Lords Sitting of 2 March 2000

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

Conditional Fee Agreements
Lord Ackner Lord Ackner asked Her Majesty's Government:
What research they have carried out into the practice of charging conditional fees and, in particular, into whether the way in which the risk is assessed and the success fee is calculated is operating fairly.
The Lord Chancellor (Lord Irvine of Lairg): My Lords, my department provided assistance to two research studies undertaken by the University of Westminster in 1997 and 1999. The first showed that solicitors were treating their clients fairly when setting success fees and that conditional fee agreements (CFAs) were increasing access to justice. The second found that most clients were satisfied with the damages they received and the success fees they paid to their solicitors, but made recommendations about improving the information clients received about conditional fees. I am carrying that forward in regulations which will come into force on 1st April.
A research project based at the Anglia University, with part funding from the European Social Fund, is aimed at helping solicitors with risk assessment, including through subsidised training workshops.
My department has also commissioned major research involving the Universities of Nottingham, Oxford and Surrey. It will be the first comparative evaluation of the effects of CFAs on all kinds of personal injury litigation and will provide a basis for policy evaluation of the forthcoming changes on recoverability of success fees and insurance premiums.
Lord Ackner: My Lords, I am most grateful to my noble and learned friend for that full and detailed Answer. Does he recall his Answer to a Question on 7th October 1998 (col. 432) that his department was currently considering research projects, and his later observation that he would shortly be publicising the terms on which that research was to be undertaken? If that is so, why has there been no announcement of the details of the results and the basis on which those researches have been conducted?
The Lord Chancellor: My Lords, on my feet, I am not clear that there has been no such announcement. However, I shall undertake to write to the noble and learned Lord and give him the fullest detail, which I also gave in my Answer, about all the pieces of research which I had hoped he might have acknowledged are comprehensive.
Lord Goodhart: My Lords, does the noble and learned Lord the Lord Chancellor accept that the Access to Justice Act was largely based on the assumption that CFAs will work and that if it is proved that they are not working to their full extent, we must go back to the drawing board? In that case, does the noble and learned Lord accept that the research will be most important in assessing whether they are working?
The Lord Chancellor: My Lords, I accept that the research certainly is important. However, all common sense suggests that CFAs will succeed in giving access to justice for the first time to hundreds of thousands of people who are currently outside the legal aid eligibility limits. Research will keep the operation of the system under supervision. However, I have to say that the barrenness of the position of those who oppose CFAs in principle is that the only alternative is to pour more public money into legal aid and therefore to the lawyers who live a risk-free life under legal aid.
Our number one priority is schools and hospitals. I am confident that CFAs will work and that they will enable the existing legal aid budget to be directed to meet unmet and priority needs, such as child welfare, debt, housing and employment, giving an associated boost to the voluntary sector.
Lord Harris of Haringey: My Lord, what steps are being taken to ensure that the new scheme of CFAs is fair as between the interests of claimants and defendants?
The Lord Chancellor: My Lords, CFAs have been available for personal injury cases since 1995. They were made available by me in 1998 for all money and damages claims. From 1st April, claimants will be able to recover the success fee and any insurance premium from a losing opponent rather than having to meet those costs out of their damages. They will therefore retain 100 per cent of their recovery.
On the other hand, a losing opponent will be able to challenge a success fee as excessive and will not be liable for any part disallowed by the court. For the benefit of claimants, I am making a regulation to the effect that CFAs must include a term that a solicitor may not recover from a client any part of the success fee disallowed by the court. I believe that the scheme in its entirety is balanced and fair to both sides.
Lord McNally: My Lords, will those carrying out studies on behalf of the Lord Chancellor's Department also keep an eye on how law firms promote themselves under the new schemes? I have found extremely worrying some television advertisements inviting people to enter into no-risk litigation. At lunchtime on television a company called Claims Direct seemed to be offering viewers an invitation more to join the National Lottery than to enter into litigation. It showed happy, smiling litigants who had won between £50,000 and £70,000. Does the noble and learned Lord

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agree that this kind of aggressive promotion and advertising may hold dangers, and will he keep this matter under close review?
The Lord Chancellor: My Lords, regulations will shortly come before noble Lords that will require those offering conditional fee arrangements to hold a preliminary discussion with clients to see whether they are already covered for the cost of taking a claim under a pre-existing insurance policy or through membership of a scheme run by an organisation such as a trade union. There will also be obligations to discuss with the client the most appropriate means of funding his claim, and ally financial liabilities that he may face; for example, for disbursements if the claim fails. Noble Lords will see in the regulations an impressive list of those matters which must be discussed and explained to clients before a CFA is entered into. This area will be effectively regulated.
Lord Kingsland: My Lords, the noble and learned Lord the Lord Chancellor is fully aware that crucial to the success of conditional fee arrangements will be the willingness of the private insurance market to provide appropriate insurance at reasonable prices. Will he undertake to publish all the work sponsored by his own department on the willingness of the insurance market so to behave?
The Lord Chancellor: My Lords, I shall certainly write to the noble Lord and make available to him all the information that we have. However, I have to say that there is growing public confidence in CFAs and insurance products. Insurance premiums are set according to risk. They are affordable and there is little doubt that the overwhelming majority of people who want to arrange CFAs will secure them on proper terms.

Lord Chancellor: McGonnell Judgment
3.15 p.m.
Lord Desai Lord Desai asked Her Majesty's Government:
What is their response to the McGonnell judgment of the European Court of Human Rights in relation to the position of the Lord Chancellor.
The Lord Chancellor: My Lords, the position of the Lord Chancellor is unaffected by this decision. It is confined to the special position of the Bailiff of Guernsey and to his role in that particular case.
While this decision was awaited, there was a great deal of excitable speculation that Article 6 of the ECHR, which guarantees a fair trial, would set aside some of our basic constitutional arrangements. I have always said that that would be proved wrong; it would be extraordinary if it were not. The question in every case is whether Article 6 is complied with on the facts. The European court confirmed that, saying:
"the question is whether, in a given case, the requirements of the Convention are met".
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The court also accepted the Government's submission that neither Article 6 nor any other provision of the convention required,
"States to comply with any theoretical concepts as such".
That, too, is what I have said.
There are some absolutists (I hasten to say that my noble friend is not among them) on the doctrine of the separation of the powers—as distinct from British pragmatists—but they get no comfort at all from McGonnell.
Lord Waddington: My Lords, will the noble and learned Lord the Lord Chancellor bear in mind the conclusion of the Wakeham commission which pointed out the usefulness of having the Law Lords continue to sit in the second Chamber? The report also mentioned that it was important that the Lord Chancellor should continue to exercise the same functions in the second Chamber. However, having said that, perhaps I may say that I welcome enormously the remarks made by the noble and learned Lord the Lord Chancellor. We have had a great deal of constitutional upheaval and I am glad that we shall be spared yet more upheaval over this issue given that the present system works very well.
The Lord Chancellor: My Lords, I shall attempt a short answer to the noble Lord's question. I welcome the Wakeham commission's comments on the Law Lords, as does the noble Lord. They have direct, high quality, practical experience of the administration of justice. That is what makes their contributions so valuable to your Lordships' debates on this subject. The quality of what they say enhances our debates. They are much appreciated and I am glad to say that this ruling does not begin to compromise their independence or impartiality.
Lord Lester of Herne Hill: My Lords, speaking as a non-absolutist pragmatist—as is the noble and learned Lord the Lord Chancellor—does he also agree with the Wakeham commission recommendation that it would be wise for the Lords of Appeal to publish an up-to-date statement of current constitutional practice so as to ensure that those who wear two hats—one legislative and one judicial—or even three, as in the case of the noble and learned Lord the Lord Chancellor, are able to explain the new principles to be applied to ensure that there is no future case like McGonnell ill which Article 6 must be relied upon?
The Lord Chancellor: My Lords, I believe that McGonnell usefully reinforces the circumspection required of the Law Lords when they participate in the legislative process. When they participate in your Lordships' debates, it would, of course, be prudent for them to abstain from concluded views of a judicial character on issues which might later disqualify them from adjudicating should those issues come before them. The Wakeham commission recommended in Recommendation 59 that the Lords of Appeal should set out in writing and publish a statement of the principles that they intend to observe. The noble Lord,

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Lord Lester, drew attention to that. The senior Law Lord has informed me that the Law Lords will discuss that matter at their next meeting later this month.
Lord Borrie: My Lords, given that a very wide range of cases comes before the House of Lords in its judicial capacity, is it not better that the Lord Chancellor and future Lord Chancellors use their discretion to ensure that they comply with Article 6, rather than that there should be any general ban forbidding the Lord Chancellor dealing with, and gaining experience of, judicial cases?
The Lord Chancellor: My Lords, I agree. Noble Lords will appreciate that there are very many appeals—a multitude of appeals—in which on no conceivable reading of McGonnell could there be any objection to the Lord Chancellor sitting; for example, in cases arising under the common law where there is no issue concerning any statute arising. Your Lordships can rest assured that I shall take care to ensure that I do not sit in cases where to do so would infringe Article 6.
Lord Renton: My Lords, bearing in mind that under our constitution the separation of powers has been ignored for centuries, does the noble and learned Lord agree that there is some advantage in having him preside over your Lordships' legislative Chamber as responsible for the legal system and as a member of the Cabinet, and that that co-ordination of powers under his responsibility is an advantage within our constitution?
The Lord Chancellor: My Lords, I clearly believe that the role of the Lord Chancellor in upholding the independence of the judiciary—an important unwritten article of our constitution—is vital. The noble and learned Lords who have held this office previously have said—I must agree with them—that the office acts as a strong buffer between the judiciary and the executive. The office will be the more necessary in that regard as decisions come forward under the Human Rights Act which inevitably will not give pleasure to all and may sometimes give displeasure to government.

Speeding: Self-incriminatory Evidence Ruling
3.23 p.m.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish asked Her Majesty's Government:
What steps they propose to take in the light of the court decision in Edinburgh that Section 172 of the Road Traffic Act 1988, used extensively in speeding charges, contravenes the European Convention on Human Rights.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, the court in the Edinburgh case did not hold that the use of Section 172 to obtain information infringed Article 6(1) but, rather, that in the circumstances of the case the prosecution could not use the self-incriminatory evidence obtained. It is a long and detailed judgment and the court granted the Crown leave to appeal to the Judicial Committee of the Privy Council. All aspects of the case are being considered carefully before a decision is taken on whether to appeal. That being so, inevitably there is a risk that any discussion of the case in the House could be prejudicial to further legal proceedings. Accordingly, I am constrained in any answers that I can give to further questions. That said, the question as to whether the case has implications for other circumstances, such as those where safety cameras are used, was not addressed by the court, which was very clear on that point.
Lord Mackay of Ardbrecknish: My Lords, I appreciate the measured response given by the noble Lord. Does he appreciate just how serious this judgment is, coming as it did from the Lord Justice General and from two of his colleagues on the Scottish Bench? While I appreciate that the case centred around a drunk driver who incriminated herself, the press and other legal people consider that it has serious implications, for example, for speed cameras. The current position in Scotland may well be that people can go through speed cameras with impunity because they cannot be forced to tell who is driving the car. Is the noble Lord aware that the same circumstance could occur in England after 2nd October? I wonder whether the Government appreciate exactly the consequences of incorporating the ECHR into the Scottish and, eventually, the English legal systems. Is the noble Lord aware that if action is not taken to proof legislation against the ECHR, instances such as this will occur again and again and again?
Lord Whitty: My Lords, were the noble Lord to be correct that there is a read-across from this particular case into other areas of road traffic offences where the keeper is required to give evidence, then clearly there would be a serious problem. However, I reiterate that the justices in this case indicated that they had not considered the facts of other possible cases. They said in terms that not all the features of the present case would be found, for example, in cases where the police send out a written request to the keeper of a vehicle which is caught speeding by a roadside camera. Therefore, the read-across to which the noble Lord refers, and on which comment has been made in Scotland, does not necessarily exist.
Lord Lester of Herne Hill: My Lords, contrary to the view expressed by the noble Lord, Lord Mackay of Ardbrecknish, and regardless of whether one agrees or disagrees with the outcome of the case—a possible appeal to the Privy Council is pending—does the Minister agree that the case illustrates a success for the Scotland Act read with the Human Rights Act in that

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three senior Scottish judges, following full and careful analysis of Scots law and European Convention law, confined themselves carefully to the narrow issues in the case? In his judgment, one of the judges, Lord Marnoch, went out of his way to explain that he found nothing in European case law that added significantly to what has long been the common law of Scotland in regard to the treatment of suspected persons. He pointed out that Scots law requires that such persons should normally be cautioned that they are not obliged to say anything and, even with a caution, anything in the nature of cross-examination.
Lord Whitty: My Lords, I believe that the last point made by the noble Lord, Lord Lester, is particularly apposite in this case. However, I believe that in any further value judgment I make of this case I should confine my remarks to what I said earlier because the Scottish Law Officers are still considering the case on appeal.
Lord Mackenzie of Framwellgate: My Lords, I accept the necessity for the law to protect suspects in crime from incriminating themselves. However, particularly in a week when road safety initiatives have been introduced, does the Minister agree that it is important that we, and justice, take account of the human rights of innocent victims of crime and not only of those of the perpetrators of crime?
Lord Whitty: My Lords, I agree absolutely with my noble friend. The road safety strategy launched yesterday by my right honourable friend the Prime Minister was intended to address the fundamental human rights of people whose lives are taken away through road traffic accidents—at present, 3,500 each year. Therefore, it is important that both our system of catching such criminals—and they are criminals—and our system of justice surrounding that are robust.
The Earl of Erroll: My Lords, does the Minister agree that on occasion everyone is so busy worrying about road safety that it is forgotten that three speeding offences can mean the loss of someone's driving licence? If one lives in the country, that totally destroys one's ability to earn. It can therefore totally destroy one's family life and, in fact, have far greater repercussions than what were perhaps three minor offences causing no damage to anyone else. Sometimes the issue is completely out of balance.
Lord Whitty: No, my Lords, I do not agree. I fundamentally disagree. The family life and, indeed, life itself of many people is affected seriously and, on occasion, taken away by people conducting themselves on the roads by committing what the noble Earl describes as "minor speeding offences". Speed kills. It is therefore important that we should deter people from speeding on our roads.

Scottish Parliament Building
3.30 p.m.
Baroness Carnegy of Lour Baroness Carnegy of Lour asked Her Majesty's Government:
Whether they have had any approaches from the Scottish Executive to cover the increased costs of the proposed Scottish Parliament building at Holyrood.
Baroness Ramsay of Cartvale: My Lords, there has been no such approach.
Baroness Carnegy of Lour: My Lords, I thank the Minister for that not entirely unsurprising reply. Does the noble Baroness accept that the decision to build the Scots Parliament at a cost of £50 million was made by the Westminster Government before devolution was implemented and that, therefore, members of the Scots Parliament had no part in it? Does the Minister accept that that £50 million was only for the shell of the building? It did not include purchasing the site, demolition work, furniture, fittings, fees nor reasonable changes to the specification. The total cost is now between £120 million and £200 million.
In view of that massive error, will the Government ensure that the extra sum required, at any rate for the original project, will be added to the Scots Parliament's allocation from the Treasury; or will the Scots alone have to fund it out of the tartan tax or by cutting expenditure on hospitals and schools?
Baroness Ramsay of Cartvale: My Lords, there is so much confusion and misinformation in that question that I do not quite know where to begin. Perhaps I may deal with some facts. The initial estimate of the construction cost was £50 million, excluding site acquisition. VAT, fees and fittings. That was always made very clear in this House and in another place. Indeed, I have many Hansard references, if the noble Baroness would like to have those.
The construction cost estimate subsequently increased to £62 million. That reflected changes to the original outline specification, including the provision of a formal entrance, increased circulation space and increased staff accommodation. That was all taking into account the work of the consultative steering group, which was an all-party group, on how the parliament should operate.
The legal and financial responsibility for the project passed to the Scottish Parliamentary Corporate Body—the SPCB—on 1st June 1999. In June 1999, the cost of the building was estimated to be £109 million. That figure includes the £62 million construction costs which I mentioned earlier, VAT, fees, site acquisition and works, fitting out and provision of IT. I understand that provision for costs totalling £109 million has been made in spending plans for the Scottish Parliament. Those are the facts.
Lord Mackay of Ardbrecknish: My Lords, my noble friend Lady Carnegy of Lour did not dispute that it was £50 million plus VAT and a few other things,

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totalling, as I recall, when the noble Lord, Lord Sewel, announced this to your Lordships' House, no more than about £80 million. The figure is now over £230 million for what is now being called "Donald's Dome" because it was Donald Dewar, when Secretary of State, who announced that. Will John Reid, the current holder of the office, fulfil the obligations which his predecessor laid down to fund that? Will he therefore fund it out of his budget and not ask for fewer Scottish policemen or nurses because of the money needed to fund Donald's Dome?
Baroness Ramsay of Cartvale: My Lords, I do not know where all those figures are coming from, other than from the pages of the Scottish press. I am sorry not to see the noble Lord, Lord Forsyth of Drumlean, in his place today. On Tuesday, during the Report stage of the Representation of the People Bill, he tossed around a figure of £280 million. I am not quite sure whether or not that was the figure used by the noble Lord, Lord Mackay of Ardbrecknish. I do not know where those figures are coming from.
As I told your Lordships, the last official factual figure is the £109 million. But as everyone is aware who reads the Scottish press and who pays attention to these matters, the Presiding Officer announced to the parliament on 24th February that he had commissioned an assessment to allow the Scottish Parliament Corporate Body to give MSPs a complete and detailed report with sufficiently robust information on cost and timetable. He confirmed that the review will be carried out by independent assessors; will assess the current position of the project; and will advise the SPCB ahead of its report to MSPs next month.
Lord Thomson of Monifieth: My Lords, will the Minister agree that the responsibility for a matter like this was very clearly and consciously devolved by this Parliament to the parliament in Edinburgh during the proceedings on the Scotland Act? In those circumstances, would it not be altogether better to leave those responsibilities to the Scottish Parliament responsible to the Scottish electorate without back-seat driving from this Chamber?
Will the Minister further agree that, while ensuring value for money, of course, the parliament building in Edinburgh is being built for posterity, far beyond the horizons of the peevish Scottish press and that we should have a building of which Scotland can be proud?
Baroness Ramsay of Cartvale: My Lords, I could not agree more with every word that the noble Lord said.

Business: Private Notice Questions
3.37 p.m.
Lord Strathclyde: My Lords, with permission of the House, I should like to raise a matter, of which I have given notice, which I believe is of great importance to the rights of this House to be informed.
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There is a clear case of good practice which exists in this House; that is, that when information is offered to Parliament in another place by way of a Statement or a Private Notice Question, that Statement is offered to your Lordships. On 7th December 1999, the Foreign Secretary chose to use a Deferred Question procedure to make an important Statement on Chechnya. When I learnt of that, I asked a PNQ to protect the rights of this House to be informed. That PNQ was refused and I did not dispute the right of the Leader of the House to do that, and the House must respect the decision of the Leader or, indeed, her Deputy.
However, I said on the Floor of the House that that matter needed to be addressed by the Procedure Committee. I warned that we must address the effects of this device being used in another place by Ministers; namely, that Statements made in that way would not then be offered to your Lordships' House.
I subsequently raised the matter in a letter to the noble Baroness the Leader of the House, but she said that she could not support a reference to the committee. She said that the Deferred Question procedure was,
"not likely to arise again with any degree of frequency".
On 18th February I wrote again to the noble Baroness to say that I was not satisfied with that as a reason and 1 repeated that I felt that this House should be protected. As a solution, I said that the House might, perhaps, be offered an arranged PNQ when the Deferred Question procedure was used in another place. As yet, I have received no reply.
But so far from it being an almost unknown occurrence, the Deferred Question has arisen again. This morning, in another place, the Secretary of State for Trade and Industry used the Deferred Question procedure to announce major changes to the Utilities Bill.
Quite apart from what it reveals about the shambles that is so much of the Government's legislative programme, that Statement is important. It touches on our major utilities and so it affects every citizen in this country. Once again, the Official Opposition, in the person of my noble friend Lady Buscombe, tabled a PNQ to enable this House to be informed. Once again, the PNQ was refused. I do not dispute the right of the noble and learned Lord the Attorney-General to refuse a PNQ on this occasion. But I must ask again—this time with some force—whether it would not be a courtesy to this House for Ministers to find some way in which Statements made in another place under the Deferred Question procedure could be offered here. That is not much for Members of this House to ask and to expect. I hope that the Deputy Leader of the House, the noble and learned Lord the Attorney-General, will assure the House this afternoon that the matter of how this House is informed by Ministers when Deferred Questions are used to make Statements in another place will be reconsidered sympathetically and with urgency. I formally ask him to do so now.
The Attorney-General (Lord Williams of Mostyn): My Lords, I apologise for the absence of my noble

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friend the Leader of the House. As I believe is known, she is on official business in the United States. I sympathise with the thrust of what the noble Lord has said. Perhaps I may put it in the immediate context. He is quite right; the noble Baroness, Lady Buscombe, sought to table a PNQ relating to future regulation of the telecommunications industry. I believe that the noble Lord will concede that the usual test was applied; namely, did it fulfil and meet the criterion of urgency? I do not believe that any rational mind could say that it did.
However, the noble Lord's question goes to a more fundamental point. He is quite right that he wrote on 18th February and he has not received a reply. I agree with him that it is unfortunate that a Deferred Question arose in another place before the correspondence proceeded any further. I believe that through the usual channels we can find a way forward which all your Lordships will find satisfactory. I do not believe that it is for me on this occasion to say anything further, because I know from my noble friend the Chief Whip that he has not had an opportunity, bearing in mind the limited time available today, to discuss matters fully with the usual channels. They are also entitled to have their view considered.
I sympathise with the point made by the noble Lord. It will not be an insoluble problem. Perhaps we may rely again on our faithful, trusty and well-beloved friends: the usual channels.
Lord Rodgers of Quarry Bank: My Lords, leaving aside the particular circumstances today, I believe that the House will welcome what the noble and learned Lord has said. But when the usual channels have had their discussions, is this not an appropriate matter for wider discussion in the Procedure Committee? Will he promise that it will go there in due course?
Lord Williams of Mostyn: My Lords, I cannot promise that, but if there is a consensus in the usual channels that that is the proper course, the proper course will be followed.
Lord Carter: My Lords, before we move to the two Statements on General Pinochet, it may be helpful if I remind the House that the Companion indicates that discussion on a Statement should be confined to brief comments and questions for clarification. Peers who speak at length do so at the expense of other noble Lords since the Back Bench interventions are strictly limited to up to 20 minutes in total.

Senator Pinochet
3.42 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, with the leave of the House, I wish to repeat a Statement made by my right honourable friend the Home Secretary in another place.
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"With permission, Madam Speaker, I should like to make a Statement about the case of Senator Pinochet, former Head of State of Chile.
"This morning I informed the House by Written Answer that I had discharged Senator Pinochet from the Spanish extradition request, on the grounds that he was unfit to stand trial and that no significant improvement in his condition could be expected. I also reported my decision not to issue an Authority to Proceed in the competing extradition requests from Belgium, France and Switzerland because none of these disclosed an extradition crime. A detailed explanation of my reasons is included in my Answer.
"The House will also now be aware, from the Written Answer given earlier today by my right honourable and learned friend the Solicitor-General that the Director of Public Prosecutions has decided that, on the material available to him, there is no realistic prospect of a conviction in this jurisdiction and, in any event, in the light of the medical condition of Senator Pinochet, no court here would allow a trial to take place. My right honourable and learned friend will be making a Statement to the House immediately after mine.
"This morning, Senator Pinochet departed from his bail address at Wentworth and was driven under police escort to RAF Waddington in Lincolnshire. He left the jurisdiction of the United Kingdom at 1.10 p.m.
"Let me now give the House a full account of what happened in this case as I said I would once the proceedings were concluded. I begin by making some general observations. My role under the Extradition Act 1989 is a quasi-judicial one. Although neither is generally incorporated into our domestic law, both the European Extradition Convention and the United Nations Torture Convention place important obligations on the UK, but I have to discharge those obligations within the powers and responsibilities placed on me by UK law.
"All the decisions which I have taken have been mine alone, and have not been decisions of Her Majesty's Government. Throughout, I have been keenly aware of the gravity of the crimes allegedly committed by Senator Pinochet, and of the desire for justice by those who suffered at the hands of the former Chilean regime. This has been an unprecedented case. Both I and the courts have had to navigate in uncharted territory. Two Judicial Committees of the House of Lords took different views about what offences constituted extradition crimes. More recently, Mr Justice Maurice Kay ruled that my refusal of Belgium's request for disclosure of the medical report which I had commissioned was correct: shortly afterwards a full Divisional Court, while acknowledging strong arguments on both sides, came to the opposite view.
"The following is the chronology of the significant events. Senator Pinochet landed at Heathrow Airport on 22nd September 1998, for a

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private visit to the United Kingdom. On 16th October the Metropolitan Police received an extradition request from a Madrid court for the provisional arrest of Senator Pinochet for serious offences including the murder of Spanish citizens. The police were advised by Foreign and Commonwealth Office officials that Senator Pinochet did not enjoy diplomatic immunity from arrest. The Bow Street Magistrates' Court then issued a provisional arrest warrant and Senator Pinochet was arrested that evening.
"Senator Pinochet's solicitors made representations to me on 21st October 1998, asking me to cancel this provisional arrest warrant. I declined to do so on the basis that the issues raised at this stage were a matter for the court. They challenged my decision. A Divisional Court, headed by the Lord Chief Justice, rejected that challenge and awarded me my costs. The court nevertheless quashed the warrant on the grounds that Senator Pinochet had sovereign immunity as a former head of state and that the warrant did not disclose an extradition crime. The Crown Prosecution service, acting on behalf of Spain, then entered an appeal to the House of Lords. In a unique feature of this case, the issue was considered twice by the House of Lords, first in November 1998 and then, after the first judgment was vacated, in March 1999. The key majority finding of the second court was that torture was an international crime over which the parties to the Torture Convention had universal jurisdiction and that a former head of state did not have immunity from such crimes. This ruling was a landmark judgment in human rights law, whose impact has been felt far beyond our shores. It will be a permanent legacy of the Pinochet case.
"The second House of Lords judgment restricted the scope and number of the alleged crimes in respect of which Senator Pinochet could be extradited to torture and conspiracy to torture committed in Chile after the UK's ratification of the Torture Convention in December 1988. These charges were of course still extremely serious. I issued a second Authority to Proceed on 14th April 1999, giving my reasons. A second judicial challenge by Senator Pinochet's representatives was again rejected by the Divisional Court. On 8th October 1999 Senator Pinochet was committed by the Bow Street Magistrates' Court to await my decision whether or not to extradite him to Spain. Senator Pinochet's solicitors applied for habeas corpus and a hearing date was set for 20th March this year.
"On 14th October 1999, I received representations from the Chilean Embassy, supported by medical reports, which suggested that there had been a recent and significant deterioration in Senator Pinochet's health. I commissioned a medical examination of Senator Pinochet by a team of independent practitioners of outstanding national and international reputation in their fields. The team consisted of Professor Sir John Grimley
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Evans, Professor Andrew Lees, and Dr Michael Denham. On the teams advice, Dr Maria Wyke, a consultant neuropsychologist, was brought in.
"I should like to put on record my gratitude to Sir John Grimley Evans and his expert medical team for their assistance. They have performed a very significant public service. They have not been able to speak freely in explaining and, where necessary, defending their findings, despite widespread public scrutiny.
"The clinicians were instructed to undertake the examination to provide me with a fully comprehensive report on the state of Senator Pinochet's health. In particular, they were asked to advise whether there were any aspects of Senator Pinochet's health which suggested that he was not then fit, or was likely to become unfit, to stand trial in Spain. They were told that I was particularly interested in Senator Pinochet's ability to follow a line of questioning, to recall events, some of which took place as long ago as the 1970s, and to give coherent evidence. They were asked to advise me on whether Senator Pinochet could be feigning any of his symptoms.
"As I disclosed in my Statement on 12th January, the conclusions of the medical report, applying the tests I had outlined to them, indicated that Senator Pinochet was unfit to stand trial and that no significant improvement in that position could be expected. The Government's Chief Medical officer, Professor Liam Donaldson, confirmed the quality and thoroughness of the report. I am placing the report in the Library.
"I informed the interested parties on 11th January that in the light of this medical evidence and subject to any representations received by 18th January, I was minded to conclude that no purpose would be served by continuing the Spanish extradition request.
"On 25th January a judicial review application was made by Belgium and Amnesty International for disclosure of the medical report. In inviting Senator Pinochet to undertake the medical examination, officials on my behalf had given an undertaking of confidentiality. I indicated to the Divisional Court that, while I would have preferred to disclose the medical report to the requesting states, I considered myself bound by the undertaking I had given, subject to any overriding public interest. Mr Justice Maurice Kay held that the report should not be disclosed, but a full Divisional Court, in a judgment of 15th February, said that whilst the issue had been a very difficult one, the need for transparency to the requesting states in this exceptional case outweighed any duty of confidentiality. It however said that I should disclose the report to Spain, Belgium, France and Switzerland only in terms of strict confidence. I complied with that judgment. I regret to say that the content of this report was almost immediately leaked to the press.

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"Requesting states were invited to make any representation on the medical report by Tuesday 22nd February 2000. The representations included opinions from medical practitioners questioning the conclusions of the report.
"I asked Professor Sir John Grimley Evans and his team to review these medical opinions, and received their advice on 27th February.
"The team's advice was also reviewed on 28th February by the Chief Medical Officer, Professor Liam Donaldson. He commented as follows:
'I was very impressed with the care with which Sir John (and his team) has responded to each oldie points of criticism of their report. This is not a crude rebuttal—it is a sound and logical reply supported by clinical evidence. I believe it is a further reflection of the skill, integrity and independence with which this task has been carried out by the clinicians'.
"I considered the matter afresh in the light of all this material. Having done so, I was satisfied that the conclusion of the original report was correct. I intend to place the medical representations and the team's response in the Library when I have secured the agreement of the requesting states.
"The principle that an accused person should be mentally capable of following the proceedings, instructing lawyers and giving coherent evidence is fundamental to the idea of a fair trial. The trial of an accused in the condition diagnosed in Senator Pinochet, on the charges which have been made against him in this case, could not be fair in any country, and would violate Article 6 of the European Convention on Human Rights in those countries which are party to it.
"A number of the representations which I received argued that even if there were questions about Senator Pinochet's fitness for trial, these should be determined in Spain and not here. I looked at this question with great care. However, I was advised and I concluded that on the basis of English law I was bound to form a view of my own on Senator Pinochet's fitness to stand trial and that I could not refrain from reaching such a view on the basis that the question could be determined in Spain.
"In any event, I established with the assistance of the Spanish authorities that their principles for determining the fitness of an accused to stand trial were similar to ours. I therefore concluded that given the advice that no improvement in Senator Pinochet's condition could be expected, no judicial purpose would have been served by the continuation of extradition proceedings for the objective of a trial in Spain which could not result in any verdict on the charges against him.
"Of the 70,000 letters and e-mails from the public which I have received from all over the world, and many letters from Members of Parliament and organisations, almost all have urged me to allow the extradition proceedings to take their course, so that the allegations made against Senator Pinochet could
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be tried. I attach great importance to the principle that universal jurisdiction against persons charged with international crimes should be effective. I am all too well aware that the practical consequence of refusing to extradite Senator Pinochet to Spain is that he will probably not be tried anywhere. I am very conscious of the sense of injury which will be felt by those who suffered from breaches of human rights in Chile in the past, as well as their relatives. All of these are matters of great concern, and I had them very much in mind when considering the evidence about Senator Pinochet's state of health. They are among the reasons why I required the evidence of Senator Pinochet's condition to satisfy a high standard of expertise, thoroughness, objectivity and cogency before I was prepared to act on it. Ultimately, however, I was driven to the conclusion that a trial of the charges against Senator Pinochet, however desirable, was simply no longer possible.
"The case has taken 17 months, much in court proceedings. While the House of Lords hearings on state immunity were an exceptional feature, this is not an unusual period of time in a complex contested extradition case. The Extradition Act is now over a decade old and I believe the time has come to review it. Work on this was, in fact, already under way before the Pinochet case began, and I intend to publish a consultation paper in due course on options for streamlining our extradition procedures.
"As I have already made clear, this case has been an unprecedented one. Throughout the process, I have sought to exercise my responsibilities in a fair and rational way in accordance with the law.
"It has understandably aroused great debate and feeling, and its impact has been felt world-wide. It has established, beyond question, the principle that those who commit human rights abuses in one country cannot assume that they are safe elsewhere. That will be its lasting legacy'.
My Lords, that concludes the Statement.
3.58 p.m.
Lord Cope of Berkeley: My Lords, I thank the Minister for repeating in this House this long and important Statement. I think that the main reaction of many of us to the events of today is one of relief that the matter has finally been decided and that our diplomatic and trade relations with Chile and, more widely, South America, can start to be rebuilt.
Can the Minister tell us whether the Foreign Office or any other part of the Government—the noble Lord answers for the whole Government—had any indication of the likelihood of the Spanish extradition request before they welcomed Senator Pinochet to Britain? Can the Minister confirm that on two occasions, before the visit of Senator Pinochet in 1998 which led to all these proceedings, Senator Pinochet had been welcomed as a VIP by this Government?

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I turn to the later events. Can the Minister confirm that the idea that an attempt should be made to keep the medical report confidential, which ultimately failed, was the suggestion of the Home Secretary and not of Senator Pinochet or his advisers? The Statement says that the Chilean Government raised the medical questions and gave the medical report to the Home Secretary in October 1999. But when did Senator Pinochet's lawyers raise such medical doubts with the Home Secretary?
It is right that extradition law should be reconsidered in the light of this case. But will that consideration include the involvement of political figures, such as the Home Secretary of the day, in such difficult decisions as the present Home Secretary has had to face, particularly in view of the possibility that that Home Secretary may be influenced by political considerations or, for that matter, by his political background? After all, the present Home Secretary was involved in Chilean matters many years ago. Secondly, is it intended that the review should include our extradition arrangements with the Republic of Ireland?
In reflecting on everything that has happened and considering possible questions for the extradition review, I conclude that it is undesirable that where a country is trying to go through a period of reconciliation—as are Chile, South Africa and various other countries, including ourselves in the Irish context—the government and law of other countries should interfere with that reconciliation and make it more difficult.
4.2 p.m.
Lord McNally: My Lords, is the Minister aware that we on these Benches believe that the Home Secretary has had a difficult decision to make but that he carried out his responsibilities with scrupulous fairness and great compassion?
It is regrettable that General Pinochet will escape standing trial in Spain. The Home Secretary made two points which should be underlined. First, the crimes of which Pinochet was accused were serious, and in normal circumstances he deserved to face justice for them. Secondly, the Home Secretary is right to express concern for those who suffered under the Pinochet regime or lost loved ones at the hands of his torturers. They will have a real sense of justice denied today and have our sympathy.
I welcome what the Home Secretary said about speeding up the extradition process. In relation to the medical evidence which clearly swayed the Home Secretary's judgment, and without trying to counter the expertise that was brought to bear, much of the evidence of disability was circumstantial rather than clinical. I understand that General Pinochet refused to co-operate with a Belgian request for a second opinion. Should an accused in such circumstances have the right to resist such a request? In any event, let us hope that General Pinochet does not experience a miracle cure of his disabilities as his plane crosses the Andes.
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The Home Secretary chose to ignore the European convention on extradition in these exceptional circumstances. Can the Minister confirm that that in no way weakens the Government's commitment to see established an international criminal court to try such cases? When will they ratify the ICC treaty? The Foreign Secretary, Robin Cook, in July 1998 stated in Parliament that it was the Government's intention to be among the first 60 countries to ratify the treaty. We hope that that momentum is not lost.
In the meantime, while we understand why the Home Secretary made his judgment under English law, it is strange that he should second-guess Spanish law. Is it not normal to let all legal processes go forward and allow the Spanish courts to make their judgment on whether or not the general should face trial?
We acknowledge that this was not an easy decision. But the Minister should be aware that General Pinochet leaves our shores because of the Home Secretary's sense of compassion, a compassion the general did not show to the people of Chile during his years of repression and torture. He may be too mentally impaired to stand trial, but he knows that we abhor what he did and what he stands for. We send to the people of Chile our good wishes that democracy and human rights will continue to flourish there, and trust that they take the appropriate decisions now that the general is returning to Chile to defend those rights in the future. For Pinochet and today's generation of murderers and torturers, we should strengthen the message that we intend to create a system of international justice which, for them, will provide no hiding place.
4.7 p.m.
Lord Bassam of Brighton: My Lords, I shall try to deal with some of the questions raised. The noble Lord, Lord Cope, suggested that there may have been some collusion between the Foreign and Commonwealth Office and the Spanish authorities. There was no such collusion. There was no connection between the two bodies. The arrest was a matter for the police acting on information provided to them through Interpol.
The noble Lord, Lord Cope, also asked when Senator Pinochet's advisers first raised the issue of his ill health and expressed some doubts over his medical condition. The Statement made clear that that was primarily in October last year.
In relation to the review of extradition, my right honourable friend the Home Secretary reasonably concluded that, as a result of this case, which perhaps because of its complexities took as long as it did, there is a case for reviewing the procedures. Quite rightly, he wants to see what can be undertaken to speed them up. That is an important development.
The noble Lord, Lord Cope, also raised the question of bias in the Home Secretary's mode of consideration. My right honourable friend had an almost impossible job in this particularly difficult and complex case. He exercised his powers and duties to the highest level.

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He performed magnificently and acted in his quasi-judicial role in a way which is a good example to the rest of the world. He is to be congratulated and commended on his objectivity and on the dispassionate way in which he exercised his duties.
The noble Lord, Lord Cope, raised the issue of reconciliation and drew comparisons with Northern Ireland. But each case Northern Ireland, South Africa, Chile—involves different political circumstances. The process of reconciliation in Chile has not been damaged by the consideration of Senator Pinochet's case. It is clearly a matter for the Chileans to resolve. We acted quite properly in regard to the issues facing our Government. That will be respected and acknowledged not only in this country, but also internationally.
The noble Lord, Lord McNally, raised a number of points and I suspect that there will be great sympathy for those points. He mentioned specifically the Spanish courts and said that they were perhaps best placed to consider matters relating to Senator Pinochet. We did not take that view. The Home Secretary took the view that he had to exercise his duties. I believe he did so very fairly indeed, with the Crown Prosecution Service effectively acting as an agency of the Spanish authorities. The Home Secretary was properly advised in the way in which he conducted himself. He felt it right that he should personally take such decisions rather than off-loading them somewhere else. Again, that is a reflection of the integrity of the Home Secretary and of the very careful way in which he has handled and managed this most difficult affair.
I am most grateful to both noble Lords who have spoken for their contributions. If I have missed particular points, we can no doubt return to them. We obviously await with interest further developments and comments.
4.10 p.m.
Lord Waddington: My Lords, does the Minister appreciate that many of us are concerned not only about the legal developments in this case but also about the long-term political consequences of such developments, which we simply cannot ignore? It is acknowledged that General Pinochet was welcomed to this country. I have to ask—I use this as just one example—what sort of welcome do the Government plan for President Mugabe when he next comes to this country, after the slaughter, torture and rape of thousands of civilians in Matabeleland in the 1980s, which has now been revealed? Is he not just one of many from all over the world? Indeed, there are people in China and Russia who have committed the most ghastly crimes and who, from now on, will be at risk if they travel outside their own countries and come here.
What is the Government's answer to this question? What will happen when the next person comes to represent Russia and people raise questions about murder and pillage in Chechnya? What will happen when someone comes from China a country with
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which we want good relations and allegations are made about the appalling human rights abuses in that country? We simply cannot look at this as being a purely legal question. Surely we must now hear from the Government how they view the political fallout and how they propose to address it.
Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord, Lord Waddington, for his contribution. He has occupied the important office of state of Home Secretary and will no doubt appreciate the complexities of the issues that have arisen in this case. Indeed, he made a very fair and reasonable point. My right honourable friend the Home Secretary made a very important observation in that regard in his Statement. He acknowledged that the issue has aroused great debate and feeling and that the impact of the case has been felt worldwide—I repeat: worldwide. It has established beyond question the principle that those who commit human rights abuses in one country cannot assume that they are safe elsewhere.
Clearly that important statement and observation will have worldwide ramifications and implications. I suspect and hope that it will lead to an improvement in human rights across the world. That is something of which we in this country should be rightly proud. If our position in this matter is understood worldwide, I think that that will do a great deal to improve the observance of human rights, as well as the rights, of people who perhaps suffer from unfortunate, oppressive and unwelcome regimes across the world.
Lord Richard: My Lords, is my noble friend the Minister aware that, speaking for myself, I believe that the Home Secretary has got it absolutely right? When General Pinochet arrived in this country and a request for extradition was made, the Home Secretary and the Government were absolutely right to see that as a judicial and not a political matter. It was right that it should be dealt with through the courts. Indeed, it was dealt with twice through the courts, right up to the highest court in the land. If no issue had been raised as to General Pinochet's state of health, no doubt it would have continued to be determined as a judicial matter, as should be the case.
Whatever the noble Lord, Lord Waddington, says, matters of extradition are primarily for judicial and not political determination. Once the issue of Senator Pinochet's health was raised, it was right for the Home Secretary to ask that he should be properly examined; and, indeed, he was. We have all had the opportunity to read the report that has been produced, as someone leaked it during the course of the proceedings. It was firm, very clear and quite conclusive that the man could not stand trial; that he could not understand; and that he might well not be able to follow the charges that he would face. In those circumstances, if Senator Pinochet was unfit to stand trial, the Home Secretary was absolutely right to take the decision that the trial should not take place.
Lord Bassam of Brighton: My Lords, I am grateful to my noble friend for his contribution. He put his

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finger very expertly on all of the issues raised by this case. The Home Secretary, quite properly, dealt with this as a judicial matter. He considered the case on its merits at every stage; indeed, he was very mindful to do so and took careful cognisance of all the legal advice that he received. Yes, when confronted with the medical facts regarding Senator Pinochet's condition, the Home Secretary, again, considered them most properly and thoroughly. When someone is unfit to stand trial medically, physically and intellectually, such considerations must, quite rightly, be taken into account. I believe that the Home Secretary acted entirely properly in taking his decision today.
Lord Lamont of Lerwick: My Lords, as someone who has been critical of the Government on this matter, perhaps I may acknowledge that there were very serious abuses of human rights under the military government, as, indeed, I have always acknowledged. However, would not today's Statement have been more honest if it had acknowledged that the proceedings in this country have been strongly opposed from the very beginning by the democratically-elected government of Chile, consisting of General Pinochet's opponents?
How can it be that the Spanish Government—of all governments—who have never put a single person on trial after the abuses of the Franco years, think that they can sit in judgment on the internal political settlement in Chile? How can a British Government, who have let out of gaol hundreds of torturers, bombers and murderers (people who belong to an organisation that has killed a higher proportion of the population of Ulster than has ever been alleged against the army of Chile) and allowed a former terrorist into the government of Northern Ireland, assume the right to interfere and over-rule the judgment of the elected government of Chile? Was not the interference simply what President Frei of Chile called it; namely, "judicial colonialism"?
Lord Bassam of Brighton: My Lords, I totally reject the noble Lord's last comment and observation. Frankly, I believe that to be utter nonsense. We have to abide by the processes of international law when considering extradition cases. That is only right and proper. The rule of law is the rule of law, and we should stick by it. I believe that to be a fundamental and important building block of our British constitution. I am sure that all other Members of your Lordships' House share that view.
Baroness Williams of Crosby: My Lords, we on these Benches strongly support what the Minister has just said. The Home Secretary is endeavouring to uphold a system of international law, which is under constant attack. We have made it plain from all sides of the House that his behaviour was both courageous and steadfast. However, Chile will now be receiving not a returned hero but a dictator whose poor health has meant that he has escaped the proper processes of justice.
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Can the Minister tell us whether we can expect a reasonably early ratification of the International Criminal Court, to which my noble friend referred? In the desperate attempt by the world to establish a legal system that will be recognised beyond borders, the ICC is the long step towards establishing such a system of law. By ratification, this Government's support for it at this stage would be an extremely important step to take.
Lord Bassam of Brighton: My Lords, the noble Baroness always speaks with great wisdom on these matters. It is worth reminding ourselves that the United Kingdom Government have fully supported the establishment of an international criminal court. The publication of a Bill in this Session to implement the Rome statute was announced in the Queen's Speech. The Foreign Secretary is deeply committed to continuing to push for an effective international criminal court. We see the establishment of that court and conforming with the practices, processes and procedures of international law and the requirements that it places upon us as an important part of our international obligations. I am happy to confirm our position on that matter. I very much welcome the noble Baroness's other comments.
Lord Borrie: My Lords, I wish to take a stage further the question that was first put by the noble Lord, Lord McNally. After the Home Secretary made the decision that Pinochet should be extradited, why did he keep to himself—he will, of course, have received medical advice on the matter—the issue of whether or not he was fit to stand trial? Procedures, trials and forms of trial arc different in different countries. I do not claim to be an expert on Spanish criminal procedures. In Spain counsel may take a prominent part in the procedures, but the accused may take part to a far lesser extent than is the case in this country. A great deal of the defence may be conducted by defence counsel, although the accused will, of course, discuss matters with them in private. Surely one may be considered fit to stand trial in Spain, whereas one may not necessarily be considered fit to stand trial in the UK. Did the Home Secretary take adequate advice from Spanish lawyers and others as to whether fitness to stand trial in Spain was considered, rather than just general advice as though trials and procedures are the same everywhere?
Lord Bassam of Brighton: My Lords, I am grateful for the noble Lord's question. The Home Secretary has to make a judgment based on the medical evidence in front of him. He quite properly took the view that the mode of trial in Spain that was proposed was similar to our procedure. The medical evidence was an important consideration. There had to be an equality of understanding in both jurisdictions. Given the medical condition of Senator Pinochet, he was no better qualified to stand trial in Spain than in our own jurisdiction. Having taken those considerations into account, the Home Secretary reached his conclusion. If Senator Pinochet could not achieve a coherent understanding of the legal procedures and processes in

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Spain, he could not achieve such a coherent understanding in this country where the same requirement applies. The important considerations are his fitness to stand trial, his ability to follow and understand proceedings, to reflect on them, and to give instructions to lawyers in any jurisdiction.
Viscount Cranborne: My Lords, I hope that the noble Lord can help me. Am I right in understanding from the Home Secretary's Statement, which the noble Lord so kindly repeated, that the application of the universal principle that no transgressor of human rights would be safe if he or she travelled to this country goes a little wider than someone merely being trapped by an extradition order? If I am right in understanding that to be the burden of what was implied by the noble Lord's right honourable friend, would it not be helpful—perhaps the noble and learned Lord the Attorney-General might be able to assist us here—for the Government to make some kind of statement in this House in order that we should understand how the Government will apply this fine-sounding new principle? Do they intend to be selective in applying it and, if so, what rules will they apply if the matter goes wider than merely extradition? If the Government do not intend to be selective in applying the principle, how will they deal with the political consequences of not being selective?
Lord Bassam of Brighton: My Lords, the noble Viscount asks some interesting questions that require deeper consideration than we can give to them this afternoon. The question of how one addresses human rights abuses committed by heads of state in other jurisdictions who subsequently visit this country is an interesting one. Obviously, it is a matter to which we shall have to give further and clearer thought. I am sure that we would have to consider individual cases on a case-by-case basis and consider whether or not the individuals concerned have immunity. Those are important considerations. As regards the establishment of general rules in these matters, we shall have to give further thought to that. I have already made it clear that the Home Secretary will undertake a review of the Extradiction Act. That may have some bearing on these matters.
Lord Avebury: My Lords, is the Minister aware that the decision—correct though it may have been in the end—will be a great disappointment to all those victims of the regime of General Pinochet, particularly those victims in this country who have suffered, such as Dr Sheila Cassidy, a victim of torture under Pinochet, and the relatives of Fr Michael Woodward, who died as a result of being tortured on board a naval vessel in Valparaiso harbour after Pinochet came into office? Those relatives have recently supplied the Home Secretary with important new testimony regarding that case which was under consideration at the time the decision was made. Is not the assurance to those people that in future no one will be immune from prosecution for such crimes the best way to assuage their grief?
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In answer to the point made by the noble Viscount, Lord Cranborne, will the Minister confirm that since we enacted Section 132 of the Criminal Justice Act 1988 a person who commits an act of torture in a foreign country, whether against a British citizen or against a citizen of any other country, is liable to the jurisdiction of our courts and will be dealt with in the future under a provision which has been made by the Home Secretary establishing a special unit in the Metropolitan Police to examine evidence which may be presented in cases of torture and which may result in prosecutions in our own courts as a result of decisions made by the CPS?
Lord Bassam of Brighton: My Lords, I am grateful for the noble Lord's questions. The noble Lord's summary of the situation is correct vis-á-vis our jurisdiction and abuses of UK nationals. The noble Lord mentioned a special unit to deal with this matter. We must take those issues carefully into consideration. I believe I have made plain that we have universal jurisdiction as regards torture. I refer to the important issue of the disappointment that some people will feel at the decision that has been announced. I fully understand and sympathise with the disappointment that many will experience as a consequence of my right honourable friend the Home Secretary's decision. However, important long-term gains have resulted from the way in which this case has unfolded and from the stand that my right honourable friend has taken. I believe that most people will welcome that in the future.
Baroness Hooper: My Lords, I too express my relief that Senator Pinochet has at last been returned to Chile. It is—and always has been, in my view—for the people of Chile to decide what should be done with him. However, looking to the future, and in view of the excellent relations we have always enjoyed with Chile, what have the Government in mind in terms of building bridges after this unfortunate incident, particularly as a new government are about to take office in Chile?
Lord Bassam of Brighton: My Lords, I am grateful to the noble Baroness for making that point. We have always tried to ensure that we have the best possible relations with the Chilean Government. That has been the case in the past and no doubt it will continue to be the case in the future. With the change in the political administration of that country we shall no doubt renew our efforts to continue those good relations, particularly in business, trade and commerce. I believe that it is important to do so. As the noble Baroness wisely said, some relief will be felt at the return of Senator Pinochet to Chile, but there will also be divided opinions, which we must recognise.
Baroness Blatch: My Lords, should it turn out eventually that human rights abuses have occurred in Chechnya, would that mean that the president or prime minister of Russia would not be welcome in this country or, if they arrived in this country, would be subject to arrest?
Lord Bassam of Brighton: My Lords, I am grateful to the noble Baroness for her question. The answer to her last point probably is that it would depend on whether they have immunity. As to whether they would face prosecution, that would be, of course, a matter for the police to consider, acting on information.
Baroness Blatch: My Lords, in repeating the Statement the Minister said that sovereign heads of state do not have immunity.
Lord Bassam of Brighton: My Lords, that is not my understanding of the Statement.

Senator Pinochet: CPS Role
4.30 p.m.
Lord Williams of Mostyn: My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my honourable and learned friend the Solicitor-General on the role of the Crown Prosecution Service in respect of Senator Pinochet.
"The Crown Prosecution Service, as prosecuting authority for England and Wales, has today advised the Metropolitan Police Service that the material provided by the Kingdom of Spain for the purposes of the extradition proceedings would not be admissible in a criminal prosecution in England and Wales and could not be put into admissible form without a full police investigation. On the material presently available to the CPS therefore, there is no realistic prospect in this jurisdiction of convicting Senator Pinochet of any criminal offence.
"The CPS has also advised the Metropolitan Police Service that, in view of the independent medical report on Senator Pinochet commissioned by the Home Secretary, and taking into account representations made to the Home Secretary concerning the report, no court in England and Wales would allow a trial of Senator Pinochet to take place, whatever the evidence.
"Following that advice the Metropolitan Police Service has decided that no purpose would be served in seeking to effect the arrest of Senator Pinochet.
"These decisions are necessary because of Article 7 of the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, which provides that if a state does not extradite, it must consider whether to prosecute the person itself.
"Accordingly, following the Home Secretary's decision today not to extradite Senator Pinochet to Spain, the Spanish extradition papers were submitted formally to the CPS as the independent prosecuting authority for England and Wales.
"The CPS in turn formally referred the papers to the Metropolitan Police Service, which is responsible for investigating offences and deciding whether to arrest or charge people.
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"In fact, the papers had previously been supplied to the CPS and the police and had been carefully studied by them, and so both the CPS and the police are in a position today to announce their decisions. But before I say more, let me set out the CPS's involvement in this case.
"First, there has been its role as agent for the Kingdom of Spain. That arose following Senator Pinochet's arrest on 16th October 1998 pursuant to a warrant issued by the fifth central magistrates court in Madrid. So, on 18th October 1998, the Crown Prosecution Service commenced acting as agent on behalf of the Kingdom of Spain in the extradition proceedings. It has continued to act for the Kingdom of Spain throughout the extradition process.
"In its role as agent for the Kingdom of Spain, the CPS has acted in accordance with the instructions of the requesting state. This is in accordance with longstanding reciprocal arrangements common between this jurisdiction and other countries. In doing so, it has been quite independent of the United Kingdom Government.
"In performing its role as agent for the Kingdom of Spain, the CPS has given confidential legal advice on the extradition proceedings and received instructions.
"I turn now to the separate, and distinct, function of the CPS in this matter, which is the main focus in this Statement—that is, as the independent prosecuting authority for England and Wales. Its involvement in this regard has arisen in two ways.
"First, in October 1998, two firms of solicitors, acting for a number of individuals, applied to the then Attorney-General for Law Officer consent to prosecute Senator Pinochet in this jurisdiction. This was for offences of torture contrary to Section 134 of the Criminal Justice Act 1988, and for offences of hostage taking contrary to the Taking of Hostages Act 1982. The papers in one of those applications was also copied by the solicitors to the Metropolitan Police Service, which in turn sought the advice of the CPS as prosecuting authority. In these circumstances, the then Attorney-General deemed it appropriate to liaise with the CPS before reaching a final conclusion on the applications for Law Officer consent to prosecute. The Attorney-General also received advice from senior Treasury counsel. Subsequently, the Attorney-General advised the solicitors: that decisions on whether or not to grant Law Officer consent to prosecute are made by applying the tests set out in the code for Crown prosecutors; that the legislation criminalising torture and hostage-taking is not retrospective—a point later confirmed by a decision of the Appellate Committee of the House of Lords; and that the material submitted in support of the applications contained insufficient admissible evidence against Senator Pinochet to justify the granting of Law Officer consent to prosecute for either offence.
"Consent to prosecute was, accordingly, refused.

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"I should add here that a third firm of solicitors, acting for a number of Chileans, applied last week for my consent to prosecute Senator Pinochet for offences of torture. That application has been carefully considered and the advice of counsel obtained. Again, the code for Crown prosecutors was applied to the decision-making process. The first requirement of the code is that there should be sufficient admissible evidence for there to be a realistic prospect of conviction before a prosecution may follow. The application contained no evidence of a kind admissible in this jurisdiction and I accordingly declined to grant my consent.
"The second function of the Crown Prosecution Service, as prosecuting authority, has been to consider the case for a prosecution of Senator Pinochet in this jurisdiction under Article 7 of the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. I have already outlined that provision.
"The CPS and police recognised that Article 7 might come into operation in respect of the Spanish extradition papers. Therefore, in March and April 1999, to prepare for that contingency, the CPS obtained copies of all the relevant Spanish extradition papers. That was in its capacity as the prosecuting authority for England and Wales. The Metropolitan Police Service, as investigating authority, was also supplied with a copy of those papers. All this was done with the agreement of the Kingdom of Spain and the Home Office.
"The Spanish extradition papers were allocated to separate lawyers in the CPS from those acting for the Kingdom of Spain. The CPS's provisional conclusion was that the material provided by the Kingdom of Spain for the purposes of the extradition proceedings would not be admissible in a criminal prosecution in England and Wales; and that the material could not be made admissible without a full police investigation. The CPS advised the police along these lines. Whether or not the Metropolitan Police Service institutes a full investigation in this or any other case is a matter for it to decide.
"It may help the House to understand the CPS's provisional conclusion if I explain that in European extradition proceedings it is not necessary to bring evidence before a court to show that a person has committed the offences of which he or she is accused. All that is necessary is that the court here must be satisfied that the allegations amount to an extradition crime and that the formal request complies with the requirements of the Extradition Act 1989 and the European Convention on Extradition 1959. This explains why the CPS has come to its provisional conclusion that, in the absence of a full investigation by the police, there is no admissible evidence for the purpose of a prosecution here.
"In addition to this evidential consideration, the CPS, again in its role as independent prosecuting authority, received a copy of the medical report
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prepared by the independent experts commissioned by the Home Secretary. This was in January this year and with the consent of Senator Pinochet. The CPS has also seen the representations made to the Home Secretary concerning that report. The report and subsequent advice makes it clear that Senator Pinochet's ill health is now such that he would not be able to defend himself properly in any criminal prosecution brought in this country. The CPS's provisional conclusion in the light of this material was that no court in England and Wales would allow a trial of Senator Pinochet to take place because of his ill health, whatever the evidence. Again, the CPS advised the police of this.
"In reaching its provisional conclusions, the CPS consulted me. I agreed with them, after myself taking the best independent legal advice available.
"I should add here that my noble and learned friend the Attorney-General has not involved himself as Law Officer in this case. He and I agreed that his previous patronage of Redress, from which he resigned on taking ministerial office in May 1997, meant that it would be more appropriate if I handled the case. The solicitors acting for Senator Pinochet were advised of this in September last year.
"Following today's formal submission of the Spanish extradition papers to the CPS under Article 7(1), the CPS has confirmed its provisional conclusions: first, the material in the possession of the CPS would not be admissible in any criminal prosecution in England and Wales and it could not provide a realistic prospect of conviction; secondly, an investigation, for which the police are responsible, would be required to gather evidence admissible in this jurisdiction; and, thirdly, whatever evidence might be available, no court in England and Wales would allow a trial of Senator Pinochet to take place in view of his ill health. I agree with these conclusions.
"Accordingly the CPS has not applied for Law Officer consent to prosecute Senator Pinochet for torture in respect of the Spanish extradition material. The Metropolitan Police Service and Senator Pinochet's lawyers have been advised of the CPS's conclusions. The Metropolitan Police Service, which has taken its own legal advice, has decided not to arrest Senator Pinochet.
"The House will also be aware that on 11th and 13th November and 15th December 1998, my right honourable friend the Home Secretary received requests for the extradition of Senator Pinochet from the Confederation of Switzerland, the Republic of France and the Kingdom of Belgium. Further requests were received from the Republic of France on 4th February 1999 and from the Kingdom of Belgium on 12th October 1999.
"On 9th December 1998 the Home Secretary decided not to issue an authority to proceed with regard to the requests from France and Switzerland. On 27th January 1999 the Home Secretary decided not to issue an authority to proceed with regard to the request from the Kingdom of Belgium. On

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22nd February 1999 and 19th November 1999 respectively the Home Secretary decided not to issue an authority to proceed in respect of the second French and second Belgian requests.
"Following the Home Secretary's decisions, the extradition papers were submitted to the Crown Prosecution Service as the prosecuting authority for England and Wales in accordance with Article 7(1) of the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. The CPS in turn referred the papers to the Metropolitan Police Service to enable the investigating authorities to consider them. The CPS also advised the police that the allegations contained in the Swiss, both French and both Belgian requests did not disclose offences which could be tried here since the conduct alleged in each of the requests occurred before the relevant legislation came into force.
"Accordingly the CPS will not apply for Law Officer consent to prosecute Senator Pinochet for torture in respect of the Swiss, French and Belgium extradition material.
"In performing its role under Article 7 of the convention in respect of the Swiss, French and Belgian material, the CPS has also taken into account the medical report commissioned by the Home Secretary and the representations made to the Home Secretary concerning Senator Pinochet's medical condition. The CPS has concluded that no court in England and Wales would permit a trial of Senator Pinochet to take place in these circumstances, whatever the evidence. The CPS has consulted me about these matters and I agree with the CPS conclusions".
My Lords, that concludes the Statement.
4.43 p.m.
Lord Cope of Berkeley: My Lords, I warmly thank the noble and learned Lord the Attorney-General for repeating the Statement and for being willing to take questions on it, particularly in view of the fact that he had debarred himself, as it were, from the consideration for reasons which we understand entirely and accept.
I am a layman in legal matters, although I am not without helpful advice. I think that advice from A P Herbert would have been valuable in this case. As I understand from the Statement, at no time have the Crown Prosecution Service, the Metropolitan Police or the Solicitor-General considered that the material provided by the Kingdom of Spain for the purposes of the extradition proceedings would be admissible in a criminal prosecution in England and Wales, and that the material stood no prospect of convicting Senator Pinochet of any crime in the English courts. It would be helpful to know from the noble and learned Lord—because it was not revealed in the Statement—when the CPS first reached the view that no prosecution could succeed and why these proceedings could not have been brought to a conclusion at that point. On the assessment by the CPS of the evidence and the other
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material available, if the action was bound to fail then it should have been brought to a conclusion at that stage.
I realise that the CPS was acting as agent for the Kingdom of Spain in large part. After all, a lawyer owes it to his client not to proceed if, in his judgment, his case cannot succeed. He should not accept instructions to persist in something that is bound to fail.
I understand that no evidence is required to succeed in extradition proceedings alone—only allegations and the fact that the charges are covered by the relevant legislation. I should like to ask how it could ever be possible in an extradition case, where no evidence of that kind is produced, to prosecute within the United Kingdom.
I should like to ask about the legal costs of the whole affair. As I understand it, the costs total several million pounds. I am not clear how much of that will fall on the British taxpayer. Has the CPS been paid, or will it be paid, by the Kingdom of Spain for the work that it did in the role of agent?
This whole matter, from the legal point of view as well as in terms of the political and other considerations, will clearly be the subject of much further study by many people. Do the Government intend to publish in some form a full account of the affair? The Government have given quite a lot of information today. It would be helpful if a full, authorised account from the point of view of the Government could be set out, if only as a preliminary to the consideration of extradition law which is to take place. I would welcome such an account in the light of all the complexities of this particular case.
4.49 p.m.
Lord Thomas of Gresford: My Lords, I thank the noble and learned Lord the Attorney-General for repeating the Statement. I express my own relief that the Crown Prosecution Service has clearly acted professionally and properly in this matter and kept separate its functions as agent of Spain, on the one hand, and in its own capacity on the other.
While welcoming the Statement, there are certain lessons to be learnt. I am glad that there is to be a fresh look at extradition law. I wish to make three points. First, in cases of universal jurisdiction such as conspiracy to torture, as this one was, surely, until there is the establishment of the international criminal court, the United Kingdom should either accept the responsibility itself of prosecuting people who have committed these crimes—as I suggested to the House in July 1999 when last we debated this matter—or, alternatively, should refuse requests for extradition to jurisdictions with no greater claim than our own. I found it unedifying that countries should queue up to make extradition requests in this way.
Secondly, the Statement says that there was no admissible evidence for prosecution in this country. What exactly does that mean? The allegations were not bare allegations. They could not have succeeded, as they did succeed before the metropolitan magistrate,

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unless there was a statement of facts that demonstrated that an extradition crime had been committed. Those facts could readily have been turned into admissible evidence for the courts of this country with not a great deal of investigation by the Metropolitan Police. Was it the fact that the allegations were simply hearsay—simply second-hand evidence—or were there not, as I am sure there must have been, witnesses to these facts who were identified and who could have given first-hand evidence in the courts if an investigation had been carried out to turn their evidence into a form which is acceptable in every court in this country? Could that evidence have been obtained easily? Did the Crown Prosecution Service ever ask the police to investigate along those lines?
My third point relates to the medical issues. If this case demonstrates anything, it demonstrates that there should be transparency on medical issues. Senator Pinochet is certainly not unfit to travel, having regard to the way in which he left this jurisdiction within a matter of minutes of the decision being announced. If there was an approach by his advisers in October last year, as the noble Lord, Lord Bassam of Brighton, said, why was an undertaking ever given by the Home Secretary that the results of that medical examination, which the senator requested, would not be published? That would not happen in the ordinary courts of this country because, where there is an issue of fitness to plead that is in any way controversial, it is not decided by a Minister; it is decided by a jury which is sworn to try the particular issue as to whether a person is fit to plead. The medical evidence can be examined, looked at and published for all to understand it. It is only in circumstances where there is clearly a medical problem—I recall only one such case where a person was about to die—that the Attorney-General can issue a nolle prosequi, which puts an end to the proceedings. Surely the lesson of this is transparency on medical issues.
4.52 p.m.
Lord Williams of Mostyn: My Lords, perhaps I may explain some of the apparent confusions which have arisen. There are a number of distinct areas which need to be considered separately. The first is the matter with which Mr Straw, as Home Secretary, had to deal; and that is in the context of the Extradition Act 1989, which was brought in by the previous government. As the noble Lord, Lord Cope, rightly observed, what is required for the purposes of court proceedings in this country is relatively limited; that is to say, there has to be the assertion of the fact that a relevant offence has been committed together with an adherence to the appropriate formal procedures. That having been done, the magistrate himself has very little discretion, if any, in the context of the Extradition Act 1989.
There has been a good deal of misapprehension, partly arising out of the long, drawn-out proceedings which were carried out on an entirely different basis altogether; namely, the issues ultimately decided by the Appellate Committee of your Lordships' House as to whether or not state immunity or any similar legal
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concept could apply to Senator Pinochet in the circumstances of the present case. It is well known to your Lordships that the Appellate Committee on the second occasion came to the conclusion that Senator Pinochet indeed had no continuing immunity in certain circumstances. That is one set of legal circumstances with which the Home Secretary has to deal. That has nothing at all to do with whether there is admissible evidence under the rules of evidence and the rules of justice in this country as to whether Senator Pinochet might be tried here.
The important matter is this. By virtue of Article 7(1) of the convention, if the requested state—the United Kingdom in this instance—does not extradite, there is an automatic obligation on the national authorities to consider the prosecution internally within this jurisdiction. So it is not a question of "Does the CPS want to pay any attention?" or "Do the Metropolitan Police want to inquire?" There is an obligation on the United Kingdom, by virtue of Article 7(1) of the convention, to consider these matters. That is exactly the point of the letter that was sent from my office to Senator Pinochet's solicitors on 1st September last year, pointing out that I would disqualify myself from any consideration relating to this matter because I had previously been patron of Redress, an organisation which tries to help people who have been tortured by state engines of oppression. I decided to disqualify myself. But in that letter we pointed out to Senator Pinochet's solicitors—I think rightly and I hope your Lordships will think fairly—that if there were to be a non-extradition, the Article 7(1) obligations would still apply. My office took the view—I have no doubt rightly—that it would not be fair to anyone for there to be a decision against extradition and then for the Article 7 position, perhaps if his lawyers had not considered it—I did not know whether they had or they had not—to be sprung upon them.
No admissible evidence in the context of our country's jurisdiction is required for the extradition proceedings. Your Lordships may have views as to whether that is right or wrong. I repeat: the provision was brought in by the previous government. As the Home Secretary said in the Statement read out by my noble friend Lord Bassam, it is 10 years ago now and it needs to be looked at for all kinds of reasons. The Home Secretary is setting up that review.
As I said when repeating the Statement made by my honourable and learned friend the Solicitor-General, the Metropolitan Police Service makes its own decision about whether to investigate. It does not go on the basis of any instruction from the CPS. The facts were these. Of the material available, from whatever source, there was nothing that was available and admissible in this jurisdiction which could lead to the sensible prospect of a successful prosecution. The code for Crown prosecutors has a two-fold test. First, is there a realistic prospect of conviction? Secondly, are there public interest considerations which militate against a prosecution? There was no admissible evidence which could have formed the basis of a realistic prospect of conviction in this jurisdiction.

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The public interest matter did not therefore arise. But since the CPS knew the conclusion of the medical team, which was referred to in some detail by noble friend Lord Bassam, it rightly came to the view that no court in England and Wales would allow a trial to continue.
There are a number of circumstances in which a prosecution can be halted. I have the right to enter a nolle if I want to. A jury can be empanelled, as the noble Lord, Lord Thomas of Gresford, said. Frequently these days, as your Lordships will know, applications are made to judges to stop cases on the basis of abuse of process because of the nature of the defendant's ill health. So it is not simply a jury decision. The judge can decide; I can decide; or a jury can decide.
Questions were raised about the CPS and whether or not a lawyer has a duty not to follow instructions which, to the lawyer in his professional, ethical capacity, appear inappropriate. That is not the situation. The CPS acted, as the CPS always does and has done for a number of years, as the agent for a foreign government; in this case, the Kingdom of Spain. The lawyers who dealt with the other issues were completely separate and distinct. They were not acting for any client; they were discharging their public duty as part of a statutory body set up within this jurisdiction.
I was asked whether a full account could be given. An extremely full Written Answer—I appreciate that your Lordships may not have had the opportunity to see it—has been lodged. It bears some study. A good deal of the chronology is well known. All I can say is this. We must all ask ourselves, if we have anything to do with the administration of justice: did we discharge our duties properly? I have no doubt at all that my colleague the Solicitor-General and the Director of Public Prosecutions in charge of the Crown Prosecution Service behaved immaculately and discharged their legal duties without fear or favour.
The noble Lord, Lord Cope, asked about costs. I am not in a position to give the final figure. Not all the bills have been received. The best information I had earlier was that £600,000 had been run up. I do not pretend for a moment that that is a definitive figure. If one wants a goal as valuable as the rule of law applied internationally, it is sometimes necessary to pay.
5 p.m.
Lord Waddington: My Lords, does the noble and learned Lord agree that, after this unfortunate history—which, to put it at its lowest, has not exactly improved relations between this country and Chile—it is important to see whether we can learn some practical lessons? If, in the future, it comes to the knowledge of the Government, through diplomatic channels, for instance, or as a result of a request for VIP treatment, that a politician from a country where human rights abuses are known to have occurred, such as China or Russia, is about to enter this country, will the Government first inquire of the CPS and others whether an arrest warrant is a serious risk? If there is
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such a risk, will they advise the person not to come? Or will the Government welcome the person into the country and then have him arrested? It is an important question.
Lord Williams of Mostyn: My Lords, of course it is an important question. It is an important political question. I must stress to your Lordships that I do not act politically in this arena—nor should I; nor have any of my predecessors. I act as an independent legal officer. I make no decisions of the sort queried by the noble Lord. He wondered whether or not the Foreign Office or the Home Office might tip off someone coming into this country. But that would seem to be the very kind of collusion that he and the noble Lord, Lord Cope, deprecated earlier. I stress that my work is confined to the legal role which is placed by statute on the Attorney-General. I have nothing to do with whether or not people are tipped off, nor indeed whether people are arrested.
The noble Lord, Lord Waddington, used the phrase, "the unfortunate history". I do not think that history will regard this matter as unfortunate. I think the verdict of history will be that Jack Straw behaved immaculately well, and that although the legal proceedings were lengthy, they upheld something that matters: that, however powerful you are, and to whatever elevated status you have aspired, if you commit monstrous crimes the law will not be silent.
Lord Alton of Liverpool: My Lords, surely the noble and learned Lord will accept that, notwithstanding the impeccable credentials of the Attorney-General and the integrity of the Home Secretary, the sight of General Pinochet returning to Chile today will not send a message that dictators will be brought to trial and will find no corner in which to hide. Does he agree that, since 1948 and the creation of the convention on genocide and torture, the practical problem has been that no individual country has been properly able to police these kinds of cases, and that this saga has again demonstrated our impotence when it comes to dealing with such matters? Will the noble and learned Lord therefore reflect for a moment on the need to create an international court that will deal with these matters and on the failure so far, not least of the American administration, to ratify the creation of an international court? Where do Her Majesty's Government now stand in that process?
Lord Williams of Mostyn: My Lords, I agree with the spirit of the noble Lord's remarks, as I so often do; however, I do not agree with his conclusion. I believe that those who, it is alleged, were monstrously treated, had their relatives taken away from them—or, in that agreeable phrase, whose relatives were disappeared—ought to have some comfort. They will have immediate disappointment—of course they will—and there is no solace I can offer them, except from the proposition, I repeat, that; however mighty you are, in the end the law will not remain silent. That is of no immediate consolation. I recognise that, I hope with a decent humility.

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International law is developing very quickly in this area. My noble friend Lord Bassam pointed out that in the Queen's Speech we gave our undertaking to become a full party in the International Criminal Court. I do not think that anyone who has heard Robin Cook speak on this matter doubts his commitment. At present, there is a tribunal sitting in respect of allegations of atrocities in Rwanda, with convictions having been obtained. There is a tribunal on atrocities sitting in the former republic of Yugoslavia, with convictions having been obtained. Sanctions are available in the international criminal justice system. We have legal duties that do not depend on the politics of the moment. I know that the noble Lord will agree. I mentioned Article 7. Under those duties, if extradition fails, we have to consider prosecution. Assertion and allegation, statement of facts, are not the same as admissible evidence.
Perhaps I may bring one final point into the equation. If the rule of law matters, even disagreeable people, even guilty people, are entitled to benefit from it. It is possible that Senator Pinochet was guilty of these offences; he has not been tried. It is possible that he is not guilty of these offences, he has not been tried. But guilty or not guilty, if he is not fit to stand trial it is abusive of the legal process to make him stand trial.
Lord Lamont of Lerwick: My Lords, perhaps I may ask the noble and learned Lord the Attorney-General about the role of the CPS as agent for the Kingdom of Spain. Does he agree that it is important that the CPS acts only as the agent of the Kingdom of Spain and is not proactive as a prosecution authority? In that context, can the noble and learned Lord explain why the CPS did not confine itself simply to meeting representatives of Judge Garzon, but held meetings with Joan Garces, the political secretary of Salvador Allende? Why was that necessary?
Lord Williams of Mostyn: My Lords, I do not know. As I said, I disqualified myself even from looking at any papers. I may be the only person in this House who has not read the medical reports on Senator Pinochet because, however they might have come to me, I thought that it was not right to involve myself in them, having given the undertaking that I did to Senator Pinochet's solicitors.
I believe that the CPS acted rightly within its remit as agent for the Kingdom of Spain. That is a longstanding and well-known arrangement between sovereign jurisdictions and the CPS here. When it acts as a proactive prosecution authority—a phrase that has been used by the noble Lord, Lord Lamont—that is in a separate category, and I assure the House that wholly different lawyers dealt with those matters.
Lord Lamont of Lerwick: My Lords, will the noble and learned Lord ensure that I receive an answer to my question?
Lord Williams of Mostyn: My Lords, of course; I can certainly ask my colleague the Solicitor-General, who
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had more knowledge of this matter on a day-to-day basis. If he does not know the answer—I do not know whether the noble Lord's suggestion is factually right—I shall make sure that I obtain the answer. I shall provide it to the noble Lord as soon as may be and will place a copy in the Library.
Lord Richard: My Lords, will my noble and learned friend confirm one point? Is it the case that, in relation to extradition proceedings, the evidence that it is necessary to produce for the purpose of those proceedings does not have to be admissible evidence in the sense that we would use the term if, say, a defendant were standing trial here? As I understand the position, there was not sufficient evidence available to the CPS for anyone to be tried here; however, there was sufficient for the purpose of the extradition proceedings. In that respect, therefore, the CPS behaved perfectly properly.
Lord Williams of Mostyn: My noble friend is absolutely right. I do not think that any court that has examined this matter has come to a contrary conclusion. It was found that the extradition proceedings were correct; that there was no appropriate or relevant immunity for Senator Pinochet. Therefore, the whole conduct following the arrest has been upheld by the courts in our jurisdiction. However, my noble friend is quite right. That does not necessarily make the background material admissible, bearing in mind the rules of evidence that we have in our system.
Lord Simon of Glaisdale: My Lords, as one who presumes to think that both Law Officers and the Crown Prosecution Service acted with propriety in this case, arising out of a point made by the noble Lord, Lord Lamont, can consideration be given to the dual role of the CPS which may give rise to misunderstanding; namely, as agents for a foreign government and its traditional function as a prosecuting authority in this country?
Lord Williams of Mostyn: My Lords, your Lordships will be aware that I always pay very careful attention to the observations of the noble and learned Lord. His suggestion may be an avenue usefully to be followed. Substitute arrangements would have to be made. The present arrangements are well known, but that does not necessarily mean that they are perfect in every respect. I shall certainly give thought to the suggestion, even if the conclusion is that the arrangements work perfectly well at the moment. There is a possibility of confusion, which was why earlier I took a moment or two to explain the difference between the nature of extradition proceedings and successful criminal prosecutions in this country.
The Earl of Onslow: My Lords, I should like to put two questions which I preface with a comment. It seems to me that the result is: phew! We are off the hook. Senator Pinochet has now gone home and we do not have to offend more people than is absolutely

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necessary. First, will the noble and learned Lord answer the very apposite question put by my noble friend Lord Cope? At what stage was it realised that Senator Pinochet should not be tried? It seems to me from the response of the noble and learned Lord that that realisation was a good deal earlier than the day before yesterday. If so, the man should have been let go a lot earlier than this morning. Secondly, allegations have been made that the original warrant issued by the Spanish court was faulty. If the CPS acted only as agent, was it under a duty to point out to the foreign court that its process was wrong or merely to act on the evidence presented to it? If it is to give legal advice to foreign governments, that is very different from acting as agent.
Lord Williams of Mostyn: My Lords, the noble Earl confuses two issues which I tried to keep separate. He asked—almost rhetorically—whether, if it had been decided a long time ago that Senator Pinochet could not be tried, he should have been discharged a long time ago. That is the confusion which I sought to illuminate earlier. When the material went to the Metropolitan Police on the date specified in the Statement the intention was to discover whether there was any admissible evidence for the purposes of a possible prosecution in this country. We have the jurisdiction and the obligation to consider a prosecution under Article 7(1) of the convention. That is one set of factual circumstances. That has nothing whatever to do with whether or not Senator Pinochet is fit to stand trial in Spain. They are completely separate matters. The disqualification for trial in Spain is the nature of the concluded medical evidence, whereas the disqualification for trial in this jurisdiction is that there is insufficient admissible evidence for a prosecution to be properly mounted. Those are wholly separate and distinct circumstances.
The question of whether when one is the lawyer or agent of a client one simply acts on the evidence is not really in point. If there is faulty documentation, then it is the duty of the lawyer to point out to the person whom he represents that it is faulty. But, if there were a faulty warrant, it would have been perfectly open to the lawyers representing Senator Pinochet (of whom there were many), in whose hands many days and weeks of court time were spent, to take that point. If they did take that point, it does not seem to have succeeded.
Lord Tebbit: My Lords, I thank the noble and learned Lord for the lucidity and care with which he has answered the questions put to him. We can all understand why he was so successful in persuading juries. I should like to put a question to which the noble and learned Lord may want to give overnight consideration before he replies. In the light of all that he has said about the need to ensure that those who commit such vile crimes as torture and murder and cause people to disappear should not escape the law, is he now entirely comfortable with the legislation, which he helped to take through this House, which enables
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those who tortured and caused to disappear United Kingdom citizens in Northern Ireland to be protected from prosecution?
Lord Williams of Mostyn: My Lords, I do not believe that anyone who was present on the occasions to which the noble Lord refers would have gone away happy. They would have gone away having tried as best they might to reconcile the almost irreconcilable. Let us remember that the legislation was voted through, not by executive fiat or on the basis, "We are powerful and above the law", but by two Chambers of a free Parliament, which I believe makes a very significant moral and political difference. But I join with the observations of the noble Lord. I was not happy about it. There are many things about compromises, legal or political, with which neither he nor I feel entirely content. However, sometimes we have to bite the bullet—the noble Lord has much more experience than I—and go for the best rather than the perfect solution.
Lord Monson: My Lords, can the noble and learned Lord tell the House whether the Government will consider compiling and publishing a list of all the countries where torture has been officially sanctioned at one time or another during the past 50 years? Such a list would be quite a long one. In this way one would be able to judge whether double standards are being applied by the international community.
Lord Williams of Mostyn: My Lords, I am not sure what practical validity would derive from that. The sub-text to the question of the noble Lord is that the rogue countries are perfectly well known. One should try to devise a system of justice that works rather than—I hope that he does not find my adjective disagreeable a—cosmetic list. The fact is that these were grave crimes and whoever was guilty of them caused monstrous, wicked offence not only to living human beings, who then had their lives taken from them, but to their relatives. To appreciate that one has only to go occasionally to South America, as I did before the election of the previous government when in power, to talk to people whose lives are utterly bereft and whose faces are blank because they simply do not know what happened to their 16 year-old son or brother 30 years ago.
Lord Monson: My Lords, I did not suggest that my list should be "cosmetic" but a complete one.
Lord Williams of Mostyn: My Lords, one can produce lists for all kinds of purposes. I am wondering whether the moral seriousness of what we are now discussing is really attended to by the production of a list which everyone knows about anyway.
The Earl of Onslow: My Lords, I apologise to the House for rising to my feet again, although we still have three minutes. It appears from what the noble and learned Lord said that we shall prosecute the vile who have no power but not the vile who have power.

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We welcomed to this country the President of China, who is not exactly a parish councillor from Scunthorpe. We also have as part of the establishment Martin McGuinness and Mr Adams, who are up to their elbows in blood, because it is convenient to us. As a Conservative, I have no difficulty with that because there are times when the ends justify the means. But it is slightly sickening that somebody who has no power is prosecuted for these horrible crimes. I totally agree with the noble and learned Lord's description of these crimes. It is unattractive that we prosecute the "weak vile" but not the "strong vile".
Lord Williams of Mostyn: My Lords, I do not put Senator Pinochet in the category of the "weak vile". According to the medical evidence which the Home Secretary looked at and accepted on the basis that it was independent material, he is now weak. But he was not weak when he came here; nor was he weak in the years of his power and his glory. I do not know of any admissible evidence against either Mr McGuinness or Mr Adams—
The Earl of Onslow: My Lords—
Lord Williams of Mostyn: My Lords, if the noble Earl has some, I expect that he will discharge his duty by providing it to the relevant authorities. I repeat: I know of no admissible evidence against either of the two men he identified sufficient to justify a charge of murder, if that is what he is alleging.
The Earl of Onslow: My Lords, perhaps I may ask the Minister to look up the instructions to the Grenadier Guards in Ulster 15 years ago: to arrest McGuinness on a charge of murder; he was their most wanted man. I assume that the authorities had some evidence for that: that they would not have done it just for a whim—"Let's lock up all ginger-headed Ulstermen".
Lord Williams of Mostyn: My Lords, the noble Earl identifies precisely the trap he should be avoiding. To arrest someone it is necessary to have reasonable grounds to suspect that he has committed an offence. Thank God in our country reasonable grounds for suspicion are not the same as proof beyond reasonable doubt.

Learning and Skills Bill [H.L.]
5.22 p.m.
Lord Bach: My Lords, on behalf of my noble friend Lady Blackstone, I beg to move the Motion standing in her name on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order:

Clause 1,

Schedule 1,

Clauses 2 to 19,

Schedule 2,

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Clauses 20 to 26,

Schedule 3,

Clauses 27 to 30,

Schedule 4,

Clauses 31 to 46,

Schedule 5,

Clauses 47 to 50,

Schedule 6,

Clauses 51 to 101,

Schedule 7,

Clauses 102 to 116,

Schedule 8,

Clause 117,

Schedule 9,

Clauses 118 to 119,

Schedule 10,

Clauses 120 to 122.—(Lord Bach.)

On Question, Motion agreed to.

Local Government Bill [H.L.]
5.23 p.m.
Lord Whitty: My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill he further considered on Report.—(Lord Whitty.)
On Question, Motion agreed to.
Clause 22 [Absence of requirement for political balance]:
[Amendment No. 45 not moved]
Clause 23 [Proposals]:
Lord Laming Lord Laming moved Amendment No. 46:
Page 4, line 30, at end insert (". and
(c) ensure they deliver both value for money and quality standards of service").
The noble Lord said: My Lords, in moving the amendment, I shall not dwell again on my concern—I have shared it with noble Lords previously about—the requirement in Clause 18(b) that 400 and more local authorities of different sizes and circumstances have to report their internal structures to the Secretary of State.
I emphasise again that my desire is simply to allow local governments to determine the structure which they judge best to produce good quality services. It is not to be interpreted, as I fear that it has been on some occasions, as a defence by me of the status quo. As the Minister will know, I have experienced both the best and the worst of local government; and I should be the last person to wish to defend the continuation of stifling and time-wasting bureaucratic committees.
My point is quite different. In this day and age we should evaluate all organisations, even your Lordships' House, not by the procedures that they employ (however fancy they may be) but on the outcomes achieved. It should be the results rather than the administrative structures employed upon which we should concentrate.
By referring again to best value evaluation system, I fear that I may be accused of being even more enthusiastic about that system than are the Government; but I am sure I am not. My concern is that the Government give to local authorities a clear message that it is the outcomes, not the structures, against which they will be evaluated. For that reason I proposed that Clause 18(b) be deleted. However, the steely response from the Minister caused me to be pragmatic. I accept that Clause 18(b) will remain. However, I have been greatly assisted by a letter which the noble Baroness kindly sent me. I am grateful and happily leave it to the Minister to decide how best these matters will be taken forward. I beg to move.
Baroness Miller of Chilthorne Domer: My Lords, we on these Benches strongly support the spirit of the noble Lord's amendment. I have not had sight of the letter he received from the Minister. However, if it gives him some encouragement, I am delighted. The Government resisted our Amendment No 11. Perhaps at this point they will consider drawing together an overall plan so that local authorities can judge whether they have the right balance of considerations—they may have too much emphasis on economic well-being at the cost of environmental well-being, and so on—which should be included in the standards of service. I look forward to seeing a copy of the letter.
Baroness Farrington of Ribbleton: My Lords, I shall endeavour not to appear steely to the noble Lord, Lord Laming. The Government strongly believe that the new forms of constitution available in Part II of the Bill will lead to more efficient, transparent and accountable local government, and that they will reinforce the best value regime in the Local Government Act 1999—I endorse the view of the noble Lord—for delivering value for money and high quality services. As the noble Baroness, Lady Miller of Chilthorne Domer said, high quality services are the ultimate test of effective and good local government.
During the Committee stage of the Bill, I undertook to consider further how we could meet the concerns of the noble Lord, Lord Laming. The noble Lord has discussed the matter briefly with me and with the noble Lord, Lord Whitty. I have written this week to the noble Lord, Lord Laming, indicating that we shall bring forward an amendment at Third Reading which I believe will meet the substance of his concerns. I hope, therefore, that the House will indulge me by considering a further amendment at Third Reading. On that basis, I hope that the noble Lord will feel able to withdraw the amendment.
Lord Laming: My Lords, I am grateful to the noble Baroness, and for her courtesy in writing to me as she did. I readily accept that the amendment in my name on the Marshalled List is in lay language which might not pass the test of a constitutional lawyer. Therefore, I happily leave it to the noble Baroness and the department to get that right. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 47 and 48 not moved.]
Clause 26 [Operation of and publicity for, executive arrangements]:
[Amendment No. 49 not moved.]
Clause 30 [Referendum following petition]:
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 50:
Page 18, line 33, after ("operate') insert ("or cease to operate").
The noble Lord said: My Lords, this amendment is tabled in order to enable local communities to have a petition and subsequently a referendum to cease to operate executive arrangements. We are back in the business of whether local communities have opinions which they are entitled to express, which have validity and worth and are appropriate in the management of affairs in their own community.
The Minister made much of figures indicating that the public at large are in favour of elected mayors. I am bound to say that in general those figures could be interpreted in that way. But one needs to be extremely careful with statistics. I am grateful to the noble Baroness, Lady Hamwee, for persuading the Minister that the statistics should be revealed. They indicate support for elected mayors, in particular from urban communities.
That could be interpreted as being representative of the total community because the majority of the population lives in urban communities. Indeed, a large proportion of the population lives in cities, as the figures show. However, we must bear in mind that the community at large does not live entirely in cities; many people live in more rural environments. It is not possible to detect from the survey whether those who believe that elected mayors are less appropriate to their community come from one particular area as opposed to another, and possibly from rural areas.
Of the earlier survey work which backs up the most recent survey, one was in the London Borough of Lewisham; the second was of 763 adults across Britain, producing a similar result; and the third was a survey of 1,000 people in five major cities. That is interesting, but as one goes further into the papers one discovers more interesting information. A survey conducted by MORI shows that 92 per cent of the population believe that councils need to consult the public more. If that is so, it must be because the public believe that they have opinions which have validity and worth and which ought to be recognised.
The purpose of my amendment is to increase the recognition of local views in particular communities. The Bill as drafted is a one-way track into a cul-de-sac. It is executive arrangements as described in the Bill or nothing—and, unless there is further primary legislation, you cannot come out once you have passed a resolution to go in.
That is not the way to deal with the management of local government. I am a great believer in local communities. I believe that they have views and that where appropriate they should be allowed to determine their own arrangements. I believe that, if not in the big cities, in many of the more rural parts of the country people should be given the opportunity to

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determine how they manage their affairs. I do not believe that the surveys which the Minister quoted on Monday in support of the general thesis necessarily support that in relation to particular communities.
For that reason, I have tabled the amendment. The provision in the Bill is not good government. It shows a remarkable lack of confidence on the part of the Government that they feel that they have to dragoon everyone into the new managerial systems. We should be quite clear that those managerial systems are not yet proven in this country. They are still highly experimental. I remember years ago, when we were being obliged by another Labour government to undertake a great social experiment, remarking to a colleague that if we were wrong we bore a dreadful responsibility.
I should prefer that that responsibility rested with the local communities so that they could make up their minds and had themselves to blame if subsequently things did not go well. It is not that I want to wash my hands of responsibility, but that I believe that other people are responsible and that where they can be responsible for their own affairs they should be. In this matter, I believe that they should have the right to choose and therefore I have tabled this amendment. I beg to move.
Baroness Hamwee: My Lords, I, too, thank the Minister for making available the survey material. I am sure that it will repay more examination than we have been able to give it during the short time we have had it. However, like the noble Lord, Lord Dixon-Smith, I was struck by the 92 per cent of people who believe that councils need to consult the public more and by the 91 per cent who believe that councils need to improve their provision of services. Those were the highest figures in response to any of the questions.
I note that the work was carried out on behalf of the new local government network. Can the Minister confirm whether the Government have undertaken any surveys and whether those he has placed in the Library are all that are available to them? During the first day of the Report stage on Monday, the Minister referred to the survey evidence that was available to the Government. I should be grateful if he could explain whether this is the extent of it.
I also noted the not insignificant number of people who responded to the question whether having the opportunity to vote for a mayor would make them more or less likely to vote. Many people stated that it would make them less likely to vote. I am still trying to work out the significance of that because there must be some.
Questions were asked about knowledge of the proposed mayor of London. Knowledge of London's new mayor was high. That is not surprising. Respondents would be aware of the fact, but certainly not of the detail. We must be careful in extrapolating from these surveys and applying the response directly to local authorities. As the noble Lord, Lord Dixon-Smith, said, there are many varieties of local authority.
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The executive arrangements which an elected mayor of a local authority will encapsulate will be very different from those of the mayor of London, who has considerable powers to influence, but few powers to act.
I thank the Minister for making the material available, but I support the thrust of what the noble Lord, Lord Dixon-Smith, said for the reasons he gave.
Lord Whitty: We debated a similar amendment in Committee and I indicated that we could not accept the proposal. It would create significant instability in the new arrangements. The noble Lord says that this is a one-way track. It is not, because the authorities can initiate a change in any system back to an alternative system.
The electorate will twice have approved the arrangements for an elected mayor: in a referendum and in the mayoral election. Therefore, that situation is different from that of a petition to move to arrangements including an elected mayor from those where there is not an elected mayor. In that situation, local people would not normally have expressed their support, through a referendum, for the arrangements in operation at the time.
The noble Lord and the noble Baroness referred to the evidence that we have placed in the Library. On Monday, I used the term "such evidence as we have available". It repeatedly shows that people favour arrangements with an elected mayor, but that the majority of councils do not.
In response to the noble Baroness, the only research undertaken by the Government was a survey of the People's Panel which gave roughly the same result as that given by the network. We do not have comprehensive material available. I would be happy to provide what we have, but I must be a little hesitant here and refer only to that evidence. However, all the evidence points in the same direction. Given the dichotomy of views between councils and local people, it is sensible, where a council does not follow the wishes of the people, that the people should be able to force through a referendum for an elected mayor.
There is, of course, the possibility that local people could petition the council for such a referendum, but afterwards it should be for the authority to decide whether to act on such a petition. It will have to judge whether public opinion is such that it would be right to hold a referendum to change from mayoral executive arrangements to different systems, despite the relatively recent approval of existing arrangements on at least two occasions.
Provided that five years had passed since the previous referendum, it would be open to an authority, be it a rural, urban, district or county authority, voluntarily to draw up proposals and hold a referendum to change from executive arrangements involving a mayor to different executive arrangements.
One other consideration as regards the detail of the noble Lord's proposal needs to be taken on board. Noble Lords will recall that, in a slightly different context in response to the Joint Committee, we have

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put in place arrangements for fall-back proposals for referendums to change to a form of constitution involving an elected mayor. Those arrangements will ensure that local people know exactly what the result of their vote will be. In other words, if they vote, "Yes", the mayoral system will be implemented, but if they vote, "No", then whatever fall-back has been stipulated will be put in place.
Under the provisions of the noble Lord's amendment, what would happen if people voted to abandon the arrangements? It is not specified in the amendment that an alternative system would have to be proposed. Would a council be able to propose any system? For example, would it be able to return to the status quo—the current committee system? I realise that this returns to an old difference between us, but I am afraid that the Government could not accept a situation where we would allow a return to the present committee-based system. If I interpret the noble Lord's amendment correctly, this could be something of a back-door method of returning to those arrangements.
For those reasons the amendment is not acceptable in principle. Because it does not specify an alternative outcome to abandoning the mayoral structure, it does not go far enough in offering a practical format on which to conduct a referendum. I therefore hope that the noble Lord will not press his amendment.
Lord Dixon-Smith: My Lords, I am grateful to the noble Baroness, Lady Hamwee, for her support. I am grateful, too, to the Minister for his reply. However, I am bound to tell him that that is as far as my gratitude can go. Regrettably, his reply was exactly what I expected and I cannot say that I find it acceptable.
Towards the end of his remarks, the noble Lord summed up the difference between us. He said that,
"the Government could not accept a situation where we would allow a return to the present committee-based system".
That committee-based structure has served this country well. We know that it works, albeit not perfectly and, as with all things, it is always capable of improvement. However, that structure is set against a system that we know nothing about; its benefits are still entirely hypothetical. It may work, but then, it may not.
I am sorry to disagree with the Minister; indeed, earlier I described the Bill as a one-way track into a cul-de-sac. But that is what the Bill will not merely invite; it will compel local government to take that route. This country is supposed to be a democracy. It is my view that in a democracy a government should be the servant of the people. The words used by the Minister appear to indicate that this Government have a rather different approach. I regret that. The Minister has tempted me to draft yet another amendment to meet some of his objections and to bring it back at Third Reading. I may well do that. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.45 p.m.
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 51:
Page 18, line 34, at end insert—
("() No referendum held under this Part shall be binding on the authority unless 25 per cent. of the registered electors have voted in the referendum.").
The noble Lord said: My Lords, in moving this amendment, I wish to speak to Amendments Nos. 54 and 55 which are grouped with it and set out in the same terms.
The amendment raises a point which we debated in Committee in a slightly different manner. What proportion of the community should participate in a referendum for that referendum to have validity and to force through a particular action? Again, we are dealing with the question of the confidence of the Government in their own proposals. If they are not prepared to put a figure on the level of participation in a referendum, one might be tempted to assume that, despite opinion polls indicating that the population are largely in favour of elected mayors, the Government are not all that confident. Indeed, when the London electorate was invited to vote on the matter it did not show a great deal of enthusiasm. Events since then are, I believe, more likely to provoke abstentions rather than votes, but that is neither here nor there.
It seems that if we are to take the route of using referendums, at the very least there ought to be a minimum participation figure for the result to be binding. What happened in Germany is an old canard; the consequences of minorities in referendums led to a dreadful cataclysm earlier in the last century. However, the price of freedom is eternal vigilance. I suggest that, despite the Minister's comments in Committee, there should be a minimum figure for participation.
The figure I have suggested would not have created any problems for either London or Wales. In the light of experience, the figure of 25 per cent is not unreasonable. I beg to move.
Lord Whitty: My Lords, although no doubt the noble Lord will think that this amendment is much more reasonable than the previous one, many of my arguments will sound familiar to him. I recognise the noble Lord's position. At first sight a figure of 25 per cent participation may not appear unreasonable. However, in this country we do not have precedents for setting any kind of threshold in elections. The one exception was that of Scotland, which I mentioned previously. The referendum in the 1970s led to a majority of those who voted supporting devolution, but the turn-out threshold was not reached. The result was a period of great anxiety and tension in Scottish politics which only recently we have begun to put right.
Any threshold can present such an outcome. We should also bear in mind that we are discussing local government. It is the hope, I believe, of all three parties that the changes to, and modernisation of, local government structures that we intend to implement will lead to higher participation and turn-outs in

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elections. But we have no guarantee of that. In many parts of the country, the situation in local government unfortunately has deteriorated in recent years. That has resulted in major changes—for example, dramatic changes of control—taking place with low levels of turn-out. In at least one relatively recent case that I can think of the turn-out was less than 10 per cent.
With that background to the turn-out for local government elections, it would seem unreasonable to impose a threshold of 25 per cent or, indeed, a threshold of any kind. If the majority who vote, and who are persuaded to vote for change, do so, it would then be unreasonable for us to say to them, "Sorry, your majority opinion is not enough because not enough of you turned out".
Baroness Miller of Chilthorne Domer: My Lords, before the Minister sits down, perhaps I may ask why the Government ask local authorities which are considering transferring their housing stock to achieve a minimum turn-out of council tenants in such elections or referendums. I believe that the rationale behind it is to ensure that that is one of the pieces of evidence on which the council has properly consulted and that it achieves a sufficient turn-out in a tenants' ballot. Why is that situation treated differently from this one?
Lord Whitty: My Lords, I believe that in those circumstances we are dealing with a contractual tenancy arrangement where a majority vote would, or could, alter the tenancy position of all the tenants who have not voted. Therefore, I believe that we are dealing with a different situation; that is, a change of structure, control or policy by a vote in local authorities. I do not believe that the referendum turn-out can be regarded as significantly different from the question of turn-out in a local election.
Regrettably, if we were to set a turn-out figure of 25 per cent in local elections, at present a goodly number of local election results would be disqualified and become null and void. I hope that the whole process will lead to turn-outs substantially above 25 per cent and, indeed, substantially above what I believe was the previously proposed threshold of 40 per cent. Nevertheless, at this point we cannot require that. Were we to do so, it could lead to political frustration and ambiguity. Therefore, I hope that we shall not pursue that course.
Lord Dixon-Smith: My Lords, the Minister rightly quotes the background to what happened in Scotland many years ago. Indeed, that is not an unreasonable argument. However, the fact that the noble Lord will not include a figure, even as low as 25 per cent of the electorate, reveals, as I said earlier, a great lack of confidence. Perhaps the public are not as smitten with the proposals as the noble Lord wishes to pretend.
Having spent a large part of my life in local government, I can assure the Minister that I have watched with at least as much distress as he might have done the performance of local electorates in local
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elections. However, the fact is that over many, many years—going back to a time long before I was involved in local government—as central government's control, guidance and funding of local government has increased, so local electorates' interest has diminished. That is a very sad fact.
However, it is also the case that the Bill does nothing to tackle that problem. Therefore, I am afraid that we shall see change being brought about and enforced on local communities in response to a very low rate of interest from the electorate. We shall probably find that electorates will continue not to be bothered greatly about what goes on in their communities unless perhaps something goes wrong. In the midst of this, among other things we are writing into the Bill procedures which, in my view, could be abused rather more easily than the present system might permit. I accept entirely that there are checks and balances. However, if things start to go wrong, perhaps then the community will begin to take an interest.
I believe that the point raised by the noble Baroness, Lady Miller of Chilthorne Domer, is entirely appropriate. That said, at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Whitty Lord Whitty moved Amendment No. 52:
Page 19, line 24, leave out ("must not exceed") and insert ("(unless such regulations otherwise provide) is to be").
The noble Lord said: My Lords, this is the point in the Bill where the Government propose a threshold. This, of course, relates to the figure concerning petitions. We have been over this ground before. I indicated during Committee stage that an amendment would be necessary to ensure that regulations enable a petition threshold to be set above or below 5 per cent. This amendment reinstates the effect from the introduction print of the Bill. I believe that it delivers more fully the commitments made in our response to the Joint Committee to keep the 5 per cent threshold under review. As I promised, it is a relatively minor amendment in textual terms.
Therefore, I hope that the House will agree that the purpose of the amendment is clear. There is quite a delicate balance to be struck between setting a threshold which is too high for local people to achieve and setting one so low that councils would be forced into referendums (at a cost to the local taxpayer) which, if defeated, would be nugatory. Therefore, we believe that 5 per cent strikes the right balance and that is the level at which we shall set the threshold. However, we also indicated that we would keep the threshold under review. The amendment enables maximum flexibility to give effect to the outcome of such a review.
The second amendment, Amendment No. 53, to which I shall refer with the leave of the House, makes a drafting change to the same subsection to ensure that the intended effect of the provision is in fact clear. I beg to move Amendment No. 52.
Baroness Hamwee: My Lords, I do not quarrel with the amendments and I understand the drafting

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difficulties that have arisen over this particular provision. I wish merely to protest—and the noble Lord has given me the opportunity to do so—against the change in language which is occurring; for example, "the introductory print of the Bill" and "the introduction version of the Bill". That is not to criticise the Minister. I have come to the fairly clear conclusion that the problems in relation to the government amendments and in knowing precisely what the Government want to say in the Bill are due to a lack of resources of parliamentary counsel and so on devoted to the Bills.
I believe that it is entirely proper and good that there should be introduction versions of Bills to go before committees or groups which may consider them as draft legislation. However, I do not believe that it is right to slide into accepting that the Government present to Parliament as their Bill a version which they then say was merely introductory and which we all know will be amended at a later stage. I hope that the Minister will not take my comments personally because certainly they are not directed personally.
Lord Whitty: My Lords, I note the point made by the noble Baroness. I believe that she is drawing rather wider implications from the use of these terms than the Government intend. However, I concur with her in some respects. I shall try to avoid using them in legislation before this House for which I am responsible. With that, I commend the amendment.
On Question, amendment agreed to.
6 p.m.
Lord Whitty Lord Whitty moved Amendment No. 53:
Page 19, line 25, leave out ("any") and insert ("each").
On Question, amendment agreed to.
Clause 31 [Power of Secretary of State to require referendum]:
[Amendment No. 54 not moved.]
Clause 32 [Power to require referendum]:
[Amendments Nos. 55 and 56 not moved.]
Clause 36 [Time of elections etc.]:
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 57:
Page 21, line 17, at end insert (", and
(e) as to the number of electors signing the nomination papers for a candidate for mayor, which shall be not less than 30").
The noble Lord said: My Lords, in a sense, this is a probing amendment but it is also an amendment which I hope that the Minister may feel able to accept.
Clause 36 is the point at which the Minister has the power by regulations to set out the way in which the mayor will be required to stand for election. It has various conditions and the whole matter is dealt with by way of regulations. But there is no provision regarding the number of electors who would be required to sign the nomination papers for people standing as candidates for the office of mayor.
That should be a significant issue. It would be worth having that provision on the face of the Bill, although I am bound to admit that I have grave doubts about my amendment because I am doubtful whether 30 signatures are sufficient. We require an ordinary candidate standing for a local authority ward to have 10 electors on his nomination paper. I used to trail round so that I could have a nomination from every parish that I represented in my county division. Some district councils are represented by single parishes as wards and again they still have 10 signatures on the nomination paper.
The mayor is to stand for the whole district or possibly even the whole of a county or city. It seems to me that perhaps a more reasonable figure might be two signatories from every ward or county council division within a council area. The terminology will vary with types of authority. But names to show that he has wide support across the area of authority would be appropriate. Therefore, it may be that the figure which I have chosen is not appropriate. But I chose that figure because there is nothing about that on the face of the Bill. We are now into the area of what is to be included in regulations. I acknowledge that. But that could be something which is on the face of the Bill and I believe that it. is sufficiently important to be there. If we include that, it indicates that the office of mayor is seen to be serious and is acknowledged by the Government that that is a matter which both candidates and electors should take very seriously indeed.
I should have no difficulty with a figure much higher than 30. But this is a probing amendment so that the Government's thinking is out into the open. I beg to move.
Baroness Hamwee: My Lords, my reaction to this amendment was as the noble Lord himself has articulated; that is, to have a higher number and perhaps a given number per ward or electoral division would be a good test. In the discussions on the mailshot to London electors, I thought that if the number of people nominating candidates for mayor were to be higher than the 10 per borough which is proposed, the Government's anxieties about providing publicity for restaurateurs and nightclub owners might have been answered because of the greater difficulty there would have been in obtaining nominations.
But it is an important test for a candidate to show that he or she has support across the area, which is, after all, the rationale for the nominations within a particular ward, if one is standing for a ward.
Baroness Farrington of Ribbleton: My Lords, the Government do not feel able to support Amendment No. 57. As we said in Committee, we have not yet reached a firm view on whether the nomination requirements for mayoral candidates should differ from those which apply to councillors generally.
We recognise that this is an important issue which affects the political process and that there may be a number of differing views about what the requirement

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should be. Therefore, we shall seek views from all interested parties on those matters before deciding how to proceed. We shall do the same in respect of expenses limits for mayoral candidates and referendum campaigns.
It is normal practice for rules for local government elections to be made by secondary legislation. The regulations which we make following the consultation exercise will be subject to the draft affirmative procedure. Therefore, noble Lords will have another opportunity to debate this issue which, as the noble Lord, Lord Dixon-Smith, said, is extremely important. It is equally important that we get it right. We believe that the consultation is important. With that assurance, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Dixon-Smith: My Lords, I am grateful for the support from the noble Baroness, Lady Hamwee. I am grateful to the Minister for her reply. Again, my gratitude stops there because there is an increasing tendency in legislation to deal with large parts of it as rules in orders. In many ways, that means that we are required to legislate on particular matters with blindfolds over our eyes or at any rate blinkers, because we can look only at what is on the paper before us.
I entirely accept the point about consultation. I am delighted to hear that the Government want to get this right. I could probably tell them now what the answer should be. If they agreed with that, we should have no difficulties at all. But I accept that it is normal practice to regulate on the detail of local elections. We must wait with bated breath.
However, I hoped that I should have flushed out the Government Front Bench and persuaded them to reveal that they have some thoughts on the matter. I have signally failed. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hamwee Baroness Hamwee moved Amendment No. 58:
After Clause 36, insert the following new clause—
COMMISSION TO REPORT ON PRIMARIES FOR MAYORAL ELECTIONS
(" . The Secretary of State shall establish a commission which shall within one year of the enactment of this Act report on the introduction of primaries for the selection of candidates for the choice of elected mayor.").
The noble Baroness said: My Lords, I am sure that the Government will have thoughts on this matter. The amendment proposes a new clause requiring the Secretary of State to establish a commission to report on the introduction of primaries for the selection of candidates for the position of elected mayor.
We are debating this Bill and elected mayors for local authorities in cities and other areas throughout the country at a time when the term used for the selection for candidates for the mayor of London is very often "a shambles".
The electoral college which Labour established has sadly—and I am sad about this—left an indelible impression that Labour's selection has been fixed. Sadly, speaking for my own party, it is not newsworthy to select a candidate by one-member, one-vote, by single transferable vote. We undertook the selection in a calm and ordered fashion. But, as I say, that is not a news story.
I believe that the shenanigans have done lasting, long-term harm and the mayors of other cities must not start under the same shadow. The shenanigans have also harmed politics and, in my view, the democratic process. The Government can protest—and they do—about that but quite honestly, the public know a fix when they see it. It is likely—I believe that we shall see it on 4th May—that voters, particularly the party's own members, will express their concern about the process through the way in which they vote, irrespective of who stands.
Until the past few weeks, I should not have advocated anything other than each political party choosing its own candidate in the way in which it sees best. However, in the context of debates about the Bill where we have used the terms "transparency" and "accountability" a great deal, I have been left wondering whether in fact we are going to provide for elected mayors who, on the basis of current experience, will be accountable to the party machine before their local electors.
The primary system in the United States is widely used. I am not suggesting, of course, that one should translate American methods to this country without careful consideration. We are different cultures, but we are both democracies. I understand that the primary system came about when the previous convention system.
"succumbed to public pressure for greater democratization and dispersion of political power".
That quotation comes from a report from the library of Congress itself. In the United States the different states—not universally, but in most cases—use primaries for choosing candidates for federal state and local nominees. The systems are diverse, although I understand that nearly 35 states and the district of Columbia have closed primaries; that is, with restricted participation. However, one must then consider the restrictions on the selections we have been observing through the newspapers in London. In those states, one has to declare one's allegiance. In 15 states, anyone may choose for which party one wishes to promote a candidate and express one's vote.
I appreciate that my remarks have been directed to the problems we have seen in the Labour Party selection process, but I cannot help but observe that they are not confined to that process. The Conservatives have had their own difficulties, which they overcame a little earlier. But the methods they have used for selecting assembly candidates are ones which I wish we were not witnessing. As I understand it—I daresay the noble Lord, Lord Dixon-Smith, will correct me if I am wrong—the candidates for the London-wide list have been selected by what one should probably call a college; a relatively small group

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of individuals who are the chairs of the constituency parties. Also, as I understand it, the candidates for Labour's London-wide list for the assembly have emerged—I cannot think of another word for it—from Millbank.
The amendment does not seek to impose a new system but to provide for serious consideration of a new system. That is why I have suggested a commission. I readily acknowledge that I am not the only person to have had the notion of opening up the selection process beyond a narrow band of people, some of whom may have a much greater weight of vote than others. It was only after I tabled the amendment that I remembered that I had read comments to that effect by the Member for Ealing, Acton and Shepherd's Bush. I believe that that strengthens my argument that the call is coming from more than one side and from a number of quarters.
While I always feel a little embarrassed about talking of electoral politics from this House, I hope nevertheless that we may provide some kind of impetus for a serious consideration of how the sadly declining reputation of local government and politics in this country may be reversed. We have made no secret of our concerns about the introduction of elected mayors for local authorities, but if we are to have the prospect of elected mayors, no one will be more enthusiastic than my noble friends, my colleagues outside this Chamber and I to make sure that the system is as good as it can possibly be. I beg to move.
6.15 p.m.
Baroness Thomas of Walliswood: My Lords, I want to add a particular argument to the points raised by my noble friend. I address the concern expressed on a number of occasions from the ministerial Benches about the possibility of frivolous candidates taking part in large elections and causing all sorts of problems. One of the advantages of the primary system is that it tends to eradicate such frivolous candidates because it is an extremely rigorous process.
I have in my hand the revised draft dated 9th January 1999 for the primary and election systems for the year 2001 in the city of Los Angeles. Although it is a large city, similar programmes will take place in all city elections. There are several large cities in our own country apart from London in which elections will take place. One must first declare that one wishes to be a candidate. At that time, one must make a statement of economic interests, which is deposited with the City Ethics Commission. That statement must,
"itemize investments and interest in real property held by the candidate on the date of declaration of candidacy, and sources of income received during the 12 months prior to the date of filing".
The statement lies on the table and in public. We know that certain candidates are rubbished before they reach the election process because their declarations prove to be as full of holes as a colander.
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At a later stage, when one is to state one's occupational designation on the ballot, it is limited to no more than three words; such as "lawyer", "public attorney", or—
Lord Tope: "Peer of realm"!
Baroness Thomas of Walliswood:—Or "peer of realm". I agree that it would be quite funny to run in an American election as a peer of the realm, but I do not believe it would be possible.
One may not mention the name of one's company or business. The only proper name which may be included is a geographic place name. So in a famous case which has been quoted to us on a number of occasions, one would state, "Garage owner, Haringey". That is all that would be permitted.
At the next stage one has to get together a nominating petition. In the city of Los Angeles, all the main officers—not only the mayor—must provide large numbers of signatures. If one is not willing to pay 300 dollars as a deposit then one has to accumulate a larger number of signatures. Those various provisions gradually enforce the fact that one must be a solid candidate in order to start the process going, particularly as one must have at least 500 but no more than 1,000 signatures on one's nomination form. You and other residents of Los Angeles may circulate your petition. The advice is rather charming. It states,
"Usually, between 800 and 1,000 signatures are needed to obtain 500 valid signatures".
In other words, before one gets anywhere near the election system itself, one must demonstrate in public—these are all public documents—that one is a person of solid intent. One must declare how much one earns and what property one possesses and one must be able to demonstrate a large amount of popular support. That seems to be one of the advantages of the system. If the rules were drawn up correctly, one would discourage most of the frivolous candidates.
Lord Smith of Leigh: My Lords, before the noble Baroness sits down, perhaps I may ask: if the system in Los Angeles is so good, why is the governance of Los Angeles so bad?
Baroness Thomas of Walliswood: My Lords, the governance of Los Angeles is interesting; sometimes excellent and sometimes appalling, which can, perhaps, be said of most large cities.
Lord Dixon-Smith: My Lords, this is an interesting idea. We should be grateful to the noble Baronesses for, at any rate, provoking us to think for a few moments about something else. However, I have a dreadful feeling in my bones that if this is pursued, yet another local government Bill will come along. If one includes the Greater London Authority Bill, which is a kind of local government Bill, we have had three in the past 15 months. That is knocking local government about a little.

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However, we need to think carefully about how we arrive at our candidates. This point flows logically from those I raised about people's names on nomination papers for mayor. However, as regards the existing selection procedure, it is fairly easy to see how one can arrive at a mechanism to select a London-wide candidate for mayor. One would be able to include everybody in that machinery, if one had the strength of character to do so. One could have "one man one vote" or one could be slightly redistributive, if so inclined, which would be up to the party. It is also easy to see how one arrives at a candidate for a particular area within a city.
However, there is a lacuna concerning those on the party lists. Whether or not it is satisfactory, the Government's candidates emerged from Walworth Road and ours emerged from a secret enclave of senior constituency officials. Given the present timescale of the operation, that was the way things were done for this election. However, I have to say that I hope that my party—I cannot speak for others—will learn from the experience of this election and that we will do rather better next time.
I return to the "guts" of the matter; the primaries. The idea is worth studying. The amendment would create the background and pave the way for a study to be done. To that extent, I am happy to support the noble Baroness.
Baroness Farrington of Ribbleton: My Lords, this has been an interesting and somewhat novel entrance to debate. I reassure the noble Lord, Lord Dixon-Smith, that we do not intend to incorporate the idea into another local government Bill. I believe that the noble Baroness, Lady Hamwee, should overcome her diffidence and embarrassment about talking on electoral politics. I had not noticed such embarrassment and reticence before. However, I shall look out for it in future.
The amendment contains an interesting idea. However, we believe that, provided a candidate can meet the nomination requirements, it is for the candidates themselves to decide whether to stand for mayor. Where a candidate is to represent a political party, it is for the party concerned to decide how to select that candidate. We do not believe that that is an area where Government should be involved.
In response to the points raised by the noble Baroness, Lady Thomas of Walliswood, I agree that much can be learnt from looking at electoral systems and structures in other countries. However, I would perhaps argue that this particular example is alien to the political tradition and culture of this country, and there are concerns about it.
As all noble Lords will readily accept, the Government would not want to become involved in state sponsorship of primaries, which could focus attention on candidates from political parties to the possible detriment of independent candidates. The system in the United States, even in the example and detail given, militates against poor candidates. Why
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should somebody who finds difficulty in raising a deposit be required to have more signatures than somebody who is readily able to raise the deposit for the primaries? The cost of conducting a primary campaign across a large area can be exceedingly expensive and militates against individual candidates.
In the United States, some of the costs of primaries are met by the taxpayer. We do not yet have evidence that taxpayers wish to fund the internal decisions of political parties. As I have said, any state sponsorship could militate against independent candidates.
We do not believe that this is an area where the Government should have a role. We believe that parties should make their own decision about selection of their candidates. We are totally happy to use a system which produced our leader, deputy leader, Prime Minister and Deputy Prime Minister. Therefore, I urge the noble Baroness to withdraw her amendment.
Baroness Hamwee: My Lords, I assure the noble Lord, Lord Dixon-Smith, that the amendment was not intended to create jobs for parliamentarians. That was not in my mind.
As regards the cost of primaries, one has to accept that there is a cost to democracy. I should like the country to debate further what cost should properly be met. The noble Baroness says that we do not yet have evidence that the taxpayer wants to fund internal selections. In proposing the amendment I attempt to suggest that the selection process should not be quite as internalised as that we have just witnessed, but that it should be broadened. I am not sure that the problems we witnessed will make the taxpayer more or less interested in funding the activities of parties. One could argue that either way.
I am sad that in what is almost their first attempt at the Bill—we have discussed the introductory version—the Government are so sure that everything is right. I believe that much can be learnt from other ways of doing things. As regards the argument that we should reject the idea of primaries because they are alien to the traditions of this country, I do not believe that gets off the ground. So, in spades, are the proposals for elected mayors. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.30 p.m.
Clause 37 [Voting at elections of elected mayors]:
The Deputy Speaker (Baroness Serota): My Lords, before calling Amendment No. 59, I must inform the House that if that amendment is agreed to, I cannot call Amendment No. 60.
Baroness Hamwee Baroness Hamwee moved Amendment No. 59:
Page 21, line 20, leave out subsection (1).
The noble Baroness said: My Lords, in moving Amendment No. 59 I shall speak also to Amendments Nos. 61, 62 and 87. Amendments Nos. 60 and 88 are also in this group.
With this group of amendments we return to the mechanism for electing mayors. The government amendments propose a first-past-the-post system. Our amendments propose, once again, an alternative rather than supplementary vote. That system will allow people to vote, as far as they wish, down the list of candidates, ranking them in preference rather than having their choice restricted to only two.
The main plank of the Minister's argument against our proposal, as put forward in the debate at the last stage, was the difficulty in explaining to voters the need for a different system for the election of authorities other than Greater London. He talked about the election for mayor of London being a high profile event and suggested that it may be thought that the Government were somehow letting other communities down by having a different system.
There is an answer, though not one that politicians are very good at giving; that is, "We have reflected and have decided"—they do not need to say that they were wrong—"that another system would be better". There is no shame in that. Indeed, there would be great credit in politicians who could show themselves to be open-minded.
There is a lesson to be learnt from what is happening at the moment. The noble Lord, Lord Lipsey, was clear in his explanation at the last stage that, given the candidates who may be standing for the position of mayor of London, it would be right to allow the electorate to vote for more than two candidates, indicating their relative preferences, which may include putting some of them low on the list.
We on these Benches have always argued that politics is not a game of "Buggins' turn", though I accept that some more old-fashioned politicians feel that that is a cosy system for the two larger parties. The presence of Mr Ken Livingstone—I hesitate to say the "ghost" thereof—points up the desirability of allowing people to vote one, two, three, four and so forth if they wish.
The argument for a supplementary vote is that the votes count and there is more chance of "ownership" (to use management jargon); that people will feel more involved than in the first-past-the-post system. Again, I agree with the noble Lord, Lord Lipsey, that allowing supplementary votes is a better system than first past the post. People feel that they have a real stake in the matter. But it is not as effective as voting as far down the list as one wants.
The noble Lord, Lord Dixon-Smith, in advocating the first-past-the-post system at the last stage, described it as having both simplicity and brutality. I agree with him to that extent. He suggested that we should treat the GLA as something of an experiment. I hope that the Government will accept that, having designed a system for one election, the read-over to other elections is not automatic. We do not want elected mayors throughout the country who may be elected on what may be a minority vote. It is important
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that, if we are to have a new system, it should be one which involves people to the greatest extent and is as successful as it can be. I beg to move.
Lord Dixon-Smith: My Lords, Amendments Nos. 60 and 88 are paired with Amendment No. 59. As the noble Baroness, Lady Hamwee, said, they would change the system of electing mayors to the system of first past the post.
This is a well-tried system of election that has stood this country well through thick and thin over the centuries. We need to think a little more carefully than perhaps we have as to whether we want to go to the more sophisticated systems that supposedly give a more valid result but do not necessarily do so. It is possible to elect somebody with a large proportion of second-choice votes.
Neither I nor my party is convinced that the new systems of voting are the improvement they are held out to be. It is interesting to recall—the noble Baroness, Lady Hamwee, will not forgive me for this—that the former Liberal Party in the good old, bad old days, when it was in a position to form a government, believed happily in the first-past-the-post system. It only changed its view as it saw its political circumstances alter and felt that the new system would give it the chance to recover an element of influence that the first-past-the-post system removed from it as a consequence of the creation of the Labour Party.
I do not believe that we should go in for these diverse systems of election across different parts of the government machine. In the final analysis, the governance of this country is one sophisticated machine consisting of many components, and if they do not work together, the system does not work well. Those who regard themselves as the most important components of that machine—I do not necessarily accept this—are the Members of the other place and they are without exception elected on the first-past-the-post system. If it is good enough for them, then it should be good enough for everybody else. Of course, if somebody is prepared to say that the justification for change and the belief I spelt out is not correct, I shall be happy to hear that, but it may lead to some interesting debates.
Lord Whitty: My Lords, I am always happy to participate in a debate on electoral reform but we do have some rather set positions on these matters and we did discuss it at some length in Committee. For a brief moment I thought we were about to hear something new because, although we are used to the noble Lord, Lord Dixon-Smith, defending to the last ditch the first-past-the-post system, as indeed do most spokespeople for his party, the logic of his historic analogy about how the Liberal Party changed its view in the light of its electoral fortunes looked as though it was leading to a change in the Tory Party position. But I was disappointed.
We discussed this matter at length in Committee. We also discussed it in relation to the GLA Bill and the arguments, broadly speaking, remain the same. The noble Lord, Lord Dixon-Smith, sticks with the status

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quo; the noble Baroness, Lady Hamwee, has a relatively sophisticated system of electoral reform and we, as always, take the third way in a relatively understandable form of electoral reform. We feel it would be most appropriate to apply the supplementary vote in relation to the mayor.
The argument between the supplementary vote and the alternative vote is relatively narrow. We accept that. But we believe that the supplementary vote has an edge. It is simple and easy to understand. People may feel that by saying that I am disparaging the electorate, but I quickly add that the vast majority of the electorate could probably even understand some of the more historical electoral systems. Nevertheless, simplicity, when one is changing the totality of a system to a mayoral-based local government system, is important and we do not want confusion here.
It is also my contention that the supplementary vote system is closest to the traditional method while at the same time allowing a clear result and ensuring that we do not have mistakes and unintentional votes. When we conduct a ballot to ascertain a clear preference in relation to a single high profile office like that of the mayor, it is important for there to be clarity, simplicity and acceptance as regards its conclusions. We believe that the supplementary vote has those characteristics rather than the alternative vote proposition. I give way.
Lord Lipsey: My Lords, I am most grateful. Does my noble friend the Minister agree that it absolutely refutes the calumnies that Labour has in some way tried to fix the election for the mayor of London that it has, for the principled reason he has just outlined, chosen the electoral system that just gives the outside squeak of a chance to an independent Livingstone candidate? Is my noble friend preparing us to defend any similar charges if some loony runs in Liverpool or Leeds by choosing the electoral system that actually gives independent loonies the best possible chance?
Lord Whitty: My Lords, I am not entirely clear as to how I should respond. As I have been in this Chamber all afternoon, I do not know the latest developments in London, let alone in Liverpool and Leeds. We certainly take an approach that does not exclude candidates from outside the traditional party structures. But whether or not one refers to them as "loonies" is a matter of taste. The system that we propose would allow a break-through in the electoral system if the people of Liverpool or Leeds felt that it was necessary—to coin a phrase—to break the mould. Whether I would advise them to do so in London or elsewhere is an entirely different matter. I believe that my noble friend and I would probably be at one on advising them to vote for a mainstream candidate, preferably a Labour candidate.
We want to construct a system that will allow for some flexibility. Although it is not a conclusive argument, the system that we have applied in London would be a sensible one to apply to other cities and local authorities that chose the mayoral structure. It
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would be difficult to explain why the systems were significantly different. Broadly speaking, I think that we should adopt the same approach. In my view, the alternative vote proposition has fewer merits than the supplementary vote in that context as regards clarity of result, simplicity of outcome and consistency with the arrangements that we already have in place in relation to the mayor of London. I therefore hope that we stick with what the Government propose. Again, it is the middle way and one that is completely understandable. I hope that the House will not adopt either of the propositions before us today.
Baroness Hamwee: My Lords, until we were into this debate, it had not occurred to me that we were talking about Derek Hatton.
Lord Whitty: My Lords, I must point out that I was not talking about Derek Hatton and certainly do not intend to do so.
Baroness Hamwee: My Lords, that is very understandable and most wise.
I retabled these amendments because of the argument that the rest of the country should follow London. The Minster said that it would be difficult to explain why other authorities were different from those in London. I say again, it is only difficult if one is not prepared to say that one will learn. The Minister also talked about the need for simplicity when changing the system. I recognise that this is not a matter for his department, but I hope that the Home Office will find ways to explain to Londoners the system with which they will be faced on 4th May; namely, one consisting of four votes. The publicity that one has seen so far talks only about the mayor—the most important job in London—and does not give any indication that there is more than one vote in the system. There is much education and information required in this respect.
I was sorry to hear the Minister's response, although I cannot say that I am entirely surprised. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 60 and 61 not moved.]
Clause 38 [Entitlement to vote]:
[Amendment No. 62 not moved.]
Clause 39 [Power to make provision about elections]:
[Amendment No. 63 not moved.]
Clause 40 [Provisions with respect to referendums]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 64:
Page 23, line 6, at end insert ("notwithstanding that the question to be asked may include mention of an authority's fall-back proposals as drawn up under section 25 above").
The noble Baroness said: My Lords, this amendment relates to the referendum regulations. Its purpose is to probe why local authorities are not to be allowed to give an explicit second option on the face of the referendum question. As the Bill stands, there will be fall-back arrangements under Clause 25 but these

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amount to little more than a cosy exchange between the local authority and the Secretary of State. The correspondence is not "copied" to the electorate.
On the last occasion, the Minister said that the outline fall-back arrangements—there are many different arrangements under this Bill—would give clarity. I believe that that was what he was saying, although he may have been saying that his amendments would give such clarity. In any event, the Government's argument is that there must be executive arrangements and they reject the status quo, or what has come to be known as the "status quo plus", of local organisation. Therefore, I feel no more confident than I did when we started the Bill's proceedings that the local electorate will be as involved as I believe it should be.
I realise that the amendment is quite difficult to follow when taken out of the context, but the proposal is to ensure that the next best option in the eyes of the local authority is spelled out as part of the referendum process and, indeed, as part of the referendum question. I beg to move.
Baroness Miller of Chilthorne Domer: My Lords, there is another reason why this amendment might be seen as important. Some areas of the country are still three-tier areas. Once the population has had an approach from both its county and its district council and, for example, has gone for an option in one case to have a directly elected mayor, it may well come to a different conclusion for the other tier authority. The amendment would allow for more flexibility in places where people have not had any experience of what it would be like to even think about having two people responsible for their well-being, socially, economically and environmentally. It is possible that that would work, although I still have particular reservations in that respect. Nevertheless, the amendment would offer the population a chance to have a second thought about exactly how these arrangements might work.
Lord Whitty: My Lords, I am not entirely sure that I followed the noble Baroness's point. We are not really talking about two-tier structures here; we are talking about structures within one of those tiers. However, I shall read what she said in Hansard to ascertain whether I need to give her a clearer answer. I did not quite follow the main point.
As far as I am concerned, the main point here is that there should be a clear answer to the referendum question, as well as a clear understanding on the part of those who are voting as to the consequences of voting "Yes" and the consequences of voting "No". In most cases, where we have held referenda, and where other countries have done so, there is a straight Yes/No answer rather than a series of questions to which one must answer Yes and No, which can actually give an inconsistent result. The amendment seems to imply an either/or form of question rather than a Yes/No form of question.
In our view, it is sensible to stick with the principle that the question is not to pose a choice between two options but to seek approval or rejection of the option
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that is put before the electorate in that referendum. Having said that, I accept that it is important that those voting in a referendum either way know and understand the consequences of voting Yes or No. We have followed the Joint Committee in this respect in that it recommended that the Bill should be amended to clarify the position if there were a no vote. As noble Lords will recall, we have now done that. The Bill now requires that the authority must have adopted outline fall-back positions. Our draft regulations and guidance make clear that councils will be required to publicise both the main proposal and the fall-back proposal. In that way local people will know exactly what the consequences of a no vote will be, as well as the consequences of a yes vote.
I reassure the noble Baroness by saying that this is not the end of the process. If our approach to this matter is shown to be wrong, it can be changed in that we intend that the Bill will ultimately include a requirement for the Secretary of State to consult the electoral commission—when that is established—on the regulations, including regulations for defining the questions in such referendums. I hope therefore that the noble Baroness will not press her amendment tonight.
Baroness Hamwee: My Lords, my noble friend made a good point as regards the questions being asked of a single elector in respect of more than one tier of local government and the fact that the answers may be different in respect of the different tiers. The Minister cautions us against having more than one question. However, as I recall, the referendum in Scotland was not confined to one question in that it contained a question about tax varying in addition to the question about whether people wanted a parliament.
Lord Whitty: My Lords, that was a sequential question; it was not a list of options to which one could conceivably answer yes to all.
Baroness Hamwee: My Lords, I take that point. However, that shows that referendums are not necessarily the rather neat provisions that we may have considered them to be.
The Minister said that voters would know the consequences of a no vote because of publicity that would be given to the fall-back proposals. That seems to me to be arguing against including a question on the referendum paper. If it is assumed that the voters take the publicity into account, they ought to be able to express a view on that as part of the process. However, I recognise that we shall not take the point further now. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 46 [Duty of relevant authorities to adopt codes of conduct]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 65:
Page 27, line 16, after ("newspapers-) insert (", which with the approval of the Standards Board for England or the Standards Board for Wales may be a newspaper published by the authority,").
The noble Baroness said: My Lords, Part III of the Bill concerns codes of conduct and ethical standards. My amendment concerns the availability of publicity on a code of conduct after it has been adopted by a local authority. It is a small point but one that I consider is worth spending a few minutes discussing.
The Bill provides that the code must be published in newspapers circulating in an area. At the previous stage of the Bill I proposed that, for the purposes we are discussing, a newspaper could be a newspaper published by an authority itself. The Minister was concerned about a danger of bias or the paper not being properly delivered and so on. I am, of course, aware of the cost of advertising in a commercial newspaper. I refer again to using councils' own newspapers, which often have a larger number of readers and are certainly more widely circulated than commercial newspapers. I take the points that were made at the previous stage but I believe that there may be some scope for variety here and for assessing the most effective method of circulation. The amendment proposes that the use of such a newspaper must be approved by the relevant standards board. I beg to move.
Baroness Farrington of Ribbleton: My Lords, this amendment proposes that the Bill be amended so that a local authority may, with the approval of the standards board in England or Wales, publish information regarding the adoption of a code of conduct in a newspaper published by the authority.
We would certainly encourage local authorities to publicise the adoption of a code of conduct through their own publications. Indeed, the Bill as drafted would not prevent that. However, we are wary of including an amendment that would require the standards board to approve such publication.
The noble Baroness, Lady Hamwee, referred to the need for variety in appropriate circumstances. We appreciate the arguments put forward by the noble Baroness, Lady Hamwee, in Committee that in some local authorities a local newspaper may not always reach as wide a population as one distributed by the local authority. There may be a case, therefore, for requiring a local authority to publicise that it has adopted a code in both a local newspaper and one of its own publications. We intend to consider that option further. Therefore I hope that the noble Baroness will feel able to withdraw the amendment.
Baroness Hamwee: My Lords, I am grateful for that reply. I hope that I do not argue against myself when I make my next point. The Minister will understand that I would not want an authority to be required to publish a newspaper if it does not normally do so. There is an "if" somewhere in that point. The Minister acknowledges the point. I am grateful for her comments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 47 [Duty to comply with code of conduct]:
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 66:
Page 28, line 2, at end insert (", subject to subsections (9) to (11)").
The noble Lord said: My Lords, it is a matter of regret that sometimes human behaviour is not all that we would wish it to be. The amendments that are grouped with Amendment No. 66 seek to protect someone from the possible misbehaviour of those forming a larger group. When we talk of standards of conduct and codes of conduct, it may seem unreasonable—as they are designed to ensure that people behave well—to consider that what appears to be an entirely reasonable provision that should improve behaviour could be used in a perverse way. However, as we are considering the consequences of legislation we have to consider what is possible. We also have to consider the weaknesses of human beings and human frailty generally.
These amendments are designed to ensure that if a member of an authority felt that a code of conduct was designed in such a way as to make it impossible for him to continue to serve, there would be a right of appeal against the oppressive measures in the code. That situation is conceivable.
At present Clause 47 properly imposes on councillors a duty to comply with the current code of conduct. That code can, of course, be amended, in which case all councillors must sign up to the amended code. They have two months in which to do so. If they fail to do so, they cease to be councillors. On the face of it, that is an entirely reasonable procedure. No one could quarrel with the principle that is spelt out at all.
However, there may be a particularly iconoclastic individual on an authority who manages to get himself thoroughly disliked by everyone else. It is not inconceivable; this kind of thing happens in human organisations from time to time. It is sad when it happens. In my career, I can certainly recall having to ease at least two people out of employment for that reason. It was very sad but, despite everything that could be done, the situation was impossible.
In that kind of situation one can imagine an unreasonable temptation—which may in the end be given way to—for members of a standards committee to devise a new code of conduct. They could include in it, for example, conditions in regard to quantum of attendance, and then rig the timings of meetings inconveniently for the individual concerned so that he could not comply with them. One would then have a very false situation. The amendment seeks to provide a route for a person who feels that he or she is being abused in this way to have a right of appeal.
I may be accused of being utterly cynical and thinking too much about the dark side of human nature. I do not apologise for that. I recall that when I was in County Hall in the good old, bad old days, one of our most instructive days was spent—I have said this in the Chamber before—considering how one could set about defrauding the authority. That exercise was very helpful.
One needs to recognise, in any legislation that deals with human beings and human behaviour, that we should take into account the possibility of a darker side to our nature. We need to provide mechanisms which ensure that the darker side—if it comes out—is not allowed to prevail. I beg to move.
7 p.m.
Baroness Farrington of Ribbleton: My Lords, in moving his amendment, the noble Lord, Lord Dixon-Smith, has made clear his fears about the potential that he sees for an individual to be victimised in some way.
The general principles underlying the code of conduct will be subject to extensive consultation, followed by debate under the affirmative resolution procedure in this House and the other place. The model code of conduct will also be the subject of careful consultation. There is provision in Clause 45 for the code to be drawn up by representatives of local government itself before being approved by Parliament.
Local authorities will be able to add their own provisions to the code, but these will have to be consistent with the code as well as with any guidance issued by the standards board. Members will be able to influence or contribute to the debate before such provisions are adopted. We are confident that careful drafting of the model code will ensure that politically or personally motivated inappropriate local additions to the model by an authority would not be considered "consistent with the national model", as the Bill requires.
So far as concerns the local authority's standards committee, it must comply with any regulations issued by the Secretary of State on size, composition and membership. It is required to send a copy of its terms of reference to the standards board, which could also issue guidance if it felt anything was inappropriate or unfair.
We do not contest the right of an individual to appeal against unreasonable or oppressive provisions, but we believe that the safeguards already built into the new ethical framework will prevent the need for any such measures. It is possible—although, in our view, unlikely—that a local authority may impose a condition on its code of conduct that is politically motivated but that complies outwardly with the tenets of the national model and the general principles. We cannot think of such a provision, but no doubt it would be remotely possible.
If the standards board had not excluded such a provision using its guidance, or if the Secretary of State had not covered it in the model code or standards committee regulations, it would still be possible for a member, using the test of "reasonableness", to apply for judicial review. On that basis, we feel that there is an opportunity for action to be taken in what we believe to be the extremely remote circumstances outlined by the noble Lord. I hope that he will feel able to withdraw his amendment.
Lord Dixon-Smith: My Lords, I am grateful to the Minister for her reply. I am delighted to hear that there
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is a route by which an appeal can be made. I am not quite so delighted when I hear that it would be by way of judicial review. A judicial review tends to be expensive. It is not a route which I would describe as being freely available; it is expensively available.
That said, I will study the Minister's response. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 67 to 69 not moved.]
Clause 48 [Standards committees]
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 70:
Page 29, line 13, at end insert (", and
(c) may not have a majority of its members composed of members of the executive").
The noble Lord said: My Lords, it should not take many minutes to deal with the amendment. I hope that the Government will accept it or agree to consider the point that it raises, which is that the local standards committee may not have a majority of its members composed of members of the executive of the authority.
I do not know what the Government intend by way of regulations in regard to this aspect, but it seems to me that if an authority is to have a standards committee that is representative of all the members of the authority, and given that the majority of members of the authority will not be on the executive, it follows that members of the local authority executive should not have a majority on the standards committee.
It is a straightforward and simple principle which I hope that the Government can accept. It would help both accountability and transparency in this area if the principle was enunciated. If the Minister tells me that he has in mind to have something such as this in regulations, I shall be happy to take the matter no further. However, I may have to think about it if he does not tell me that. I look forward to his reply with interest. In the meantime, I beg to move.
Lord Whitty: My Lords, I understand the noble Lord's concern. It is our intention in this context to maintain on the face of the Bill as much flexibility as possible for local authorities—which, of course, is normally the noble Lord's own plea. We are mindful that we do not want executive dominance and therefore we have included the requirement that there should be an independent member. Clause 48(5) includes a specific provision that prevents an elected mayor or executive leader being a member of the standards committee, and it also excludes any member of the executive from being its chair.
Alongside those provisions are references to at least one independent member being appointed to the standards committee, although, of course, local authorities could choose substantially more than one. There is also a reference to the fact that there should be at least two elected members on the standards committee to ensure that the council as a whole has ownership of that committee.

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We believe that these safeguards provide sufficient guidance to ensure that councils are reasonably aware what the nature of the standards committee should be, but allow them to retain some choice as regards the precise composition of the committee in the light of their particular circumstances.
It is true that we will need to bring forward regulations in this area, although we do not want to be too prescriptive in the regulations. On the other hand, were there to be evidence of domination by the executive, we might bring forward such regulations in the light of experience. We would certainly have the power to do so under the Bill. For the moment, we should leave it flexible and leave it to the good sense of councils to decide on the composition of their standards committees.
Lord Dixon-Smith: My Lords, I am grateful to the Minister for that reply. I wish I could be as confident as he is that his aspirations in this particular area will be borne out. I have to inform him, as a matter of regret, that I have heard of one authority planning to have a standards committee of 15 members, nine of whom will be members of the executive. I am concerned and I am not as hopeful as he is that the high standards we ought to be able to expect from all local authorities will necessarily flow from this Bill, as it is at present drafted. I do not wish to pursue that any further at this stage. I shall consider what the Minister has said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 52 [Written allegations]:
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 71:
Page 33, line 16, at end insert—
("(5) Where a relevant Standards Board decides that any allegations made under this section shall not be investigated, it shall give its reasons in writing.").
The noble Lord said: My Lords, this amendment raises a small point. The Bill, as drafted, permits people to make complaints in the form of written allegations to the standards board. The standards board has to consider those allegations. The Bill, as drafted, says nothing about having to make any form of written response as a result of those allegations, particularly if it decides not to pursue them. It might be argued that I am being unreasonable once again. I should hope that it would be the case that the standards board would automatically write to say whether or not it was going to undertake an investigation and why. I suspect that the Minister will tell me that is to be the case. If he tells me that it will be the case, then it will be. We have had this debate before, but what is said in the Chamber matters. It is right that a person who makes allegations does receive a response. Equally, I am sure that it is right that the standards board, on considering written allegations, will say, "There is not enough here to warrant investigation".
Unfortunately, when one considers some of the things that have happened in local government over the past 10, 15, 20 or more years, one might have
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wished that some such procedure as this were in place. If there had been such procedure, perhaps some of the troubles we have had might have been prevented. This is intended to be helpful. I look forward to the Minister's reply. I beg to move.
Lord Whitty: My Lords, I would never accuse the noble Lord of being unreasonable. We envisage that the board would reply in writing to the complainant if it was not to proceed with the investigation. We would expect that any such notification should state why the board did not consider it appropriate to investigate. Therefore, we are at one with the noble Lord on that.
I accept that it might help if there were in the Bill a provision to increase the accountability of the standards board. I should like to take away this amendment and consider whether to make that clear. I do take the point about matters in the history of local government where an investigation has been turned down without any investigation. We ought to cover that issue. I will look at it and consider whether we need to return on that point.
Lord Dixon-Smith: My Lords, I am grateful to the Minister for his reply. I am happy to await the outcome of his consideration. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 54 [Conduct of investigations]:
7.15 p.m.
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 72:
Page 34, line 16, at end insert (", or to a former member or co-opted member.").
The noble Lord said: My Lords, Clause 54 deals with investigations by ethical standards officers. It occurred to me that sometimes these investigations might cover a period quite close to an election or just after an election. Therefore, the investigation ought to be able to consider behaviour that was relevant to former members in that particular situation. It is a somewhat dubious area because it seems that the only sanction an ethical standards officer has is to suspend a member. Of course, one cannot suspend a former member.
There is a more significant background issue that the standard of behaviour of members, both past and present, is very much what makes up the ethos of an authority. If an investigation were to run wide and require the examination of behaviour by former members, it would be unfortunate if it could not do so. Therefore, I have tabled Amendment No. 72. I beg to move.
Baroness Farrington of Ribbleton: My Lords, I thank the noble Lord, Lord Dixon-Smith, for drawing our attention to this matter and for his helpful comments. We will look at ways of putting it beyond doubt that former members and co-opted members are included in all references to members in relation to investigations and case tribunals. We shall need to

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return to the House at a later stage with proposals. I hope that the noble Lord is able to withdraw his amendment.
Lord Dixon-Smith: My Lords, I thank the noble Baroness, Lady Farrington of Ribbleton, for her response. I am used to being banged around a hit before I get anywhere at all. I am grateful to the noble Baroness for that. I look forward to the results of her consideration. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 73
Page 34, line 17, leave out within the period of five years ending with that time.").
The noble Lord said: My Lords, this is a simple amendment. The Bill, as drafted, would permit an ethical standards officer to undertake investigations in an authority where he had been a member provided that an interval of five years had intervened between his leaving the authority and starting the investigation. It might be argued that that is a perfectly reasonable and sufficient interval. I am not quite so sure about that. I know my own weakness. If I had to become an ethical standards officer—heaven forfend—and I had to undertake an investigation at Essex County Council, I am not sure that even after an interval of seven, eight or nine years I would still be unbiased. This amendment is here because I wish to say that an ethical standards officer may not undertake an investigation in an authority where he has formerly been a member. It is a simple point. It does not require argument in any greater detail. I beg to move.
Baroness Farrington of Ribbleton: My Lords, we cannot accept that the current provisions of the Bill are deficient. Clause 54(4) provides that an ESO cannot conduct an investigation in relation to a member of another authority if within the past five years he had been an officer or member. In addition, Clause 54(5) provides that:
"An ethical standards officer who is directly or indirectly interested in any matter"—
irrespective of when it occurred—
"which is, or is likely to be, the subject of an investigation".
must disclose that interest to the standards board and must take part in the investigation. This means that if' an ESO had been a member or officer of an authority that was the subject of an investigation more than five years previously and there was still some issue that could reasonably be expected to influence his conduct of the investigation, the ESO must declare it and not take part in the investigation.
In making our provisions, we have sought to strike a reasonable balance between an outright prohibition, as suggested by the noble Lord, and the requirement to declare all relevant matters. We believe that these provisions taken together provide sufficient protection. I hope that the noble Lord feels reassured and will feel able to withdraw the amendment.
Lord Dixon-Smith: My Lords, I am grateful to the noble Baroness for her response. Her words do reassure me but I shall need to consider them with a little care before I decide what I finally do about the amendment. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 59 [Interim reports]:
Lord Dixon-Smith moved Lord Dixon-Smith moved Amendment No. 74:
Leave out Clause 59.
The noble Lord said: My Lords, Amendment No. 74 is what I would call a nuclear option with regard to Clause 59 because it seeks to remove the clause from the Bill. I must have been tired when I was preparing for this stage. I could not sit down and work out in detail amendments to Clause 59 to answer my particular concerns about it.
Clause 59 provides for a member to be suspended by an investigating officer if the investigating officer considers that the case is sufficiently serious and urgent to justify that. I do not have any difficulty with that proposition except in one regard. As I read the Bill, the investigating officer can do that on his own. I think that is right. He should have to refer to someone so that there is the opinion of more than one person. He should have to refer to a superior and say, "Look, this is the situation. I think that we should go for an immediate suspension and I would like your sanction for that". I apologise to the House for not being able to devise amendments to the clause to make clear my intention, but I had to table the amendment very quickly after returning from a few days away. I had expected to have a little more time but the exhaustion factor crept in. However, I think that the point I am making is a valid one. If the Minister tells me that he is prepared to consider it, I shall be quite happy with that for today's proceedings. There is time for it to be considered. I beg to move.
Lord Whitty: My Lords, I can understand the noble Lord's weariness by this stage of the Bill. It is difficult to achieve the objective so the noble Lord has decided to seek to delete the clause altogether. I actually believe that the provision meets what he is after.
Clause 59 provides that an ESO may issue an interim report recommending a suspension pending the outcome of a full investigation. The report will be referred to the president of the adjudication committee, who will convene a case tribunal under Clause 62(2) to make a decision. We envisage that these reports will be used very rarely. When an allegation is particularly serious—for example, when there is the allegation of financial misdemeanours—it would be sensible to move the councillor out of that situation on an interim basis. That could mean out of one committee or it could mean out of the whole council. We believe that we need that leeway. But in terms of an individual taking that decision, full-stop, the noble Lord is not right because of Clause 62(2).
Lord Dixon-Smith: My Lords, I am grateful to the Minister for that reply, although I am not completely reassured by it. The investigating officer has the power to suspend the member immediately. The member could remain under provisional suspension without reference to anyone else. I accept that one then has to go through all the rest of the procedure and that that should provide a proper safeguard. However, if it were the case—here I go again with my awkward mind—that the investigating officer had got it wrong, it could do irreparable damage to the reputation of someone through inadvertence. He would not wish to do that. The individual concerned would be immensely hurt if it happened, and rightly so. That is why I felt that it was necessary to have some provision for reference elsewhere before even a provisional suspension took place. Nonetheless, I shall study what the Minister has said. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Carter: My Lords, perhaps I may intrude just for a moment. Without in any way attempting to truncate debate, I think there is a reasonable chance that we could finish this stage of the Bill by about eight o' clock. If that is the case I suggest that we go straight through. To be fair to those who are waiting to debate the orders, we should do our best to finish by then.
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 75:
After Clause 65, insert the following new clause—
POWER TO MAKE RESTITUTION ORDERS
(". Where matters considered by an interim tribunal or a case tribunal are or become the subject of criminal proceedings in a court. it shall be open to that court, in considering any penalty resulting from a verdict of guilty, to apply a requirement, as a part of any penalty, that a restitution order be made so that any loss to the local taxpayer is repaid.").
The noble Lord said: My Lords, in Committee we had an interesting debate about whether it would be possible for the investigations by the ethical standards officer to come up with a recommendation for a restitution order against someone who committed an offence. The Minister went a great distance towards satisfying me on this point. He pointed out, I think with justification, that a restitution order would in effect amount to the kind of judgment that would be made in a criminal case. The laws of evidence in these tribunals would not be as strict as the laws of evidence in a court of law. That is a powerful argument.
I then went on to consider—my wicked mind again—what would happen in the event that someone commits a major financial impropriety which disadvantages the local taxpayer. The ethical standards officer investigating that would suspend the member. But if the case was of that severity, it would
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be likely to finish up in court anyway, which was the other arm to the Minister's argument as to why we do not need my restitution order. I then tried to find out whether in a case of this nature there was a penalty in the event of a guilty verdict which would involve a restitution order. We are familiar with such orders with regard to drugs and some other crimes. But no one has been able to tell me whether, in a case of this kind of financial malfeasance against a local authority, a restitution order is presently available to a magistrates' court against a guilty party.
I believe that there should be such a possibility. It may not always work—we are all familiar with the problem of unpaid fines against particular individuals. But I do not think that an individual should be able to gain illicitly at the expense of the local taxpayer. If a person is found guilty of so doing, a restitution order should be possible. The amendment is designed specifically to make that a possibility, because I could not find any such provision. If the Minister assures me that such a penalty is presently available and could be used, I shall happily withdraw the amendment. I beg to move.
7.30 p.m.
Lord Whitty: My Lords, I think I am able to satisfy the noble Lord that the mechanisms already exist. It is not the intention that the ethical framework will deal with criminal issues. Where criminal misconduct is suspected, the matter will be passed to the police or the appropriate authority. However, I assure the noble Lord that in those criminal cases that come before the court, where the actions of a councillor have resulted in financial loss to the authorities, they can already order restitution from the councillor if they consider it appropriate.
Nor does that prevent an authority from separately seeking to recover losses arising from misconduct, which it may do either by seeking a compensation order in criminal cases or through civil proceedings. So a number of lines are already available to local authorities to seek restitution. Actually collecting the money, as I pointed out earlier, may be a different matter. But as regards seeking restitution orders and having the means to establish the liability of a councillor, substantial mechanisms are already available to authorities to cover, I believe, all the contingencies about which the noble Lord is concerned.
Lord Dixon-Smith: My Lords, I am happy to hear the Minister's response. He will be pleased to hear that I shall happily refer it to my legal colleagues. On the assumption that he is right—I am sure he is and pay him absolute credit—it seems that they have learnt, as indeed have I, from the tabling of this amendment. In the circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hamwee Baroness Hamwee moved amendment No. 76:
After Clause 67, insert the following new clause—
PECUNIARY PECUNIARY INTERESTS OF MEMBERS OF LOCAL AUTHORITY
(" . The provisions of Appendix 1 of Department of the Environment Circular 16/92 shall, with effect from the enactment of this Act, extend to persons whose pecuniary interest arises solely from holding a lease of a residential property.").
The noble Baroness said: My Lords, this is the first of two proposed new clauses. Noble Lords will not be surprised that the Bill is being used for some moderately tentative exploration as to whether a couple of local government issues might be dealt with in the context of the Bill as we have the opportunity.
The first is the question of pecuniary interests. Noble Lords will be aware that members have a duty to declare a pecuniary interest in a matter which is being debated, to take no part in the consideration of the matter, and not to vote without the dispensation of the Secretary of State. There are, as I understand it, three general dispensations: for members of local education authorities whose children are in full-time education; for members who are considering questions concerning the payment of statutory sick pay; and for members who are tenants of unfurnished accommodation. The last is the relevant dispensation.
The circular referred to in the amendment allows those tenants to take part in proceedings when a pecuniary interest arises from a tenancy, contractual or statutory, of a dwelling that has been let unfurnished. The dispensation is not unlimited. It extends only to considering, discussing and voting on matters concerning housing function affecting the whole or a part of the area. It does not apply when the pecuniary interests of the member would be different from those of a significant number of tenants who are not members, and it does not allow a member to vote on rents when the member's rent is in arrears for a given period.
My point is a short one. I appreciate that it is possibly not appropriate for primary legislation; nevertheless, I believe that it is worth raising. It is that, after many years of the right-to-buy, there are fewer tenants—given the transfers that have taken place, there are also fewer tenants of local authorities—and more leaseholders. There are occasions on which an authority must consider matters affecting the general body of its leaseholders and where their position should be on all fours with those of the local authority's tenants. The purpose of this amendment is to ask the Government whether they might consider extending that exemption and in effect bring it up to date. I beg to move.
Baroness Farrington of Ribbleton: My Lords, the noble Baroness has identified the fact that the existing rules on registration and declaration of interest and the corresponding general dispensations are rather complex. They are made up of a varied collection of guidance, regulations and statutory instruments and are potentially confusing for councillors. The issue needs addressing so that the rules can be clarified and simplified.
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Under the new ethical framework, we are proposing that the rules on registration and declaration of interest should become part of the code of conduct for members. Alongside this, we have already made provision in Clause 67 for the standards committee to take on the role of considering dispensation requests. Where it remains appropriate, we would envisage that any general categories of dispensation, such as the one to which the noble Baroness has drawn attention, might also be covered in the code of conduct. As a consequence, we intend to bring forward suitable amendments at a later stage to repeal or disapply the existing legislation.
The amendment raises a useful question about the types of interest where a general dispensation may still be required that we shall need to consider in developing the code of conduct. Because the existing rules are to be repealed, the amendment will prove unnecessary. I therefore hope that the noble Baroness will feel able to withdraw it.
Baroness Hamwee: My Lords, that reply is helpful in explaining the Government's approach. I hope that the position of leaseholders will be covered in an appropriate fashion. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hamwee Baroness Hamwee moved Amendment No. 77:
Alter Clause 77, insert the following new clause—
PAYMENTS ETC. IN CASES OF MALADMINISTRATION
(".—(1) In section 31 of the Local Government Act 1974 (Commission for Local Administration: Reports on investigations: further provisions), for subsection (3) substitute—
"(3) In any case where it appears to an authority that a person has suffered injustice as a consequence of maladministration by that authority, following—

(a) an investigation of a complaint by that person by the authority, using the complaints procedure of that authority; or

(b) consideration of the possibility of a local settlement of a complaint by that person to a Commissioner for Local Administration; or

(c) consideration of a report laid before that authority under subsection (2) or (2C) above;
and that, as a result of that injustice, it appears to the authority that a payment should be made to, or some benefit should be provided for, that person, the authority may incur such expenditure as appears to them to be appropriate in making such a payment or providing such a benefit."").

The noble Baroness said: My Lords, this is the second of my proposed new clauses raising matters allied to the Bill but not directly dealt with by it. The purpose of the amendment is to deal with the issue of compensation to a complainant.
Currently, a local authority is allowed to incur expenditure in making a compensatory payment only if the ombudsman has made a report on the complaint and has found injustice arising from maladministration. The various authorities involved would like to see legislative provision that would allow

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local authorities to make such payment in circumstances where the authority itself believes that there is justification for the complaint and that compensation would be appropriate. I understand that there is a good deal of uncertainty as to whether authorities actually have the power to make payment in such circumstances.
The kind of situation I am suggesting is, for example, where a complaint has been investigated under the authority's own complaints system and the authority has found the complaint to be justified without the matter being taken to the local ombudsman; or where settlement is negotiated locally after a complaint has been made to the ombudsman but before the ombudsman has made a finding of maladministration causing injustice. ombudsman but before the ombudsman has made a finding of maladministration causing injustice. That would encourage local authorities to settle complaints at local level wherever possible, provide a speedier resolution for complainants and also save resources, because the council and ombudsman would then be left to concentrate on the more difficult cases. I am sure that all noble Lords would encourage councils to have robust internal complaints systems. I hope that the Minister can help us to overcome the uncertainty about the payment of compensation in the situation that I have outlined. I beg to move.
Baroness Farrington of Ribbleton: My Lords, the amendment moved by the noble Baroness would help to overcome any uncertainty as to whether the powers that she seeks already exist. We are aware that the amendment has the full support of the LGA and the Local Government Ombudsman. The Government support the efforts that have been made to encourage the local resolution of complaints. Ideally, complaints should be capable of local resolution with recourse to an ombudsman very much as a last resort. Where there are unnecessary obstructions to local resolution the Government fully support taking action. We need to consider how cases of misconduct, which also involve maladministration, that appear before the standards board should he treated and whether there should be consistency with those cases that are dealt with solely by the ombudsman or the authorities themselves.
Perhaps I should alert the noble Baroness to a point raised by our legal advisers about whether such an amendment is within the scope of this Bill. We wish to consider this matter further and may be able to return to it at a later stage. I hope that the noble Baroness feels reassured and is able to withdraw her amendment.
Baroness Hamwee: My Lords, I hope that the legal advice will come down on the side of the matter coming within the scope of the Bill. Given that the Long Title says no more about standards than that the Bill is intended to make,
"provision with respect to the functions and procedures of local authorities",
I believe that the points I have made fall squarely within that terminology, as does the whole of Part III
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of the Bill. More expert legal minds than mine will be brought to bear on the matter. I am grateful for the Minister's response. Perhaps we can keep in touch on this matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.45 p.m.
Clause 78 [Grants for welfare services]:
Baroness Maddock Baroness Maddock moved Amendment No. 77A:
Page 53, line 39, at end insert (", or
(d) by way of pilot or temporary scheme").
The noble Baroness said: My Lords, I rise to move Amendment No. 77A and to speak also to Amendment No. 77B. We have tabled these amendments because of our concerns as to how the proposals in the Bill will affect very vulnerable people and work in practice. The Minister is aware that my noble friend Lady Hamwee wrote to him to voice our concerns. We are grateful for the very full reply. The proposed changes to the funding of welfare services will affect a large number of existing recipients of services. The proposals mean very radical changes to the present system, and for that reason we seek further reassurances from the Government.
We welcome the fact that the Government recognise a local authority's wider role in the integration of housing and welfare service provision. The theory of replacing the current system under which welfare services are funded from a variety of sources, mainly housing benefit, with cash-limited grants sounds a logical step. However, many believe that in practice the proposals will prove to be a little difficult and that in the changeover those now in receipt of these services, particularly the elderly, may not get what they have come to expect. Past experience shows that good intentions do not always work out on the ground.
There was so much concern about this matter that when the Government launched their consultation paper the DSS ran out of copies. Over 500 responses to the consultation were received. I understand that the Government have given serious consideration to those responses and have tried to incorporate some of them in the Bill. Although we are short of time tonight, can the Minister clarify, if not now perhaps at a later stage, what changes have been made as a result of representations from other people?
The area of particular concern is sheltered housing. There is a great deal of anxiety among those bodies which are concerned with the management of sheltered housing. The main concern is that the changes will involve a considerable degree of bureaucracy for very small amounts of money and may be very expensive to administer. Following consultations, the Government are working with groups to try to set up a proper framework in which local authorities can administer the new arrangements. We would be grateful if the Government could expand on that, if not tonight perhaps at Third Reading. There is also a particular

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concern about elderly people now in sheltered housing who receive support by way of housing benefit. Can the Government provide reassurance that existing tenants will not suffer and lose their wardens as a result of the proposed changes?
A further area of concern is the total amount of grant available to local authorities to replace the present expenditure on benefits. We are grateful to the Minister for his clarification that the figures that the Government have bandied about are not set in tablets of stone. We understand that the Government will look carefully at what is being paid out at the moment and adjust their budget accordingly. Since my noble friend's letter to the Minister it has been drawn to my notice that perhaps the changes are being made because of the present legal system under which benefits are paid and the social security aspects of those payments. I would be grateful if the Minister could provide clarification also on that matter.
In conclusion, the Bill provides that the new funding arrangements will be brought into force in different geographical areas at different times. Given the widespread concern about the issues that I have raised this evening, perhaps the Minister will look seriously at the proposals encapsulated in the amendments; namely, that there should be pilots to see how the proposals work in those areas before they are implemented everywhere. We are talking about very vulnerable people, in particular the elderly, young people and those with special needs who require proper help with their housing. I hope that the Minister can meet that need, if not tonight perhaps at a later stage. I beg to move.
Baroness Farrington of Ribbleton: My Lords, with the leave of the House, perhaps I may be permitted to correct an error of omission in my response to Amendment No. 77. In referring to legal advice I should have said that legal advisers had raised a point about whether such an amendment would be deemed by the Officers of the House to be within the scope of the Bill.
Lord Whitty: My Lords, in response to the amendment moved by the noble Baroness, Lady Maddock, we do not want to go down the road of piloting the proposals. We are committed to the Supporting People initiative and want some clarity of objective here. The principles in the Supporting People initiative have been welcomed by those concerned with housing and support services. As the noble Baroness indicated, the vast majority (82 per cent) of respondents were generally in favour of the proposals. Although the full arrangements will be implemented only in 2003, it is important to provide some stability of view as to where we are going. We are working closely with the stakeholders so that we can plan ahead.
However, I recognise the anxieties to which the noble Baroness refers. It is important that the grant from local authorities for supporting people will be at least as much as that which was spent in the previous year in the various budgets which the scheme replaces.
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The joint commissioning group engaged on this will be encouraged to maintain continuity of funding at the point of transition. We realise that continuation is a key concern to many users and is, therefore, a priority. The practitioners' group is engaged in considering how we can maintain continuity and reassure people in that regard. I know of the concern of those involved in sheltered housing. The Government are anxious that the role of sheltered housing continues with high quality support services, in particular to vulnerable older people.
However, we need also some degree of flexibility in this area. Responses to the consultation from providers of sheltered housing welcomed the integration of support services into the other services provided to support older people in their homes. Therefore there is need to work closely with providers of sheltered housing so that we minimise any hiccups or discontinuity for older people and smooth the path of support for older people, which would be a better way of identifying priorities in support systems.
The noble Baroness queried the relationship between that system and social security policy. There is a problem of the linkage between the provision of sheltered housing and housing benefit. The Government are determined to see a clear line drawn between basic rent and support services. If one ties accommodation into a benefits infrastructure it does not allow the flexible approach that we hope the new arrangements will deliver.
However, because of the range of difficulties, although rejecting a pilot approach—it gives no certainty of where one aims to get—we are now talking with the stakeholders, the providers so that we have some flexibility as to how the system is introduced. In particular, we are discussing the benefits of phasing in the new scheme so that we can learn from the early stages of phasing. It is similar to piloting but it gives certainty as to where one intends to end up. Phased implementation would help to ensure that the new regime is implemented smoothly and that best practice is shared.
Subject to the agreement of the providers and others involved, we believe that that phased approach would be better than having an open-ended pilot approach which does not give the rest of the local authorities and providers certainty as to where we are going. I hope that the noble Baroness accepts that that will be a better approach and will not pursue her amendment.
Baroness Maddock: My Lords, I am grateful to the Minister for his lengthy reply. I am not sure that I agree with him that a pilot means that one will not do anything at the end of it. A pilot scheme ensures that one puts in place processes and methods that work. From the Minister's reply, I believe that it is the Government's intention not to bring the system into place at one time. With the reassurance that the noble Lord has given, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 79 [Housing benefit]:
[Amendment No. 77B not moved.]
Clause 80 [Allowances and pensions for certain local authority members]:
Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer moved Amendment No. 78:
Page 54. line 42, leave out ("of an executive").
The noble Baroness said: My Lords, in moving the amendment, I speak also to Amendments Nos. 79 and 80 in the name of my noble friend.
The amendment seeks to delete from the section on allowances and pensions the words "of an executive". To single out councillors who are members of the executive in particular to receive pensions is divisive; and the Bill should not aim to be that. At earlier stages of the Bill, the Minister conceded that under the system other members of the council would have equally important work to do—for example, the chairman of the scrutiny and overview committee. However, the Bill allows for area committees. The chairmen of those committees are likely to spend at least as much time on their work as members of the executive. Chairmen of bodies which come into more contact with the public than does the executive are likely to undertake jobs with longer and perhaps more antisocial hours.
We believe that the council and the independent panel should set the appropriate remuneration, pensions and allowances for members of the council, depending on the structure that they choose. Partnership working—the Government seek to encourage it—may involve the chairmen of the scrutiny and overview committees more than members of the executive, who will be in the council offices, often making decisions.
We believe that the independent panel should set the provision for local councillors with perhaps guidance and input from the council. We do not think that it would be helpful to have anything that further divides councillors. As I read the clause again I was reminded of Animal Farm. Councillors are supposed to be elected to represent the people. If they become long-term professionals, at some point they will become indistinguishable from the officials. It is important that the position as regards all councillors is equitable and that there are not some who are councillors by profession: they have served a long time; they have a pension; and the likelihood of them moving on is remote. There is no provision in the Bill even for a maximum term for those on pensions. For a councillor in his fifties who has served for a long time to receive a pension might be another incentive to stay on. None of these issues has been thought through in the drafting of the provision. I beg to move.
Lord Whitty: My Lords, I am not sure whether I understand clearly the noble Baroness's case. I do not know whether she proposes that fewer people than provided by the clause should have pensions or that the possibility of pensions should be extended to others. In her latter remarks, she seemed to believe that pensions should not be extended to anyone because
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they encouraged individuals to stay on. As Members of your Lordships' House will know, it is not always pension rights which encourage people to stay on. I suspect that the same applies to councillors.
I understand the anxiety that the provision might be divisive. However, we have to face the fact that if we move to an executive structure many of those executive posts—perhaps by no means all—will effectively be full-time jobs. Although in general the tendency to full-time councillors is not necessarily supported by this side of the House, let alone the other side, the executive function will be equivalent for the time one is on the executive to a full-time job for many executive members. They will, therefore, miss out on pension rights in what would otherwise be their full-time job. It is that situation that we have to address; and we address it here in relation to executive members.
As regards general members of the council, or those who have been but cease to be members of the executive, the same arguments do not apply. If we were to make pensions more available to non-members of the executive, it would encourage a drift towards full-time councillors, which in general we are attempting to resist.
8 p.m.
Baroness Thomas of Walliswood: My Lords, I understand the drift of the Minister's response. However, if, as my noble friend suggested, many members of the council do a considerable amount of work, will there be an option to change the attitude towards pension remuneration? Once the provision is in the Act without guidance attached to it, we might be in difficulty and might have to return to statute in order to make a change.
Lord Whitty: My Lords, the noble Baroness is right. Were we to extend this beyond the executive level, the Bill as it stands would have to be amended in primary legislation. Our position is that this is a facility—not a compulsory one—provided to executive members who would effectively be full-time. We recognise that other councillors would be able to choose whether they are in that position, whereas executive members would be full-time in some situations when they took on the executive position. It is a way of dealing with circumstances which may arise as a result of people taking up particular executive positions. The more general voluntary principle in relation to public service and council service would be appropriate in other circumstances.
With the leave of the House, and as we are dealing with this part of the Bill, perhaps I may mention that it is our intention to table an amendment at a later stage concerning issues relating to other allowances which were raised by noble Lords during the Committee stage. I have written to noble Lords on the Front Bench about that. I am not able to do so today, but I hope to be able to do so during the passage of the Bill.
Baroness Hamwee: My Lords, before the Minister sits down—and I thank him for his last remark—does he agree that we are not talking about equivalent

733
pensions in cash terms for executive and other members of the authority? The pension is likely to be related to the amount that each member receives in salary remuneration. The divisiveness, to which my noble friend referred, is in treatment rather than in cash. I should not like it to be thought that we are suggesting that there should be a cosy financial arrangement for all members, but we want to make the point that equality of treatment is most important.
Baroness Miller of Chilthorne Domer: My Lords, I apologise to the Minister if in my attempt at brevity clarity was forgone. It is plain that I am asking for the independent panel to set the allowances for each council as appropriate in each local circumstance. I ask the Minister to consider that request before the Third Reading of the Bill. As the shadow arrangements have been running for only a short time in the various councils, there is no proof that being an executive member will take more time than being, for example, chairman of the scrutiny and overview committee. The arrangements have not been in place long enough for anyone to know which position will take more time. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 79 and 80 not moved.]
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 81:
After Clause 82, insert the following new clause—
DISCRIMINATION IN THE PROVISION OF FACILITIES OR SERVICES
(".—(1) A local authority shall not cause or permit discrimination as regards the provision of facilities or services save in respect of counseling, health care, education and in the prevention of the spread of disease.
(2) The Secretary of State may make and. from time to time revise, a code of practice on the discharge by local authorities of the duty under subsection (1).
(3) Any provision of a code of practice under subsection (2) which appears to a court or tribunal to be relevant to any question arising in any proceedings in connection with the application of the duty under subsection (1) shall be taken into account in determining that question.
(4) A code of practice or a revised code of practice under this section shall be contained in a statutory instrument which shall be laid before, and subject to approval by resolution of, each House of Parliament.
(5) For the purposes of this section discrimination in the provision of facilities or services is provision which confers upon any group of persons exclusive benefit of such facilities or services not generally available.").
The noble Lord said: My Lords, I rise to move the amendment, which was accepted by the Table as complementary to the Bill as amended in Committee. However, when I spoke to it on Report on Monday, 28th February, on Amendment No. 1 to Clause 2, it was suggested that it should be withdrawn as preempting negotiations and discussions as to general amendments to this Bill and perhaps another Bill to be tabled in due course.
Of course, such discussions must ensue, but, surely, not in total secrecy at a late stage of a Bill so as to preclude the due exercise of the revisory role. The amendment proposes the introduction of a new type of prohibition on the decision-making by a local authority, whether an LEA or not, which is wholly compatible with the European Convention on Human Rights. It is a prohibition of positive discrimination in favour of any group of persons, irrespective of any particular sexual orientation, as regards the provision of facilities and services not generally available. This is not the occasion on which to deploy the argument as recorded in Monday's Official Report.
It is not known whether the Government in these discussions and negotiations are proposing any type of prohibition on the decision-making of a local authority. That is the problem which requires to be addressed. These negotiations—attended by certain noble Lords to my knowledge on the Cross Benches, but there may be others, and a right reverend Prelate, but there may be others—are held in strict confidence behind closed doors, albeit that already as a result of these negotiations amendments have been tabled; for instance, Amendment No. 86 by the noble Lord, Lord Whitty, and Amendment No. 235 to the Learning and Skills Bill by the right reverend Prelate the Bishop of Blackburn. As yet, no amendment has been tabled as to the prohibition on any kind of decision-making by a local authority, save by this amendment and Amendment No. 82, which I shall move in due course.
The House as a whole—and I suspect the usual channels, but of course I do not know—is kept in the dark as to the Government's intentions, other than one intention to repeal section 82. Already, part of section 82 relating to teaching (section 2A(1)(b) of the Local Government Act 1986) could be subsumed by Amendment No. 235 to the Learning and Skills Bill by amendment to the Education Act. But what about the other part, section 2A(1)(a), which could well be subsumed by Amendments Nos. 81 or 82, or by any other amendment which imposed a statutory prohibition on a local authority concerning decision-making?
We have heard a lot of talk about codes of practice without knowing whether they are to have legal efficacy or none. No draft of any implementing document, code of practice, regulations or anything has been laid before this House. We are still kept in the dark. We are now on the second day of Report and negotiations continue in confidence. Shall we be told one day, perhaps today, where the Government stand on this issue and on the merits of this amendment, apart from the objection that it ought not to be discussed because it is premature? Shall we be told on Third Reading that new amendments will be tabled by the noble Lord, Lord Whitty, which represent where the Government then stand as a result of the negotiations? Will then the drafts of any relevant implementing documents be available for us to see?
Is it at all satisfactory, I respectfully ask at this hour of night, that such amendments should he tabled or that such amendments, if tabled, should be first tabled on Third Reading? According to our procedures, we will have foreclosed upon effective scrutiny.
Having said that, I wish to point out that there is no suggestion whatever of any improper motive or impropriety, in particular so far as concerns the noble Lord, Lord Whitty. However, this is an unusual practice. It seems to have crept up quite suddenly on this House. I hope that noble Lords will agree that it needs to be watched carefully. I gave the noble Lord notice that I was going to raise this point so that, if he was so advised, he would be able to deal with it.
Although I understand that the amendments to be tabled by the Government on Third Reading would need to be complementary to the Bill as it stands and that Clause 82 may only be rejected by another place, I do not understand why in principle Amendment No. 81 should not be debated on its own merits. Why must such a debate be precluded on the grounds that, having regard to the negotiations in train, it is premature?
In order to correct the record, I should like to make one point on the drafting which was taken against me in error at the previous stage. I do not believe, as was suggested by the noble Earl, Lord Russell, that the amendment ran into trouble. The difficulty that the noble Earl sought to identify is clearly avoided by subsection (5) of my amendment, which refers to,
"provision of facilities or services is provision which confers upon any group of persons exclusive benefit of such facilities not generally available".
There is nothing to prevent the noble Earl's PE teacher from providing a slightly different regime for someone with a club foot. Furthermore, I am prepared to address again the matter of definition with the noble Earl and any other noble Lord, if so required.
In due course I shall, as I always do, defer to the opinion of the House should any noble Lord wish to express such opinion. In the meantime, I beg to move.
Lord Dixon-Smith: My Lords, as the Member of this House who on Monday ran himself into the deepest trouble over the intervention of my noble friend Lord Campbell of Alloway, perhaps I may say that we are now in effect a working week further down the road on this issue. On Monday I said that my noble friend had raised a number of significant issues.
What I have heard since then, and what causes me concern, is that we now know that discussions are taking place, but that my noble friends who are deeply interested in this subject are not involved in those discussions. It is a fact that, when one is attempting to achieve an agreed conclusion in an area where there are differing points of view, agreement is achieved by discussion with all the parties and not only with some of them. Of course, one must accept that in politics, might can be right. It may be that if a sufficient number of people can, so to speak, be squared, then the views
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of my noble friends can be discounted. However, I do not believe that that would be the most appropriate way to handle the matter.
Having said that, I had never assumed that these discussions would be easy. Still less did I expect conclusions to emerge. What normally happens in this kind of situation is that, in the event that a government are in disagreement, the government themselves attempt to put down amendments and seek a conclusion. However, we have not seen that. It may be that the matter is to be dealt with in another place. If that is the case, then we will have to deal with it when it returns to this House.
I say to my noble friend that I hope that he will not press his amendments tonight. However, I shall certainly support him in his argument that all interested parties in this debate should be involved in the discussions if we are to arrive at an agreed conclusion.
8.15 p.m.
Lord Whitty: My Lords, this debate is a little strange. I understand some of the concerns expressed by the noble Lord, Lord Campbell of Alloway, but his remarks and those of the noble Lord, Lord Dixon-Smith, reflect some of the misunderstanding of the Government's position here. I take the strictures made by the noble Lord on late amendments. Indeed, on occasion I have expressed my own irritation at the position Ministers find themselves forced into either by this House or through outside circumstances. However, as regards this Bill, perhaps I should make it clear that the Government have noted the views taken by this House on what is referred to in shorthand terms as section 28, and I do not intend to bring forward late amendments relating to that point.
For similar reasons, when the noble Baroness, Lady Young, shortly moves her consequential amendment, I shall certainly not oppose it because all the amendments are the logical results of the decision previously taken by this House. It is therefore the case that I shall not ask the House to reconsider that matter until we have received the view of another place.
An entirely parallel area relates to the education concerns that were widely expressed in that debate, but which cannot be dealt with appropriately in this Bill, because it does not apply directly to schools in England and Wales. Therefore, in the context of our education legislation, we have engaged in discussions with the Churches and with others as to whether there is a satisfactory consensus that could be brought forward in relation to education concerns in the education legislation which is not yet before this House.
Baroness Blatch: My Lords, I am grateful to the noble Lord for giving way. Is the noble Lord saying that discussions are taking place on the Bill with which I am involved that totally exclude noble Lords on these

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Benches—that I am not privy even to discussions as to whether an amendment will be tabled to my Bill on this subject?
Lord Whitty: My Lords, as was indicated, a commitment was given by myself and referred to by my noble friend Lady Blackstone that the Secretary of State for Education would consult with the Churches and others as to whether we could bring forward an amendment. That is the normal way for governments to consult with interested parties. At this stage, that consultation is not a multi-party discussion. Noble Lords opposite will be in a position to consider such amendments as we are able to bring forward in due course. Those amendments will have already achieved broad agreement with the Churches and others.
I believe that we are confusing several different issues here. We are confusing those issues that are appropriate to this Bill, some of which are being pursued separately in discussions—I think that the word "negotiations" suggests too institutionalised a form of discussion—between my colleagues in the Department for Education, the right reverend Prelate and others. It is hoped that the results of those discussions will be acceptable to this House when they are brought to fruition. They will then be dealt with in the Learning and Skills Bill. That is an entirely separate matter. It will then be dealt with in the normal way in the context of that Bill.
I turn to the amendments before us in the name of the noble Lord, Lord Campbell. I do not agree with the first amendment, Amendment No. 81, but it is appropriate in this Bill. The amendment introduces a general non-discrimination clause of a rather particular kind in relation to the activities of local government. In my view, the amendment is unworkable. One has only to consider the range of services applied by local authorities to recognise that they depend critically on being able reasonably and legitimately to discriminate between different sections of their community in different contexts. I believe that that point was made previously by the noble Earl, Lord Russell.
Sometimes that involves conflicting priorities in the allocation of scarce resources, and sometimes it means providing to elements of the community services and resources which are not provided to others. So long as the local authority acts reasonably in that respect and within the law, clearly that is an essential task of local authorities. In my view, Amendment No. 81 would cut across the whole of that activity by local authorities so that they would not be able to discriminate, for example, in relation to the elderly, the disabled and, indeed, the gay and lesbian community in the provision of any such services. I believe that that would gravely restrict local authorities. Therefore, if the amendment were taken literally and applied to the whole range of local authority services, I believe that it would be unworkable.
I turn to Amendment No. 82, to which the noble Lord also spoke. I believe that in a sense it is not appropriate because it does not acknowledge the respective legal responsibilities of school bodies and of
738
local education authorities. It seeks to ensure that a local education authority does not cause or permit a school to use certain material as part of its sex education curriculum. Leaving aside the definitional problems of what is and is not appropriate and what the terminology used by the noble Lord means, we could find ourselves in deep water on that issue. However, the point that I wish to make is that, as a result of the Education Reform Act 1988, it is not a matter for the local education authority but a matter for governors and schools to decide what material should be used. That is why I believe that the noble Lord's second amendment is not appropriate for this Bill and why aspects of it are being addressed in a different context.
I take the noble Lord's intentions seriously and I understand that he has proposed these amendments in order to help us through this matter. However, I do not believe that the first amendment is workable or the second appropriate to this legislation. I hope that he will not pursue them.
Baroness Young: My Lords, before the noble Lord sits down, perhaps he will clarify what he said about the arrangements on this Bill. Do I understand that negotiations have taken place between the Government and the Churches and others not named as I understand that no one, at any rate from this side of the House, has taken an interest in this matter? Do I understand that an amendment will be tabled to the Learning and Skills Bill which has a cross-over effect on Clause 82 of the Bill currently under discussion? Is that supposed to be an example of transparency or confusion?
Lord Whitty: My Lords, there may be confusion among some noble Lords opposite. The matter has never been confusing to me. The education legislation is appropriate for education and local government legislation is appropriate for local government services. The discussions to which I refer, and which the noble Baroness and others tend to refer to as "negotiations", quite clearly are discussions. Their existence has been reported in the newspapers and elsewhere and they have been referred to by myself and by my noble friend Lady Blackstone. The discussions are a continuation of the normal discussions between the education department and representatives of the faiths, particularly the Church of England, which has so many schools to which this legislation would apply.
Baroness Park of Monmouth: My Lords, perhaps I may put a question to the Minister for clarification. It seems to me that in this particular clause, put forward by my noble friend, we are discussing initiatives which might be taken by local authorities. I understand that that has happened on many occasions in the past when they have produced material, spent money on producing it and then presented it to the schools. It seems that that is a local government issue, not an educational issue.
Lord Whitty: My Lords, the education legislation makes clear that decisions regarding material used in

739
schools for sex education is a matter for the governors of schools. Their responsibilities are governed by education legislation and not by this Bill or by other local government legislation.
I finalise my response to the noble Baroness, Lady Young. If those discussions reach fruition and we are able to come forward with an amendment which has broad acceptance among the people with whom the Government rightly have discussed the matter—namely, the providers of education and those representing the interests of the faiths and others—we shall do so in that context and shall deal with it in the normal way. If I have to say it again, I shall say it again: that is a different issue from the one on the face of this Bill.
I turn to the amendment in the name of the noble Baroness, Lady Young, carried by the House the other day. At this late stage, I do not seek to bring forward a further amendment, as the noble Lord, Lord Campbell, feared I would. I feel that we are now in a position where the current view of this House is clear and another place must take cognisance of that view. We shall need to consider the matter after the other place has done so. That is the position. I do not know whether I can be clearer than that. I hope that it is clear enough for noble Lords.
Lord Campbell of Alloway: My Lords, I am grateful to all noble Lords and to the noble Lord, Lord Whitty. There is a problem here. I take the view—perhaps quite wrongly—that it is right to amend an element of section 403 of the Education Act and to do certain things which have been suggested already and which, I believe, I supported in Committee. That is my personal view.
However, it is also my personal view that there should be a power of prohibition to prevent the local authority doing certain things. I express the matter quite generally. I dealt with the issue in my opening remarks, but I am in the dark. Is the Government's attitude that there should (as is my approach) be prohibition or that there should not? This is a problem; there is a nexus between the two views. It comes to the fore clearly when my noble friends who hold distinguished positions on the Front Bench do not appear to have been involved in those negotiations. I did not know that. We do not know much on the Back Benches about what goes on on the Front Bench, but I suspected that that was the case. It seems to me that there is something wrong about that: not wrong in an improper sense but something that should perhaps be considered and put right.
At this hour I shall not take issue with the noble Lord on his misinterpretation of the definition clause. Perhaps we may discuss that on some other occasion. I agree with the noble Lord that, of course, no one must table an amendment which is inconsistent with a Bill as amended in Committee. That would be contrary to our procedures. I thank the noble Lord for what he said. I hope that he will reconsider through the usual
740
channels the point of substance on procedure. I accept the noble Lord's assurance and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 82:
After Clause 82, insert the following new clause—
SEXUALLY EXPLICIT MATERIAL IN MAINTAINED SCHOOLS
(" .—(1) After section 2A of the Local Government Act 1986 insert—
"Sexually explicit material in maintained schools.
2B.—(1) A local authority shall not cause or permit material of a sexually explicit nature to be available in any maintained school without the approval and the consent of the Board of Governors.
(2) In any proceedings in connection with the application of this section a court shall draw such inferences as to the intention of the local authority as may reasonably he drawn from the evidence before it.
(3) In subsection (1) "maintained school" means a maintained school or maintained nursery school within the meaning of the School Standards and Framework Act 1998.".
(2) In section 12(3) of that Act, after "Part II" there is inserted "(other than section 2B)".").
The noble Lord said: My Lords, in essence, this is the same sort of problem. Those negotiations also give rise to the problem of definition. It was said in Committee that there was a problem in relation to the definition of "sexually explicit material". Surely nobody would want a lot of the material that we have seen in the exhibition to be made available. Call it what you will, it does not, in fact, involve a definition in law which requires the view of the courts or the opinion of the Attorney-General.
I have particularly drafted the amendment so that it should be for the view of the board of governors and it is entirely a matter for them and for the parents who sit on the board. They decide what is sexually explicit. I should say to the noble Baroness, Lady Hamwee, that the point is taken that the board of governors could delegate that matter to a sub-committee. If the governors allow it, so be it, whatever anyone else thinks about the material. But if they prohibit it and say "No", then that is a classic example for my approach. The local authority should then be prohibited by an express prohibition from making that material available in schools.
Your Lordships may well think that in principle such a prohibition is desirable. That is, with respect, my personal opinion. I beg to move.
Lord Whitty: My Lords, I made the main point on discussing the previous amendment. The noble Lord's amendment seeks to prohibit local authorities from making material available in schools. Local authorities in England and Wales do not have that ability. That is a matter for the governors. Therefore, the amendment is inappropriately targeted. I could have a discussion—although I shall not do so at this time of night—as to whether local authorities should, in principle, have a power of prohibition. But as the amendment is phrased it refers to making the material

741
available. That is a matter for the governors of the school and not for the local authorities. Therefore, the amendment is not phrased in a way which is appropriate for this Bill.
Lord Campbell of Alloway: My Lords, perhaps I may have an opportunity to consider what the noble Lord has said and ask for leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 84 [Wales]:
Lord Whitty Lord Whitty moved Amendment No. 83:
Page 57, line 31, at end insert ("or paragraph 6 of Schedule 1)").
On Question, amendment agreed to.
Clause 86 [Commencement]:
Baroness Young Baroness Young moved Amendment No. 84:
Page 58, line 4, leave out from first ("the") to end of line 5 and insert ("repeal of paragraph 63 of").
The noble Baroness said: My Lords, this is a technical amendment. I beg to move.
On Question, amendment agreed to.
[Amendment No. 85 not moved.]
Schedule 1 [Executive arrangements: further pro vision]:
Lord Whitty Lord Whitty moved Amendment No. 86:
Page 61, line 10, at end insert—
("Overview and scrutiny committees: education functions
6.—(1) In this paragraph "relevant English authority" means a local authority in England which is a local education authority.
(2) This paragraph applies to an overview and scrutiny committee of a relevant English authority if the committee's functions under section 19 relate wholly or partly to any education functions which are the responsibility of the authority's executive.
(3) This paragraph also applies to a sub-committee of an overview and scrutiny committee of a relevant English authority if the sub-committee's functions under section 19 relate wholly or partly to any education functions which are the responsibility of the authority's executive.
(4) An overview and scrutiny committee or sub-committee to which this paragraph applies must include—

(a) one or more persons appointed as representatives of the persons who appoint foundation governors for Church of England schools in the area of the authority concerned, and

(b) one or more persons appointed as representatives of the persons who appoint foundation governors for Roman Catholic Church schools in the area of the authority concerned.

(5) A member of an overview and scrutiny committee or subcommittee appointed by virtue of sub-paragraph (4) is to be entitled to vote at a meeting of the committee or sub-committee on any question—

(a) which relates to any education functions which are the responsibility of the authority concerned's executive, and

(b) which falls to be decided at the meeting.

(6) The Secretary of State may by directions to a relevant English authority require any of the authority's overview and scrutiny committees or sub-committees to which this paragraph applies to include persons who are appointed. in accordance with the directions, as representatives of the persons who appoint foundation governors for such of the foundation or voluntary
742
schools in the authority's area which are not Church of England schools or Roman Catholic Church schools as may be specified in the directions.
(7) Directions under sub-paragraph (6) may make provision with respect to the voting rights of persons appointed in accordance with such directions.
7.—(1) In this paragraph "relevant Welsh authority" means a local authority in Wales which is a local education authority.
(2) This paragraph applies to an overview and scrutiny committee of a relevant Welsh authority if the committee's functions under section 19 relate wholly or partly to any education functions which are the responsibility of the authority's executive.
(3) This paragraph also applies to a sub-committee of an overview and scrutiny committee of a relevant Welsh authority if the sub-committee's functions under section 19 relate wholly or partly to any education functions which arc the responsibility of the authority's executive.
(4) An overview and scrutiny committee or sub-committee to which this paragraph applies must include one or more persons appointed as representatives of the persons who appoint foundation governors for the foundation or voluntary schools in the authority concerned's area which are specified in directions made by the National Assembly for Wales as schools which have a character connected with a particular religion, or particular religious denomination, specified in the directions.
(5) Sub-paragraph (4) does not apply if there are no foundation or voluntary schools in the authority concerned's area which are specified in directions under that sub-paragraph.
(6) A member of an overview and scrutiny committee or subcommittee appointed by virtue of sub-paragraph (4) is to be entitled to vote at a meeting of the committee or sub-committee on any question—

(a) which relates to any education functions which are the responsibility of the authority concerned's executive, and

(b) which falls to be decided at the meeting.

(7) The National Assembly for Wales may by directions to a relevant Welsh authority require any of the authority's overview and scrutiny committees or sub-committees to which this paragraph applies to include persons who are appointed, in accordance with the directions, as representatives of the persons who appoint foundation governors for such of the foundation or voluntary schools in the authority's area which are not specified in directions under sub-paragraph (4) as may be specified in directions under this sub-paragraph.
(8) Directions under sub-paragraph (7) may make provision with respect to the voting rights of persons appointed in accordance with such directions.
8.—(1) In this paragraph "relevant authority" means a local authority which is a local education authority.
(2) This paragraph applies to an overview and scrutiny committee of a relevant authority if the committee's functions under section 19 relate wholly or partly to any education functions which are the responsibility of the authority's executive.
(3) This paragraph also applies to a sub-committee of an overview and scrutiny committee of a relevant authority if the subcommittee's functions under section 19 relate wholly or partly to any education functions which are the responsibility of the authority's executive.
(4) The Secretary of State may by regulations require an overview and scrutiny committee or sub-committee to which this paragraph applies to include one or more persons elected, ill accordance with the regulations, as representatives of parent governors at maintained schools in the area of the relevant authority concerned.
(5) Regulations under this paragraph may make provision for—

(a) the number of persons who are to be elected in the case of any relevant authority,

743

(b) the procedure to be followed in connection with the election of such persons and the persons who are entitled to vote at such an election.

(c) the circumstances in which persons are qualified or disqualified for being so elected or for holding office once elected,

(d) the term of office of persons so elected and their voting rights,

(e) the application to any such committee or sub-committee, with or without any modification, of any enactment relating to committees or (as the case may be) subcommittees of a local authority,

(f) such other matters connected with such elections or persons so elected as the Secretary of State considers appropriate.

(6) Regulations under this paragraph may also make provision—

(a) enabling the Secretary of State to determine, where he considers it expedient to do so in view of the small number of maintained schools in the area of a relevant authority, that the requirement imposed on the committee or sub-committee by virtue of sub-paragraph (4) is to have effect as if it referred to representatives of parents of registered pupils (rather than representatives of parent governors) at those schools,

(b) for any regulations under this paragraph to have effect, where the Secretary of State makes any such determination, with such modifications as may be prescribed.

1998 C 31
9. Expressions used in paragraphs 6 to 8 and the School Standards and Framework Act 1998 have the same meaning in those paragraphs as in that Act.").
On Question, amendment agreed to.
Schedule 2 [Election of elected mayor]:
[Amendments Nos. 87 and 88 not moved.]
Schedule 4 [Minor and consequential Amendments]:
Baroness Young Baroness Young moved Amendment No. 89:
Page 67. leave out lines 41 to 44.
On Question, amendment agreed to.

Community Legal Service (Cost Protection) Regulations 2000
8.33 p.m.
Lord Bach: My Lords, I beg to move the first two Motions standing in my name on the Order Paper en bloc. With the leave of the House, I shall speak also to the Funding Code, although I shall later move that formally.
These instruments, together with negative procedure regulations that are currently lying before the House, and orders dealing with remuneration and transitional provisions that will be tabled shortly, constitute the framework for the community legal service fund that will replace civil legal aid in April this year.
744
I am sure the House will agree that legal aid, created by the post-war Labour government over 50 years ago, has been and remains an extremely valuable and important public service. But in recent years the structure of the scheme has increasingly begun to show its age. It provides few effective mechanisms for controlling expenditure, with the result that spending can spiral, and in the recent past has spiralled, out of control. And it contains no mechanisms for targeting spending on priorities, with the result that the shape of the scheme on the ground is largely determined by the types of work that private-practice lawyers prefer to do and where and how they prefer to practise.
By contrast, the new scheme—the community legal service fund—is designed to enable the Government, through the new legal services commission, to target the public resources available for funding legal services on priority categories and the most worthwhile cases. This House hardly needs to be told that Section 8 of the Access to Justice Act requires the commission,
"to prepare a code setting out the criteria according to which it is to decide whether to fund (or continue to fund) services as part of the Community Legal Services for an individual … and if so what services are to be funded".
The Funding Code is the principal mechanism for achieving that.
Section 8(5) provides for the code to specify the procedures for making these decisions, including conditions that the individual must first satisfy and procedures for appeal. Section 8(8) requires a process of consultation before the code is submitted to the Lord Chancellor and Parliament for approval. In fact there has been a two-stage consultation conducted in the spring and autumn of last year.
As implicitly required by the Act, the code is in two parts: the first contains criteria, the second procedures. The latter broadly replicates provisions in the existing legal aid regulations; for example, about granting and discharging certificates. I do not intend to try the patience of the House by describing these procedures in detail or at all.
The code criteria are based on a number of levels of service, defined in sections 1 and 2—and I am referring to sections of the Funding Code and not of the Act and when I refer to sections in the remainder of my speech, I shall be referring to the code—and designed to ensure that the services provided are proportionate to the matter in hand. The most important levels are, first, legal help, equivalent to advice and assistance now; and, secondly, legal representation, broadly equivalent to full civil legal aid. Legal help is delivered under the Legal Aid Board's general civil contracts which noble Lords will know came into effect on 1st January this year. Legal representation, like civil legal aid, will usually be administered through the issue of a certificate in each case.
Section 4 lists standard criteria that apply to all levels of service: for example, the case must be within the scope of the Act and the client must be financially eligible under regulations. The heart of the code, however, is section 5—the general funding code. That contains separate criteria for each level of service (except those unique to family cases). The criteria for

745
legal help in section 5.2 apply across the board to all categories of case. It would be neither appropriate nor practicable to apply more detailed and specific criteria when a client first seeks help.
On the other hand, the criteria for legal representation in sections 5.4 to 5.7 apply to civil cases (other than family cases) that do not fall in a priority or specialist category. Sections 6 to 13 replace or amend those criteria to reflect the priority or other special features of particular categories of case. The principle underlying most of the criteria in the code is that the public purse should support only cases that a reasonable and prudent private client, of adequate but not unlimited means, would choose to fund with his own money. The exception is where different criteria apply because the case has a significant wider public interest.
The most important criteria, reflecting the private client principle, concern prospects of success and cost benefit. In most circumstances, before cases can be considered for funding they must demonstrate prospects of success of at least 50 to 60 per cent at trial; and hence, a much higher chance of a successful settlement. Similarly, the commission will not fund cases where the likely benefit to be obtained by the client does not justify the likely cost. In the case of quantified financial claims, criterion 5.7.3 sets specific ratios of damages to costs, which vary according to the prospects of success. That provision reflects the kind of calculation that a private client would make before risking his own money. The cost-benefit test for unquantifiable cases is necessarily expressed in more general terms and will require judgment to apply. The intention is to take the quantified test as a guide when making such judgments, and in particular, to require cases with less strong prospects of success to demonstrate greater likely benefits relative to cost.
Sections 5.8 and 5.9 set out the criteria for support funding, which is the new type of funding designed, in particular, for exceptionally expensive personal injury cases. Support funding will be available where the case is pursued primarily under or with a view to obtaining a conditional fee agreement and the investigative or total costs exceed the thresholds prescribed in the criteria. There are requirements also relating to the form of the conditional fee agreement and the existence of adequate insurance against the opponent's costs. The other criteria are the same as those for legal representation.
Section 6 contains additional criteria that will apply in very expensive cases. Those are defined at C23 in the part of the code relating to procedures as cases likely to cost £25,000 to settlement or £75,000 if taken to trial. A few expensive cases take up a disproportionate share of the available resources and it is vital that they are particularly closely controlled. Criterion 6.3 requires all highly expensive cases to be subject to a satisfactory case plan for progressing the litigation. That will form part of an individual case contract between t he commission and the lawyers. Criterion 6.4 requires the commission to consider the availability of resources before granting funding in highly expensive cases, other than those in top priority categories. The
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Lord Chancellor has issued a direction to the commission setting a central budget for that purpose and explaining in detail how it has been calculated. A copy of the direction is in the Library of the House.
Sections 7 and 8 set special criteria for judicial review cases and claims against public authorities alleging serious wrongdoing, abuse of position or power or significant breach of human rights. The priority given to such cases reflects the general public interest in ensuring that public bodies can be held properly to account through the courts. In particular, the House will note criterion 7.5.2 which provides that a presumption of funding will be granted in all judicial review cases where permission has been given by the court and the case has a significant wider public interest, overwhelming importance to the client or raises significant human rights issues.
Section 9 amends the normal criteria for clinical negligence cases, in particular by providing less stringent cost-benefit ratios. Those replicate guidelines introduced by the Legal Aid Board in December 1998, shortly before the specialist clinical negligence franchise category was created in February 1999. Funding was restricted to specialist practitioners from August 1999. Because those important reforms have been in place for so short a period, it was not thought appropriate to make a further change in the code at this stage. However, I am glad to say that there are already indications that the new guidance and the restriction to specialists arc bearing dividends by excluding weak cases from the scheme. The future funding of clinical negligence cases will be kept under review.
Section 10 contains criteria for housing cases. That reflects the priority being given to social welfare law generally as part of the Government's programme for tackling social exclusion. Housing is the principal category within the area of social welfare where legal representation is most likely to be required for proceedings.
Section 11 is a comprehensive set of criteria for family cases. New levels of service are introduced for family cases. Help with mediation covers legal advice in support of the mediation process. General family help funds a solicitor to negotiate a settlement to a matrimonial or other family dispute without recourse to contested legal proceedings. The new levels exist to ensure that wherever possible family disputes are resolved without unnecessary or unduly adversarial proceedings in court. In relation to legal representation in family cases, top priority is given in criteria 11.7 and 11.8 to child care cases, for which funding is available automatically. Other cases concerning the welfare of children and domestic violence also have a high priority, reflected by the relatively generous criteria in sections 11.9 to 11.11.
On the other hand, the criteria for matrimonial cases about financial provision in section 11.12 are broadly similar to those in the General Funding Code, with the addition of a requirement to attend a meeting with a mediator before representation can be provided. In effect, that continues the approach currently applied

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under Section 29 of the Family Law Act 1996; that in certain circumstances, clients must explore the possibility of family mediation before receiving funding for litigation. The inclusion of this provision in the code accords with Section 8(3) of the Access to Justice Act which requires the Code to,
"reflect the principle that in many family disputes mediation will be more appropriate than court proceedings".
Sections 12 and 13 contain criteria for cases before mental health and immigration tribunals. As noble Lords will know, funding for immigration tribunals has been available under existing powers only since January this year. It did not form part of the legal aid scheme when the Access to Justice Act was passed and for that reason the tribunals are not listed in Schedule 2 to the Act, which defines the scope of the scheme. The Community Legal Service (Scope) Regulations before us today rectify that omission by amending the schedule. The regulations further amend the schedule to exclude certain proceedings under the Crime and Disorder Act 1998; specifically, proceedings concerning anti-social behaviour orders, sex offender orders and related parenting orders. Although those are technically civil proceedings, they are closely akin to criminal proceedings and are more usually undertaken by criminal practitioners. The Government have therefore decided that it would be more appropriate for them to be funded as part of the Criminal Defence Service. In due course, they will be included in regulations defining the scope of the Criminal Defence Service. Meanwhile, legal aid remains available.
Finally, I turn to the Community Legal Service (Cost Protection) Regulations. Section 11(1) of the Access to Justice Act provides that,
"Except in prescribed circumstances, costs ordered against an individual in relation to any proceedings … funded for him [as part of the Community Legal Service] shall not exceed the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances, including—

(a) the financial resources of all the parties to the proceedings, and

(b) their conduct in connection with the dispute to which the proceedings relate".

That provides the same protection that legally-aided litigants currently enjoy under Section 17 of the Legal Aid Act 1988. Regulation 3 of the cost protection regulations prescribes the exceptions to this rule. Cost protection does not apply where the client receives legal help or help at court. That broadly reflects the position under the current Act which does not provide cost protection where a litigant-in-person receives green form advice and assistance but is not formally represented by the solicitor in the proceedings. However, regulation 3(2) slightly extends the existing protection to cover the case where a client receives legal help before the issue of proceedings in which he subsequently receives legal representation. Cost protection now applies to any costs incurred by the opponent as a result of steps taken under legal help before the issue of proceedings—for example, steps required under a pre-action protocol.
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Secondly, cost protection does not apply where the client receives litigation support or in most cases investigative support. These are the two forms of support funding in very expensive personal injury cases which I described earlier. These cases will primarily be pursued under a conditional fee agreement. That means that if the funded client's opponent loses the case, he or she will probably be liable to pay a success fee as well as normal costs. In those circumstances, we believe that it would be quite unfair if a successful opponent was unable to recover costs as a result of cost protection. It will therefore be a condition of litigation support that the funded client has insurance against the opponent's costs. The commission will approve the insurance policy in advance, and should the amount insured prove inadequate, Regulation 6 requires the commission rather than the client to meet the shortfall.
Regulation 4 deals with the enforcement of any costs order against the funded client, and broadly replicates the current position. Regulation 5 sets out the circumstances in which costs can be ordered against the commission in cases where cost protection does apply. This replicates the provision in Section 18 of the 1988 Act.
I have taken some time in going through the funding code and the regulations with which we are dealing. However, these are significant matters. These instruments are central to the new scheme that will replace civil legal aid in April. I commend them to the House.
Moved, That the draft regulations laid before the House on 21st February be approved [11th Report front the Joint Committee].—(Lord Bach.)
Lord Goodhart: My Lords, the regulations, and even more the funding code, implement the policy behind the Access to Justice Act. That policy includes a shift of negligence claims almost entirely to conditional fund agreements and involves the cash limiting of civil legal aid.
In the debates on the Access to Justice Bill, we expressed concern on both those issues. We were doubtful whether CFAs will prove as useful as the noble and learned Lord the Lord Chancellor believes. We reluctantly accept the principle of cash limiting but we fear that one result will be a real reduction in funding for civil legal aid, while the uncapped funding for criminal legal aid increases. However, that policy has been decided and it is not appropriate to debate those issues again today.
I should like to start a more detailed study of the code by stating that it seems to me to be extremely well drafted. I am someone who knows professionally a good deal about draftsmanship. It is clear, well laid out and, given the complexity of the subject matter, easy to understand. There are, however, a number of points I should like to raise.
The Law Society is particularly concerned about the timescale involved. The code is not only a lengthy document, but is accompanied by some 290 pages of guidance. The guidance, as I understand it, has had to

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go to print while still under continuing consultation. I understand that the documents will not be made available to solicitors in hard copy until after 28th March, only four days before the orders and the code come into force.
Even starting from now, four weeks is not enough time to enable solicitor firms to train their staff and partners on the operation of a code which comes into force on 1st April. We believe that it would have been better to leave it for a few months longer, rather than to bring it into effect in an enormous rush.
I also have some criticism of the contents. Section 2.3 assumes that prospects of success can be forecast in a mechanistic way which can be expressed in an accurate percentage. Anybody with experience of practice will know that it is impossible to be anything like that precise. There is also an ambiguity in the text. For example, what is said to be a good prospect is a 60 to 80 per cent chance of success; a moderate prospect, 50 to 60 per cent. If the chance is estimated at 60 per cent, is it good or moderate? I believe that the code should say that "good" means at least 60 per cent but less than 80 per cent, and "moderate" means at least 50 per cent but less than 60 per cent.
Perhaps more seriously, there are problems with the fluctuations in prospects. Prospects, as seen by a client's lawyer, constantly alter throughout the run-up to a hearing. Documents may be disclosed on discovery which are either helpful or the opposite. New evidence may be obtained on behalf of one side or the other. What happens if, as a result of such fluctuations the prospect is downgraded from, let us say, very good to good and the case then ceases to meet the cost-benefit criteria in section 5.7.3? Will the funding then be withdrawn under section 14.2, even though the chances are still good? If section 14.2 is permissive, and that is what it appears to be, on what basis will a decision be made whether to maintain or withdraw funding?
Section 2.4 contains a definition of what constitutes the overwhelming importance of a case to the client, that being a factor in deciding, in a number of cases, whether or not assistance should be granted to the client. "Overwhelming importance", according to section 2.4 is limited to the preservation of life, liberty or physical safety or to preventing the loss of housing. But what about the loss of livelihood? Let us suppose that a teacher wants to challenge, by judicial review, a decision to put him or her on the list of those who are not allowed to work in schools. Is not that as important as housing? I am not referring here to the loss of a particular job, but to the loss of an entire career.
The overwhelming importance to the client is an expression which occurs in many places. Section 5.7.2, for example, states that full representation will be refused if the prospects are borderline, the case does not have significant public interest and is not of overwhelming importance to the client.
Section 11.11 deals with private law children's cases; proceedings for residence, contact, and so forth. Section 11.11.5 states that legal representation is
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refused if the prospects of success are poor. That means, clearly, less than 50 per cent. I can see that representation should be refused in such a case if the case is, indeed, hopeless. But if there is a 25 to 30 per cent chance of success, for example, which is plainly not hopeless, should not the parents have a right to representation? After all, decisions on the care of a child, where the child is to live and what contact a parent is to have with a child can be absolutely shattering to the loser. It seems to me that to refuse assistance simply because the chances of success are clearly less than 50 per cent is inappropriate.
I turn to procedure. I have a minor point on Condition 8 which I shall raise simply out of curiosity. It concerns clients who are resident outside the United Kingdom. Section C8.2 states that the applications have to be in English or French. I just ask why French, and, if French, why not German, Dutch and Spanish, and so on?
Finally, section C61, again on procedure, gives power to the funding review committee, on appeal from a decision of the regional director, to reconsider that decision on most issues—for example on the question of the regional director's decision on prospects of success or whether the case is of overwhelming importance to the client—and the funding review committee can substitute its own decision. For some reason, where the issue is whether the case has a wider public interest, the powers of the funding review committee are limited to only judicial review. The committee can alter the decision of the regional director only if that decision is irrational. I wonder why that distinction is drawn.
I apologise for raising a number of detailed points. However, I believe that the code is of great importance. I shall plainly not object to the code on this occasion. However, I believe that it contains difficult issues which may need to be reconsidered, and that such reconsideration may need, in some cases, to be sooner rather than later.
9 p.m.
Lord Kingsland: My Lords, like the noble Lord, Lord Goodhart, I do not think it appropriate at this stage to make observations about the principles that lie behind the code. A great deal was said about the principles in the course of the passage of the Access to Justice Act. Those discussions are now over and we must get on with administering the new regime.
However, like the noble Lord, Lord Goodhart, I share a concern about the way in which the code and its guidance are being implemented. As I understand it, although there has been ample consultation on the code itself, the first draft of the guidance came out on 17th December and the procedure for consultation had to be completed by 10th January. Moreover, it is my understanding that the guidance did not, in that first edition, cover the code procedure. If those facts are true, then I suggest to the Minister that the consultation on the guidance at that stage was woefully inadequate. I suggest also to the Minister that the code without the guidance is no guidance at all.

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There is now a second edition of the guidance, but it has only just appeared and I understand will not be in hard copy form in the hands of the relevant solicitors until the last few days in March. If the whole system is due to come on stream on 1st April, then I entirely share the concern expressed by the noble Lord, Lord Goodhart, about the unfair effect that that will have on practitioners. In those circumstances I, like the noble Lord, Lord Goodhart, urge the Minister, even at this late stage, to reconsider the timing of the implementation of the code. A further six months would probably be a fair solution.
My second set of observations concerns the budgetary measures that lie behind the code. I also share the concern expressed by the noble Lord, Lord Goodhart, that the introduction of budgetary constraints on legal aid was a bad move by the Government. Is the Minister in a position to tell your Lordships' House whether or not each one of the categories from six to 13 under the code will have its own special budget line? If so, is he also able to tell your Lordships' House what will happen in circumstances where one line runs out? Is there some central reserve which can be called upon or are the cash limits going to be implemented with peremptory severity?
Those questions are important, not only because of the views expressed by the Opposition during the passage of the Act and shared by the noble Lord, Lord Goodhart, but also because of the impact that the European Convention on Human Rights might have on the implementation of the Bill. If these budgetary limits bite too severely and affect cases that would otherwise, on the criteria laid down in the Bill, be meritorious, then I suggest to the Minister that the Government are in danger of transgressing their own legal flagship.
Finally, I have one other point, and I shall express it tersely, in relation to the Community Legal Service (Cost Protection) Regulations 2000. I was disappointed that the Minister and Her Majesty's Government did not take the opportunity, under regulation 5(3)(a) to (d), to make life a bit easier for the non-funded defendant who faces an unmeritorious claim by a funded claimant.
Lord Bach: My Lords, I thank the noble Lords from the two Front Benches who have spoken and made their comments on these important regulations. I shall do my best to answer their questions. Indeed, that may be easier with the questions asked by the noble Lord, Lord Goodhart, not because they were easier questions as—such they certainly were not—but because he was good enough to give me some notice of what he was going to ask I have been able to make some inquiries concerning them.
I deal with his points not necessarily in the order in which he raised them. It is important to deal, first, with the issue of timing. It is our intention that the Funding Code should come into operation on 1st April and we point out that the changes were originally announced
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a long time ago—October 1997. Since then, every element of the new system has been subject to extensive consultation—a point accepted by the noble Lord, Lord Kingsland. We believe the profession has had every opportunity to prepare for change.
The Funding Code was subject to two rounds of consultation last year. Every firm that bid for a contract was sent a draft of the code in October last year and invited to comment. The final draft which contains relatively few changes together with the related guidance has been available on the board's website since early February. A full list of the changes to the code since October will be sent to every legal aid account holder next week, together with copies of all the new regulations that will take effect on 1st April.
There was an initial period for consultation to January, but the formal consultation period on the guidance ran to the 28th of last month. The guidance will be amended as required after the first two months of the scheme. I hope that that goes some way towards alleviating the fears of both noble Lords and of practitioners that those concerned will be put in difficulty by the timing involved.
Perhaps I may deal, first, with some of the points raised by the noble Lord, Lord Goodhart. I shall begin with the easiest one. The noble Lord asked why French as well as English is used. I am told—and I merely pass the information on to the noble Lord—that this is a treaty obligation. I understand the reason for this is that English and French are the two languages recognised by the Strasbourg convention on the transmission of legal aid applications.
The noble Lord asked about the 60 per cent "prospect of success" and questioned whether that signified moderate or good. As all of us who have practised know—even at the criminal Bar—estimating prospects is not a precise science, especially not at the criminal Bar. It is not possible to distinguish a 60 per cent case from a 59 per cent case or indeed a 61 per cent case. The bands based on the existing approach to estimating prospects of success, which are set out in the Bar Council's Guidelines on Legal Aid Opinions, reflect a broader judgment than that. A 50 to 60 per cent, or moderate case, will be a difficult case with arguments either way but one which, on balance, is more likely to win than not. However, a good case, with a 60 to 80 per cent chance of success at trial is one that will usually obtain a satisfactory settlement well before that stage.
I turn now to the noble Lord's point about "overwhelming importance" and whether that should include loss of livelihood. This criterion is intended for wholly exceptional cases. The effect is to apply the other criteria to them less stringently; for example, funding would be refused only if the prospects of success were poor. Unfortunately, loss of livelihood is a very broad term and could apply to any case where a person lost his job or business as a result of, say, injury or contractual dispute. Where such cases are within scope, it is right that the normal criteria for prospects and cost benefit should apply.
The "overwhelming importance" criterion is not relevant to child residence cases because the concept is not used in section 11.11 of the code. That already

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provides that private law children cases may be funded, provided that the prospects of success are not poor. We believe that it would be quite wrong to provide funding for legal representation in residence and contact cases that are clearly more likely than not to lose. Adversarial proceedings are best avoided in children's cases in any event. Children need stability and certainty in their lives, not repeated and probably pointless legal disputes between their parents.
There is no "prospects of success" criterion for funding for general family health or family mediation. In the context of private children cases, "prospects of success" means the prospect of securing what the client would regard as a significant improvement in arrangements for the children.
A good question is: what happens if the prospects of success change during the case? As the noble Lord, Lord Goodhart, said, criterion 14.2 provides for funding to be withdrawn if the criteria for grant are no longer satisfied. Funding would almost always be withdrawn if prospects fell below the minimum level to justify a grant. If prospects fell into a lower band so that the cost-benefit criterion was no longer satisfied, funding would normally be withdrawn as well. However, the guidance provides for two exceptions under paragraph 13.8.3:
"The Commission has discretion to delay discharge of the certificate for a limited period to allow a settlement to be negotiated … and discretion to continue funding, if it is in the interests of the Community Legal Service Fund to do so".
That would apply where substantial costs had already been committed to a case that was approaching its conclusions. The limited prospects of winning and recovering those costs might then outweigh the certainty of losing them if the case was abandoned.
I move on now to the example given by the noble Lord, Lord Goodhart, about the teacher. The criteria for judicial review also refer to significant human rights issues. That might well apply in the case of the teacher to whom the noble Lord referred and have a similar effect of classifying the case as one of "overwhelming importance".
I have done my best to deal with the points that were helpfully raised by the noble Lord, Lord Goodhart, and I now turn to those raised by the noble Lord, Lord Kingsland. As regards budgetary constraints, I can tell the noble Lord that there is a special budget that applies only to section 6 of the code—the high-cost cases—and not for other types of case. As I understand it, the question does not arise as far as concerns sections 7 to 13 of the code. I am conscious that I have taken much of your Lordships' time. I hope that my answers are satisfactory to some extent. I commend the draft regulations to the House.
On Question, Motion agreed to.

Funding Code
9.13 p.m.
Lord Bach: My Lords, I beg to move the third Motion standing in my name on the Order Paper.
Moved, That the draft code laid before the House on 28th February be approved.—(Lord Bach.)
On Question, Motion agreed to.

Conditional Fee Agreements Order 2000
Lord Bach: My Lords, I beg to move the fourth Motion standing in my name on the Order Paper.
This instrument, together with negative procedure regulations that are shortly to be laid before the House and rules of court will give effect to Parliament's intention to increase access to justice through making it easier and more affordable to use conditional fee agreements.
Many tens of thousands of people have already benefited from being able to take claims using conditional fee agreements. Many more people will benefit once provisions of the Access to Justice Act 1999 are implemented in April this year. These provisions will allow success fees payable under conditional fee agreements and insurance premiums against the risk of legal costs to be recovered from a losing opponent, rather than from the claimant's own compensation for the wrong or loss that has been suffered.
Section 27 of the Access to Justice Act 1999 substituted the existing Section 58 of the Courts and Legal Services Act 1990 with two new sections. The new Section 58 set out the conditions that were to be satisfied to create an enforceable conditional fee agreement. Read together with the new Section 58A it provides that all proceedings may be the subject of an enforceable conditional fee agreement, except specified family proceedings and criminal proceedings other than those under Section 82 of the Environmental Protection Act 1990. Under the new Section 58(4) the Lord Chancellor may specify the proceedings for which a conditional fee agreement can provide for a success fee. Article 3 of this order provides that success fees may be agreed for any civil proceedings.
So conditional fees will be available in all civil cases. The new provisions for recovery will make their use attractive in cases not involving money. Claimants in these cases cannot rely currently on the prospect of recovering damages to meet the success fee and any insurance premium against the risk of costs. From 1st April it will be easier for them to use conditional fee agreements. Defendants will benefit similarly by being able to use conditional fees. If they are successful, their success fee will be recoverable from the claimant.
The new Section 58A(1) allows the use of conditional fee agreements in proceedings under-Section 82 of the Environmental Protection Act 1990. Section 82 allows people aggrieved by a statutory nuisance to seek an order for that nuisance to be put right. These cases concern, for example, the failure of a landlord to maintain rented housing in a habitable condition. In the light of representations from housing support groups, the Government have decided that

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conditional fee agreements can be made in these cases, but a success fee will not be available. Article 3 of the order therefore makes this exception.
Under the new Section 58(4) the Lord Chancellor also sets the maximum success fee applicable to conditional fee agreements. In consultation last autumn he took the opportunity to ask whether the current limit of 100 per cent for the success fee continued to be appropriate. Opinion among respondents was mixed. Some, including insurers and some solicitors firms, felt that no maximum was needed as assessment by the courts would weed out success fees set at an unreasonable level. Others believed, particularly in respect of personal injury cases, that the 100 per cent limit should be retained to protect unworldly clients.
The Law Society and the Bar believed that for proceedings which might be heard in the Commercial Court and the technology and construction courts a limit of 100 per cent was neither needed nor desirable. The same would also be true, it was argued, of some shipping cases in the Admiralty Court. Clients in proceedings heard in these courts tended to be sophisticated users of litigation services who did not need the protection afforded by the 100 per cent limit.
The Lord Chancellor has, for the time being, decided that the maximum success fee should continue to be 100 per cent for all claims. Article 4 of the order retains this maximum for all agreements where there are success fees. The Lord Chancellor wishes to see how the new scheme for conditional fee agreements is developing before deciding on whether to make any
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changes. He wishes to expand the role of his department as sponsor of the legal sector, especially in the international sphere and will keep under continuous review what is best in partnership with the providers and users of legal services. In the meantime a higher limit will not be set.
Article 2 of the order revokes the Conditional Fee Agreements Order 1998.
This instrument is central to the new scheme for conditional fees. I commend it to the House.
Moved, That the draft order laid before the House on 21st February be approved [11th Report from the Joint Committee].—(Lord Bach.)
Lord Goodhart: My Lords, the principle behind this matter was extensively debated when we were considering the Access to Justice Bill. There is no point in considering that principle again today.
So far as concerns the success fee, I strongly take the view that it was appropriate to have a ceiling on it. It seems to me, for example, that when one is involved in commercial cases or shipping cases, one almost inevitably has clients who do not need to rely on conditional fee agreements in order to litigate. It would be very unfortunate if the use of conditional fee agreements was extended to cover those cases. I believe that a success fee limit should be retained.
Lord Kingsland: My Lords, I have nothing whatever to add to what the noble Lord has said.
On Question, Motion agreed to.
House adjourned at twenty-one minutes past nine o'clock.