Lords Sitting of 3 April 2001

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

Rheumatoid Arthritis: Anti-TNF Drugs
Lord Roberts of Conwy Lord Roberts of Conwy asked Her Majesty's Government:
When the National Institute for Clinical Excellence (NICE) is expected to complete its appraisal of anti-TNF therapy drugs for rheumatoid arthritis.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, the National Institute for Clinical Excellence expects to give guidance to the National Health Service on the clinical and cost effectiveness of etanercept and infliximab for rheumatoid arthritis in October this year, provided that no appeals are made.
Lord Roberts of Conwy: My Lords, I am grateful to the Minister for that Answer. Will he ensure that NICE sets the cost of these drugs against the high cost of rheumatoid arthritis to this country, estimated at£1.3 billion per annum, as well as the benefits which accrue to sufferers who do not respond to standard treatments?
Will he also remind those health authorities across the land which are using reference to NICE as an excuse for denying funds for the purchase of those drugs that that is discouraged, if not prohibited, under the terms of his relevant circular?
Lord Hunt of Kings Heath: My Lords, NICE is required to assess evidence on all the clinical and other health-related benefits of treatment and to judge whether on balance they would represent a cost-effective use of NHS and personal social services resources. That provides the right framework for dealing with the important issue which the noble Lord raised.
Policy guidance issued to health authorities was set out in National Health Service Circular HSC/1999/176. In the light of that overriding guidance, we made clear that health authorities and primary care groups and trusts should not wait for guidance from NICE but should develop policies for the managed introduction of those drugs, as for any other clinical development, based on the availability of evidence as to their clinical and cost effectiveness. The guidance should not be used as a mechanism for failing to take a decision. If the noble Lord has particular cases in mind, I should be happy to investigate them.
Lord Ashley of Stoke: My Lords, the Government offer advice to health authorities, as my noble friend explained. However, what action can they take when those health authorities choose to ignore their advice and refuse to fund the kind of drugs mentioned?
Lord Hunt of Kings Heath: My Lords, if the advice from NICE is that a certain drug should be used for certain conditions, we expect the health authority to implement that guidance. The whole basis of the establishment of NICE is that it enables us to ensure much greater consistency in the introduction and use of cost-effective drugs and other treatments.
As part of our appraisal of the success of NICE, we are monitoring to ensure that health authorities implement such guidance.
Lord Walton of Detchant: My Lords, is the Minister aware that research has shown that the sensitised white blood cells which attack the joints in rheumatoid arthritis produce a substance called "tumour necrosis factor" and that the drugs to which he referred are the first which have been shown directly to counteract that particular factor and thus strike at the heart of the pathological process which is responsible for the disease? Is it not remarkable that these remedies, which were developed in the United Kingdom, are freely available in the USA, Holland and Germany but very scantily available in the UK?
Lord Hunt of Kings Heath: My Lords, I am most grateful to the noble Lord for clearly explaining the potential effectiveness of those drugs. I must agree with him that the clinical evidence for the two drugs is convincing. The history of the NHS over many years involves the inconsistent and patchy introduction of new treatments and drugs which have been found to be more effective than previous ones. The purpose of establishing the national institute was to ensure that we achieve a more consistent introduction and use of such drugs.
Lord Clement-Jones: My Lords, Ministers claimed that the introduction of NICE would end postcode prescribing. That was said to be its key function. The Minister mentioned that the acceptance of the NICE guidelines were being monitored but can he give more details of that? Can he also describe the nature of the enforcement that is taking place? Surely, if we are to end postcode prescribing it is vital that the appraisals and recommendations of NICE are put into practice.
Lord Hunt of Kings Heath: My Lords, indeed it is, which is why we are monitoring the introduction of he guidance. We expect health authorities fully to implement that guidance and we should be most concerned if instances were brought to our attention showing that was not happening. The whole purpose of NICE is to ensure consistent approaches throughout the NHS.
Lord Morris of Manchester: My Lords. I am very often informed by correspondents that these drugs, so

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important in the treatment of rheumatoid arthritis, are, as my friend the noble Lord, Lord Walton, explained, available in many other countries. How do I answer their question: why cannot they be made available here without that most painful form of rationing known as "postcode prescribing"?
Lord Hunt of Kings Heath: My Lords, I agree with my noble friend that postcode prescribing, which has been an endemic problem in the National Health Service, is unjustified given the national nature of the service. But I believe that the introduction of NICE is the best way to enable a consistent approach to be taken and to allow for the speeding up of the introduction of effective medicines and treatment. The whole benefit and purpose of NICE is to provide advice, based on the most careful judgment, as to whether a particular treatment or drug is effective, including cost-effective. Once that advice has been given it will lead to its speedy implementation throughout the National Health Service. I believe that that is the best way to deal with postcode prescribing.
Earl Howe: My Lords, is there evidence to show that what the Minister has just said is correct? Does the noble Lord agree that, surely, it is one thing for NICE to make a judgment about a particular treatment, but it remains for health authorities to fund that treatment once the judgment has been forthcoming, and that has not always been seen to happen in practice?
Lord Hunt of Kings Heath: My Lords, the noble Earl raises two points. It is surely right to expect health authorities to fund the implementation of NICE guidelines from their allocations which, as the noble Earl will be aware, are at a record level. We expect health authorities to implement those guidelines, and we are monitoring that at the moment. If we find an instance in which it has not been implemented we take it up vigorously with the health authority concerned.

Constitutional Change
2.44 p.m.
Lord Renton of Mount Harry Lord Renton of Mount Harry asked Her Majesty's Government:
What lessons they have learnt from the constitutional changes they have so far introduced.
The Lord Chancellor (Lord Irvine of Lairg): My Lords, our major programme of constitutional reform of course drew out profound debate in Parliament and the country about the nature and effectiveness of our institutions, their mutual relationships and our sense of national identity. The Government have both contributed to and learnt from that debate. But we have concluded that we were right to have removed the hereditary peerage from this House, subject to a temporary right for one-tenth to remain; right to have created the Scottish Parliament and the National Assembly for Wales; right to press ahead with
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democratic self-government for Northern Ireland as part of the peace process; right to create the regional development agencies and to restore an all-London tier of government; right to have put the Freedom of Information Act on the statute book: and right to have introduced the Human Rights Act. The Human Rights Act will stand as a major legislative and constitutional monument to this Government's first term of office.
Lord Renton of Mount Harry: My Lords, I thank the noble and learned Lord the Lord Chancellor for that Answer. I heard a great many "rights" in his response. With his well known reputation for listening and taking advice, in the quiet weeks ahead will the noble and learned Lord reflect on two points? First, has devolution in Scotland, Wales and Northern Ireland made the trend towards an English national parliament at Westminster irreversible? Do any of us really want that? How could it be reversed? Secondly, on a more domestic front, is it not time that serious all-party consideration was given to the appropriate powers of this revised upper Chamber? If we are to have a credible ability to revise and delay, is it not time that we went back to the situation in which we had the ability to delay public legislation for two years rather than 13 months?
The Lord Chancellor: My Lords, I do not believe that there is any appetite in England for a national parliament for England. As to the second point, the Wakeham commission was of the clear view that the basic scheme of the Parliament Acts should remain unchanged, and we agree. The noble Lord's proposition would turn back the clock from 1949 to 1911 and allow the Lords to delay for two Sessions, not one, the will of the elected Chamber. That does not find any support from the Government.
Lord Tomlinson: My Lords, given that impressive list of constitutional changes, will my noble and learned friend reflect perhaps a little further on the Human Rights Act and give his view on whether it is settling down or has produced the chaos in the courts that many of its opponents foresaw?
The Lord Chancellor: My Lords, those who opposed the Human Rights Act as some kind of alien intrusion from Europe predicted, as my noble friend correctly said, chaos in the courts and suggested that they would become clogged up with worthless cases making centuries-old English traditions illegal. The prophets of doom have had their day in the media but have been comprehensively proved wrong, as we knew they would be. The courts and Whitehall were well prepared. Our decision to allow for a long pause between passage of the Act and implementation to ensure preparation has been vindicated. Hopeless cases are being rejected; the most important cases are being fast-tracked and sensible decisions are being handed down. Our institutions and practices have been shown to be substantially convention-compliant; where they are not, the Act signals a new partnership between Parliament, the executive and the judiciary to make them more compliant.
Lord McNally: My Lords, does the noble and learned Lord accept that the impressive list that he read out was all part of the Cook-Maclennan agreement between our two parties prior to the last election and that we therefore share pleasure in the progress made during this Parliament? Does the noble and learned Lord believe that an early and radical reform of this Chamber, devolution to the English regions and fair votes for another place would make a good menu for another reforming Parliament?
The Lord Chancellor: My Lords, we welcome support from all quarters, including the Liberal Democrat Party. That is undoubtedly an attractive menu, but it is one to which I cannot commit the Government.
Lord Campbell of Croy: My Lords, have the Government none the less not learnt some lessons from the creation of a London mayor, which has led to disputes and confusion over transport plans, of a Scottish Executive, which is now in the process of decimating the Scottish fishing industry, and of a Cabinet committee, shared with the Liberal Democrats, although the Government still do not know from day to day whether the Liberal Democrats will be with them or against them?
The Lord Chancellor: My Lords, it is of the nature of all forms of devolution that diversity is promoted. It is not necessarily the case that the Government will like every decision of the Welsh Assembly or, indeed, every decision of the Scottish Parliament or Executive. But the function of devolution is to promote diversity, in which we should rejoice.
The Earl of Listowel: My Lords, in the light of the increased proportion of appointed Peers since the reform, does the noble and learned Lord agree that the appointed Peers make an important contribution to the House because of the experience in medicine, social work. politics and other fields that they bring? Does he share the observation that appointed Peers, especially those who serve for a long time in your Lordships' House, suffer from mysterious bouts of amnesia when they forget those who have appointed them?
The Lord Chancellor: My Lords, I am not sure about the noble Earl's latter point because I am sure that every Peer, whether appointed or otherwise, values his or her independence. We are sometimes asked whether the House is now more legitimate. It is in the sense that it now has a predominance of life Peers, who have been individually selected, and it may be that that does make the House more legitimate. However, the Government remain committed to the primacy of the House of Commons, the elected Chamber, as expressed in the Parliament Acts.
Lord McCarthy: My Lords, does the noble and learned Lord accept that the great problem with constitutional reform is that most people find it economically irrelevant? What the regions want is
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more investment from outside and more migration from inside. The trouble with constitutional reform of this kind is that it is entirely irrelevant and makes more difficult those two important economic problems.
The Lord Chancellor: My Lords, I doubt whether there are many in the House who would agree with that. It is of the highest importance to recharge and reinvigorate our institutions and to bring them closer to the people they serve.

Afghanistan
2.52 p.m.
The Earl of Sandwich The Earl of Sandwich asked Her Majesty's Government:
What action they can take to provide humanitarian aid inside Afghanistan.
Baroness Amos: My Lords, Afghanistan is currently suffering from its worst drought in 30 years. This financial year the Department for International Development has provided over£10.5 million of humanitarian assistance to Afghans through UN agencies, the Red Cross and NGOs. As well as drought relief assistance, that includes a longer-term programme of humanitarian assistance to the Afghan population, both in Afghanistan itself and to Afghan refugees in Pakistan and Iran.
The Earl of Sandwich: My Lords, I thank the noble Baroness for her reply. She will be aware that the British NGOs working inside Afghanistan have been severely hampered over the past two years by her department's funding policy on reasonable grounds of security risk. Will she now confirm that that policy has been abandoned and that DfID will be supporting those NGOs which work in situations of grave risk but on their own behalf? Can she say whether the UN sanctions will pose even more problems for the humanitarian work of those organisations?
Baroness Amos: My Lords, the department's policy on Afghanistan has been reviewed relatively recently. Perhaps it would be helpful to the House if I explained that under the previous policy we would not fund NGOs that sent expatriates into Afghanistan against the advice of their own government. As the House may recall, the background to that was the attacks on UN personnel in Afghanistan in 1998. However, we continue to provide humanitarian assistance through UN agencies, the Red Cross and local and international NGOs. The threat still remains, but there have been no serious security incidents for some time. We are now willing to consider funding for agencies that send UK nationals into Afghanistan so long as they are able to assure us about the security mechanisms that they put in place. With respect to sanctions, I do not accept the argument that sanctions

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have caused the crisis in Afghanistan. The current problem has been the result of drought, conflict and unusually cold weather.
Baroness Rawlings: My Lords, I thank the Minister very much for what she has just said about reviewing the policy. We have been pressing for that for some time. I should declare an interest as patron of the Rokha health clinic in the Panjshir Valley. Does the Minister agree with the UN in recognising President Rabbani and the Northern Alliance Government as the true governing body in Afghanistan and not Taliban representatives in Kabul? Does she agree, too, with the military leader in the north, Ahmed Shah Maoud, who states correctly,
"that the Afghan people, with considerable self sacrifice, played an important role in the defeat of Communism",
and that the religious, fanatical Islamic posture of Taliban is as great a threat to the world as communism was? What are Her Majesty's Government doing to encourage Pakistan to withdraw ISI and regular army support from the Kabul regime?
Baroness Amos: My Lords, I am aware of the concerns expressed previously by the noble Baroness, Lady Rawlings, with respect to our policy on funding NGOs. I am pleased that she welcomes the new initiative. The noble Baroness will be aware that we do not consider there to be an effective national government in Afghanistan with whom we can conduct government-to-government business. The noble Baroness asked about Pakistan. She will be aware that we are constantly engaged in discussions with the countries surrounding Afghanistan, including Pakistan, in order to try to achieve a peaceful resolution to the crisis in Afghanistan.
Lord Redesdale: My Lords, the recent actions of the Taliban in destroying the poppy crop in Afghanistan will have a major impact on the prevalence of heroin on the world market and over the next year will lead to a decrease in the amount of heroin available. Does DfID have a role in helping those farmers who have had their crops destroyed to diversify into other areas?
Baroness Amos: My Lords, Afghanistan is the source of 95 per cent of the heroin that reaches the UK and western Europe. Last year the Taliban issued a decree denouncing poppy cultivation and ordered that all poppy crops be destroyed. There are mixed reports on the effectiveness of that decree. There is undoubtedly less cultivation, but we do not know whether that is as a result of the drought or the decree. We are already providing humanitarian assistance that benefits farmers who have lost their livelihoods.
Baroness Whitaker: My Lords, can my noble friend say what action the Government have taken following the closure of the BBC office in Kabul, which is very much to be regretted?
Baroness Amos: My Lords, the Government have raised the closure of the BBC office with the Taliban
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mission in Islamabad. In doing so, we have underlined our commitment to press freedom and to the BBC's record for impartiality and independence.
Lord Weatherill: My Lords, can the noble Baroness say which organisations carrying out de-mining operations in Afghanistan currently receive assistance from the United Kingdom Government? Are they affected by current funding policies?
Baroness Amos: My Lords, the UN Office for the Co-ordination of Humanitarian Affairs carries out mine action activities in Afghanistan. Recently we undertook a review of those mine action activities and we are currently considering the options as regards further support for that programme.

MRSA: Vaccine Development
3 p.m.
Baroness Masham of Ilton Baroness Masham of Ilton asked Her Majesty's Government:
What research they are sponsoring to develop a vaccine for the "superbug" methicillin-resistant staphylococcus aureus (MRSA).
Lord Hunt of Kings Heath: My Lords, a research advisory group has reviewed needs in the field of antimicrobial resistance. It has recognised the importance of vaccine development. Recommendations that further detailed consideration be given to this area, in collaboration with the Medical Research Council, industry and other funders will now be taken forward.
Baroness Masham of Ilton: My Lords, I thank the Minister for that rather vague reply. Is he aware that MRSA has spread to most hospitals in the country? People are becoming fearful of going into hospital for routine operations. This problem is costing the National Health Service an immense amount of money, as well as exacting a high toll on human resources.
Lord Hunt of Kings Heath: My Lords, the Government regard the matter of MRSA and hospital acquired infection in general as one of great concern. Indeed, two reports from the Select Committee of your Lordships' House have drawn attention to the challenges we face. We have issued guidelines to the NHS. We have introduced a system of controls assurance which makes the chief executive of every NHS trust report to the board on the measures being taken to ensure that everything possible is done to reduce the incidence of infection. I also believe that we need to ensure that preventive measures are adopted. Some of those measures are as basic as ensuring that simple hand-washing is undertaken by all staff in hospitals.
Lord Clement-Jones: My Lords, in January this year the Government announced what they described would be the biggest ever hospital clean-up and stated that they would launch a series of unannounced visits to every hospital in the country by the end of March. What are the results of that hospital inspection process and how prevalent is MRSA in those hospitals?
Lord Hunt of Kings Heath: My Lords, MRSA is prevalent, but the data we hold at present are not sufficiently robust to enable me to give definitive answers to the noble Lord's questions. That is why we have introduced a new data collection system from 1st April this year. It will establish a baseline from which we shall be able to monitor the progress being made and, potentially, then issue targets to the NHS to ensure that the incidence is reduced.
Having launched Operation Clean-Up, I can tell the noble Lord that we established patient environment action teams which have made regular visits to over 400 hospitals in NHS trusts over the past few months. The teams have graded the hospitals into green, yellow or red groups. Those hospitals which are seen to be in some difficulty over cleaning have been told in no uncertain terms exactly what improvements need to be made. We shall announce the overall results of that initiative in due course, but the indications are that it is having a considerable effect.
Lord Rea: My Lords, will the new database mentioned by my noble friend in his last response be based on a national surveillance scheme to measure the extent of microbiological antibiotic resistance in all hospitals in the United Kingdom? Furthermore, can he tell the House whether the Government envisage introducing a scheme so that residential care homes and nursing homes will also be covered, perhaps on a sample basis? They often act as reservoirs for MRSA infection.
Lord Hunt of Kings Heath: My Lords, I can confirm to my noble friend that the new data collection scheme will embrace all the NHS trusts in England. So far as residential care homes and nursing homes are concerned, such information would be covered by the PHLS Piloted Communicable Diseases Surveillance Centre, which is based on capturing and collating the results of all antibiotic susceptibility tests performed on routine specimens in microbiology laboratories. That scheme will be rolled out to other regions over the next two years.
The other way in which residential care homes and nursing homes can be covered is through their regulation, at present undertaken by health and local authorities, but in the future to be undertaken by the national care standards commission. I am sure that the commission will wish to look at rates of infection in individual homes.
The Countess of Mar: My Lords, in view of the fact that it has been reported that each year more than 5,000 people are killed off by the National Health Service through infections and that many thousands
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more are made seriously ill, perhaps I may make the following recommendation. As no one has yet died from eating unpasteurised cheese in this country, perhaps the Government should move those environmental health officers currently employed to watch what we do to work in hospitals?
Lord Hunt of Kings Heath: My Lords, that seems to be an extremely helpful suggestion and I am sure that it will be given every consideration. We have to be cautious about the estimated figure of 5,000 deaths. That estimate was based on a 1980 study undertaken in the United States which used 1970s data. However, we have to be extremely concerned about any potential deaths arising from MRSA or wider hospital-acquired infection. This stresses the importance of ensuring that the new data collection scheme is effective. We shall then be able to make future judgments and set targets against that data.
Earl Howe: My Lords, is it not time to bring back matron?
Lord Hunt of Kings Heath: My Lords, the noble Earl knows that I am very keen to bring back matron. We have introduced modern matrons as part of the NHS Plan. Those staff will be real matrons because they will have the authority to deal with issues in relation to cleaning, linen, catering and the feeding of patients, which the previous government disempowered ward sisters from undertaking. That is why we are reintroducing the whole concept of clinical nurse leadership in our hospitals.

Northern Ireland Arms Decommissioning Act 1997 (Amnesty Period) Order 2001
3.6 p.m.
The Minister of State, Cabinet Office (Lord Falconer of Thoroton)rose to move, That the draft order laid before the House on 27th March be approved [12th Report from the Joint Committee].
The noble and learned Lord said: My Lords, since the House last considered this issue on 16th May 2000, when it approved the existing amnesty period extension order, we have achieved significant political progress in Northern Ireland. Devolution has been operating successfully for 10 months. This period has seen the publication of the first Budget by a local Northern Ireland politician for over 30 years and agreement by the Executive on a programme for government, endorsed by the Assembly as a whole. Local politicians have demonstrated that it is possible for individuals from different sides of the political divide to work together for the common good.
Progress has continued to be made on the implementation of every aspect of the Belfast agreement. New arrangements are being put in place to enhance the protection of individual rights and opportunities. The Government have moved ahead with policing reforms and remain committed to creating a police service for Northern Ireland that has

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the trust and respect of everyone in the community. The Government expect to publish draft legislation shortly which will implement many of the recommendations made by the Criminal Justice Review.
The British and Irish governments and all of the pro-agreement parties have remained in regular and close contact and have continued to demonstrate their commitment to the agreement. The Prime Minister has made two visits to Northern Ireland this year, first in January and again in March, during which he held useful and constructive discussions. From these it clearly emerged that all participants wanted to see substantial progress made on all of the outstanding aspects of the Belfast agreement by June of this year.
With decommissioning, progress has continued to be slower than any of us would have wished. Even so, there has been some movement. Following the IRA statement of 6th May, there have been two separate inspections of a number of IRA weapons dumps. On each occasion, the independent inspectors, Martti Ahtisaari and Cyril Ramaphosa, reported that they had seen a significant number of weapons and that the IRA was serious in its pursuit of peace. After the second inspection they were also able to report that the arms dumps had not been tampered with in the intervening period.
Two weeks ago, the IRA re-engaged with the de Chastelain commission. In their recent report on 22nd March, the commissioners stated that this re-engagement was "in good faith" and that they believed that progress could soon be made.
None of this is to deny that the process is still beset with difficulties and uncertainties. We have yet to secure what we all wish to see: the start to actual decommissioning; and the removal of the bomb and the bullet from Northern Ireland politics for good. That is why it remains important for us to keep in place all of the mechanisms which will make decommissioning possible. The amnesty period extension order is one such mechanism.
The amnesty period is the time during which firearms, ammunition and explosives can be decommissioned in accordance with the scheme, thereby attracting both the amnesty and the prohibitions on evidential use and forensic testing of decommissioned items provided by the Northern Ireland Arms Decommissioning Act 1997.
Section 2 of the 1997 Act requires that a scheme must set out the amnesty period. The initial period had to end before 27th February 1998, but the Act gave the Secretary of State power by order to extend the scheme by a maximum of 12 months at any one time. Four such orders have been made to date. Under the order made in May last year, the amnesty period will expire at midnight on 19th May this year.
The day appointed in any order must not be more than five years after the passing of the 1997 Act, and this five-year period will end at midnight on 26th February 2002. The order currently before the House appoints 27th February 2002 as the date before
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which the amnesty period identified in a non-statutory decommissioning scheme must end. This is the maximum extent permitted under that Act.
The Prime Minister and the Taoiseach said at Hillsborough Castle on 5th May last year that,
"the remaining steps necessary to secure full implementation of the Agreement can be achieved by June 2001".
This remains the Government's position. However, as the legislation currently stands, all decommissioning—including decommissioning by loyalist groups—would have to be completed by 19th May, which is when the current amnesty period will expire. This is clearly unrealistic. That is why the Government are bringing this order before the House today.
In preparing this order, we obviously had to consider what was the optimum date for extending the amnesty period. One possibility was to set a June date. However, the Government concluded that inviting the House to agree an extension of only a few weeks was not sensible.
The reality is that decommissioning is a voluntary act, and it is not only the IRA which must decommission. Some of the loyalist groups which are committed to the agreement have made it clear that they will only consider decommissioning after the IRA has made tangible progress itself. So, while we want to see decommissioning take place by June, it would be unhelpful to treat that as a deadline after which the scheme would cease to be available. We want the decommissioning commission to be able to deal effectively with all groups which still have illegally held weapons. In our judgment, it would be counterproductive not to have some flexibility over timing.
To come back to the House in June for an extension for a further period would not, we believe, have been helpful. We believe that it is far better to extend the present arrangements for the full nine-month period permitted by the legislation, which is, of course, a shorter period than the House has endorsed on a number of previous occasions.
The Government share the frustration of many noble Lords over the intractability of the decommissioning issue. However, in our view, there is no sensible alternative but to keep working away at it. This order creates the framework in which we can continue to do that. I commend the order to the House. I beg to move.
Moved, That the draft order laid before the House on 27th March be approved [12th Report from the Joint Committee].—(Lord Falconer of Thoroton.)
3.15 p.m.
Lord Glentoran: My Lords, I thank the noble and learned Lord for moving the order. With certain reservations, which I shall speak to, we support the need for the order.
As the noble and learned Lord pointed out, at the time of the Good Friday agreement, full implementation was expected by May 2000. That date is long gone and a lot of history has past since then.

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Last year, the governments in Dublin and London set a new date of June 2001. That date has not yet arrived, but the noble and learned Lord is moving the order in the anticipation that nothing will happen before June this year. Although I understand where the noble and learned Lord is coming from, I am sorry about that in many respects.
I believe that the Government are making a serious mistake in deciding to extend the period to 27th February 2002 because it sends a number of wrong messages. First, it is quite clear that an enormous amount of continuous pressure is required on the republicans—and, indeed, on the loyalists—to get them to move at all. This order will lift the pedal—it will lift the pressure off them—and they will assume that nothing is expected of them until somewhere around January/February 2002.
Secondly, February 2002 is the wire; it is the end; it is the deadline for the Act as it stands. That could well give the next government—I hope that they will be of my party—considerable problems. We have heard and seen how incredibly difficult it is to get the decommissioning that we all want, and I feel that a deadline of 27th February 2002 risks backing the government of the day into a tight corner.
I believe that Sinn Fein/IRA can deliver if it chooses to do so arid if there is sufficient pressure. The organisation is run by its army council. As Peter Robinson MP did in another place yesterday, I shall name that army council. He said:
"What is the highest level of the Provisional IRA? It is its army council. Who is on the army council of the Provisional IRA? The chief of staff is Thomas 'Slab' Murphy. The assistant chief is Brian Keenan. The other members are Martin McGuinness, the Minister of Education in the Northern Ireland Assembly: Gerard Adams, leader of Sinn Fein; Martin Ferris, another Sinn Fein member; Patrick Doherty, another Sinn Fein member; and Brian Gillen. They are the seven members of the army council of the Provisional IRA, a majority of whom are members of Sinn Fein".—[official Report. Commons, 2/4/01; col. 144.]
They are members of the political party that calls itself Sinn Fein and which takes part in our devolved government in Stormont. The point I am making is that they control the Provisional IRA. I am not suggesting that they control the Real IRA or the other dissident groups, but if there is sufficient pressure, and if they think it is right, they can set the scene for decommissioning.
The republican movement is a master of the two strategies described by the acronym "TUAS": "Totally Unarmed Struggle" and "Tactical Use of the Armed Struggle". These two strategies are run side by side, and we have watched their success for years. It is now time for Sinn Fein/IRA to end the ambiguity and deliver on decommissioning. If it does, as the noble and learned Lord indicated in opening, we believe that the loyalists are prepared and ready to follow.
However, the republicans still believe that there is more to be gained by continuing with the TUAS strategies. This can perhaps be demonstrated by the fact that, even now, they are informing their West Belfast constituents in a leaflet that they have succeeded in ridding them of the RUC and that the police reservists will be off the streets by next year. I am
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fearful that such a situation may come to pass. I understand from the press that the Chief Constable and most of the top echelon of the RUC will be gone by the summer of 2002. The comments of Mr Pat Armstrong, the chairman of the Northern Ireland Police Authority, when presenting the policing plan for 2001–02, lead me to believe that he has serious doubt that there will be sufficient resources available to police the Province for the next year while implementing the new structures required by Patten and the Northern Ireland Police Act.
I make these points because the situation is still very serious. I know that we have had no bullets in public and no big bombs for a few years, but they have not gone away. We still have the growing threat of the Real IRA and Continuity IRA. We believe that there are leakages of arms and technology from the Provisionals to the dissident groups—although, as I said, we do not necessarily believe that Adams, McGuinness and company in the army council have much control over them. Added to that, we have a serious escalation of organised crime, as has been recently recognised by the RUC and the establishment of a new special task force to tackle it.
Whatever happens over the election period—regrettably for Northern Ireland this will be a prolonged and extended period—the Government must not take their eyes off the escalating problems in Northern Ireland. However, an extension to the amnesty period is clearly necessary and, with those reservations, I support the order.
Lord Smith of Clifton: My Lords, on these Benches we shall support the extension of the decommissioning period for a further nine months. However, in the spirit of bipartisanship it must be asked how long the Government envisage the situation continuing. It is questionable how far the peace process is served by such regular extensions, which are becoming all too predictable. Certainly, it hardly enhances the standing of Parliament to be associated with what is becoming something of a charade.
It is equally true that too much has been invested politically in the act of decommissioning per se, which, as almost everyone acknowledges, would be almost wholly symbolic. The reality is that Provisional IRA weapons are not, and have not been, in use for some time—although, as the noble Lord, Lord Glentoran, said, there may have been some seepage to other Republican paramilitary bodies. The fact of non-usage has to be acknowledged, as does the increased activity of the loyalist paramilitaries, which again does not assist in progressing the Belfast agreement. Both points need to be factored in to the equation that comprises contemporary politics in Northern Ireland.
Let us hope that after the general election a more normal politics can be established so that people can get on with building a democratic society. I know that that is asking a lot in the context of Northern Ireland, but it means a reduction in symbolism arid its associated rhetoric. That would be a real act of decommissioning.

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Can the Government estimate when substantive moves in decommissioning are likely? What position will the Government take if nothing positive has occurred by 27th February next year? I regret to say that in the light of experience that is not a hypothetical question.
Lord Molyneaux of Killead: My Lords, as has been said, the introduction of the extension order merely confirms the well-founded suspicion that the parent Act of 1997 was always intended to be a moveable feast. It is for that very reason that the government of the day—and they are not the only guilty ones—found it necessary to come back and literally humiliate Parliament by inviting Members to engage in something that was clearly unworkable and could not be sustained. It is a further insult to law-abiding citizens that terrorists are to be granted still further amnesty, despite the fact that not one ounce of Semtex and not one bullet has been surrendered after all these years.
Against the advice of those of us who had first-hand experience in these matters over many years, both Houses of Parliament—I suppose with the best of intentions and a degree of optimism—gave unconditional approval to the Belfast agreement, which insisted that all weapons must be handed over by 22nd May 2000. Sadly, that date came and went and every single undertaking was dishonoured. All that happened was that when both governments sounded tough we had the appearance—but only the appearance—of movement on the part of the terrorists, both republican and loyalist. That appearance usually took the form of a mere telephone call to the de Chastelain commission, which was always welcomed and labelled by the commission as "encouraging developments"—that was the summary of a mere telephone call. A telephone call was "sold" by government Ministers and others who should have known better as "a breakthrough".
On a lighter note, I suppose that we can safely assume that as the next deadline approaches in June, one Mr P O'Neill—who I understand from the list is not a paid-up member of the army council but lends his pen name to all communiqués of any significance—will have collected sufficient coins to telephone de Chastelain and the telephone call will pass as another "encouraging development". Should the supply of coins be sufficient to finance a lengthy discussion, I believe that the de Chastelain commission would feel bound to proclaim "a breakthrough".
The noble and learned Lord echoed yesterday's Statement at the Dispatch Box in another place by the Northern Ireland Office Minister responsible for security, Mr Adam Ingram, who quoted the joint statement on 5th May last year by the British and Irish Prime Ministers that,
"the remaining steps necessary to secure full implementation of the Agreement can be achieved by June 2001".
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Mr Ingram added:
"That remains the Government's position. We are absolutely clear that we want to see substantial progress on decommissioning by June [this year]".—[Official Report, Commons, 2/4/01; col. 134.]
The significance of these undertakings will not be lost on the Northern Ireland electorate in the month of June. If the two governments indulge this time in any form of fudge or slippage, they will expose to electoral annihilation those Ulster politicians who have been forced repeatedly to make concessions, only to be abandoned and betrayed. Unfortunately, that will be the view of the electorate.
The electorate needs to know, not in June but now, exactly what will happen, not if but when the latest deadline produces no result whatever. Will Her Majesty's Government calmly accept the collapse of the Belfast agreement, the Assembly and the Executive, complete with its two IRA army council members? If there are no plans for a workable alternative, I have to ask the Minister—I understand that there may be limits on what he can say now—whether the Government have prepared a contingency plan, as all governments do in all circumstances, for continuing sound administration in Northern Ireland, appropriately protected from the mushrooming paramilitary bodies and gangs? In that context, I want to emphasise that one of the most dangerous groups of gangs are those of the drug barons on the so-called loyalist side, particularly in North Belfast. There are Members of this House who have more detailed knowledge of the threat posed by those bodies in that part of the city.
The Government will find such a plan for the future good governance of Northern Ireland set out in the Conservative Party manifesto for 1979. It recognised the unworkability of full-blooded legislative devolution and proposed instead a modest administrative structure not far removed from the present, seemingly workable, structure that operates in Wales. I have quoted a political party, but the idea was endorsed by more than just members of that party. Section 22 of the 1979 Conservative manifesto was endorsed by 14½ million electors in the United Kingdom in general.
My suggestion might appear to ignore the continuing menace of political armies, but fortunately—and encouragingly—in the past few weeks we have seen a very convincing remedy to terrorism. The limited incidence of foot and mouth in the area on the Irish frontier caused the immediate sealing of the frontier by a massive array of security forces based in the Irish Republic. So effective has been that operation, mainly on the Irish side of the frontier, that the repeated question has, quite understandably, been asked: why was this not done years ago to prevent the terrorist murders of over 3,000 British citizens? Given that terrorists operate in the main from the Irish Republic, where de Chastelain and company confirmed that all of the arms dumps are situated, surely the continued sealing of the frontier by

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Irish security forces, both Garda and army, would be the logical consequence of the utter collapse of the decommissioning fiasco?
Finally, I have to say that there would be full cooperation from the law-abiding citizens of Northern Ireland in any course upon which Her Majesty's Government decided to embark, both as far as concerns real security and the work of stable government in Northern Ireland. It is no excuse to say, as has been said by a Member of this House who is presently absent from the Chamber, that those plans made in 1979 were not enough. Of course, they were not enough to fulfil the ambitions of people on all sides of the argument. But had they been implemented, they would have started on firm foundations and literally thereafter there would have been no limit to what could have been achieved.
3.30 p.m.
Viscount Brookeborough: My Lords, I believe that everyone present agrees about the disgust we feel for the lack of decommissioning of terrorist weapons. This extension order shows how government policy has failed in this respect. I do not say that in an effort to try to get at the Government: it is a fact that that has failed. I should like to add one point. This decommissioning is only the tip of the iceberg of terrorist infrastructure, which includes such issues as intimidation, fraud and smuggling.
Let us take the latter as an example. I trust that noble Lords will at least believe what I am about to say, and that they will definitely share some affinity with it. I have in mind foot and mouth disease. The smuggling that is endemic in South Armagh is the cause of Ireland's problems with foot and mouth today in its totality. As I understand it, what happened is that lambs were bought in Longtown market. They were then transported to Northern Ireland to be slaughtered. According to the driver of the transporter, who appeared on television, he arrived too late to go to the abattoir. He took the lambs to South Armagh so that, so far as he was concerned, they could be put in a field for the night.
At that point, or sometime shortly afterwards, the tags were removed from those animals and they were sent on to the Republic of Ireland. It would appear that the farmer, or someone close to the field where the lambs were placed for the night, decided to keep about 35 of them—perhaps because they were nice ewe lambs, or whatever. It was one of those animals that subsequently developed foot and mouth disease. The remainder of the lambs are untraceable at the moment because the tags were taken out of their ears. In all probability, they went on—some of them definitely did—to an abattoir in Roscommon where they were slaughtered. However, there is no record of them because their tags were removed. A large hunt was subsequently launched for the lambs purely because there is no record of their being killed. That sort of activity has been going on for years in—dare one say it?—terrorist-controlled South Armagh.
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When lambs are slaughtered in the Republic of Ireland, the belief is that they are then sold as "Irish lamb" to the French, or whoever. Not surprisingly, that has an added value because the French prefer Irish lamb. However, they are being conned: they are not Irish lambs. It is smuggled meat. This is the cause of our foot and mouth outbreak in Ireland. As I said, arms decommissioning is just the tip of the iceberg.
The Minister mentioned the benefits that we have received in Northern Ireland. I agree with the noble and learned Lord in that respect. For example, we have the Assembly and we are able to manage our own budget. But what many people do not understand is the fact that the people of the North and South of Ireland are still being held to ransom by every other activity that these evil men lay on us. It is perhaps the unseen side of the story that people do not realise is still going on. I believe that we have not had one single weapon handed over. We shall not get anywhere until we have achieved that objective.
The decommissioning of weapons is vital. This Government must push for it. They must insist upon it. Although I support the extension order, we cannot continue extending it. Food health and hygiene—whether it is a matter of BSE, foot and mouth, or illegally-imported meat—is so important at the borders of this country with the rest of Europe, or outside it. If we do not sort out the problem now, it will happen again.
Baroness O'Cathain: My Lords, can the noble and learned Lord say whether it is true that, as the noble Lord, Lord Molyneaux said, not one single ounce of Semtex—or, indeed, one bullet—has been surrendered? Further, can he confirm that, as the noble Viscount, Lord Brookeborough, said, not one weapon has been handed over? In all conscience, if that has been the position since 1997, the amnesty order having been extended to June 2001 and now to be extended to 27th February 2002, cannot we just say that this is a charade?
I am not so sure that it is such a bad thing, as everyone is saying. I guess that there has been some sort of reduction in the ghastly killings in Northern Ireland that have taken place since 1969. Perhaps we must have this fig-leaf going on indefinitely, in perpetuity. Is it not a bit of a charade to say that we shall extend it now until 27th February 2002? Could we not just extend it indefinitely?
Lord Dubs: My Lords, it seems to me that every day that devolved government goes on working is a day that contributes to peace. The longer we have devolution working successfully alongside a peace process, albeit with flaws, the better the chance of winning through in the end. Further, based on my experiences in Northern Ireland, it is my firm belief that both sides—that is, both the Ulster Unionist Party and Sinn Fein—have very little margin for political manoeuvre. The difficulties of the Ulster Unionist Party are open and transparent; indeed, we can all understand them because they are the subject of public debate. However, the difficulties that Sinn Fein faces

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in terms of its own organisation and its relationship with the IRA are not quite so obvious because it keeps them secret. I believe that Sinn Fein's difficulties are every bit as great as those of David Trimble as leader of the Ulster Unionist Party.
It would be a disastrous outcome for the peace process if there were to be a bigger split in the IRA than we have already seen through the hiving off of the Real IRA and the Continuity IRA. If Gerry Adams were to lose control of a larger proportion of the IRA membership, that would spell doom to the peace process. We should be more understanding of the difficulties that he faces within his organisation than is perhaps obvious in public utterances. Although I have no evidence, I suspect that some of the difficulties about achieving decommissioning are that the leadership of Sinn Fein, who, I believe, do want peace, feel that they have very little margin for manoeuvre. That is why the decommissioning process is taking such a long time. I believe that there has been a small amount of decommissioning by the LVF, but clearly there has not been the substantial element of decommissioning that we would all have wished.
I do not believe that the process is a charade. I believe that it is an important process. Enormous progress has been made in Northern Ireland since devolution but it is not reflected in the speeches that we have heard this afternoon. For the majority of people in Northern Ireland there is peace and more prosperity, and the economy is doing well. We should not so readily dismiss the gains that have been made because not everything has yet been achieved. Decommissioning is important and, of course, it is right that the Government should pursue it.
The two greatest threats to the agreement are the paramilitaries on both sides who are not on ceasefire—we know who they are—and if we were to lose belief in the peace process. The order is important because it is a sign that decommissioning must take place. However, we must not lose faith in the peace process. That is what we are offering the people of Northern Ireland. It is important that they understand that we realise their difficulties but we also understand the enormous progress that has been made.
Viscount Brookeborough: My Lords, before the noble Lord sits down, he implied that some of us spoke in a totally depressing manner and did not appreciate that any good had come out of the agreement. I think that I speak for all of us who come from Northern Ireland. We all appreciate very much what has come out of it, perhaps more than is realised. However, what we cannot do—dare I say it?—is waste people's time going over that kind of ground when we are talking about decommissioning and the problems brought about by it.
Lord Dubs: My Lords, I understand what the noble Viscount says. My point is simply that in this and other debates on Northern Ireland not much is said about the progress that has been made and the improvement in the quality of life that has been achieved for the bulk
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of the people in Northern Ireland, even if, understandably, the debates concentrate on the progress that has so far not been achieved.
3.45 p.m.
Lord Rogan: My Lords, this order is a facilitating measure that provides a legal climate in which decommissioning could take place.
By suspending the normal criminal law, and providing an amnesty for those who become involved in the process of decommissioning, we remove an important legal barrier and facilitate that process. In this sense I endorse the order, but my support is qualified and I shall return to my reservation shortly.
We are all aware of the importance of decommissioning, of its importance in the political process and of its status as a central plank of the Belfast agreement. Many government Ministers, both in this House and in another place, have on numerous occasions confirmed that Sinn Fein and the IRA are inextricably linked. Sinn Fein and the IRA are one and the same organisation with an interchangeable membership, as the noble Lord, Lord Glentoran, indicated earlier. Indeed, according to some of last Sunday's press, it has an interchangeable leadership also.
All the signatories to the agreement—that includes Sinn Fein/IRA—in paragraph three of the decommissioning chapter,
"accordingly reaffirm their commitment to the total disarmament of all paramilitary organisations … to achieve the decommissioning of all paramilitary arms".
In order fully to implement the agreement it is necessary that actual decommissioning takes place. The process of decommissioning was to take place within two years of the signing of the Belfast agreement and be completed by May of last year. This aspect of the agreement precipitated the second and third incarnation of this order, with the third such order merely extending the amnesty from February to May of last year in accordance with the agreement.
This short extension of the order to bring the legal deadline in line with the political one seemed to have been a factor in republicans beginning to recognise their commitments under the agreement and in their giving an undertaking to put weapons completely and verifiably beyond use.
With expectations of definite progress at that point, in May last year, the fourth incarnation of this order was approved. It is the expiry of the extension provided by the fourth order that necessitates the extension provided by this order before us today.
Regrettably, the potential provided by last May was not realised and Sinn Fein/IRA did not engage with the independent international commission to discuss the methods and procedural aspects of decommissioning with a view to putting their weapons beyond use.
Another year on we see a belated gesture by Sinn Fein/IRA of an undertaking for further contact with the decommissioning body. This further contact, just shy of the June deadline, has created renewed expectation for closure of the decommissioning issue.

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I have a reservation with respect to the extension period of the amnesty in this order to February of next year. I feel that it has the effect of to an extent distracting attention from the clear June deadline. I am aware of the argument that if republicans meet the June political deadline the legal period for an amnesty will need to be such as to permit loyalist paramilitaries to follow. Indeed, hopes of loyalist decommissioning have been increased by the de Chastelain report of last month. That report, referring to recent contact between de Chastelain and the UVF and UFF noted the progress on modalities, on which there was general agreement, and in the renewed commitment of those organisations to the principle of decommissioning.
Such references were unfortunately conspicuous by their absence in the general's report on recent contact with Sinn Fein/IRA—only a basis for further discussion was evident.
An end of the legal amnesty and facilitation period in June would have gone some way to concentrating the minds of those who have the ability to bring closure on the issue of decommissioning. References to the June target date should not be misconstrued. June is both the target and deadline for product on this issue. Without that necessary progress June will signify the expiry of de Chastelain's mandate without renewal.
This order has a simple effect prolonging the amnesty period to the maximum provided for under the 1997 Act, but it must not be forgotten that this extension will not be necessary without progress in terms of product by June. I am hopeful that the Minister can reassure me that he too shares my focus and emphasis on the June deadline and the necessity for further progress by this date.
Although slow progress on this issue has been made so far, I share, with the vast majority of people in Northern Ireland, the hope that by June we shall be in a position where full implementation of the Belfast agreement is a reality and there is closure on the issue of decommissioning.
Lord Renton: My Lords, your Lordships may be surprised at my taking part in a debate on Northern Ireland at all for it is nearly 40 years since I had a ministerial responsibility before there was a Northern Ireland Office and when the Home Office was the link between the Stormont government and the United Kingdom government. For three and a half years of that time I played a part in forming that link. Since then I have been to Northern Ireland a number of times and I have taken a close interest in Northern Ireland affairs. I should like to say first of all that I naturally support all the efforts that the Government are making.
I have only two points to raise, but they are fundamental. First, I remain of the opinion I formed when I had that responsibility many years ago that the main reason for the IRA's effectiveness is the financial help it has received, mainly from the United States. I know that British Prime Ministers from both parties have made representations to Presidents of the United States about this important and delicate matter. I do
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not ask the Government for a specific reply today on the issue; I merely say that they should continue to concentrate on it if they wish to achieve peace in Northern Ireland.
The Government may not be in a strong position to answer my second point. We are discussing an order that specifies that decommissioning must take place by February 2002. If there has been no decommissioning by then, what sanction is there to enforce it?
Baroness Blood: My Lords, I shall not rehearse what my noble friends from Northern Ireland have said. Everyone knows that Northern Ireland is awash with guns, but we are also awash with words. I do not oppose the order. We have talked about its effect. In Northern Ireland it will be viewed in two ways. One side will say, "We have pushed the deadline back almost another year", and the other side will say, "There you see, they are winning again".
We have to be careful about what we say because in Northern Ireland words can be every bit as dangerous as guns. Less than a fortnight ago, the Secretary of State assured the people of Northern Ireland that decommissioning was on track for June. People took that on board. Now, although the process is still on track for June, there is a provision to push the date back. We have to be careful about how our words will be interpreted.
Throughout Northern Ireland we are fed a daily diet of what she said, what he said, and what it means. Will the Minister assure me that the Secretary of State will go out of his way to explain exactly what the order means to the people in Northern Ireland who are interested?
The noble Lord, Lord Dubs, said that debates on Northern Ireland are always doom and gloom. My response is simple: why should I be ecstatic about having a normal life? I am a United Kingdom citizen, just like everybody else here. I expect to have a normal life. I do not expect to have to say that I am glad that this happened or that happened. We do not have normal life in Northern Ireland. We have gangsters, thugs and drugs and the place is awash with guns. We must do something about that. Pushing the deadline back year after year will not solve the problem. We have a saying back in Northern Ireland that nothing concentrates the mind like a hanging. We need to get to that.
Lord Falconer of Thoroton: My Lords, I am grateful to all those who have participated. I am grateful to the noble Lord, Lord Glentoran, for supporting the extension order, subject to his point about the date, and I am also grateful to the noble Lords, Lord Smith, Lord Dubs and Lord Rogan, for supporting the order. I shall certainly take the advice of the noble Baroness, Lady Blood, to be very careful about what I say in my reply.
A number of noble Lords have asked why the extension should be until February next year. The noble Baroness, Lady O'Cathain, asked why we did not extend it indefinitely and the noble Lord,

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Lord Glentoran, and others asked why we did not opt for a shorter period. The primary Act gives the Government power only to extend until February 2002. We have not abandoned June as our target date for decommissioning. But it is a target, not a deadline. That is why we need the extension order. If decommissioning is to happen, the order is essential to ensure that the necessary immunities remain in place after 19th May, when they would otherwise expire.
We are still committed to making substantial progress on decommissioning by the end of June. However, it is a voluntary process that involves loyalist paramilitaries as well as the IRA. The Independent International Commission on Decommissioning reported on 22nd March, just a few days ago, that the loyalists will not decommission before the IRA. We need to provide a context in which all paramilitary organisations are able to give up their weaponry. That is what the order is designed to do. We could not effectively achieve that if June was the deadline, given that the loyalists will decommission only after the IRA. In those circumstances, looking at the issue in the round, the sensible course appeared to be to extend it until February. However, I must make it clear that we are still committed to making substantial progress on decommissioning by the end of June.
Anyone who wants to know what will be achieved by the end of June should ask the commission. It is very important that credible progress is made at the earliest possible moment.
General de Chastelain has always said that he would tell us if he and his colleagues concluded that decommissioning was not going to happen. They have not yet so told us, so we think that it is worth going on.
The noble Lord, Lord Glentoran, referred to the pressures on the RUC and the loss of experienced officers. He is right to refer to that, but it is worth seeking some encouragement from the nearly 8,000 applications that have now been received in response to the first recruiting campaign for 240 vacancies in the new Police Service of Northern Ireland.
The noble Lord, Lord Smith, asked us to estimate when substantive decommissioning would begin. As I said, that is a matter for General de Chastelain and his commission. However, we are clear that a creditable start to decommissioning must be made soon.
The noble Lord, Lord Smith, and others asked what we would do if decommissioning was not completed by next February. As I said in answer to the noble Baroness, Lady O'Cathain, the present legislation runs out in February. It would be for Parliament to consider nearer the time what provision, if any, should apply for decommissioning thereafter. It is too soon to speculate today on what we would do.
The noble Lord, Lord Molyneaux, invited me to speculate about certain contingencies and asked what plans the Government have made. He also asked me to take inspiration from the 1979 Conservative Party manifesto. With regret, I fear that I must decline that tempting invitation.
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The noble Lord also referred to the sealing of the border in certain circumstances. I assure him that the Government have no intention of taking any risks with security and do not in any way underestimate the continuing threat. That is why we still have 13,500 troops in Northern Ireland. That is considerably more than the 8,000 that we would require for a normal peacetime garrison.
Nevertheless, we should not underestimate the difficulty of sealing the border for any length of time or the disruption that would be caused to normal social and economic life. It would be an admission of defeat if such a measure became a routine part of life in Northern Ireland.
Lord Molyneaux of Killead: My Lords, I apologise for interrupting the Minister at this late stage in his speech. I thought that I had made it clear that the Irish army and police had sealed the frontier efficiently. I simply said that what they can do on one occasion, surely they can do with equal efficiency on another.
Lord Falconer of Thoroton: My Lords, I entirely understood that point. My response was that it would be a great disruption of normal life for Northern Ireland if sealing the border in those circumstances became the norm.
The noble Viscount, Lord Brookeborough, talked about smuggling and the noble Baroness, Lady Blood, referred to organised crime. Since September 2000, my right honourable friend Adam Ingram, the Minister of State, has been chairing a task force to counter the threat of organised crime in Northern Ireland. The work of that task force is already well under way.
Last week a number of important developments took place. On 23rd March, my right honourable friend in another place launched the first threat assessment of organised crime and announced the strategy that is being adopted to confront that threat. On 19th March he announced a small business payment assistance scheme and introduced the Northern Ireland launch of a nationwide initiative, "Bank Note Watch". A private sector consultation exercise was also initiated.
The noble Baroness, Lady O'Cathain, asked whether it was true that no weapons had been destroyed in the course of the decommissioning process. It is not quite true. In December 1998, the Loyalist Volunteer Force destroyed some weapons under the supervision of the commission. The commission described it as,
"a small but significant quantity".
Nevertheless, the fundamental point that the noble Baroness made is that progress has been very disappointing. That obviously remains true.
The noble Lord, Lord Rogan, made the point that the non-renewal of the amnesty will mean the end of the de Chastelain mandate. That is not so. The mandate of the Independent International Commission on Decommissioning flows from the international agreement—Treaty 54 of 1997—between the United Kingdom and the Republic

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of Ireland. The Northern Ireland Arms Decommissioning Act 1997 and this series of amnesty orders have no direct bearing on the establishment of the de Chastelain commission. I hope that I have answered all the main points raised during the course of this short debate.
On Question, Motion agreed to.

Armed Forces Bill
Brought from the Commons; read a first time, and to be printed.

Children's Commissioner for Wales Bill
4.2 p.m.
The Attorney-General (Lord Williams of Mostyn): My Lords, 1 beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Williams of Mostyn.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Gardner of Parkes) in the Chair.]
Clause 1 [Application of Part 5 of the Care Standards Act 2000]:
Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 1:
Page 1. line 9, leave out "ordinarily".
The noble Lord said: I begin this Committee stage by expressing the hope that the Government will still concede the amendment that they would have conceded had a general election been called yesterday for 3rd May. However, that may be a pious hope.
In moving Amendment No. 1, I shall speak also to Amendment No. 2. These are probing amendments to find out what the Government mean by the phrase "ordinarily resident in Wales"—that is, who is covered and who is not.
Three, if not more, groups of children cause us some concern. The first are children born and bred in Wales but living in England. They may be fostered or in an institution, a home, a school or a hospital. We are not sure whether they fall within the purview of the commissioner. Their families may still be in Wales but the children may be in England. Of course, they could have been referred to their locations outside Wales by one of the regulated services in Wales.
Secondly, there are English children in Wales. I well remember an occasion when, as a Welsh Office Minister, I visited a special home in Powys only to find that the majority of the children there were from Birmingham. As I understand it, it is a fairly regular occurrence to find children placed by English authorities in Welsh homes or with Welsh foster parents.
Thirdly, of course, children of travellers, gypsies and so on, may be in, but not of, Wales, yet they could be described as being resident in Wales although not ordinarily so. We should have a definition of "ordinarily resident in Wales" which makes clear who is included and who is not. I beg to move.
Lord Williams of Mostyn: I am very grateful for the way in which the noble Lord has put the matter. If I may, I shall cast my response a little more widely than his question. I understand the concerns that he expressed, particularly, for example, in relation to the children of travellers or, indeed, of asylum seekers. The important point is that such children may not be ordinarily resident in the usual way in which the courts interpret that term. However—I hope that this assists the noble Lord—if those children receive services from any of the numerous bodies listed in Schedule 2B, they will, in any event, come within the commissioner's jurisdiction. As a matter of practice, we can think of very few children who would receive no services at all.
I said that I would reply more widely, and perhaps this is a convenient moment for me to do so. As we promised to do, we considered with some care the points which were put forward very constructively at the earlier stage of this Bill. My noble friend Lady Farrington has been in correspondence with a number of noble Lords.
One central—if not the most important—concern was why the commissioner should have no formal role in policies and services that do not come within the responsibility of the National Assembly for Wales. I hope that it is helpful to the Committee to conclude that we have listened with some care. I am able to confirm that we intend to bring forward on Report an amendment that would empower the commissioner to consider, and make representations to the Assembly about, any matter which affects the rights or welfare of children in Wales.
I hope that the Committee will consider that to be a significant amendment and a significant step forward. We promised to consider the matter very carefully and, accordingly, we are able to give that assurance. Therefore, the commissioner will have a formal role in matters which do not fall within the devolved fields of responsibility of the National Assembly.
As I said, the intention is for the commissioner to be able, by virtue of the amendment—if your Lordships accept it—to make representations to the Assembly. He can do so yearly as part of his required annual report. If he believes that it is more appropriate, he can do so on an ad hoc basis. The Assembly would then be able to consider the commissioner's representations and make representations itself to, for example, central government by virtue of its powers under Section 33 of the Government of Wales Act.
We shall also bring forward amendments to ensure that the commissioner is able to exercise discretion in circumstances involving a child who has died. We have looked again at the provisions in Clause 1 about which, I believe, a question was raised. There may be some doubt about it and we intend to remove that doubt.

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We shall also bring forward amendments to ensure that the commissioner's power to review the exercise of functions by the Assembly or by any of the Schedule 2A bodies will extend to other persons or bodies who may exercise functions on behalf of the Assembly or the bodies listed in the schedule. We intend to add community councils in Wales to the list of bodies whose exercise of functions in relation to their effect on children is subject to review by the commissioner.
I have taken a little while in giving my response because the noble Lord, Lord Roberts of Conwy, was kind enough to say that he wanted to know what our proposals were. He understands that there will not now be an election in early May. Therefore, we shall have the opportunity, which I intend to take, to table those amendments. Members of the Committee will want to know when that will be done. My noble friend Lady Farrington has said on several occasions that we are more than happy to have meetings—with or without officials, as is thought appropriate—and we should be perfectly happy to have the draft amendments ready so that noble Lords can see them in plenty of time before the next stage.
I have spent some time responding to the noble Lord but I hope that that will shorten our consideration of other amendments.
Lord Thomas of Gresford: From these Benches I very much welcome the words of the noble and learned Lord the Attorney-General. His comments suggest that on this matter at least the Government are listening, although he did not cover all of the matters about which I am concerned. There are no doubt other matters that we shall raise during this Committee stage but a substantial part of our concerns has been catered for. I am most grateful to the Government.
Lord Roberts of Conwy: I am most grateful to the noble and learned Lord for his announcement about changes that the Government may introduce on Report. He will be aware that we have tabled an amendment, which we shall reach shortly, on representations. We shall of course adapt our remarks in light of his announcement. Nevertheless, we hope that our contributions will help to influence his thinking and will affect the amendments that are tabled on Report.
I am also grateful to the noble and learned Lord for his explanation of what "ordinarily resident in Wales" means in practice and for his reassurance that all who are connected with the regulated services will be covered by the commissioner. In thanking the noble and learned Lord, it gives me pleasure to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 2 not moved.]
On Question, Whether Clause 1 shall stand part of the Bill?
Lord Prys-Davies: After our short discussion on amendments to this historic clause, this is an
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appropriate moment to return to the question that I asked on Second Reading. I asked whether the Assembly was,
"fully satisfied with the terms and the effect of the Bill that is now before us?".— [Official Report, 19/2/01: col. 551.]
I believe that that is a valid question that needs to be answered, but I notice that it has not been. The explanatory note that the Welsh Office prepared does not address that issue. I believe that an answer would assist both Houses of Parliament. I submit that our response to the Bill depends to a great degree on the answer to that question.
If the Bill as currently drafted is broadly acceptable to the Assembly, which is an elected body, and if we seek stability in relation to the devolution settlement, the House should facilitate the Bill's passage. If, on the other hand, the Bill is not broadly acceptable to the Assembly, the House should amend the Bill so that it approximates more closely to the Assembly's aspirations. Parliamentary procedure in your Lordships' House, which is not an elected House, must keep up with the historic decision to devolve power to the Welsh Assembly. I suggest that the Select Committee of your Lordships' House dealing with constitutional matters would make a valuable contribution if it clarified what the approach of both Houses of Parliament should be to a Bill initiated by the Welsh Assembly. I should be grateful if my noble and learned friend the Attorney-General would comment on that.
4.15 p.m.
Lord Williams of Mostyn: I am grateful to my noble friend for asking that question. I believe that his question is: is the Welsh Assembly broadly satisfied with the terms and content of the Bill? I can fairly answer that question in the affirmative. I do not pretend that there is a perfect match between what the Assembly wanted and what is in the Bill but I hope that I can reassure Members of the Committee and my noble friend in particular by reciting briefly what happened.
The Health and Social Services Committee of the Assembly published its report at the end of May 2000 with its recommendations on the remit, role and functions of the Children's Commissioner for Wales. The Assembly then unanimously endorsed that report in plenary session on 7th June. That was the basis of the bid by the Assembly Cabinet to secure wider statutory powers for the commissioner. The bulk of the recommendations are reflected in the Bill, although I do not pretend that there is a perfect match.
A much wider constitutional question, which was identified by my noble friend, is involved; namely, how will further legislation that is Assembly-related or Assembly-invited be dealt with by your Lordships' House? I do not dissent from the proposition that that will be a developing area of consideration. For the

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moment, we must come to our own conclusion. I think that I can fairly say that the Assembly is broadly content.
Lord Thomas of Gresford: The noble and learned Lord the Attorney-General will appreciate that such constitutional matters arise in relation to Amendment No. 20, which I propose to move. I shall voice many of the concerns that were raised by the noble Lord, Lord Prys-Davies.
Clause 1 agreed to.
Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 3:
After Clause 1, insert the following new clause—
"CHILDREN'S AND YOUTH COMMISSIONER FOR WALES
In section 72 of the Care Standards Act 2000 (c. 14) (Children's Commissioner for Wales) for the words "Children's Commissioner for Wales" there shall be substituted "Children's and Youth Commissioner for Wales"."
The noble Lord said: Amendment No. 3 and the amendments grouped with it—Amendments Nos. 21 and 27—are probing amendments. The commissioner is, as we know, involved with further and higher education and is responsible for young people up to and occasionally over the age of 18 who are still in the education system. It therefore seems sensible to extend his title to cover those young people.
I suspect that I shall be told that the Children Act 1989 also covers young people of 18 and over and that the proposed change of title is inappropriate at this time, despite the disadvantages of describing young people as children when they do not regard themselves as such and might be offended by the description. The change will have to come sooner or later. I look forward to the Government's response. I beg to move.
Lord Williams of Mostyn: Perhaps I can give a reply in two stages. First, the Children's Commissioner is already in post. If we change the nomenclature now, that would simply bring about fruitless confusion, especially during this important stage in the commissioner's work. The present position is well accepted now by the media in Wales, by those who are interested generally and by the public at large. The noble Lord was right—I refer to the Children Act 1989. Mr Peter Clarke's remit will be 0 to 18, and Children's Commissioner—though I realise this is not a perfectly persuasive point among some of your Lordships—is the title used in similar offices in Europe.
Secondly, we want to cover those who are children; that is, they are not adult, not having reached the age of 18 years. The very wide consultation carried out by the Assembly was with children and young persons under the age of 18. We think the title is right, and it is well recognised now. I think it is receiving public acceptance and recognition in Wales.
Lord Roberts of Conwy: I do not think there is any question but that the title is accepted in Wales. The point I was making was that the commissioner will be dealing with young people up to the age of 18, and, I
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think, over 18 if they are still in education. I am content with the explanation of the Minister. Clearly, the Government are not going to change the commissioner's title at this stage because it is already in the Act passed last year. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 [Principal aim of the Commissioner]:
Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 4:
Page 2, line 14, at end insert—
"(2) The Commissioner may make appropriate representations to the Secretary of State or any statutory body about any matter affecting the rights or welfare of children in Wales.""
The noble Lord said: We come to the important matter of representations by the commissioner to which the Minister has already referred. The noble and learned Lord has announced that he will bring forward a suitable amendment to enable the commissioner to make representations at Report stage.
There has been constant demand for the commissioner to have the right to make direct representations to bodies outside his jurisdiction if he has good cause. I shall not trace the history of the demand—from the Health and Social Services Committee report of the Welsh Assembly through Standing Committee in another place to our own Second Reading debate. I notice that today the campaign group highlights this as one of three changes it would like to see in the Bill. The group says it would like the commissioner to have the power to consider and make appropriate representations about any matter underlined affecting the rights or welfare of children ordinarily resident in Wales. I am sure that we are all aware of the campaign group that comprises the NSPCC Cymru, Save the Children, Barnardo's Cymru and the Children's Society in Wales. They were a very important group of organisations pressing for the establishment of a commissioner.
The demand is summed up in the expression of the desire that the commissioner should have a power similar to the power of the Assembly in Section 33 of the Government of Wales Act which, I remind your Lordships, states:
"The Assembly may consider, and make appropriate representations about, any matter affecting Wales".
Our amendment seeks to meet that aspiration. The Government have certainly acknowledged that the commissioner has a right to make representations on matters outside his jurisdiction to government departments and other bodies—but informally or through the Assembly. The noble Baroness, Lady Farrington, whom I am pleased to see in her place, said:
"That would not give him substantive functions in non-devolved areas".—[Official Report, 19/2/01: col. 570.]
The noble and learned Lord appeared slightly more relaxed about the issue but equally firm at the end of the day in saying:
"Even if some issues are outside the statutory remit, he does not have to stay silent. If during the course of his work he receives representations about non-devolved matters, he can bring them to the attention of relevant government departments and in so doing

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can indicate his views. He can also bring to the Assembly's attention complaints and information he receives about non-devolved matters. He can do that, of course, through the annual report to the Assembly".—[Official Report, 19/2/01; col. 542.]
That seems far away when we are dealing with what may arise, namely, urgent cases brought to the attention of the commissioner that require a response. We find that the Government appear to concede the argument and to acknowledge that such cases may arise but they are not prepared to formalise the commissioner's duty at this stage. We have received very good news that they are considering it and may bring an amendment forward at Report stage. That is necessary because most of us believe that the position should be formalised, that it should be a function of the commissioner to make representations where he feels it is necessary to the Secretary of State—which can be any Secretary of State—or any mandatory body, otherwise his approaches to them will, in our view, be too informal to merit proper attention on their part.
I cannot see why the Government cannot give the commissioner's status this extra boost in his dealings with bodies outside his jurisdiction. Certainly, it would remove the most glaring deficiency in the commissioner's relationships with bodies responsible for children in Wales but outside his remit. I am glad to welcome the decision of the Government to accept the case in essence and to bring forward a considered amendment on Report stage. I beg to move.
Lord Thomas of Gresford: My name is attached to this amendment. It would be premature for me to make any comment having regard to the announcement by the Minister at the beginning of our deliberations. I noted, in particular, that he referred to ad hoc reporting on specific issues to the Assembly. That seems to me to meet many of the points that the noble Lord, Lord Roberts, made. The process of seeing the proposed amendment and discussing it with the Minister, as he invited us to do, is the way forward.
Lord Williams of Mostyn: That is very generous, and not for the first time, from the noble Lord, Lord Thomas of Gresford. The proposed amendment is to empower the commissioner to consider and to make representations to the Assembly about any matter affecting the rights or welfare of children in Wales. So it is pretty broad.
I accept the point made by the noble Lord, Lord Roberts, that one may have something quite urgent that needs an ad hoc series of representations to the Assembly.
I deal with the Assembly's position. It seems to many of us in this House that the success of the Assembly is critical to the success of the devolution settlement in Wales. There were faint hearts when we started on this journey together. The Assembly needs to grow in experience, authority and confidence. I do not say that in a patronising way. This is a very new body indeed. I think it is surprising how well it has done rather than how badly it has performed and it has not fulfilled the rather gloomy prognostications.
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The Assembly's position is critical in the constitutional settlement and that is why it is very important, in our judgment, that the commissioner makes representations to the Assembly which, as the duly elected body, comes to its own conclusions about what representations and to whom and in what terms the Assembly wishes to exercise its powers under Section 33 of the Government of Wales Act.
4.30 p.m.
The Lord Bishop of Oxford: I know that church leaders in Wales of all denominations are strongly supportive both of the establishment of the Children's Commissioner in the first place and this specific amendment, which will enable the commissioner to make representations. I know that they will be glad to hear what the Minister said at the beginning of the debate, especially the Archbishop in Wales who has been concerned to communicate Welsh church anxieties to me on this issue.
Lord Prys-Davies: In the other place it seemed to me that Ministers clung to the view that the remit of the commissioner should not be extended to the non-devolved UK departments because of the terms of the settlement. I am pleased that there has been a significant shift of emphasis on the part of the Government. However, we shall have to wait to see the precise amendment. Meanwhile, for my part, I welcome the Government's decision to table an amendment, which I hope will be along the lines of Amendment No. 4.
Lord Roberts of Conwy: I believe I understood the noble and learned Lord clearly this time. I dare say we shall have further illumination on Report. As I understand the position at the moment, the Government are prepared to allow the commissioner to make his representations to the Assembly about any matter that concerns him, whether that matter arises from the regulated services or anything that he may hear that comes from the non-devolved areas. Therefore he can in fact approach other departments of government or statutory bodies through the Assembly, or the Assembly will be able to do it for him.
Lord Williams of Mostyn: The Assembly will receive the representations from the commissioner. But I stress that the commissioner is not an elected person or body; the Assembly is. It is the Assembly therefore that ought to have the decision as to what representations to make, in what circumstances, to which department or other interested body and in what terms.
Lord Roberts of Conwy: I accept what the noble and learned Lord says. However, I was asserting that the Assembly could deal with the representation, even if it related to a non-devolved area or another government department and so forth. But as we understand it now, it would be for the Assembly to decide how to deal with the commissioner's representation. We shall content ourselves with that position as we have established it and consider the matter further.

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Of course, Amendment No. 5 asks for rather more than the Government are prepared to concede. We want the commissioner to be able to make representations to a Secretary of State, which means the head of any government department, or a statutory body, which means a local authority or any other of the bodies listed in the various schedules to this Bill. I do not believe that we shall progress much further at this stage. I shall therefore consider the matter further between now and Report. Perhaps the noble and learned Lord will consider yet again the role of the commissioner as it is required, not simply by the Assembly, because they have also considered it, but also by the campaign group. Everybody in Wales who is connected with this area is anxious that the commissioner should be able to act promptly and directly if the need arises.
With those few words, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 5:
Page 2, line 14, at end insert—
"(2) For the purpose of exercising his functions under subsection (1) above, the Commissioner shall have regard to the principles laid down in the United Nations Convention on the Rights of the Child 1989 as ratified by Her Majesty's Government.""
The noble Lord said: As is well known, Amendment No. 5 is a "purpose clause". It amounts to an enunciation of a principle rather than a strictly legal obligation. I thank the noble Lords, Lord Hooson, Lord Elis-Thomas and Lord Renton, for their support. I was particularly pleased that the noble Lord, Lord Renton—who has a greater knowledge of purpose clauses than anyone else in the Chamber—supported us. He would not have put the authority of his name to this amendment if it was inappropriate in its form or intention.
Amendment No. 5 raises a point of principle which is of fundamental importance to the children's charities in Wales. It seeks to enshrine on the face of the Bill the principle that the Children's Commissioner should exercise his functions in the spirit of the United Nations Convention on the Rights of the Child.
I have read and re-read the report of the Health and Social Services Committee of the Welsh Assembly. It is clear to me that the intention of the report is that the commissioner should exercise his functions in the spirit of the UN Convention on the Rights of the Child. That comes out clearly in paragraphs 19, 21 and 28 of the report, and also in paragraphs 1 and 2 of the summary. Paragraph 28 comes under the heading, Role, Remit and Functions, and reads,
"We believe that the Commissioner: should exercise his/her functions with the overarching aim of promoting and upholding the United Nations Convention on the Rights of' the Child".
However, nowhere in the Bill or in the Explanatory Notes prepared by the Welsh Office is there a single reference to the convention. That may be acceptable to the Assembly, I know not. But it was a cause of disappointment and concern to the Children in Wales campaign group.
Of course, the charities welcome Clause 3 of the Bill as it stands. But they are concerned by the omission of any reference to the convention, bearing in mind that this was a central recommendation by the Welsh Assembly. The charities are therefore looking to Parliament for a legislative framework which will encourage the Children's Commissioner at all times to work in the spirit of the UN convention. It is a modest request. I beg to move.
Lord Roberts of Conwy: I understand that Amendment No. 8, which is in my name, is grouped with Amendment No. 5 and it may he for the convenience of the Committee if I speak to it now. I make no apology for the fact that this is an abbreviated version of an amendment introduced by Mr Win Griffiths—the Labour MP for Bridgend and a former Welsh Office Minister—during Committee stage in another place.
I shall deal first with the second part, paragraph (b), of Amendment No. 8. As I indicated during Second Reading, one of the inspirational mainsprings of the present Bill is the United Nations Convention on the Rights of the Child 1989, which was ratified, with reservations, two years later by John Major's Government. The Health and Social Services Committee of the National Assembly for Wales and, as the noble Lord, Lord Prys-Davies, mentioned., the campaigners for a child commissioner drew heavily on the convention and its effect on other countries in formulating their proposals.
There is no doubt that what the National Assembly wanted for Wales was a child commissioner whose office would meet the highest international standards. I believe that the Assembly is well aware that that is not what the Government have provided them with in this Bill.
Mr Peter Newell, the chair of the Children's Rights Alliance for England, adviser to the European Network of Ombudspeople for Children and author of Taking Children Seriously—a proposal for a children's rights commissioner has summed up his views as follows:
"This legislation does not match up to the vision of the National Assembly. It falls short of international standards and creates a commissioner who will not be on a par with existing children's ombudspeople and commissioners across Europe".
He goes on to describe the situation in Europe, stating:
"In Europe there are now at least 20 children's ombudspeople or children's rights commissioners. Some are federal; some, like the Wales Commissioner, are appointed by regional governments. But none is limited in its powers: all are empowered to monitor and report on anything which affects the human rights of children. Many are directly linked in their legislation to the Convention on the Rights of the Child and have specific duties to maintain contact with children and promote respect for children's views. The Children's Commissioner for Wales will not be on a par with these institutions or have comparably wide powers unless the Bill is amended".
Mr Newell describes the situation under the Northern Ireland Human Rights Commission which was established as part of the Good Friday agreement and includes children within its general remit. Its first

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major investigation has been into the juvenile justice system in Northern Ireland, which, I understand, is a non-devolved matter. Mr Newell asks:
"Why should the Children's Commissioner for Wales not have powers to investigate and report on the juvenile justice system in Wales?"
We all know the answer to that question. He is not allowed to deal with the non-devolved areas.
A fair point is that no one suggests that the commissioner should have decision-making powers. His basic powers are to monitor, to review and to report publicly. There is no justification for limiting those powers to devolved matters. Allowing the commissioner to monitor, to review and to report on all matters that may affect the human rights of children in Wales does not conflict with the devolution settlement.
The first part of the amendment requires the commissioner to,
"maintain direct contact with children and children's organisations".
All who have been involved with the Bill are aware of the active role played by the children's organisations that I named in relation to a previous amendment, and which have campaigned for this office. We have all acknowledged our indebtedness to them. Those organisations know a great deal about the children with whom they come into contact. Time and time again they stress the prime importance of direct contact with them at the highest level. A later amendment deals with the commissioner's right of access to children. For the moment, I am content to say that the case for the commissioner to have regard to the need for contact is so strong as to merit its inclusion on the face of the Bill.
4.45 p.m.
Lord Hooson: The genesis of Amendment No. 5 was, as I recollect, a round-table discussion in the Bishop's Bar between the four signatories to the amendment. All four of us discovered that we were great believers in having a purpose clause. We were also great believers in making legislation as simple as possible but that certain guiding principles should illuminate any interpretation of the Bill when it becomes a statute.
The heading to Clause 2 is,
"Principal aim of the Commissioner".
The clause creates what will be Section 72A of the Care Standards Act 2000 and states:
"The principal aim of the Commissioner in exercising his functions is to safeguard and promote the rights and welfare of children to whom this Part applies".
That is a subjective test for the commissioner. According to his views, he must follow that principal aim. However, the amendment adds to that and provides objective tests. The amendment reads:
"For the purpose of exercising his functions under subsection (1) above, the Commissioner shall have regard to the principles laid down in the United Nations Convention on the Rights of the Child 1989 as ratified by Her Majesty's Government".
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He must always have that in the back of his mind when carrying out his functions. Whatever his subjective aim may be, an objective background should be borne in mind when making decisions or when the Assembly considers his report or whatever. Therefore, the four signatories to this amendment believe that is of vital importance.
The noble and learned Lord the Attorney General has been extremely co-operative and has provided great guidance on the Bill. We are all anxious to achieve an Act of Parliament that will be of great help to children in Wales and perhaps be a guiding light for other legislation. However, I believe that this particular clause, shorn of all regard to have to consult with various people, contains a set of guiding principles that are now universally accepted with certain modifications, and that is so important.
Previously there was pressure on the noble and learned Lord the Attorney-General, perhaps due to a lack of time, that meant that we did not consider in depth the need for a purpose clause of this kind. Now that that pressure has been removed I am sure that he will agree that there is great value in a purpose clause of this kind. The House should be grateful to the noble Lord, Lord Prys-Davies, for drafting the amendment.
Lord Williams of Mostyn: As the noble Lord, Lord Roberts of Conwy, correctly pointed out, Amendments Nos. 5 and 8 go together although they are not exactly the same. The first amendment, which was the product of late-night deliberations and which was signed by four noble Lords—none of whom has resiled—in effect directs the commissioner to have regard to the principles laid down in the United Nations convention. The noble Lord, Lord Roberts, is right in saying that the second amendment is different. In that case, the commissioner's functions are to have regard to the need to promote compliance, which is slightly different, and to,
"maintain direct contact with children and children's organisations",
although he put them the other way round.
The United Nations convention, of course, is not part of domestic law. I sympathise with what has been said and I think I can assist, not by accepting the amendment because it is not necessary, but simply by pointing out what has happened so far. The advertisement for the commissioner, who has already been in post for a little while, was not drafted by me. I am sorry to use these inelegant words. It reads:
"The job purpose: the Commissioner will promote the rights and welfare of children and young persons, and people who are in receipt of services regulated under the Care Standards Act".
Essentially one is referring there, as the noble Lord, Lord Hooson, said, to Clause 72A as it will become, but it is important to go further. I will, if I may, read the basis on which the commissioner is appointed:
"It is envisaged that the principles in the United Nations Convention on the Rights of the Child will he one of the matters to which the commissioner will have regard in the exercise of his functions".

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So it is there. That is the job purpose. As regards person specification—again I did not write this—the essential requirements include the ability, first, to apply the UN Convention on the Rights of the Child; secondly, the Human Rights Act 1998, secondly, and the principles of equal opportunities across the range of activities encompassed in his office. Therefore he is in post on those bases.
The other aspect of Amendment No. 8 is also dealt with in that same document which was the basis of the appointment; namely:
"To advise appropriate statutory and non-statutory organisations that complement the functions of the Children's Commissioner, including local authorities and health services, Childline, Samaritans, Citizen's Advice Bureaux and local advocacy schemes".
That was specifically included in the advertisement which led to the appointment of Mr. Clarke. To bring the matter even more up to date, my understanding is that the Assembly has already gone out to consultation on proposals for regulations, including the first part of the amendment of the noble Lord, Lord Roberts, relating to the commissioner's contact and consultation with children and young people.
I do not think there is really anything between us, but I simply say that the UN convention is not part of domestic legislation. It would be decidedly odd to find it in this Bill and in no other.
Lord Hooson: Is the noble and learned Lord really saying that the second part of an advertisement for a commissioner's job will satisfy those who think that the purpose clause in this Bill should have the effect of drawing the attention of the commissioner, whoever he may be, in the future, perhaps when the advertisement may have been changed?
Lord Williams of Mostyn: I do not think it will satisfy those people who are wedded to purpose clauses. I am not myself wedded to them, but I sympathise with the stance that has been adopted. The commissioner is working on the basis that these are indeed his obligations. I find it inconceivable that any subsequent commissioner—because this is a seven-year non-renewable term—could possibly be appointed on less onerous terms. I agree with the noble Lord, Lord Hooson. I do not suppose it will satisfy those who like to have purpose clauses. My only point was to try to be helpful by showing that this is how the man is working at the moment. It is part of the basis on which he was appointed.
Lord Renton: I must apologise to your Lordships for not having been here when the noble Lord, Lord Prys-Davies, moved Amendment No. 5, to which my name is attached. Not having been here for the whole of the discussion on Amendments Nos. 5 and 8, I may have missed a point. However, I should like to point out that Clause 2 as it stands states that the principal aim of the commissioner should be to promote the rights and welfare of children.
That therefore will become part of the law. But I suggest that any indirect obligations placed upon the commissioner, but not included in this Bill, would not
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have the same effect as a statement in Clause 2, which would become part of the law and therefore a direct obligation, such as is proposed in these two Amendments Nos. 5 and 8.
I am not asking the noble and learned Lord for an immediate reply on this, but I assume that he would wish to consider this important matter further between now and Report stage. I would ask him to consider the need—not merely the desirability—to have in the Bill a clear statement setting out the rights of the child.
Lord Northbourne: Perhaps I may intervene at this particular moment to speak against the amendment. It seems to me that the wording, as set out in Clause 2, is wider than it would be if it were restricted by the amendment. I suppose it is unthinkable that the United Nations Convention on the Rights of the Child should by any chance be wrong. If we say that we have got to obey it, then we have to obey the detail of it. Surely it is important for the commissioner to have a general obligation to promote the rights and welfare of the child. He will follow the Charter, provided he is satisfied that it is in the best interests of the child.
Lord Williams of Mostyn: The noble Lord, not for the first time, has put it more elegantly than I managed to do. I sought to say that he has his contractual obligations on the basis of what I have read out There is no benefit to be had from the amendments that have been put forward, because we all recognise that these are his obligations. The description of the principal aim in Section 72A, as I hope it will become, is absolutely appropriate for our present purposes.
Lord Roberts of Conwy: We are grateful to the noble and learned Lord for his comments on both the purpose clause put forward by the noble Lord, Lord Prys-Davies, and his co-signatories and on the amendment that I have put forward. I am certainly impressed by the fact that the United Nations Convention on the Rights of the Child, although ratified by Her Majesty's Government, is not in fact part of our domestic law. I should have thought, with due respect to your Lordships, bearing in mind that I am not myself a lawyer, that if we were to accept the UN convention into domestic law, we would wish to discuss it in considerable detail.
Having read the convention, I know that it is a very substantial document. If I were to be pushed on my amendment and asked to choose between the particular form of words used in Amendment No. 8—namely, that the commissioner should have regard to the need to promote compliance with the UN convention—or the version chosen by the noble Lord, Lord Prys-Davies, to have regard to the principles, I think that the objective of having regard to the principles would lie more easily with the fact that this convention is not part of our domestic law, and would furthermore involve the commissioner in rather less onerous, indeed burdensome, duties than promoting compliance with the convention would involve.
I am also reassured by the fact that there was reference to the convention in the advertisement for the post of commissioner. Clearly, there are echoes of

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both amendments in that advertisement, despite the fact that its wording is not as facile as the noble and learned Lord the Attorney General would wish. Nevertheless, the point is that the convention is covered in that job advertisement. That pleases me and I cannot see how the Government can accept either amendment without the convention being part of domestic law. Surely, its adoption into domestic law should come first.
I am also pleased to hear that the Assembly is consulting on subsection (a) of my Amendment No. 8, which requires the commissioner to,
"have regard to the need to … maintain direct contact with children and children's organisations".
I am sure your Lordships would agree that the campaign group and its members are familiar with the problems of children. It has contributed significantly to the demand for the Bill and the office of the commissioner. It has stressed the need for direct contact with children at all levels and we shall return to that point when we discuss later amendments.
5 p.m.
Lord Thomas of Gresford: I am moved to say that the reference to the convention not being part of English law seems irrelevant. All the amendments seek to do is to lay upon the commissioner the duty to have regard to the principles in the amendment of the noble Lord, Lord Prys-Davies, or to promote compliance with the United Nations Convention on the Rights of the Child.
If the wording was that the commissioner shall "promote the principles of the Ten Commandments" or have regard to their compliance, that would be perfectly all right. There is no reason why one should not state in such a way some form of aspiration or objective rule, as my noble friend Lord Hooson said.
An objective standard is being called for in these amendments and I support them.
Lord Prys-Davies: I am grateful to Members of the Committee who have spoken in favour of the amendment and I shall comment on the arguments advanced against it by my noble and learned friend the Attorney General.
First, he suggested that as the UN convention has not been incorporated in UK law, the amendment would be inappropriate. With all due deference to my noble and learned friend, I am not sure that that is correct. I recall that the Welsh Assembly was placed under a duty to comply with the European Convention on Human Rights before the convention was in force as part of UK domestic law. Therefore, I should like to reflect on that point.
Secondly, my noble and learned friend suggested that as the United Nations is mentioned in the advertisement for the post of commissioner, we should be content. That merely reflects the thinking of the Assembly at this point in time. That may not necessarily be the thinking of the Assembly in the future. The amendment recognises the fact that the
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principle should be an enduring one and therefore should be incorporated in the legislation and not merely left to an advertisement or administrative arrangement which can be altered to meet changing conditions and circumstances. Therefore, I do not find my noble and learned friend's reply to my amendment convincing.
Thirdly, there is a distinction between this amendment and that moved by the noble Lord, Lord Roberts of Conwy. Amendment No. 5 is clearly intended to be no more than a purpose clause setting out an objective and principle and not seeking to enact a binding commitment.
For the time being, I beg leave to withdraw the amendment but I may return to it at a later stage.
Amendment, by leave, withdrawn.
Baroness Young Baroness Young moved Amendment No. 6:
Page 2, line 14. at end insert—
"(2) In exercising his functions, the Commissioner shall have particular regard to the rights and responsibilities of any parents or guardians of children to whom this Part applies.""
The noble Baroness said: I regret that I was unable to be present at the Second Reading of the Bill. Unfortunately, a long-standing commitment meant that I could not be here. I support the principles of the Bill. On reading the Second Reading debate, I recognised that not only does it have the support of the Welsh Assembly but that it was given a warm welcome by all noble Lords who spoke in that debate.
I am pleased that the Government have accepted the important recommendation contained in the important report of Sir Ronald Waterhouse, in particular in respect of the events in North Wales.
My amendment is not in any way difficult to understand but it is an important point to make. I would like to believe that the importance of parents is common ground among Members of the Committee. No piece of evidence on any subject connected with social or domestic affairs does not stress the importance of parents and their role.
I am conscious that the issues which Sir Ronald Waterhouse largely addressed related to children who were removed from their parents and were in care. Nevertheless, the fact that there is no reference in the Bill to parents should be put right. In talking about parents, I am talking about "good enough" parents. Often when one talks about parents people believe that one must be talking about the most saintly individuals who never make a mistake. I expect that all of us here today are parents. All of us know that we have done things which on reflection and with hindsight we believe we could have done better. However, I am speaking of the "good enough" parents who should not be excluded.
The point about parents was raised at Second Reading by my noble friend Lord Roberts of Conwy and by the noble Lord, Lord Davies of Coity. It was also raised in another place by my honourable friend Gerald Howarth. All stressed the point about parents,

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and my noble friend Lord Roberts drew attention in particular to children in the Orkney Islands and in Cleveland who were removed from their parents.
I have carefully re-read what was said by the noble Baroness, Lady Farrington, in winding up the debate at Second Reading and what was said in another place. I regret that in neither House of Parliament did any Government Minister refer to parents.
I also looked to see what was said in the Welsh Assembly. I understand that on 7th June 2000, when the recommendations of the Health and Social Services Committee were accepted by the Assembly, Jane Hutt, Secretary for Health and Social Services, said:
"Children's rights of participation should be key to the commissioner's role. The commissioner's agenda should be determined by children and young people themselves, rather than the providers of services. That is why we envisage a role for children and young people from the outset with the appointment procedure. That role should continue in terms of letting the commissioner know of children and young people's priorities and concerns".
She went on to say:
"Finally, the commissioner should have an impact on the full range of provision affecting all children in Wales, through raising the profile, and taking an overview, of the impact of policies, procedures and services on children. The commissioner will be able to produce reports and recommendations in the exercise of her or his functions, including an annual report to the Assembly on the position of children in Wales. She or he will be a constant reminder, including to the Assembly, of the need to give children's services the priority that they deserve".
Once again, there is no mention of parents.
We live in a world in which the old philosophies that govern parents are being questioned. In the past—perhaps before the Convention on the Rights of the Child—the main justification for protecting children was that they were different from adults because they were immature and vulnerable. It was, therefore, accepted that they required parental protection, education and supervision to ensure that they developed in such a way that when they grew up and became adults they would be able to exercise their autonomy responsibly. Today, there is a switch away from the role of parents to a theory based on the assumption that children should, as much as possible, be free to exercise choice and self-determination in all important areas of their lives. That is the other side of the coin.
I shall not open up a great debate as to which side is right. However, it is unfortunate to leave out parents in all this if the commissioner's remit under this legislation, which I support and regard as important, is to extend to all children. We are all too well aware of some cases in which social workers remove children from their parents which subsequently proves to be a mistake, and other cases in which they should be rather more assiduous and remove the children but fail to do so. I believe that in this very difficult area where we are dealing with many different cases in which the child has parents—sometimes not—it is a mistake for the Bill to make no mention of their role.
As the Committee is aware, I believe profoundly in the importance of marriage, the family and the support of parents. One of the great dangers in society today is
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the breakdown of marriage and the break-up of families. Where one has such important legislation one should constantly underpin and strengthen families rather than weaken them. I would have thought that that was a matter on which we could all agree. That is the principle which lies behind the amendment. I have very much at heart the best interests of all children. I cannot believe that their best interests will be served by omitting from the Bill any reference to parents. I beg to move.
Lord Morris of Castle Morris: It is not often in the course of the past 10 years that I have been able to support the noble Baroness, Lady Young, in amendments that she has tabled and Bills she has introduced. On this occasion I rejoice with exceeding great joy that I am able and eager to do so. I support her lock, stock and barrel; hook, line and sinker; horse, foot and guns. It is obvious that the form of words of the amendment gives rise to tricky moments. It would be rather difficult to define in law,
"the rights and responsibilities of any parents",
but we all know what we mean. In many cases the parents might be unknown or untraceable. I was relieved to find in the amendment the word "any". That allows one to bypass almost all causes of contention, even in the wording of the amendment itself. I hope that my noble and learned friend is able to welcome the amendment and give it a fair wind.
5.15 p.m.
Baroness Walmsley: I, too, rise to support Amendment No. 6 tabled by the noble Baroness, Lady Young. No one in this House has a greater reputation as a lighter for the rights of parents and the importance of the position of the family in society than the noble Baroness. Although we may have disagreed about other matters, I, too, rejoice and agree with her on this matter. It is widely accepted by those who are concerned with child protection that, wherever possible, the best setting in which a child can grow up is the family where it is looked after by the parents. Parents have a unique role. However, there are circumstances in which parents cannot carry out their usual responsibilities. When that happens parents should not also forfeit their right to have their views considered. For that reason I believe it is desirable that reference should be made on the face of the Bill to the need for the commissioner to have particular regard to parents' rights and responsibilities.
Although families vary in type and parents do not own their children they should not be left out of the picture when the fate of their children is at stake, and I should like to be reassured that they never will be by the children's commissioner for Wales.
Lady Saltoun of Abernethy: I, too, support this amendment. Casting my mind back to the Orkney abuse cases, to which the noble Baroness, Lady Young, referred, and the Ayrshire abuse cases which occurred at about the same time in Scotland, the trouble was that there was no commissioner for children and nobody to whom the parents could turn.

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In one case in Ayrshire the mother of children who had been removed on the flimsiest excuse by social workers contacted Members of Parliament, me and all kinds of people. There was very little that we could do about it. I believe that if at that time there had been a commissioner for children in Scotland things would not have gone as badly wrong as they did, or at least they would have been put right rather quicker. I very much hope that the noble and learned Lord will give this amendment favourable consideration.
Lord Renton: I support this amendment. I refer briefly to the use of the expression "the rights and responsibilities". We all have a broad idea of what that means, but when it comes to contesting it at law those who are challenged may very well try to place a narrow definition on those words. If at Report stage it is possible perhaps to include a cross-reference in other legislation as to what these rights and responsibilities are it will make the effect of the amendment much firmer.
The Earl of Listowel: I should also like to speak in support of the amendment moved by the noble Baroness, Lady Young. Before doing so, like many other Members of the Committee I welcome the news that the formal power of the commissioner is to be extended to all children in Wales. Most child abuse occurs in families. I believe that there is a danger of going from one extreme to another—from ignoring the voice of the child to believing that only the child can speak with any authority.
It is normally artificial to think of children's welfare in isolation from their families. It is a principle of Chinese medicine that if a child is ill it is usually best to treat the mother. If a family is living in overcrowded and damp accommodation or, perhaps more to the point, parents are worried about delays in receiving housing benefit, that does not affect the child but it worries the parents, which will impact adversely on the well-being of the child. There is at least one country in the world that has a commissioner for the family rather than for children. It is important to bear that in mind. Of course, the interests of the child and family are on occasion very divergent but, normally, supporting the family is important in supporting the child.
Lord Northbourne: I should like to support the amendment. As I know so well the noble and learned Lord the Attorney-General, I suspect that he will either accept the amendment or will have a jolly good reason for not doing so. Therefore, I would rather listen to what he has to say.
Lord Pearson of Rannoch: It may be superfluous, but I should like briefly to support the amendment. As I believe the noble and learned Lord knows, my experience in this field comes from defending the rights, if they can be called that, of mentally handicapped people in this country, where it appears that the pendulum has swung too far in favour of officialdom and the decisions of the Home Office and
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others and where sufficient attention has not been paid over recent years to the rights and interests of families and parents. In that respect, I take the opportunity to congratulate the Government on their White Paper, Valuing People, produced under the auspices of Mr Hutton in another place.
I have not had a great deal to do with the Bill. However, I can recognise when the pendulum has swung too far in favour of the decisions of officialdom when I come to read the Bill and the Explanatory Notes, which do not actually mention the word "parents". I feel sure that my noble friend Lady Young is on to something here and I very much hope that the Government can accept the spirit of her amendment.
Lord Swinfen: I should like to support the amendment. We should all remember that parents have the great responsibility of bringing up the next generation. It is upon the proper upbringing of the next generation that the welfare of the country as a whole stands. It is important that they should have as much support and guidance as possible. We all make mistakes. We all need help as parents and some need more help than others. I hope that in his functions the commissioner will do all he can to help parents to bring up their children properly.
Lord Roberts of Conwy: My noble friend Lady Young was quite right in saying that I drew attention to this area of possible concern during our Second Reading debate on 19th February when I said:
"Some may feel a little uncomfortable with the possible implications here. There is the threat of an overweening bureaucracy, thrusting confusedly in all kinds of directions and interfering unnecessarily in all kinds of areas, including normal family life and normal child-parent relationships".
I went on to talk about the Orkney children scandal of 1991 and the Cleveland fiasco, as I called it. I concluded by quoting the hope expressed by Sir William Utting that,
"the rights of children and the rights and responsibilities of parents prove mutually supportive".—[Official Report. 19/2/01; col. 545.]
That is very much our fervent hope. But there have been occasions when officials have ridden roughshod over parental rights and responsibilities.
It is clearly important that those rights and responsibilities should always be considered. Indeed, they should be in the forefront, especially when a child is taken from his or her parents' care and placed elsewhere. There is a tendency for society to regard those in authority in social services as near infallible and their provision for children as infinitely superior to the provision previously made for them at home. Social workers and their judgment are trusted implicitly. I have a good deal of sympathy with what was said by the noble Lady, Lady Saltoun. Sometimes parents do not know to whom to turn. We know to our cost that there have been failures which the Government and the Bill seek to prevent from recurring.
Therefore, in this context, I should have thought that my noble friend's amendment would certainly not be too onerous an addition. It simply requires the

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commissioner to have regard to the rights and responsibilities of parents or guardians. The Government may well say, "Of course he will have such regard'', to which we should say, "Why not place the amendment on the face of the Bill? It would remind the commissioner of its importance". What we want is an effective commissioner who does not supplant the role of parents. It must be someone in whom the parents have confidence.
Baroness Farrington of Ribbleton: Perhaps the noble Baroness, Lady Young, will forgive me if I start with a personal response. There can be no time at which I am more aware of the role and responsibility of parents than at this moment and on this day, as we wait for one of our sons and our daughter-in-law to have their first child. I can assure the noble Baroness that the only problem she may have later in our proceedings is if I suddenly leap up and shout in a very disrespectful way "yippee".
There is common ground between us about the importance of parents and the role that they play. We have no doubt about that. We intend to bring forward an amendment on Report that will enable the commissioner to make representations to the Assembly about aspects of family life that may affect children's rights or their welfare. I want to say a few words about that welfare aspect. The expectation is that, in exercising any of his functions, the commissioner would find it impossible to perform the function of looking to the welfare of children without taking a proper and balanced view of all aspects and all relevant issues.
As the Conservative Assembly member, David Melding, has clarified, a fully effective Children's Commissioner will offer great support to parents without undermining the responsibility of the family in any way. The Bill will enable that to happen. In the Assembly debate on 7th June last year it was accepted that it was not the intention that the commissioner should exercise functions in respect of families, such as investigation, although it might be appropriate for the commissioner to comment on aspects of family life that affect children.
Perhaps I may turn to the contributions made during the debate. The noble Lady, Lady Saltoun, and the noble Lords, Lord Renton and Lord Roberts of Conwy, referred to individual cases. It is very important indeed not to see the role of the Children's Commissioner in isolation from the other improvements being made to the system; namely, it becomes a part of the whole. It is therefore vital that the role of the Children's Commissioner is not seen as a role in which parents will present individual cases, in particular during a process of review that will take its proper course through the legal system, in order to seek the commissioner to intervene on an individual basis.
Having said that, it is quite clearly the case, from what has been said previously, that we intend that the commissioner should be able to comment on the broad strategy framework and policy in which those decisions take place. I hope that I have managed to
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separate and distinguish the two functions because it would be a mistake for noble Lords to envisage the role of the Children's Commissioner as one in which he would intervene in individual cases. That would then go against the interests not only of the children concerned but also of the parents because it would muddy the waters and could adversely affect a proper decision being reached through the due legal process.
It has never been the intention of the Government that the commissioner should interfere in family life. He will have no investigative, review or monitoring powers in respect of parents or guardians. He is there to promote and safeguard the rights—a point to which noble Lords have referred when speaking to other amendments—and the welfare of children.
I hope that, in the light of this response, the noble Baroness, Lady Young, will not wish to press her amendment because we do not consider that it is appropriate. However, we fully recognise that, in performing his tasks, the commissioner will have to have regard to the unity of family life when examining the welfare of children in their families.
Perhaps I may conclude by saying what a pleasure it is to be able to respond to the noble Lord, Lord Pearson of Rannoch, and to thank him for his congratulations on the Government's White Paper.
5.30 p.m.
Lord Hylton: Before the noble Baroness sits down, can she give the Committee an assurance that the forthcoming government amendment will refer, in terms, to what she has just said about the unity of family life?
Baroness Farrington of Ribbleton: In bringing forward the amendment, we shall want to ensure that the commissioner is able to make representations about aspects of family life that may affect children's rights and welfare. Obviously the context of "family life" and the welfare of children within families is indistinguishable from that.
Lord Thomas of Gresford: This could be a very big day for the noble Baroness. I am sure that all noble Lords will join me in hoping that all goes well for her family.
We welcome the prospect of a government amendment dealing with the position of parents and their rights and responsibilities. We shall have to wait to see exactly how the amendment is drafted before we can comment any further on it.
The matter that seems to have emerged in the course of our debate on this amendment is the question of parents who have been falsely accused of something and who then feel powerless to object to it. That lies behind many of the comments made by noble Lords. It puts a new slant on the rights and responsibilities of parents that I did not fully appreciate when the amendment was first moved. I hope that, when they come to draft their amendment, the Government will

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consider the concerns that have been voiced on this. We shall then be able to discuss the issue more fully on Report.
Baroness Young: First, I thank all noble Lords who have most kindly supported me on this amendment, and of course I offer my warmest congratulations and good wishes to the noble Baroness, Lady Farrington. We shall compete in the numbers of our grandchildren and discuss that outside the Chamber. I am delighted for her and I hope that all goes well.
I was particularly pleased to gain support from all sides of the Committee because that support demonstrates a recognition of what I believe to be a very serious issue. I take entirely the point just made by the noble Lord, Lord Thomas of Gresford. Indeed, the same point was raised by the noble Lord, Lord Hylton, as well as by the noble Lady, Lady Saltoun, particularly in relation to the case in the Orkneys. The parents affected did not feel that there was anyone to whom they could turn to seek redress when their children were taken away from them. That is an extremely important point.
The cases over recent years where children have been wrongly removed from their parents have become very well known because they caused a great deal of controversy and concern. However, I was not considering only those cases, but those of other parents who encounter difficulties long before they have reached the position where the police or social workers arrive in the early hours of the morning to remove their children; namely, cases perhaps less serious than those which took place in the Orkneys, in north-east England and, I believe, in Ayrshire. Other cases do not reach that point; I am thinking here of parents who are good enough, but are perhaps thought to be inadequate by social workers. In the context of such circumstances, parents need to have their views considered.
That is all I am asking for in this amendment. It is difficult to give an account of what might happen in such cases, but I am sure that all noble Lords can imagine how, in this important but difficult world, situations may arise where the needs of the parents need to be taken into account.
Baroness Farrington of Ribbleton: I thank the noble Baroness, Lady Young, for giving way. I hope that it will be helpful to the Committee if I say now that I would not like to have given any impression at all that the role of the Children's Commissioner would be to intervene in individual cases, but rather to give advice on the policy framework in which individual judgments and cases take place.
Baroness Young: I thank the noble Baroness for making the position absolutely clear. However, when one reads exactly what is set out in Clause 2 as regards the role of the commissioner, it states the following:
"The principal aim of the Commissioner in exercising his functions is to safeguard and promote the rights and welfare of children to whom this Part applies".
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There is no mention of parents.
I accept that my amendment may not be drafted properly; in my experience amendments seldom are, whether in government or in opposition. I would withdraw the amendment if I thought that I could be given an undertaking from the noble Baroness that she would take it away and redraft it so that it would meet the concerns of the Government. While I accept that I may not have understood the detail of the argument, I must say to her in all honesty that the government amendment on children's rights and welfare to be brought forward at the next stage and then to go on to the Welsh Assembly—I may have misunderstood her on this last point—does not seem to meet the case.
The noble Baroness came far closer to meeting my amendment in her final remarks when she said that the commissioner will have to have regard to the "unity of family life". I am at a loss to understand why we cannot use the word "parents", which would be understood by everyone concerned. It is because I am uncertain about the Government's position on this that I should like to hear from the noble Baroness whether, were I to withdraw my amendment, she would bring back an amendment redrafted so as to include parents.
Baroness Farrington of Ribbleton: I can give an undertaking to take away the noble Baroness's amendment and read it carefully; but I cannot give an undertaking to include the word "parents" in the government amendment, simply because the ultimate responsibility of the commissioner is to have paramount concern for the welfare of children. I hope I have made it absolutely clear that, in considering the welfare of children, it is obvious that consideration must also be given to the needs and welfare of children in the family. The noble Baroness is pressing me a little too far and I should not like to be misleading. I do not think that there is much between us. I would be extremely happy to talk to the noble Baroness between now and Report stage.
Baroness Young: I am grateful to the noble Baroness, Lady Farrington. I am sorry, I simply do not understand how one can consider the rights and welfare of children without, in some cases, considering the position of parents. It does not add up.
In view of the offer made by the noble Baroness, I shall withdraw the amendment. However, I must be quite clear that if a suitable amendment which does include parents is not brought forward, I shall re-table my amendment at Report stage. I am quite certain that the noble Baroness—and, I hope very much, the noble and learned Lord, Lord Williams—will take account of the fact that everyone who has spoken to the amendment has supported it. Even if the wording is not quite right—and I can accept that—there is general support throughout the House for including something about parents. It seems to me that, apart from anyone else, we owe it to the parents of Wales. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clause 3 [Review of exercise of functions of Assembly and other persons]:
Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 7:
Page 2, line 22, at end insert "primary or"
The noble Lord said: The purpose of Amendment No. 7 is quite clear: it is to enable the Commissioner to comment on primary as well as secondary legislation as it may affect children in Wales.
As I suggested at Second Reading, it struck me as singularly odd that, as things stand, the Commissioner could not comment on this Bill, except, of course, through the Assembly. The Assembly has an opportunity to comment on the Government's legislative programme at the start of a parliamentary session, but that opportunity is primarily for the benefit of Assembly members. If past experience is anything to go by, the programme as outlined by the Secretary of State after the Queen's Speech is very much in draft form with very little detail available.
As I see it, the commissioner will have an interest in many Bills relating to his areas of overview and supervision—local government Bills, education Bills, health Bills and so on. As I understand it, he will not be able to give his views on such Bills direct to Ministers as he and they may wish him to do; they will have to be filtered through the Assembly.
I have read the draft protocol on the Assembly's proposals for primary legislation, which was published in February last year but is still not agreed. The Secretary of State, Mr Paul Murphy, said that it was "very close to completion" on 16th January this year, but it is still not finalised.
The protocol is not very illuminating on this issue, except that the introduction makes clear that references to the Assembly mean references to its officials as well. I take it from earlier proceedings today that the commissioner is, of course, an official or an officer of the Assembly. So I assume that the commissioner may have an input into primary legislation at various stages, but acting through the Assembly.
However, this is not clear because the Bill refers specifically to subordinate legislation only. The commissioner, therefore, if he puts forward comments on primary legislative proposals, may well be told that consideration of primary legislation is beyond his remit.
One is tempted to ask for the Government's view on this and whether the commissioner can comment on Green Papers and White Papers—or will he be expected to do that through the Assembly? I cannot see any good reason for limiting the commissioner to subordinate legislation specifically as proposed in the Bill. I beg to move.
5.45 p.m.
Lord Thomas of Gresford: Sharp eyes in BBC Wales drew to my attention at lunchtime the press release
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issued today by the Wales Office, in which Mr David Hanson, the Wales Office Minister, is quoted as saying,
"we intend asking Parliament to amend the Bill to empower the Commissioner to consider and make representations to the Assembly about any matter that affects the rights or welfare of children in Wales"—
the very point made by the noble and learned Lord the Attorney-General in opening.
The press release also refers to the new function as being "potentially very wide". It seems to me that that wording can certainly cover the concerns outlined by the noble Lord, Lord Roberts of Conwy. If it is potentially very wide, any matter must include the right to comment on primary legislation.
Lord Prys-Davies: As the noble Lord, Lord Roberts of Conwy, pointed out, it is noteworthy that the subsection refers to the making of subordinate legislation but nowhere does it refer to primary legislation. This is in contrast to the Northern Ireland Human Rights Commission, which has the right to propose any measures which it feels ought to be taken to protect the human rights of children. I believe that the noble Lord, Lord Roberts, has raised an important question which deserves sympathetic consideration by the Government.
Lord Williams of Mostyn: I agree that the question is important, but the analysis of the noble Lord, Lord Thomas of Gresford, is correct on two grounds. First, the rubric on Clause 3, at page 2 of the Bill, is:
"Review of exercise of functions of Assembly and other persons".
If we go to Section 72B—the amendment is concerned with line 22—we see:
"The Commissioner may review the effect on children to whom this Part applies of—
(a) the exercise or proposed exercise by the Assembly of any function".
The Assembly has no function in passing primary legislation; it can deal only with secondary legislation.
I come back to the analysis of the noble Lord. Lord Thomas. If the Committee agrees, we will put the empowering clause into the Bill on Report. This will empower the commissioner to consider and make representations to the Assembly about any matter affecting the rights or welfare of children in Wales. That would plainly entitle the commissioner to make representations to the Assembly about the effect of primary legislation on Wales. But, of course, the lawmaking body for primary legislation under the Government of Wales Act remains with this Parliament in Westminster. The noble Lord, Lord Thomas, is absolutely right.
Lord Roberts of Conwy: Perhaps I may ask the noble and learned Lord about his comment on the function of the Assembly—or, rather, the lack of function—in relation to primary legislation. The Assembly does have the function of listening to the Government's legislative programme, which is usually outlined by the Secretary of State; it can also—as clearly has happened

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with this Bill—be considered in a plenary session of the Assembly; and it can be considered by a committee of the Assembly. Although the Assembly does not have the power to make primary legislation—that power belongs to Westminster—such a committee could have a considerable input into the process. The protocol relating to the Assembly's proposals for primary legislation is still in draft form; nevertheless, it anticipates involving subject committees of the Assembly in amendments to Bills and so on. So, although there may not be a function so far as primary legislation is concerned, the Assembly has its role in the preparation of primary legislation on occasion, and indeed in amending primary legislation.
We are dealing with a particular Welsh Bill at the moment, but clearly the commissioner will have an interest in Bills relating to local government, education and other areas where he has an overview. The commissioner may well express his views through the Assembly and the Assembly may then transmit those views to Ministers and those preparing legislation that will affect the Children's Commissioner's field of supervision and overview. Is not that the case? If it is, why is the Bill so specific in stating that the commissioner's function is limited to subordinate legislation only?
Lord Williams of Mostyn: Because that is the only power that the Assembly has. The answer to the noble Lord's question can be seen if we consider how the subparagraph would read were his amendment to be successful; namely,
"The commissioner may review the effect on children to whom this Part applies of … the exercise or proposed exercise by the Assembly of any function, including the making or proposed making of",
"any primary",
"or subordinate legislation".
The Assembly has no function to make or propose to make any primary legislation.
Lord Roberts of Conwy: The noble and learned Lord realises that I must answer: "But, of course, Westminster has". The commissioner will be dealing with the contents of legislation passed in this Parliament in relation to Wales and as it affects children in Wales. Surely that will be the position.
The obverse of that particular coin is that the commissioner can comment on subordinate legislation—the legislative sphere of the Assembly, which funds and appoints the commissioner—but by using the phrase "subordinate legislation" we appear to be debarring the commissioner from commenting on primary legislation that may well affect him and the children of Wales.
Lord Williams of Mostyn: I return to the analysis by the noble Lord, Lord Thomas: there is no function of the Assembly that can include or comprehend the making of primary legislation. The amendment, were it to be passed, would not be consistent with the Government of Wales Act. However, the amendment
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that we have discussed and are bringing forward will entitle the commissioner, if he so wishes, to make representations to the Assembly about the effect on children in Wales of primary legislation.
Lord Roberts of Conwy: I am grateful to the noble and learned Lord for that last sentence in particular. It clarifies the situation and the main point that I sought to make. I am happy to withdraw the amendment, and beg leave to do so.
Amendment, by leave, withdrawn.
[Amendment No. 8 not moved.]
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 9:
Page 2, leave out lines 37 and 38.
The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 10, 15 and 16.
I knew that things were going along far too cosily between the noble and learned Lord the Attorney-General and myself. At this point I must differ on the primary legislative power of the Assembly. This first Bill relating entirely to Wales gives primary legislative power to the Assembly in the sense that, under proposed new Section 72B(2), the Assembly can amend the primary legislation that is already in place.
This is a Henry VIII provision, but is subject to all kinds of limitations. Under subsection (2) the Assembly may by order (by subsidiary legislation) amend proposed new Section 72B—primary legislation—or proposed new Schedule 2A, which is also primary legislation, in the ways that are set out in the subsection. The same power to amend primary legislation is mirrored in Clause 4(9).
That power having been granted, all kinds of conditions, qualifications and limitations are placed upon it, and are set out in Clause 3(3). In relation to an order adding a person to proposed new Schedule 2A, such amendment can happen only if,
"some or all of the person's functions are in a field in which the Assembly has functions".
Subsection (6) states:
"The Assembly may not make an order under subsection (2) if the result would be that the Commissioner could review the effect of the exercise or proposed exercise of a person's function in a field in which the Assembly does not have functions".
These qualifications and limitations very much constrain and constrict the power of the Assembly to amend, by order, the principal statute.
I am left in something of a quandary in relation to these amendments as we now have the promise of further amendments being brought forward which will change the position drastically. So the limitation in the provision,
"the person's functions are in a field in which the Assembly has functions",
will presumably go.
The purpose of my amendments both to Clause 3 and to Clause 4 is to simplify the limitations placed on the Assembly by subsections (3) to (6) and those placed on it in proposed new subsections (5B) to (5E) in Clause 4. I do not know how far I can press the

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amendment at this stage because I have not seen the amendments promised by the Government. I beg to move.
Baroness Farrington of Ribbleton: The noble Lord, Lord Thomas of Gresford, was right when he identified areas of division. However, he did not identify them all. I believe that there is quite a wide division between the noble Lord, Lord Thomas of Gresford, and the noble Lord, Lord Roberts of Conwy, in terms of the role of the Assembly.
My noble and learned friend referred to the fact that, having considered issues raised in another place, we shall bring forward an amendment to the Bill which will empower the commissioner to consider and make representations to the Assembly about any matter affecting the rights or welfare of children in Wales. I hope that when Members of the Committee see the amendment, they will agree that its spirit reflects that requirement. The new function will allow the commissioner to make representations in connection with any person or body, whether or not the Assembly has devolved responsibility for it.
Although the new clause will allow representations to be made about non-devolved issues, we remain of the view that it is appropriate for the Assembly's power in regard to secondary legislation to be exercised unilaterally only in respect of those bodies for which it has a clear responsibility—local government being a case in point. But that does not prevent other bodies being added; it merely means that, quite properly, the Assembly must first consult the Secretary of State when it has only a minority interest. Here again, we have a point upon which there are different opinions in the Committee as regards the state of affairs—or, in the case of the noble Lord, Lord Thomas of Gresford, the desirable state of affairs—in relation to powers conferred on the Assembly.
However, I believe that the noble Lord, Lord Thomas of Gresford, is right to say that he will need to have sight of the amendment that the Government propose. I should be delighted to offer an opportunity for discussions to take place in the light of the noble Lord having had the benefit of seeing proposed government amendments between now and the Report stage.
Lord Thomas of Gresford: Who could refuse such an invitation! In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 10 not moved.]
6 p.m.
Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 11:
Page 3, line 2, leave out "at least half" and insert "a proportion"
The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 14. The amendment relates specifically to the power of the Assembly to add to the bodies in Schedule 2A. Those are the bodies that will be subject to review as to the effect of their activities on children. One wonders
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precisely what bodies the Government have in mind as possible additions. There is a host of voluntary organisations, ranging from Scouts and Girl Guides to the Welsh League of Youth, with its 50,000 members. In passing, I am bound to say that the air has been remarkably free of scandal over the years.
Those organisations were supported by the Welsh Office for many years, and latterly by the Assembly—perhaps not as to "half' of the expenditure regarding their functions as specified in Clause 3(3), but substantially. I should have thought that there was an argument for including them in the commissioner's remit. If that argument stands, we should not have the hurdle of establishing that "half" of their expenditure is being met by the Assembly. If the organisation is supported by taxpayers through the Welsh Office, as it used to be, and now by the Assembly, that should be enough.
There are also other organisations dealing with children that have a charitable or a statutory basis; for example, the Churches, which have not always been beyond reproach in the area. The troubles of the Roman Catholic Church and the archdiocese of Cardiff will be known to some noble Lords. I shall say no more about them. Other bodies have extensive dealings with children in Wales. I have in mind the broadcasting organisations—the BBC, HT V and S4C—which are surprisingly absent from the schedule. I hope that the Government will comment on that aspect, as well as on the key point that "half" the finances of such organisations need not necessarily be derived from government or Assembly sources.
Amendment No. 14 is a replica of the preceding section in the Bill. It would give the power to amend this section or Schedule 2B to the Secretary of State, as well as the Assembly. The "Secretary of State" here means any Secretary of State, including the Secretary of State for Wales. The purpose of the amendment is to deal with cross-border issues. I hope that it will prove to be a helpful amendment. Some children who are in Wales do not easily fall into the category of "ordinarily resident in Wales". Therefore, if the Secretary of State who is responsible for providing them with services so desires it, they can he brought under the arrangements of the Children's Commissioner. Again, I cast my mind back to that particular home that I visited in Powys during my ministerial days which contained children who came predominantly from Birmingham.
As time passes, it is possible that children in non-devolved areas of government may clearly need to be brought under the commissioner's remit. I note, for example, that the Government are planning to provide some 400 additional secure training centre places for young people in custody. If any of those places are in Wales, the Government may well wish the Children's Commissioner to have a role. I shall remind the noble and learned Lord of the words in the White Paper. I quote from paragraph 2.14 at page 32, which says:
"We also plan over the next five years to build 400 additional secure training centre places, providing intensive supervision and high quality programmes for young people in custody. As far as

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possible, these places will be near to offenders' home areas so that effective links can he made with education and other services which will deal with them after release".
Surely it would make sense in such cases for the Children's Commissioner to have some oversight while children are in those secure training centre places, which may well be local authority establishments. He would then be in a better position to talk about their lives and the services available to them thereafter. I beg to move.
Lord Williams of Mostyn: As the noble Lord pointed out, Amendment No. 11 would allow the Assembly to subject additional bodies in the future to the function of review by the commissioner. That would occur without the Secretary of State's consent, provided that at least some funding—however minuscule—came from the Assembly, and even though the relevant body's involvement in the areas of devolved responsibility might also be negligible. We do not find that proposal acceptable. At present, the order-making power to add bodies requires the Secretary of State's consent if less than half the body's funding is provided by the Assembly. I believe that we are dealing with a difference of approach. Our policy is that the commissioner's main field of jurisdiction should be in respect of bodies that have functions within the Assembly's devolved fields of responsibility. That is my objection to Amendment No. 11.
Amendment No. 14 would give the Secretary of State power to amend, add to or delete from the list of bodies subject to review and to monitoring arrangements without reference to the Assembly and without having to satisfy any criteria. Again, I do not believe that that can be right. If carried, the amendment would not be consistent with giving the Assembly maximum autonomy and discretion in secondary legislation. It would be a recipe for confusion. Under the amendment, the Secretary of State might make changes with which the Assembly disagreed—or, indeed, vice versa—and each might try to overturn the changes introduced by the other.
I do not believe that Amendments Nos. 11 and 14 represent the way forward. I appreciate that these amendments were tabled before I made the announcement earlier this afternoon; namely, that, if our amendment is accepted, the commissioner would be able in the future to consider and make representations to the Assembly about any matter affecting children in Wales. Therefore, he would have the wider locus, but not one that followed the route proposed by these amendments.
Lord Roberts of Conwy: I am grateful for the noble and learned Lord's comments. As regards Amendment No. 11, I was trying to be as helpful as I possibly could. It seems to me that the Assembly would have to investigate a body's finances and even establish that half its expenditure was supported by the Assembly. However, I propose simply that if taxpayers' money is allocated to an organisation via the Assembly, it should be allocated to those bodies that are subject to review by the Children's
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Commissioner. However, the Government are content with their proposition and do not consider that my proposal improves it.
As regards Amendment No. 14, I seek to deal with cross-border issues where they arise and where it might be the wish of a Secretary of State to place particular children in Wales within the jurisdiction of the Children's Commissioner.
I mentioned the situation with regard to secure training places for young people in custody. It is not inconceivable that as that proposal develops—it involves education, training and other matters, all areas in which the commissioner is involved—a Secretary of State, rather than the Assembly, might wish the commissioner to have oversight of such young people in Wales. Nevertheless, I hear what the Government say and clearly my views are not acceptable to them. I am not minded to press them at this stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 12:
Page 3, line 12, leave out "by members of the public"
The noble Lord said: This is a probing amendment. I think that I know what the Government are anxious to avoid; namely, an overlap between the commissioner and local government and health ombudsmen. I agree that that would be regrettable. I note that the police are excluded from the measure. There is no possibility of the Assembly adding them to the schedule.
The noble and learned Lord will be aware from his reading of the Waterhouse report, Lost in Care, and from other knowledge that when abuse occurs on a significant scale no one is above suspicion. Rumours abound. Even the police and the inspectorate may be alleged to be implicated. The question remains: how best is the matter dealt with? How do the commissioner and the Assembly deal with it? I am not at all certain that the best course is necessarily to exclude investigators and supervisors from the commissioner's overview. There is need for constant vigilance in this sphere. One is left with the question: quis custodet ipsos Custodes? I am sure that the commissioner fulfils that brief well. He should certainly not be excluded from it. I beg to move.
6.15 p.m.
Lord Williams of Mostyn: The noble Lord is right as regards our thinking on this aspect. The Bill as it stands prevents the commissioner from reviewing the activities of other bodies set up to deal with complaints by members of the public or from monitoring investigations by such bodies. There is a very similar provision in Schedule 9 to the Government of Wales Act 1998 which relates to the Welsh Administration Ombudsman. It is sensible that there should not be confusion between the roles of broadly similar bodies.
However, on the wide-ranging—in terms of consequence—amendment to which I have already spoken, the commissioner will be able to consider and make representations to the Assembly about other

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investigative bodies in so far as they may be involved in matters that affect the rights or welfare of children in Wales. I believe that that would meet the noble Lord's point; namely, that, where appropriate, representations could be made to the Assembly but that there would not be a duplication of function. I believe that both he and I seek to avoid that.
Lord Roberts of Conwy: I am grateful for the noble and learned Lord's comments. As I said, this is a probing amendment. I dare say that the new amendments that we shall see on Report will deal with the point. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 13:
Page 3, leave out lines 16 to 19.
The noble Lord said: In moving Amendment No. 13, I wish to speak also to Amendment No. 17. The amendment concentrates on the major issue of why the commissioner is confined to devolved areas and cannot operate in non-devolved areas of government. We have been given a considerable amount of enlightenment this afternoon on this issue but we still await the tabling of the Government's amendments on Report.
At present there are substantial areas where children are involved which the commissioner cannot touch. I quote front subsection (6) of Clause 3 which the amendment seeks to remove. The Assembly cannot add to Schedule 2A by order,
"if the result would be that the Commissioner could review the effect of the exercise or proposed exercise of a person's function in a field in which the Assembly does not have functions".
A similar provision is contained in Clause 4 which prohibits the Assembly making orders as regards Schedule 2B.
We are all familiar with the consequences. Arrangements made by the Home Office, for example, to deal with young offenders in custody may not come within the commissioner's purview. As I said earlier, this is an important area and is likely to become more so as the Government plan for 400 secure training places in addition to those in current use.
I note the case of the 13 year-old persistent offender on page 31 of the White Paper, Criminal Justice: The Way Ahead. The boy was detained in a local authority secure unit. If that case had occurred in Wales, I assume that the commissioner would have had some oversight of it in view of his local authority responsibilities. We are concerned about young offenders. I am sure that reports such as that of the Chief Inspector of Prisons, Sir David Ramsbotham, on Brinsford YOI are very much on our minds. I need hardly remind the Minister of Sir David's words,
"Brinsford's regime, with all the indicators we found of self-harm, fear for safety and bullying, puts most of its juvenile population at risk of harm".
It would seem peculiar if that kind of situation were to occur in Wales at some time in the future and the Children's Commissioner had no role to play. Other
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departments of state which deal with children are the DSS, through the CSA and the benefits system, and the Ministry of Defence through the cadet forces.
We understood that it was government policy to confine the commissioner to the devolved areas. The noble Baroness, Lady Farrington, made that clear on Second Reading. She said:
"The issue of whether there is in principle any reason why the Government should not legislate for the commissioner to have a role in respect of non-devolved services is one of policy rather than constitution".—[0fficial Report, 19/2/01: col. 570.]
Why have the Government adopted that policy? I pointed out at Second Reading that Section 7 of the Welsh Language Act 1993 empowers the Welsh Language Board to give notice of its requirement to any public body operating in Wales, whether devolved or not. The commissioner could have been similarly empowered, but he has not been. Reference has also been made to Section 68 of the Northern Ireland Act 1998, which creates the Northern Ireland Human Rights Commission. The legal opinion obtained by the campaign group is that the function of that commissioner is in no way limited to transferred powers alone or even to transferred and reserved powers. It is a powerful body whose first target is the juvenile justice system, which is a reserved area.
There is no doubt that the Assembly's Health and Social Services Committee had such a powerful commissioner in mind. It said as much in its report. As we have not quoted the report very much this evening, I think that paragraph 29 merits inclusion in the record. It says:
"We have given consideration as to whether the Commissioner's remit should include policy and services that affect children in Wales but for which responsibility has not been devolved to the Assembly, such as the benefit system. We believe that such jurisdiction would he desirable to promote the rights and welfare of children in Wales. The widest possible functions in respect of non-devolved policies and services should be explored and, as a minimum, the Commissioner should be able to consider and make representations in respect of any non-devolved matters affecting children in Wales in a way similar to the Assembly's right under section 33 of the Government of Wales Act, which is an exercise in respect of non-devolved functions. However, we recognise that such a proposal would be subject to negotiation with the UK Government".
That negotiation has clearly been going on and the Government appear to have listened. There are all sorts of possibilities ahead. We do not know how generous the proposed amendment will be, but we have had a reasonable outline of it today. I detect that the Government's view is that, as the commissioner is an Assembly appointee and funded by the Assembly, he must be confined to the Assembly's areas of responsibility. He can make informal representations and what he says will be given every consideration, but he will not have power to demand information, let alone interfere in non-departmental affairs. We hope that that position has changed slightly. As the Government's amendment is not yet available to us, I beg to move the amendment in the hope of hearing further comment.
Baroness Farrington of Ribbleton: I believe that I can help the noble Lord. His example of children placed in

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local authority secure units would obviously fall directly within the devolved functions, so there would not be the problem that he envisages.
I repeat. The amendment that the Government will table to empower the commissioner to consider and make representations to the Assembly about any matter affecting children in Wales will allow him a locus in respect of bodies that have no functions within the Assembly's devolved fields of responsibility. I hope that that reassures the noble Lord that the commissioner's ability to make representations will not be confined to the Assembly's areas of devolved responsibility.
I appreciate that there may still be some nuances between us on the subject, but I hope that the noble Lord will accept my assurance.
Lord Roberts of Conwy: I am grateful to the Minister. The more that we hear about the proposed amendment on Report, the higher our expectations become. Knowing the ministerial team, I trust that they will not disappoint us. It sounds as though the Government have advanced their thinking considerably, but I shall wait to see it all in black and white. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 agreed to.
Clause 4 [Review and monitoring of arrangements]:
[Amendments Nos. 14 to 17 not moved.]
Clause 4 agreed to.
6.30 p.m.
Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 18:
After Clause 4, insert the following new clause—
"EXAMINATION OF CASES
In section 74(3) of the Care Standards Act 2000 (c. 14) (examination of cases) before paragraph (a) insert——
"(za) requiring persons to allow the Commissioner access to institutions which include children to whom this Part applies:"."
The noble Lord said: Section 74 of the Care Standards Act 2000 deals with the commissioner's power to examine particular cases and provides for regulations to assist him. Notable by its absence is any power for the commissioner to gain access to institutions that include children. The amendment would remedy that.
The Government seek to explain the situation by saying that they do not want the commissioner to become too involved in individual cases, except when there is a principle involved. They say that things have moved on since the Waterhouse report. The noble Baroness, Lady Farrington, stressed that point in a letter to those of us who spoke on Second Reading. We are told that there are new officers and procedures in place. In short, there is no need for the commissioner or his staff to carry out spot checks at institutions.
I should like an update on the current position of the implementation of the Care Standards Act. Is the inspectorate in place? The situation is worrying. Of
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course things are changing and will change. Many of the homes in which abuse took place have been closed and only 10 per cent of children in care are in institutional homes. The majority are now fostered. However, I am bound to warn Ministers that the confidence that we see developing these days prevailed in the 1980s as well. We all know where that got us. Courts put children into the care of local authorities convinced that they would be safer there than in the conditions in which they were found. There was complacency all round, which is frightening in retrospect.
I know that the noble and learned Lord the Attorney-General has studied Sir Ronald's report. He will be aware of the extent of the corruption that invaded certain homes and authorities. It was the nearest thing to an Internet virus in present day terms, and it affected everyone one way or another. Suspicion paralysed those in authority who should have known what was going on but did not.
Therefore, it is not surprising that one children's organisation, the NSPCC, which is very close to children, is urging Peers to amend the Bill in order to allow the commissioner an express right to visit and have access to institutions, such as residential children's homes, in cases of alleged institutional abuse. It is also urging that the commissioner should be able to require bodies or persons to provide information. The NSPCC says that that would have been of great assistance when concerns were first raised about cases of child abuse in North Wales in the 1990s. I believe that the concern started even before then.
Of course, assurances were given by Mr David Hanson in the other place about the way in which individual cases would be dealt with. The NSPCC considered those assurances and found them insufficient. It said:
"We appreciate that in the majority of cases access to institutions would not be denied but experience has shown that in the small number of cases where parties are obstructive that the greatest risk to children exists. The right of access to institutions is a common feature among many Children's Commissioners and Ombudsmen in Europe. By definition, Children's Commissioners should have oversight of child protection systems but would not be involved in the work of such inspectorates as a matter of course, only in the case of an alleged failure".
It is that last clause that really concerns us. We accept the point that it will not be the normal duty of the Children's Commissioner to visit homes and institutions but we believe that he should have the power to do so.
I have said this before and I shall say it again: I cannot see how the commissioner can do his job properly if he does not have the right of access to the children who ultimately are his responsibility, wherever they may be. How can he listen to them—a point much stressed by the Assembly committee—if he cannot gain access to them? The lesson of Waterhouse is that one can establish whatever system one likes but none is perfect, none is foolproof, and its operation must be checked again and again.
Finally, the commissioner must be able to check his findings when he examines a particular case which involves a matter of principle. He must be able to check his findings and recommendations against what is happening on the ground; otherwise, his conclusions will be in danger of being too theoretical and detached from reality. I believe that it is inconceivable, particularly in Wales, that a children's commissioner should not have the power to visit children's homes. I repeat: it is inconceivable.
I believe that the Government are making very heavy weather of this point. Ministers in the Assembly, as well as, I am sure, Ministers in the Welsh Office, were able to visit such homes. Therefore, I very much hope that the Government will think again about the whole problem of access by the Children's Commissioner to children when a genuine case concerns him. I beg to move.
Lord Thomas of Gresford: I very much support this amendment, to which my name is attached. I am also grateful to the noble Lord, Lord Roberts of Conwy, for taking us back to Section 74 of the principal Act. During discussions on this Bill we have been told many times that the role of the Children's Commissioner is to have a large oversee and not to become involved in the detail. However, Section 74—no amendment to that section is proposed in the current Bill—lays down that regulations must be put in place for the examination by the commissioner of the cases of particular children. Therefore, it is intended that the commissioner will look at individual cases.
The regulations are to set out the types of cases to be examined, the circumstances in which an examination may be made, the procedure for conducting an examination, and the publication of reports. Extensive powers are given to the commissioner to enable him to require witnesses to come forward and give evidence. Indeed, in respect of the attendance and examination of witnesses and the provision of information, the commissioner has the same powers as the High Court. Such powers are enforced by the certifying of an offence to the High Court. Thus, a person who so offends may be dealt with as though he had committed an offence which would be dealt with in the High Court.
Those powers are considerable—to summon and hear witnesses and to look at papers. What is missing? The power to enter premises and to have a look, or, as we lawyers would say, to have a view. Therefore, it appears that there is a positive lacuna in the principal Act in relation to the powers of the commissioner. He can look at individual cases and he can summon witnesses and call for papers. Surely he should be able to look inside the institution where the problem has arisen.
The answer we were given at Second Reading was, "Oh well, under the Care Standards Act there is now an inspectorate which will carry out detailed inspections of institutions, and the commissioner will have an oversight of what it does". But how can the commissioner have an oversight of his inspectors if he cannot see the premises which they have inspected?
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Surely, he must be able to have a look at an institution which is the subject of a report so that he may come to his own conclusion and make his own judgments.
The example of the Chief Inspector of Prisons has been referred to by the noble Lord, Lord Roberts. Mention was made of a penal institution which the chief inspector condemned. Today, he gave a star to another institution. He has the right to inspect and other people are able to carry out inspections of prisons on his behalf. Why should not the Children's Commissioner have a similar right? I support the amendment.
The Earl of Listowel: I also support the amendment. I find the arguments put forward by noble Lords who support the amendment compelling. I do not believe that in the course of his work a commissioner should feel inhibited from getting in touch with the grass roots. I am not sure how successful a commissioner could be if he relied on reports to make judgments about the type of institution that we are discussing. The noble and learned Lord may reply that, of course, the commissioner is able to visit institutions, and normally institutions would agree to such visits. However, I am not sure that the right message will be sent to the commissioner if he does not have the right to enter institutions freely.
Lord Williams of Mostyn: I believe that part of the difference between the respective views that have been expressed and those that I shall mention arises out of a difference in view about what the commissioner is there to achieve. Fundamentally, Sir Ronald Waterhouse's recommendation was not that the commissioner should be engaged in law enforcement or inspection. One understands the reason for that because the care standards inspectorate will soon be about its work. I shall come to that in a little more detail in a moment. Sir Ronald's view was that essentially the commissioner's role should be one of strategic overview and monitoring. That is what the Bill is concerned with; namely, the,
"Review of exercise of functions of Assembly and other persons",
and with the,
"Review and monitoring of arrangements".
There is a serious danger in this context of confusing the roles that were identified by Sir Ronald—namely, strategic overview and monitoring—with those of law enforcement or inspection. Many agencies are engaged in law enforcement and some agencies are engaged in inspection.
Apart from Sir Ronald's view, which I believe I have represented fairly, it is worth examining the Assembly's consultation paper on this matter, which followed the committee's report. Paragraph 27 on page 9 states the relevant aim:
"To reflect the recommendation in the Committee's report in respect of the Commissioner's examination function, we propose that the Commissioner should examine the cases of particular children only where he considers they raise matters of principle which have a more general application or relevance to the rights and welfare of children than those in the particular case at issue".

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The noble Lords, Lord Thomas of Gresford and Lord Roberts, rightly took us back to Section 74 of the Care Standards Act. There is no lacuna in this context if one understands the commissioner's work because, as the noble Lord, Lord Thomas, rightly said, the regulations will include provisions about the types of cases that may be examined, the circumstances in which an examination may be made and the procedure for conducting an examination and the publication of reports. Provisions requiring persons to provide the commissioner with information—they might well apply to those working for social services or a local authority—could impose an obligation on care standards inspectors to provide information. Also relevant in that context is the production of information for the purposes of an examination or for the purposes of determining whether a recommendation in a report has been complied with.
The noble Lord, Lord Thomas, rightly said that witnesses can be obliged to attend—the same mechanism operates in relation to the High Court—and to give evidence. There are rules and regulations about the protection of those who may have to attend.
Those considerations do not point to a gap or a lacuna; they point to a consistent approach in relation to what the commissioner's job really is. I sympathise with the comments of Members of the Committee—I agree that it is attractive to say, "Ah, but the commissioner should be able to go and investigate an individual child from a particular home by calling in unannounced". However, that is not envisaged in the Bill and it was not envisaged by the Assembly. I repeat that paragraph 27 of the Assembly's report stated that only when a matter of principle was raised of a more general application or relevance should the commissioner,
"examine the cases of particular children".
That is what the Assembly wished and it is what Sir Ronald recommended.
The noble Lord, Lord Roberts, asked me to give an update on where we were with regard to the care standards inspectorate. Planning is well under way and the information that I have is that the care standards inspectorate will be fully operative in a year's time. That inspectorate has various obligations and statutory duties but so do the 19 area child protection committees, most of which cover the same areas as unitary authorities; the police; the NSPCC; and the National Assembly's committee that is responsible for child protection and which has representatives from various divisions. It is unduly simplistic to say that the commissioner cannot do his job without a right of access. That begs the question about the true description of the commissioner's role.
With great respect, I repeat that that role involves strategic overview and monitoring; it does not involve the job that Sir David Ramsbotham carried out. He is a prisons inspector and he has to go and inspect in order to carry out his duties and to meet his remit. However, the duties and remit of the Children's Commissioner are not analogous to those of a prison
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inspector or those of an inspector involved with care standards or with the inspection of schools. I sympathise with the good motive that lies behind the proposal but I respectfully suggest that it is not properly conceived.
6.45 p.m.
Lord Thomas of Gresford: I have to take issue with the noble and learned Lord the Attorney-General. Section 73 of the Care Standards Act is entitled:
"Review and monitoring of arrangements".
That deals with the review and monitoring function of the commissioner. Section 74 is entitled, "Examination of cases". It does not refer to the principle that lies behind the cases. It states:
"Regulations may make provision for the examination by the Commissioner of the cases of particular children".
It refers not to a class of children but to "particular children". Section 76, which is entitled, "Further functions", makes it even more apparent that the commissioner deals with individual children. It states:
"Regulations may confer power on the Commissioner to assist a child to whom this Part applies"—
I stress that it refers not to a class of children but to "a child"—
"in making a complaint or representation to or in respect of a provider of regulated children's services… or… in any prescribed proceedings".
Subsection (3) states:
"The Commissioner may … give advice and information to any person".
He may even give financial assistance to an individual child.
It is not right to say that the Children's Commissioner is concerned only with the broad picture and with broad functions. A number of functions are outlined in the principal Act; they range from general review and monitoring, through the more specific section that deals with children and extend to the giving of advice and assistance, including financial assistance, to a single child. Let us not crimp the style of the Children's Commissioner and say, "You are going to swan around Wales looking at institutions or councils in a broad manner". His job includes looking at the individual child. I know that the noble and learned Lord the Attorney-General will take that point on board and consider it carefully before the Bill's next stage.
Lord Williams of Mostyn: I shall certainly do that; we have genuinely tried to pay attention and to be helpful. I take the citations that were given by the noble Lord, Lord Thomas. However, his point does not deal with my citation from the Assembly report, which stated,
"we propose that the Commissioner should examine the cases of particular children only where he considers they raise matters of principle which have a more general application or relevance to the rights and welfare of children than those in the particular case at issue".

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That is what the Assembly is asking for and what we are currently providing. Members of the Committee may be of the view that the Assembly should have asked for something different: my point is that it is being given what it asked for.
The Earl of Listowel: Before the noble and learned Lord the Attorney-General concludes, I ask him for elucidation on a point that is slightly distinct from those made so far. If the commissioner has no experience of institutions in which children receive residential care—he may come from an entirely different background—how will he be able to make informed judgments on the performance of institutions that provide residential care unless he frequently visits such institutions and speaks with the children and the staff who work there? My support for the amendment stems from the sense that having a right to enter will make it clear to the commissioner that he is expected to familiarise himself deeply with the situation, even if his main job is to comment on the strategy for monitoring children in such circumstances.
Lord Williams of Mostyn: The noble Earl is not describing what the commissioner is supposed to be doing. That is what the care standards inspectorate, which, as I said, will be set up and operating fully by this time next year, will do. I understand the noble Earl's concern but the inspectorate will carry out regular checks of, for example, children's homes. It can react quickly to allegations of wrongdoing and make urgent, unannounced visits. The commissioner will liaise with the inspectorate. I stress that the commissioner exists to carry out strategic overview and monitoring.
The Assembly did not ask for these powers. It does not want the commissioner to be second-guessing the care standards inspectorate, which is what would happen. The care standards inspectorate was not present, even as a concept, when Sir Ronald was reporting. Time has moved on. I agree with the noble Lords, Lord Thomas and Lord Roberts, that no one who knows anything about the North Wales and the South Wales child care scandals wants to be complacent. And not wanting to be complacent or to drive us to duplication of effort, to give the commissioner work which neither the Assembly nor Sir Ronald Waterhouse recommended and which is not really the job description at hand is not inappropriate.
Lord Roberts of Conwy: I thank, in particular, the noble Lord, Lord Thomas of Gresford, for his support and Members of the Committee who have participated in this debate. I find it very difficult to see the Minister's point of view entirely. He told us that it is not part of the commissioner's job description—that it is not the work envisaged—for him to seek access to children's homes. On the other hand, we know that he has a plethora of duties and protection bodies with which to deal, including the inspectorate.
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How can the commissioner take a strategic overview when he cannot go into a children's home or visit a child in hospital? How can he take a strategic overview if he cannot secure experience of what is happening on the ground? I find it a very difficult question to answer. It may not be the work envisaged for him, but it can be part of it as he examines a particular case involving a matter of principle. It may be that the principle involved makes him inquire as to whether there are other cases apart from that particular one which gave rise to this particular principle. He will need to secure such information. Of course, there are other bodies from which he can secure such information.
At the end of the day, surely we are not going to deny him, either in the contents of the strategic overview or the examination of particular cases involving a matter or principle, the right of access to a child in specific circumstances.allowed to play on the course. What sort of membership is that? I do not want to carry that parallel too far.
Lord Williams of Mostyn: What springs to my mind is that one can go to the golf club but not to play rugby.
Lord Roberts of Conwy: I shall not quibble with the noble and learned Lord. There is something here which gives us considerable concern. We are glad to hear that the care inspectorate is on its way but it is still in the planning stages. It is quite some time since Sir Ronald Waterhouse reported and forced its set-up under the Care Standards Act 2000. Certainly things have changed. There is an area of concern here. I should like to consider the matter again and possibly return to it on Report. In the current circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 agreed to.
Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment. No. 19:
After Clause 5, insert the following new clause—
"RESTRICTIONS

(1) Section 77 of the Care Standards Act 2000 (restrictions) is amended as follows.

(2) In subsection (I) the words ", or has been determined by." are omitted."

The noble Lord said: Section 77 of the Care Standards Act 2000 reads:
"This Part does not authorise the Commissioner to enquire into or report on any matter so far as it is the subject of legal proceedings before, or has been determined by, a court or tribunal".
The new clause—which is Amendment No. 19—proposes to leave out
"or has been determined by".
I can well understand that the commissioner should not be involved in any way with matters that are sub judice and he should not seek to re-open matters that have been dealt with by a court or tribunal. He is a statutory body with some of the powers of the High Court. However, bearing in mind his broader

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responsibilities for children's rights and welfare, is that not a sweeping prohibition? That is what I am seeking to probe.
The matter was dealt with by Mr Jack Beatson QC in his opinion for the campaign group. He argued, with reference to the Thompson and Venables case, that had the case been heard in Wales the commissioner should have been able to comment and make representations in relation to the conditions under which the trial was conducted in so far as he perceived them to be in breach of the rights of the children in question.
The European Court of Human Rights found that there had been a breach of Article 6 on that occasion. Mr Beatson refers to recent cases concerning conviction for membership of an Internet child pornography ring. It may be thought inappropriate to comment on sentences imposed upon specific individuals. However, the commissioner's concerns with the rights of the child victims in those cases would make it appropriate for him to monitor the sentencing policy of the courts in such cases and to comment upon the effect that sentences passed may have on the underlying problem of child abuse and pornography. I am not sure that I agree entirely with those views, but I should be interested to hear the comments of the noble and learned Lord upon them.
The noble Baroness, Lady Farrington, dealt with this issue in her letter of 8th March. The thrust of the letter is that the Government must protect the integrity of court decisions in individual cases, and I wholly agree with that. The noble Baroness made reference to the Anna Climbie case; what might have happened had that case been dealt with in Wales and how the health and social services aspect could have been dealt with or looked at by the commissioner. I am mindful of the final paragraph of the letter where the noble Baroness said:
"The Commissioner may also receive representations about the effect on children in Wales of the outcome of court and tribunal decisions, which he may wish to bring to the attention of the Assembly and relevant UK Government Departments".
Does the commissioner have to wait for representations to be made to him? It sounds like taking the option of "calling a friend"—"send me a representation so I can tell the Assembly or some other department of State about it".
I know that there is a lot to be said on this issue. All I have sought to do with this amendment is to probe because many people feel that the commissioner is unduly constrained in his ability to comment on legal and tribunal cases and that the limitations on him should be curtailed. I beg to move.
7 p.m.
Lord Thomas of Gresford: I too support this amendment and attached my name to it. The Attorney-General's previous intervention reminds me of the last occasion I put a ball down on the first tee at Braemar Golf Club and took a swipe at it. My companion said, "I can see you have played rugby before"!
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In a more serious vein, this morning I saw a news report concerning the aunt of Damilola Taylor in which she was complaining about the amount of compensation awarded—shades of last week's debate—under the Criminal Injuries Compensation Scheme. Under this clause the commissioner could not comment at all on such a matter, whether in principle or otherwise, because it had been determined by a tribunal. I do not see why there should be such a limitation.
I entirely agree with the noble Lord, Lord Roberts of Conwy, that if we are dealing with matters that are sub judice, obviously no comment, review or separate report from the commissioner is called for. However, once the court has determined a matter, whether it is the Bulger case or any another, the commissioner must at least have the potential to make his views known if he considers matters require commenting on or bringing to the attention of the Assembly; for example, the conditions in which an abused child has been brought up. If the parents of such a child are taken to court and are convicted, is the commissioner unable to comment on the conditions surrounding that child or the education the child received? That cannot be right.
This is perhaps an unnecessary restriction and in the light of the amendment that we are promised by the Government, and which seems to grow the more we talk about this Bill, perhaps further consideration can be given to this point.
Baroness Farrington of Ribbleton: I start at a disadvantage, playing neither golf nor rugby.
As the noble Lord, Lord Roberts of Conwy, said, I commented on this issue in a letter. It is important for me to make absolutely clear for the record that the statement that the commissioner is not authorised to inquire into or report on the outcome of court or tribunal proceedings is already enshrined in Section 77(1) of Part V of the Care Standards Act. This Bill does not introduce any new provision in that respect.
The principle underpinning the existing provision is that courts and tribunals determine specific issues before them and it would not be appropriate for the commissioner to try and re-open their determinations. The proper mechanism for that is judicial appeal. We all agree that that is the due process of law.
However, as I explained in my letter, matters determined by a court or tribunal may be narrow in a specific case and issues that may be discussed or featured in court and tribunal proceedings do not necessarily form part of the matter that is determined. The experience of Members of the Committee will enable them to recognise that. But the commissioner would be perfectly justified to look into issues related to a specific case, such as the actions of an education authority or the functions and actions of a social services department.
The commissioner will be able to make representations, with the benefit of the eagerly awaited amendment, on the basis of his observations, his knowledge, his experience and his information; or he may make such representations following

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representations made to him, or a combination of both. However, that would not be a re-opening of the justification of either the process of law or the result that was determined by that process; nor could it at any stage intervene, say, between the result of a specific court decision and a process of appeal.
I hope that makes the position clear. We do not want to see the role of the commissioner inhibited in any way. Nor do we want the role of the commissioner to allow, however inadvertently, delay or damage to the due legal process.
Lord Roberts of Conwy: I am grateful to the noble Baroness for her clear explanation of the situation. We have heard a great deal about what the commissioner cannot do. Now we are beginning to hear a little more about what he can do, certainly on this aspect. I for one am clearer in my mind as to the extent of his freedom to comment, receive and present representations in respect of his or someone else's experience of what has happened to them in courts or tribunals in so far as a general problem—perhaps relating to health or social services—arises from such cases. I am somewhat reassured by the words of the noble Baroness and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 20:
After Clause 5. insert the following new clause—
"POWER TO MAKE ORDERS OR REGULATIONS
After section 77 of the Care Standards Act 2000 (c. 14) (restrictions) insert—
"77A General power to make regulations
The Assembly shall, subject to the consent of the Secretary of State. have power to make such orders or regulations as the Assembly thinks fit to make for the purpose of carrying into effect the purposes of Part V of this Act.""
The noble Lord said: Amendment No. 20 arose in this way. I wrote to the noble Baroness, Lady Farrington, on 21st February and said that I had hoped that a convention would grow that where the will of the National Assembly for Wales had been expressed, then the Westminster Parliament would put the primary legislation into effect unless there was a good and stated reason to the contrary. In the absence of such a convention I could see the possibility in the future that if there were different colours of government in Cardiff and in Westminster, considerable conflict could arise. Normally the will of the National Assembly should be conveyed into primary legislation.
That was one of the matters about which I was concerned. The noble Baroness, Lady Farrington, was good enough to reply to me on a number of matters, but in particular she said,
"The Government is committed to giving full and fair consideration to all Assembly bids for primary legislation. The Assembly's bids are considered alongside those of UK Government departments, all of which compete for Parliamentary time".
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We all know that there is a competition for parliamentary time. But when are the wishes of the National Assembly for Wales going to be considered?
The third strand which led to this amendment was the fact that, as I pointed out earlier today, within this Bill there are already two limited Henry VIII clauses which empower the National Assembly to alter primary legislation by adding other people to Schedule 2A or Schedule 2B.
It seems to me, putting all these matters together and bearing in mind that responsibility for primary legislation is firmly at Westminster, that it would nevertheless be a matter of great utility if Bills which concern Wales contained a power enabling the National Assembly to make minor alterations without having to queue up for primary legislative time at Westminster.
If one looks at the general power to make regulations, which is the purpose of this amendment, the Bill would provide that,
"The Assembly shall, subject to the consent of the Secretary of State"—
I shall return to that point—
"have power to make such orders or regulations as the Assembly thinks fit to make for the purpose of carrying into effect the purposes of Part V of this Act".
That is not a general power for the National Assembly to alter primary legislation. It is limited in two ways: first, the Assembly can act only intra vires if it passes secondary legislation to alter the primary legislation for the purpose of carrying into effect the purposes of Part V of the Act; and, secondly, it has to be subject to the consent of the Secretary of State; that is to say, it has to negotiate with the government of the day, of whatever colour they may be, and that government will have to agree before the kind of minor amendments that I have in mind can be brought about.
It may be that after a number of years of activity the Children's Commissioner could find that he lacks a particular power; that his remit does not run as wide as he wished that it did or as everybody thought that it did when this legislation was first enacted. Therefore, without having to come to Westminster to bid for the parliamentary time, the National Assembly could make the minor alterations with the consent of the government of the day. Westminster time would not be used up and there would be power in the National Assembly—the democratically elected body— to pass such legislation. In my respectful submission—if I may use those words—to have within each Bill or part of each Bill that is devoted to Wales such a power for the Assembly to tweak the legislation would be to the utility of the devolution settlement. I beg to move.
Lord Elis-Thomas: I couple with my warm support for this amendment an apology for not being present to hear the trailing of the amendment for the Report stage. I was taking part in the first part of the sitting in Cardiff this afternoon. I welcome what I believe has been trailed as an indication that the Government are moving towards the view expressed by a committee of the Assembly.

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The principle that the noble Lord, Lord Thomas of Gresford, has ably put forward is one that the overwhelming majority, if not all, in the National Assembly would endorse; namely, that in an area where the Assembly discovers that it may require to strengthen its powers of subordinate legislation, and where that may require changes to primary legislation, it should be able to do so without becoming part of a parliamentary log-jam.
I strongly support the need to establish a convention in the new context of devolution, as mentioned by the noble Lord, Lord Thomas. I do not believe that the National Assembly is in an analogous position to that of a Minister of the UK Government in looking for slots in the parliamentary timetable. The relationship between the UK Government, who are the body that make primary legislation for devolved matters in Wales, and the National Assembly, which is a democratic body, is slightly different. Therefore, it is important that the Government recognise that and when the constitutional committee of this House deliberates on this and other issues, particularly the relationship between devolved bodies and the UK Parliament, that issue may be considered. In the meantime, there is much merit in the amendment.
Baroness Walmsley: I support the amendment to which I have put my name. It is an eminently sensible measure that will oil the wheels of the relationship between this Parliament and the Welsh Assembly. The Welsh Assembly is, as yet, a young body and as it matures it may find that it requires additional measures for which parliamentary time cannot easily be found. This sensible amendment would oil the wheels and would allow the Assembly to have such powers.
7.15 p.m.
Lord Williams of Mostyn: I am grateful for the way in which the noble Lord, Lord Thomas of Gresford, has set out these matters and for the generous remarks of the noble Lord, Lord Elis-Thomas. The amendment to which he referred has been welcomed generally. As we discussed earlier in the absence of the noble Lord, Lord Elis-Thomas, plainly the constitutional committee will have to focus on these matters because this is an evolving situation, as my noble friend Lord Prys-Davies said. The increasing authority—I almost said "dominance"—of the committee chaired by the noble Lord, Lord Alexander of Weedon, is an example of how things change even in an apparently changeless institution such as we all inhabit.
The consequence of the amendment would be unintended. At the moment, under Part V as it exists and under the present drafting of the Bill, the Assembly will be given specific powers to make subordinate legislation where it is required to flesh out the framework provided in the primary legislation, so there is no difficulty there. However, each power to make regulations or orders has been designed
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separately to link with the respective provision in the Act or in the Bill. That means unpicking the provisions as they stand.
If it were prudent to do that at this time that would not be an argument against it; at least it would not be a "knock-out" argument. However, it would mean giving the Secretary of State power of approval of Assembly secondary legislation. Of course, power of approval means power of veto. The Bill contains such a provision in relation to bodies that are not wholly devolved, which one can understand, but the amendment, as drafted, would give the Secretary of State the override in matters that are wholly devolved, so it would not be consistent with the constitutional settlement. I understand what is wanted but I do not believe that this is the way to achieve it.
Lord Thomas of Gresford: I am afraid that I disagree with what the noble and learned Lord says. I believe that the Secretary of State should have a power to override only where such secondary legislation, whether by order or by regulation, amends primary legislation that has been passed at Westminster. I cannot see that any government would countenance giving the National Assembly a free hand through secondary legislation—by order or by regulation—to amend that which Westminster has passed. It is only in those specific, unusual circumstances that the Secretary of State would have that power.
If the noble and learned Lord looks at Clauses 3 and 4, he will see that, where there is a proposal to amend primary legislation—for example, to make insertions into Schedules 2A and 2B— the consent of the Secretary of State is required. I am not adding anything new. That is already there. I do not believe that there is anything wrong in principle with that, but I believe that that useful mechanism could be inserted into every Bill that affects Wales, that relates to the National Assembly and gives it that power. It is not a power to make major alterations or to make whatever alterations they want; it is simply a power to make such alterations as the Government at Westminster agree are necessary and to put them into effect without joining the queue of parliamentary time.
Lord Williams of Mostyn: I understand that. That is a perfectly understandable objective. I simply indicate that the mechanism produced at the moment will put more shackles on Cardiff because in relation to wholly devolved matters Cardiff will still have to come to the Secretary of State cap in hand. I believe that that is the law of unintended consequences.
Lord Thomas of Gresford: I disagree. This is not the first time that I have disagreed with the noble and learned Lord. We have had many a battle. In that spirit, for the moment, and only for the moment, I seek leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 6 and 7 agreed to.
Clause 8 [Commencement, short title and extent]:
[Amendment No. 21 not moved.]
Clause 8 agreed to.
Schedule—[Persons and arrangements subject to review]:
Lord Roberts of Conwy Lord Roberts of Conwy moved Amendment No. 22:
Page 8, line 8, at end insert—
"Any police authority in Wales."."
The noble Lord said: I beg to move this amendment and with it speak to Amendments Nos. 23 to 26. These are indicative in the sense that they concern various bodies who have responsibilities for children and young people and those listed in Schedule 2B. I shall not go through each and every amendment, but their arrangements for dealing with complaints, disclosure and advocacy should surely be subject to review. I beg to move.
Baroness Farrington of Ribbleton: The amendment to be brought forward by the Government at Report will empower the commissioner to consider and make representations to the Assembly about any matter affecting the rights and welfare of children in Wales, and will allow him a locus in respect of those which have no functions within the Assembly's devolved fields of responsibility. This will of course include all those covered in this group of amendments. I hope that, in the light of this assurance, the noble Lord, Lord Roberts, will feel able to withdraw his amendment.
Lord Roberts of Convey: I am delighted to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 23 to 26 not moved.]
Schedule agreed to.
In the Title:
[Amendment No. 27 not moved.]
House resumed: Bill reported without amendment.

National Institute for Clinical Excellence
7.23 p.m.
Baroness Cumberlegerose to ask Her Majesty's Government whether the progress being made by the National Institute for Clinical Excellence in their appraisal of Beta interferons and glatiramer acetates is satisfactory.
The noble Baroness said: My Lords, I am very grateful to the noble Lords and the noble Minister who have agreed to take part in this debate. As your Lordships will recognise, there has been a degree of uncertainty concerning the business of the House because of concerns over the general election, and I have received a number of letters from noble Lords who are very interested in this subject but who expected the debate to be held later in the spring. I want to mention that because, although we are a select band here tonight, it is a small band and I would not like your Lordships to think that this is an issue which does not interest many people.
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The subject of glatiramer acetates and Beta interferons, which are licensed drugs and available to very few on the NHS, has been a very long-running sore. There are 85,000 people in the United Kingdom—that is a large number—who suffer from multiple sclerosis. This is a condition which I know is well known to noble Lords, but I should like to remind the House that multiple sclerosis is a most terrible condition.
First, it is unpredictable, and unpredictable in two ways. The relapses are unpredictable. Sufferers may undergo relapses of one month's duration, or six months or two years: they never know when one is coming. The second unpredictability is the severity of the attack. It can be mild; it can be very severe, and leave lasting damage. It causes chronic pain and physical disability of frightening proportions, and not just physical disability, but memory, mood, understanding and perceptions can be affected.
The average age of diagnosis is between the late twenties to the mid-forties, and that means people of working age and young parents endeavouring to bring up a family. As a consequence of the disease, they can lose their jobs, their livelihoods, and their families are affected. The physical and, in particular, the mental effects can cause break-ups in marriages and wreck relationships. It is a disease that destroys lives and life.
The one hope that sufferers have is through the new range of therapies—Beta interferons and glatiramer acetates—which reduce the number of relapses and the severity of the disease. They delay the progression and leave people less disabled and more able to cope with life and face the future. These drugs are licensed, but only a very few people can get them on the NHS. As a consequence, some sufferers have been known to sell their houses to buy the drugs privately.
I think this is a nonsense. It is unfair, it is unethical and it is unnecessary. On 6th August 1999 the department referred glatiramer acetates and Beta interferons to NICE for appraisal. Both therapies were to be assessed separately. On 6th December last year NICE confirmed its intention to issue separate determinations early this year. Suddenly, just before Christmas, on 22nd December, NICE announced that it would couple the medicines together again and undertake further economic modelling, thereby delaying the issue of guidance for many more months.
This caused utter misery and anger among MS sufferers. They feel they are being toyed with and not taken seriously. Some of them fear that the delay will mean that their condition will have deteriorated so far as to prevent them benefiting from the drugs.
The cost-effectiveness and clinical benefits of glatiramer acetates are clear. Coupling them with Beta interferons means that some MS patients who would have benefited from this drug are being denied it. The Health Minister in another place, John Denham, was asked on 6th February why glatiramer acetate was being treated as a Beta interferon when chemically and pharmacologically it is different. It has been tested for eight years and has been shown to reduce relapses by 70 per cent. The Minister made no reply, but I hope

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tonight that the Minister, who has had notice of this question and indeed of all the questions I am going to ask tonight, will be better briefed and give us a straight and unequivocal answer.
On 22nd December—that was the date of the bombshell announcement of further delay—the reason given for the delay was that it would allow NICE to commission, construct and evaluate new economic modelling. The results are to be considered by the appraisal committee in July. This will mean that the whole guidance process will have taken well over two years—27 months, to be exact. That is 27 months of further misery, fear and despair for MS sufferers, and for products which have been shown to be safe and clinically effective through the licensing system.
There is anger, and there is no confidence, first, that this process is at all necessary, and, secondly, that it will bring results. In fact there is a body of opinion which now labels NICE simply as a rationing body and a front for Ministers, who do not want to be seen taking responsibility for denying people their vital medication. To quote a spokesman for the Health Economics Consortium, which has been commissioned by NICE to undertake this work, the new model will still leave a "massive amount of uncertainty".
So it is not clear that NICE's appraisal committee will be better informed or more able to reach a judgment based on cost-effectiveness, since no threshold for cost-effectiveness has been discussed. Therefore I should like to ask the Minister: what is the threshold for cost-effectiveness? Is this an arbitrary measure, and who decides what it should be?
Glatiramer acetate has a known annual cost of £6,650 per patient per year. That is two-thirds of the cost of Beta interferon. Does the Minister believe that it would be reasonable for NICE to give positive guidance that at least this therapy is affordable at an additional cost to the NHS of £14 million over two years, benefiting more than 4,000 MS patients? Does he not agree that it is a drop in the ocean compared with the annual drugs budget of £5 billion to £6 billion a year and that the cost far outweighs the benefits?
The cost of treating MS patients with either drug must be offset against the cost of not treating patients with these drugs. Does NICE take into account the cost to the country of relapses and increasing disability; costs in terms of people unable to work; costs of social security, housing and unemployment benefits; and the costs of hospitalisation and so on?
The clinical efficacy of the Beta interferons and the glatiramer acetates is not in dispute, yet the new NICE process is seeking to elucidate the size of the clinical benefit. On 30th March, NICE requested the sponsors to provide raw patient data within four or five working days' notice and understandably it is concerned that this information should be used accurately and fairly in the new model. Yet no reassurance has been given to it on those counts. The request from NICE is surprising, as robust clinical data over eight years for
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glatiramer acetate has already been submitted to NICE. This clinical experience is surely a better source than some theoretical academic model.
In 1997, the department issued an executive letter, EL(95)97, instructing health authorities to fund Beta interferon for MS pending the NICE appraisal. Glatiramer acetate was not included and repeatedly the department has been asked to re-issue an update of this executive letter. My noble friend Lord Howe pursued the matter vigorously on 6th March and tonight he may well want to revisit the subject. Why is the department not updating and re-issuing the executive letter to include glatiramer acetate? Is this an attempt to deny patients their treatment?
I am sure that that is not the case, so can the Minister give us an undertaking tonight that that will be done and the blight which now exists will be lifted—lifted for those who benefit from both Beta interferons and glatiramer acetates?
Finally, why, when the Minister stated in this House that the whole purpose of NICE is to conduct a rigorous process, is the Health Economics Consortium asking for patient data at such short notice, without being clear what it will do with it? NICE has appraised drugs for Alzheimer's disease, motor neurone disease and obesity where there is similar uncertainty about costs and they are now available to the NHS. Why has it taken such a uniquely rigid view in relation to MS drugs? Is it acting under instruction? Eighty-five thousand people and their families await the answer.
7.33 p.m.
Lord Addington: My Lords, I was attracted by the subject when the MS Society pointed out to me that, although many people suffer from the disabling disease, which over time reduced their capacity to live full lives, a drug was available which will stop that. Such information leads one automatically to ask questions. We must carefully examine the situation in which people are suffering from a condition because the intervention which could prevent the suffering is being denied to them. Even though that delay may be for only a short time, we must examine the matter carefully. The idea that we can act now to stop such suffering brings me to this debate.
The first absurdity is that, although MS can be prevented by the intervention of these two drugs—and I take the noble Baroness's point that they work for different sections within the group—they are not being prescribed. The second is that if prescriptions are being withheld on grounds of cost, why are not other costs such as social security and outside support services taken into account?
NICE's memorandum of understanding states that certain concepts should be borne in mind. Paragraph 11 of that document, under the heading "Appraisal methodology and criteria", states that NICE should take into account,
"the broad balance of benefits and costs",
and,
"the effective use of available resources".

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However, that suggestion is not explained; it is very broad. Paragraph 10.i of that document brings the matter into stark relief. I obtained a copy of the document from the Internet and was interested to read the footnote to that paragraph. It states:
"The wider benefits of treatment (such as a reduction in disability which allows continuation of employment) can be taken into account an the benefit side of the equation but should not simply be treated as an offset on the cost side".
That statement is most worrying. First, it appears to express the view, "This is our budget. We are dealing with our budget and, although we will pay attention to the budget of another part of Whitehall, we will not pay close attention to it. We will merely make sure that our column of figures adds up correctly". If that is the case, any attempt at joined-up government has crashed into a heavy obstacle because the whole picture is not being taken into account.
We are saying that someone can be allowed to deteriorate both physically and mentally—and we probably knew that that was happening—and that great damage can be done to their personal life although we can do something about it. We are also saying that the cost will not be shared between departments. Some people in full employment may be able to pay for their treatment but others will not.
There is a problem and I believe that we deserve a full answer tonight. I apologise for not having given advance notice of the quotation but, as the noble Baroness said, words of wisdom previously indicated that this debate would not take place. Furthermore, I admit that when I first read the document I had not noticed the small " 1 " indicating a footnote.
The fact has been exposed that an odd series of calculations is going on, and the process is not the clearest I have come across. Other drugs are involved, one dealing with obesity. I was attracted to that because the definition of obesity is height over weight and I am sure that I and everyone with whom I played rugby last Saturday would be entitled to its benefits. But clearly the drug can help prevent a condition becoming worse. It will help people to lose weight, which is important, because obesity is damaging.
The principle of prevention is accepted. If we cannot obtain a clear picture of what is happening in this case, we have real problems. Can the Minister give us an insight into the thinking behind the procedure, because the principle described is worrying? It seems strongly to suggest that what is associated with the cost is more important that the amount spent. I accept that there must be a degree of rationing, in that in saving one person we cannot allow thousands of others to suffer. That has always been a reality. However, if with the technology that is available we cannot easily make calculations, manoeuvre funds and take a broad view, we have a major problem.
7.40 p.m.
Lord Clement-Jones: My Lords, I thank the noble Baroness, Lady Cumberlege, for raising this very important issue in a short but significant debate tonight. I shall not repeat the history of the NICE
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appraisal of either Beta interferons or glatiramer acetates which was very ably set out by the noble Baroness and amplified by my noble friend, and both put some extremely pertinent questions. We heard that the original circular is not being observed and we must wait until later this year for the NICE determination. We have also heard about how those two determinations have been put together. It is deeply depressing that here such a small proportion of MS sufferers compared with those in other western countries receive both drugs despite clear evidence of their clinical effectiveness.
Since NICE started work in 1999 some of the defects in its appraisal process, such as lack of openness on appeal, have been cured, but other core problems have not been. The key is the scientific basis of the appraisals. Nothing has fed the public's distrust of NICE more than the Beta interferon and (if I could pronounce it as easily) the glatiramer acetate affair. It feeds the belief that essentially NICE is engaged in a rationing exercise and that that approach underlies all its appraisals.
In the case of NICE, the process was acknowledged to be flawed by the appeals body. Certainly, the catalogue of the different ways in which the appeal was flawed was quite extraordinary: the ignoring of disability data; real doubts that the long-term benefits were fully considered; what was called the perverse enshrinement of inequality—the decision that it was right to allow only those who already were in receipt of the drugs to have them—and failure to give due weight to clinical need and to make a transparent comparison with alternative uses of NHS resources. The catalogue was considerable and culminated in breach of an EU transparency directive, which was no mean feat for a determination by an official body.
Quite apart from that, the Beta interferon appraisal raises fundamental questions about how NICE will accommodate access to drugs for rare diseases. In particular, concerns have been expressed to me about the appropriateness of cost economic evaluation in the treatment of low prevalence diseases. NICE appears to be in direct conflict with the so-called orphan status of the drugs involved in this case. Just as in the United States, the EU recognises the problems of patients who suffer from rare diseases.
The issue of so-called orphan products is dealt with by the Regulation on Medicinal Orphan Products which was agreed last year and the Programme for Rare Diseases agreed by the EU in 1999. The regulation underlines the need to support research into, and the development and availability of, orphan medicinal products. The criterion adopted by the EU is to accord orphan status to products which are of benefit to those who suffer from conditions which affect no more than five in 10,000 people. The noble Lord, Lord Hunt, recognised the value of that approach only in September last year in his announcement of new partnerships to further the development of drugs for rare diseases. He said:
"We must get the right medicines to the right people at the right time. The regulation on orphan medicinal products is based on the principle that those suffering from rare diseases have as much

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right to proper care as anyone else. I want to see more research and development so that rare diseases can be diagnosed, prevented and treated".
Those are excellent sentiments but the development and production of such drugs are not sufficient to ensure that people who suffer from rare diseases receive treatment. Such drugs must also be made available within the National Health Service. The problem is that the superimposition of standard cost-effectiveness criteria onto the assessment of a drug for a rare disease is not always appropriate. Are the traditional quality of life, cost-effectiveness or clinical effectiveness analyses applicable to an orphan drug? How can existing treatments be compared when the orphan designation implies that there are no satisfactory methods of prevention or treatment of the condition?
Conventional health economics techniques are based on the availability of a wide range of comprehensive data needed for the appraisal. In the case of rare disorders, often for practical, ethical and scientific reasons it is impossible to provide equivalent comprehensive data. Innovative products which treat rare diseases are often by their nature unique and cannot, therefore, be assessed by the use of traditional cost-effective assessment methods.
Is multiple sclerosis a rare disease? Are Beta interferons and glatiramer acetates orphan drugs? The total population of those who suffer from relapsing remitting MS (RRMS) is 3.8 per cent per 10,000, so clearly it falls within the EU category. In the US, MS is classified as a rare disease and Beta interferon is categorised as an orphan drug. The fact is that Beta interferon is the first orphan drug to have undergone a cost and clinical effectiveness appraisal by NICE, which has considerable implications.
Despite the EU regulation, the conclusions drawn by NICE in its appraisal contrast sharply with the conclusions reached by the European Medicines Evaluation Agency (EMEA) in its marketing authorisations for the same products. This raises the question whether NICE is dealing with orphan drugs in the appropriate fashion. EMEA is responsible for assessing the quality, safety and efficacy of drugs before authorising them to be marketed in the EU. It has established compliance with these standards 13 times in its authorisations for the marketing of Beta interferon in particular—I do not have the background information for glatiramer acetate—saying that these drugs have,
"proven useful in the treatment of multiple sclerosis, for which there is no specific treatment available so far".
In contrast to EMEA, NICE finds it virtually impossible to balance its remit to ensure the availability and effectiveness of pharmaceutical products with its requirement to have regard to affordability and cost-effectiveness by the NHS. That is particularly acute when one looks at rare diseases and effective but expensive treatments such as Beta interferon and glatiramer acetate. Clearly, we need changes to the system so there is proper recognition of the issues which surround rare diseases and orphan
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drugs. Like the EU, we need recognition of the specific nature of rare diseases and a different appraisal system for orphan drugs such as Beta interferon and glatiramer acetate. The cost of the illness and the burden of the disease must be properly taken into account in relation to these orphan drugs.
Currently, however, precisely the contrary seems to be happening in NICE with its commissioning of additional economic modelling of the costs and benefits and, as the noble Baroness, Lady Cumberlege, pointed out, its call for the drug companies to release patient-specific data. In the meantime, those who want Beta interferon must come up with £11,000 to £13,000 a year, and those who want glatiramer acetate must find upwards of £6,650. They should not have to bear that cost much longer, and I look forward to hearing what the Minister has to say.
7.49 p.m.
Earl Howe: My Lords, among the many benefits to spring from a postponed general election is the survival on the Order Paper of this evening's Question, tabled by my noble friend Lady Cumberlege. She has not only raised an extremely important set of issues; she has also done so in a masterly way. There is little that needs to be added by me to the powerful case that she has made.
If there is one conclusion to be drawn from what my noble friend has said, it is surely that this is a matter of shame for the Government. If it is not a matter of shame, then it certainly should be. We are in a situation that I am quite sure Ministers did not ever wish to see but which is nevertheless entirely of their own making, a situation in which, as a direct result of structures and processes that the Government have put in place, many hundreds of individuals with MS are not receiving the drugs that they need to keep their condition under control. I do not believe that that is a comfortable position ethically for Ministers to find themselves in, whatever the case may have been for establishing the National Institute for Clinical Excellence and its current remit. To me, it is a worse situation, from a moral perspective, than the postcode lottery. However much the Minister and I may deplore the postcode lottery, as we both do, no one believes that Ministers of either party ever sought to engineer it.
Indeed, it was with the worthy aim of tackling the postcode lottery and speeding up access to new drugs that NICE was originally established. What could be better, the argument ran, than to have definitive and independent assessments of drugs and treatments whose clinical and cost-effectiveness were in doubt or dispute? What could be better than to set up an expert body to cut through sometimes conflicting evidence and to furnish doctors with impartial and up-to-date advice? I do not believe that anyone could argue with those aims because they are self-evidently in the interests of both patients and the NHS. It is the way that those aims have been pursued in practice that has led to all manner of difficulties—and perhaps none

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more unfortunate than in the case of Beta interferon and glatiramer acetate or, as I find it easier to say, Copaxone.
As my noble friend said, these are licensed drugs that have a proven history of efficacy. They have been used successfully over many years throughout the world. In that sense, they are not new drugs, though it is true that Copaxone has only recently received its UK licence from the Medicines Control Agency. As we have heard, they are of benefit to perhaps half of those patients afflicted with the relapsing remitting form of MS, estimated as a group to represent about a quarter of all MS patients. Yet there is a huge variation in prescribing rates in different areas of the country. Some health authorities will not fund the drugs at all. Others will do so, if only to a limited extent. As the noble Lord, Lord Clement-Jones, pointed out, the UK as a whole compares unfavourably with many of our EU partners with regard to the number of patients receiving Beta interferon or Copaxone. Only 2 to 3 per cent of MS patients in this country receive either drug, compared with 12 per cent in Germany, France and Italy and as many as 21 per cent in Austria.
As I have said, there is no doubt about the efficacy of these treatments. The guidelines from the Association of British Neurologists are unequivocal. They state:
"The ABN considers the evidence that the drugs are effective in a subgroup of patients with clinically active relapsing remitting MS to be conclusive. The beneficial effects can be clinically important. and in the absence of alternative disease modifying treatments, treatment should be available to this well defined subgroup (approximately 10% of patients) in all parts of the UK … Such a provision of treatment would meet an important clinical need in a debilitating neurological disease, would represent best clinical practice based on current evidence, and would be in accordance with standard clinical practice elsewhere in the EU".
Even before those guidelines were published, the previous government took the rare step of issuing an executive letter requiring health authorities to allow Beta interferon to be prescribed to those patients who might benefit from it. Despite that letter—number 95(97)—the referral of Beta interferon and Copaxone to NICE in August 1999 had an immediate and damaging effect. Doctors stopped prescribing the drugs to new patients and those health authorities which might otherwise have been influenced to adopt a more generous policy on funding the drugs had a cast-iron excuse not to do so. That excuse was made all the stronger by, at that time, the commonly shared understanding that the NICE appraisal was likely to take only a matter of months to complete. Indeed, NICE indicated in August 1999 that it anticipated issuing guidance no later than the following August.
As we have heard, that prediction was seriously inaccurate. For a whole variety of reasons the evaluation of Beta interferon and Copaxone has turned out to be much more of a complex exercise than was originally anticipated. The issue of NICE's final appraisal determination was put back to October 2000, then to Christmas, then to January 2001. Just before Christmas NICE announced, all of a sudden, that it wished to commission an entirely new economic
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model to inform its evaluation of the drugs' cost-effectiveness. Following that announcement, it was made clear in another place that the long-awaited guidance would not now be issued until November 2001, a full two years and three months after the appraisal process first began.
For that delay to arise for any reason is serious enough. For it to happen as a consequence of NICE perceiving the need to go through a learning process after more than a year of deliberation strikes me as appalling. I am sure that NICE will have excellent answers to that criticism, which the Minister will no doubt present to us this evening. But my bet is that they will be answers that seek to justify NICE's procedures purely within the terms of its own remit. In other words, the quest for an accurate and reliable model of cost-effectiveness will be held up as being for the greater good of all in the longer-term.
If the Minister says anything like that, as indeed he appeared to do when last we debated this matter on 7th March, then I need to put it to him that the plot has been lost. There is a human dimension to this issue. As the MS Society put it recently:
"Coping with the original timetable caused distress: doubling the length of the appraisal is causing despair among people who fear that while it goes on they may become too disabled ever to benefit from the drugs, even if NICE's eventual decision is positive".
The flaws associated with the NICE process are many, and I have not time to cover them all. But perhaps the most obvious is the unintended consequence of what is increasingly referred to as blight—the blight that is imposed on whatever treatment NICE is evaluating, pending issue of the final determination. I have spoken about the damage to patients. But we should also bear in mind the damage to the pharmaceutical industry. Increasingly, NICE is being seen by the industry as a fourth hurdle between it and the market place; a hurdle above and beyond the three established and accepted hurdles of safety, quality and efficacy on which a licensing decision by the MCA depends.
That negative view of NICE by the pharmaceutical industry and its potential consequences should not be underestimated. The "blight" imposed on a drug that is undergoing NICE appraisal extends in commercial terms far beyond the confines of the UK. It affects overseas markets for that drug and therefore worldwide revenues. To the extent that it engenders a loss of confidence in the UK as a base for foreign investment, it could well lead in the future to a decline in the UK's position as an international centre of excellence for pharmaceutical research and development. The more that the multinationals see this country as erecting barriers in the way of innovation, the less enamoured they will be about using the UK as a launch-pad for new treatments and the more they will be tempted away by the operating environments of rival countries.
I may say that that sense of frustration among pharmaceutical companies is already apparent in their criticisms of NICE, as to its perceived lack of transparency and its unwillingness to enter into any kind of dialogue with industry once an appraisal is

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underway. There is little confidence either that NICE contains the specialist expertise in-house appropriate to a proper understanding of each appraisal. That attitude of confusion and uncertainty contrasts markedly with what I have found to be the industry's view of the comparable system in Scotland, which is generally seen as open, transparent and consultative. I believe that there are lessons to be learnt from that comparison.
I began by saying that the regrettable situation highlighted by my noble friend's Question is, indirectly at least, of the Government's own making. As long as NICE continues to function in the manner that it does, with its existing remit, I do not see much scope for matters to improve. However, I do believe that for Beta interferon and Copaxone there is a partial remedy at hand, if Ministers choose to take it.
When we debated this issue on 7th March the Minister said in reply to a question from me that the department's executive letter 95(97) is still in circulation and the prescribing of Beta interferon should continue in line with what is stated in that letter. As I have said, there is abundant evidence that that is not actually happening—a fact that was, I believe, emphasised at a meeting last week between the Minister's right honourable colleague in another place, Mr Denham, the MS Society, the MS Research Trust and the Association of British Neurologists. Many doctors are being put in an impossible position.
I do not expect the Minister to give an undertaking to me here and now, but I would ask him seriously to consider the issue of further guidance to health authorities, reminding them that Executive Letter 95(97) still applies until such time as the NICE judgment is available. Guidance of that kind, which could also cover Copaxone, would I believe constitute an unequivocal signal from the Department of Health that the needs of MS patients should have primacy. It would also be an undoubted earnest of ministerial good faith to counter what I am bound to say have been some fairly mixed signals in recent months.
I look forward to hearing what the Minister has to say in reply.
8 p.m.
Lord Hunt of Kings Heath: My Lords, first, I thank the noble Baroness, Lady Cumberlege, for having raised this issue. I suspect that all noble Lords are a little surprised to be debating this matter tonight. I agree with the noble Baroness that we have held perhaps three or four debates on NICE over the past few weeks. The matter is one of intense interest among many Members of your Lordships' House.
I should like to say in particular to the noble Earl, Lord Howe, that of course I understand the human dimension behind the Question put by the noble Baroness, Lady Cumberlege. Equally, I am only too aware of the issues that undoubtedly have to be confronted by the unfortunate people who suffer from multiple sclerosis. However, I would have to say that many different concerns have to be considered here.
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I believe that there are two recurring problems which the NHS has had to face over many years: first, the issue of postcode prescribing, which I believe to be increasingly unjustified and indefensible within a national service; and, secondly, the slow take-up of innovative, proven medicines and techniques. That has been a factor of the NHS going back over many years. I believe that, far from the concerns expressed tonight by noble Lords, NICE is the best way forward to ensuring that authoritative guidance is made available to the NHS on the most effective and cost-effective drugs and treatments.
I believe also that we are receiving broad support from the service in taking this approach. What is abundantly clear is that the NHS, just like any other healthcare system in the world, has to set priorities and has to make choices. The issue lies in how those choices should be made. My contention is that the establishment of NICE brings much greater certainty, clarity and confidence to that process by providing authoritative assessments of the current state of medical knowledge on particular treatments and conditions. It undertakes the very important task of helping health professionals to keep abreast of the latest knowledge as well as removing the smokescreen of scientific uncertainty that has sometimes masked arbitrary and unfair funding decisions.
I recognise that the NICE process brings many of those dynamics out into the public arena and I understand why, when faced with those dynamics, they can cause concern to individuals who perhaps would have preferred the smokescreen of postcode prescribing and the slowness of uptake of innovative medicines and treatments. But, surely, in taking the NHS forward, it is preferable to use an approach such as that adopted by NICE, which can be informed by the best evidence available, and which in turn can advise the health service on what is both effective and cost-effective. That is as relevant to MS as it is to any other disease.
The noble Baroness, Lady Cumberlege, very appropriately and graphically, described the major and adverse impact—the terrible impact—that MS can have on a patient's quality of life, in particular during relapses. Of course I well understand the potential that many people see in Beta interferon and, more recently, glatiramer acetate which, as the noble Baroness pointed out, has been licensed more recently as a treatment for the disease. But we cannot ignore the ongoing debate about the identification and targeting of treatment on those patients most likely to benefit. Equally, I believe that it is important that no one should raise excessive expectations about the ability of these treatments to combat multiple sclerosis. It was because there appeared to be uncertainty about the appropriate use of Beta interferon, which was reflected in different prescribing patterns across the country, that we asked NICE to conduct an authoritative appraisal of the evidence on disease-modifying drugs for MS.
The noble Baroness asked why glatiramer acetate is treated in the same way as Beta interferon when it is chemically and pharmacologically different. She is

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quite right to say that these two drugs are different, but what they have in common is that they are both disease-modifying treatments for MS and we think that glatiramer acetate should be subject to an appraisal by NICE. The evidence demonstrates that, for patients with the relapsing and remitting form of MS, the drug reduces relapses by around 30 per cent as compared with the placebo. In its recently issued new guidelines, the Association of British Neurologists suggested that the magnitude of the effect of both therapies on the relapse rate in the relapsing and remitting form of MS appears comparable.
The noble Baroness went on to raise the issue of costs. I should say to her that the issue here is one of cost-effectiveness, not affordability. We have NICE to advise on clinical and cost-effectiveness and to issue guidance to the NHS on which treatments have the greatest potential to improve patient care. An entirely separate set of decisions is reached by Ministers as regards the overall level of resource and affordability.
I fully accept that the process under which NICE has conducted this appraisal has not been without controversy. It is unfortunate that the leaking last year of its provisional assessment led to widespread speculation at a premature stage in the process. It is true, as noble Lords have mentioned, that appeals were submitted which were then upheld in part by NICE's appeal panel. The record of NICE's appraisal committee meeting held on 13th December details how carefully the matter had been considered. It also highlighted the dilemma faced by the committee.
On 22nd December, NICE announced that it would extend the timescale for its appraisal of these drugs to enable further research to be undertaken on their cost-effectiveness. NICE has advised that this additional work has been undertaken to resolve critical differences in the economic models supplied by manufacturers and independent researchers. The commissioning, construction and evaluation of the new modelling will take around six months. That process will be transparent and the results will be made available to the parties involved, along with the appraisal, by summer 2001. Based on that, we expect NICE to produce its authoritative guidance by November, subject to any appeals. Until NICE publishes its guidance, I cannot pre-empt what it might say.
Of course I understand the concerns of MS sufferers who are worried about the delay in the production of NICE's final guidance on those drugs, but ultimately it is vital that the integrity of the NICE process is maintained. It is critically important that NICE is able to review all the evidence and attempt to reconcile differences between the interested parties. We want the institute to do a thorough job and to produce authoritative guidance.
Surely it is understandable that NICE wishes only to issue guidance when it considers that it is able—to the best of its ability and in the light of data available to it—to address the issues upon which it was established to assist the NHS, including, as I have said, advice on both clinical and cost effectiveness.
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I have been asked about the methodology used by NICE to make those judgments. It is a matter for NICE itself to develop its own working methods within the broad guidelines laid down by Ministers and set out in the directions and in its framework document. The directions require NICE to take account of any guidance on the resources likely to be available.
NICE has made clear that it is not committed to any single methodology but that it applies judgments to each individual appraisal topic in the light of the evidence on clinical and cost effectiveness. I should say to the noble Baroness, Lady Cumberlege, that we have not indicated a threshold, either directly or otherwise, to the institute. We are committed to a review of NICE, starting this summer, and methodology is one of the issues that, no doubt, will need to be considered in that review.
Both the noble Baroness, Lady Cumberlege, and the noble Lord, Lord Addington, raised the issue of the account that NICE should take in its assessment of what one might describe as the wider costs and benefits to society. This matter was raised earlier today during the debate on a Starred Question in relation to anti-TN F drugs. As I said then, we have required NICE to assess evidence on all the other clinical and health-related benefits of treatment and to judge whether, on balance, they would represent a cost-effective use of NHS and personal social services resources.
As the noble Lord, Lord Addington, informed the House, NICE has recently issued more detailed guidance to manufacturers and sponsors on the way in which they should submit evidence on appraisals, and the issue raised by the noble Lord will be specifically covered. It is open to NICE to take into account a wider range of factors, and it is open to those who submit evidence to include evidence on a wider range of factors.
The noble Lord went on to raise the issue of productivity. The guidance states that changes in productivity, such as increased availability for work, may be a consequence of health gain resulting from the use of a technology. As the noble Lord said, any such monetary estimates of benefits should not be subtracted from the estimates of healthcare resource costs. However important these wider social factors are—I agree that they are important; NICE has stated that it is prepared to consider them, and it is open to people providing evidence to NICE to make submissions covering those areas—it is also important to note that it is not valid to say that the treatment in that sense is somehow cost neutral. Very often, for instance, the costs of NHS treatments are up front and very real, while the possible savings to the rest of the economy may often be downstream and speculative. There is, in practice, no mechanism—at least in the short term—for using savings elsewhere in the system to offset NHS costs.
That does not mean to say that there is not considerable force in the arguments put forward by the noble Lord, Lord Addington. As I said, it is a factor which can be considered by NICE—and no doubt we

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will look at the issue in the review—but it is not an easy issue to deal with. We have to be wary of being too simplistic in our arguments in that area.
The noble Baroness, Lady Cumberlege, asked about the difference between the way Relenza and drugs for Alzheimer's disease were treated. Again, this is a matter for NICE, but my understanding is that in those cases there was a much lesser range of uncertainty about the clinical and cost effectiveness of these drugs from the evidence available from a number of different parties. This is clearly not the case in relation to Beta interferon.
The noble Baroness asked about the requirement and request for patient data. My understanding is that NICE gave notice to the manufacturers in December last year that it would be requesting patient-level data from the clinical trials. Last Friday, members of the health economics consortium, which had been commissioned to develop the cost-effectiveness model for NICE, gave a detailed presentation of their proposed approach. The need for patient-level data and the uses to which it would be put were clearly described at the presentation.
I turn now to the suggestion that far from being a rigorous process to allow us to ensure high-level consistency and the fast introduction of proven and innovative techniques and treatments, this is a rationing tool. If that were the case, I doubt very much that Nick Timmins, in an article in the Financial Times a few months ago, would write:
"So far the view that NICE is there purely to ration is hard to sustain. Its first 15 significant decisions have saved the NHS about £70 million. However its recommendations for wider use of some treatments has boosted NHS spending by at least £205 million. Many thousands of patients should now be receiving potentially life saving treatments they were previously denied".
Surely that is the point. If NICE was simply a crude rationer, many more of the techniques and drugs that it has been asked to consider would have been ruled out. The fact is that NICE has ruled in many drugs and treatments at a cost to the National Health Service.
I turn now to the question of guidance. As the noble Earl, Lord Howe, suggested, this was issued in November 1995 in EL 95(97). This was in advance of market authorisations being granted for Beta interferon drugs. At that time, Beta interferon was licensed only for relapsing remitting MS. The circular asked purchasing authorities and providers to develop and implement local arrangements to manage the entry of such drugs into the NHS, in consultation with other interests and, in particular—I stress this—if prescribing was considered appropriate for it to be undertaken through hospitals. This guidance remains in place.
In addition—this is relevant to glatiramer—the department issued health service circular 1999/176 in August 1999. This asked National Health Service bodies to continue with local arrangements for the managed introduction of new technologies where guidance from NICE is not available at the time the technology first becomes available. These arrangements should involve an assessment of all the
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available evidence. I believe that the combination of the executive letter and the substantive guidance in 1999 is all that is required to ensure that appropriate policies are agreed and implemented within the NHS.
I heard what the noble Earl said about blight. I repeat what I said earlier today: if specific cases are brought to my attention where it is clear that NHS bodies have not gone through the processes that they need to go through, I shall look into them.
The question was raised as to whether the advice issued by NICE is put into effect. My right honourable friend the Secretary of State for Health has announced that we shall introduce explicit monitoring so that we know that every health authority and trust is taking full and proper account of each NICE appraisal. I repeat: there would no point in the NICE process unless we were confident that its recommendations were being implemented by the NHS.
On the question of the pharmaceutical industry, I heard what the noble Earl said. I have had the pleasure of chairing the joint task force between the Government and the industry. I understand the issues raised by the industry in relation to NICE. I can say that after 12 months of constructive discussion it understands our viewpoint as well. We have agreed that as part of the review process we shall pick up again the issues raised by the industry. I believe that we have to balance on the one hand the concerns of the industry and on the other the clear evidence that the impact of NICE so far has been to lead to greater expenditure on drugs than would have been the case had we not brought NICE into being.
I agree that the pharmaceutical industry is a major contributor towards inward investment in the UK in terms of jobs. It is responsible for 23 per cent of all commercial R&D investment in this country. The whole purpose of the working group that we established is to ensure that the UK continues to be competitive in attracting R&D investment and other investment from the industry.
I listened with great care to the comments made by the noble Lord, Lord Clement-Jones, about orphan medicinal products. I am grateful to the noble Lord for repeating my words of some weeks ago. I fully accept that drugs for rare conditions will tend to be more expensive than those for common conditions because the cost of research and development has to be recouped over a much smaller number of sales. On that basis it is likely that orphan drugs will tend to appear less cost-effective judged by the yardsticks that are sometimes used, such as cost per life year.
We are sympathetic to the needs of those who require orphan drugs. We must also accept that difficult choices will still have to be made between providing very expensive treatments benefiting only a few and providing effective treatments offering a substantial health gain to a larger number of patients. That is where NICE can advise us on what will always

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be very difficult issues. But that does not mean that NICE will mechanically apply a fixed cost-effectiveness yardstick to all treatments it is asked to appraise. Equally, I do not believe that NICE can ignore the question of cost-effectiveness altogether, even for treatments for rare disease.
This has been a good debate in which a number of concerns have been raised about the operation of NICE. The review will be commencing within a relatively short time. We shall need to pick up the kinds of concerns that have been expressed during this debate. At the end of the day, I am convinced that NICE provides us with the most effective way of ensuring that the right decisions are made in relation to cost and cost-effectiveness and that this will speed
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up the introduction of new treatments and new techniques that are found to be effective. That is far better than postcode prescribing and a situation of patchy provision throughout the NHS.

Medway Council Bill [H.L.]
Returned from the Commons with the amendment to which the Lords have disagreed not insisted on.

Criminal Defence Service (Advice and Assistance) Bill [H.L.]
Returned from the Commons agreed to.
House adjourned at twenty-four minutes past eight o'clock.