lord Clement-Jones, for welcoming me to this Committee. I say that with some reservation because I know that noble Lords on both the Front and Back-Benches are expects in the field. Therefore, I approach the matter with some caution. Nevertheless, I am grateful to the noble Lord for his kind words.
  In responding to the noble Lord's amendments, I should like to speak also to Amendment No. 128A tabled in the name of my noble friend Lord Hunt of Kings Heath. I dc so because all three amendments in this group deal with providers exempted from the requirement to register as either child minders or day-care providers tinder the new Part XA to the Children Act.
  The effect of Amendment No. 128ZA would be to bring childcare provided in the parents' home under the regulation or Ofsted, or the assembly, while Amendment No. 173A would bring in any day care provided by independent schools. The Government fully understand the concerns which lie behind these amendments, although we take a different approach to tackling them. It may be helpful to the Committee if I set out briefly our plans in respect of these important issues.
  As regards Amendment No. 128ZA, the Government believe that care provided in the parents' home, such as that provided by nannies, baby sitters and au pairs, should not be subject to regulation in the same way as that provided by professional child minders, nurseries, playgroups, crèches, and so on. We have sought—and the noble Lord, Lord Jenkin, may get some satisfaction from this—a less bureaucratic approach, which, nevertheless, strengthens safeguards for children looked after in the home.
  Yesterday, the Minister for Employment and Equal Opportunities, Margaret Hodge, announced that the new guidance for nanny agencies of the Department for Education and Employment will be published in the spring of this year. The guidance will underpin the revised regulations governing all employment agencies to be issued by the Department of Trade and Industry. The guidance will include advice on areas such as identity checks and verification of a candidate's right to work; further detailed advice about checking work histories, qualifications and references; advice about interviewing candidates; and placing candidates with suitable employers.
  The Department for Education and Employment has worked closely with nanny agencies to draft a code of practice which will form the basis of the new guidance. I am sure that it will provide parents and agencies with the help that they need to minimise the risk of children being cared for by unsuitable nannies. In addition, last year the department, in collaboration with the Daycare Trust and the National Early Years Network, issued Need a Nanny, a guide for parents
  1022
  giving the advice and information that they need to check the background and suitability of a nanny before offering employment.
  We believe that there are practical problems to the regulation of nannies or the establishment of a register. For example, it would be very difficult to determine what constitutes a "good" nanny. Who would decide—and on what basis—whether someone was removed from a register? Would that be decided on the basis of the parents' word alone? Nannies can move from post to post quite regularly. It would be extremely difficult to keep a register up to date. We do not believe that it would be in anyone's interests to have a register that did not work and which may lull parents into a false sense of security. We believe in short that unless a register works it is better not to have a register at all.
  I turn now to Amendment No. 173A in the name of the noble Lord, Lord Clement-Jones. We share the concern that provision of day care in independent schools is not regulated to the same prescribed standards as other day care providers. That is why we have taken a power in the new Schedule 9A in Schedule 2 to this Bill to prescribe circumstances in which the exemption will not apply.
  We recognise that some may wish to see the exemption done away with in this Bill. However, we believe that in the first instance it is appropriate to consult the independent schools sector on this issue. As part of a wider review of the regulation of independent schools, the department is to carry out a consultation exercise this year. The consultation will seek views on strengthening the existing requirements for day care in independent schools to bring them into line with those required in other settings. The department will make proposals following the outcome of that exercise and until that process is complete it would not be sensible or right simply to remove the exemption.
  I turn now to the Government's Amendment No. 128A. This amendment relates to the exemption from regulation of informal evening baby-sitting arrangements provided away from the parents' home. It is necessary because, as drafted, the current wording would unintentionally exempt much professional after-school care provision from regulation.
  We believe that it is important to ensure that informal arrangements such as evening baby-sitting are exempt from regulation and that we avoid unnecessary regulatory burdens whenever that is possible. However, it is not our intention to exempt from regulation professional arrangements for after-school care—a form of care which, as the Committee will know, is vital to so many working parents.
  The amendment is therefore essentially a correction which restructures current wording to prevent the existing two-hour disregard in new Section 79A(7) being "added" to the evening baby-sitting exemption over two days, thereby extending the total exemption period from 4 p.m. on day one until 2 a.m. on day two.

  1023
  In simple language the net effect would be to restrict the baby-sitting exemption from 6 p.m. until 2 a.m. instead of 4 p.m. to 2 a.m.
  6 p.m.
  Lord Clement-Jones: I thank the Minister for his considered response. Unlike the noble Lord, Lord Jenkin, I cannot say that I have experience of employing nannies or au pairs. Indeed I cannot comment on his statement that only a small number of problems arise with au pairs or nannies and that essentially they are regarded as part of the family. However, I am concerned about the quality of care that they provide. If they are considered to be members of a family and enjoy a huge amount of trust, that is precisely where problems may arise. I appreciate the Minister saying that he accepted the concerns that have been expressed even if the way that he mentioned of dealing with those concerns was rather different from what has been suggested by others. I was grateful to the Minister for setting out how he believes the safeguards are being strengthened in terms of the new guidance for nanny agencies which is shortly to be issued.
  I believe that the best way to deal with the amendment is to consider that guidance in detail. I hope that it will be issued as the Bill progresses through this Chamber and possibly before Report stage. That would be helpful. Then one would be able to judge whether the regulation of nanny agencies will be tightened up in the way that the Minister suggested. I accept that practical problems arise when one deals with nannies and au pairs in individual households. However, it is important to find some means to ensure that standards in this area are maintained and improved.
  I also thank the Minister for his response to Amendment No. 173A to new Schedule 9A. I very much hope that the consultation will be designed to be completed to enable time to be given—in this Chamber or in another place—to consider its conclusions and to table suitable amendments to the Bill, if that is considered appropriate. If, following the consultation, conclusions were reached that a different kind of exemption would be appropriate, it would be unfortunate not then to be able to amend the Bill. That would represent a missed opportunity. I am not sure what future opportunity could easily be found to amend the legislation if we miss the opportunity to do so as the Bill progresses through Parliament. I hope that the consultation will be speedily completed. The Minister mentioned the spring but I do not know whether he can give us a further indication as to when the consultation might be completed. The Minister does not indicate any knowledge of that. I shall withdraw the amendment but look forward to further information on that point at a future date. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Bach Lord Bach moved Amendment No, 128A:
  Page 30, line 38, leave out from ("any") to ("is") in line 39 and insert ("day on which he does not act as a child minder at any time between 2 am and 6 pm").
  On Question, amendment agreed to.
  [Amendment No. 129 had been withdrawn from the Marshalled List.]
  Lord Laming Lord Laming moved Amendment No. 129A:
  Page 30, line 42, leave out from ("is") to end of line 45 and insert ("the National Care Standards Commission").
  The noble Lord said: This amendment relates to new Section 79B on page 30 of the Bill. I hope that I may be permitted to remind the Committee that the Bill is entitled the Care Standards Bill. It seems to me that the title of the Bill is entirely correct in that for the most part its aim is to strengthen the quality, reliability and effectiveness of care—mainly social care—in this country. It is not an education Bill. This is the only section of the Bill which refers to education. In my view it sticks out like a sore thumb. There is no reason given for this unexpected and, what seems to me, irrational change.
  This is a serious matter; it is about the care standards experienced by many thousands of very young children. When parents leave their children with a child minder, often for many hours of the week, they need to have confidence not only that the child minder has been properly registered but also that the standard of child care practice is of a good quality. Some very young children spend most of their waking hours in the care of child minders. Therefore over the years the Department of Health has gone to great lengths to establish good guidance on child care practice, reinforced by legislation and regulation, and monitored through an agreed process of inspection.
  I have no doubt, however, that the system of inspection and regulation of child minders can be improved, and would be improved, by the work and experience of the national care standards commission which the Bill establishes. I hope that the Committee will excuse some unparliamentary language when I say that frankly it seems to me just plain "daft" now to transfer this task of regulation and inspection to the Chief Inspector of Schools. I can see no relationship between the task of regulating and inspecting child minding and that of the Chief Inspector of Schools.
  In order to emphasise that child minding is about social care and about good child care practice, and certainly not about education, I remind the Committee that it is not unusual for a social services department to reach an agreement with a parent of a young child who may be at risk that the child should be placed with a child minder. There are in this country some quite exceptional child minders who not only contribute to the assessment of the development needs of the child but also work ably with the parents. This is good child care practice at its best.
  I hope that, although I have expressed my concerns with brevity, the Government will be willing to look again at this proposal because I feel deeply troubled as regards transferring the regulation and inspection of

  1025
  child minders at this stage from the Department of Health and social care specialists to the Chief Inspector of Schools. I beg to move.
  Lord Clement-Jones: I support the amendment of the noble Lord, Lord Laming. I had not considered fully all the implications when we discussed this matter at Second Reading. The noble Lord, Lord Hunt of Kings Heath, had the courtesy to write to me. I raised the issue of the resources that would be available to Ofsted and I received some assurance that these would be considered. However, it seems to me that the arguments of the noble Lord, Lord Laming, on the practicalities are extremely powerful in these circumstances. My arguments at that stage were about resources, but if one adds the two arguments together, one has a very powerful case against transferring to Ofsted.
  Lord Jenkin of Boding: I too support the amendment of the noble Lord, Lord Laming. I say straightaway that he knows a thousand times more about this subject than I do.
  I have the impression that this extension of the remit of Ofsted has been greeted with some derision in certain circles. I think I am right in saying that the phrase "Oftot" has been used by some commentators.
  The noble Lord made the case that this is primarily a matter of care standards; it is not primarily a matter of education. I entirely concede that a good childminder is perfectly capable of assisting in the education process of a child, but so are the parents. Anyone who has the care of a child—if he or she is doing so properly—is constantly aware that he or she is actually promoting the child's education in the widest possible sense.
  That does not seem to me to be a matter that lies easily within the remit of Ofsted. To my mind, since it was set up by the previous administration, Ofsted has established its authority, its expertise, its credibility and its acceptability in a most remarkable way. However, it is essentially concerned with the formal education of children in schools. This extension to becoming the authority responsible for monitoring childcare, and day care by childminders of the kind we are talking about, would be of an entirely different character. To my mind, the matter essentially lies within the scope of the new care standards commission, which, after all, has a range of similar objectives in relation to other establishments.
  Quite frankly, I am puzzled and astonished as to why the Government should consider that Ofsted is the right home for this particular extension. I agree that there should be proper control of standards, proper monitoring and proper registration, but it does not seem to me that that is an Ofsted function; it should be a function of the new commission. The noble Lord, Lord Laming, is right. I hope that the Government will listen carefully to an argument coming from such an authoritative source.
  6.15 p.m.
  Lord Bach: We know of the great expertise in this field of the noble Lord, Lord Laming, and any amendment he moves will of course be treated seriously.
  On this occasion he raises an important issue: which body should have responsibility for the regulation of day care and childminding in England. I am grateful for the opportunity he gives to set out the Government's position on this matter and to attempt to allay any concerns which may have arisen as a consequence of the decision to transfer the regulatory function to Ofsted.
  That the regulatory function—and, in particular, the consistent application of standards—should be carried out by a single national body rather than by 150 individual local authorities, as at present, is, I venture to suggest, not in question. Responses to the Government's consultation in 1998 on the regulation of childcare showed clearly the importance attached to the delivery of regulation being consistent across the country; nor is there any doubt that integrating day care regulation and nursery education inspection will reduce burdens on providers.
  Having a single regulatory authority operating the national standards will ensure that a child's welfare and safety will no longer be a matter of geography but one of consistency across the country. We believe that the present system has become, in effect, one of localised regulation, which has led to widely varying interpretations of guidance in different parts of the country. A national framework will help to ensure a level playing field for providers and will deliver clarity for both the regulated and the regulator.
  In reaching its decision on which body should be responsible for regulation, the Government were bound to be aware of some people's perceptions of Ofsted, particularly having heard the notable contributions to the debate today. I refer, for example, to the perception that Ofsted has no experience of the provision of childcare and that, as a consequence, this will lead to an education "take-over". We acknowledge that that is an important concern. It is one which all who have spoken to the amendment so far have reiterated.
  The Government's decision to cast Ofsted in the role of regulator does not ignore these concerns and it is important that I explain the rationale behind the decision. I should also like to reassure the noble Lord, and others who share his concerns, that the well-being of our children will remain the highest priority under the new and distinct early years directorate, which will be established within Ofsted and headed by the early years director, a new post created to carry out this important work.
  First, and most importantly, the legislative provision set out in the Children Act 1989, which this Bill seeks to improve further, presents a very clear framework to ensure that the care, welfare and development of children is at the heart of the regulatory function. A new framework of standards will be set by the Government for the provision of care

  1027
  and Ofsted will work within this framework. These legal responsibilities simply cannot be ignored or played down, and there is no doubt that Ofsted has every intention of fulfilling its legal duties in this respect.
  I must also make it clear that there is no intention of ignoring or marginalising the vast amount of expertise of the staff currently involved in this work. It is the Government's intention that local authority inspectors, managers and administrative staff will be given the opportunity to transfer to the new early years directorate, bringing with them their knowledge and experience. It is essential that the best of the existing system is maintained in the new one. The necessary competence to carry this forward is currently vested largely with those working in the local authorities.
  I do not think it is unparliamentary language—nor do I think that what the noble Lord, Lord Laming, said was unparliamentary—to put the matter directly. Ofsted does not have hundreds of staff hidden away waiting to take on this work. The early years directorate will achieve greater success if many of those doing the job now opt to continue to do it.
  In coming to their decision, the Government had regard to the burden that dual inspection placed on many providers. Bringing together the regulation and inspection systems for early years childcare and education in England signals an end to the confusion and duplication which operating two separate regimes has created.
  There are a number of other practical considerations to take into account. Ofsted has experience of inspecting new areas of provisions and of successfully putting in place the means to do this. In 1992, Ofsted was given the task of setting up an independent system of school inspection. It had to devise a framework for inspection applicable across all schools, recruit sufficient numbers of suitable inspectors and ensure that they were appropriately trained in the framework and in quality assurance throughout the whole process. We believe that this was done successfully, not only meeting the targets but achieving quality inspections.
  When Ofsted was given the function of inspecting nursery education, that was also new to them. They have made a success of this by drawing upon and harnessing the expertise of those in that sector and training them for the purposes of raising and ensuring the standards of education for four year-olds, now being extended to cover three year- olds. Inspection of nursery education has also been generally successful because Ofsted has worked in close partnership with providers and relevant bodies such as early years development and childcare partnerships in this sector.
  Ofsted has undoubted considerable experience in driving up standards. It has always delivered what has been asked of it and it has never failed to meet its targets. Ofsted has a national framework for education inspections and, most important, it already has in place a national and regional organisational structure.
  1028
  Furthermore, Ofsted has experience of publishing inspection reports—an important aspect of the new legislative framework—enabling providers and parents to see the quality of provision at present and what the provider needs to do to make it better. Ofsted has experience of producing thematic reports on more general trends in the provision of education. These types of reports will be important in giving an overview of the national position as regards childminding and day-care provision.
  This experience will be invaluable in bringing together the best of two existing systems of regulation and so maintaining the highest standards in both welfare and education.
  I have taken a little time to explain the Government's rationale in the decision they have made. I sincerely hope that the noble Lord and other noble Lords who have spoken are happy with this explanation of how the Government came to their decision on Ofsted and how Ofsted will operate within the new framework. I hope also that the noble Lord will consider what I have said and will take the opportunity—which of course he knows exists—to meet with myself and others to discuss further this Government decision in the weeks ahead.
  Lord Jenkin of Roding: Before the noble Lord, Lord Laming, responds to the Minister, I should like to make two points and to ask one question. I shall start with my question. The Minister laid great stress on not only the desirability but the fact that it would be essential that those who have gained great expertise in this field—principally in local authorities—will be those who will take up the staff posts on offer in the early years directorate. Has the Minister any idea of what proportion of those people will come from local government departments other than the social services department? How many will come from the education department of a local authority? My guess is probably very few indeed, because this area has always been seen to be a social services activity.
  First, the Minister made a powerful case, which I do not challenge for one moment, of the desirability of setting national standards in this area. If I may say so, much of his speech was directed to an argument that no one who spoke in the preceding debate had addressed. We accept that point as taken for granted. We are concerned why the area of childminding should in future be regarded as an extension of the education responsibilities rather than the welfare responsibilities of an authority.
  Secondly, I sometimes feel that it is a pity that Ministers do not have a second pair of eyes in the back of their shoulders. If, when the Minister was speaking, he had seen the reaction of some very experienced noble Lords sitting more behind his right shoulder than behind his left, I believe that he would have advanced his arguments with rather less confidence. Before we finish the debate, I hope that the Minister will give us some indication that he is now prepared to listen to the arguments rather than merely attempt to

  1029
  persuade the Committee. This is an important matter and I am deeply unhappy about the way the Government have chosen to move forward.
  Lord Bach: I believe there was a question in the comments of the noble Lord. In one regard in particular, let me say that we accept that what has happened under the existing circumstances has not always been a social services responsibility. Around one-third and rising of inspection units are now based in education departments.
  Lord Jenkin of Roding: Two-thirds in social services.
  Lord Bach: That is so. The noble Lord said that most of my speech was directed towards an argument with which everyone agreed. On reflection, perhaps the noble Lord may accept that part of my speech sought to lay the ground on the matter. However, I was attempting to deal with those elements of the Government's decision that are controversial.
  The transfer of staff will be a TUPE transfer. With his great experience in the field of local government, the noble Lord will understand that point. Those currently doing the job will transfer from their current positions as a matter of local authority organisation.
  What the noble Lord does not seem able to accept—and this may also be true of other critics—is that the idea that nursery education and childcare can be kept apart somehow and that the one should not touch upon the other is a notion the Government believe to be out of date. The two parts must be brought together. The question then remains of who is best placed to bring them together. We are of the opinion that allowing Ofsted to take responsibility for this task does not in any way detract from the responsibility of ensuring that childcare and child welfare is an essential part of our programme.
  While I may not have eyes in the back of my head, I hope that, from where I am standing, I can recognise that real concerns have been expressed about this issue. Of course the Government will continue to listen to those concerns. The noble Lord heard me make that point in my speech, as did the noble Lord, Lord Laming. However, I cannot suggest for a moment that the Government are minded to change their mind on the decision to give Ofsted the responsibility, under the new directorate, to look at this field. However, we shall continue to listen to the arguments.
  Lord Laming: I am extremely grateful for the powerful support I have received from the noble Lord, Lord Clement-Jones and the noble Lord, Lord Jenkin, who of course has vast experience in this field. I am grateful also to the Minister for his detailed response, even if he does think that I am out of date on this matter.
  First, I have no disagreement with the Minister on the need for uniformity and I accept that that is the reason that lies behind the Government's decision to establish a national care standards commission. That will achieve the very uniformity that formed a key plank in the Minister's response.
  1030
  Secondly, I should like to make clear that I make no criticism of Ofsted as a body that is suitable for the inspection of education. Furthermore, I do not believe that any other contributors to the debate have doubts about that body. Many of the noble Lord's points about the qualities of Ofsted are not in dispute. The Minister said that Ofsted publishes all its reports. Well, the national care commission will do so as well. Indeed, an amendment to that effect standing in my name was considered earlier in the Committee's consideration of these matters. There is no dispute about the benefits of uniformity and there is certainly no dispute about the need for reports to be published; nor is there any dispute about the need to have good national standards.
  However, I regret to say that the Minister has failed to convince me on the need to recognise that care in a childminder's home is quite different from nursery education. There is every reason for having two systems. One should deal with childcare practice and childcare standards. That is what we should expect good parents to provide for a very young child in their own home. That is different from what we expect in nursery education or in other forms of education. It is entirely right that there are two separate systems. As the noble Lord, Lord Jenkin, rightly said, there is every reason why the two will come together at particular points, as good parents come together with the education system at particular points. However, we should not try to blur the distinction between the two functions; nor should we attempt to weaken good childcare practice at this stage. I believe that this measure, however well intended, will seriously weaken childminding in this country. I have no doubt about the need to improve childminding, but the way to do that is by building on existing practice and doing that through the national care standards commission.
  The Minister kindly said that there can be further discussions on this point. I welcome that opportunity for further discussions. I shall approach those discussions having been reinforced in my belief that the Bill is wrong in this regard. While I am happy at this stage to ask the leave of the Committee to withdraw the amendment, I hope very much that we can continue the dialogue elsewhere. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  6.30 p.m.
  Lord Bach Lord Bach moved Amendment No. 129B:
  Page 31, line 5, leave out ("and every prescribed person").
  The noble Lord said: On behalf of my noble friend Lord Hunt of Kings Heath, in moving Amendments Nos. 129B, 129C and 129D, I shall speak also to Amendments Nos. 129DA and 173B.
  Lord Jenkin of Roding: Perhaps the noble Lord will allow me to intervene. Is not the correct procedure that the Minister should move the first amendment in the group and not the others? He is speaking to the others.

  1031
  I hesitate to intervene but I think that we should get these matters right. If I am right—I believe that I am—I hope that the Minister will accord with that.
  Lord Bach: The noble Lord is of course right. I am extremely grateful to him for putting me right. I hope that I do not make that mistake again.
  In moving the first of the amendments, I shall speak to the others. I shall speak also to Amendments Nos. 129DA and 173B, standing in the name of the noble Lord, Lord Clement-Jones. These amendments together relate to important issues concerning suitability—
  Lord Clement-Jones: On a matter of procedure, I understood that the Minister would normally move the lead government amendment, speak to the other government amendments and then we would have the opportunity to speak to our own amendments—not moving them but speaking to them—and that the Minister would respond at the end. If I have that wrong, the noble Lord can correct me.
  Lord Bach: I am grateful to the noble Lord, Lord Clement-Jones, although I still have at the back of my mind his welcome to me a few minutes ago. I think that I was right to be cautious.
  I shall do precisely what the noble Lord said. The purpose of Amendment No. 129B is to remove an unnecessary regulation-making power in relation to the suitability of persons. The power as drafted allows the Secretary of State to prescribe the people—other than the childminder and anyone else looking after the children—who must meet the requirement to be suitable to look after children under the age of eight. This would be a necessary qualification of registration. However, the power was designed particularly to catch proprietors, managers and committee members of day care establishments who may from time to time have occasion to look after children under the age of eight. This has been unnecessarily replicated at what will be new Section 79B(3) of the Children Act 1989 to apply to a childminder's premises and should be removed.
  Amendments Nos. 129C and 129D deal with the question of suitability of equipment. These are correcting amendments which seek to clarify that a person is not qualified for registration unless equipment in day care and childminding settings is not only in good condition but is also appropriate. The amendments will improve the Bill and ensure that equipment—for example, toys—is appropriate to the age and ability of the children. That will help to prevent those toys designed for older children—for example, those with very small parts—being made available to babies. I beg to move.
  Lord Clement-Jones: I thank the Minister for arranging matters so as to allow me to speak to Amendment No. 129DA. My noble friend Lady Barker will speak to Amendment No. 173B. I am sure that the Minister will rewrite his reply after hearing my arguments.
  1032
  The amendment is designed to establish how the new clauses regulating the registration of childminding and day care will work. They are designed to establish that inclusion of a registered person on the Section 1 list under the Protection of Children Act 1999, along with other lists and conditions, is not explicitly a pre-condition of registration of childminding and day care services. It is clear from the clauses what events give rise to disqualification. But additional to that, we propose that there is a positive approach of ensuring that certain categories of person are not included and cannot be registered. In a sense, the amendment is designed to elicit whether that is explicitly the case in the Bill. For that reason we have included in the amendment a rather long subsection which seeks to define someone who is not considered suitable right at the very outset for the purpose of registration, so that rather than awaiting disqualification, one never registers these people in the first place.
  Baroness Barker: In seeking to move Amendment No. 173B—
  Lord Clement-Jones: Speak to!
  Baroness Barker: I was going to say to the Minister that it is comforting to know that someone else is about as proficient as I am in the procedures of the House.
  I believe that the noble Lord, Lord Laming, will take an interest in Amendment No. 173B, given that he has just spoken about the difference between day care and childminding facilities and schools. This amendment seeks to do precisely the opposite. It seeks to establish whether those in charge of childminding and day care facilities should have the same responsibilities as schools for child protection.
  Throughout our debates a number of noble Lords, including the noble Lord, Lord Laming, have spoken very much from the point of view of people who are or have been practitioners. I take a rather pragmatic view of this issue. Although I have not worked in the field of the provision of children's services, I am given to understand by those who do that being aware of children exhibiting signs of having been abused is very common and ordinary within daycare and childminding settings and settings where young children are engaged in play.
  In proposing the amendment, it is therefore our intention to find out whether childminders and people in the provision of day care for small children will have the same duty of care and child protection as do schools.
  Lord Jenkin of Roding: I wish to ask about "appropriateness". I should explain, rather than declaring an interest, where I come from. I chair a charitable trust connected with Queen Mary and Westfield College, east London. One of the objectives of the trust is to assist in the education of women, which was the role of Westfield College before the merger.

  1033
  One of the earliest decisions my trust took was to finance a creche for the benefit of the very young children of both staff and students. I was surprised to find that our college was one of the few in London University that did not already have a crèhe. I ask a question in relation to some of the experiences we had with that and the problem of satisfying the local authority that the facilities fulfilled the requirements. We are talking about "appropriateness", the Minister referred to equipment being suitable for young children. Some of the requirements of the local authority for the establishment of the créche went some way beyond what those responsible for running it considered reasonable in the circumstances. One could have taken the matter to appeal, I suppose, but in the end the trust financed the necessary changes.
  One point was that the local authority required the uncovered open area outside to be covered in a specially soft and resilient covering so that, if the poor little people fell over, they did not bruise themselves. One can understand the desire of the regulator constantly to want to guard against every conceivable risk. My feeling is that, if a child falls over and hurts itself, it learns not to do it again. That is part of growing up.
  I should be sorry if, as a result of the merger of responsibilities for nursery schools and similar establishments with responsibilities for child minders, one would have the same attitude spilling over into the provision of child minding, requiring child minders to install every conceivable measure for the avoidance of any possible injury to children in their care. It could not be reasonable and if one went too far down that road, one would end up destroying the facility. People would say, "I'm sorry, I can't do this, I can't afford what is necessary". I ask the Minister to give an assurance that the requirements for equipment, premises and the other matters mentioned in the subsection for child minders will be appropriate and proportional to the service provided. That is the kind of thing lying behind the anxieties expressed by the noble Lords, Lord Laming, Lord Clement-Jones and myself on the previous amendment. We have had experience of such high standards being imposed on a créche and we wonder whether that will happen to every child minder in the land. It cannot be in the interests of the children and parents or of the achievement of high standards.
  Viscount Bledisloe: I wish to ask a question about Amendment No. 129DA in the name of the noble Lord, Lord Clement-Jones. As I understood him, he said that the people listed in paragraphs (a) to (j) are not suitable, but other people may also be unsuitable even though they do not fall into any of those categories. I venture to suggest that, as his amendment is drafted, there is a nasty risk that no one could be held to be unsuitable unless he fell into one of those categories. The list is likely to be construed as exclusive. A person who is unsuitable on general
  1034
  grounds but does not fall into those categories could no longer be held to be included if the amendment were accepted.
  Lord Clement-Jones: I entirely agree with the noble Viscount. There are defects in the drafting in that respect and we do not wish to curtail other ways in which someone would be not suitable for the purpose of that clause. At this stage, as so often at Committee stage, the amendment is designed to establish a principle.
  6.45 p.m.
  Lord Laming: I wish to say something in this important debate. There was a time when it was extremely difficult to get child minders to register. There was a great resistance to registration and a feeling among many child minders that, if they registered, then all manner of bureaucratic demands would be made of them, some expensive, as has been described.
  The way in which it was possible to persuade childminders to register was through working in partnership with them in ensuring that their talents and experience as parents were used positively and creatively in parenting someone else's child during the time they had that responsibility.
  The situation requires not only sensitivity to the issues but also understanding of the position of a child minder, not only in terms of the enormous responsibilities a childminder takes on for someone else's child, but also in terms of the kind of support and help they need.
  When it comes to dealing with children who may be thought to be at risk or children who have special needs, working in partnership with childminders requires particular skills. It seems to me that the amendments underline the points already made. I hope that the Minister will view the amendments as a positive contribution to the debate.
  Lord Bach: I shall attempt first to deal with the remarks of the noble Lord, Lord Jenkin, on his fear that "appropriate" may be so harshly defined that too harsh standards are set. I can give him the assurance that he sought, but we are determined to have national minimum standards and it is important that equipment is appropriate. However, I believe that he need not worry too much about what he fears.
  I deal now with Amendment No. 129DA, to which the noble Lord, Lord Clement-Jones, spoke. It refers to the definition of suitability of persons to look after children under the age of eight. The Committee will know that the Bill currently provides a power for the Secretary of State to make regulations about the grounds on which people will be disqualified from being registered. Schedule 2 makes it clear that the grounds may include all matters listed in the amendment. To that extent, it replicates existing regulation-making powers and seeks to stipulate the definition of suitability on the face of the Bill. While regulations will need to cover a wide range of issues to

  1035
  be taken into account, I believe that the Committee would agree that it would be cumbersome to seek to specify every issue in the Bill which we may want to cover.
  The issue of which persons are suitable to look after young children is a fundamental part of the revised regime that this Bill will create. It is essential that we ensure that we do not constrain unnecessarily the matters which should be taken into account when day care providers and child minders seek to register to care for young children. We need to have flexibility to respond effectively to new developments which may arise in future for protecting children from harm; for example, new arrangements for identifying and recording those deemed unsuitable to work with children. We believe that the regulation-making power set out in the Bill gives us that flexibility.
  It is of crucial importance that a proper balance is struck between safety and unnecessary regulatory burdens on business. We believe that such detail is not appropriate for primary legislation. For example, it will not be necessary to include all the matters listed in the amendment as grounds for disqualification, since the Government intend to introduce legislation in a crime and public protection Bill in this Session to implement the recommendations of the inter-departmental working group on preventing unsuitable people from working with children. When that Bill comes before this House, it will provide that a person who is convicted of one of a number of offences against children (to be specified) is to be banned from working with children. A similar ban will apply to persons who are included on the Department of Health's new list or the Department for Education and Employment's List 99 because they are unsuitable to work with children. By that disqualification the person is banned from becoming a day care provider or child minder. There is therefore no requirement to consider such a person's suitability, which is the test applied to each application for registration.
  Amendment No. 173B, which was spoken to with such proficiency by the noble Baroness, Lady Barker, draws our attention to a very important and fundamental principle of Children Act regulation: child protection. I am grateful to the noble Baroness for giving me this opportunity to state the Government's position on this important matter. I hope that noble Lords will be reassured that this Bill already includes powers for us to make regulations to govern the activities of registered persons who act as child minders or provide day care and to impose duties on the chief inspector to have regard to the standards prescribed in regulations. We therefore question the need for a specific reference to such matters as are set out in the amendment tabled by the noble Baroness. We urge that such detail is not appropriate for primary legislation.
  I restate the commitment of the Government to consult widely on new national standards for the regulation of day care providers and child minders. Child protection and behaviour management are exactly the kinds of issue on which we want to gain a
  1036
  wider view over the next few months. The Government are committed to considering the responses carefully. However, the Government believe that it is inappropriate to pre-empt that consultation by committing themselves now to the details of the national standards and the regulations that they will underpin. Having made those comments on the two amendments that have been spoken to, the Government are grateful to the noble Lord and noble Baroness for having raised what are undoubtedly very important issues.
  On Question, amendment agreed to.
  Lord Bach Lord Bach moved Amendments Nos. 129C and 129D:
  Page 31, line 12, at end insert ("and appropriateness").
  Page 31, line 29, after second ("condition") insert ("and appropriateness").
  On Question, amendments agreed to.
  [Amendment No. 129DA not moved.]
  Lord Clement-Jones Lord Clement-Jones moved Amendment No. 129DB:
  Page 32, line 5, after ("Inspector") insert (", early years development and childcare partnerships").
  The noble Lord said: I failed to mention in the context of the previous set of amendments my gratitude to the Minister for having taken the trouble to write in advance of the government amendments.
  Amendment No. 129DB is concerned with consultation provisions related to regulations applicable to child minders and day care providers. In particular, the amendment is designed to elicit from the Government the consultation mechanisms and the way in which they propose to introduce early years development and child care partnerships. Early years development and childcare partnerships were initiated in 1998 as a result of the School Standards and Framework Act 1998. As I understand it, each local authority, at least in England, now has an operational partnership. All produced a comprehensive early years development and child care plan by the winter of 1999. I believe that a second plan is being prepared by all of them for 2000–2001.
  The responsibilities which the local authorities share with the partnerships include not only the production of the required number of annual reports but also a complementary annual childcare audit and detailed development and expansion programmes to cover every aspect of early years and childcare services, including training and support for the development of quality. I understand that at least 25 of the 148 partnerships and their respective authorities have begun to produce local quality assurance schemes, such as the Sheffield Kitemark. Many others are in train.
  I also understand that each partnership must have a chair and comprise local people who represent all groups of providers, employers and parents. They are beginning to develop as active local forums within which parents and other key stakeholders can formulate a local vision for the provision of services

  1037
  for children in their particular areas. It is arguable that every aspect of a partnership's responsibilities impacts on the ultimate quality of the care and learning support received by the children in its area. There must be a clear linkage—this is the purpose of the amendment—between the role of the partnership and Ofsted as the external regulator, whatever one may think of that body (one hastens to add) as performing that role. That will offer significant added value to the existing Ofsted organisation and evidence a real measure of local partnership with parents and providers. I beg to move.
  Earl Howe: In rising to speak to Amendment No. 135, I associate myself with the remarks of the noble Lord, Lord Clement-Jones. One of the inevitable consequences of this part of the Bill is that the role of local authorities will be considerably reduced. But it would be very foolish if the corporate wisdom, as it were, of local authority registration and inspection teams was allowed to evaporate. It is that element of local knowledge, and often considerable development and support work, which will be immensely valuable to Ofsted. If anything, I believe that the local dimension will be required even more than before with Ofsted operating, as inevitably it will be, on a somewhat less localised basis than the present inspection teams. Ofsted will need all the support that it can get in its regulatory role to ensure that it is as close as it can be to each of the many cultures that influence early years education and child care in various ways.
  While the wording of my amendment is somewhat more general than that of Amendment No. 129DB, its intended purpose is very similar. I too am interested to learn from the Minister what role he sees for early years development and child care partnerships. I agree with the noble Lord, Lord Clement-Jones, that they should be consulted from the outset not only for what they can bring to the table in terms of effective planning but for the advice that they can give from the perspective of quality assurance. Most people agree that these partnerships act as an effective channel to convey parental issues and concerns.
  Lord Laming: I do not want to give the impression that I have lost hope on the fundamental point. I support the observations of the noble Lord, Lord Clement-Jones, and the noble Earl, Lord Howe, about ensuring that the current experience and philosophy of many, although not all, local authorities are available in whatever future arrangement is decided upon.
  Lord Bach: I thank noble Lords who have spoken in this short debate. I should like to speak also to Amendment No. 134B in the name of my noble friend Lord Hunt of Kings Heath. Obviously, partnerships are intended to play a very important role in the system that is developing.
  Amendment No. 129DB would require the Secretary of State to consult early years development and childcare partnerships before making regulations governing the activities of registered providers. The
  1038
  regulations in question may cover how providers deliver their services or how Ofsted fulfils its regulatory function. The provision in the Bill as drafted requires consultation with Ofsted and enables the Secretary of State to consult any other party he (the Secretary of State) considers appropriate.
  We are sure that it will often be the case that partnerships prove a valuable source of expertise. However, it may not be appropriate to burden partnerships with the requirement to consider proposals for regulation in every case; for example, where the regulations under consideration relate to how Ofsted fulfils its regulatory functions. We therefore think it more sensible to allow the Secretary of State to use his discretion on a case by case basis.
  The intention of the amendment in the name of the noble Earl, Lord Howe, is to ensure that local authorities in England co-operate with the chief inspector. We believe that that is a desirable requirement. A similar provision already exists in the Children Act which requires authorities to assist each other under the present regulatory system. It is only sensible that this requirement should be carried forward when Ofsted assumes the role of regulator. However, we do not believe that it is necessary to amend Clause 68 as proposed. The objective of the amendment is achieved already in Schedule 2 to the Bill, which inserts a new Schedule 9A into the Children Act. Paragraph 8 of the new schedule enables the chief inspector and the National Assembly for Wales to ask for assistance from local authorities. In turn, authorities are required to provide the assistance requested where reasonable to do so. That is an important provision.
  The Government's amendment, Amendment No. 134B, enables regulations to be laid in support of the general duty set out in new Section 79 concerning the provision of training, advice and guidance by local authorities. As drafted, new Section 79 would require each individual authority to determine how it might fulfil this function. That could lead to 150 different approaches across the country and precisely the kind of inconsistency we are seeking to do away with. Taking a regulation-making power would enable the Government to develop a more strategic approach, guided from the centre. For example, the regulations could set out the involvement of and interaction with those same partnerships which we in this House believe have an important role to play; namely, the early years development and childcare partnerships which draw up and agree early years development and childcare plans in each local authority area and which play a key role in the local delivery of the overall national childcare strategy.
  Such an approach would allow for the proper allocation of the function between local authorities and early years development and childcare partnerships and ensure no unnecessary overlap and duplication locally. On that basis, I ask the noble Lord to consider withdrawing the amendment.
  7 p.m.
  Lord Clement-Jones: My Lords, I thank the Minister for that considered reply, and in particular his words about early years and childcare partnerships. I liked the language on consultation as far as it went: that it would not be appropriate to burden the early years development and childcare partnership with consultation in certain circumstances. I am sure that by and large they would be more than happy to be burdened. However, that is ministerial language.
  I understand the Minister's position as regards discretion for consultation being used on a case by case basis. However, I suggest that it would be preferable for the Minister, as agent for the Secretary of State, to set out the general circumstances in which he believes it would be right to consult. A more positive and specific provision at a later stage of the Bill would be helpful. The assurance that the Secretary of State will consult where appropriate is not good enough. Perhaps the Minister would consider a more concrete form of words. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Bach Lord Bach moved Amendment No. 129E:
  Page 34, line 2I, leave out ("members of the public") and insert ("any person").
  The noble Lord said: This amendment stands in the name of my noble friend Lord Hunt of Kings Heath. It is a short amendment. It extends access to the regulatory authorities' register of childminders and day care providers to any person. This improves current drafting to put beyond doubt that individuals in organisations acting in an official capacity (for example, partners and staff in the partnerships referred to in the previous debate) as well as members of the public (for example, parents wishing to secure childminding or day care services), will have access to the register. I beg to move.
  Lord Jenkin of Boding: My Lords, I understand what the Government are getting at. However, I should have thought that the expression "inspection by the public" has entered into the minds of the body politic over the decades and that one does not need to give an extended meaning to the word "person", as the Minister sought to do by referring to partnerships, bodies, and so on. If one simply says that the register is open to inspection by the public, everyone knows what that means.
  It would be easier—I am sorry that I did not think of it myself—simply to take out the words "members o' and then the matter would be clear. Everyone would understand what the provision meant.
  Lord Bach: My Lords, I am grateful for the noble Lord's comment. However, we believe that the minor amendment we propose is probably the best way of ensuring that organisations in an official capacity are covered by the clause.
  On Question, amendment agreed to.
  Lord Rix Lord Rix moved Amendment No. 130:
  Page 37, line 36, after ("training") insert (", including disability equality training,").
  The noble Lord said: My Lords, before moving the amendment, perhaps I may crave your Lordships' indulgence and assume once again for one moment the role of a rogue and vagabond in apologising to the House for my unavoidable absence for the second half of the performance last Thursday, after the dinner interval. I thank my noble friend Lord Laming for assuming my part at such short notice and proving to be such a splendid understudy. I must commend the stage management skills of the noble Lord, Lord Lucas—unfortunately he is not in his place—in prompting those taking part that Amendments Nos. 91 and 92 had made a somewhat late entrance. Last, but not least, I am delighted by the warm-hearted response of the audience in the shape of the Minister, the noble Lord, Lord Hunt of Kings Heath. At the end of a curtain speech, I suppose I should say, "Goodnight and God bless us", and leave the Chamber. However, I assume that I must now move Amendment No. 130.
  Families with a child with severe learning disabilities or complex health needs often find it extremely difficult to obtain reliable professional and affordable childcare.
  Childminders, of whom we have been talking a great deal this evening, are often reluctant to offer care to disabled children unless they have already had experience of so doing. This has wider ramifications for the social inclusion of disabled children, and indeed may impact on the ability of parents to go out to work. Offering disability equality training to childminders, as indeed to all social care workers, will go a long way to prevent the social barriers which derive from ignorance.
  The activities covered seem to be within the ambit of the Disability Discrimination Act, which of course itself argues for disability equality training. Therefore, can the Minister assure us that such training will take place? I beg to move.
  Lord Bach: The noble Lord, Lord Rix, with his renowned expertise in this field, is right to be concerned that provision for the special needs of disabled children and children with learning disabilities is not overlooked.
  It is, of course, only proper that those responsible for the welfare and development of disabled children receive adequate training and operate within the appropriate guidelines and to the relevant standards.
  It is already the case that all early years providers receiving funding for early education must have regard to the code of practice on the Identification and Assessment of Special Educational Need. The noble Lord will welcome the fact that that Code of Practice is currently being revised to include more detailed guidance.
  As the noble Lord will be aware, we intend to implement a new framework of national standards for day care providers and childminders. Work on the

  1041
  detail of these new standards is ongoing, and, naturally, there will be full consultation with the sector before the standards are developed fully. However, I can assure the noble Lord that disability and special needs will be covered in the new standards, which will be underpinned by regulation and guidance.
  If, as we intend. providers and their staff are to meet these new requirements, they must, where necessary, have access to the proper training. As drafted, the relevant provision in this part of the Bill enables Ofsted to secure such training. Furthermore, in October we implemented further rights under the Disability Discrimination Act, which cover services to the public, including day care and childminding services. In December, following recommendations from the Disability Rights Task Force, the Secretary of State announced that the Government will bring forward legislation to tackle disability discrimination in education, including that for under-fives.
  I am grateful to the noble Lord for allowing me, through his amendment, the opportunity to explain how it is envisaged that the new regulatory system and standards will operate in respect of disabled children and children with learning difficulties. I hope that, in the light of the explanation that I have attempted to offer concerning the Government's action more widely in this area, he will at least have been reassured on the point that we are discussing now.
  Lord Rix: I warmly welcome the assurances that the Minister has given us, and I therefore beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  7.15 p.m.
  Earl Howe Earl Howe moved Amendment No. 131:
  Page 38, line 27, at end insert—
  ("( ) The Chief Inspector shall secure that registered inspectors receive appropriate training.").
  The noble Earl said: In moving this amendment, I shall also speak to Amendments Nos. 132, 133 and 134.
  If I have an overriding concern over Part V, it must be my concern about the inspection of childminding and day care. The first and main point that I should like to emphasise is that any national system should be operated by staff who are trained to understand the full range of issues in education and childcare. They must understand the techniques of inspection and be familiar with a diversity of settings. The training of such staff is a task that is integral to these aims. If early learning is to be long lasting, a child's intellectual development must be nurtured on an equal basis with his or her emotional development. The training of registered inspectors must reflect both of those aspects.
  Registration and inspection staff are worried about their jobs. The DfEE has let it be understood that they are expected to transfer to the new branch of Ofsted, but how, and on what basis? I am aware, of course, of the TUPE arrangements, but local authorities need all the information possible to help them in planning for
  1042
  this transition and for the necessary changes, including the training of staff with qualifications that will be recognised by Ofsted.
  I hope that the Minister can provide reassurance on these issues, which are not clear from my reading of new Section 79N, within Clause 68. New Section 79P(3), again in Clause 68, allows for the subcontracting of inspections. Have the Government considered giving the voluntary sector a role in such inspections? Does the Minister envisage the possibility of such organisations—provided, of course, that they are competent—registering as inspection bodies? Generally, on the issue of subcontracting, can the noble Lord confirm the paramount importance of ensuring the maintenance of high standards, whoever conducts the inspection?
  Speaking on an earlier set of amendments regarding the inspection of fostering and adoption agencies, I argued that the names of children and of adoptive and foster parents should be kept confidential in any inspection report and that they should not be publicly disclosed. I believe strongly that the same safeguards are needed for childminding as for the inspection of fostering and adoption arrangements.
  On a related point, the privacy of childminders should not be invaded more than is strictly necessary. Entry into a child's home is entry into a private domestic household, and ideally the minder as well as the inspector should be safeguarded by being accompanied by an officer of the arranging agency. We should remember that this is an activity that must be conducted with great sensitivity.
  With that thought in mind, let me express some concern over the drafting of new Section 79R(3). I was going to say that I hoped that the Minister would be minded to take away this part of the Bill and have a thorough look at it. Happily, the Government have already done that. But, without having had the benefit of hearing the Minister's remarks, I worry about the word "inspect", which it is proposed will replace "examine". I hope that the Minister will explain exactly what the significance of that word is.
  Looking further down the subsection—and here I re-emphasise a point I made a moment ago—I question whether inspectors should interview a childminder without anyone else being present in the room.
  The Government's proposal to inspect childminders will cost a considerable sum of money. The number of childminders is falling, I understand, and the proposal to create a national inspectorate may result in a further fall. I do not know how many recent scandals arid disasters there have been in this field, but in looking at the issues as they will impact on local authorities, perhaps I may make a plea to the Government that the money transferred from local authorities to Ofsted t o accompany the transfer of functions will be no more than can be fully justified. Local authorities will still retain important functions in providing information, training and advice on childminding and day care.

  1043
  With the revenue support grant already under pressure to meet the teachers' pay award, funding must be adequate. I beg to move.
  Baroness Barker: I rise to speak to Amendment No. 134ZA. We recently discussed the inspection of care homes. Here we are again trying to make that most difficult of judgments as to what constitutes inspections that will be effective without being too onerous.
  The noble Earl, Lord Howe, in relation to his amendments, talked about the use of the word "examine" as opposed to "inspect". I want to argue the contrary case on this amendment. Those of us who work in the field of social services, like those who work in other fields, have a language that is all our own. People gradually become fluent in speaking "social services", and words have particular meanings to us.
  The word "examine" in this context carries with it a connotation of physical or medical examination. Therefore, we believe that its use is inappropriate in charging inspectors to go into any premises and carry out what could be a detailed physical examination of a young person. Our amendment has the same intention as that tabled by the noble Earl, Lord Howe, but from a different starting point. We believe that the word "examine" is inappropriate and we want to replace it with the word "inspect".
  Lord Bach: In responding to Amendment No. 131, I shall speak to Amendments Nos. 132,133 and 134ZA and to the Government's Amendment No. 134A. Taken together, they address a number of important issues relating to inspection.
  Amendment No. 131 ensures that the chief inspector provides proper training for his inspectors before they are expected to carry out their duties as regulators. That is a sensible requirement. It would not be appropriate for untrained, inexperienced inspectors to carry out this important and often sensitive role.
  However, provision for the training of inspectors is already included in Part V of the Bill. New Section 79N(3) on page 28 applies paragraph 11 of Schedule 26 to the School Standards and Framework Act to the register of childcare inspectors in the same way as it currently applies to the register of nursery education inspectors. Paragraph 11 requires registered nursery inspectors to have completed a course of training to the satisfaction of the chief inspector before being permitted to conduct an inspection. As this condition will also be required of the new cadre of inspectors, I am pleased to be able to reassure the noble Earl that the objective of his amendment has been achieved.
  I turn to Amendment No. 132. I recognise that there may he concerns in some quarters about who might be contracted to carry out Ofsted's inspections. It might be helpful if I make clear that the actual effect of Amendment No. 132 is to prevent the contracting out of the organisation of inspections, not the inspection itself. This is a useful power as it may prove
  1044
  administratively more efficient, particularly in the longer term, for Ofsted to contract out the administrative function to allow it to concentrate on its key regulatory function. Indeed, Ofsted already successfully exercises a similar power in relation to the administration of the nursery education grant inspections and has found such flexibility helpful and would welcome its replication here.
  However, it is important to stress—and I do so—that the Government are concerned to ensure that inspections of both nursery education and childcare are carried out by appropriately qualified persons and the training to which I referred earlier is integral to that. That is why we are introducing new requirements on Ofsted, first, to register early years childcare inspectors and, secondly, to ensure that registered inspectors carry out inspections.
  In case there are further concerns about the contracting-out powers, we expect that in the majority of cases the inspectors currently employed by local authorities will carry out those duties and—in response to the noble Earl—to a high standard indeed. However, over time that might change as others such as nursery education inspectors take an interest in the work, which we should welcome. It will remain the case that whoever is charged with carrying out the inspection, he or she will be a registered inspector of a suitably high calibre to fulfil the role. We believe that someone from the voluntary sector could inspect, but only if suitably qualified. I am grateful to the noble Earl for his comments which we shall take away and consider further. Furthermore, there will be transitional arrangements for the transfer of staff, a matter to which we shall no doubt return.
  Having completed the inspection process, the regulating authority undertakes to make a full report. It is with regard to the detail of those reporting arrangements that the noble Earl, Lord Howe, tabled Amendment No. 133. We have some sympathy with the general thrust of that amendment and I welcome the opportunity to clarify our intentions.
  It is important to ensure that certain sensitive information, including in some cases names and addresses, is not placed in the public domain. That will be particularly so when the publication of such information might in some cases place a child's well-being in doubt.
  However, our approach is slightly different from that of the noble Earl. The provision in subsection (2) of new Section 79Q already enables Ofsted to publish reports on providers but to withhold information from the report where appropriate to do so. That might apply, for example, when publishing an inspection report on a childminder and, for child protection reasons, it is considered appropriate not to reveal the provider's identity by publishing his or her name and address. In addition, your Lordships should also be aware that it is routine protocol for Ofsted when completing a report to check matters of factual accuracy with the provider before publication.

  1045
  We do not believe that that will be necessary, as this amendment seeks to achieve, in order to prevent the publication of names and addresses in every instance. An important part of these reforms is that parents are given access to more, not less, information about the availability and quality of the provision of childcare in their locality. In this context, the Ofsted reports will be rendered meaningless if parents, having identified potentially suitable provision in their area via the register established in new Section 79F(5), cannot assess the quality of its provisions. That is why we consider it proper that there should be discretion in this area, recognising, of course, that a sensible balance must be achieved between protecting children and the provision of information to parents.
  Inspection powers and the records which follow from them are the subject matter of Amendment No. 134 tabled by the noble Earl, Lord Howe. It provides an opportunity to explain clearly that this element of the Bill basically carries forward an existing and very important inspection power set out in the Children Act 1989. In brief, this section of the Bill, unamended, sets out what an inspector may do or have regard to upon entering a provider's premises to undertake a routine inspection to report on the welfare and development of children. In addition, it clarifies what the inspector may do, or have regard to on other occasions; for example, on pre- and post-registration checks or unannounced inspections.
  As drafted, Amendment No. 134 would undermine this fundamental aspect of the inspection process, removing existing clarity as to the right to interview the care provider and/Dr give regard to the premises, the relevant records or documentation or the children being cared for.
  Given the clear implications for child protection and safety, the Government are concerned for the need to be more specific in this regard than the general power of entry which would result from the amendment. As drafted, the amendment would lay the power wide open to interpretation in relation to routine inspections. Furthermore, the amendment would reduce existing and helpful legal clarity regarding rights of entry to premises for purposes other than the prescribed formal inspection.
  The noble Baroness, Lady Barker, raises a more specific concern in Amendment No. 134ZA, which relates specifically to the children being cared for. Clearly, inspection of children is a particularly important aspect of the current inspection process to ensure both child welfare and child protection, which again should be carried forward into future arrangements. However, where concerns stem from the application of those various powers, I hope that the Committee will be reassured that the Government are of course determined that all powers are appropriately exercised.
  But surely that is a matter not for primary legislation but for regulations and standards? I have said before that the Committee knows that the Bill will for the first time introduce national guidance and standards, which we intend to develop in consultation
  1046
  with the relevant bodies. Those national arrangements will govern the whole inspection exercise and will ensure that the powers are effectively discharged and not abused.
  Having said that, the Government have some concerns similar to those expressed by the noble Baroness. They are related to the detailed wording of the draft Bill which introduces into the regulation process the word "examine", which we believe—here I am attempting to answer the noble Earl, Lord Howe— is an unhelpful and unintended "clinical/medical" term. Following helpful representations from both providers and regulators in this area and from the NSPCC, we have tabled an important amendment in the name of my noble friend: Amendment No. 134A, which seeks to remove the word "examine" and put back the original word, "inspect", as used in Part X of the Children Act 1989. We hope that by addressing that point with a government amendment, we may reassure the Committee on other related concerns discussed today.
  I hope that I have said enough to encourage the noble Earl, Lord Howe, to withdraw his amendment.
  7.30 p.m.
  Earl Howe: I thank the Minister for the full reply that he gave to all my amendments. I am particularly grateful to him on Amendment No. 131 for pointing me in the direction of paragraph 11 of Schedule 26 to the School Standards and Framework Act, which I believe settles the matter, together with his explanatory remarks. The intention of Amendment No. 132 was purely to probe the Government. I realise that its effect would be to prevent contracting out, which was not in the least my intention. I have every sympathy with the aim of contracting out. I am grateful for the consideration that the Minister said he would give to the points I made about the possible role of the voluntary sector.
  In respect of my Amendment No. 132 which deals with the confidentiality of names, I shall read carefully what the Minister has said and consider the matter further between now and Report stage. Finally, I thank him for his remarks in response to my Amendment No. 134, which was again intended purely as a probing amendment. He successfully answered the questions that I raised. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments No. 132 to 134ZA not moved.]
  Lord Bach Lord Bach moved Amendment No. 134A:
  Page 39, line 33, leave out ("examine") and insert ("inspect").
  On Question, amendment agreed to.
  Lord Bach Lord Bach moved Amendment No. 134B:
  Page 40, line 11, after ("shall') insert (", in accordance with regulations,").
  On Question, amendment agreed to.
  [Amendment No. 135 not moved.]
  On Question, Whether Clause 68 shall stand part of the Bill?
  Lord Jenkin of Roding: I shall not detain the Committee long against this clause, but I should like to draw the Government's attention to the fact that a number of substantial anxieties have been expressed about the way in which the new power has been drawn up, the body to which the registration and inspection has been entrusted and some of the detail about the powers to be given. In the course of his replies, the Minister has given us what I can only describe as some very bland assurances. One is dealing with the matter, as it were, at third hand. The Minister is here to say what he believes the Government will do. We have what is in the Bill as to what that means; then there is the question of the regulations which will follow; and, perhaps most important of all, the actual operation of the registration and inspection as it will be carried out by the people on the ground.
  I have a fear that we shall find ourselves with some rather heavy-handed detailed inspections and regulation in an area which, on the whole—although of course there are variations across the country—in the case of well-run local authorities, has actually run fairly satisfactorily. As a result, large numbers of people are prepared to offer child-minding and day care services and, as the Minister himself properly said, that is of great value in present day society when so many more women go out to work.
  I simply ask the Minister to take account of the anxieties that have been expressed; and to look seriously at some of the points raised—he has indicated for some of them that he is not disposed to change his mind, although he will listen—because I believe that we risk setting up something of a sledgehammer to crack a nut. Yes, there should be national standards—we agree on that. But I seriously wonder whether we are justified in setting up a whole new national bureaucracy to run them. I have a horrid feeling that, as it unfolds over the years ahead, one will find a rising tide of protest and a falling number of childminders and day care providers. That would be in no one's interest.
  Lord Bach: I am grateful to the noble Lord for his remarks. I am sorry if my remarks seemed to him to be bland; I am sure that, when he was a senior Secretary of State, his remarks at any stage of any Bill for which he was responsible were not bland. I take seriously the comments and discussion that we have had in the Committee today at the proper stage of the Bill. We do not believe that the consequences of passing the Bill into legislation will be as the noble Lord predicts. However, we have further thinking to do; we shall no doubt return to the House on Report on those matters; and the noble Lord may rest assured that the remarks and comments made from all Benches—some supportive, some not so supportive—on this important part of this important Bill will be taken into careful consideration.
  Clause 68, as amended, agreed to.
  Lord Burlison: I beg to move that the House do now resume. In moving the Motion, I suggest that the Committee stage begin again not before 8.40 p.m.
  Moved accordingly, and, on Question, Motion agreed to.
  House resumed.

  Kent County Council Bill [H.L.]
  7.39 p.m.
  Lord Thomson of Monifieth: My Lords, I beg to move that the Bill be now read a third time.
  I believe that it will be for the convenience of your Lordships' House if, in speaking to this Bill, I speak also to the identical Bill which relates to the Medway Council. Together, these two Bills seek to alleviate the problem of burglary and the disposal of stolen goods over the whole geographical area of Kent covered by the Kent Police.
  The Bills have the support of all political parties in the two councils. Wide consultation among organisations in Kent have shown that they are supported strongly by the general public, who are deeply concerned by the losses which they suffer when their homes are burgled. I declare an interest in this matter—a common interest, I am afraid, with many of your Lordships—as a personal victim of burglary in my own home in Kent. I declare an interest also as chairman of the Leeds Castle Foundation, where we have had bitter experience of the theft of valuable and historic items, which later turn up in the second-hand market.
  To give some indication of the scale of the problem, over 1997–98 it is estimated that goods worth £105 million were stolen in Kent, with a recovery rate of only 25 per cent. The Home Office has given support of £350,000 to a project in the Medway towns called "Radium". That was recently launched officially by the Prime Minister and the Home Secretary, and is designed to tackle the fact revealed by Home Office research and by police intelligence that a large proportion of stolen property passes through unregulated second-hand dealers.
  The legislation will not solve the problem, but I believe that it will make possible a more effective partnership between the police and the consumer protection work of trading standards officers. The provisions of the two Bills go a good deal beyond antiques, which I believe may be the focus of a large part of our debate. However, they will help to tackle, for example, the second-hand car abuse of fiddling the mileage reading of odometers—a fraud which provides profits of many millions of pounds for unscrupulous car dealers. The legislation will deal also with a new development called "squat trading", where rogue traders illegally enter vacant high street premises for what amount to hit-and-run sales.

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  The main provisions of the Bill are simple. They require registration, which will be free, of businesses which deal in second-hand goods. There is a requirement to keep a record of purchases and addresses, and of the sale of an article worth over £100. The penalties for failure to observe those provisions are set out in the Bills as a range of fines.
  The Bills have been before the public in Kent for a long time—indeed, since November 1998. As I said, they have been the subject of wide consultations, including discussions with LAPADA, the national antiques organisation. Those have resulted in a whole series of exemptions being negotiated: for occasional sales by auctioneers; for regular private markets of traders; and for dealers outside Kent who come in either to sell or to buy. There is a total exemption for books, and an amendment to protect the collectors of antiques who must disclose the location of their collections. Those amendments show that the councils listened to the concerns raised with them by various trade interests and took positive steps to address the concerns. As a result, there were no Petitions outstanding that required a Committee stage in your Lordships' House. Therefore, I am bound to say that I am a little puzzled that at this 11th hour the noble Viscount, Lord Astor, should table his amendments, which, if carried, will kill these useful Bills.
  Through the good offices of the noble Earl, Lord Howe, the president of'LAPADA—a national body of standing in the antiques field—some of us had the opportunity last week to hear and study its concerns and those of some antique dealers within Kent. I am bound to say that I recognise the strength of feeling behind those concerns. LAPADA expresses support for the motives behind the Bills but believes that the only approach should be through national legislation. It appears to argue that it is wrong in principle to make what it calls "local criminal law". Local by-laws and private Acts lie at the very heart of the whole local government system. I may do something which is perfectly all right in my native Dundee but it may attract a fine if I try it in my adopted county of Kent. In any case, there is no practical prospect of national legislation in this field. I believe that LAPADA's point of view in the matter is a typical example of the ideal being the enemy of the good. That is no more than to argue that if you cannot do something worth while everywhere, you should not be allowed to do it anywhere.
  There are, in fact, a number of local authorities which have sought and operate similar powers to those now being sought by Kent County Council and by Medway Council. I shall not take up your Lordships' time in the brief period available by reciting all of them. However, there is a list of eight local authorities with similar powers.]" asked the Kent Police to contact all those councils. Every one of them has confirmed that it finds the legislation useful and that the councils work with the local police forces to enforce it.
  The second objection is that the Bills' requirements to keep simple records will impose an unreasonable bureaucratic burden on small businesses. Certainly, it will be a bureaucratic burden; I do not deny that. But
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  some bureaucracy is inevitable as the price of preventing the minority of wrongdoers from exploiting the law-abiding majority. Examples of social security benefit fraud and of income tax evasion readily come to mind. Neither of those can be dealt with without some degree of bureaucratic regulation. For the bona fide antique dealer, this registration should be a price worth paying for deterring the burglars from bringing discredit on decent businesses which deal in second-hand goods. They should be reassured that the police and trading standards officers in Kent have neither the desire nor, indeed, the manpower to impose a heavy-handed and intrusive regime of regulation. They plan a selective, targeted, intelligence-based campaign made more effective by pooling the police's intelligence sources with information from the registration records.
  Finally, the noble Viscount's amendments seem to me to raise issues of significant parliamentary principle. LAPADA and the local antique dealers have raised objections which certainly deserve serious consideration. There were discussions between the councils and LAPADA during the consultation period on the Bills and, indeed, I believe that a number of amendments were made to meet their wishes. Personally, I believe that it is a great pity that if LAPADA and the antique dealers in Kent felt as strongly as they now say they do, they should not have put in their Petitions at the appropriate period and therefore enabled a Select Committee of your Lordships' House to deal with the matter in the kind of detail which it deserves and which, I believe, is impossible in this kind of abbreviated debate during the dinner hour. For whatever reason, that was not done. They will, or should, have a further opportunity to do so when the Bill passes to the other place, as it ought to do.
  I say seriously to the noble Viscount that surely it would be a great error of judgment and quite wrong if this House, in a sparsely attended debate during the dinner hour, were to prevent the elected Chamber, including the elected Members for Kent, dealing with proposals from the Kent local authorities which are designed to protect householders from burglaries arid loss of precious possessions. I commend the Bill to the House.
  Moved, That the Bill be now read a third time.—(Lord Thomson of Monyieth.)
  Viscount Astorrose to move, as an amendment to the Motion that the Bill be now read a third time, to leave out "now" and at end to insert "this day six months".
  The noble Viscount said: My Lords, the noble Lord, Lord Thomson, for whom I have great respect, said that this House should send these Bills to another place. I believe very firmly that one of the most important roles of this House is to make sure that we do not send bad Bills to another place. I shall seek to explain that and persuade your Lordships that that is the case this evening.

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  I believe that these Bills are well-intentioned but they are wrong. The primary reason for that is that they have a national implication. It is not merely a local government Bill affecting a small area. I have no interest to declare. I am not an antiques dealer. I admit that I occasionally pay the bill when my wife buys something from an antique shop but that is as far as it goes. I have no knowledge about why there has been no Petition or anything like that.
  It is worth looking at the details of the Bill. It requires anyone who wishes to deal in second-hand goods in Kent to register himself and his premises with the county council. Once registered, the dealer may trade but he must keep a record of the names and addresses of any person from whom the articles are acquired. He must keep a record of the articles themselves, descriptions, the names and addresses of anyone to whom he sells an article valued at over £100 and the date of all transactions. On the face of it, that is perfectly reasonable. The records must be kept in a form prescribed by the county council and must be produced to a constable or authorised officer of the council on demand. There are exemptions which include registered charities, scrap dealers and pawn brokers.
  But if one looks at Part III, one sees that it deals not only with occasional sales and, as the noble Lord, Lord Thomson of Monifieth, said, squat trading but also with auctions, fairs and car boot sales. Anybody wishing to engage in those activities must first give notice to the county council of his intention to do so. The notice must include the time and date of the event, the premises to be used, the type of goods to be sold, the names and addresses of all the organisers and an estimate of the numbers attending. In relation to a car boot sale, I should think it is extremely difficult to know all the types of goods which are to be sold, and, indeed, it must be difficult to estimate the likely numbers in attendance. If this Bill is passed, there will be no car boot sales in Kent. They will all be held in a field a mile across the border in East Sussex.
  At any occasional sale, the organiser must make a record of the names and addresses of all those selling the goods, whether each article is new or second-hand and, indeed, the registration numbers of all the vehicles used to transport goods to the sale. That is a difficult task.
  But there are other important concerns. Part IV grants powers of entry to registered premises by authorised officers of the council or the police in order to inspect, take away and copy records. Powers of entry are granted also to any premises, whether registered or not, in order to inspect records or to serve notice relating to an occasional sale or squat trade.
  Although this provision was originally designed to clamp down on dishonesty in the second-hand car market and car boot sales, the Bill casts its net much more widely. More notably, it captures within its scope antique shops, antique fairs, antique auctions, country house sales and village fetes.
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  The Bill as it stands would mean that dealers in antiques registered in Kent must comply with the provisions of the Bill wherever they do business. Dealers from outside the county doing business in Kent must comply with the provisions, including the registration requirements. Dealers from outside the county include dealers from abroad. A dealer is apparently anyone carrying out just one single trade in a year. There is confusion in that regard. That seems to be the case on my reading of the Bill but I cannot believe that the Bill means to say that.
  Any country house sale conducted in Kent falls within the scope of Part III but those sales conducted by outside auctioneers are excluded. Again, that is another anomaly.
  The powers of entry in Part IV are not dependent on a warrant and extend to premises outside Kent. As currently drafted, the Bill grants summary powers of entry to council officials and the police to enter private dwellings as well as business premises.
  The noble Lord, Lord Thomson, says that there has been consultation and that is true. But, as I understand it, the outcome of that consultation is that there has been no agreement. But this Bill has important implications. No compliance cost assessment has been carried out. Therefore, we do not know what will be the cost to the trade nor to the police when they try to enforce this measure. Is there to be a cost of registration? What will be the costs to the council? Are we imposing burdens on the police? Who is to pay for this? That is not clear and perhaps the Minister will address that point.
  The Bill fails an important test of principle; that is, that there should be national consistency in criminal law. Legislation which creates criminal offences arising from every-day commercial transactions should apply nationally throughout the country and not, as in this case, just to one county.
  This Bill would impose regulation and burdens on small businesses. It would include a large amount of red tape, something of which the Government are not in favour. Because no regulatory impact assessment has been carried out, we have no estimate of the enforcement costs. There has been no cost benefit analysis. In many instances, it is difficult to see how the police can enforce many of the Bill's provisions when so much business is carried on around the country.
  As I said, there are clear issues which have not been addressed; for example, civil liberties issues with regard to the power of entry into domestic and private premises.
  The noble Lord, Lord Thomson, said that the problem of crime in Kent is serious and he quoted the figures. I totally agree with him about that. If one extrapolates those figures to other counties, one reaches the clear view that any legislation should be national legislation. The matter should not be left to individual authorities.
  There are more than 200 authorities which may wish to bring forward their own Bills and they will all be slightly different. I believe that the noble Lord, Lord Thomson, said that, including North Yorkshire, there

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  are six local authorities which have brought forward similar legislation. That legislation varies dramatically. It is not the same. In some cases it is quite simple; in others, it does not work. It is different. If this Bill addresses a serious problem, it is up to the Government to address it. One cannot have piecemeal law-making in this country. It would bring the law into disrepute. I believe that that is the most important message that we wish to convey. The case has not been made for these two Bills. They are of national importance and should be dealt with nationally. In those circumstances, I hope that your Lordships will support the amendment which I have tabled this evening. I beg to move.
  Moved, as an amendment to the Motion that the Bill be now read a third time, to leave out "now" and at end to insert "this day six months".—(Viscount Astor.)
  7.58 p.m.
  The Parliamentary Under-Secretary of State, Home Office (Lord Bass am of Brighton): My Lords, I had not originally intended to speak at this early stage in the debate but it may help to clarify matters if I explain the Government's point of view.
  I welcome the opportunity to contribute briefly to the debate. In doing so, I shall not depart from the convention that governments take a neutral stance on Private Bills. There are no exceptional grounds in relation to this Bill for me to do otherwise, despite the controversy which, at this late stage, it appears to be generating.
  As the noble Lord, Lord Thomson, explained, the Bill is principally intended, through tighter regulation, to help tackle some of the crime-related problems, especially as regards circulation of stolen goods, which have arisen in Kent from various forms of second-hand trading.
  The House also knows that an identical Bill is to be brought before us by Medway Council, which is a unitary authority. To have two Bills is the only way to ensure that the whole county is covered. The fact that both Bills are strongly supported by Kent County Constabulary will, I am sure, be a point in their favour as far as this House is concerned.
  Your Lordships will also wish to keep in mind that similar private legislation has been passed for other parts of the country as diverse as North Yorkshire, Greater Manchester and Worcester. There is no shortage of precedents.
  The Government initially had concerns about some of the provisions in the first draft of the Bill. Levels of proposed penalties seemed too high and proposed powers of entry and seizure were in our view too widely drawn. I am happy to report, however, that these concerns were resolved by consultation and in discussion with the Bill's sponsors prior to its consideration in Committee. The Bill now before the House reflects what has been agreed between all concerned.
  The Government have no objection in principle to the Bill. Last November we published our crime reduction strategy. At the heart of the strategy are the
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  new steps we will be taking to ensure that every local crime and disorder reduction partnership and police force is performing to its maximum potential. There are now 375 such partnerships in England and Wales, in which police, local authorities and other agencies work together to identify and combat crime in their areas. The way the local authorities and police in Kent are working together to promote this Bill accords very closely with that approach, which I believe is in itself worthy of this House's commendation.
  I should like to mention at this point that the Government are currently funding, out of the £400 million we have made available for the crime reduction programme, two projects aimed at limiting the market for stolen goods. One is in Greater Manchester, and the other, "Project Radium" is, appropriately enough for this debate, in the Medway area of Kent to which I referred earlier. The latter project much impressed my right honourable friends the Prime Minister and the Home Secretary and, I might add, myself when I visited the project last summer. So your Lordships will see how this Bill ties in with other efforts being directed towards the same ends.
  I have been aware of the concerns expressed by representatives of some of the legitimate traders who would be affected by the Bill. The noble Earl, Lord Howe, has raised this with the Government specifically on behalf of art and antique dealers. The noble Viscount, Lord Astor, echoed those concerns this evening. The concerns focus on the additional regulatory burden to be placed upon small businesses, the inconsistencies that arise across the country in having legislation applying in some areas and not others, and possible enforcement difficulties.
  The inconsistency point cannot be denied. That is inevitably the consequence—perhaps one might even say the beauty—of having local legislation. Where there is no national legislation to deal with a particular problem, as is the case here—and there are no government plans for such legislation—I am sure your Lordships would not wish to deny any local authority its own legislation simply because others do not have it.
  The Government are firmly committed to not adding unnecessarily to the regulatory burden on small businesses, and I understand the anxieties that have been voiced on this aspect of the matter. It is clear that a careful and balanced judgment is needed in each situation as to whether additional regulation can be justified. It is for your Lordships to form that judgment on this Bill in the light of the arguments put forward by its sponsors and their opponents.
  It is equally for the Bill's sponsors, if necessary, to persuade Parliament that the proposed new laws are enforceable. I feel, though, bound to say—without, I hope, compromising my neutrality on the matter—that I find it very hard to believe that a measure prepared and promoted jointly by the local authority and the police could not be effectively enforced.
  As I said at the beginning, it is not for the Government to take sides. However, I remind the House that the Bill is due to proceed to its next stage in

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  another place, where anyone opposed to it can petition against it if they so wish, and where any such petition would be fully considered. Your Lordships may feel it would be better for objections to be properly looked at and debated there, rather than take what I believe would be the most unusual step of refusing to let the Bill go beyond this Third Reading. Whatever noble Lords decide, I hope that this short contribution setting out the Government's view will help them in their careful deliberations on the Bill this evening.
  Lord Mackenzie of Framwellgate: My Lords, I rise to support the Bill and oppose the amendment. I spent 35 years as a police officer and I know the value of such regulation. Similar provisions were passed in relation to scrap metal dealers. The Gaming Act controls gaming clubs. Licensees are regulated in the same way. The provisions would be valuable.
  The Chief Constable of Kent is totally supportive of the Bill. He is chairman of the ACPO Crime Committee, so, when it comes to crime, he knows what he is talking about. He is one of the top chief constables and has shown a marked reduction in crime. Crime is an expensive business. The last estimate from the insurers' association indicates that £31 billion-worth of goods are stolen each year.
  Any measure that can prevent crime and detect offenders must be valuable. I do not believe it matters if it is confined to one area. If the people enforcing it believe it would be well worth while, this House has a duty to support it. Any crime reduction measure is valuable, not just to the police but to the community concerned. Clearly, if there are no disposal points for stolen goods, it is more difficult to sell the goods. There is also a deterrent effect if thieves are fully aware of the fact that there may be difficulty in selling the goods. The point made about being able to give false names and addresses is perfectly valid. However, if this Bill has any effect at all in deterring crime, we have a duty to support it. I believe that the Bill should continue its passage.
  Lord Luke: My Lords, first I declare an interest as a dealer in second-hand goods. I buy and sell watercolours and have done so in Kent, so I would definitely be caught by the new regulations.
  I believe it is unfair of the noble Lord, Lord Mackenzie of Framwellgate, to compare antique dealers to scrap metal dealers. I take exception to that. In this business there are a great number of small traders. There are the smart people in Tunbridge Wells, Kent and the smart people in London, but the whole business is based on small people going backwards and forwards, saying, "Can I buy or sell your picture for you?" and so forth. Much of the business is conducted as a second business, not as a first business. The amount of bureaucracy which will be necessary to make this provision work is far more than is justified by the gains that will be made.
  The noble Lord, Lord Mackenzie, said that the police are keen to have this measure and that they will be able to enforce it. I very much doubt whether the
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  police will have time to do so. These days so much police time is taken up with non-criminal work that they often take hours to turn up after a burglary. If they were busily trying to enforce these new regulations, given all the myriads of small dealers there are, I do not believe they would be able to cope.
  The noble Lord, Lord Thompson of Monifieth, mentioned the fact that books will be exempt. There are extremely valuable books available. If this is such a good idea, I cannot see why books should be exempt. That is extraordinary. As regards the provision applying only in Kent, Manchester, North Yorkshire and wherever else, dealers do not respect county boundaries; they move around all over the place. I find it extraordinary, if, as the Minister stated, the Government think this is such a good idea, that they do not come forward with a national scheme, properly worked out, which will then cover the whole country and perhaps make some difference to the disposal of stolen goods.
  I cannot see that this scheme, relating only to Kent, can have any good, viable result. It will create a great deal of extra legislation. It will be oppressive to the smaller trader and I support the amendment of my noble friend all the way down the line.
  Lord Mayhew: My Lords, I too begin by declaring an interest. My home is in the county of Kent. I have an interest in doing whatever I can to contribute to the reduction in the amount of stolen property which is never recovered. As we have already heard today, only around 25 per cent of stolen property in Kent is recovered, in spite of the attention of an extremely efficient police force under a Chief Constable of whose distinction we were reminded by the noble Lord, Lord Mackenzie of Framwellgate.
  I also have a specific interest in hoping that such antiques, cars or other desirables as I may possess remain in my possession and are not stolen. In the course of 23 years as the MP for a constituency already mentioned by my noble friend Lord Luke, my constituents, if they agreed with me in nothing else, passionately shared that concern.
  We therefore have the spectacle of the House tonight being invited to consider in all of one hour—the dinner hour at that—a substantial measure affecting law and order in an important way which has been one-and-a-half years in preparation by a major county council and which has the full support of the chief constable and the police committee. I invite the House of course to do the best it can in the short time available to consider the merits of the amendment moved by my noble friend Lord Astor. But it is quite impossible in this short time for us to begin to do anything like justice to the merits of the arguments. We heard arguments about incompatibility with liberty; about impracticability of enforcement and so forth. We cannot resolve those within the half hour left to us.
  It is worth reminding ourselves how this extraordinary situation came about. It is not that this Bill has somehow been spirited in without complying with the rules which this House requires for

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  advertisement. I inquired of the Private Bill Office whether or not the rules had been complied with and, as one might expect, the answer was that they had.
  A procedure was open for objectors to petition, whereupon all these important discussions could have taken place with, if desired, witnesses being called before a Select Committee. That was not done. My noble friend Lord Astor—I do not say this disrespectfully—says rather loftily, "I have no knowledge as to why there was no petition". I am sure he is right, but that is not enough to dispose of the point. We have here a Bill which can, if it receives a Third Reading tonight, receive after a petition in the other place the examination which it could and evidently should have received here.
  One must deal with the principal point made; namely, that piecemeal legislation of this character is wrong. If so, that "wrongness" seems to have eluded Parliament over the past 10 years in a large number of instances. Similar, though not identical Bills, were promoted and passed in respect of South Yorkshire, the county of Merseyside, Greater Manchester, Humberside, the county of Lancashire, Herefordshire City Council, Worcester City Council, North Yorkshire County Council and, most recently, the city of Newcastle-upon-Tyne. I understand that that Bill passed its stages in this House and is now before the other place.
  I agree with the Minister that we must not allow the best to be the enemy of the good. Because there is no prospect of national legislation coming forward—one understands the pressures—is it to be said that Kent and those who live there are to be denied the advantage of provisions which the residents of a substantial part of the country received? I cannot see why it should be said that Kent should be singled out and dismissed.
  It is said that the police cannot engage in this sort of activity. It is strange that that argument eluded the Chief Constable of Kent, the police authority and an extremely properly cost-conscious county council that is certainly not in the habit of authorising, let alone instigating, expenditure which will be impractical.
  I venture to suggest that it is not enough merely to say that this is a well-intentioned but wrong Bill, as my noble friend Lord Astor said. Of course it is well intentioned and those intentions are shared by those who object. They made that clear. The Bill concerns the reduction of crime and the ease with which the police can get on top of the problem of stolen property. The promoters of the Bill are doing something about it. They do not seek to have it spirited through Parliament without examination; they would welcome it being properly examined. They have already shown that they are prepared to respond to a case made against it by a number of amendments which have been made in this House, although the Bill was unopposed. But they wish the Bill to pass and the people of Kent are entitled to that.
  I conclude by repeating a point already alluded to but about which I feel most strongly. I was tempted to say it would be frivolous but it would certainly be remarkable, and I believe bizarre, for a Bill of this
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  seriousness to be dismissed at the conclusion of one hour's discussion. That would not sit easily, let alone happily, with the reputation of which this House is so jealous for the serious, mature and scrupulous consideration of legislative proposals brought before it. I hope that my noble friend, having had an eloquent say—to which he will no doubt add—will cap his performance by withdrawing this amendment.
  Lord Lucas: My Lords, I found much with which to agree in what everybody said this evening and, to some extent, much with which to disagree.
  I join every speaker to date in saying that the expressed objects of the Bill are praiseworthy. I join my noble and learned friend Lord Mayhew in saying that we owe a great deal of respect to the people and democratic structures of Kent and Medway, who have every right, as has every local council, to make the lives of their citizens as difficult and inconvenient as possible within the normal bounds we set on such things. It should be no part of our life in this House to interfere with that sort of arrangement, which is internal to a county council and with which the voters of that county can properly deal at their elections.
  I agree entirely with the noble Lord, Lord Mackenzie of Framwellgate, that we should pay close attention to what the police say about these matters. I do not go as far as he in saying that, if the police support something, we should give it our support. Even the Liberal Democrat Party would be a little more critical than that on most issues. I do not share the disparagement by my noble friend Lord Luke of scrap metal dealers—I believe most of them these days are called "modern art" dealers.
  But there are precedents for these Bills. I have read them. I have been through all the Bills which passed through this House. They are entirely acceptable local Bills. They are local in their concept, local in their effect and reasonable in their terms.
  In many aspects, this Bill goes much further than any existing legislation. It is not just a national Bill; it is an international Bill in its effects. It is positing the powers of the Kent Police operating world-wide. I find the idea of a Kent policeman or trading standards officer looking over the behaviour of the registered Kent antique dealer, or dealer in second-hand goods, wherever he may be in the world, to be extraordinary.
  There are a number of the Bill's aspects that concern me, many of them small but one great. I shall deal, first, with the small ones. I start with the matter of consultation. This may have been public; indeed, I believe it was subject to an advertisement in the Evening Standard, which I do not think is widely read in all parts of Kent. However, clearly it has not been discussed sufficiently with the main organisations representing dealers in second-hand goods. One or two of them have been involved and little exemptions have appeared in the Bill; for example, my noble friend Lord Astor mentioned books, which is extraordinary. Books are a valuable part of many people's possessions. I understand that they are to be exempted

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  in order to avoid the Bill being opposed in this House. The reason why we have not had a proper procedure in this Chamber is that deals were done with those who had the funds and the will to oppose such procedures in this House. We have not been afforded the chance to look at the Bill properly because of actions taken by Kent County Council, among other things.
  Secondly, there has been very little exposure of the benefits of the Bill. It may be lack of talent on my part, but I have been unable to find anyone in the police force of North Yorkshire who is willing to say anything in great support of the past 10 years' experience at their end. It is a nice little piece of bureaucracy and is enforced keenly by the trading standards officers. However, as far as I can discover, it does not do much to prevent crime.
  The difficulty about the way this Bill is expressed is that it is in danger of turning you and me—that is, ordinary people who may have a little hobby collecting this or that—into criminals without our knowing about it. When we decide what should be a local law and what should be a national one, one of the most important things we must have regard to is whether people coming into the area can reasonably know what is criminal and what is not within that county. We set our traffic regulations in such a way that I know what the signs on the side of the road mean. I know what a thirty-mile-an-hour speed limit is because such limits are set nationally. But parking regulations, and in particular how you get a parking permit, and so on, are set locally because they concern local people. That is the way that the other Bills in this area have been drafted. They set out local regulations applying to people who have premises in the county or area concerned so that they properly know about them.
  For example, if you have a shop in Winchester or one in Lancashire, you are governed by the local regulations and when you make a trip to Kent you do not expect, as is the case with this Bill, to find that you are governed by the Kent or Medway regulations, which may be separate. Indeed, if the precedent of this particular type of Bill is followed, we may end up with 200 different sets of criminal legislation covering the country. It would be totally impossible for the ordinary person to know where he or she stands.
  I turn to my third point. It is the practice with Bills these days to say where they stand vis-à-vis the Human Rights Act. But there is nothing of that sort in this Bill, although it contains extensive powers of entry and criminal penalties that are quite interesting in the effect that they would have on the ordinary citizen. I believe that that is something which should be looked at in this Bill. Similarly, the consequences of the Data Protection Act are not covered, although the Bill requires record keeping in a quite extensive way, especially as regards purchase transactions by individuals. That will amount to a great dictionary for a thief if he happens to come across it; indeed, he might find information about interesting things around the county.
  1060
  There is no recognition in the Bill of e-commerce. It is a recently-enough drafted Bill so it ought to have contemplated such consequences. The forms of record which are to be kept are not set out in the Bill—this is different from any other Act—and can be set by the council at a later date. Many of these people will keep records for VAT purposes and that sort of record will do under any other legislation. They are keeping a record for VAT and that same record will do. However, under this Bill, the Kent County Council or the Medway Council can demand that a different sort of record be kept.
  There is a phrase in the Bill of what is required to be recorded; namely, a description "sufficient to identify" the articles. That is an innovation in this Bill. How do you come by a description sufficient to identify, say, a Penny Black or the exhaust of an old Austin 1100? They are asking the impossible. They are also asking the impossible at the other end of the scale when it comes to a house clearance. To comply with that particular wording, which is different from the wording in any other similar Act, you would have to record every single pin that you picked up in a House—or perhaps you would be allowed to say "a box of pins". But when you have paid £200 for the general contents of someone's house, it is ridiculous to have to spend two days on record keeping.
  In other Bills the definition of "dealer" is quite clearly confined to people who would ordinarily consider themselves to be dealers. If we take the Yorkshire Act, which goes furthest, you would find yourself having to register with North Yorkshire if you go to deal at the Harrogate antiques fair. But if you just turn up in Yorkshire to buy a few things from an antique shop, you are fine. However, under this Bill, if you make one or two transactions—for example, a couple of items bought from an antique shop—or if you are a dealer somewhere else in the country, or, indeed, anywhere else in the world, you will be caught by the provisions and will have to register. The whole business occurs in several places in the legislation; indeed, there can be a variation of the terms of this Act by local order which can apply to people outside the county who will only come across this jurisdiction occasionally. It is something which is fraught with danger for the ordinary citizen. For the record, I should also point out here that there is a typographical error at line 21 on page five.
  The great problem with this Bill is that it seeks to deal with a local problem in a way that has national and international effects. It would produce a chaotic and, indeed, comic effect if it were to come into practice. It would be like a combination of the Keystone Cops and "Passport to Pimlico". If an outsider coming into Kent is a dealer he must register; but how does he know that he must do so? If he is on holiday from France, how does he know who he must register with before he drops into an antique shop? He will not even know whether he must do so in Kent, in Medway or, indeed, in one of the other counties which may bring forward this sort of legislation in the future. But if he fails to register he is committing a criminal offence.

  1061
  Wherever a Kent dealer goes in the world and whenever he does a deal in second-hand goods, he has to read a form of wording to anyone with whom he is doing a deal to warn them of the consequences of failing to provide the correct name and address of whoever he is selling to or buying from. One can imagine a dealer trying this on in Australia and only guess at the reply he would get from the average Australian if he were to try to warn him that, if he did not give the correct name and address, the Kent police would be after him.
  If this Bill is to be a blueprint for future Acts, any dealer in second-hand goods who is at all widespread in his activities in the UK will have to register with every local authority, and there might be 200 of them if we follow this practice. He will have to display 200 notices of registration with each local authority. He will have to keep up to date with 200 sets of local rules, which are changed locally and not subject to national advertising or any form of national notification; in other words, things that can be changed just by local regulation. That would change the way he has to behave when he deals in a particular county. He will also face 200 sets of criminal penalties if he gets it wrong, and may well have to keep different forms of record for each county with which he is registered because those things can be changed locally and are not laid down in the Bill. That would mean that every transaction would have to be recorded a number of times. This is oppressive to the honest and it is very hard to see how it will be effective as regards the dishonest: it is costly, tedious and unenforceable. It just will not do as legislation.
  We have to live within the procedures of this House as we find them. Like my noble and learned friend Lord Mayhew of Twysden, I find it deeply unsatisfactory that we have not had a proper opportunity to debate this Bill. But we in this Chamber are not in the business of letting through deeply unsatisfactory legislation. I know that we do it sometimes; indeed, I am sad to say that we have done it in the past at my government's request. I deeply regret the handguns and the dangerous dogs legislation, which have harmed innocent people and done very little to deal with the guilty. I do not think that it is an honour to this House to let go flawed legislation just because the procedures of the House have not allowed us to debate it properly. We have a responsibility—
  Lord Carter: My Lords, will the noble Lord give way? This matter has been referred to on a number of occasions. I was prepared to give all the time that this issue required on a Friday. However, all of those interested in this subject said that they did not wish to discuss it on a Friday and that they preferred to discuss it during a dinner break.
  Lord Lucas: My Lords, I do not remember expressing any such reservation myself. 1 would have been quite happy to spend a long Friday on it but it is not obviously in my hands.
  1062
  I think that at the end of the day the honour and the position of this House depend on it taking care of the legislation that it lets go, of not being seen as a rubber-stamp, but rather as a critical and honest revising Chamber. On balance, when I look at the way this Bill has been drafted, I think that we owe it to ourselves to ask Kent County Council to think again.
  8.30 p.m.
  Lord Rees: My Lords, my only pretext for intervening, I hope briefly, in this important debate is that I once had the privilege of representing part of east Kent in the other place and had a house in east Kent. I suppose that I bought, if I did not sell, some of the articles that are covered by this Bill.
  I say in opening that I certainly applaud the objectives of the Bill. I do not seek to criticise the procedures that have been followed by the sponsors of both Bills in this case. It is difficult for us to say that Members of this House have been remiss in their duties. The petitions for the two Bills were deposited at the end of 1998. The Bills were introduced in this House and read a second time just under a year ago. No petition was deposited against the Medway Council Bill. However, a petition was deposited against the Kent County Council Bill but was withdrawn on 8th July 1999. The effect of that was of course that the Kent Bill became unopposed. A Home Office report was submitted on the two Bills and they were considered by the Unopposed Bill Committee. Amendments were made to both Bills at that stage.
  Therefore in form at any rate, if not totally in substance, I believe that the proper procedures were followed. As I say, I believe that the objectives of the Bill are entirely laudable. I agree that the detail and the practicalities are questionable. Some of my noble friends, particularly my noble friend Lord Lucas, to whose speech I listened closely, drew particular attention to that. My noble friend Lord Astor set out attractively and accurately the criteria that ought to be applied to legislation of this kind. He drew attention to the matter of national consistency. I entirely sympathise with that point because if we do not have consistency in a field as important as this, those who want to operate in this field will experience difficulties and the kind of business likely to be covered by this Bill may be driven out of counties such as Kent into adjoining counties with possible unattractive economic consequences. I cannot see that they would be catastrophic but there may be unattractive economic consequences for people who wish to operate in Kent or in the Medway towns. That ought to be reflected upon.
  The Minister owes it to the House to explain whether serious consideration has been given to legislation in this field that is national in scope. It is too late at night to go into all the delicacies that may arise from devolution. I cannot for the moment recollect whether this kind of matter would be covered by the Scottish or Welsh devolution Bills. However, as I am now resident in Wales I shall have to become more acquainted with that matter if this provision becomes law. At any rate I believe that there is rather a strong

  1063
  case for considering—I am sure that the Minister or his officials will have considered this—whether there is not a case for some national rather than council-based legislation in this field. Having had a brief spell in government I appreciate that there is always the pretext that there is not the time or the resources to consider a Bill of this kind in this particular Parliament. However, I hope that I may press the Minister to comment on that before this debate is concluded.
  Various noble Lords have mentioned the regulatory burden. There is no estimate of the likely costs not only for the councils or the police forces who are involved in this matter but also of the likely transaction costs. Again, we owe it to ourselves and to the country to show that we have considered that aspect of the case. There is also the matter of the general regulatory burden. However, as other of my noble friends have touched on that matter, I do not think that I need comment further on it.
  As regards the question of enforceability, I am in no position to say whether these measures are practically enforceable to any reasonable degree. I believe that the noble Lord, Lord Thomson of Monifieth—for whose views I have the warmest regard—said that the measure had been introduced in eight other council areas and they had found it useful. I hope that he will allow me to suggest that it is not so much a question of the utility to the council authorities, or even to the police authorities in those areas; we also have to consider the utility to those involved in the manner of business that we are discussing. There cannot be any presumption that they are somehow on the edges of the law and we can disregard the inconvenience of the practicalities as they affect them. I should like to hear a little more about this matter. During the procedures which have led this Bill to appear before this Chamber tonight, was that aspect of the matter considered at all carefully?
  There is also the question of civil liberties. As this matter has been discussed at length and with authority, I shall not discuss it further, but we must take that matter into account. The House will be relieved to hear that I say in conclusion that I approve of the objectives of the Bill and I have no particular criticism—indeed, in some senses I approve—of the course taken by the sponsors of this Bill. There is no question of it being forced through in an underhand way, but evidently the points were not taken up in the appropriate quarters at the appropriate time. I therefore cannot go along with my noble friend Lord Astor. I do not think that after a rather limited debate it would be right for us to kill off these Bills at this stage. Were the matter to be taken to a Division, I would vote that the Bills should be passed tonight, but on the clear understanding on the part of the sponsors of the Bills that ample time will be found—I know that that does not rest entirely with them—for a proper debate and investigation of these two Bills in another place. Subject to that reservation I am prepared to let the Bills go through tonight.
  The Chairman of Committees (Lord Boston of Faversham): My Lords, in what I hope will be a brief speech on one or two procedural matters, I must first of all apologise to your Lordships for being perhaps somewhat overdressed for an occasion of this kind. While no trouble is too great to take for the benefit of your Lordships, the reason I am dressed in this manner is that I am due to attend the dinner which is being given by Cross-Bench Peers to mark the retirement of the former Convenor, the noble Lord, Lord Weatherill.
  I am sure that your Lordships have listened with considerable interest to the speeches which have been made both for and against the Third Reading of the two Bills. I am also sure that your Lordships will understand that it is not my responsibility to take part in any discussions on the merits of a Private Bill. However, as Motions have been tabled which, if carried, would have the practical effect of rejecting the Bills on Third Reading, your Lordships may find it helpful if I say something briefly to remind you, or perhaps to confirm in certain cases, some of the procedural implications of the amendments of the noble Viscount, Lord Astor.
  As your Lordships have heard, neither the Kent County Council Bill nor the Medway Council Bill was referred to a Select Committee. This was because the only petition presented against the Kent County Council Bill was withdrawn, as has been indicated already, and the Medway Council Bill was never opposed in your Lordships' House at all. Neither Bill therefore received the detailed scrutiny of its merits which takes place in Select Committee if a Private Bill is opposed. I can assure your Lordships that both Bills received the detailed technical scrutiny that your Lordships would expect. Both Bills were amended, as has also been indicated, mainly on technical points, by the Unopposed Bill Committees.
  Perhaps I should refer to one specific point which was mentioned by the noble Lord, Lord Lucas, during the debate. I confirm that private legislation is not covered by the requirement that there should be a statement by the Minister that the Bill is compatible with the Human Rights Act. That is true for both Houses.
  I should mention that it is unusual for Private Bills to be opposed at Third Reading. The last time a Private Bill was rejected at Third Reading in your Lordships' House was the Swanage Yacht Haven Bill in 1987. That Bill differed from the two present Bills in that it had been considered by a Select Committee, which had produced a special report on the Bill. If the House agrees to the Third Reading of the two Bills today—this has been mentioned by at least one noble Lord—they will of course pass to another place, where there will be a further opportunity for opponents of the Bills, or either of them, to petition against them and for the Bills to be considered by a Select Committee there.
  Your Lordships may consider that such a course would be more appropriate than the outright rejection of the Bills by this House, where they have not been considered by a Select Committee. Without

  1065
  mentioning the merits of the Bills, I would suggest that, on the procedural point I am making, that may be the appropriate course for your Lordships' House to adopt.
  Lord Monson: My Lords, before the noble Lord the Chairman of Committees sits down, can he say whether the Bill—should we pass it here tonight—can be amended in another place, as opposed to being totally rejected following petitions against it? That would seem to be the deciding factor in how we shall vote if the amendment goes to a Division.
  The Chairman of Committees: My Lords, I can confirm that it would be possible for amendments to be made. The procedures in another place are similar to procedures here. If a Select Committee were to be appointed on either of the Bills, there would be opportunities to consider amendments there. Similarly, if the re were to be an Unopposed Bill Committee in an other place, just as happened in this House, it would be possible for amendments to be brought forward there.
  Lord Thomson of Monifieth: My Lords, I shall take one moment to reply to the amendment moved by the noble Viscount in the light of what has been said during this interesting debate. We are all grateful for the advice we received from the Minister, who spoke from his balanced position of neutrality. He conveyed some important information about the background to the Bill. Finally, we had some very clear advice from the noble Lord the Chairman of Committees.
  I thought that the noble Viscount made two main points—both of them valid in their ways. One of his objections to the Bill was that there should be no "piecemeal law-making". With respect, it would put a stop to almost all local authority legislation if that concept were to be followed.
  The debate has shown a number of detailed points of real concern. The noble Lord, Lord Lucas, recited a great many of them. They cannot be dealt with in a debate of this kind, but they can be dealt with by accepting the advice of the noble Lord the Chairman of Committees.I very much hope that the noble Viscount will feel able to follow that advice.
  Viscount Astor: My Lords, we have had an interesting short debate. Perhaps I may deal with a few of the points that have been made.
  The noble Lord, Lord Mackenzie, said that the police had no problem dealing with scrap metal dealers. I am sure that he is aware that they are covered by the 1964 Act—which is a national Act, as is the Gaming Act.
  It pains me greatly to disagree with my noble and learned friend Lord Mayhew. He has stated his distinguished views and he is concerned about the implications in Kent. So am I concerned about the implications in Kent. My noble and learned friend Lord Mayhew pointed out that a number of other local authorities had introduced some kind of legislation.
  1066
  That is entirely true and entirely valid. But the difference is that that kind of legislation affects only the county to which it relates; it does not extend across the border. This legislation extends across the border and affects the whole country.
  If the Minister had been prepared to stand up and say, "This is the blueprint that we should like local authorities to follow; this is the Government's view", that would be different. As it was a private Bill, the noble Lord said that he was neutral and sat on the fence. He got off it for a brief period and then jumped back on again. But he did not help the House. That is the difference.
  My noble friend Lord Rees pointed out that there should be national consistency. I agree with him. I am not trying to deprive the citizens of Kent of any protection, but it is important that this House should consider legislation when it goes beyond affecting only a small area.
  The noble Lord, Lord Boston of Faversham, quite rightly said that the Bill has been subjected to technical scrutiny. That is entirely right. I am not looking at it from a point of technical scrutiny but from a point of principle. The point of principle is important for this House. I believe that this House has a role in legislation; I believe that we should not send Bills to another place unless we are entirely confident in those Bills. I know there is an opportunity to petition, but I do not know what will happen in another place.
  There is a duty on this House, as a revising Chamber, not to send to another place anything that we believe is flawed. I believe this Bill is flawed because it affects the nation and, therefore, goes beyond the normal private Bill. I support the aims but I cannot support the Bill. Therefore, I feel that I must move my amendment.
  8.48 p.m.
  On Question, Whether the said amendment shall be agreed to?
  Their Lordships divided: Contents, 33; Not-Contents, 47.

  Division No. 1

  CONTENTS

  Arran, E.

  Lucas, L. [Teller]

  Astor, V. [Teller]

  Luke, L.

  Attlee, E.

  Mackay of Ardbrecknish, L.

  Blackwell, L.

  Marlesford, L.

  Blatch, B.

  Nicol, B.

  Bridgeman, V.

  Norton of Louth, L.

  Dixon-Smith, L.

  Palmer, L.

  Dundee, E.

  Peel, E.

  Flather, B.

  Seccombe, B.

  Fookes, B.

  Skelmersdale, L.

  Fraser of Carmyllie, L.

  Skidelsky, L.

  Glenarthur, L.

  Stewartby, L.

  Hunt of Wirral, L.

  Stodart of Leaston, L.

  Jenkin of Roding, L.

  Strange, B.

  Kimball, L.

  Taylor of Blackburn, L.

  Lindsay, E.

  Warwick of Undercltffe, B.

  Liverpool, E.

  1067

  NOT-CONTENTS

  Addington, L.

  Mackie of Benshie, L.

  Ahmed, L.

  Mayhew of Twysden, L. [Teller]

  Barker, B.

  Milner of Leeds, L.

  Barnett, L.

  Molloy, L.

  Blease, L.

  Monson, L.

  Brougham and Vaux, L.

  Newby, L.

  Carlile of Berriew, L.

  O'Neill of Bengarve, B.

  Clement-Jones, L.

  Phillips of Sudbury, L.

  David, B.

  Razzall, L.

  Davies of Oldham, L.

  Rea, L.

  Dean of Thornton-le-Fylde, B.

  Rees, L.

  Dormand of Easington, L.

  Russell, E

  Evans of Parkside, L.

  Sawyer, L.

  Falkland, V.

  Sharman, L.

  Geddes, L.

  Sharp of Guildford, B.

  Hamwee, B.

  Thomas of Walliswood, B.

  Hardy of Wath.L.

  Thomson of Monifieth, L.[Teller]

  Harris of Greenwich, L.

  Harris of Richmond, B.

  Tope, L.

  Hogg of Cumbernauld, L.

  Tordoff, L.

  Howie of Troon, L.

  Varley, L.

  Laming, L.

  Wallace of Saltaire, L.

  Lyell, L.

  Walpole, L.

  Mackenzie of Framwellgate, L.

  Warner, L.

  Resolved in the negative, and amendment disagreed to accordingly.
  Bill read a third time, and passed, and sent to the Commons.

  Medway Council Bill [H.L.]
  Read a third time, and passed, and sent to the Commons.

  Care Standards Bill [H.L.]
  8.59 p.m.
  House again in Committee.
  Clause 69 [Basic definitions]:
  The Deputy Chairman of Committees (Lord Brougham and Vaux): In calling Amendment No. 136, I have to advise the Committee that if this amendment is agreed to, I cannot call Amendment No. 137.
  Earl Howe Earl Howe moved Amendment No. 136:
  Page 41, line 20, leave out subsection (2).
  The noble Earl said: The basis of the referral and listing system set out in Clauses 69 to 71 is that a person who provides care for vulnerable adults is under a duty to refer a care worker to the Secretary of State in certain defined sets of circumstances. The term "care worker" is itself defined in Clause 69(2)(a), (b) and (c) and denotes a person who, in one context or another, is employed to look after someone. In Clause 71, "provider"—that is to say, one who carries on a business—and "care worker"—that is to say, an employee—are clearly quite distinct types and classes of people. My question to the Minister is whether there are circumstances in which a provider can himself be a care worker. In other words, what mechanism, if any, exists to refer to the Secretary of State the name of a
  1068
  provider of care services where that person is guilty of harming a vulnerable adult or of placing such an adult at risk of harm?
  The Bill appears to say that only a provider of care services may refer someone to the Secretary of State and that the terms "provider" and "care worker" are not interchangeable in such a way as, for example, to enable an employee to refer his own employer to the Secretary of State. Although the noble Lord, Lord Phillips, has not yet spoken to it, I have a good deal of sympathy with the thrust of his amendment, Amendment No. 144C. It should be possible in certain circumstances for the national care standards commission to refer a provider of services to the Secretary of State if, as appears from the Bill, no one else can. Can the Minister clarify that point? I am troubled that one day there might be a clear-cut case of an individual having harmed a vulnerable adult or placed such an adult at risk of harm without there being any means of referring such a person to the Secretary of State because he or she is the registered proprietor of a care home or clinic and not an employee. I beg to move.
  Lord Rix: I rise to speak to Amendment No. 137 which is grouped with Amendments Nos. 136 and 144C. This amendment follows the logic adopted in earlier amendments, that day service staff have to discharge during the day the same sort of functions as residential care staff have to discharge to those same people in the mornings and the evenings, including support with visits to the toilet, with changing after swimming and with other aspects of personal hygiene. The recruitment of properly vetted staff should not be limited to those whose contractual hours might include hours between 5.30 p.m. and 8 a.m. I believe that such individuals should be added to the list of care workers already on the face of the Bill.
  Lord Phillips of Sudbury: I should like to speak to the amendment in my name, which broadly deals with the circumstances referred to by the noble Earl, Lord Howe. The Government may think that my amendment will add confusion to complexity but the purport is very clear. It may be useful if I give one example. It is not uncommon that in some care homes, particularly perhaps smaller ones, a complaint as to the running of the home will come not from the provider—the proprietor—but from a member of staff. It is altogether possible that a member of staff who persists in claiming with regard to his employer that what is being done is not right could find himself dismissed. If he is dismissed within the qualifying one year in order for him to make a claim for unfair dismissal, he will have no remedy. One could therefore have a rather bizarre set of circumstances where someone who is dismissed unfairly is then compulsorily referred for the blacklisting procedure when in fact he has been trying to do the right and proper thing. As I understand it, the amendment proposed by the noble Earl, Lord Howe, and my

  1069
  amendment address that circumstance. Even if the wording is not perfect, I should like to think that the Government would accept the intent.
  The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): Perhaps I may say to the noble Earl, Lord Howe, and to the noble Lord, Lord Phillips, that I very much take on board the points they have made. If an owner in the specified service appears as a result of misconduct to have harmed or placed at risk of harm a vulnerable adult, it is important that there is provision for such a person to be referred to the list. It is clear that we need a provision whereby a member of staff can ensure that an employer or an owner who has misbehaved can be referred to the list. We need that added safeguard. We are at present considering how the national commission for care standards could enforce such a scheme. Our intent is to bring forward an amendment to allow the commission to make referrals to the Secretary of State in just such circumstances as both noble Lords have pointed out. On that basis, I hope that they will feel assured.
  The noble Lord, Lord Rix, returned us to the question of day centres. In order for the provisions of this part of the Bill to bite fully on day centres, day centres themselves would have to be regulated by the commission. That would be necessary to ensure that the duty to refer is fully enforced and that centres do not employ banned persons. As I said in Committee last week, it may be that in time day centres are to be brought within the regulatory framework of the commission, although at this stage I cannot give an assurance on whether or when that may be. However, enabling a day centre to check whether a person it is proposing to employ is on the list is a different matter. It is exactly what we had in mind when taking the power in Clause 77(2)(c) to extend access to the list. Once the new system is operational, I can assure the Committee that we shall consider carefully whether enabling day centres to access the list in that way would be appropriate.
  Lord Rix: The dread words "in time" came up again. I was pleased to hear that there was a possibility of access to the list. If there could be a commitment on that by the Government during the passage of the Bill through your Lordships' House, I should be content.
  Lord Phillips of Sudbury: I am grateful for what the Minister said and shall be happy not to move my amendment on that basis.
  Earl Howe: I echc the words of the noble Lord, Lord Phillips. It was a helpful reply. It is clearly a concern which must be addressed and I am grateful that the Government are doing that. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 137 not moved.]
  Earl Howe Earl Howe moved Amendment No. 138:
  Page 42, line 4, after ("whom") insert ("clinical or").
  The noble Earl said: I tabled the amendment because I believe it is essential that, as we debate the provisions of Part VI of the Bill, we gain a full understanding from the Government of what the term "vulnerable adult" should be taken to mean. The definition provided by subsection (6) of Clause 69 appears extraordinarily wide. I have considerable sympathy with Amendment No. 139 in the name of the noble Lord, Lord Clement-Jones, which makes a good attempt at defining "vulnerable adult" by reference to the physical or mental condition of the person rather than where the person happens to be.
  My amendment is intended to bring us back to the issue of healthcare at home, which we debated on an earlier set of amendments. I ask the Committee to treat this purely as a probing amendment because it is clear, from what the Minister said earlier, that it would not be appropriate to alter the definition of "domiciliary care agency" in the way that I sought.
  The main issue is to ascertain which services the Government intend to set out in regulations as the basis for the definition. The mention of "prescribed services" in subsection (6)(c), as provided by an independent hospital, an independent clinic or NHS body, again suggests fairly wide coverage. Indeed, in a healthcare setting it is not unreasonable to regard most adult patients as being vulnerable in one way or another. If the definition is to include all adult patients in hospitals and clinics, it clearly has major implications in terms of the need to check all potential NHS employees against the proposed register on every relevant appointment or job move. I shall be interested to hear what the Minister has to say. I beg to move.
  Baroness Barker: I rise to speak to Amendment No. 139. On these Benches, we too are concerned about the wide definition of who is a "vulnerable adult". Earlier in the debate I spoke about the terminology currently used in social services. In recent years there has been a tendency to go down the road of talking about services in terms of those to whom they are provided, rather than the nature of the service itself. "Adult services" is a wide term in current usage. Generally it does not include services to people with learning difficulties. In most social services departments, services for elderly people would be considered to be a separate although related matter.
  It is a question of the definition of a "vulnerable adult". We all have a general understanding of what the Government are trying to do, but the purpose of the amendment is to make it explicit. Much of what we have tried to do elsewhere in the Bill, in terms of getting the balance right on matters such as registration and inspection, depends very much on the nature of those vulnerable people to whom the services are being given. It is part of a whole. We need to view the recipients of the service, the nature and regulation of the service and the inspection of it as part of a whole.

  1071
  It is, therefore, important that we have an explicit and agreed understanding of what the term "vulnerable adult" means. That is the purpose of the amendment.
  Lord Phillips of Sudbury: I wish to add to what was said by the two previous speakers and to ask the Minister whether he would be so kind, if not tonight then perhaps in correspondence, to explain the interpretation of "personal care", as set out in Clause 96(3). The provision states:
  "In this Act, the expression 'personal care '… extends to advice and encouragement, but does not include any prescribed activity".
  The definition of "vulnerable adult" when read in conjunction with the definition of "personal care" covers advice and encouragement. So it might embrace the vicar, on one of his visits to elderly patients. One is getting into a wide area.
  The particular elucidation that I seek from the Minister is of the words,
  "but does not include any prescribed activity",
  at the end of Clause 96(3). That may or may not hark back to Clause 69(6)(c), but I am sure that the Committee will be grateful to have clarity on that matter.
  9.15 p.m.
  Lord Hunt of Kings Heath: I am grateful to the Committee for raising a number of matters. I deal first with the points raised by the noble Earl, Lord Howe, and in particular that related to our intention in respect of healthcare staff. We have decided that healthcare staff will be covered only if they are concerned with the delivery of certain specified services to be set out in regulations. We have in mind making regulations under the provisions of Clause 69 to bring within the scope of the scheme acute and community settings for learning disabilities, psychiatric (including psychotherapy) services and dedicated elderly services. In this way those services which are accessed mostly by vulnerable adults will be covered. In the first instance we do not intend that more general services, such as accident and emergency provision, should be covered. Clause 69 provides the Secretary of State with sufficient powers to extend the scope of the protection of vulnerable adults to other health-related services by the making of regulations.
  Our intention is to ensure that employees of NHS statutory bodies—which will include all NHS trusts, acute community, combined and primary care trusts once established, health authorities and special authorities and, similarly, independent hospitals and independent clinics—who provide the prescribed services are covered. In the NHS settings it will be possible to enforce compliance since the Secretary of State under Section 12 of the Health Act 1999 has the power of direction in relation to the exercise of functions in health authorities, special health authorities, primary care trusts and other NHS trusts.
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  The noble Earl did not refer to general practitioners. He will be aware that they are in a slightly different position as independent self-employed contractors, and as such they will not be covered by the list. Clearly, there are a number of ways in which their performance and behaviour can be regulated. So far as concern private healthcare settings, we shall take a similar approach to the NHS arrangements, in that the services to be covered by the list will be set out in regulations. Private healthcare providers will be accountable to the regulator, the national care standards commission, which will ensure that registered services have proper arrangements in place to deal with suspected cases of abuse by employees. The Bill attempts to align those people whom the NHS treats with those whose situation is in a sense most akin to the definition of "vulnerable adult" contained in Clause 69(6).
  As to Amendment No. 139, the scheme that we seek to introduce does not cover all elderly people; nor is it intended so to do. Some elderly people would, rightfully, resent the terminology "vulnerable adult". But this is a scheme that will include services in which all the people who receive care can be regarded as vulnerable. Those services are regulated so that the scheme can be enforced—hence the description of "vulnerable adults" in Clause 69, which itself relates back to those services to be regulated by the national care standards commission. It is important to recognise that the provisions related to vulnerable adults in this part of the Bill relate back to the services to be regulated by the commission in respect of adults.
  If we are to provide protection for vulnerable adults, we need a clear focus on the settings where it is truly needed. In that way we can ensure that adults who everyone agrees are vulnerable receive the level of protection they deserve against people who are unsuitable to look after them. To base the scheme on specific services where all the adults being looked after can be regarded as vulnerable means that we can introduce a practical and workable scheme. The important point is that we do not want to dilute the measure so that it makes the scheme less effective.
  The noble Lord, Lord Phillips of Sudbury, asked me specific questions. I shall accept his invitation to write to him on those points.
  Earl Howe: That was an extremely useful clarification of the subsection. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 139 not moved.]
  Clause 69 agreed to.
  Clause 70 agreed to.
  Clause 71 [Persons who provide care for vulnerable adults: duty to refer]:
  Page 42, line 29, at end insert ("proven").
  The noble Earl said: One of the main balances to be struck in this part of the Bill is the balance between the rights of vulnerable adults and the rights of those who care for such adults. I believe that there is dissent in the Committee about the need to provide a means of preventing those who harm vulnerable adults, or place them at risk of harm, from having the opportunity of doing so again. However, to be fair on all concerned the process by which a person's name is included on the Secretary of State's list must be clear, and leave as little room as possible for miscarriages of justice.
  Subsections (2) and (3) of Clause 71 list the grounds on which a provider of care for vulnerable adults is required to refer a care worker to the Secretary of State. Subsection (2)(a), upon which other subsections in their different ways depend, states,
  "that the provider ha; dismissed the worker on the grounds of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult".
  The questions posed by the amendment are these. First, what is the meaning of misconduct? Secondly, what degree of proof and depth of deliberation are required for the grounds mentioned in the subsection to be fulfilled? It will he helpful to hear from the Minister what the term "misconduct" means. If it is defined, as it is at least in part, by whether a vulnerable adult was harmed or placed at risk of harm, it is important that we should know what sort of harm is meant. Does it include honest mistakes or innocent acts of omission? Is one such mistake sufficient? Most mistakes in a professional environment, and many instances of incompetence, are rectified by further training or professional support, not by punitive measures.
  My other worry is that when things go wrong, it is often the result of many factors: pressure on staff, poor procedures or poor management, in situations where individual staff can be made scapegoats. What is to prevent that from happening? How will the system be able to guard against the referral that is malicious? What degree of proof is required? In certain cases it will be clear that an individual is guilty of a deliberate act that has harmed a vulnerable adult because he or she has been dismissed following a formal and conclusive in-house investigation. However, subsection (2) allows for other situations: for example, where the care worker has resigned or retired in circumstances which by the very nature will not have allowed for a balanced and conclusive investigation into the incident that has taken place.
  Clause 71(2)(a) specifies that one set of conditions requiring referral is where a care worker has been suspended pending a decision on whether or not to dismiss him. It is not clear to me what the phrase "on such grounds"means in that subsection, or in subsection (2)(b) and (c). The word "such" refers us back to paragraph (a), which specifies grounds of misconduct, and so on. But the degree to which misconduct needs to be proved seems to vary between each of the subsections. In subsection (2)(a) the misconduct appears to mean proven misconduct. On
  1074
  the other hand, in subsection (2)(b) the need for proof of misconduct is nothing like so high because the circumstances are such that the provider,
  "would have considered dismissing [the person]",
  had he not retired or resigned. The situation there envisaged is where the care worker has already left his job and cannot in consequence speak in his own defence. The wording,
  "would have considered dismissing him",
  implies a situation where the provider cannot be sure whether misconduct has definitely taken place; or, if he believes that it has taken place, whether it is serious enough to justify dismissal.
  As I have mentioned, in subsection (2)(d) the misconduct is by definition suspected, but not proven. I am far from happy with that. Does the Minister agree that the expression "on such grounds" needs clarification? As it stands it is too loose or too woolly to be interpreted with any degree of precision.
  A further reason why I find this issue particularly troubling is subsection (7), which specifies that the Secretary of State, before confirming the inclusion of someone's name on the list, needs to be of the opinion,
  "that the provider reasonably considered the worker to be guilty of misconduct".
  But at least some of the circumstances envisaged in subsections (2) and (3) fall a long way short of a conclusive verdict of guilt. So, besides being internally inconsistent, subsections (2) and (3) do not appear fully compatible with another very important part of the clause. With apologies to the Committee for having gone on so long, I beg to move.
  Lord Clement-Jones: The noble Earl, Lord Howe, has spoken with great skill and force in connection with Amendment No. 140. Amendment No. 142, to which I speak, has a very similar set of concerns underlying it. The particular concerns that have been put to me are those of the NHS Confederation. They relate to subsections (2)(c) and (2)(d). Subsection (2)(c) says that employers should also refer to the Secretary of State where,
  "the provider has, on such grounds, transferred the worker to a position which is not a care position".
  The noble Earl, with considerable forensic skill, examined the words "on such grounds". That is precisely the area of concern.
  The Department of Health has, I understand, confirmed that the subsection would apply not only to cases in which the transfer is as a result of the decision of a formal disciplinary procedure, but also to cases where workers are transferred to non-care positions where there are concerns, but not proof, about their behaviour.
  The NHS Confederation has put to me two concerns about that paragraph. First, in the service there are many instances where the transfer of a member of staff is the solution that best meets the circumstances. In crude terms, there might not be sufficient evidence to proceed with a disciplinary hearing, but agreement can be reached with the individual or his or her trades

  1075
  union for transfer to other duties. If such a course of action would require referral to the Secretary of State, there is little likelihood of getting the agreement of the individual or the union to the transfer. Such a situation would be of no benefit to anyone, least of all the vulnerable adults who need protection. Paradoxically, those whom the proposal is designed to protect could be more at risk.
  Secondly, real questions of natural justice arise over a referral to the Secretary of State in cases in which there has not been any formal hearing. We shall deal with this later under the amendments proposed by my noble friend Lord Phillips. The department apparently says that this should not be an issue, because the Secretary of State will do his own investigation and seek the views of the individual and organisations concerned and then make a decision. We believe that this could lead to protracted hearings, potential conflicts and unsatisfactory outcomes.
  In summary, the Bill as drafted will restrict the ability of employers to resolve potential problem situations, will potentially leave vulnerable adults at greater risk and be open to challenge by affected individuals on grounds of natural justice. We have therefore proposed the deletion of both paragraphs (c) and (d).
  I should at this point also refer to representations that have been made to me by the Royal College of Nursing, which also has considerable concerns about the impact of the Bill. It is particularly concerned that there may be malicious referrals. As the noble Earl said, it is likely that the allegations need not have been proved. The Royal College also wants to see a requirement that in any case where a care worker to be referred to the Secretary of State is on the statutory register of nurses, there should be a statutory duty on the provider making the referral to refer the care worker to the registration authority—that is, the UKCC or any body that succeeds it.
  It is concerned that these measures are not adequate to ensure a fair, rigorous and thorough system for placing people on the list and that it may lead to people being wrongly placed on the list, thus blighting their career and livelihood. Like us, the RCN in particular wants to see a much more rigorous system for scrutinising and assessing referrals.
  9.30 p.m.
  Lord Phillips of Sudbury: I want to make one point in enlargement of the concern of the noble Earl, Lord Howe, about the phrase,
  "would have considered dismissing him",
  in Clause 71(2)(b). It occurs also in subsection (3) in circumstances where information becomes available to a provider after a worker has left his or her employ.
  It seems to me that the way Clause 71(2)(b) is drafted means that where a worker has resigned or retired the test to be applied by the provider as to whether to refer to the Secretary of State is lower than
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  that applicable if the worker is in employment when the consideration goes ahead. I say that because if the words,
  "or would have considered dismissing him",
  are left out of the subsection, the test can then be said to be parallel to that in Clause 71(2)(a). By stating that where the worker has resigned or retired in circumstances such that the provider would have dismissed him,
  "or would have considered dismissing him".
  we are creating a new and even lower test upon which the question of referring to the Secretary of State must be decided by the provider.
  I say to the Government that as yet no one has referred to the statutory duty that Clause 71 places on providers. It is not something that they may do; it is something that they must do. I should be grateful if the Minister would tell the Committee what the Government believe will be the consequence to a provider of failing to refer a care worker in circumstances where they, the national commission or anyone else consider that they made a wrong judgment.
  There are no sanctions in the Bill—at least, I do not believe that there are—for a failure to refer, but what do the Government believe might be the civil liability of a provider if afterwards the child of, say, a vulnerable adult goes back to the provider and says, "On what I have heard, you should have referred the case. It is a case in which you would have considered it missing had you had that information available and considered the facts at the time"? A vast number of people will be caught up in this crucial clause and it is important to know what the Government believe will happen in civil law.
  Lord Laming: I fear that I may be on my own. but I want to speak against the amendments as strongly as I can. I greatly hope that nothing will be done to weaken this part of the Bill.
  The Committee will recall the lengthy debates which took place during the passage of the Protection of Children Bill, where such matters were carefully examined. During the passage of that Bill, it was, I hope, demonstrated to reasonable satisfaction why it is important that there are proper mechanisms, not for dealing with criminal behaviour (because the criminal law deals with criminal behaviour), but for dealing with issues of professional misconduct which put vulnerable individuals at risk, often seriously; sometimes to the extent of abuse or exploitation.
  During the course of that Bill, we anticipated that other legislation would ensue to address such matters in respect of vulnerable adults, recognising that adults can be as much exposed to exploitation as children. In the course of those discussions, we recognised that some staff change jobs quite frequently; that they may often go to considerable lengths to cover their tracks; and that quite often people in vulnerable positions who are extremely dependent on staff do not feel able to reveal what has happened to them while the member of staff concerned remains employed in a key position

  1077
  in which he or she may have sole charge of that individual from lime to time. In such cases, it is often only when that member of staff is moved on that the vulnerable person concerned has the confidence to share some of his. sometimes dreadful experiences.
  On the other hand, experience has shown that some employers—that is, providers— go to considerable lengths to avoid facing up to the implications of the behaviour of an employee. Whether or not it is because of a lack of courage, or whether it is because they do not want the good name of their establishment or centre to be questioned, they transfer people to posts which may well work to the advantage of both the provider and the member of staff, but certainly do not necessarily work to the advantage and the benefit of vulnerable people where that worker may have access to them in quite different circumstances.
  I stress that we are discussing misconduct, not criminal behaviour: and it is quite clear what the standards of professional misconduct are—they are clearly understood. Cases involving proof and those where issues comes to light after the person has resigned or moved on, where, had that person been in post, the provider would have considered the issue, and those where the person implicated has been transferred to another post, are important matters for which it would be quite wrong of the Committee to weaken the range of possibilities that a provider must make.
  Of course there are safeguards; they are built into appeal mechanisms and the rights of employees, not only in respect of employment legislation—because employers must comply with employment legislation, which is extremely detailed—but also in the system dealing with professional misconduct and professional discipline. There are thus proper mechanisms for appeal and safeguards. There are also safeguards which recognise that, of course, from time to time a malicious complaint may be made. Therefore, those matters must be handled in a way which is fair to all concerned. However, at the end of the day it must be understood that the most vulnerable person is the user of services. Because that person is the most vulnerable and is most likely to be exploited or abused, we must ensure that we build in for that person a system which is sufficiently robust and rigorous to deal with the different ways in which staff can behave and the ways in which people can be exposed to unacceptable behaviour.
  I hope very much that the amendments, well intended though they are, will not be carried because I believe that there must be a proper balance which ensures that dependent people are recognised and that every effort is made to deal with their particular needs.
  Lord Hunt of Kings Heath: I believe that the noble Lord, Lord Clement-Jones, considers that I use the word "balance" rather a lot. I remember that when we debated the Protection of Children Act in your Lordships' House it was a word which I used frequently.
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  I believe that we have heard in today's debate various sides of that balance. It is genuinely difficult to draw the right balance between the necessary rights of individuals, to which noble Lords opposite have referred, and the necessary protection of vulnerable people. The provisions in the Bill attempt to draw the right balance alongside the additional safeguards that are drawn, first, by the role of the Secretary of State and then by the ability of a person to appeal to the tribunal. I believe it is important that when we debate those questions we bear in mind both that balance and the rights of individuals to appeal ultimately to a tribunal if they believe that they have been dealt with wrongly.
  Perhaps I may deal, first, with Amendment No. 140. I very much accept the point that we do not want inappropriate or malicious references to the list. Of course not. However, if the list is to serve its purpose and be a true protection for vulnerable adults against people who would seek to do them harm, we need employers to refer cases to the Secretary of State where protection of vulnerable adults can be improved by such referrals.
  It is lawful for an employer to dismiss a worker where, after investigation, the employer has a owell-founded belief that the misconduct has been committed. The noble Earl, Lord Howe, asked for the meaning of "misconduct". My understanding is that it means any behaviour which risks harm to a vulnerable adult. Included within that could be omissions or negligent acts, such as failing to feed a particular vulnerable adult. Where, after investigation, the employer has a well-founded belief that misconduct has been committed, it would not be desirable to go beyond that by placing some additional formal requirement of proof on employers. The whole basis of the Bill is to ensure that the schemes reflect what employers already do in the workplace in cases of a dismissal for misconduct. We want to make sure that the scheme is workable for them. We do not want the scheme to put an undesirable burden on them.
  Inclusion in the list will not be automatic for everyone who is referred. The Secretary of State will seek the views of the person to be referred. He must believe that the employer has acted reasonably and, in addition, consider that the individual is unsuitable to work with vulnerable adults before he will conclude that an individual should be included on the list. I fear that the amendment could restrict the intention of those provisions to increase the level of safety afforded to vulnerable adults. Such an increase in safety is the outcome that we wish to achieve and we must ensure that we do so for the sake of the service users.
  I turn to Amendment No. 142. The noble Lord. Lord Clement-Jones, referred to the concerns of the NHS Confederation. In this instance, I do not agree with the points which have been made. Where an employer has transferred an individual, has suspended him or has temporarily transferred him away from caring for vulnerable adults, surely it is important that those cases should be referred to the list if we are to offer vulnerable adults the degree of protection which they deserve.

  1079
  The noble Lord said that where there was suspicion about the actions of such a person, it was easier for an employer simply to move him away into a non-caring position. But it is not right to say that that solves the problem. The Bill contains those clauses in order to make sure that the employer deals with the issue with the ultimate protection of vulnerable people in mind.
  I recognise that for employers who are facing up to those responsibilities, those issues will cause them concern and they will give considerable thought to how those matters will work out in practice. We shall ensure that appropriate guidance is published to enable them to understand what are their particular responsibilities.
  In relation to the differences between Clause 71(2)(a) and Clause 71(2)(b), the noble Lord, Lord Phillips, asked whether there was a lower test. If a person has left the employment, although the employer may have suspicions relating to that individual, it may simply not be possible to carry out the thorough investigation which would be expected under Clause 71(2)(a), although there may be sufficient evidence to warrant a referral to the Secretary of State.
  Of course, the safeguard is the Secretary of State's own decision in relation to provisional listing, confirmation of listing and the question of appeals.
  9.45 p.m.
  Lord Phillips of Sudbury: I am grateful to the Minister for giving way. He referred to the thorough investigation of the facts to take place under Clause 71(2)(a). Will he tell the Committee how that measure provides for a thorough investigation of the facts?
  Lord Hunt of Kings Heath: It follows that the employer has carried out a proper investigation which has then led to the employer being dismissed.
  Lord Phillips of Sudbury: But does the Minister accept that the problem is that he may not have carried out a thorough investigation and that may be the reason that it would be grossly unjust for the employee concerned to be put on the provisional or permanent list?
  Lord Hunt of Kings Heath: Safeguards exist. First, in relation to any decision made by the Secretary of State provisionally to list that person, papers will need to be referred by the employer. Those papers must fit into the criteria under Clause 71(7)(a) and Clause 71(7)(b) so that inadequately prepared cases are weeded out at that stage.
  There is then the additional safeguard that the Secretary of State must be of the opinion that both paragraphs (7)(a) and (7)(b) are satisfied. There is a further safeguard in relation to the appeal which a person can make to a tribunal.
  The noble Lord, Lord Phillips, asked about the issue of sanctions. He is quite right about that. If establishments regulated under the provisions of this Bill were found not to have appropriately referred
  1080
  individuals whom they employed to the Secretary of State, that would be a serious matter in relation to whether they were carrying on in an appropriate way for an establishment regulated under this legislation. It would then be for the commission to pursue that matter with the establishment. As regards the National Health Service, that would be a matter for management action by the Secretary of State. I shall not bore the House by describing the accountability chain between the NHS and the Secretary of State, but it is a pretty strong line of accountability. I hope that I have answered most of the points raised.
  Lord Clement-Jones: My Lords, before the noble Earl, Lord Howe, responds, perhaps I may say that I appreciate the Minister's reply and his desire to achieve a balance in this clause between natural justice and proper protection for vulnerable people. However, with the greatest respect, on these Benches we believe that that balance has not been struck in the proper fashion.
  In this clause the approach seems to be that one sweeps up into the net a whole collection of possible allegations and circumstances which may be unproven; referral takes place and one then relies on the tribunal to sort everything out if the individual chooses to appeal. We prefer to take a rather more measured approach at the earlier stage so that everything is not swept up with referral taking place for a broad collection of allegations and circumstances.
  Clearly, there is a strong difference of approach. I understand the desire of the noble Lord, Lord Laming, to ensure that vulnerable people are properly protected. However, one has this balance to keep. We do not believe that it has yet been struck in the proper fashion. There are a number of further amendments to this section of the Bill. I do not wish to prolong the debate on this clause unduly. However, we may well return to this at a future date.
  Earl Howe: My Lords, I thought I detected in the remarks of the noble Lord, Lord Laming, a degree of impatience in so far as many of these matters were debated at some length during the passage of the Protection of Children Act—a series of debates I recall with great clarity. However, I respectfully point out to the noble Lord that this is a different Bill with different effects and containing different provisions. It is perfectly right and proper that we should explore the clauses in as much detail as we feel necessary.
  I have to say to the noble Lord that if the meaning of the word "misconduct" is clear to him without explanation, it certainly is not clear to me. I was grateful to the Minister for his clarification of the meaning of the word. It worries me that, as the noble Lord, Lord Clement-Jones, pointed out, the degree of proof that is required to refer somebody on the ground of misconduct that would harm a vulnerable adult or place a vulnerable adult at risk of harm is low. The answer seems to be that very little proof is required.
  The noble Lord, Lord Clement-Jones, mentioned the balance to which the Minister referred at the outset of his remarks, and I wonder about that. Nevertheless,

  1081
  in view of the time I do not propose to say more at this stage. I shall read the Minister's reply and reflect on it carefully, reserving the right to bring the matter back at a later stage. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Phillips of Sudbury Lord Phillips of Sudbury moved Amendment No. 140A:
  Page 42. line 32, after (-resigned") insert (", been made red undant" ).
  The noble Lord said: In moving Amendment No. 140A, I shall speak also to Amendments Nos. 142A, 142B, 142C, 144A and 144B, which address a single point. I hope it will be taken as a sign by the noble Lord, Lord Laming, and the Government that I have no partiality vis à vis this Bill; I want to see it succeed in its proper purposes.
  One of the Bills proper purposes, and an important one, is to protect vulnerable people of whatever age against maltreatment by whomsoever. In Clause 71 there is a gap in the duty to refer a case in relation to somebody who may not have been dismissed for misconduct; may not have resigned and may not have retired; but may have been made redundant.
  I make clear at the outset that, whereas dismissal on its own can include redundancy, Clause 71 as drafted will not. The only dismissal referred to in that clause is dismissal for misconduct. If I can help the noble Earl, Lord Howe, I am confident that, in relation to the trouble he had with the words, "on such grounds" in Clause 71(2)(b), .;c) and (d), they all refer to dismissal for misconduct.
  We have the situation, therefore, where an employee could be made redundant in circumstances where, had he or she been dismissed, retired, been transferred or suspended, there should have been a reference to the Secretary of State, and where public interest declares that there should be a reference.
  I may sound unduly cynical, but I fear that there are cases—the noble Lord, Lord Laming, referred indirectly to one such —where the proprietors of a care home and an employee may each have reasons, albeit completely different ones, for settling on redundancy as a means of ending an employment rather than on any of the other possibilities. For example, the care home proprietor may want to avoid potentially bad publicity from a reference being made. Though it may be said that the reference would be secret, there are many ways in which information can be leaked. If a local paper published the fact that there had been a reference, that would not be defamatory and would not breach any law.
  Therefore a care home proprietor may want to hush up the circumstances in which he was getting rid of an employee. The employee would do a deal, go quietly, shut up and all would be well; the home would have got rid of a lousy employee but in circumstances where there would not be a reference. That is the point of these amendments. I beg to move.
  Lord Laming: I support the thrust of these amendments in trying to fill another bolthole in which
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  some people will seek to hide in order to avoid tackling some of these issues. Perhaps while I am on my feet I may apologise if I showed the impatience of which I was accused earlier.
  Lord Hunt of Kings Heath: I am grateful to the noble Lord, Lord Phillips, for raising these issues.
  Clearly our debates in this area are important in teasing out some of the concerns which reputable employers have about the Bill. It is my hope that in our debates we reassure those people that the Bill is workable and is able to be fair to all those concerned. As I said earlier, the intent is to issue guidance to employers when the scheme begins. I hope that in that guidance we can pick up some of the anxieties and operational issues which noble Lords will no doubt continue to identify during the course of this Bill.
  Perhaps I may deal, first, with Amendments Nos. 142A, 142B and 142C. The noble Lord, Lord Phillips, not only put the point very well but also anticipated my response; namely, that I am certainly advised that redundancy is covered by the term "dismissal". Redundancy is one of the lawful means of dismissal. Therefore, the point in relation to the first three amendments is unnecessary. However, I take the point in relation to Amendments Nos. 140A, 144A and 144B. Indeed, we would clearly wish to avoid the circumstances described by the noble Lord in which an employer and a worker might collude to create an appearance of redundancy in order to evade the requirements of the Bill. I should like to take that matter away and give it further consideration.
  Lord Phillips of Sudbury: I am grateful to the Minister for that response. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 141 to 143 not moved.]
  10 p.m.
  Lord Phillips of Sudbury Lord Phillips of Sudbury moved Amendment No. 143A:
  Page 43. line 14, at end insert ("if it appears to him that, unless such a listing is made, there will be a serious risk to a person's life, health or well being").
  The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 143B. Both these amendments go to the heart of arguably as important a single issue as there is in the Bill; namely, the proper balance to be struck between, on the one hand, protection of vulnerable people and, on the other hand, fairness to employees and workers.
  On Second Reading, I believe I am right in saying that I was the only Member of this Chamber who raised this issue. Indeed, it was gratifying afterwards to hear from several other speakers who talked about other aspects in the debate that they were unaware of this problem. In all cases they supported the attempt that I was then making to persuade the Government to rejig the balance. I should also like to say how grateful I am to the Minister and his civil servants for affording me very open and helpful discussions. I hope that that practice will continue.
  I fully share the wish on the part of this Chamber to make the Bill as effective as it can be. I also fully accept the beneficence of the general thrust of the legislation.
  The importance of any amendment is, of course, directly related to the scale of the problem that it addresses. Here we have an audience of 2 million—that is the best estimate that I can get of the numbers employed within the care industries which will be covered and governed by this piece of legislation. Many of those workers are in small units; indeed, sometimes two or three employees is not uncommon, especially in small care homes. Not many of those workers appear to be members of unions. Some are members of professional bodies, but most of them are not.
  As far as I can see, most of those 2 million workers will come within the purview of the blacklisting procedure laid down in Clause 71; that is to say, first, they are people who have or are able to have regular contact with adults in care homes; secondly, those in clinics or hospitals—public or private; and, thirdly, those concerned with the provision of personal care for people in their own homes who are ill, infirm or disabled. As I mentioned when we discussed an earlier amendment, "personal care" is extremely wide and extends to those who merely give "advice and encouragement".
  When the Bill talks of employment, it also uses that word in an abnormal way. I cannot find any precedent for the breadth of interpretation to be given to it, other than in the Protection of Children Act passed in the summer of last year. It will extend to unpaid workers, to those without contracts, to volunteers and to those who provide independent services—chiropodists to solicitors, one might say. It might even cover other groups who make regular visits to those in their community, for example people who provide meals on wheels.
  Clause 71—the key clause—requires a person who provides care for vulnerable adults to refer to the Secretary of State, as we have heard, anyone dismissed for misconduct, whether or not incidentally that was misconduct in the course of their work. That is an important widening qualification. As we have also heard, "misconduct" is not defined; "harm" is. "Harm" in this Bill covers,
  "any ill treatment … which is not physical".
  It would, for example, cover verbal abuse or bullying. It could cover a nurse or an orderly who treated a patient unkindly so that that patient became distressed, even if the unkindness was confined to "sending the patient to Coventry", for example. It is necessary to get clear in our minds the wide scope of this provision in order to understand the deep importance of the issues.
  As I say, the ambit of the Bill is vast. If anyone is blacklisted—I suppose that this is the heart of all this—the reputation and the career of that person are destroyed, not just hindered or undermined, but destroyed. In many ways the consequence of a blacklisting will in many cases be worse than
  1084
  conviction for a criminal offence, even though the standard or test by which someone is convicted of a criminal offence is that of "beyond reasonable doubt". As we have heard already in this Bill in relation to this provision, the standard test is one of civil liability; namely, a balance of probabilities. Indeed the language used in Clause 71 is that the Minister "is of the opinion"—an even lower test than others that one finds in comparable legislation. Therefore this measure could cover health visitors, domiciliary helpers, orderlies, meals on wheels providers, nursing auxiliaries, doctors, lawyers, financial advisers, masseurs or anyone else who provides services.
  I do not criticise any of that. It seems to me to be fair enough to make the net wide. But if the net is wide, the safeguards against people being caught up in it unjustly must be rigorous. The effect of being put on the blacklist, as I have described, is devastating.
  The heart of the inadequacy is the fact that the listing process does not give those listed any opportunity to cross-examine—whether themselves or by a representative—their accusers before being listed. Worse still, it does not even give the person to be listed the right to make oral representations. All that he or she can do is to submit written observations under Clause 71(5) to the civil servant charged with deciding whether he or she is to go on the blacklist permanently.
  Let us imagine a straightforward case in which the proprietor of a care home says that Alice Brown has failed to do this or that as commanded, perhaps to help an old person to have a bath, or to lift them in a certain way, or to change the bed linen at a certain time, or to feed them in a certain manner, or to respond to their calls within a certain time, or to deal with patient paperwork in a certain way. Let us suppose that Alice Brown is in fact a conscientious nurse who has criticisms of the way in which the patients are treated in a particular care home. Let us suppose further that the proprietors resent and are defensive about the criticisms she voices. Particularly if the proprietors wanted to ensure that the nurse was got rid of before the one-year qualification period for protection against unfair dismissal, they might well be tempted to give her notice on grounds of misconduct—let us say, three or four minor departures from detailed instructions, even oral instructions, of the sort that I have indicated.
  Whether the proprietors are officious and wrong-headed, or even calculatingly malicious, they could use the statutory duty under Clause 71 to refer the care worker to the Secretary of State. He would then be obliged, unless the details of misconduct do not even constitute a prima facie case, to put the worker on the provisional listing before deciding whether to make that permanent. At that moment the damage has been done.
  Thereafter, as the Bill states, the civil servant is required under Clause 71(5) to pass the reference from the provider to the complainant and to give him or her the opportunity to submit written observations.
  It is not a great feat of imagination to think of many so-called ordinary employees, most of them without trade union assistance, most of them not thinking to

  1085
  get professional help or perhaps being unable to afford it, making a pretty bad stab at written representations in response to the reference.
  And what if the response, in any event, is a flat denial of the facts given by the proprietor or provider who has made the written reference? For example, what if they say that the instructions were never clear and that there were no adverse consequences to the patient? What if the person accused goes on to say that the real reason that she was got rid of was that the care home was badly run and she had spoken up about it? How does the poor civil servant in Whitehall resolve this? How on earth can a basic conflict of purported fact be resolved by a civil servant shuffling pieces of paper between the complainant and the complainee when he is sitting in Whitehall and seeing neither of them?
  In previous debates the Government have made clear that they do not claim that the process leading up to the permanent listing is a full or rigorous test of facts; they do not claim that it is a test of merits. As I say, the Bill merely refers to the Secretary of State at the end of the process being "of the opinion that the (proprietors of the home) reasonably considered the worker to be guilty of misconduct". An opinion on an opinion without any test of the facts can destroy the career and livelihood of the person concerned.
  Anyone who has had any part in judging disputes as to fact knows that it is utterly impossible to get anywhere near the root of the truth without an oral hearing. That is one of the basic rules of justice.
  I hope your Lordships will think it worth while if I mention an opinion I have taken from Professor Jeffrey Jowell, QC, who is Dean of the Faculty of Law at University College London. I wanted an expert opinion on the legal merits or demerits of what we are debating. He is the co-author with the Master of the Rolls, Lord Woolf, of a standard work on administrative law He said:
  "The basic principle is clear: No one should be deprived of a right, interest or even a legitimate expectation without a fair hearing. Taking the Secretary of State's (SOS) provisional decision first, the Bill clearly offends that principle. The question then is Does the situation here fall within one of the recognised exceptions to that principle?"
  Which are, firstly,
  "where the situation requires emergency action",
  and, secondly,
  "where the decision is "preliminary" and will be followed by one where a fair hearing will be provided".
  He gives cases before concluding that,
  "the Bill surely offends principles of English administrative law in respect of the SOS's provisional decision in its failure to provide a fair hearing to those included in the list".
  What does he then say about the next step in the procedure, whereby the Secretary of State receives observations from the person accused? He says this:
  "Turning now to the SOS's final decision, after the investigation under s.71(5)(a) and (b), the question here is whether that investigation qualifies as procedurally fair. It seems clear to me that a decision of this kind … carrying major implications in respect of a person's reputation, character and livelihood, requires
  1086
  the fullest content of natural justice. That normally means an oral hearing, opportunity to call witnesses, the right of cross-examination, and even, possibly, reasons for decision".
  I may say that I have been unable to find any comparable field in our legislation where there is no opportunity for oral representations or an oral hearing before someone is blacklisted in the manner and with the consequences that we are dealing with here. Solicitors and doctors, for example, have an elaborate tribunal system ab initio with a right of appeal to the High Court. Teachers are protected by elaborate disciplinary hearings, usually involving governors of schools, before they are ever dismissed or suspended or transferred. In any event, the relevant regulations of 1993 and the Education Reform Act 1988 to which they relate, overwhelmingly refer to cases where teachers have been convicted before a court of law for specified sexual offences.
  I now turn to my amendments. They provide a new and reasonable, balanced and wieldy, practical set of arrangements. First, they give the worker or the provider, where that is relevant, an opportunity to make oral representations to the civil servant dealing with the matter. Secondly, subsection (d) gives the civil servant, at any point in his or her deliberations, the power and discretion to transfer the matter to the tribunal so that the tribunal can decide the matter, where he or she considers that that, in all fairness, should be done. Thus, two simple but powerful protections have been introduced for employees. But, I have also provided that, instead of people being put straight on to the provisional list, that action will be replaced by a situation where they go on to the provisional list only if it appears to the person looking at the matter that,
  "unless such a listing is made there will be a serious risk to a person's life, health or well being".
  Those words have been carried from Section 18 of the Bill, which provides that protection for a care home in danger of being delisted. A justice of the peace must be satisfied of that situation before any delisting can take place. Is the Minister questioning that point? I think not.
  The final link in this chain of reform that I have provided for is that, if a civil servant decides not to refer the case to the tribunal, the worker can request that it is passed to the tribunal. It will then be for the civil servant to decide, "Yes, in all the circumstances I think that is fair", or, if he declines to accept the request, the worker can make an appeal direct to the tribunal for it to hear the matter ab initio
  If I had been more zealous in advocating this course, I could have provided a more stringent set of protections for the worker. However, I believe that these provisions are fair. I have tried to make them both fair and practical.
  In my final comments I will say only this. It is not simply a question of fairness to employees as against the need to protect the vulnerable old and young. At the root of this matter lies a crucial question of fairness towards those who sustain the whole of the care industry. If there is no fairness, then there will be repercussions in ways that one cannot quantify or

  1087
  foretell in terms of the calibre of people who will be willing to subject themselves to the risks which the present regime provided by the Bill represents. I need hardly say to any noble Lord in the Chamber that to be put onto this blacklist and to have one's reputation and livelihood simply terminated there and then is a risk that, in this day and age, most people do not want to contemplate. All those in the Chamber who know anything of the social work, teaching or care scenes, realise that false criticisms are not unknown. Deluded criticisms are common among the aged. I recommend to the Committee that whatever may have been passed in the Protection of Children Act, in the Bill before us we must get it right. I beg to move.
  10.15 p.m.
  Lord Jenkin of Roding: After such a formidable indictment of these clauses I need say only a few words. The noble Lord, Lord Phillips of Sudbury, has no reason whatever to apologise for going into the matter at some length. His has been one of the most powerful speeches I have heard in the House for a long time.
  I had not appreciated quite how one-sided is the Bill. The noble Lord has drawn the issue to our attention in stark and compelling terms and I believe that the Government would be very unwise if they did not listen carefully to what has been said and to take the necessary action to ensure, as the noble Lord, Lord Phillips, pointed out, that fairness is shown to people whose lives may otherwise be totally destroyed.
  As the noble Lord was making his case—I was following his arguments and his references to the clauses—one began to realise that one was catching echoes of the attack on paedophiles over the past 18 months and the extremely unpleasant cases that have come to light. We have had the strong public feeling that such people really should be dealt with very condignly and that there should be total protection for the children finding themselves in that situation. Somehow that attitude of mind has come over into this legislation, which, as the noble Lord said, is drawn infinitely more widely.
  The noble Lord referred to two million people. I have not attempted to make the calculation myself. One knows that roughly one million people are engaged in the caring side and if one adds the National Health Service people and all the others who would be providing independent services, I am sure that that is the kind of figure it could be. One's mind boggles and one asks how on earth the clause has reached this stage without anyone raising the question of whether it will be fair to the people against whom these charges will be made.
  The noble Lord, Lord Phillips, has performed an extremely valuable service. I hope that we shall get our teeth into this and hang onto it and that when the Bill finally leaves this House it will have had this manifest unfairness excised from it and a much fairer regime put in its place.
  Earl Howe: There is nothing I can say to add to what the noble Lord, Lord Phillips, and my noble friend
  1088
  Lord Jenkin have said, except that, from the perspective of the Official Opposition, I strongly support the points made by the noble Lord, Lord Phillips. He has indeed done the Committee a great service. He has made a powerful case. I hope that the Minister will take serious note of all the points that he made.
  Lord Hunt of Kings Heath: I thank the noble Lord, Lord Phillips, for the care and attention which he has given to these clauses. I can assure the Committee that I shall take very careful account of all the points made in the debate. The noble Lord, Lord Jenkin, referred to the belief of the noble Lord, Lord Phillips, about the lack of fairness in the provisions. What came through in our debates on the Protection of Children Bill as it went through the House was that the lack of a system to protect vulnerable adults had meant that unsuitable workers had perhaps been dismissed from one employment only to find new employment in a similar position at a nearby establishment or agency.
  Over the years there have been examples of service failure where workers, as a result of neglect or deliberate acts, have caused harm to elderly people or adults with learning disabilities. One can think of one example where adults with learning disabilities were treated very badly until inspectors stepped in and the home was closed. But in that case the nurse employed at the home at the time subsequently obtained work in another care institution.
  It is one of our major aims in modernising social care to improve the protection of vulnerable people, whatever their age or condition. That is why we wanted to introduce this scheme to protect vulnerable adults by putting in place measures to put out and keep out of the workforce individuals who have shown themselves to be unsuitable to work with vulnerable adults.
  The second consideration we had in mind in developing the Bill was the need to strike the right balance between the protection of vulnerable adults and safeguarding the rights of individual workers. We believe that here we have achieved that balance. In the first place, a worker who is the subject of any referral to the Secretary of State will know from the outset that a referral has been made and will have every opportunity to submit written observations to the Secretary of State.
  Secondly, under Clause 73(2), a person who has been provisionally listed for a period of more than nine months may seek leave from the tribunal for it to determine the matter finally. Thirdly, we have provided, under Clause 73(1), for an appeal to the tribunal against a decision to list an individual. Fourthly, under Clause 74 we have provided for a person to ask the tribunal to review inclusion in the list, with the possibility of having the listing removed if the person has been listed for a continuous period of at least 10 years.

  1089
  Finally, under Clause 70(3), the Secretary of State may remove an individual from the list if he is satisfied that inclusion on the list was wrong at the outset because, for example, new evidence comes to light or a criminal conviction is overturned.
  Although Members of the Committee may disagree with the exact terms of the Bill, I hope it will be accepted that a great deal of effort has been put into trying to balance the overriding need to protect vulnerable adults, with the need to have safeguards, so far as is reasonable, to protect the rights of the individuals. As the Committee knows, those reflect in broad terms the provisions that we debated in the Protection of Children Bill.
  As regards the specific points raised by the noble Lord, Lord Phillips, first in Amendment No. 143A, it is our belief that the amendment would seriously weaken the scheme we have devised for protecting vulnerable adults. It seems to us that it is important that the Secretary of State has the ability to list individuals provisionally and has flexibility in the way that he can use the power, in order to ensure that the protection of vulnerable adults is satisfied.
  We have sought to strike the right balance between the safety of the public and the rights of the individual worker in those proposals. The question of listing will only arise where there appears to have been a risk of harm to a vulnerable adult. The noble Lord, Lord Phillips, quoted Clause 18, where the test of a serious risk to a person's life, health or well-being is used and consideration is given to applying to a justice of the peace to close a home immediately. It is our view that there is no direct read-across to the provisional listing of an individual, since the problems within a home can often be remedied by the removal of one or more individuals from it; not so when it is a matter of the individual worker.
  In considering provisional listing of an individual, the Secretary of State needs to be able to take a broad view in the interests of all concerned and not to be hampered by the consideration that this amendment would impose upon him.
  In Amendment No. 143B, the noble Lord, Lord Phillips, also put forward the potential introduction of a right to make oral representations to the Secretary of State and to introduce circumstances in which cases might be referred immediately to the independent appeal tribunal, bypassing the Secretary of State's decision to confirm listing or otherwise, following observations. I am not persuaded that oral representations to the Secretary of State are the right way forward, bearing in mind the right to make them at a later stage to the tribunal. Nor do I think it appropriate for the tribunal to be asked to rule on whether listed persons should have the right to go to it before the Secretary of State has confirmed the listing. However, I am sympathetic to the suggestion that the Secretary of State should be able to refer a case directly to the tribunal. One can see that in certain circumstances that may be advantageous. I am happy to take that matter away to consider it further.
  1090
  In responding to the noble Lord, Lord Phillips, I accept that the points he makes are strongly held and that his concerns about the rights of individuals under the Bill are very important. But we are debating this Bill against the backdrop of serious concerns about the vulnerability of adults and the need to protect them from unscrupulous employees—hence the whole concept of provisional listing to provide an immediate safeguard for the protection of vulnerable adults. Procedures must then be followed before that person's place in the list can be confirmed, with the possibility of that individual appealing to the tribunal. I doubt that I shall persuade the noble Lord that the Government have achieved the right balance. This is a matter to which we have given great consideration and we believe that we have struck a fair balance between the two needs identified in the debate.
  10.30 p.m.
  Lord Phillips of Sudbury: I am grateful to the Minister for giving the reasons that he did. I am encouraged at least by one concession related to the discretion of the civil servant who deals with the matter to make his or her own reference to the tribunal, because in fairness he or she ought so to do As he anticipated, I am disappointed that the Government have gone no further than the position they adopted under the Protection of Children Act 1999. There are many Members of this House who, no doubt through their own fault, failed to latch on to the particular provisions in the Protection of Children Act 1999. We say that two wrongs do not make a right.
  When I listened to the response of the Minister I wondered why the criminal law provided the various protections it does. For example, why should someone accused of rape, grievous bodily harm, or even worse crimes, be allowed to remain at large while the wheels of justice grind slowly, as they often do, especially as the prospects of an accused getting off a criminal charge, given the different tests involved and the right to jury trial, are much greater than the prospects of an individual escaping from this blacklist?
  I was considerably sobered to hear the Minister say, "Don't worry, old chap, because at the end of he day a person can go to the tribunal and have a hearing". It is all very well to say that when one's career is in ruins because one's name is on the permanent list and the whole world can search it, as it must. It is no answer to say that a person whose reputation is destroyed and who has lost his livelihood can, perhaps following vast expense, have a tribunal decision six to nine months—even 12 months—later that vindicates him. I urge the Minister to go away and consider in particular the provisional listing.
  I do not see that what is good and fair for the proprietors of a care home under Clause 18 of this Bill is unfair for an individual who is in greater jeopardy. His jeopardy is greater because the people who run the care home can go away and find other employment, whereas the person placed on the provisional blacklist is a dead man or woman. He or she does not even have a justice of the peace before whom a case can be brought in order for such an order to he made, as is

  1091
  required under Clause 18. It is no good the Minister saying that there is no read-across from Clause 18 to Clause 71. The read-across is basic justice. This is not a trivial matter: one is talking about the reputation and livelihood of potentially many people. Even if there were only 10 people at risk, this House should protect them. It depresses me that the party in government, which has been a stalwart defender of basic rights—it brought in the Human Rights Act and God bless it for that—should be apparently blind on this issue to what most of us would call the simple basics of fair procedure. The Minister made no reference to the opinion of Professor Jowell. I suggest that that is simply because no answer can be given.
  Forgive the warmth of my address, but it is a hugely important matter and I believe that other noble Lords who have spoken share that view. The fact that there are few Members present tonight should not mislead the Government into thinking that they can get away with the matter with few noticing. I urge them to rethink the issue even though it will reflect back on to the Protection of Children Act. I beg leave to withdraw the amendment, but hope to return to the issue.
  Lord Jenkin of Roding: Before the noble Lord withdraws his amendment, perhaps I may say that I endorse everything he said. I listened with the greatest care to the Minister's reply. He gave five safeguards that the Government believe they have built into the Bill. With the greatest respect to the Minister, if he again examines them, he will see that they do not begin to answer the case made by the noble Lord, Lord Phillips.
  The noble Lord referred to a provisional list. There must be some form of suspension pending the necessary full inquiry. That seems to be the way ahead here. I understand the case the Government make: that if someone has a serious accusation made against him, he should not be able to rush off and get another job. There should be the equivalent to a suspension which indicates that there is a question mark; so let us examine this fully. A full examination must include oral hearings and the opportunity to hear witnesses for both sides. One has seen that in many disciplinary hearings in the public sector: the National Health Service, local government and elsewhere. If, at the conclusion of that, it is decided that there has been misconduct (or whatever is the trigger), one puts the individual on the black list, saying, "This person has shown himself completely unsuitable for work in this kind of environment. He may not get another job in this environment". That is such a condign penalty that it must occur only after proper procedures.
  If this House has performed no other purpose, it has exposed the dangers that lie in Clause 71. It covers pages of the statute book and yet one can imagine the opportunities almost for blackmail: "We'll get you". One knows of such attitudes in some rather closed communities where there are bad relations, and so on. This kind of weapon could be a form of legal bullying of a very unpleasant kind. Proper protection has to be built in.
  1092
  I hope that the Minister will be a little more forthcoming and recognise that he seeks to defend the indefensible.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 143B to 144C not moved.]
  Clause 71 agreed to.
  Clause 72 [Employment agencies and businesses: duty to refer]:
  [Amendment No. 145 not moved.]
  Clauses 72 agreed to.
  Clause 73 agreed to.
  Clause 74 [Applications for removal from list]:
  Earl Howe Earl Howe moved Amendment No. 146:
  Page 45, line 46, after ("70") insert ("or section I of the 1999 Act").
  The noble Earl said: During the passage of the Protection of Children Act last year, I argued that there may well be circumstances in which the imposition of a lifetime's ban on working with children was unjust and inappropriate. The sorts of circumstances that I considered fell into that category were those where an individual had harmed a child or placed a child at risk of harm, not out of any malice but out of gross incompetence arising from, say, youthful inexperience. The initial verdict of misconduct could have been arrived at perfectly properly, but years later, when the individual might have grown up and perhaps brought up a young family of his or her own, it might well be appropriate to review the initial judgment that he or she was for ever unsuitable to work with children.
  I thought that I detected at least some sympathy on the part of the Government with the arguments that I advanced, but it was, alas, not enough to convince them that the Bill should be amended in the way that I suggested. It was, therefore, with some pleasure that I noted the inclusion in this Bill of Clause 74, which enables an individual who has been included on the Secretary of State's list for at least 10 years as a result of past misconduct involving vulnerable adults to apply to the tribunal to have his or her name removed from the list and thereby effectively to rehabilitate himself or herself. This provision, for me, provides a considerable counterweight to my political and ethical concerns over granting a right to the state to debar an individual from being employed in a particular field for the rest of his or her life, regardless of circumstances.
  We must bear in mind that, as the noble Lord, Lord Phillips, has graphically reminded us, the procedure by which an individual has his or her name confirmed on the list in the first instance is not a judicial one; it is an administrative one. In my view, there really must be a judicial or quasi-judicial means of appeal against the Secretary of State's decision, first, for those who consider that their names have been wrongly included in the list from the outset, and, secondly, for those whose subsequent conduct has demonstrated beyond reasonable doubt that they no longer pose a threat to vulnerable adults. Both such types of appeal are allowed for in the Bill.
  However, the Protection of Children Act does not contain any provision parallel to that in this clause. My amendment seeks to rectify that. I cannot see any difference in principle between the rights of individuals blacklisted under this Bill and the rights of those blacklisted under the Protection of Children Act. It appears from the clause that the Government consider there to be good reasons for allowing a means of appeal for those who feel that they should be redeemed or rehabilitated. I shall be glad to hear from the Minister what those reasons are. I hope that he will go on to tell me that the Government are prepared to take a second look at the issue as it relates to the Protection of Children Act. I beg to move.
  Lord Phillips of Sudbury: I should like briefly to identify myself with everything that the noble Earl, Lord Howe, said in moving the amendment. I would just add that the circumstances in which teachers can have themselves taken off the barring list under their regulations are a good deal more generous than those included in this clause, even with the amendment we are now discussing. One of the things the Government might like to do before Report is to consider introducing the wider scope of the teachers' regulations into the provisions in this Bill.
  Lord Hunt of Kings Heath: I am grateful to the noble Earl, Lord Howe, for raising this matter. He is quite right: we had a very good debate on it at the Report stage of consideration of the Protection of Children Bill. I very much accept the general point of principle that he has made. However, the Government would prefer to use an alternative mechanism to reach the same point.
  On 25th January 1999, the report of an interdepartmental working group on preventing unsuitable people working with children and on abuse of trust in relation to children was placed in the Libraries of both Houses. The report set out mechanisms for preventing unsuitable people working with children and its recommendations included a review mechanism under which a person banned from working with children could seek to have the ban lifted. Such an application for renewal would fall to a tribunal set up under the Protection of Children Act and would be available only 10 years after the imposition of the ban or the release from prison, whichever is later; at 10-year intervals thereafter; and should be available only if the banned individual can demonstrate exceptional circumstances why the ban should be removed.
  The Government have accepted the broad principles of those recommendations, including a review mechanism for those banned from working with children. They have decided that they would like to implement those proposals through the crime and protection Bill, which was announced in the Queen's Speech and will be introduced in this Session. I hope that that meets the noble Earl's concern and that he will consider withdrawing his amendment.
  10.45 p.m.
  Earl Howe: I thank the Minister for that answer which is a welcome response to my concerns. It is a pity that during the passage of the Protection of Children Bill the Government were not able to be more accommodating. I am not sure why that was; perhaps they had not completed their deliberations. However, there would have been an opportunity for them to hasten their deliberations in view of the strength of feeling then expressed. Nevertheless, the main point is to reached the desired position, and I beg leave to withdraw my amendment.
  Amendment, by leave, withdrawn.
  Clause 74 agreed to.
  Clause 75 [Effect of inclusion list]:
  [Amendment No. 146A not moved.]
  Lord Phillips of Sudbury Lord Phillips of Sudbury moved Amendment No. 146B:
  Page 46, line 25, at end insert—
  ("(4) The Secretary of State may by order add to the category of persons subject to this section.").
  The noble Lord said: I must be frank in admitting that when I tried to construe Clause 75 I was not aware that the phrase "person who provides care" is defined in Clause 69(7). That definition is satisfactory in terms of the evil I tried to avoid in Amendment No. 146A. If the Government believe that there is virtue in the extra discretion given in Amendment No. 146B, I am happy to move it. I beg to move.
  Lord Hunt of Kings Heath: I am grateful to the noble Lord, Lord Phillips, for raising this matter. It is our intention to bring forward an amendment to create an appropriate power to extend the provisions of the scheme to include other services. I wonder whether on that basis the noble Lord will consider withdrawing his amendment.
  Lord Phillips of Sudbury: I should be delighted to do so.
  Amendment, by leave, withdrawn.
  Clause 75 agreed to.
  Clauses 76 to 85 agreed to.
  Clause 86 [Boarding schools: national minimum standards]:
  [Amendment No. 147 not moved.]
  Clause 86 agreed to.
  Clauses 87 to 94 agreed to.
  Clause 95 [Supplementary and consequential provision etc.]L:
  Earl Howe Earl Howe moved Amendment No. 148:
  Page 57, line 19, at end insert—
  ("(3) An order under subsection (1) amending or repealing an enactment, instrument or document shall be laid in draft before, and subject to approval by resolution of, each House of Parliament.").
  The noble Earl said: I apologise to those Members of the Committee who were hoping to speak to Clause 90. I felt that in view of the hour it was a

  1095
  matter to which we could return at Report stage. I would like to make some remarks myself, but, with the leave of the Committee, I believe that they can wait.
  Amendment No. 148 is prompted directly by a suggestion made by the Select Committee on Delegated Powers and Deregulation. The Committee's report on the Bill was published last month. Orders and regulations made under the Bill, other than simple commencement orders, are subject to the negative resolution procedure. Whatever we may think about that—I have not sought to propose exceptions to the provision in the main body of the Bill, despite all temptations—there is an issue to be addressed in Clause 95(2). The clause confers a power on "the appropriate Minister" to amend or repeal,
  "any enactment, instrument or document".
  I am not quite sure what significance the word "document" has here. Perhaps the Minister would be kind enough to enlighten us.
  But the main bone of contention is whether it is right for orders that revoke or alter anything in the Bill not to be subject to the more rigorous parliamentary scrutiny inherent in the affirmative resolution procedure. I understand from the Government that they have re-examined the issue and they may have concluded that a change of heart is warranted. I hope that the Minister will be able to provide me with a definitive response. I beg to move.
  Lord Hunt of Kings Heath: Yes, indeed, the Government are happy to acknowledge that they would support the intent of the amendment. The noble Earl, Lord Howe, will probably be disappointed to know that we are not particularly happy with the wording. I should say that there are dimensions in relation to the Welsh Assembly which will need further consideration, but I should be happy to talk to the noble Earl between now and Report stage and perhaps to provide him with a suitably worded amendment.
  Lord Jenkin of Roding: Before my noble friend withdraws his amendment, I wonder whether there could be an explanation of the curious word, "document". Does that have some Welsh significance? I do not recollect ever having seen a clause which provided that one could amend a document; one amends legislation.
  Lord Hunt of Kings Heath: I shall have to inquire into that matter and discover whether there is a Welsh element to it. I shall certainly write to the noble Lord.
  Earl Howe: I am most grateful to the Minister and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 95 agreed to.
  Clause 96[General interpretation etc.]:
  Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendments Nos. 149 and 150:
  Page 57, line 33, at end insert—
  (""independent school" has the same meaning as in the Education Act 1996;").
  Page 58, line 2, at end insert—
  (""proprietor", in relation to a school, has the same meaning as in the Education Act I996;").
  On Question, amendments agreed to.
  Clause 96, as amended, agreed to.
  Schedule 1 [The Commission and the Council]:
  [Amendment No. 151 not moved.]
  Lord Clement-Jones Lord Clement-Jones moved Amendment No. 151 A:
  Page 60, line 21, at end insert ("and to be fulfilling these functions no later than 1st January 2002.").
  The noble Lord said: Amendment No. 151A is designed to elicit from the Government a commitment—at least, a statement—about when the commission will start. That is what this "stop end date", so to speak, is designed to do. There is concern among the social care association and other organisations that there is no commitment from the Government as to when the bodies mentioned in the schedule will start to function. It has been suggested that the commission will start in April 2001, but the start dates for the councils appear not to have been mentioned. Of course, the commission must be in place before the national standards are set, otherwise local authorities will have to start to interpret the standards. Both councils and commission must function as soon as possible. I beg to move.
  Lord Hunt of Kings Heath: I hope that I can reassure the noble Lord, Lord Clement-Jones. We expect that the national care standards commission will discharge its functions from April 2002. However, the general social care council and the Welsh care council are expected to function by April 2001.
  Lord Clement-Jones: I thank the Minister for that reply. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 152 not moved.]
  Lord Jenkin of Roding Lord Jenkin of Roding moved Amendment No. 153:
  Page 60, line 24, at end insert ("and these shall include one member who has experience and expertise in disability and special educational needs as they relate to children").
  The noble Lord said: I wish to move this amendment. Amendments at the beginning of the Bill relate to the General Teaching Council to ensure that someone on that council has experience of disability. I remember that the noble Baroness, Lady Hayman, was most receptive to the view that someone on that council should have experience of disability. In the end, the Government produced an amendment which ensured that that was the case. It seems to me that this is much the same case. I believe that some of the amendments and speeches of the noble Lord, Lord

  1097
  Rix, have emphasised that there are special circumstances which affect disabled children and adults. Whenever one talks about training, one talks about other training inspectors, and so on. It seems to me that that would be reinforced if there were someone on the commission who had special experience in that area. I hope that the Government will be able to smile upon this amendment. I beg to move.
  Baroness Masham of Ilton: I wish to support the amendment. I hope that most of the people on the commission will have experience with disability because it is a very wide subject. There are many different disabilities and certainly at least one member should have such experience. However, it is hoped that all members will have it.
  Earl Howe: I rise briefly to support the amendment and to speak to my Amendment No. 157. With the leave of the Committee, I shall speak also to Amendment No. 168, which was by accident placed in the following group.
  I believe that we must all be alert to the need for the wonderful word "balance" in the composition of the commission, whose functions are to be so multifarious. The responsibilities that it will be given for children are so important as to warrant, in my judgment, a member of the commission dedicated to children's interests in all their facets. We must bear in mind the history. Between, I believe, 1948 and 1970 there were separate children's departments in local authorities under the auspices of the Home Office, led by distinguished children's officers such as the late Baroness Faithfull.
  Since 1970, when the large social services departments were set up, children's services have formed a rather small element of a giant entity. Although I do not pretend that the commission will be quite such a giant entity, we need to ensure that children's issues receive the attention which they deserve.
  There needs to be a channel through which government policy affecting the child can be assimilated by the commission and the implementation of that policy properly monitored. A children's commissioner could also have a role in promoting the rights of children, as an arbiter on complaints, and could act as a watchdog on bad practice. That is particularly pertinent when one thinks of the allegations of child abuse in North Wales.
  11 p.m.
  Lord Clement-Jones: I support Amendment No. 153 and also Amendment No. 157 in the name of the noble Earl, Lord Howe. We should be grateful to the noble Lord, Lord Jenkin, for picking up this amendment and running with it.
  In a sense, we are having a second bite at the cherry since we had some discussion on this matter earlier in our discussions on the Bill. We have heard part of the Minister's reply. Nevertheless, there is still considerable force behind these two amendments. I do
  1098
  not believe that we have yet teased out in full that the department really has an intention to have such expertise on the commission.
  We must return at a later stage to the issue of the children's commissioner. We feel very strongly that the children's rights director is not an adequate way of dealing with the rights of children. A children's commissioner would be a much more preferable way of dealing with the matter. Therefore, we continue to support that position.
  Lord Hunt of Kings Heath: Again, we return to issues which we discussed last week. I am extremely sympathetic to the intention behind the various amendments which have been dealt with in this group.
  Clearly, it is extremely important that the commission and the councils are sensitive to the needs and interests of the many different types of services which are to be covered and service users who will, in one way or another, be in a relationship with the councils and the commission through the services which are provided.
  In relation to the councils and the commission, we must take into account in particular the needs of those with disabilities or special educational needs and must recognise the importance of safeguarding the rights of children. One of the important aspects of this Bill is the requirement of the commission to appoint one of its staff as a children's rights director. I am absolutely convinced that the interests of particular groups of adult service users, such as those of disabled people, will be of equal concern to the commission's members.
  However, allotting places on the commission's membership for individual interest groups does not seem to me the best or most appropriate way to move forward. That applies also to the councils. We clearly need a balanced membership. We should expect members to be drawn from a mix of backgrounds and perspectives. But I do not believe that the appointments process should be used to make individual board members representative of specific interest groups.
  Indeed, seeing the noble Lord, Lord Jenkin, in his place brings to mind the area health authorities established in 1974 which were a classic example of what happens when specific interests are represented on a large body. One then finds it very difficult to reach sensible, corporate decisions because of that.
  I have said—and I am sure the Committee will agree—that the appointment of members must be on the overriding principle of merit. The appointments will be made, as for all public appointments, through a process of advertisements and proper consideration of nominations. Clearly, nominations from interest groups or professional groups will be considered. But I resist the attempt to guarantee places for a specific interest on either the commission or the council.
  Lord Clement-Jones: My Lords, I do not wish to prolong this unduly, but the Minister used the term

  1099
  "interest groups", which in the circumstances is the most pejorative term he could use. Would not "expertise" be just as good?
  Lord Hunt of Kings Heath: My Lords, for somebody who made a living for a long time representing an interest group, I do not regard the word as pejorative. However, the point made by the noble Lord is the same relevant argument. There can be no question that in the membership we wish to have people with a broad range of expertise. I would find it difficult to accept if different backgrounds were named in the Bill which would have prior claim to places. Those who come to make the appointments need to have as much freedom as possible to ensure that they obtain the right calibre and balance of membership.
  I turn to the amendment proposed by the noble Earl, Lord Howe, seeking the appointment of a children's commissioner. I have said previously that we are concerned to ensure that the issues regarding children are given a great deal of prominence by the commission. However, we believe that the appointment of a children's rights director will best serve the interests of children covered by the Bill. That appointment will be a senior position within the commission. The specific role will require a great deal of consideration and, indeed, consultation. We would expect that many members of the commission will have significant experience of children's services and related issues. However, I believe that the specific point raised by the noble Earl is best met by the appointment of a children's rights director rather than by having a specific member of the commission so identified.
  I turn now to Amendment No. 173. I have a great deal of sympathy with the intention behind the amendment. All the councils and the commission will be concerned with raising standards of care. That will involve a variety of ways of producing information so that as many people as possible can have access to it. It will mean including people for whom English is not their main language and others with particular needs, such as disabled people and those with a learning disability. We shall direct the councils and the commission to investigate ways in which they will need to make their reports available so that they can be accessed by as many people as possible, including people with disabilities.
  I believe that the noble Earl, Lord Howe, transferred Amendment No. 158—
  Earl Howe: My Lords, perhaps it will assist the Minister if I say that, although I intended to speak more fully to that amendment, I did not do so. If he would care to pass it over, I should understand perfectly. Perhaps we can revert to it at a later stage.
  Lord Hunt of Kings Heath: My Lords, I apologise to the noble Earl. I thought he had referred to Amendment No. 158 which relates to the question of a medical practitioner.
  Lord Jenkin of Roding: My Lords, perhaps I may say in response to the Minister's remarks that I have a
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  different recollection of the National Health Service and Community Care Bill. I remember moving, as an exception to the rule that people should be appointed on merit, that where trusts have a teaching hospital, they should have a representative of the university. I recollect all the way through those debates the then government resisting firmly the idea of people being appointed to represent particular interests.
  But the noble Lord, Lord Clement-Jones, had it right. We are looking for a balance of expertise. It would be strange if there was nobody on the commission with experience of the field of disability. That is all we are asking for. However, the Minister has said what he has. We should not pursue the matter further tonight. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Clement-Jones Lord Clement-Jones moved Amendment No. 154:
  Page 60, line 24, at end insert ("and a majority of the Commission members shall be lay people").
  The noble Lord said: I shall move Amendment No. 154 and my noble friend Lady Barker will speak to Amendment No. 159.
  This is not the right time of day to enter into a debate, but this is a continuation of the discussions in relation to the composition of the commission. There is a strong view that a majority of the members of the commission should be lay people. The Minister will no doubt recall that we spent many happy hours discussing similar matters in the health Bill last year.
  There is a good case for the commission to have a lay majority. It should be in touch with the needs of service users. This is the same situation as when we argued for a lay majority on NICE—a special health authority—during the course of the debates on the health Bill. There may also be a case for a lay majority on the English and Welsh councils which are to be set up. We do not agree in any event that the councils should have a professional majority and the noble Earl, Lord Howe, will be proposing an amendment to that effect.
  However, it is not the time to debate that issue now. Perhaps we can return to a more comprehensive debate about the composition of the commission in due course. I beg to move.
  Earl Howe: At this juncture I propose to take my cue from the noble Lord, Lord Clement-Jones. I shall not be moving the amendments in my name in this group tonight.
  Baroness Barker: I want briefly to discuss Amendment No. 159. In so doing, even at this late hour, I want to note the appointment of Evelyn Rank Petruzzietto, the first person with learning disabilities to be appointed to the Disability Rights Commission.
  First, I want to congratulate the Government on making that appointment. Secondly, I want to congratulate her; thirdly, I want to pay tribute to the noble Lord, Lord Rix, and all those who have worked for so long for the rights of people with learning disabilities to take part in our society. That is worth

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  celebrating, even just for a moment. Like other noble Lords, I do not propose to talk at length about the amendments in this group.
  Baroness Masham of Ilton: I agree with the Minister in that there should be flexibility. I do not agree with Amendment No. 155, which proposes that the majority should be qualified social workers. The country still has a lot of fear of social services. I should like to leave the choice flexible and based on merit.
  Lord Hunt of Kings Heath: I need only respond to Amendment No. 154. The Government believe that it makes sense that lay members should form the majority of the membership of the commission. It is our intention that both the commission and the council will have a majority of lay members.
  Perhaps I may say to the noble Lord, Lord Jenkin, that I was complimenting him on the changes he made to the composition of area health authorities and district health authorities because they made those institutions more corporate and less representative.
  Lord Clement-Jones: I thank the Minister for that extremely positive reply. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 155 to 159 not moved.]
  11.15 p.m.
  Earl Howe Earl Howe: moved Amendment No. 160.
  Page 60, line 39, at end insert—
  ("(6A.—(1 ) The Secretary of State shall by regulations make provision as to—

  (a) the appointment of and constitution of a committee of an authority to exercise its functions under this Act in relation to independent hospitals and independent clinics;

  (b) the appointment of a chairman and other members of that committee (which may include persons who are not members of the authority) save that the committee shall comprise not less than 5 persons including the chairman appointed pursuant to this paragraph and the chief officer of the committee appointed pursuant to paragraph 8;

  (c) the tenure of office of the chairman and other members of that committee (including the circumstances in which they cease to hold office or may be removed or suspended from office);

  (d) the appointment of, constitution of and exercise of functions by sub-committees of that committee (including sub-committees which consist of or include persons who are not members of the authority);

  (e) the procedure of the committee and of any sub-committees of it (including the validation of proceedings in the event of vacancies or defects in appointment).

  (2) The chairman and chief officer of the committee constituted under this preceding paragraph—

  (a) shall be members of the authority;

  (b) shall be persons other than the chairman and chief officer of the authority.")

  The noble Earl said: We come now to Amendments Nos. 160 to 166 which constitute for me perhaps one of the most important groups of this Committee stage. I shall try to be as brief as I can.
  When I first read the Bill and saw how the Government proposed to regulate the private healthcare sector, I cannot pretend that I was particularly enthused. In a Bill devoted principally to the regulation of personal care, social care and care workers, the addition of independent healthcare to the responsibilities of the national care standards commission seemed a serious anomaly; indeed, it almost has the look of a last-minute "bolt-on" extra. I do not believe that I was by any means alone in that reaction. The Government had led us to believe that private healthcare would be regulated by a body completely separate from the regulator or social care. That original proposal at least had the merit of logic to it, as well as the merit of treating the private healthcare sector as a wholly different animal from social care, which indeed it is.
  However, when the announcement came, we learnt that there was to be no separate regulator. Further, we now understand from the Minister that one of the key assurances given to the House by the noble Baroness, Lady Hayman, during the passage of the Health Act is not to be honoured either. I refer to the undertaking that she gave that the Government were open minded to the possibility that the regulator of private healthcare might wish to contract with another body, such as the Commission for Health Improvement, in order to help carry out local inspections. We now learn that that possibility, which for many of us held considerable appeal, is no longer on the agenda. The Minister's assurance was undoubtedly one of the factors that influenced me in my decision not to divide the House a second time on the issue of the remit of CHI. Therefore, to put it at its mildest, what we have now been told is extraordinarily disappointing.
  While it would have been possible to propose a raft of amendments setting up a separate private healthcare regulator, I have chosen instead to deal with the Bill as we find it. I have done so because I believe that there is a way of making the Government's proposals into something that is meaningful and that will work. The amendments that we are now considering attempt to give substance to the idea that the Government have indicated is their intention; namely, to give responsibility for the regulation of private healthcare to a separate division within the national care standards commission.
  What form should that division take? I am proposing that it should be a separate and distinct committee of the authority which would be granted clear delegated functions with a clear framework of accountability. It would be responsible to the authority for all that it did but would essentially comprise an administrative structure, complete with a chairman, chief officer and dedicated staff whose sole remit would be the supervision and inspection of independent hospitals and clinics.
  I would envisage, too, that this division of the commission would be required to produce its own annual report and accounts to ensure full transparency of its operations and the cost of such operations. The amendments that I propose set out de minimis requirements beyond which government and the commission would retain considerable scope for manoeuvre. I think it would be fair to say that the independent healthcare industry's support for the proposed commission is largely contingent on a clear and transparent divisional structure for healthcare regulation. That focus is undoubtedly required because of the technical complexity and diversity of the issues that the division will have to address. Therefore, this set of amendments is designed to ensure that the regulation of healthcare is given sufficient weight within the commission and that it is both competent and transparent.
  Unless the otherwise rather nebulous concept of a "division" is given real substance and unless the cultural divide between private healthcare and social care is recognised in a tangible way, we are in danger of creating a regulator of private hospitals that is less than credible. That should be avoided at all costs. I very much hope that the Government can see their way to support this set of amendments, at least in principle. I believe that such support would give considerable comfort to a wide array of people and organisations with diverse interests in this Bill. I beg to move.
  Lord Clement-Jones: I rise briefly to express my support for the noble Earl, Lord Howe, in this amendment. Indeed, our only quarrel with it is that it does not go far enough. We debated the issue of the remit of the Commission for Health Improvement and we certainly believe that that would ultimately be the best solution. However, pending that, or if that is not possible, clearly clarification is needed from the Government regarding their intentions on this separate division. As the noble Earl, Lord Howe, said, it is certainly unclear at this stage how that will operate in relation to the commission's regulatory role. There are important cultural differences between health and social services. They have different accountability mechanisms, different management systems, training requirements and budgetary arrangements. Therefore clarification is certainly needed as to exactly how that division will operate.
  Will the national care standards commission have a separate board to oversee its functions? If so, how will that be composed? Will there be medical representation on that hoard, for instance? How will its members be constituted? How will this separate division be accountable to the chairman and board members of the commission? The cost of setting up the commission will, of course, be met by the Department of Health and the Welsh Assembly. However, once the commission is up and running it is unclear how the funding streams for the social care
  1104
  and the independent healthcare sectors will operate. How will that relate to the separate division which the department intends to set up in this respect?
  Lord Hunt of Kings Heath: I think that we ought not to go over the ground as to why private and voluntary healthcare is to be regulated within one national commission. As the Committee will know, the original intention was to have a separate regulator for the private healthcare sector but that was to run alongside the proposed eight regional care commissions. We decided that that was not the right way forward because we believe that consistency of approach throughout the country in relation to regulation is important. In bringing the proposed eight regional care commissions into one care commission it was then much more appropriate to include within those arrangements the private and voluntary healthcare sectors, which is what is contained in the Bill.
  I have no disagreement with the contention that within the national care standards commission there has to be a high focus of expertise in relation to healthcare regulation. For that reason we intend that there should be a separate division of the commission to take forward that work. But where I part company with Members of the Committee opposite is as regards the suggestion in the amendment that there should be established a statutory committee within the national care standards commission to oversee the regulation of private and voluntary healthcare. The intention appears to be to establish a separate regulatory body for healthcare within the main commission with a status equal to that of the commission itself, with members appointed by the Secretary of State and with the right to establish its own independent committees and sub-committees. Obviously the details of this are probably not at all clear but I question whether that kind of structure is really workable within one corporate organisation.
  I do not believe that it is necessary to go that far and to establish those kind of arrangements because, as I have said, we shall have a clearly identified division of the commission to handle regulation of private and voluntary healthcare. I believe that such a division will enable the commission as a whole to ensure that it has a proper focus on private healthcare matters, and that it will be able to have high calibre staff to advise on and operate the regulation of the private healthcare sector. I believe that that is the best approach. I also point out that the commission already has the power in the Bill to establish committees and sub-committees to help it carry out its work. There would be nothing to prevent the commission setting up a committee to look at, and be responsible for, issues in relation to private healthcare regulation. The commission being able to set up a committee is a very different matter from the proposal in the amendment to establish a statutory committee. That would make the relationship between the commission and the committee very difficult to manage.
  Lord Jenkin of Roding: If it has done nothing else, the Committee stage of the Bill has exposed—I say this

  1105
  in all charitableness to the Minister—the hollowness of the Government's arguments for their change of heart and for deciding not to have a separate regulator for private and independent healthcare. I have no doubt that between now and the Report stage, we on this side of the House—I hope I can include the Liberal Democrats in this—must come up with an amendment or a new clause which will fulfil what has clearly been the view expressed from almost all parts of the House: that the private and independent hospital service requires a completely different approach.
  It seems quite absurd that all the subjects we have been discussing about vulnerable adults, children, homes, child-minders and so on, should also take into account hospitals such as the King Edward VII, the Sister Agnes and the St John of God in Yorkshire, a wonderful voluntary hospital. I cannot believe that a sensible way of proceeding is for the high quality medicine which is practised in such hospitals to come under the same regime.
  When we come to the later stages of the Bill, this House will want to send it on to the other place with a more sensible structure, perhaps with the CHI having extended terms of reference, or perhaps even with a separate regulator. With the greatest respect to the Government, that cannot be right.
  Lord Clement-Jones: I agree with the noble Lord, Lord Jenkin. I am extremely disappointed by the Minister's reply. The noble Lord, Lord Jenkin, used the word "hollowness". I found the Minister's response extremely vague when set against the concrete nature of the amendment. II was difficult to discern precisely what kind of mechanism is intended for the running of the division. I do not think I received any particular answer to any of the questions that I posed about accountability, mechanisms, management systems and so on. I am sorry that the debate is taking place so late at night.
  It all goes to show that the regulation of independent healthcare in the Bill is just an add-on; it has been bolted on. It is not coherent and should not be a part of the Bill.
  Baroness Masham of Ilton: We should protect all patients. I am sure that many on the Cross-Benches will support the noble Earl, Lord Howe, at Report stage. There should be minimum clinical standards in whatever hospital.
  Lord Howe: Like my noble friend Lord Jenkin and other noble Lords, I am disappointed with the Minister's response. He said that the proposal outlined in the amendment was not workable. I am not sure that he gave many reasons for that. It seems to me that there is every reason to think that a delegated structure would work. I see no reason why it should not.
  The Minister failed to put any flesh on the bones as far as concerns the proposed separate division. He did not make clear what form the division will take; what the division will amount to; what the structure will be; who will run it, and so on.
  1106
  I share the verdict of the noble Lord, Lord Clement-Jones, on the Minister's response. We must come back to this issue at a later stage because it is too important to let drop. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 161 to 170A not moved.]
  1.30 p.m.
  Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 171:
  Page 62. line 15, at end insert—
  ("Training
  13A. The Commission may provide training for the purpose of assisting persons to attain standards set out in any statements published by the Secretary of State under section 21.").
  On Question, amendment agreed to.
  Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 172:
  Page 62, line 19, at end insert—
  ("Fees
  14A.—(1) Subject to the provisions of this Act, the Commission may not, except with the consent of the Secretary of State, charge a fee in connection with the exercise of any power conferred on it by or under this Act.
  (2) The Commission may charge a reasonable fee determined by it—

  (a) for any advice, forms or documents provided for the assistance of a person who proposes to apply, or is considering whether to apply, for registration under Part II; and

  (b) for any training provided by it under paragraph 13.A.

  (3) The consent of the Secretary of State for the purposes of sub-paragraph (1) may be given in relation to the exercise of a power either generally or in a particular case.").
  On Question, amendment agreed to.
  [Amendment No. 173 not moved.]
  Schedule 1, as amended, agreed to.
  Schedule 2 [Child Minding and Day Care for Young Children]:
  [Amendments Nos. 173A and 173B not moved.]
  Schedule 2 agreed to.
  Schedule 3 [Minor and consequential amendments]:
  Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 174:
  Page 69, line 28, leave out ("registration") and insert ("appropriate").
  The noble Lord said: In moving Amendment No. 174, I should like to speak also to Amendments Nos. 175 to 177. These four amendments are simply to change the shorthand term used in the Children Act, as amended by the Bill, to refer to the national care standards commission and the National Assembly for Wales. The term "registration authority" is potentially confusing as it could conflict with the new Part XA of the Children Act, as inserted by Part V of this Bill, which also uses the term "registration authority". There is no change of any meaning or substance as a result of these amendments. I beg to move.
  On Question, amendment agreed to.
  Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendments Nos. 175 to 177:
  Page 69, line 30, leave out ("registration") and insert ("appropriate").
  Page 69, line 36, leave out (""registration") and insert ("appropriate").
  Page 70, line 12, leave out ("""registration") and insert ("""appropriate").
  On Question, amendments agreed to.
  Schedule 3, as amended, agreed to.
  Schedule 4 agreed to.
  Schedule 5 [Repeals]:
  Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 178:
  Page 74, line 16, column 3, leave out ("and (2) to") and insert (", (2)(a) to (k), (3) and").
  The noble Lord said: This is a minor correction to the repeals schedule. We are making a number of repeals of existing provisions made under the Children
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  Act. This amendment is intended to ensure that we do not repeal by mistake the power to make regulations under that Act which would require private children's homes to have a complaints procedure similar to that of local authorities under Section 26 of that Act. That power has been exercised in respect of private children's homes in the Representations Procedure (Children) Regulations 1991 and this amendment is necessary to ensure that those provisions remain in force as respects these homes.
  The Bill will require all children's homes to have adequate complaints procedures within the home itself. But aside from that we want also to ensure that the statutory Children Act complaints procedure applies to private children's homes. This amendment will ensure that that remains so. I beg to move.
  On Question, amendment agreed to.
  Schedule 5, as amended, agreed to.
  House resumed: Bill reported with amendments.
  House adjourned at twenty-five minutes before midnight.