Lords Sitting of 13 December 2001

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Southwark): The LORD CHANCELLOR on the Woolsack.

Heathrow: Take-off and Landing Slots
Lord Berkeley Lord Berkeley asked Her Majesty's Government:
Whether they consider that the proposed BA/AA alliance holding 70 per cent of the peak hours take-off and landing slots at Heathrow complies with their competition policy.
Lord Filkin: My Lords, data from Airport Co-ordination Limited, which is responsible for slot allocation, show that BA and AA together currently hold no more than 51 per cent of the slots during any one hour. Their average over the peak period is about 40 per cent. However, the competition authorities are considering the proposed BA/AA alliance. They will determine whether the alliance should be approved and, if so, which competition remedies are appropriate.
Lord Berkeley: My Lords, I am grateful to my noble friend for that detailed Answer. If his figures are different from mine, that just shows how easy it is to massage figures one way or another. Either way, how will the Government decide whether the BA/AA alliance is in the national interest? What conditions could they put on that if it goes ahead? Could they require the alliance to give up slots, and could they require, for example, fifth freedom rights for other airlines in the US as a trade-off?
Lord Filkin: My Lords, I should be happy to give a reconciliation of the difference between my figures and those of my noble friend, but it might bore him and the House if I did it now, so I shall write to him with it.
Two separate processes are involved. BA and AA—and British Midland International and, I believe, United Airlines—have proposed airline alliances. Those alliances are being considered by the competition authorities on each side of the Atlantic—in our case, by the Office of Fair Trading. As noble Lords know, that body is completely separate from the Government and it will make its decisions and recommendations about what increased competition would be necessary, were it to support such a proposal. As one would expect, that is almost bound to require the release of slots at Heathrow for other airlines to increase competition. If the competition authorities are prepared to support the alliance on the specified terms and the airlines are prepared to agree to them, the United Kingdom Government would be prepared to move forward to a new agreement that was based on "open skies" and, effectively, on opening up the US
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domestic market to such of our airlines as were prepared to form alliances. That is the system. I hope it is clear that two separate processes are involved, rather than one conglomerate.
Lord Bradshaw: My Lords, does the success of our national flag-carrying airline mean more to us than some narrow interpretation of competition policy? That seems to be the view in many other countries and it is strange that we take a different approach.
Lord Filkin: My Lords, I do not think that we do. The Government have several perfectly proper objectives. A fundamental objective is to increase competition in relation to the North Atlantic. That will benefit passengers and UK industry, which may he paying higher freight charges than would otherwise be the case. Just to agree to the United States proposal—the open skies approach would give US carriers access to Heathrow without getting access to domestic opportunities in the United States, arid that would be very much against the interests of United Kingdom carriers. We have to crack that nut. The problem, as noble Lords know, is that there are very strong domestic pressures in the United States against liberalising their domestic market. That is why several airlines and competition authorities have realised that the way to break in there is through airline alliances. That has been done by six other countries.
Viscount Astor: My Lords, would the Minister be kind enough to tell me when responsibility will devolve from this country to the European Union for negotiations on transatlantic services?
Lord Filkin: My Lords, the short answer is that we will have to wait and see whether that comes about at all. I am sure that the noble Viscount is aware that we are currently awaiting a judgment from the European Court of Justice on whether other such airline alliances infringe EU competition policy. The Attorney-General's judgment is, I believe, expected towards the end of January and I should not wish to second-guess what it might be. It is possible that it might be held that such alliances infringe competition policy and that therefore negotiations between European countries and the United States would have to be done collectively. There would no doubt be benefits from that but one would hardly expect the process to be quick.
Lord Borrie: My Lords, the Minister rightly pointed out the independence of the competition authorities in this country—and, for that matter. in the United States—from government. Bearing in mind the UK Government's strong views, which the Minister mentioned, does he propose to give evidence on behalf of the Government to those authorities, particularly to the competition authorities in the United States? As he said, it is most important, in relation to competition,

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for British domestic airlines to have access and to be able to compete with United States airlines in the use of airports in the United States.
Lord Filkin: My Lords, I have no doubt that, if required, the Government will give such evidence. We are certainly making strong representations to the United States Government about the need to move forward and increase effective competition in relation to the North Atlantic route. Indeed, my right honourable friend the Prime Minister made those points in his discussions with the President of the United States in November and asserted the importance of moving forward on this agenda. Having said that, it is right and proper that the OFT deals with these matters impartially and without political interference—that is in the interest of competition and consumers.
Lord Clinton-Davis: My Lords, I should declare an interest as the president of BALPA. Is my noble friend aware that the Americans are behaving with a very anti-competitive attitude by offering huge subsidies to American airlines, which, quite rightly, are not matched in Europe? Are the Government doing anything about that?
Lord Filkin: My Lords, I am not certain that I have put my finger exactly on the subsidy to which my noble friend refers. I suspect that he refers to the situation post-September 11th, when there was indeed strong support from the US Government, in an effort to get the internal domestic flights of US carriers started again. As noble Lords know, our Government also rapidly gave support to try to protect our industry when it could not get insurance cover and would therefore otherwise have been grounded. That arrangement continues until, I believe, 23rd January. I do not want to go into a detailed defence of the US position, but noble Lords will be aware that almost all of the US airline industry was grounded, whereas we were hit just in relation to the North Atlantic route. Nevertheless, that issue will be closely tracked by the UK Government.

Broadcasting: Scrutiny by Peers
3.9 p.m.
Baroness Howe of Idlicote Baroness Howe of Idlicote asked the Leader of the House:
Whether he will propose the establishment of a Select Committee on broadcasting.
The Lord Privy Seal (Lord Williams of Mostyn): My Lords, it is the role of the Liaison Committee of this House to consider proposals for Select Committees. I would not propose the establishment of any Select Committee without first seeking the views of the Liaison Committee.
Baroness Howe of Idlicote: My Lords, I thank the noble and learned Lord for that Answer. I suggest that he asks the Liaison Committee to take soundings. I am sure that he is well aware of the cultural importance of broadcasting and communications generally to United Kingdom citizens and consumers and, equally, of the growing significance of this industry to the economy. I believe that it is rising faster than any other part of the economy—by some £61 million or 6 per cent per annum growth in GDP. I wonder also whether he is aware of the expertise and experience in your Lordships' House—far greater, I would argue, than in the other place—which could form the basis of a very knowledgeable Select Committee. In view of the number of times—some 21 occasions when your Lordships have met to discuss communications issues over the past five years, not counting the Ofcom Bill. I would ask for a reconsideration.
Lord Williams of Mostyn: My Lords. I share the noble Baroness's view about the public and economic interests relating to broadcasting. It is true that there is expertise in your Lordships' House on that subject: there is expertise in your Lordships' House on all conceivable topics known to the mind of man. That is why, rightly, a procedure is in place for an individual Peer to write, usually to the Chairman of Committees, the noble Lord, Lord Tordoff, making a case and setting out the proposed terms of reference and the benefits that might inure.
Viscount Falkland: My Lords, does the Leader of the House agree that overshadowing all other aspects of broadcasting at present is the date of the switchover from analogue to digital? Before that date is known, or before anyone can hazard a guess as to a date that might be appropriate, any Select Committee which met to discuss broadcasting without that knowledge would be in a very weak position.
Lord Williams of Mostyn: My Lords, I am sure that the noble Viscount makes an important point, but I do not believe that it derogates from the observation that I have made. It is for an individual Peer to make his or her application and to justify it.
Lord Campbell-Savours: My Lords, would not such a Select Committee be able to address the issue of the broadcasting of Parliament? My noble and learned friend will know that channel 508 on satellite transmits a direct feed of actuality from the Floor of the House of Commons. Why cannot we take over channels 509 or 511? In my view, that would greatly enhance this House in the minds of the public outside and would lead to a far greater and better understanding of what we do in this Chamber.
Lord Williams of Mostyn: My Lords, I am sure that these are all excellent ideas. If your Lordships wanted a larger audience, 95.8 might be a better waveband. I believe that that is Capital Radio. These are all excellent ideas but, alas, they are not within my gift.

Electoral Register: Disclosure Ruling
3.13 p.m.
Lord Campbell of Alloway Lord Campbell of Alloway asked Her Majesty's Government:
How they will respond to the recent ruling in the High Court that the sale of personal details on the electoral register to commercial interests is a breach of the European Convention on Human Rights.
Lord Filkin: My Lords, following the court ruling, electoral registration officers must continue to sell electoral registers in accordance with the law. However, when selling to commercial concerns, they must exclude the particulars of electors who have objected to their details being included in such cases. The Government had always intended to provide for such an opt-out and for edited registers in the regulations which, subject to parliamentary approval, we were planning to make in time for the 2002 canvass. We are now considering how best to progress those proposed regulations in the light of the court ruling and we shall consult widely.
Lord Campbell of Alloway: My Lords, I thank the Minister for his reply. Can one assume that, in the light of the Robertson v. City of Wakefield decision, the Government now accept that the sale of the register for commercial purposes without consent contravenes Articles 8 and 3 of the First Protocol of the European Convention on Human Rights and that it will be necessary to make an amendment to the Data Protection Act 1998? Can the House assume that the Government accept that position? In the context of the sale of the register, is the noble Lord aware that the Government relied on a flawed certificate of compatibility with the ECHR and that, at all three stages of the progress of the Bill, they refused to give a reason or an answer for doing so? Does the Minister agree that this raises a wider question?
Lord Filkin: My Lords, as the noble Lord points out, the current situation arises from an appeal by an individual against the publication of a register containing his name by an electoral registration officer. To my knowledge, the Government do not intend to appeal against that judgment. Therefore, we are left in the position that electoral registration officers cannot sell registers unless and until they have ensured that people have been given an effective opt-out.
The process for addressing the current anomaly is that, by the end of January, the Government will publish their paper setting out proposals on how to move forward on this matter. That paper will go out for widespread consultation with individual electors and with the credit data agencies which rely substantially on the registers. In short, the result is likely to be that in future individuals will he required to be given an opt-out. Only a register without the names of those who have chosen an opt-out can be published. The thrust of the noble Lord's question was about what happened
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when the Bill was before our House. I regret that I must plead ignorance on that, but I shall consider his question and write to him accordingly.
Lord Taylor of Blackburn: My Lords, is my noble friend aware of the concern and difficulty that this matter is causing in a number of commercial companies throughout the country? In certain cases, people who can no longer carry out what they considered to be a legitimate act are being laid off. Perhaps I may press the Government not to wait until the end of January but to make a statement before the end of the year so that people know exactly where they stand.
Lord Filkin: My Lords, we shall certainly publish as soon as possible what we consider to be sensible proposals for moving forward on this matter. I am well aware of the considerable concern expressed by the data protection industries and by a number of charities which rely on electoral registers for publication purposes. However, we are where we are, and it appears that past practices will not be able to continue in the future.
One should note that the electoral register has never been a perfectly reliable database, with regard to both inclusions and exclusions. For obvious reasons, it is certainly not a reliable record of identity because people can add their names to the register without validation. Over the past few months the Government have been hoping to find a consensus that will move the matter forward. In a sense, the court action has kiboshed that and forced us on to different routes, but we shall come forward with proposals relatively soon.
Lord Goodhart: My Lords, does the Minister appreciate that we had lengthy discussions on exactly this subject during the passage of the Representation of the People Act 2000 in this House? Does he recall that on that occasion the Act enabled the Representation of the People Act 1983 to be amended so as to make it possible to publish an edited register for sale to commercial interests? Why did the Government not see this problem coming and deal with it when they made the Representation of the People Act regulations earlier this year?
Lord Filkin: My Lords, there is some truth in what the noble Lord says. From 1983 it became obligatory on all electoral registration officers to sell electoral registers, whereas previously it had been discretionary. As the noble Lord said, the 2000 Act recognised on the face of the Bill that that appeared potentially to conflict with data protection rights. The delay has been caused fundamentally by the Government trying to find a way to reconcile what may well be reconcilable: the interest of data protection and human rights and the interest of the commercial organisations which have relied on these registers in the past. Therefore, the plan had been to lay regulations by the spring in time for the 2002 register in order to allow that to proceed. As I said, the court judgment has effectively put an end to some of that detail. It is hoped that we shall find the best way forward in the circumstances in the next few weeks.
Lord Marlesford: My Lords, presumably the Government are not contemplating making it illegal for electoral registers to be available to political parties and, for example, to parish councils which make widespread and essential use of them? Is it really conceivable that there will be only an edited version published with as many people who wish to remain anonymous having been taken off the register? Is that practical?
Lord Filkin: My Lords, the noble Lord need have no fear in that respect. The court judgment does not put at risk the right of political parties, crime prevention agencies, the British Library and a number of others to have access to the full register. Similarly, individual citizens will still be able to go into their town hall, or wherever, and inspect the register. However, those of your Lordships who are more au fait than I am with the Representation of the People Act 2000 will recollect that Section 9 made clear that one could not photocopy the register and take it away. That would clearly circumvent the thrust of the legislation.

Extradition of Terrorists
3.21 p.m.
Lord Astor of Hever Lord Astor of Hever asked Her Majesty's Government:
What criteria they will apply when deciding whether suspected terrorists can be handed over or extradited to a jurisdiction where the death penalty can be imposed.
The Minister of State, Home Office (Lord Rooker): My Lords, our policy is in accordance with the Sixth Protocol to the European Convention on Human Rights and with the provisions of the Extradition Act 1989. We refuse to extradite any persons to a jurisdiction where the offence for which they could be tried, or for which they have been tried, carries the death penalty, unless sufficient assurances are provided by a requesting state that the death penalty will not be imposed, or if imposed, will not be carried out.
Lord Astor of Hever: My Lords, perhaps I may ask the Minister why our troops can, quite rightly, hand over to the Americans bin Laden or his accomplices if captured in Afghanistan, but if captured in this country, they will not be handed over unconditionally? Our American friends find that hard to understand. Where is the logic?
Lord Rooker: My Lords, I shall not answer hypothetical questions. I refer noble Lords to the Answer I gave to the same Question on 15th November at cols. 678 and 679. I shall not have a razor blade put between myself and the Secretary of State for Defence, or anybody else. If I am really pressed I shall read into the record the same Answers as I gave on that day when I was specifically asked about the position of
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bin Laden if he ended up in this country as an illegal immigrant. The position has not changed since 15th November.
Lord Lester of Herne Hill: My Lords, can the Minister explain to our American friends, of whom I am one, and perhaps to Mr Ashcroft, their Attorney-General, if this is raised, that the criteria applied are those that were laid down by the European Court of Human Rights in 1989? The government of the noble Baroness, Lady Thatcher, honourably gave effect to those criteria. Now, as a matter of European public policy, the framework decision on Eurowarrants makes sure that within Europe, at any rate, the policy of the European Convention on Human Rights will prevent anybody being extradited to face the death penalty, inhuman or degrading treatment or punishment or torture. That policy is observed by the 41 member states of the Council of Europe.
Lord Rooker: My Lords, I agree with everything said by the noble Lord, Lord Lester. I refer noble Lords to the original Answer I gave; that is, that our policy is in accordance with the Extradition Act 1989. I shall leave it there. I am sure that in a moment the penny will drop.
Lord Dixon-Smith: My Lords, does the Minister find, as I do, that it is at least inconsistent if not illogical that we can send our troops out to a situation where they might have to kill suspect terrorists or be killed by them, yet we are not prepared to put suspect terrorists in danger after due process of law? I find that inconsistent.
Lord Rooker: My Lords, there is nothing inconsistent as regards what happens under fire in enemy action under the rules of war as opposed to judicial execution. If the noble Lord cannot understand the difference between the two, we have a problem in debating the issue. There is a difficulty. I repeat that our extradition treaty with the United States does not cause any problems with the United States. We extradite people back to the United States even for offences which carry the death penalty there. That is done on the basis that if such persons are found guilty and the death penalty is imposed, it will not be carried out. That is a perfectly satisfactory arrangement that has worked well for years under both governments.
Lord Stoddart of Swindon: My Lords, does the Minister agree that perhaps the Prime Minister's statement earlier this week caused a little confusion in some minds? Does he also agree that the safest thing that Osama bin Laden can now do is to smuggle himself into this country?
Lord Rooker: My Lords, if, having put thousands of people to death he wants to save his own skin, that is absolutely right. That would show the kind of coward he is. My noble friend Lord Stoddart asked that question on 15th November during an exchange at

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col. 679. The position I gave then has not changed to date. That is clear. Perhaps I may add that no one, inside or outside Westminster, inside or outside the Government or the media, has questioned any of the Answers I gave on that day.
Earl Ferrers: My Lords, does not the Minister realise that if a person were apprehended or convicted as a terrorist, some people would think that the best thing would be for him to be extradited to a country which carries out the death penalty as soon as possible?
Lord Rooker: My Lords, we have been concentrating on the United States. Most of our partners do not have the death penalty; the United States does. It is still in force in 38 states. That implies that there are many states where it is not in force. When explained calmly to members of the public, I believe that they understand the difference between what happens during enemy action and acts of war and our general policy of not having execution. That has been settled on free votes in this Parliament year after year, and there has been no change.

Business of the House: Standing Order 46
3.28 p.m.
Lord Williams of Mostyn: My Lords, before I move my Motion, I welcome hack to your Lordships' House our friend, the noble Baroness, Lady Young. I am told—I do not know how reliably—that she has been determined to come back today just to support the Government!
I beg to move the Motion standing in my name on the Order Paper.
Moved, That, in the event of the Consolidated Fund Bill being brought from the Commons, Standing Order 46 (No two stages of a Bill to be taken on one day) be dispensed with to allow the Bill to be taken through all its stages on Monday next.—(Lord Williams of. Mostyn.)
On Question. Motion agreed to.

Christmas Day (Trading) Bill [H.L.]
Read a third time; an amendment (privilege) made; Bill passed, and sent to the Commons.
Consolidated Fund Bill
Brought from the Commons endorsed with the certificate of the Speaker that the Bill is a money Bill, and read a first time.

Business
Lord Carter: My Lords, before we commence consideration of the Commons amendments on the Anti-terrorism, Crime and Security Bill, it may be for the convenience of the House if I explain that a
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supplementary Marshalled List of amendments has recently been placed in the Printed Paper Office and in other places around the House.
The supplementary list contains only two amendments. The first relates to Amendment No. 48. It has been tabled in the name of all three Front Benches, so I hope that the House will find it acceptable. The second relates to the last group of amendments on our list. It relates to an amendment proposed by the Government in respect of review of the Act by a committee of Privy Counsellors.

Anti-terrorism, Crime and Security Bill
3.30 p.m.
Lord Rooker: My Lords, I beg to move that the Commons reasons and amendments be considered forthwith.
Moved, That the Commons reasons and amendments be considered forthwith. —(Lord Rooker.)
On Question, Motion agreed to.
COMMONS REASONS FOR DISAGREEING TO CERTAIN LORDS AMENDMENTS, COMMONS AMENDMENTS INSTEAD OF WORDS LEFT OUT OF THE BILL BY CERTAIN LORDS AMENDMENTS AND COMMONS CONSEQUENTIAL AMENDMENTS TO THOSE LORDS AMENDMENTS, COMMONS AMENDMENTS TO WORDS RESTORED TO THE BILL BY A COMMONS DISAGREEMENT TO A LORDS AMENDMENT, COMMONS AMENDMENTS TO A LORDS AMENDMENT AND COMMONS AMENDMENT IN LIEU OF A LORDS AMENDMENT TO THE BILL
[The page and line refer to HL Bill 29 as first printed for the Lords.]

LORDS AMENDMENT
5 Clause 17, page 7, line 7, after "authority" insert "to a relevant public authority"
The Commons disagreed to this amendment for the following reason:
5A Because it is not appropriate to limit the power conferred by this clause in the manner proposed by the amendment.
Lord Rooker: My Lords, I beg to move that the House do not insist on their Amendment No. 5 to which the Commons have disagreed for their reason numbered 5A, but do propose the following amendment in lieu thereof—
5B Page 7, line 23, at end insert—"
"( ) No disclosure of information shall be made by virtue of this section unless public authority by which the disclosure is made is satisfied that the making of the disclosure is proportionate to what is sought to be achieved by it."
The noble Lord said: My Lords, in moving Amendment No. 5 I shall speak also to the other amendments in the group. We believe that the way in which the Bill was left after your Lordships had dealt with Part 3 would have been counter-productive. We all want to prevent terrorism and to catch the

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terrorists. The amendments would have made it more difficult for public authorities to disclose potentially vital information. Public authorities, by definition, are rarely experts in terrorism. They often will not be able to satisfy themselves that information is linked, even indirectly, to terrorism.
With our original drafting they could disclose for any crime. Therefore, vital information would reach the police. However, we are not giving a blanket disclosure power just for information relating to crime. Our new amendment will, we hope, clarify the position on the face of the Bill to your Lordships' satisfaction. The public authorities will have to take into account, before disclosing, the proportionality of their disclosures. Bulk disclosure of information without regard to the seriousness of the offence in question would not be proportionate and would therefore not be permitted by these provisions.
In the example offered in the other place by the Shadow Home Secretary a public authority would not be able to disclose vast swathes of tax information to the Baltimore Police Department if it had stopped someone in respect of a driving offence. In the unlikely event that a UK public authority had information that related to specific driving offences, it could disclose only that information which directly related to the offence. If there was a suspicion that the individual was involved in more serious crime, it could disclose information to the investigatory authorities.
Under your Lordships' amendment it could only do so if it believed that the crimes were terrorist or national security related. It may be that drugs are found in the car. Under our drafting a public authority could pass relevant information to the individual. That could help to show a connection with the funding of terrorism.
I shall give a couple of examples which I do not think have been given before. I hope that they will clarify the position. It has been said previously that the complex task of operating a terrorist cell may involve the smuggling of drugs into the UK which are not obviously linked to terrorism. Customs do not know that they are for a terrorist cell and information does not therefore reach the police. The police would ask only if they already have some evidence. So far as concerns the Customs, they have what has been smuggled but they do not have any connection.
The Inland Revenue has previously been unable to disclose to the police that a drug dealer was citing drug dealing on his tax returns. I read that slowly because I gulped this morning when I read it. If a drug dealer is arguing for taxation purposes and he puts "drug dealing" on his tax return the Inland Revenue is unable to disclose that to the police. We know that drugs are used to finance terrorism because that crook bin Laden was selling drugs to finance his terrorist activities, bringing not just death but misery to millions of people. That could prove to be a vital piece of intelligence but it cannot be passed over under your Lordships' amendment because the Inland Revenue has no idea that the drugs are linked to terrorism.
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Terrorist groups rely on work in the construction industry—that is to say, mobile industry without any factories—to provide income and a cover while in the UK. While monitoring that industry for national insurance contributions evasion—in which the industry has a good record, but a bad record so far as concerns the Inland Revenue—it may obtain information which points to the operations of a terrorist cell but it has no idea that they are terrorists so the information never reaches the police. We think that that goes too far.
Frankly, I do not think that that was in the minds of noble Lords when the original amendments were passed to the Bill as presented. I hope therefore that, bearing in mind the debates in this House and indeed the other place and the fact that we want to put on the face of the Bill a test of proportionality, the new operation of Part 3, in terms of disclosure, will meet with your Lordships' favour.
Moved, That the House do not insist on their Amendment No. 5 to which the Commons have disagreed for their reason numbered 5A but do proposed Amendment No. 5B in lieu thereof.—(Lord Rooker.)
5C Lord Thomas of Gresford rose to move, as an amendment to the Motion that the House do not insist on their Amendment No. 5 to which the Commons have disagreed and do propose Amendment No. 5B in lieu thereof, leave out the words after "House" and insert "do insist on their Amendment No. 5".
The noble Lord said: My Lords, I move this amendment on behalf of my noble friend Lord Phillips of Sudbury. The amendment restores the position to when the Bill went to the Commons.
It may be helpful if I remind your Lordships very briefly why we passed the amendment. Clause 17 of the Bill provides that a public authority—some 40 plus are listed in Schedule 4—may be required to disclose information in its possession about an individual or a company—medical records, bank records or company records—to anyone considering initiating any criminal investigation whatever anywhere in the world. It is not limited to the United Kingdom; it is not limited to the United Kingdom law enforcement agencies; and it is not limited of course to terrorism or suspicion of terrorism.
Many people will say, "Well, I have nothing to hide. People can look into my affairs if they want. It is a price worth paying for security. In times of danger security comes before privacy". We on these Benches entirely agree with that sentiment. Our amendment ensured that these unprecedented powers were given to the agencies in this country and abroad simply for the purposes of the Bill: namely, information believed—or even just suspected to be—related directly or indirectly to a risk to national security or to the existence of terrorism.
A further restriction was put on: that the information should not be released to anyone, which is what the clause stated as originally drafted, but a relevant public authority. Therefore, the effect of the

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amendment was to give to the clause that focus which the Bill should have in dealing with anti-terrorism measures.
Clause 19 concerns the Inland Revenue and Customs and Excise and provides that they may release their files and records,
"for the purposes of any criminal investigation",
anywhere, to anyone in the world.
The addition of subsection (2)(a) was quite significant because it was an addition to the Bill as originally drafted and brought before your Lordships and withdrawn before the general election. This Bill, unlike the original Bill, gives power to the commissioners of the Inland Revenue and Customs and Excise to make disclosure,
"for the purpose of facilitating the carrying out by any of the intelligence services of any of that service's functions".
So the Bill widens the provision from the ordinary police investigating authorities to the intelligence services for any of their purposes.
The amendment passed by your Lordships' House simply restricted the scope of such disclosures to the disclosure of information believed or suspected to relate to a risk to national security or to a terrorist. I emphasise the word "suspected". All that is required is that a person carrying out an investigation should say to the public authority, "I am investigating terrorism"—or the possibility of terrorism, or the existence of a possible terrorist—"and I should like your co-operation". We have no objection to that. We and, I am sure, all of your Lordships think it essential for the security of this country that such powers be granted in that limited way.
However, the Government have not listened in the other place and have returned the Bill to us seeking to reverse our decisions. All that has been added is a proposal that,
"No disclosure of information shall be made by virtue of this section unless I he public authority by which the disclosure is made is satisfied that the making of the disclosure is proportionate to what is sought to be achieved by it".
That merely restates the existing duty under the Human Rights Act 1998, because proportionality is a basic principle of that Act. If there is an invasion of privacy, it should be permitted only by means proportionate to the need that requires it.
We must ask: what is meant by the words,
"proportionate to what is sought to be achieved by it"?
If an investigating authority comes to this country from overseas and says, "I am investigating a drugs matter. Please release all your records", is it proportionate if the public authority releases information to that agency? Let us take the example given a moment ago by the noble Lord, Lord Rooker, of drugs being found in a car. That information should be passed to the police, but it is for the police to make the connections when they receive the information.
When it comes to income tax and Customs and Excise authorities, it is unlikely that a person will write down "terrorist" as his occupation. Consequently, it is for the police or other investigating authority—that is,
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the security services—to go to the Commissioners of Customs and Excise or Inland Revenue to say, "We are investigating X because we suspect that he is a terrorist or engaged in terrorist activities. Can we see his files?" In other words, the initiative should come from the police to the public authority.
The amendment proposed by the noble Lord, Lord Rooker, is just window dressing. It adds nothing to the previous provision and does not assist your Lordships. The purpose of my amendment is that the position on which we decided after a great deal of debate should be maintained.
Moved, That, as an amendment to the Motion that the House do not insist on their Amendment No. 5 to which the Commons have disagreed and do propose Amendment No. 5B in lieu thereof, leave out the words after "House" and insert "do insist on their Amendment No. 5".— (Lord Thomas of Gresford.)
3.45 p.m.
Baroness Buscombe: My Lords, in rising to speak to this group of amendments, I should say straightaway that Her Majesty's Official Opposition take a different approach from that of the noble Lord, Lord Thomas of Gresford. We are grateful to the Government for, as we see it, responding to our concerns—concerns that we expressed during each stage of consideration of the Bill in your Lordships' House. Indeed, it is fair to say that we have worked hard to persuade the Government that there is a fundamental problem with Part 3 as drafted. Their proposals for disclosure of information go way beyond the agenda that we all want to support. That agenda is the fight against terrorism.
Part 3 as drafted is draconian, not measured, and the question of proportionality would in practice only arise, and possibly bite, in the event that an individual or class of person felt aggrieved and acted on that grievance after disclosure had been made and the damage done. The government amendment recognises that thought must be given by the relevant investigatory authorities, such as the National Criminal Intelligence Service, the National Crime Squad and the Commissioners of the Inland Revenue or the Commissioners of Customs and Excise, as to whether the request for information is proportionate—in other words, in comparative ratio—to the investigation at hand before that request is made.
Time will tell whether that works in practice. We shall wait and see. On that basis, we shall support the government amendment.
The Earl of Onslow: My Lords, this particular Member of Her Majesty's Loyal Opposition tends to agree with the other part of the opposition. The government amendment does not go far enough. It is rather sad that we on these Benches have been seen to cave in to what I would describe as waffle. There are many ways to beef up the amendment a little. If someone puts "drug dealer" on his tax return, it is always possible that he is actually a manager of' Boots the Chemists, but he probably is not. It strikes me as

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hard to believe that the Inland Revenue could not say to the police, "We have someone admitting a crime. Why do you not investigate?" I am sure that that happens now.
I am afraid to say that if the Liberal Democrats push this to a Division, I shall be trotting through the Lobby with them. I believe that it is the duty of your Lordships' House to protect, as much as we humanly can, the individual rights and liberties of the subject. This is a minor blip—that is all—on the otherwise impeccable behaviour of those on my Front Bench. They have conceded too much on this matter.
Lord Lester of Herne Hill: My Lords, I wish to say one or two words in support of the amendment standing in the name of my noble friend Lord Thomas of Gresford. The government amendment is indeed a piece of window dressing. If the noble Baroness, Lady Buscombe, will forgive my saying so, I find it a bit pathetic that a piece of window dressing should wholly satisfy the Official Opposition.
If we penetrate the true legal position and the government amendment, it is much more complicated than appears at first sight. I want to explain the position because public authorities may be liable as a result of the legal uncertainty that will remain if the Government have their way.
My noble friend is completely right when he says that the government amendment begs the question when it says,
"proportionate to what is sought to be achieved by it".
If the Liberal Democrat amendment is not passed, the answer to the question is partly given in Clause 17(2). In other words, without any link with terrorism on the face of this part of the Bill, if the disclosure of information is for the purposes of any criminal investigation, criminal proceedings and so forth, the question will be whether the disclosure is proportionate to those matters and not to any link to terrorism.
I recognise that under Article 8.2 of the European Convention on Human Rights it is permissible to invade personal privacy not only to protect national security but also to prevent or detect crime. I therefore recognise that a power of the width which is being conferred by Clause 17 is capable of falling within a legitimate aim in terms of the ECHR and that then a test of proportionality necessarily comes into place not because of the government amendment but because of the various provisions of the Human Rights Act, to which this amendment adds nothing of substance.
However, in practice it means that if anyone discloses information acting under Clause 17 in a way that breaches Article 8 of the human rights convention—the guarantee of personal privacy—for any of the aims stated in Clause 17(2), although he may be pursuing a legitimate aim he must do so only in a proportionate way.
The word "proportionate" is not defined in the amendment but it means that the means used to accomplish one of those aims must be necessary—and
1426
no more than necessary—to achieve that legitimate aim. They must involve the least sacrifice compatible with human rights, as the House of Lords recently held in the case of Daly. That is what proportionality means.
Therefore, there is quite a strict test, but the problem is that the poor old public authority or other body which makes the disclosure will be potentially liable under a Bill conferring powers which are broad and not well defined. If we reject the link with terrorism which the Liberal Democrat Benches have sought to make and leave it to the window dressing of the amendment about proportionality moved by the noble Lord, Lord Rooker, all we shall be doing is dumping the problem on the public authorities and in the end on the courts. There will be great legal uncertainty and it will be unsatisfactory.
However, I concede that ultimately when people are properly advised and can afford to bring their cases and sue, the courts will provide effective protection. For those who understand their legal rights that will be so. But I regard the position as a mess—and an unsatisfactory mess. Therefore, I very much hope that even at this late stage the Official Opposition will join with the rest of us on these Benches in standing firm to clarify the position so that we can avoid lawyers such as myself earning far too much money, as the noble Lord, Lord Rooker, would say, in arguing such cases.
Lord Elton: My Lords, I am perhaps a little more easily persuaded by the Government than noble Lords who sit to my right. That is partly because we still anticipate that the Bill will have a short life and that it will be on the statute book for an experimental period; and partly because, seeing my noble friend Lord St John of Fawsley in the Chamber reminds me that in the Church of England marriage service those entering into the state of matrimony are advised not to do so wantonly or ill advisedly. A similar caution appears to be pointed at the public authorities in question.
I have only one question to ask the Minister and if he will answer it satisfactorily, he will greatly increase my comfort in what he proposes. It is a question I asked when the Bill was previously in this Chamber. What connection can there be between terrorism and information given under Section 9 of the Diseases of Fish Act 1983?
Lord Phillips of Sudbury: My Lords, I absolve the Front Bench of the Official Opposition from what I am about to say. I feel that this House is behaving like the Grand Old Duke of York. It was but a week ago that we went into the Lobbies in great and convincing numbers to introduce into the Bill the provision which is now to be struck out of it. We did so for extremely good reasons. First, because this Bill will extend the right of state surveillance of citizens' confidential information in an unprecedented way; secondly, because we felt it went beyond the purview and intention of the Bill, which is to deal with emergency terrorism and risks to national security; thirdly, because we considered that the issues involved run

1427
very deep in our tradition of civil liberty and that it was unsafe and unwise to give such vastly extended powers to non-terrorist situations, as the Bill provides.
I agree with other noble Lords that this is a real sop to Cerberus. Perhaps I may remind the House that the noble Lords, Lord Rooker and Lord McIntosh, said on no fewer than six occasions during debates on the Bill that it was quite unnecessary to have reference to proportionality on the face of the Bill because it was absolutely inherent in the Bill; it was inherent in the European Convention on Human Rights; and it was inherent in the Human Rights Act. They said that such reference was wholly unnecessary. Yet today, apparently the Official Opposition are content with the single change to the Bill as originally drafted; namely, to bring on to the face of it that which was inherent in any event.
l want quickly to refer to the extent to which I believe the Government spokesmen have never understood either their Bill or the amendment we passed a week ago. Only on Monday this week, David Blunkett stated in an article in The Times that the amendment we passed a week ago would prevent the police and security services investigating terrorist networks if,
"they are forbidden to look at anything that cannot immediately be proven to he linked to terrorist activity".
As your Lordships well know, the amendment we passed was of the mildest kind. Far from requiring immediate proof of linkage with terrorism, our amendment provides that the information can be requested or disclosed only if there is a suspicion that it may indirectly relate to a risk to national security. That is a vastly different proposition.
I ask the House why the Home Secretary would so misrepresent an amendment passed by the House. "Why?", I ask. Indeed, the noble Lord, Lord Rooker, in responding to the speech I made in proposing the amendment last Thursday, referred to information that was related to a terrorist threat. Again, our amendment does not limit disclosure to information related to a terrorist threat; it is information which may relate indirectly to the risk of a terrorist threat.
It is not good enough for this House to sit down under a Bill which goes way beyond its scope and exposes, I believe, well established civil rights to such a risk. We have had a lot of soft soap about public authorities acting responsibly and not engaging in bulk disclosure. Clause 17 of the Bill goes way beyond the public authorities which we normally associate with that phrase, which is why we tried to restrict the measure to the police and intelligence services. It goes way beyond that. As my noble friend Lord Thomas said, it goes to foreign public bodies which may operate in countries which may have standards vastly different from those to which we adhere in this country.
I shall not repeat all that was said but a week ago, but I believe that we should continue to resist the proposal and uphold the amendment which we passed last Thursday.
4 p.m.
Lord Rooker: My Lords, I shall be brief. First, I turn to what was said by the noble Earl, Lord Onslow, about the Inland Revenue. It may come as a surprise to the noble Earl to learn just how restricted the Revenue is—and rightly so. The current statutory position is that the Inland Revenue is able to pass on of its own volition information only where it relates to murder or treason. I can tell the House that there have been cases where a heroin dealer has declared heroin dealing to be the source of his income. The Inland Revenue is not able to pass on that information. Consider that position: from where does heroin originate? The vast majority of the drug comes from Afghanistan and a link could be made. That is the fact of the matter at the present time. I shall give way to the noble Lord, Lord Phillips, in a moment, if he insists.
We are unnecessarily fettering ourselves in dealing with the management of information which ordinary people may think is already passed on. Members of the public believe that one part of government would obviously pass on information concerning the tax affairs of a drug dealer to another part of government if the dealer chose to put that information on his tax return. But the fact is that we do not. That is the way that the rules operate at the present time.
Lord Phillips of Sudbury: My Lords, I am most grateful to the Minister. Surely he has been advised that the amendment that was passed last Thursday would allow the Inland Revenue to release exactly such information, along with a great deal more.
Lord Rooker: My Lords, I have been advised to the contrary. The amendments passed last Thursday make the Bill worse than it was when it came to this House from the other place.
Perhaps I may address a point made by the noble Lord, Lord Thomas, with regard to the final words of the amendment. Those words are,
"the making of the disclosure is proportionate to what is sought to be achieved by it".
What is sought to be achieved here certainly relates to investigations and criminal proceedings. It also means that there would be no disclosure of information on the off-chance. In other words, the wording offers a protection on the face of the Bill. I know that in court the lawyers might argue about exactly what is meant by the wording, but it means that there will be less opportunity and less possibility of information being disclosed on the off-chance. The information must have a purpose and that purpose is to be measured in a proportionate way as regards the inquiries being made.
I do not think that the wording constitutes soft soap or window dressing.
Lord Lester of Herne Hill: My Lords, if the wording is not window dressing, can I ask the Minister whether the purpose is to be terrorist-related or is it to be wider?
Lord Rooker: My Lords, that takes us back to first principles: we do not know. That is the whole point.

1429
When investigations are taking place, no linkages may have been made. That is the point where, I believe, there can be no meeting of minds between myself and the Liberal Democrat Peers. I cannot argue on their level simply because there is a lack of acceptance—from beliefs genuinely held; I accept that—of the fact that we cannot initially argue that there may be the possibility of a terrorist offence having been committed.
When stopping a vehicle or investigating a twitcher close to a military base, terrorism is a million miles away from the minds of those who make the initial investigation of what might be simply a breach of the peace or a misdemeanour. It is not possible to make the link; that is, to draft the Bill in such a way that such a possibility can be defined. I accept that there is nothing that I can say to Liberal Democrat Peers that will convince them of the case. To that extent, I admit that I have a failure on my hands.
The Earl of Onslow: My Lords, I thank the noble Lord for giving way. Let us return to the case of the twitcher. The twitcher is stopped while looking at an Indian ring-necked parakeet perched on the tail of an aeroplane. He has been stopped for a speeding offence. But something leads the policeman to believe that there is more involved than looking at the Indian ring-necked parakeet sitting on the tail of the Tiger Moth, or whatever. The policeman comes to the conclusion that a terrorist investigation should be carried out. Under those circumstances, the amendment passed on the previous occasion was valid.
However, if the policeman stops a twitcher on the basis, "I just want to look at this chap's record on the off-chance that he has been involved in drug smuggling", but has no grounds for harbouring such a suspicion, then it is to that circumstance that we object. We object to the ability to trawl just for fun. If the policeman thinks that an act of terrorism is taking place, then fair enough. His actions are absolutely right and no one would argue with that. However, noble Lords are arguing over the possibility of a trawl.
It is on that point that my mind is slightly attached to those on the Liberal Democrat Benches—but only temporarily, I hasten to add—and divorced from that of the noble Lord opposite.
Lord McIntosh of Haringey: My Lords, I was reluctant to interrupt the noble Earl in full flow, but we are operating under the rules of the Report stage. Interventions should be restricted to questions on matters of fact.
Lord Rooker: My Lords, to be honest, I shall not be able to convince the noble Earl either. However, I think that he destroyed his own case when he said that the investigators would trawl for the fun of it. We are not in that business. The authorities are not in that business. It is demeaning to use that kind of term because it does not strike at the heart of the seriousness of these matters.
1430
The Bill is a very precise piece of legislation. We are keeping as tight a control over the authorities as is possible. Noble Lords must understand that most of the information that can be exchanged under the terms of the clause is already disclosable in other circumstances. All the Bill seeks to do is to harmonise the circumstances under which disclosure can be made. It is not the case that the information cannot be disclosed. It can be disclosed, but in the Bill we seek to harmonise the situation.
In response to the noble Lord, Lord Elton, from memory I had thought that the question of the Diseases of Fish Act had been dealt with, but clearly not. That looked to the barriers to investigations in terms of legislation. We seek to ensure that the statutory barriers to disclosure do not prevent the authorities from the proper exercise of their functions.
It is not the case that all the gateways will be used, but we have looked at the statutory barriers to disclosure which, it should be pointed out, are not in place once criminal investigation proceedings are under way. We seek to marry the two. No new powers have been introduced in terms of disclosure; rather it is a question of harmonisation. Having listened to the debates in both Houses and having considered the concerns expressed, I do not think that it is either window dressing or soft soap to put on to the face of the Bill, so that it is in place in primary legislation—an Act of Parliament—that the disclosure must be proportionate. That is an important point.
It is no good to say that it would be taken for granted because it is in place under other legislation. Many elements that noble Lords have argued against could attract the counter argument that in any event the safeguards are already in place. Here I refer specifically to other parts of the Bill such as the retention of data. I have referred repeatedly to data protection legislation and human rights legislation. However, noble Lords have responded by saying, "Oh, that doesn't matter. We still want our amendment". I am dismissed when I put those arguments.
Here we are putting a form of words on to the face of the Bill to concrete the intention, made up-front for all to see, but it is dismissed as soft soap. I do not accept that.
Lord Phillips of Sudbury: My Lords, I thank the Minister for giving way. Perhaps I may say that you are being provocative.
Noble Lords: Order!
Lord Phillips of Sudbury: My Lords, I beg the pardon of the House. Twice the noble Lord has said that this is a harmonisation measure. However, is it not the case that the clause is entitled, "Extension of existing disclosure powers"? There is no reference to harmonisation.
Lord Rooker: My Lords, it is the case that many of the Acts listed under Schedule 4—we could have a further debate on the schedule if noble Lords so desired,

1431
although I suspect that that might be out of order—already allow for disclosure at the investigation stage. The point is that we are discussing the stage prior to investigation. To that end I cite the Utilities Act 2000, the Chemical Weapons Act 1996 and the Water Resources Act 1991.
The Bill seeks to harmonise the circumstances under which disclosures can be made. For that reason, I rest my case and ask noble Lords to accept the amendment.
Lord Thomas of Gresford: My Lords, the Minister probably did not intend to do so, but he gave the game away by referring to the current restrictions on the powers of the Inland Revenue to disclose information. The noble Lord commented, "and rightly so", to the fact that disclosure is restricted at the present time. Having made that concession, he proceeded to argue that the doors of the Inland Revenue should be thrown wide, that tax offices throughout the country and the Cumbernauld centre should be opened so that anyone will be able to walk in. When the Minister said, "I have been advised that these amendments make the Bill worse", noble Lords may have thought that he was referring to the gentleman in the Box. But yesterday, Mr Blunkett said:
"Our law enforcement agencies, the services that provide support to them and our security services have given us a clear understanding that if the Lords amendments are approved by the two Houses, they will simply not be able to do their job".—[Official Report. Commons, 12/12/01; col. 896.]
Later, at col. 921, in relation to another amendment, he said:
"The security services made it absolutely clear to me…that they would bring no cases forward if we used the normal court system and attempted to use public interest immunity".
Who is running this country? It looks as though the security services are advising the Minister, not the Home Office officials behind him.
My noble friend Lord Lester was right when he pointed out that, under the amendment of the noble Lord, Lord Rooker, it will be for the public authorities to make a judgment as to what is proportionate. Is disclosure to be made wantonly or ill advisedly, as the noble Lord, Lord Elton, said? How on earth are they to judge? When he introduced his amendment, the noble Lord, Lord Rooker, said that public authorities are not experts in terrorism. As they are not experts in terrorism, why, without any guidance from Parliament, is this burden of determining what is proportionate to what is asked of them being thrust upon them?
We regret on these Benches that the Conservative Front Bench has taken the meagre size 14 fly which has been whisked past their nose, but we are swimming on. I beg to seek the opinion of the House.
4.13 p.m.
On Question, Whether the said amendment (No. 5C) shall be agreed to?
Their Lordships divided: Contents, 66; Not-Contents, 157.

Division No. 1

CONTENTS

Addington, L.

Monson, L.

Avebury, L.

Newby, L.

Barker, B.

Nicholson of Winterbourne, B,

Beaumont of Whitley, L.

Northover, B.

Bradshaw, L.

Oakeshott of Sieagrove Bay, L.

Bridges, L.

Onslow, E.

Clement-Jones, L.

Park of Monmouth, B.

Cobbold, L.

Pearson of Rannoch, L.

Dahrendorf, L.

Phillips of Sudbury, L.

Dholakia, L.

Plumb, L.

Dundee, E.

Razzall, L.

Ezra, L.

Reay, L.

Falkland, V.

Redesdale, L.

Geraint, L.

Rees-Mogg, L.

Goodhart, L.

Rennard, L.

Greaves, L.

Rodgers of Quarry Bank, L.

Hamwee, B.

Roper, L. [Teller]

Harris of Richmond, B. [Teller]

Scott of Needham Market, B.

Holme of Cheltenham, L.

Sharman, L.

Hooson, L.

Sharp of Guildford, B.

Hussey of North Bradley, L.

Shutt of Greetland, L.

Jacobs, L.

Smith of Clifton, L.

Lester of Herne Hill, L.

Stoddart of Swondon, L.

Livsey of Talgarth, L.

Taverne, L.

Lucas, L.

Thomas of Gresford, L.

Mackie of Benshie, L.

Thomas of Swynnerton, L.

Maclennan of Rogart, L.

Thomas of Walliswoocl, B.

McNally, L.

Thomson of Monifieth, L.

Maddock, B.

Wallace of Saliaire, L.

Mar and Kellie, E.

Walmsley, B.

Methuen, L.

Watson of Richmond, L.

Miller of Chilthorne Domer, B.

Williams of Crosby, B.

Mishcon, L.

Willoughby de Broke, L

NOT-CONTENTS

Acton, L.

Christopher, L.

Ahmed, L.

Clarke of Hampstead, L.

Allenby of Megiddo, V.

Clinton-Davis, L.

Alli, L.

Colville of Culross, V.

Amos, B.

Condon, L.

Andrews, B.

Cooke of lslandreagh, L.

Archer of Sandwell, L.

Corbett of Castle Vale, L.

Ashley of Stoke, L.

Craig of Radley, L.

Ashton of Upholland, B.

Crawley, B.

Attenborough, L.

Currie of Marylebone, L

Bach, L.

Darcy de Knayth, B.

Barnett, L.

David, B.

Bassam of Brighton, L.

Davies of Coity, L.

Berkeley, L.

Davies of Oldham, L.

Bernstein of Craigweil, L.

Dean of Thomton-le-Fylde, B.

Bhatia, L.

Desai, L.

Billingham, B.

Dormand of Easington, L.

Blackstone, B.

Dubs, L.

Blackwell, L.

Elder, L.

Bledisloe, V.

Emerton, B.

Borrie, L.

Evans of Parkside, L.

Boston of Faversham, L.

Evans of Temple Guiting, L.

Brennan, L.

Evans of Watford, L.

Brett, L.

Falconer of Thoroton, L.

Brightman, L.

Farrington of Ribbleton, B.

Brooke of Alverthorpe, L.

Faulkner of Worcester, L.

Brookman, L.

Filkin, L.

Brooks of Tremorfa, L.

Fyfe of Fairfield, L.

Bruce of Donington, L.

Gale, B.

Burlison, L.

Gibson of Market Rasen. B.

Campbell-Savours, L.

Gilbert, L.

Carter, L. [Teller]

Gladwin of Clee, L.

Castle of Blackburn, B.

Golding,B.

Chalfont, L.

Goldsmith, L.

Chandos, V.

Gordon of Strathblane, L.

Chorley, L.

Goudie, B.

1433

Gould of Potternewton, B.

Patel, L.

Graham of Edmonton, L.

Paul, L.

Greengross, B.

Pendry, L.

Grenfell, L.

Peston, L.

Grocott. L.

Pitkeathley, B.

Hardy of Wath, L.

Plant of Highfield, L.

Hattersley, L.

Puttnam, L.

Hayman, B.

Radice, L.

Healey, L.

Ramsay of Cartvale, B.

Hilton of Eggardon, B.

Randall of St. Budeaux, L.

Hollis of Heigham, B.

Rea, L.

Howells of St. Davids, B.

Rendell of Babergh, B.

Howie of Troon, L.

Renwick of Clifton, L.

Hoyle. L.

Richard, L.

Hughes of Woodside, L.

Rooker, L.

Hunt of Kings Heath, L.

Sainsbury of Turville, L.

Irvine of Lairg, L. (Lord

Scotland of Asthal, B.

Cliancelhr)

Sewel, L.

Jay of Paddington, B.

Sheldon, L.

Jones, L.

Simon, V.

King of West Bromwich, L.

Slim, V.

Lea of Crondall, L.

Stallard, L.

Levy, L.

Stone of Blackheath, L.

Lipsey, L.

Strabolgi, L.

Listowel, E.

Strange, B.

Lockwood, B.

Symons of Vernham Dean, B.

Macdonald of Tradeston, L.

Taylor of Blackburn, L.

Macfarlane of Bearsden, L.

Tenby, V.

McFarlane of Llandaff, B.

Tomlinson, L.

Mclntosh of Haringey, L.

Turner of Camden, B.

[Teller]

Varley, L.

Mclntosh of Hudnall, B.

Wakefield, Bp.

MacKenzie of Culkein, L.

Walker of Doncaster, L.

Mallalieu, B.

Weatherill, L.

Marsh. L.

Wedderbum of Charlton, L.

Masham of Ilton, B.

Whitaker, B.

Massey of Darwen, B.

Whitty, L.

Merlyn-Rees. L.

Wilkins, B.

Milner of Leeds, L.

Williams of Elvel, L.

Mitchell, L.

Williams of Mosty n, L. (Lord

Morgan, L.

Privy Seat)

Morgan of Huyton, B.

Williamson of Horton, L.

Morris of Aberavon, L.

Woolmer of Leeds, L.

Nicol, B.

Wright of Richmond, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.22 p.m.
The Lord Chancellor (Lord Irvine of Lairg): The Question is that this House do not insist on their Amendment No. 5 to which the Commons have disagreed but do agree Amendment No. 5B in lieu thereof.
On Question, Motion agreed to.

LORDS AMENDMENT
6 Clause 17, page 7, line 17, at end insert—
"( ) Information may only be disclosed voluntarily under this section if the public authority concerned believes or suspects that the disclosure may be of information which directly or indirectly relates to a risk to national security or to a terrorist.
( ) Any request by a relevant public authority for disclosure of information under this section may only be made if it believes or suspects that that information may relate directly or indirectly to any risk to national security or to a terrorist.
( ) "Relevant public authority" has the same meaning as in Chapter 2 of Part 1 of the Regulation of Investigatory Powers Act 2000 (c. 23) save that there is added thereto the Financial Services Authority and the Director of Public Prosecutions.
1434
( ) "Terrorist" has the same meaning as in Part 4 of this Act."
The Commons disagreed to this amendment for the following reason:
6A Because it is not appropriate to limit the power conferred by this clause in the manner proposed by the amendment.
Lord Rooker: My Lords, I beg to move that the House do not insist on their Amendment No. 6 to which the Commons have disagreed for their reason numbered 6A. I spoke to that when I spoke to Amendment No. 5.
Moved, That the House do not insist on their Amendment No. 6 to which the Commons have disagreed for their reason numbered 6A.— (Lord Rooker.)
[Amendment No. 6B, as an amendment to the Motion, not moved.]
On Question, Motion agreed to.

LORDS AMENDMENT
8 Clause 19, page 9, line 18, at end insert—
"( ) Information may only be disclosed voluntarily under this section if the Commissioners of Inland Revenue or the Commissioners of Customs and Excise believe or suspect that the disclosure may be of information which directly or indirectly relates to a risk to national security or to a terrorist.
( ) Any request by a relevant public authority for disclosure of information under this section may only be made if it believes or suspects that that information may relate directly or indirectly to any risk to national security or to a terrorist.
( ) "Relevant public authority" has the same meaning as in Chapter 2 of Part 1 of the Regulation of Investigatory Powers Act 2000 (c. 23) save that there is added thereto the Financial Services Authority and the Director of Public Prosecutions.
( ) "Terrorist" has the same meaning as in Part 4 of this Act."
The Commons disagreed to this amendment for the following reason:
8A Because it is not appropriate to limit the power conferred by this clause in the manner proposed by the amendment.
Lord Rooker: My Lords, I beg to move that this House do not insist on their Amendment No. 8 to which the Commons have disagreed for their reason numbered 8A, but do propose Amendment No. 8B in lieu thereof—
8B Page 9, line 18, at end insert—
"( ) No disclosure of information to which this section applies shall be made by virtue of this section unless the person by whom the disclosure is made is satisfied that the making of the disclosure is proportionate to what is sought to be achieved by it."
The noble Lord said: My Lords, I have already spoken to this amendment with Amendment No. 5. I beg to move.
Moved, That the House do not insist on their Amendment No. 8 to which the Commons have disagreed for their reason numbered 8A, but do agree with the Commons in their Amendment No. 8B in lieu thereof.—(Lord Rooker.)
[Amendment No. 8C, as an amendment to the Motion, not moved.]
On Question, Motion agreed to.

LORDS AMENDMENTS
21 Leave out Clause 30.
22 Clause 31. page 16, line 21. leave out subsection (2).
The Commons agreed to these amendments, but have made the following amendment instead of the words so left out of the Bill:
22A After Clause 35, insert the following new Clause—
"SPECIAL IMMIGRATION APPEALS COMMISSION
At the end of section 1 of the Special Immigration Appeals Commission Act 1997 (c. 68) insert—
"(3) The Commission shall be a superior court of record.
(4) A decision of the Commission shall be questioned in legal proceedings only in accordance with—
(a) section 7, or
(b) section 31(6)(a) of the Anti-terrorism, Crime and Security Act 2001 (derogation).""
The Attorney-General (Lord Goldsmith): My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 22A.
Two amendments were made on Report relating to judicial scrutiny of actions by the Secretary of State and the Special Immigration Appeals Commission in connection with the certification and detention powers. The clause on "exclusion of legal proceedings" was omitted, as was subsection (2) of the next clause, which confined an initial challenge to a derogation matter to SIAC.
These amendments—Amendments Nos. 21 and 22 on the Marshalled List were accepted by another place yesterday, but in their place the Commons have substituted their own amendments, Amendment No. 22A and Amendments Nos. 22B to 22F on the Marshalled List.
We have had many detailed debates in this House about the appropriate form of judicial scrutiny for the powers in Part 4 of the Bill, during which we in the Government explained our position at some length. Before turning to the amendments presented to this House by another place, I ask the House to recall why SIAC was set up in 1997; namely, to deal with national security cases of the kind it will be considering under the Bill.
In its judgment on the Chahal case in 1996, the European Court of Human Rights stated in clear terms that the traditional remedies of judicial review and habeas corpus did not provide an individual with adequate protection in national security cases. SIAC was constructed specifically to remove those inadequacies. It does this as follows.
First, and most importantly, the legislation creating SIAC provides a mechanism by which both SIAC and a person working on behalf of the appellant—called a "special advocate"—can have full access to the security information which the Secretary of State has seen and relied on in forming his view about the national threat posed by the appellant. That is something that is not possible under traditional judicial review.
1436
Secondly, the membership of SIAC includes a High Court judge to give it the appropriate judicial standing. It also has a senior immigration judge and a lay member. It thus brings a range of relevant expertise to bear on any case.
Thirdly, the Bill provides that when hearing an appeal or review, SIAC will be required to take account of all relevant information, including information which comes to light after the date of the Secretary of State's decision. This ability to take account of new information does not apply to judicial review.
For all the above reasons we have consistently argued that SIAC is a more than adequate body to determine matters under Part 4. And since there is an existing route of challenge to SIAC's decisions on a point of law to the Court of Appeal and to the House of Lords, we have argued that those existing routes of challenge should be used for SIAC's decisions under the Bill.
As is clear from what I have said on previous occasions, I believe that there are, therefore, powerful arguments in support of our position that providing for traditional judicial review of decisions of SIAC would bring no benefits. I indicated my view that it would simply cause confusion as well as adding costs and delay for no good reason. So I am convinced that the policy intention reflected in the Bill as originally drafted was correct—that is, to confine legal challenges to a tried and tested bespoke system of justice which SIAC and the higher Appeal Courts provide. However, I accept that we should do more in the Bill, as we have in debate, to emphasise why this is the case.
That is what the amendments in lieu do. They have been devised following discussions that we have had with the noble and learned Lord, Lord Donaldson of Lymington—for whose assistance I want to express my thanks—and some discussions with the noble and learned Lord, Lord Mayhew of Twysden.
Under these amendments, the routes for judicial challenge of decisions under Part 4 would be channelled in the same way as set out in the Bill as introduced to Parliament, but in addition the amendments make SIAC a superior court of record. The title of "superior court of record" has previously been bestowed on certain bodies, such as the National Industrial Relations Council and the Employment Appeal Tribunal. Having that status means that the decisions of such a body are a matter of public record and they are binding on any inferior courts. In those respects it puts them on a par with the Administrative Court.
Noble Lords will recall that when I last dealt with this matter, I indicated that by virtue of agreement between the Lord Chancellor and the Lord Chief Justice the judges who would be able to hear SIAC cases would be the same judges as those who sit in the Administrative Court—indeed all of them. That puts SIAC on a par with the Administrative Court.

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Given the high quality of membership of SIAC, which includes a High Court judge, it is entirely right that SIAC should be conferred with that status as well. It helps to underline the point that a traditional judicial review of decisions of SIAC would simply be inappropriate. It would be a case of one High Court judge sitting in judgment on a body which has three members, including a High Court judge from exactly the same court. I suggest that what is important is that if there is to be an appeal it should be to more senior judges who sit in the Court of Appeal.
The amendments in lieu also describe what we are doing in more accurate terms. It states the manner in which decisions may be challenged—namely, a decision of the Secretary of State may be challenged only in SIAC, and a decision of SIAC may be challenged only by an appeal to the Court of Appeal—rather than referring to the exclusion of legal proceedings. The Bill does not exclude legal proceedings; it does not exclude judicial scrutiny. It sets out where the judicial scrutiny is to take place. I accept that it may be that the terminology previously used in the Bill has confused the picture, so we are grateful for suggestions on how to put that right and to make the position clearer.
I hope that your Lordships will find these amendments to be an acceptable response to the concerns expressed in earlier debates in this House, and will adopt them on that basis.
Moved, That the House do agree with the Commons in their Amendment No. 22A.—[Lord Goldsmith.]
4.30 p.m.
Lord Goodhart Lord Goodhart moved, as an amendment to Commons Amendment No. 22A, Amendment No. 22AA:
222A At end insert—
"(5) Rules made under section 5 shall make provision for access to such advice, assistance and representation (including the provision of translation and interpretation services) as the interests of justice requires in connection with proceeding before the Commission, to be funded as part of the Criminal Defence Service established by the Access to Justice Act 1999 (c. 22)."
The noble Lord said: My Lords, in moving Amendment No. 22AA, I shall speak also to government Amendments Nos. 22A and 22B to 22F.
Amendment No. 22AA has been tabled largely for reassurance. I hope and indeed expect that the Attorney-General will confirm that legal aid and interpretation services will be made available to detainees on appeals and reviews before SIAC and on subsequent appeals.
The matter of substance is what is in the government amendments. A week ago today, your Lordships' House, by a large majority, which included several Members of the Government Benches, rejected the government proposals that were to exclude the right of detainees to apply to the High Court for judicial review of decisions of the Home Secretary and SIAC itself under Part 4 of the Bill. Now the Government have put
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forward a new amendment that makes SIAC a superior court of record, but continues in effect to exclude judicial review.
I believe that these amendments are mere window-dressing. The distinction between courts of record and other courts is obscure. It seems to me that historically courts of record were those whose orders were inscribed on parchment after they had been made. At present the only effective difference is that courts of record can sentence people for contempt and other courts cannot.
The effect of being a superior court of record, as opposed to a mere court of record, is a little more significant. The law recognises the principle that one superior court of record cannot review the acts of another. By making SIAC a superior court of record, the powers of the High Court to review its activities are necessarily excluded. The provisions of Amendment No. 22B, relating to the questioning of the actions of the Secretary of State only in proceedings before SIAC or on appeal from SIAC, therefore are superfluous because that is the automatic effect of making SIAC a superior court of record.
Amendment No. 22C declares that the derogation matters are the exclusive reserve of SIAC and cannot be questioned by judicial review. Therefore, it restores in that respect the exclusion of judicial review. In the real world the government amendments contain nothing that improves the position of the Bill as it was when it first came to your Lordships' House. Yesterday in the other place the Home Secretary was asked by Mr Robert Marshall-Andrews what was the point of making SIAC a court of record. He replied:
"It establishes … the position, the status and the record, which can be carried forward".—[Official Report, Commons, 12/12/01; col. 919.]
I regard that as a fairly accurate summary of the effect of Amendment No. 22A in that it is essentially meaningless.
In fact, it makes matters a little worse because the effect of Amendment No. 22A is to exclude judicial review, not only from proceedings under this Bill, but also from the existing jurisdiction of SIAC. SIAC will be a superior court of record for the whole of its jurisdiction, which, as already explained, will prevent a review of its decisions by the High Court, whether they are in reference to its existing jurisdiction or to its new jurisdiction under this Bill.
I shall not go into the reasons why judicial review should be retained. Last Thursday they were fully argued, notably by the noble and learned Lords, Lord Mayhew of Twysden and Lord Donaldson of Lymington. Those arguments persuaded your Lordships to vote to retain judicial review over the proceedings of SIAC. I believe that there is no reason to go through those arguments again because they have not changed. Nothing in this amendment represents a real concession or changes the force of the argument that your Lordships heard a week ago. I regret that the noble and learned Lords, Lord Mayhew and Lord Donaldson, and the Conservative

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Front Bench have accepted what I believe is an entirely illusory olive branch offered to them by the Government. I beg to move.
Moved, as an amendment to Commons Amendment No. 22A, Amendment No. 22AA.—(Lord Goodlicirt.)
The Principal Deputy Chairman of Committees (Lord Brabazon of Tara): My Lords, the original Question was that this House do agree with the Commons in their Amendment No. 22A inserted into the Bill in place of words left out of the Bill by Amendment Nos. 21 and 22 to which the Commons have agreed. Since when an amendment has been moved to insert the words as printed. The Question is that Amendment No. 22AA be agreed to.
Lord Thomas of Gresford: My Lords, what appears to be so daft about these procedures is that they apply only to people who come to this country without a right of abode and without any right of entry. So these provisions do not apply to citizens of the Irish Republic, nor do they apply to citizens of other countries who have a right of abode in this country. That means that if any such persons are suspected of being terrorists they will not be dealt with under this immigration procedure; the only way in which they can be dealt with is through the normal court procedures of charge and trial.
As secret information will be involved, the usual procedures that take place in courts will be employed; namely, that public interest immunity will be claimed; that the proceedings will be held in camera; and that there will be screens or methods, such as videos, employed to ensure that the identity of witnesses who give evidence is not known. That will happen with anybody except that limited class of people who are in this country but who have no right of abode here.
The procedures distort the SIAC system, which was brought into being for the purposes of immigration, not for the purposes of detention without trial and the apprehension of terrorists. That is what is wrong with them. Because of that distortion, we have the ridiculous situation of the commission being bumped up to be a court of record, equivalent to the High Court, thereby preventing judicial review by a mere piece of window dressing. I respectfully submit that the provisions are a disgrace.
Lord Donaldson of Lymington: My Lords, in a sense I have to declare an interest in the amendments because the noble and learned Lord the Attorney-General was kind enough to engage in wide ranging and long discussions on the problem that had arisen. As I saw it, the problem was that unless we could do something new, we were faced with a highly damaging conflict between the two Houses. If that conflict was necessary, we would have it, but it should be avoided if possible.
As I understand it, the background is that each House was convinced that its approach to the problem was the only way forward and that, if only the other House properly understood what it was at, it would
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realise that the proposals met all its legitimate aims. Neither House was prepared to compromise because any compromise, by the nature of all compromises, would involve one or both Houses giving up some aspects of the matter which they regarded as of fundamental importance.
Something different was needed—I call it an accommodation, although that may not be the right word—whereby the whole matter was re-jigged in a form that met the full requirements of both Houses.
To explain that a little more, let me outline briefly the attitude of the two Houses. This House was strongly of the opinion that there could be no ouster of the judicial review jurisdiction of the High Court, which is and has been for centuries the ultimate constitutional safeguard against the abuse of power by those in authority. It was certainly not acceptable that, for the first time in history, judicial powers of review should be conferred on a court of inferior jurisdiction. I do not use the word inferior" in any pejorative sense—I am merely referring to a court that is not a superior court of record.
Secondly, this House thought that that refusal did not conflict with the Government's aim of retaining the involvement of SIAC if the actions of the Secretary of State were called into question. If the actions of SIAC were called into question. the High Court would, without doubt, have used the special procedures contained in the 1997 Act to safeguard the interests of the security services arid of national security.
Lord Goldsmith: My Lords—
4.45 p.m.
Lord Donaldson of Lymington: My Lords, the noble and learned Lord should not get too excited. I am describing the view of the House, not his view. If SIAC overstepped the mark, it could and would be dealt with using special procedures by the High Court.
The Government's approach was different. I pardon the infelicity of what they were saying, but their approach was that no court other than SIAC could be relied on to preserve the secrecy of intelligence material provided by the security services if it became concerned with issues other than law. Secondly, they expressed the view that SIAC must be free from all supervision by the High Court, and therefore judicial review must be ousted. That relates to the security issue; the Government were not merely favouring SIAC. The Government's final point was that any other approach could cost lives. It may not be likely, but it could happen.
Against those two conflicting approaches, the noble and learned Lord the Attorney-General and I looked to see what building blocks were available to produce an accommodation. First, there was the building block that no superior court of record can be judicially reviewed. I add anecdotally that the late Mr Justice Megarry was minded to do that when I was president of the National Industrial Relations Court. I rang him up and pointed out that the issue was rather important and he could not do it. He fully accepted that.

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Secondly, the High Court is not the only superior court of record. The noble and learned Lord the Attorney-General has mentioned the NIRC and the Employment Appeals Tribunal. I think that I am right in saying that he could also have mentioned the Restrictive Practices Court.
The question then arose: why not make SIAC a superior court of record? Like the High Court, it would be subject to all rulings, in all respects of any jurisdiction that it was exercising, by the Court of Appeal. The High Court, in its ordinary jurisdiction makes rulings that the Court of Appeal can look into and overrule. There is no problem with that. So why not make SIAC a superior court of record? I should not like that to happen on a wide scale. It is an exceptional action, but it is justifiable in this case because of its similarity to the administrative division of the High Court. After all, by arrangements of which we were told earlier, it will always be presided over by not only a High Court judge, but a specialist judge appointed to the administrative court who is skilled in and familiar with judicial review.
It has to be said straightaway that a superior court of record does not automatically achieve judicial review jurisdiction, still less does it become part of the High Court, as I heard suggested on a televised programme of the proceedings of the other place.
The next building block is to confer a limited—I stress that word—judicial review jurisdiction on SIAC in order that it might exercise that jurisdiction in respect of the Secretary of State or anybody else who was concerned. That produces concurrent jurisdiction between the High Court and SIAC.
Given that situation, I see no reason why Parliament should not express the view that, of the two concurrent jurisdictions, one should be concerned with SIAC matters. That is what has been done.
Using those building blocks, we arrive at the situation in which SIAC shall be a superior court of record, given both an appellate and a judicial review jurisdiction. As between SIAC and the High Court, SIAC shall deal with matters arising within its own sphere, as judged by its constitution and the Acts relating to it. SIAC shall be answerable to the Court of Appeal under Section 7 of its own special Act and, in relation to derogation, under Section 31(6)(a) of this Act. That seems to meet the requirements of both Houses without either House having to surrender its strongly held view.
I should mention one other matter. There was some criticism in the other place about the fact that SIAC's appellate jurisdiction would he limited to questions of law. However, as all questions of judicial review on appeal involve questions of law, there will be an unfettered right of appeal in that respect. As for true fact. in my view—although perhaps not in the view of some litigants—one of the glories of the English law is that the idea of a question of law is extremely elastic. For a start, it includes the question of whether there is no evidence of fact; and it may go rather further than that if there is, for example, only a scintilla of evidence.
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Your Lordships see where the courts would be going if they thought that there was an injustice that they were being prevented from righting. I have no problem with that.
There is another reason why I have no problem with the proposals. Although I have not done the research that I should perhaps have done, experience teaches me that, when it is a second appeal, there are a number of statutory provisions that limit rights of appeal to questions of law. In this case, the Secretary of State will make what is essentially the original trial decision, after which there may be an appeal to SIAC. The appeal from SIAC to the Court of Appeal is a second appeal. There is nothing very remarkable about that.
I hope that the accommodation approach that I have just outlined will also help to address the point which was raised on Report by the noble Lord, Lord Lester, on satisfying the European Court of Human Rights, and the Council of Europe if it is involved, that we are not departing unnecessarily from the principles that it seeks to support.
Finally, I hope that I shall be acquitted of being a window dresser. I have never been very good at it.
Lord Clinton-Davis: My Lords, on the last occasion when this matter was debated by this House, I agreed with the noble and learned Lord, Lord Donaldson, and I took the view that the Government should make material concessions. I believe that they have done so. I thank those who were responsible for achieving that. It is not the first time that I have agreed with the noble and learned Lord. He has the misfortune of knowing that I agree with him also on this occasion.
I think that it would be churlish not to thank the Home Secretary for listening very carefully to what we had to say. It is not that we want to score a success against the Government. I am concerned about the state of the law, and I know that the noble and learned Lord, Lord Donaldson—who speaks from a rather superior position—is concerned about that too. I thought that there was a terrible anomaly in the current position. I therefore end where I began, by thanking the Government for carefully taking note of what was said in this Chamber and acting accordingly.
Lord Mayhew of Twysden: My Lords, I think that the whole House will be grateful for that expression of helpful opinion by the noble Lord, Lord Clinton-Davis, who spoke very passionately a few days ago on Report. I think that the whole House will also think, as I do. that it was very helpful of the noble and learned Lord, Lord Donaldson, to try so constructively to find an accommodation. I supported him while he was engaged in the process and I am very glad to support him now, for whatever value that may have.
I am also extremely glad that, in consequence, the Government have moved on the issue of judicial review. The question is whether, in their own amendments which were passed last night in another place, they have moved far enough to satisfy the declared objections to former Clauses 30 and 31, which this House removed a few days ago.

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What were those objections? I can summarise them very briefly. First, SIAC was not a court but a commission. Secondly, as a commission, it did not have all the power that the High Court would usually have to submit a certification by the Home Secretary or a derogation to judicial review; on one view, it had no power to do that. Thirdly, any irregularity in the commission's procedures could not on complaint be subjected to judicial review, as it could not review itself. Fourthly, to oust judicial review from the exercise of any authority's power that is usually susceptible to judicial review was a bad precedent to set ourselves, and one that was all too likely to be followed in future. Finally, the defence of the country in the present emergency revealed no need for such provision.
How do these amendments measure up? Your Lordships have a very heavy time ahead of you today and tonight, and I do not think that it is your Lordships' wish that I should seek to improve on what has been said by the proposal's principal author and progenitor, the learned and noble Lord, Lord Donaldson. I am very content to adopt, with respect, his comments on his building blocks and the accommodation that they achieve. It was a very helpful intervention and I shall not seek to diminish its beneficial effect by delaying your Lordships.
Lord Lester of Herne Hill: My Lords, the noble and learned Lord, Lord Donaldson, was kind enough to mention my previous comments. The Attorney-General and the House will know that I have consistently said that I am in favour of the Special Immigration Appeals Commission as an independent and impartial tribunal established by law. I have also taken the position, which I believe is the position in law, that the Special Immigration Appeals Commission is bound by the Human Rights Act 1998 to ensure a fair procedure under Article 6 of the convention, as is the Court of Appeal.
It seems that the Home Secretary made a very important statement yesterday evening, but I should like the Attorney-General's confirmation—although I see that his mind is on another matter—that those comments represent the Government's position. The Home Secretary said:
"SIAC as a superior court of record and administrative court … will provide the equivalent of judicial review"—[Official Report, Commons. 12/12/01; col. 919]
Does that mean that SIAC will have all the powers that are held by a normal judicial review court? As I understand it, it was on that basis that the Home Secretary went on to say that Law Lords and "ex-Law Lords"—which I take to be a reference to the noble and learned Lord, Lord Donaldson—were and are satisfied with the proposal.
If it is correct that the Government accept that SIAC—which should be renamed a special immigration appeal tribunal, because that is what it is—is to have all the powers of a judicial review court, and given the Human Rights Act and all its consequences, the position has changed profoundly.
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As my noble friend Lord Goodhart indicated, in one respect the amendment now before us removes normal judicial review further than when we last considered the matter. It now applies to deportation orders under the 1997 Act as well as detention and certification. I understand why: it is to produce consistency which would otherwise not be there.
I shall be grateful, therefore, if the Attorney-General will confirm that what the Home Secretary states and what the noble and learned Lord, Lord Donaldson, understands to be the position, really is the position. That will make a considerable difference to my attitude to these matters.
Finally, if my noble friend will forgive me, it follows from what I say that I do not now agree—nor have I agreed during these debates—with what my noble friend Lord Thomas of Gresford said. We look at this through different eyes, perhaps because of our previous legal background. But as a public lawyer I am not as affronted as he is by SIAC; on the contrary.
5 p.m.
Lord Corbett of Castle Vale: My Lords, first, I echo what was said by my noble friend Lord Clinton-Davis. I thank the Attorney-General and the Minister for riot only listening to the voices throughout this Chamber on judicial review, but also for listening to the voices in the other place. And not simply listening, but also finding a way in which to respond.
Secondly, I hope noble Lords on the Liberal Democrat Benches will think carefully about this matter. The accommodation explained by the noble and learned Lord, Lord Donaldson of Lymington, means that no one loses in either this place or the other place. It is an accommodation and an honourable accommodation. The Government should be thanked for it.
Earl Russell: My Lords, speaking from the Liberal Democrat Benches, but for the moment only for myself, I respect the principle of accommodation and I respect the need for it. The question is how far 'the accommodation will be effective.
When I spoke on this issue at Second Reading and in Committee, I had two specific concerns. One was that just expressed by the noble and learned Lord, Lord Mayhew of Twysden: that if we had an ouster of judicial review in one place, we would soon get a precedent which would be regularly repeated; in fact the Government would have set up a young lady of Spain, ready to do it not once, but again, and again and again.
On that we may possibly regard what happened as a draw, which is an honourable result. But the trouble with draws is that they tend to be followed by replays. If, when the noble and learned Lord the Attorney-General replies, he can give us an assurance that this particular draw is one that is not expected to be followed by a replay, I would find that extremely helpful.

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My other anxiety, to which the Attorney-General has not yet fully given his mind, is the restrictive nature of the appeal allowed under SIAC procedure as limited by Clause 34(3) of the original Bill—the strict confining of the appeal to the matter of certification; the inability to look at the asylum claim in the round. I noticed in today's The Tunes Mr Ruud Lubbers, of the UN High Commission for Refugees, expressed considerable concern about the growing climate of hostility to asylum seekers throughout the world. That is something of which this country cannot be innocent. So to set up an appeal system which is not able to examine the asylum claim and is therefore unable to examine the proportionality of the certificate, may restrict justice.
I hope that the Attorney-General can tell me, before anyone has to take a decision, whether that elevation of the status of SIAC empowers it to consider material facts other than those in the certificate. I know he will say that it concerns only people who have no right to be in this country. But this is the most unreliable part of the whole of the decision-making machinery of the British Government—and that is saying something. So decisions taken about asylum should not be taken without the possibility of review, and the circumstances which give rise to the asylum claim should be looked at at the same time as the circumstances which give rise to the certificate. What conclusion that should lead to in any specific case one cannot say. But if the noble and learned Lord were able to help me on that point, I would find that very material and be extremely grateful.
Lord Brennan: My Lords, To show particular restraint as to one aspect of this Bill does not involve any lack of resolve in supporting its general objectives. The specific restraint shown by the Government on this occasion is to preserve what many lawyers will feel to be the need for the rule of law in every aspect of national life, including security.
During the course of these debates noble Lords have shown considerable patience and understanding towards lawyers. I shall continue to show that patience towards my learned friends on the Liberal Benches, but not I am afraid on this occasion any understanding. This change in the Bill is welcome for three reasons, which go beyond the rather technical analysis—important though that is—that we have—heard thus far.
The first is that judicial review, as the noble and learned Lord, Lord Donaldson, said, is the ultimate constitutional safeguard between the people and the state and should always be so. That is for our nation. Secondly, by the end of this year or early next year all member nations of the United Nations will report to the Security Council on the steps that they have taken to combat terrorism. This Bill will be looked at as an exemplar for other countries to copy. It is essential that those countries see in it and recognise the value of judicial review as a constitutional and justice safeguard in their systems.
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I cannot emphasise that too much. Travelling the world as we lawyers do, we see that it is to this country that countries look to produce just law. This Bill, when it becomes an Act, will be pored over by countries throughout the world.
The last reason why this matter is important beyond the current debate is that it gives protection. In the Second World War, in the United States, noble Lords will remember the internment of any Japanese citizens of America who were Japanese by ancestry rather than by birth. The Supreme Court upheld the internment. But many years later they were given justice. I should like to read a sentence from the judge who acknowledged what had gone wrong. He said,
"This case stands as a caution that in times of distress and international hostility and antagonisms, the shield of military necessity and national security must not be used to protect governmental action from close scrutiny and accountability [at all times]".
This amendment preserves that accountability. For those three reasons I commend the government amendments. Of course it is important for both our Houses to get this Bill through. That is the administrative task. But it is a much greater aspiration that it produces good law. These amendments help that aspiration.
Baroness Buscombe: My Lords, I shall be extremely brief. On behalf of Her Majesty's Official Opposition, I am grateful to the noble and learned Lord the Attorney-General for clarifying the position and for bringing forward their Amendment No. 22A. I am also extremely grateful to the noble and learned Lord, Lord Donaldson of Lymington, and my noble and learned friend Lord Mayhew of Twysden for assisting the Government in developing consensus on this difficult and important matter.
Also, I agree with the noble and learned Lord, Lord Donaldson of Lymington, that we view this approach as an exceptional action and one that we would not wish to entertain other than on that basis. It gives me pleasure to support the government amendment.
Lord Goldsmith: My Lords, I shall deal first with Amendment No. 22AA in the name of the noble Lord, Lord Goodhart, which is an amendment to my Amendment No. 22A. That amendment seeks to put into the Bill particular words relating to legal assistance. Section 5 of the Special Immigration Appeals Commission Act 1997 already provides that,
"Rules under this section shall provide that an appellant has the right to be legally represented in any proceedings before the Commission or an appeal under section 2".
So there is no difficulty. The right to legal advice and assistance is already there.
This Bill also provides that Section 81 of the Immigration and Asylum Act 1999, which relates to grants to voluntary organisations to assist persons who have rights of appeal under that Act, shall be treated as including a reference to suspected international terrorists. The Bill also provides that SIAC may adopt the rules as it considers necessary. I have referred to that before. Therefore, I can assure the

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noble Lord that a detained individual will have adequate access to legal advice. I can further assure him that adequate arrangements will be made to ensure that the detained individual is fully aware of the disclosable case against him, as indeed is the case in other immigration-related appeals.
I turn to the specific reference that the noble Lord proposes as regards the criminal defence service. I suggest that that is an inappropriate proposed reference for this reason. The Access to Justice Act 1999 identifies the purpose of the criminal defence service as securing that individuals involved in criminal investigations or criminal proceedings have access to such advice, assistance and representation of their interests. Criminal proceedings are defined in the Act and would not include the SIAC proceedings.
The power to fund the criminal defence service rests not with my right honourable friend the Home Secretary, but with the noble and learned Lord The Lord Chancellor. I hope that the assurances that I have been able to give will at least satisfy the noble Lord as to the substance of his proposed amendment. It does not appear to us that there is need for any of it to appear on the face of the Bill.
I turn briefly to Amendment No. 22A. I may have misunderstood the noble Earl, Lord Russell. There is no question of a replay in the sense of another place disagreeing with this amendment because it has already been accepted there and brought forward to us. If the amendment is now accepted, that is the end of the matter.
I am very grateful to those noble Lords who spoke in this debate, particularly my noble friends Lord Clinton-Davis, Lord Corbett and Lord Brennan. I acknowledge their remarks and thanks to my right honourable friend the Home Secretary. I have already given—but I do so again—my thanks to the noble and learned Lord, Lord Donaldson of Lymington. He has clearly explained why this is a justifiable amendment to make and why it is a sensible way of achieving the ends that both Houses want.
I come now to the dissenting voices of the noble Lords, Lord Goodhart and Lord Thomas of Gresford. The noble Lord, Lord Lester, said that he did not agree with the noble Lord, Lord Thomas of Gresford. I have not agreed with the noble Lord, Lord Thomas of Gresford, throughout the debate on this clause. He has consistently taken the view that it is somehow possible to use the public interest immunity route in order to deal with the problem. I have consistently said that that is not a way for getting the matter before the court.
5.15 p.m.
Lord Thomas of Gresford: My Lords, is not that the way in which people who have a right of abode in this country or citizens of the Irish Republic will have to be dealt with because they will not come under this procedure?
Lord Goldsmith: My Lords, this procedure does not apply to them, so the issue does not arise. There is no
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point in continuing the debate with the noble Lord, Lord Thomas of Gresford, because we will continue to disagree. I am grateful that the noble Lord, Lord Lester, has made clear his agreement, as he has done previously, with the fundamental position that SIAC is appropriate.
Lord Lester of Herne Hill: My Lords, will the Attorney-General deal with the specific question that I put to him, which will determine my attitude? Is there any difference between what is now proposed and judicial review?
Lord Goldsmith: My Lords, the noble Lord must he patient. I am coming to that. The noble Lord, Lord Goodhart, described it as window dressing and not of the real world. The real world is the one that we were in where it was recognised by noble Lords in this House, with very few exceptions, that separate judicial review was important for one reason only, and that is the symbolism and precedent that it would give rise to. The noble and learned Lord, Lord Mayhew of Twysden, and others have spoken of how that precedent is not there. I never thought that there was an issue. I always believed that we were sending a clear message that there was to be judicial scrutiny of these decisions, but I was in a minority on that matter. I am grateful to noble Lords who have made the point. I make it very clear that no precedent is being set. There is no statement by this country that we are against judicial scrutiny, but quite the opposite. We are saying that these decisions, difficult and sensitive though they are, will be subject to full review by a body which is a superior court of record.
I turn now to the point made by the noble Lord, Lord Lester of Herne Hill. I have also said in the past that I could not see areas where something could be done under judicial review which could not be done by SIAC. I invited noble Lords to point out where I was wrong. That remains my position. I believe that SIAC will be able to take everything into account which would have been considered on judicial review and more. I have made the point before that SIAC will be looking at the situation at the date of the hearing and not simply at the date of the certificate. Therefore, it is not simply a case, as the noble Earl, Lord Russell, asked, about looking at the grounds in the certificate because SIAC is entitled to take account of matters which have taken place subsequently. Given that and the fact that there is a clear right of appeal to the Court of Appeal on a question of law, I hope that I have adequately confirmed that there is nothing that could be done on judicial review by way of dealing with the certificate of the Secretary of State that SIAC would be unable to do.
Lord Goodhart: My Lords, as regards our own amendment, I am happy to accept what the noble and learned Lord, the Attorney-General, has said. We shall not press it. Turning to the substantive amendment and the group of Government amendments, we are not persuaded by what the noble and learned Lord has said. I am interested and

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somewhat surprised to note that the Conservative Front Bench in the other place abstained on the vote last night and it is now proposing to vote with the Government. In that case we do not see any point in seeking to divide the House, but the fact that we will not do so is not to be taken as representing any agreement by us to the proposals which have been put forward. I beg leave to withdraw Amendment No. 22AA.
Amendment No. 22AA, as an amendment to Amendment No. 22A, by leave, withdrawn.
On Question, Motion agreed to.

COMMONS AMENDMENTS
The Commons have also made the following consequential Amendments to the Bill:
22B Clause 21, page 11, line 21, at end insert—
"( ) A decision of the Secretary of State in connection with certification under this section may be questioned in legal proceedings only under section 25 or 26.
( ) An action of the Secretary of State taken wholly or partly in reliance on a certificate under this section may be questioned in legal proceedings only by or in the course of proceedings under—
(a) section 25 or 26, or
(b) section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68) (appeal)."
22C Page 16, line 23, leave out from beginning to "and" in line 24 and insert—
"(3) A derogation matter may be questioned in legal proceedings only before the Special Immigration Appeals Commission;"
22D Page 16, line 28, leave out "subsection (2)" and insert "this subsection"
22E Page 18, line 21, at end insert "or"
22F Page 18, line 25, leave out paragraph (d).
Lord Goldsmith: My Lords, I beg to move that the House do agree with the Commons in their consequential amendments, Amendments Nos. 22B to 22F.
Moved, That this House do agree with the Commons in their consequential amendments, Amendments Nos. 22B to 22F.—(Lord Goldsmith.)
On Question, Motion agreed to.

LORDS AMENDMENT
23 Leave out Clause 39,
The Commons disagreed to this amendment but proposed the following amendment to the words so restored to the Bill:
23A Clause 39, page 20, line 16, at end insert—
"( ) The Attorney General may issue guidance as to conduct in respect of which he will not institute proceedings for an offence under Part 3 of the Public Order Act 1986, or consent to the institution of such proceedings, on the grounds that the conduct consists of the legitimate expression of religious belief."
Lord Goldsmith: My Lords, I beg to move that the House do not insist on their Amendment No. 23, to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 23A to the words so restored to the Bill.
We return to the issue of expanding the existing law on incitement to racial hatred to cover incitement to religious hatred. Noble Lords will recall that this House voted to remove Clause 39 from the Bill and the Commons have disagreed with that amendment and agreed an amendment to restore Clause 39 as amended by the government amendment regarding guidance.
The Government remain convinced that it is necessary to extend the law to cover incitement to religious hatred. We believe that it is necessary to do that now to ensure that those who have sought to stir up racial hatred, exploiting the tension since September 11th, are not allowed to do so. We believe that it is time to end the anomaly under which some religious groups are covered by incitement to hatred provisions when others are not. We believe that the clauses proposed by the Government are the right way to create these offences because they build on the tried and tested—and not abused—incitement to racial hatred offence. We believe that it is time for this House to send the message that it does not condone this kind of vile hatred.
I shall turn in a moment to the question of guidance. Today I have placed in the Printed Paper Office draft guidance which I intend to publish, with the agreement of the Director of Public Prosecutions, as soon as this clause passes into law. Before I discuss that matter, I shall deal with the following point. We do not accept that this conduct can simply be dealt with under the law relating to other offences. Of course, some cases, depending on the facts, will involve conduct which could amount to incitement to religious hatred but could also amount to another offence. The choice of charge will be for the prosecutor. However, there is a gap. Public order and harassment offences in particular, such as using threatening or abusive or insulting words or behaviour towards another person with intent to cause that person to believe that immediate violence will be used against him, or with intent to provoke immediate violence, require conduct which is directed at a specific individual—that was the point I sought to make the other day—and, therefore, do not bite on the general distribution of literature such as on a website or by leaflets which are distributed.
It has been said that the ingredients of the offence would not criminalise legitimate freedom of expression; that is, criticism, even robust criticism, of religion or religious discussion and debate. The criminal threshold has not been abused in the Companion incitement to racial hatred cases, and it would not be for religious hatred. In order to provide some further reassurance on that, I agreed to provide guidance.
Before I turn to the guidance I make two specific preliminary points. First, the guidance is intended to clarify factors which I would consider when exercising

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the power that I have under statute to consent, or to decline to consent, to a prosecution under Part 3 of the Public Order Act 1986. That is an existing power to consent which applies at the moment to the offence of racial hatred as it does to a number of other offences. The intention has always been that if the offence of incitement to religious hatred were included, it would be subject to the same regime; that is, a regime where there would have to be consent by the Attorney-General. But—this is important—the guidance does not alter the ingredients of the offence. It is not within my power to alter the ingredients of the offence. That is important as it was suggested in another place that this was an administrative power which allowed the Attorney-General to determine or change the law. 'The power already exists for me to consent to prosecutions. The guidance clarifies what factors I would normally consider when making that decision. However, I certainly cannot make anything criminal which is not criminal under the statute as passed by Parliament—if it is—and as interpreted by the courts.
The second important preliminary observation is one that I hope noble Lords will readily recognise. I also hope that noble Lords will readily recognise that as a prosecutor, with a responsibility to prosecute in the public interest, I cannot make sweeping or categorical statements that might apply to circumstances I cannot presently envisage. That would fetter a discretion in a way that noble Lords would not expect that any Attorney-General would want to do. The difficulty is that there is always a possibility of something that one cannot envisage at the moment occurring in the future. In looking at the guidance which I have produced in draft, I hope that noble Lords will recognise that point and kindly bear it in mind. Notwithstanding that, I hope that noble Lords will still find the draft guidance helpful and will agree that it meets at least the particular concern which has been expressed; namely, that this offence might somehow be used to stifle legitimate expression of religious belief or even criticism of religious belief.
First, the guidance sets out the procedures. It emphasises that any decision for consent would be a decision taken personally by the Attorney-General, or, in certain cases, by my deputy, the Solicitor-General. It refers to police investigations and the necessity for specialist prosecutors to be involved from the CPS central facilities. It identifies the necessary ingredients of the offence, each of which would have to be proved in order for a prosecution to succeed, and each of which must, therefore, be considered. It makes the important point, in accordance with general practice, that no prosecution would be brought unless there was a realistic prospect of conviction; that is, that the evidential test is satisfied, and also that, in my opinion, it is in the public interest to prosecute. Both those matters have to be satisfied. It seeks to give some guidance on some of the elements. I refer, for example, to hatred, which is an important ingredient. The guidance states in paragraph 5.4:
"'Hatred' is a strong word and, as a matter of common sense, it is likely to be held by the courts to mean something stronger than dislike, contempt or ridicule".
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The guidance also deals with the matter to which I referred earlier in relation to legitimate expression. Paragraph 5.12 states:
"Given the high threshold tests set by these offences it is not easy to foresee circumstances in which legitimate methods of religious debate will justify a prosecution. So, expressions of, or indeed criticism of, one's own or another's religious beliefs or practices, even when robustly expressed, or satirising or poking fun at or making comical representations of religion, people who are religious or who follow particular religions are unlikely to offend the statute. Legitimate expressions of religious belief which, taken within their context, time and the wider national and international arena, could not be construed as anything other than the expression of a religious tenet are, similarly, not likely to amount to an offence of incitement to religious hatred".
The guidance was produced in the hope that it would give further reassurance as regards the additional safeguard in the Act and as regards the ingredients being such that legitimate expression of religious belief, or criticism of others' religious belief, would not be criminalised.
Moved, That the House do not insist on their Amendment No. 23, to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 23A to the words so restored to the Bill.—(Lord Goldsmith.)
5.30 p.m.
23B Lord Campbell of Alloway rose to move, as an amendment to the Motion that this House do not insist on their Amendment No. 23 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 23A in lieu thereof, leave out the words after "House" and insert "do insist on their Amendment No. 23".
The noble Lord said: My Lords, I move this amendment to reaffirm that, as was decided on Report, Clause 39, which seeks to criminalise incitement to religious hatred, be left out of the Bill.
On Report, I spoke only to Amendment No. 23A. The numbers are so confusing that I shall call that the Attorney-General's guidance amendment. It was heavily criticised by the noble and learned Lord, Lord Mackay of Clashfern, the noble Lord, Lord Neill of Bladen, myself and many other of your Lordships. No satisfactory answer appeared to be given at the time and on reading the Official Report, none materialised. There is no justification for such an unprecedented procedure.
When I moved the amendment to omit Clause 39 and it was carried, the Attorney-General's guidance amendment had not been divided upon. That was never divided upon because it could not exist if Clause 39, which it was proposed to amend, were left out of the Bill. It was the decision of the House by a substantial majority of members of all three main political parties and of Cross-Benchers—after a long, good-humoured and constructive debate—that Clause 39 be omitted.
It is not my intention to reopen that debate but I shall make three salient points. First, what is the hurry when the sense of the House was that there is a need for further comprehensive consultation and discussion?

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What is the connection with terrorists in an antiterrorism Bill? What is wrong with the law as it stands, if it were enforced?
Secondly, there was a flood of opposition from all three monotheist religions; religious bodies including the Free Presbyterian Manse, eight Islamic institutions, the Christian Institute and Liberty. A veritable mountain of unsolicited correspondence expressed in one way or another the belief that Clause 39 could do more than harm than good, cause much unintended mischief and inhibit freedom of speech and religion.
The third salient point was made, inevitably, by the noble Earl, Lord Russell. I wholly agree that the proposed reach across, as the noble Earl termed it, to racial hatred is dangerous and ill conceived in a single statutory framework dealing with both racial and religious hatred. Religion is a matter of opinion and freedom of expression and belief could be compromised. In that context, the anomalies to which the Attorney-General just referred are not understood.
At the end of Report stage your Lordships—by excluding religious hatred offences and retaining religiously aggravated offences—devised a new structure to resolve the essence of the problem as identified by the right reverend Prelate the Bishop of Birmingham and accepted by the noble Lord, Lord Rooker, on 15th October. The right reverend Prelate said that in this country, Islam is generally perceived as an Asian religion. Therefore, attacks on Islam are used as a cover for incitement to religious hatred against people of Asian origin.
The House achieved a viable structure and on Third Reading, I sought in vain to persuade the Government to accept it. Such remains my respectful endeavour.
If the record of enforcement of racial hatred offences under extant law were to increase from the 47 cases over 15 years to which the right reverend Prelate the Bishop of Oxford referred, what would be the need for a new Bill? I beg to move.
Moved, as an amendment to the Motion that the House do not insist on their Amendment No. 23 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 23A in lieu thereof, leave out the words after "House" and insert "do insist on their Amendment No. 23".—(Lord Campbell of Alloway.)
Lord Dixon-Smith: My Lords, we return to a theme to which we have devoted considerable time. The House will be relieved to hear that I will be suitably brief.
There is a fundamental difference of opinion between noble Lords on these Benches, Liberal Democrats, Cross-Benchers and many government Members. Even in another place last night a considerable number—I can give the precise number if need be—voted against the inclusion of this clause in the Bill.
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I am extremely grateful to the noble and learned Lord the Attorney-General for taking the trouble to ensure that a copy of the guidance notes—they relate to the provisions that would come into force if the proposal were agreed to—was available to all of us. However, the difficulty is that the guidance notes and the amendment do not address the fundamental division of view between us. That division of view is not about the content of the provisions or the way in which problems should be dealt with; it is about whether such provisions should be in the Bill at all.
I do not intend to repeat the ground that we have gone over so many times in that regard. This is a piece of emergency legislation; it is an anti-terror Bill with a few connotations added to it. The inclusion of religious hatred offences is not appropriate in a Bill of that sort. So far as I am concerned, that is the beginning and the end of the argument. The mills of this House grind slowly and they grind exceeding fine. That is superb in its way. I do not propose to waste more time on this matter—much time has already been spent on it. I simply say that we for our part will support my noble friend Lord Campbell of Alloway.
Lord Dholakia: My Lords, we on this side of the House insist on the amendment that was considered on Report and which proposed leaving out Clause 39. It is for that reason that we support the amendment moved by the noble Lord, Lord Campbell of Alloway. There is a fundamental difference between what the Government are proposing and what we believe is the case. The amendment to the words proposed by the Commons does not meet our concern that provisions concerning incitement to religious hatred are inappropriate as part of the Anti-terrorism, Crime and Security Bill.
We were aware on Report that the Attorney-General intended to issue guidance on matters on which he will not issue proceedings on the ground that the conduct consists of the legitimate expression of belief. I am grateful to the noble and learned Lord for supplying such guidance but it makes little difference to the arguments that we advanced previously. The chances of him succeeding on the basis of the guidelines are very limited. It will make very little difference to the cases that come before the courts. I do not for a moment doubt the wisdom and the wise counsel of the noble and learned Lord, but I question whether his department is qualified to interpret cultural and religious beliefs that are held by the many diverse religions that are part of our multi-religious society in the United Kingdom.
If it is any consolation to the Government, I make it clear that we do not dispute the purpose behind the legislation. We would argue—the number of letters and telephone calls that most of us have received confirms this—that the matter requires detailed consideration and should take into account not only incitement but also matters involving religious discrimination. Creating new offences will never on its own protect members of racial or religious groups from violence and abuse.

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I invite noble Lords to look at the record of incitement to racial hatred, which was cited by the noble Lord, Lord Campbell of Alloway. In the past 12 years, only 42 defendants have been successfully prosecuted, and in 1999 only three prosecutions succeeded. We kid ourselves if we believe that once the Bill is enacted, we will round up those who perpetrate religious hatred. Extremists have successfully circumvented the incitement to racial hatred legislation. Ask the police, the CPS and the legal profession—they will confirm that. In reality, the guidelines from the noble and learned Lord the Attorney-General are not going to solve the problem. So why the hurry?
I had a quick glance at the debate in the other place last night. Again, the arguments that were advanced by the Minister in the Commons were no different from those that were advanced on Report. Of course there have been attacks on the Muslim community since September 11th, but attacks have also been perpetrated against other racial and religious groups. I congratulate our police forces, which have adopted a high-profile presence and prevented many ugly situations. But what is stopping the Minister from using the Public Order Act or harassment legislation? I know that the noble and learned Lord dealt with that matter, but he has not given a satisfactory answer. That legislation is on the statute book and could deal with many of the situations that were referred to on Report.
Let me quote one of the noble and learned Lord's colleagues—Diane Abbott, who is the Labour MP for Hackney North and Stoke Newington. In an intervention in the other place, she said: "My hon. Friend"—that is, the Minister in the other place—
"has been challenged about what the clause is doing in a Bill on terrorism and up to now she has not given us a satisfactory response".
She went on to suggest the motivation in that regard. She said:
"The clause has been tacked on as a sop to certain sections of Muslim opinion that have long wanted such protection. It is an anomaly and it should not be in the Bill; wrong clause, wrong Bill. The Lords were right to strike it down".—[Official Report, Commons, 12/12/01; col. 934.]
I hope that we shall do so again.
We do not doubt that there are gaps in the legislation on ethnicity and religion. Equally, fundamental gaps exclude the Muslim community from discrimination on religious grounds. Events in Bradford, Burnley and Oldham have demonstrated why it is important to look at the subject in its totality; the Government should not simply pick and mix what suits them.
We insist on what we said previously in your Lordship's House. The Government would have our full support if such legislation were separate from the anti-terrorism legislation. A law is more effective if it commands the respect of all our citizens.
5.45 p.m.
The Lord Bishop of Southwark: My Lords, it would not be very helpful if I rehearsed once more why I
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believe that all of the clauses in Part 5, including Clause 39, should remain in the Bill. I simply say that I believe that the outlawing of incitement to religious hatred should be a basic protection that is given to people of all faiths, particularly those in minority groups. The draft guidance, particularly paragraph 5.3, helpfully clarifies the offence.
Noble Lords have been patient on previous occasions in listening to my arguments; the majority vote then went the other way, as it might well do this evening. I hope that noble Lords will not support Amendment No. 23B. The noble Lord, Lord Campbell of Alloway, quoted my friend the right reverend Prelate the Bishop of Birmingham who suggested that an attack on Islam is an attack on Asian people. That may often be the case, but it is not always so. On Report, I referred to the way in which white racist groups were using attacks on Islam—and on Sikhs and Hindus—to divide minority ethnic communities. The perception of mainline Islamic leaders is that Islamophobia is a real factor in British society, and that it has intensified since September 11th.
Many noble Lords on all sides of the House argued that religious hatred and religious discrimination should be tackled thoroughly and tackled soon. I do not hide from noble Lords the fact that those mainline faith leaders—of all faiths—who have argued long and hard for many years for just such legislation will take some convincing of the fact that refusal to support the legislation on the basis that better legislation could be produced in future might not be a way in which to avoid dealing with a difficult and delicate issue. That issue will be of increasing importance in years to come. A bird in the hand is worth many promises of innumerable and beautiful birds in future bushes.
I hope that Part 5 of the Bill, in its entirety—
Lord Maclennan of Rogart: My Lords, in an earlier speech, the right reverend Prelate made those points and asserted that he speaks for what he calls mainline leaders of all faiths. I hope that since he made those assertions he has learnt from the leaders of a number of Christian Churches in Scotland that they profoundly disagree with him and do not believe that he has the right to claim such authority.
The Lord Bishop of Southwark: My Lords, the authority that I claim is simply my own. That applies to every Member of this House. The members of the House of Bishops may not agree with it, and that may be the case in relation to other noble Lords.
Lord Goldsmith: My Lords, my understanding is that this part of the legislation will not apply in Scotland.
The Lord Bishop of Southwark: My Lords, nevertheless this is a serious intervention and I wish to deal with the point. For the past 10 years I have represented the Church of England on the Inner Cities Religious Council. That council is a bridge body between the mainline Churches and main faiths in

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Britain and the Department of Environment, Food and Rural Affairs. I suggest that over those 10 years the people elected to those bodies have represented better than any other body the main feeling of the faiths in this country, including religious denominations. I am also the co-chair of the Inter Faith Network for Britain, including Scotland. We meet regularly with leaders from all the main faiths in this country. Before taking part in this debate, I checked with all those faith leaders to ensure that they thoroughly support the legislation before your Lordships' House. I said that in an earlier debate.
I hope that Part 5 of the Bill survives in its entirety, including Clause 39. I hope that tonight it survives the machinations of votes in this House and in the other place. If, however, at the end of the day the legislation on religiously aggravated offences alone remains as part of the Bill, that at least will be a modest gain and will provide something on which we may build in the years to come. However, I hope that Parliament will do better than that this evening and also preserve the outlawing of incitement to religious hatred.
Therefore, I shall vote against Amendment No. 23B, although I shall probably be in a minority. But noble Lords who intend to vote for it are honourable people who, I trust, will honour their words which have been placed on record during the various stages of the Bill. I trust that a new Bill concerning religious discrimination will be brought before your Lordships' House next year. There will indeed be support for such legislation, as promised by Conservative, Liberal Democrat, Labour and Cross Benches in this House.
Lord Rooker: My Lords, in relation to what the right reverend Prelate says, for the avoidance of doubt there is no promise of such a Bill. There is no prospect of any legislation on this issue in this Parliament. I must make that clear. Such a promise has not been made. It may have been implied in various speeches, but I can assure the right reverend Prelate that, so far as concerns the Government, there will no space for such legislation in this Parliament.
The Lord Bishop of Southwark: My Lords, that is helpful clarification. I believe that it intensifies my earlier expressed view that a bird in the hand is worth two promised birds in bushes. Voices from all sides of the House have indicated or anticipated that such a thought-out Bill would be introduced within the next 12 months or so if we did not deal with the issue this evening. I am not totally surprised that that may not be so. Therefore, we may have to wait many years before we ascertain the cash value of some of the promises of support that have been made for such a Bill. Certainly, tonight or in the future we on these Benches would wish to continue to play an active and constructive part in all such deliberations.
Lord Elton: My Lords, whether a bird in the hand is worth more than two in the bush depends very much on what the bird does when it is in one's hand. The point that I want to make to the right reverend Prelate
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is that those of us who urge caution at this stage are not against legislation but we are against bad legislation. We were advised 48 hours ago, I believe, that we should repose our confidence in the guidelines that were to be brought out. I have them in my hand.
Your Lordships will remember the concern expressed that this legislation should not be used maliciously to persecute people who were evincing legitimate religious views and silencing them. We were told that the guidelines were a protection against that. Presumably the complaint by the person who wishes to harass the person making the genuine religious point is made to the police. In paragraph 3.1 of the guidelines we find that:
"Certain steps can be taken by the police, for example to investigate, to arrest and even to charge, without the need to obtain prior consent from the Attorney General".
Therefore, the guidelines give no protection whatever from that type of harassment.
I have had the guidelines in my hand only for four or five minutes. They cause me to remember that I was in the Home Office for three years during which time an intelligent section of the staff was busy making a permanent search for an interpretation and legal definition of the word "religion". They did so without success. I believe that that has persisted long since. In paragraph 5.6 we find that:
"Some have speculated whether particular named groups could be said to be defined by a religious belief".
I leave out some words. The paragraph then goes on to say that,
"a difficult decision may have to be taken by the Attorney General when deciding whether to grant consent. Such cases will have to he considered on their merits as and when they arise".
In other words, it will be subjective.
I wish to demonstrate only that there may be a myriad of points which we cannot possibly discover in the process we are now going through. That is what I am trying to say to the right reverend Prelate. I am not opposed to the protection that he wants to give, but I do not believe that this is necessarily or, indeed, likely to be the right means.
My final point is that we were given an emotive and touching example by the noble Lord, Lord Rooker, I believe at Report stage, of an unfortunate Muslim woman who had the horrific experience of being harassed on the grounds of her religion. But I find in paragraph 5.5 that,
"victims of the conduct, against whom the accused intends to stir up hatred or against whom hatred is likely to be stirred up, must be a group defined by their religious or lack of religious belief".
Therefore, it seems that here again there is a lacuna in a document which, if it were to be dealt with in Committee in this House, might emerge effective but, I submit, will not do so in the process in which we are engaged. I believe that we should remove this clause as proposed.
Lord Lester of Herne Hill: My Lords, I should have much more sympathy for the speech of the right reverend Prelate if, after the Law Commission recommended it many years ago, he and his colleagues had decided that the offence of blasphemy should be abolished. Had that been the position, it would have made it much easier to consider this offence.
The Lord Bishop of Southwark: My Lords, I thank the noble Lord for giving way. I made clear on Report that, if this legislation saw the statute book, we on these Benches would be more than ready to see the disappearance of the law on blasphemy.
Lord Lester of Herne Hill: My Lords, I am grateful to the right reverend Prelate. The difficulty about that is that the Minister indicated just now that he does not anticipate that there will be any further legislation in the foreseeable future.
That leads me to my second point. If there really were an emergency or a pressing need for this legislation in the context of anti-terrorism, one could be perfectly sure that the Government would bring forward legislation early after Christmas in order to deal with it. But that is not the position for the following main reason. In so far as we are dealing with victim-orientated crimes, the existing criminal law is more than adequate to cope, as I believe the Attorney-General recognises. Such crimes are covered by Sections 4 and 4A of the Public Order Act and various sections of the Protection from Harassment Act. As the noble Lord, Lord Campbell of Alloway, indicated, the addition of religiously aggravated hatred offences to this Bill will, in some cases, greatly increase, for example, the maximum period of imprisonment. Therefore, as I understand the position, it is only where there is a lack of an individual victim—the Attorney-General gave the leaflet example—that a gap in the criminal law arises.
The third point that I want to raise concerns the guidelines. We are grateful to the Attorney-General for burning the midnight oil and producing the guidelines. I am bound to say with great respect that they beg more questions than they answer. I want to mention two or three examples to begin with, having had them in my hand only for about quarter of an hour. First, the heading to the guidelines includes the words,
"The expression of … religious beliefs".
It does not deal, as it is meant to, with lack of religious beliefs. Secondly, it refers to the expression of "legitimate religious beliefs". For the life of me, I do not understand the difference between a legitimate religious belief and an illegitimate religious belief. Thirdly, it does not make clear in this context the right to freedom of expression guaranteed by Article 10 of the European Convention on Human Rights. The European Court has said over and again that freedom of expression protects not only the views with which most reasonable people will agree, but also those that shock, offend or disturb any section of society.
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If one takes that as a guide, it gives a totally different impression from this document, which uses language which I am bound to say leaves more of a question mark in my mind about whether free speech would be effectively protected than otherwise. That is no criticism of the Attorney-General, who had the impossible task of trying to produce, in a hurry, guidance that will comply with Article 10 of the convention. With great respect, I do not believe that he has been able to do that. That is a further reason for wanting to abide by our previous decision.
6 p.m.
The Lord Bishop of Wakefield: My Lords, the views of my noble friend the Bishop of Southwark are highly respected among his colleagues within the Church of England, in other denominations and other faiths. However, not all members of the Church of England, other denominations or other faiths agree with everything he says. Nor would he expect them to. He said that we on these Benches are not under any kind of Whip. That is also true.
I agree with many of the comments he made tonight to your Lordships' House. However, listening to the debate and having read the earlier debates in Hansard, it seems to me that, although the intentions of the Government are genuine and well intended, the issues which surround these religious matters are of such sensitivity and complexity that they merit much more careful teasing out.
The Minister made the point that there may be no time in the present Session of Parliament for any such further legislation. Nevertheless, I agree with the noble Lord, Lord Elton: better that than for legislation to be rushed through. Although I hesitate to disagree with my colleague on these Benches on this issue, I feel I must vote against the Government.
Lord Renwick of Clifton: My Lords, I do not want to prolong your Lordships' debate, and I do not speak often in your Lordships' House. However, in common with many people outside this House, I have found it frankly incredible that the noble Lord, Lord Campbell of Alloway, and Opposition spokesmen should suggest, or appear to suggest, that there may be no connection between incitement to religious hatred and terrorism. The purpose of banning incitement to religious hatred obviously is to afford protection for minority communities in this country, including the Islamic community. However, it is also a matter of fact that over the past decade and more, a number of extremely radical Islamic spokesmen, mainly clerics, have sought refuge in this country as asylum seekers. They have been granted political asylum, notwithstanding the fact—indeed, because of it—that they were wanted for terrorist offences, and still are, in Jordan, Egypt and Saudi Arabia. Those same spokesmen, who in some cases are avowed Al'Qaeda sympathisers, have used our hospitality to preach Holy War; to seek to raise finance for Holy War; and to recruit people for Holy War.

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I find that state of affairs deeply disquieting, as do most people outside this House. So, clearly, do our colleagues in the other place. It is because I believe that there is a connection between incitement to religious hatred and terrorism that I intend to support the inclusion of Clause 39 in the Bill. I hope that others will also do so.
Lord Goldsmith: My Lords, I start by acknowledging that it is a good thing that the House has left in the Bill religiously aggravated offences, an extended definition of racial hatred and the extension of the penalty. I was the one who referred emotively on Report to the example of the young woman. The noble Lord, Lord Rooker, should not be accused of that. Unless your Lordships accepted, as they did, after I had made that point that there can be religiously aggravated offences, the additional feature of a religious element in that case could not have been taken into account in there being a new offence.
However, despite that, I remain of the view that there will be a gap in our protection for vulnerable parts of our community if we do not include incitement to religious hatred. I know the mood of the House. I shall deal briefly with the main points raised in the shortest of summaries. The noble Lord, Lord Campbell of Alloway, says that the guidance which I have provided is a strange precedent. I have tried to assist noble Lords and another place by indicating certain matters in relation to the offence. It is not a case of the law being set by the Attorney-General. I have made that extremely clear, as does the guidance.
Publishing guidance as to the basis upon which prosecutors will act is not unprecedented. What may be unusual is to include the reference in the Bill. However, again, I am unrepentant about that. Secondly, what is the hurry? The hurry is clear. There is a connection with September 11th. Anyone who has read the appendix to the report of the Select Committee on Home Affairs from another place will see a number of incidents—I referred to some on Report—which show that since September 11th attacks on particular parts of the community have increased. My noble friend the Minister indicates that the choice is now or certainly not soon in order to deal with this.
To argue that there are defects in the Bill without proposing changes undermines the argument that the Bill is wrong as it stands. There is a gap. The noble Lord, Lord Lester, was good enough to acknowledge that the sort of thing with which we cannot deal under existing public order offences which are victim orientated is offensive literature. I have seen some of that—noble Lords may have seen it—directed against particular groups, some on websites. If it is directed against Jews or Sikhs it is criminal. If it is directed against Muslims we cannot prosecute it as incitement to racial hatred.
Lord McNally: My Lords, I thank the noble and learned Lord for giving way. The Minister indicated that this is Hobson's choice. It is a government
1462
decision not to bring forward legislation. However, as we have proved with the tobacco advertising Bill, there are other ways to bring legislation to this House. In answer to the right reverend Prelate we would bring forward legislation on these matters and defy the Government to frustrate it.
Lord Goldsmith: My Lords, I am grateful to the noble Lord for what he says. As noble Lords have rightly said, we have spent time on this provision. From our point of view we have spent time trying to explain why the offence as it stands, using exactly the same formula as for incitement to racial hatred, would not give rise to the problems to which some noble Lords have referred. I am of the view that those who have been concerned about the expression of one's own religious belief and criticism of someone else's religious belief should be—and I hope will be—reassured by what is said in this House and in the guidance. That was the reason.
At the end of the day noble Lords have a choice. I can do nothing better than remind noble Lords of what was said by the right reverend Prelate the Bishop of Southwark. He said that this is an opportunity to provide basic protection for all. The figures may well demonstrate that it will not be an offence which will be prosecuted every day or every week up and down the country. Noble Lords may think that that is a reassurance. It is an opportunity to give a clear message; to give a protection now; and to put a stop to the kind of pernicious message which can incite and result in attacks on the train or in any part of the community. Therefore, I hope that noble Lords will not support the amendment of the noble Lord, Lord Campbell of Alloway.
Lord Campbell of Alloway: My Lords, I thank all noble Lords who have spoken on the amendment and, in particular, the right reverend Prelate the Bishop of Southwark. I want him to understand that I am most assuredly anxious not to cause him any offence at all. I simply say that when he says, "Oh, incitement to religious hatred is offensive, therefore criminalise it", that lacks logic. It lacks common sense. I wanted to say that without causing any offence. I am grateful to the other right reverend Prelate for his views, which set the scales more evenly balanced on the spiritual Benches.
On Report I called the Attorney-General's guidelines amendment a fudge. Having seen it, it is a meretricious fudge. It is an absolute nonsense. It is not of the slightest use to anyone. It states what one can pick up from any down town solicitor if one asked him where he would stand on the general principles of a prosecution. In the guidance, what is the nature of the conduct? Paragraph 5.3 states:
"A person does not commit an offence of incitement to religious hatred unless:
(1)) He uses threatening or abusive or insulting words or behaviour",
and so on. There is a packet of offences in the criminal law dealing with that. Then if one has the religiously aggravated situation, which your Lordships were good enough to forge on to the system, one has seven years.

1463
What is wrong with that? Why do we have to fiddle around with an issue which, as the right reverend Prelate said, is enormously sensitive?
6.14 p.m.
The Deputy Speaker (Viscount Allenby of Megiddo): My Lords, the original Question was that the House do not insist on their Amendment No. 23 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 23A to the words so restored to the Bill. Since when an amendment has been moved to leave out the words after "House" and to insert "do insist on its Amendment No. 23" to which the Commons have disagreed. The Question is that this amendment be agreed to.
Their Lordships divided: Contents, 234; Not-Contents, 121.

Division No. 2

CONTENTS

Aberdare, L.

Craigavon, V.

Ackner, L.

Crickhowell, L.

Addington, L.

Cumberlege, B.

Alton of Liverpool. L.

Dahrendorf, L.

Ampthill, L.

Darcy de Knayth, B.

Anelay of St Johns, B.

Deedes,L.

Arran, E.

Denham, L.

Ashcroft, L.

Dholakia, L.

Ashdown of Norton-sub-

Dixon-Smith, L.

Hamdon, L.

Donaldson of Lymington, L.

Astor, V.

Eccles of Moulton, B.

Astor of Hever, L.

Elles, B.

Attlee, E.

Elliott of Morpeth, L.

Baker of Dorking, L.

Elton, L.

Barker, B.

Emerton, B.

Beaumont of Whitley, L.

Ezra, L.

Biffen.L.

Falkland, V.

Blackwell, L.

Feldman, L.

Blaker, L.

Ferrers, E.

Bledisloe, V.

Flather, B.

Boardman, L.

Fookes, B.

Boothroyd, B.

Forsyth of Drumlean, L.

Bowness, L.

Fraser of Carmyllie, L.

Brabazon of Tara, L.

Freeman, L.

Bradshaw, L.

Gardner of Parkes, B.

Bridgeman, V.

Geddes, L.

Brigstocke, B.

Glenarthur, L.

Brooke of Sutton Mandeville, L.

Glentoran, L.

Brougham and Vaux, L.

Goodhart, L.

Burnham, L.

Goschen, V.

Burns, L.

Greaves, L.

Buscombe, B.

Greengross, B.

Byford, B.

Greenway, L.

Caithness, E.

Hamwee, B.

Campbell of Alloway, L.

Hanham, B.

Campbell of Croy, L.

Harris of Richmond, B.

Carlisle of Bucklow, L.

Haslam, L.

Carnegy of Lour, B.

Hayhoe, L.

Carr of Hadley, L.

Henley, L.

Carrington, L.

Higgins, L.

Cavendish of Furness, L.

Hodgson of Astley Abbotts, L.

Chadlington, L.

Hogg, B.

Chalfont, L.

Holdemess, L.

Chalker of Wallasey, B.

Holme of Cheltenham, L.

Chan, L.

Home, E.

Clement-Jones, L.

Hooper, B.

Cobbold, L.

Howarth of Breckland, B.

Coe, L.

Howe, E.

Cope of Berkeley, L. [Teller]

Howe of Aberavon, L.

Craig of Radley, L.

Howe of Idlicote, B.

1464

Howell of Guildford, L.

Peston, L.

Hunt of Wirral, L.

Phillips of Sudbury, L

Hurd of Westwell, L.

Platt of Writtle, B.

Jacobs, L.

Plumb, L.

Jeger, B.

Plummer of St. Marylebone, L.

Jellicoe, E.

Quinton, L.

Jenkin of Roding, L.

Rawlings.B.

Jopling, L.

Razzall, L.

Kennedy of The Shaws, B.

Rea, L.

Kimball, L.

Reay, L.

King of Bridgwater, L.

Redesdale, L.

Kingsland, L.

Rees, L.

Kirkham, L.

Rees-Mogg, L.

Knight of Collingtree, B.

Rennard. L.

Laing of Dunphail, L.

Renton, L.

Laird, L.

Renton of Mount Harry, L.

Lamont of Lerwick, L.

Roberts of Conwy, L.

Lane of Horsell, L.

Rodgers of Quarry Bank, L.

Lang of Monkton, L.

Roper, L. [Teller]

Lester of Herne Hill, L.

Rotherwick, L.

Linklater of Butterstone, B.

Russell, E.

Listowel, E.

Saatchi, L.

Liverpool, E.

St John of Fawsley, L.

Livsey of Talgarth, L.

Saltoun of Abernethy. Ly.

Lucas, L.

Scott of Needham Market, B.

Lyell, L.

Seccombe, B.

McFarlane of Llandaff, B.

Selbome, E.

MacGregor of Pulham Market,

Selsdon, L.

L.

Sharman, L.

Maclennan of Rogart, L.

Sharp of Guildford, B.

McNally, L.

Shaw of Northstead, L.

Maddock, B.

Shrewsbury, E.

Magjnnis of Drumglass, L.

Shutt of Greetland, L.

Mallalieu, B.

Skelmersdale, L.

Mancroft, L.

Slim, V.

Mar and Kellie, E.

Smith of Clifton, L.

Marlesford, L.

Stem, B.

Masham of Ilton, B.

Stevens of Ludgate, L.

Mayhew of Twysden, L.

Stewartby, L.

Methuen, L.

Stoddart of Swindon, L

Miller of Chilthorne Domer, B.

Strange, B.

Miller of Hendon, B.

Strathdyde, L.

Molyneaux of Killead, L.

Swinfen, L.

Monro of Langholm, L.

Taverne, L.

Monson, L.

Tebbit, L.

Montagu of Beaulieu, L.

Tenby, V.

Montrose, D.

Thomas of Gresford, L.

Moore of Lower Marsh, L.

Thomas of Swynnerton, L.

Morgan, L.

Thomas of Walliswood. B.

Moynihan, L.

Thomson of Monilieth, L.

Murton of Lindisfame, L.

Tope, L.

Naseby, L.

Trefgame, L.

Newby, L.

Trumpington, B.

Nicholson of Winterbourne, B.

Tugendhat, L.

Noakes, B.

Vivian, L.

Northbourne, L.

Wakefield, Bp.

Northbrook, L.

Wakeham, L.

Northesk, E.

Wallace of Saltaire, L.

Northover, B.

Walmsley, B.

Norton of Louth, L.

Watson of Richmond, L.

O'Cathain, B.

Wigoder, L.

Oakeshott of Seagrove Bay, L.

Wilberforce, L.

Onslow, E.

Wilcox, B.

Oxfuird,V.

Williams of Crosby, B.

Park of Monmouth, B.

Williamson of Horton, L.

Pearson of Rannoch, L.

Willoughby de Broke, L.

Peel, E.

Windlesham, L.

Perry of Southwark, B.

Wright of Richmond, L.

NOT-CONTENTS

Acton, L.

Andrews. B.

Ahmed, L.

Archer of Sandwell, L

Allenby of Megiddo, V.

Ashley of Stoke. L.

Alii, L.

Ashton of Upholland, B.

Amos, B.

Attenborough, L.

1465

Avebury, L.

Howie of Troon, L.

Bach, L.

Hoyle, L.

Bassam of Brighton, L.

Hughes of Woodside, L.

Berkeley, L.

Hunt of Chesterton, L.

Bernstein of Craigweil, L.

Hunt of Kings Heath, L.

Bhatia, L.

Irvine of Lairg, L. (Lord

Billingham, B.

Chancellor)

Blackstone, B.

Janner of Braunstone, L.

Borrie, L.

Jay of Paddington, B.

Brooke of Alverthorpe, L.

Jones, L.

Brookman, L.

King of West Bromwich, L.

Brooks of Tremorfa, L.

Lea of Crondall, L.

Bruce of Donington, L.

Lipsey, L.

Burlison, L.

Lockwood, B.

Campbell-Savours, L.

Macdonald of Tradeston, L.

Carter, L. [Teller]

Mclntosh of Haringey, L.

Castle of Blackburn, B.

[Teller]

Chandos,V.

Mclntosh of Hudnall, B.

Chorley, L.

MacKenzie of Culkein, L.

Christopher, L.

Massey of Darwen, B.

Clarke of Hampstead, L.

Merlyn-Rees, L.

Clinton-Davis, L.

Milner of Leeds, L.

Condon. L.

Mitchell, L.

Corbett of Castle Vale, L.

Morgan of Huyton, B.

Crawley, B.

Nicol, B.

David, B.

Paul, L.

Davies of Coity, L.

Pendry, L.

Davies of Oldham, L.

Pitkeathley, B.

Dean of Thornton-le-Fylde, B.

Puttnam, L.

Dormand of Easington, L.

Radice, L.

Dubs, L.

Ramsay of Cartvale, B.

Elder, L.

Randall of St. Budeaux, L.

Evans of Parkside, L.

Rendell of Babergh, B.

Evans of Temple Guiting, L.

Renwick of Clifton, L.

Evans of Watford, L.

Rooker, L.

Falconer of Thoroton, L.

Sainsbury of Turville, L.

Farrington of Ribbleton, B.

Sawyer, L.

Faulkner of Worcester, L.

Scotland of Asthal, B.

Filkin, L.

Sewel, L.

Fyfe of Fairfield, L.

Simon, V.

Gale, B.

Southwark, Bp.

Gibson of Market Rasen, B.

Stone of Blackheath, L.

Gilbert, L.

Strabolgi, L.

Gladwin of Clee, L.

Symons of Vernham Dean, B.

Golding, B.

Taylor of Blackburn, L.

Goldsmith, L.

Thornton, B.

Gordon of Strathblane, L.

Tomlinson, L.

Goudie, B.

Turner of Camden, B.

Gould of Potternewton, B.

Varley, L.

Graham of Edmonton, L.

Wedderbum of Charlton, L.

Grenfell, L.

Whitaker, B.

Grocott, L.

Whitty, L.

Harris of Haringey, L.

Wilkins, B.

Hayman, B.

Williams of Elvel, L.

Hilton of Eggardon, B.

Williams of Mostyn, L. (Lord

Hollis of Heigham, B.

Privy Seat)

Howells of St. Davids, B.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
6.27 p.m.
Lord Carter: My Lords, before moving to the next amendment, I point out that we still have four important groups of amendments to the Bill to discuss. They all concern subjects that have been discussed in great detail during the eight days allocated to the Bill. We also have the Third Reading of the Office of Communications Bill, two important health orders and an Unstarred Question. We must also deal with the Commons Message. I need say no more—I hope that your Lordships have got the message.

LORDS AMENDMENT
38 After Clause 101, insert the following new clause—
"SCOPE OF POWERS CONFERRED BY THIS PART
Any powers conferred by this Part shall only be enforceable in relation to any suspicion, or investigation, or acts, of terrorism or any matters of national security."
The Commons disagreed to this amendment for the following reason:
Because it is not appropriate to limit the powers conferred by this Part of the Bill in the manner proposed by the amendment.
Lord Rooker: My Lords, I beg to move that the House do not insist on their Amendment No. 38 to which the Commons have disagreed for their reason numbered 38A.
I will take note of what my noble friend the Chief Whip said—as, I sense, will the whole House. The amendment passed by your Lordships hampers the Ministry of Defence Police's ability effectively to counter the terrorist threat. There are clear links between criminal activities and terrorism and it is not always possible to draw a clear line between the two. The amendment creates an artificial boundary between the two activities.
The amendment would not only have the effect of restricting the new powers that we propose to give the Ministry of Defence Police. It would also reduce its existing jurisdiction. The amendment is highly damaging to the fight against terrorism. At present, when given authority by the local police force, the Ministry of Defence Police can deal with non-terrorist related disasters in the vicinity of defence land—for example, a civilian aircraft that crashes on the approach to a military airfield. The Ministry of Defence Police can take action such as closing roads in response to a forest fire on lands adjacent to a defence estate. It can pursue suspects as they leave defence land.
Under the amendment passed by your Lordships, the Ministry of Defence Police would no longer be able to do any of those things—even with the authorisation of the local police force—unless there were a suspicion of terrorism or national security were involved. I cannot believe that the House would knowingly reconfirm that position.
Two Select Committees in the other place have supported the extension of the Ministry of Defence powers contained in the Bill; the Armed Forces Select Committee and the Defence Select Committee. I do not propose to read the quotes in front of me, which I have used before.
We acknowledge the concerns which have been expressed about the possible adverse affects of extending the jurisdiction, but we are not persuaded that they call into question the case for the proposed measures.
I turn briefly to Amendment No. 38C. The intention behind the amendment is said to improve the Bill in that it seeks to replace the previous amendment. I am afraid that it would be completely unworkable. It would not work in practice and it would cause utter confusion. Perhaps I may give two examples.

1467
As regards the power to take photographs given in Clause 91, the existing police powers are in the Police and Criminal Evidence Act code of practice. The code gives power to take photographs of anyone charged or convicted of a recordable offence, but there is no power to use reasonable force. Clause 91 gives a power to take photographs of everyone detained in a police station and to use reasonable force if necessary. The effect of Amendment No. 38C appears to be that the power to use reasonable force to remove, for example, a balaclava would be available in relation to a suspect terrorist but not in relation to a suspect rapist.
As regards the Ministry of Defence Police, the amendment unfortunately complicates matters. It requires a Ministry of Defence officer who is called to assist a constable of the local police force to analyse whether he is about to do something which he could not previously have done. That will cause utter confusion at the point at which the decision is taken. Clause 98 was designed to make matters absolutely clear.
As regards powers conferred on the British Transport Police, currently they have jurisdiction only on the railways and elsewhere on railways matters. However, as police officers in uniform, they are frequently called to assist in incidents outside their railways' jurisdiction both by members of the public and other police officers. Indeed, it is estimated that they attend 8,000 such incidents a year. When acting in those circumstances, they will not have the powers and privileges of a police constable, but will have the powers only of an ordinary citizen. The effect of the amendments would be to confirm in legislation that British Transport Police officers can assist only outside their railways' jurisdiction when an incident concerns terrorism or national security. Thus, those officers when witnessing serious assault could intervene as police officers only if they were satisfied that the assailant was a terrorist. In other words, the original amendment passed by this House damages the current situation. I must say with great respect that Amendment No. 38C would be completely unworkable.
Moved, That this House do not insist on their Amendment No. 38 to which the Commons have disagreed for their reason numbered 38A. (Lord Rooker.)
[Amendment No. 38B not moved.)
38C Lord McNally 38C Lord McNally rose to move, as an amendment to the Motion that the House do not insist on their Amendment No. 38 to which the Commons have disagreed for their Reason No. 38A, at end insert "and do propose the following new clause in lieu thereof—
"SCOPE OF POWERS CONFERRED BY THIS PART
Any powers conferred by this Part, except in so far as they confer powers replacing police powers which existed immediately before the coming into force of this Part, shall only be enforceable in relation to any suspicion, or investigation, or acts, of terrorism or any matters of national security.""
1468
The noble Lord said: My Lords, the amendment arises from an exchange in the other place yesterday when the Home Secretary said:
"The House of Lords—inadvertently, of course; no one would have done it intentionally—has made the use of MoD and British Transport police even more difficult than it is now".
My colleague, Simon Hughes, responded in the spirit of constructive improvement of the Bill that has been our line throughout:
"We would reasonably consider the point he has made that the Bill should not further restrict organisations such as the MoD or transport police, although that has never been our intention".—[Official Report, Commons, 12/12/01: cols. 899 and 900.]
As the Minister clearly said, Amendment No. 38C aims to retain the restrictions which your Lordships voted for on Report, suggesting that they should be concentrated on terrorism, but providing the extra protection of retaining the additional powers in the Bill for those forces.
The Minister says that the amendment is unworkable and, as has been his line at times during the Bill, gave a few blood-curdling examples to frighten us into obedience. But ultimately we return to the more philosophical point which he raised earlier and which has run through the eight days of the debate. It is that, through the Bill, Ministers and the Government want to extend powers in all kinds of directions, using as their justification the terrorist threat. However, in response to the terrorist threat they sweep up many other powers and issues which need to be considered at greater length and as part of different legislation.
As has been pointed out, the MoD proposals were dropped from earlier legislation and a number of objections have been made to the extension of those police powers. I acknowledge that the Home Secretary has tried to move to reassure people about the concerns that have been expressed. We remain unconvinced and, in the spirit of the Chief Whip's extolling of brevity, I shall go no further. We are not convinced that these powers should stay in the Bill and I shall seek the opinion of the House at the appropriate time.
Moved, That this House do not insist on their Amendment No. 38 to which the Commons have disagreed for their reason numbered 38A and do propose Amendment No. 38C in lieu thereof.—(Lord McNally.)
Lord Faulkner of Worcester: My Lords, I want to speak strongly against the amendment proposed by the noble Lord, Lord McNally, because of the effect its passing would have on the powers, duty and role of the British Transport Police.
It is not true to say that Clause 100 of the Bill was extensively debated on Report. The debate on Report concentrated almost exclusively on the Ministry of Defence Police. The occasion when we had a full debate on the powers of the British Transport Police

1469
was in Committee. The Government's proposals in Clause 100 there enjoyed considerable cross-party support. For example, speaking for the Liberal Democrats, the noble Lord, Lord Bradshaw, said:
"For reasons of safety, it is important that transport police officers should be given an extended jurisdiction so that they can pursue miscreants beyond the boundaries of railway premises".— [Official Report, 4/12/01; col. 741.]
We had a similar debate on an Unstarred Question which I tabled on 13th November. On that occasion the noble Viscount, Lord Astor, speaking from the Conservative Front Bench, also supported the extension of the jurisdiction of the powers of the BTP.
One needs only to look carefully at what happened in Bradford on 7th July this year to realise how crucial it is that the amendment is defeated and Clause 100 is passed. Throughout the 12 hours of disorder, members of the BTP support unit in Bradford supported and at times protected their colleagues from West Yorkshire Police, the civil force. Their discipline, restraint and courage led a detective inspector from the West Yorkshire force to comment that the BTP officers were openly talked about as heroes of the day.
To begin with on that day, the decision was taken to deploy the officers only at the railway stations because they were aware that legally the force's jurisdiction was confined to railway property. But as the disorder grew during the afternoon and evening, the West Yorkshire police came under sustained attack and became increasingly exhausted and appealed to the BTP support unit for help. That was given, despite its having no jurisdiction in the city and during the following four hours on the front line BTP acted under the command of the West Yorkshire Police and were deployed under the first WYP shield unit. Afterwards, the assistant chief constable described the officers who had helped his force as "absolutely magnificent" in what a judge then subsequently described as,
"a situation where experienced officers came to fear for their lives and for the lives of their colleagues".
If we were to pass the amendment moved by the noble Lord, Lord McNally, we would be making it clear that what the British Transport Police did on that occasion, and on many other occasions to which my noble friend referred in his opening remarks—that is, to come to the help of the civil police and thus protect the rest of us as citizens—would he illegal. I hope very much that the House will reject the amendment.
Lord Dixon-Smith: My Lords, I rise to support the amendment tabled by the noble Lord, Lord McNally. We should all recognise that we are at the core of the problem with which we have had to deal in regard to this Bill from day one. The problem is that this is a special Bill, brought before Parliament to deal with a special situation. It has been drafted in haste and considered with immense speed. The consequence of that is that we now have difficulties with it.
We think that the restriction that we have placed on the proposed change to the Bill is appropriate. The Government pointed out that the way in which it was originally drafted went too far and we seek now to
1470
draw back from that position. I am grateful to the noble Lord, Lord McNally, for doing so in his amendment.
It is not my job to tell the Government how to escape the dilemma, but given that we may be sitting around for some time tonight, perhaps they can come up with a better form of words. However, in the event that they do not do so, they will have to be satisfied with our efforts, whether or not they are perfect.
I return to my opening remarks: we are at the heart of the problem of legislating in this fashion. If that had not had to be done, we should not be facing the current dilemma. I support the amendment.
Lord Bradshaw: My Lords, before the Minister rises to speak, perhaps I may make my position clear. I support Clause 100 as it stands. I believe that the British Transport Police need the powers contained in the clause, but I do not know enough about the MoD police to comment.
The Government are currently consulting on a properly constituted police authority for the British Transport Police, as well as a proper complaints procedure. Those developments will bring the BTP entirely into line with the civil forces. Aside from what was brought to our attention by the right reverend Prelate the Bishop of Southwark—that is, that the legislation may take some time, I believe that, in the case of the British Transport Police, such legislation is probably imminent. However, I am not asking about it at this point. Nevertheless, the consultation process is well under way and I think that legislation is likely to be enacted.
Lord Wallace of Saltaire: My Lords, I wish to add simply that the situation in regard to the MoD police is clearly different from that of the British Transport Police. Major questions still need to be discussed and I am grateful for the informal talks that have been held.
Although the noble Lord, Lord Faulkner, made an interesting speech, it did not have anything to do with terrorism or with the emergency situation. The sensitive matters covered in this part of the Bill would be better dealt with in a police reform Bill, which we have been promised, rather than in emergency terrorism legislation.
Lord Rooker: My Lords, I should tell noble Lords that I have nothing new to say. The noble Lord, Lord Dixon-Smith, said that this goes to the heart of the problem. It certainly does that.
Some noble Lords and, indeed, some Members of the other place are going to have a hell of a job explaining their views to the public tomorrow if they choose to vote these proposals down. The provisions are central to the Bill. We are not trying to pull a fast one.
Furthermore, this part of the Bill cannot be separated. The vote will cover all or nothing. It concerns the MoD police, ordinary Home Office police officers and the British Transport Police. Those who have just spoken sympathetically in respect of the

1471
British Transport Police cannot have it both ways. They cannot say later, "Oh well, I thought we were doing something slightly different". The whole part of the Bill will be affected.
I have to say to noble Lords that Members of the other place will find it quite outrageous that we do not seem to be prepared to address the issues. The Government have tried throughout to make the point that, in terms of dealing with crime and terrorism, we have in place police forces that are legitimate forces which can aid the other authorities. They are hamstrung in many ways. We have cited example after example in the debates on Second Reading, in Committee and on Report. Any reasonable member of the public would be absolutely bewildered—I repeat, bewildered—that Members of your Lordships' House have continued to maintain a stand that causes these other police forces to be hamstrung simply because they wish to see such legislation brought forward in another Bill. They have said, "We need a police reform Bill because the issue is not connected to terrorism". Frankly, that will not wash.
I ask noble Lords to think very seriously before they divide on this issue.
Earl Russell: My Lords, before the Minister sits down, perhaps I may ask him for the last time, I hope, to concede I hat the hatred of terrorism is common to the whole House and that the debate concerns the effectiveness of the proposed measures.
Lord Rooker: My Lords, it is for noble Lords to explain their position. I cannot explain it for them.
Lord McNally: My Lords, we will be very happy to explain our position. Here we encounter the old problem; namely, that the Minister seems to think that almost any expedient can justify removing the protections and civil liberties that it is the duty of this Parliament to preserve. We shall continue to go through this Bill giving the Government the powers they need to fight terrorism. But the noble Lord will have to come back to the House with other legislation for the wider powers. It is as simple as that. I shall have no problem tomorrow justifying our vote. I think that I should test the opinion of the House.
6.46 p.m.
On Question, Whether the said amendment (No. 38C) shall be agreed to?
Their Lordships divided: Contents, 174; Not-Contents, 153.

Division No. 3

CONTENTS

Aberdare, L.

Barker, B.

Addington, L.

Biffen, L.

Anelay of St Johns, B.

Blaker, L.

Anan, E.

Boardman, L.

Astor, V.

Bridgeman, V.

Astor of Hever, L.

Brooke of Sutton Mandeville, L

Avebury. L.

Brougham and Vaux, L.

1472

Burnham, L.

MacGregor of Pulham Market.

Buscombe, B.

L.

Byford, B.

Maclennan of Rogart, L.

Caithness, E.

McNally, L.

Campbell of Alloway, L.

Maddock, B.

Carlisle of Bucklow, L.

Mancroft, L.

Carnegy of Lour, B.

Methuen, L.

Carr of Hadley, L.

Miller of Chilthorne Domer, B.

Cavendish of Furness, L.

Miller of Hendon, B.

Chadlington, L.

Molyneaux of Killead, L.

Chalker of Wallasey, B.

Monro of Langholm, L.

Clement-Jones, L.

Monson, L.

Coe, L.

Montagu of Beaulieu, L.

Cope of Berkeley, L. [Teller]

Montrose, D.

Craigavon, V.

Moore of Lower Marsh, L.

Crickhowell, L.

Moynihan, L

Cumberlege, B.

Murton of Lindisfarne, L.

Deedes, L.

Naseby, L.

Denham, L.

Newby, L.

Dholakia, L

Nicholson of Winterbourne, B.

Dixon-Smith, L.

Noakes, B.

Eccles of Moulton, B.

Northesk, E.

Elliott of Morpeth, L.

Northover, B

Ejton L

Norton of Louth, L.

Ezra L

O'Cathain, B.

Falkland V

Oakeshott of Seagrove Bay, L

Feldman, L.

Onslow, E.

Ferrers, E

Oxfuird, V.

Flather, B.

Pearson of Rannoch, L.

Fookes, B.

Peel, E.

Forsyth of Drumlean, L.

Perry of Southwark, B.

Fraser of Carmyllie, L.

Phillips of Sudbury, L.

Freeman, L

Platt of Writtle, B.

Gardner of Parkes, B.

Plumb, L.

Geddes, L.

Quinton, L.

Glenarthur, L.

Rawlings, B.

Glentoran, L.

Razzall, L.

Goodhart, L.

Reay L

Goschen, V.

Redesdale, L.

Greaves, L.

Rees, L.

Greenway, L.

Rees-Mogg, L.

Greenway, L.

Rennard, L.

Hamwee, B.

Renton, L.

Hanham, B.

Renton of Mount Harry, L.

Harns of Richmond, B.

Robert of Conwy, L.

Haslam, L.

Rodgers of Quarry Bank, L.

Hayhoe, L.

Roper, L.[Teiler]

Henley, L.

Rotherwick, L.

Higgins, L.

Russell, E.

Hodgson of Astley Abbotts, L.

Saatchi, L.

Hogg, B.

St John of Fawsley, L.

Holme of Cheltenham, L.

Saltoun of Abernethy, Ly.

Home, E.

Scott of Needham Market, B.

Howe, E.

Seccombe, B.

Howe of Aberavon, L.

Selborne, E

Howe of ldlicote, B.

Selsdon, L.

Howell of Guildford, L.

Sharman, L.

Hunt of Wirral, L.

Sharp of Guildford, B.

Hurd of Westwell, L.

Shaw of Northstead, L.

Jacobs, L.

Shrewsbury, E.

Jellicoe, E.

Shutt of Greetland, L.

Jenkin of Roding, L.

Skelmersdale, L.

Jopling, L.

Smith of Clifton, L.

Kimball, L.

Stern, B.

Kingsland, L.

Strathclyde, L.

Kirkham, L.

Swinfen, L.

Knight of Collingtree, B.

Taverne, L.

Laird, L.

Tebbit, L.

Lamont of Lerwick, L.

Thomas of Gresford, L.

Lang of Monkton, L.

Thomas of Swynnerton, L.

Lawson of Blaby, L.

Thomas of Walliswood, B.

Lester of Herne Hill, L.

Thomson of Monifieth, L.

Linklater of Butterstone, B.

Tope, L.

Liverpool, E.

Trefgarne, L.

Livsey of Talgarth, L.

Trumpington, B.

Lyell, L.

Tugendhat, L.

1473

Vivian, L.

Wigoder, L.

Wakeham, L.

Wilcox, B.

Wallace of Saltaire, L.

Williams of Crosby, B.

Walmsley, B.

Willoughby de Broke, L.

Watson of Richmond, L.

Windlesham, L.

NOT-CONTENTS

Ackner, L.

Goldsmith, L.

Acton, L.

Gordon of Strathblane, L.

Ahmed, L.

Goudie, B.

Allenby of Megiddo, V.

Gould of Pottemewton, B.

Alli, L.

Graham of Edmonton, L.

Alton of Liverpool, L.

Greengross, B.

Amos, B.

Grenfell, L.

Andrews, B.

Grocott, L.

Archer of Sandwell, L.

Harris of Haringey, L.

Ashley of Stoke, L.

Hayman, B.

Ashton of Upholland, B.

Hilton of Eggardon, B.

Attenborough, L.

HollisofHeigham, B.

Bach, L.

Howarth of Breckland, B.

Barnett,L.

Howells of St. Davids, B.

Bassam of Brighton, L.

Howie of Troon, L.

Berkeley, L.

Hoyle, L.

Bernstein of Craigweil, L.

Hughes of Woodside, L.

Bhatia, L.

Hunt of Chesterton, L.

Billingham, B.

Hunt of Kings Heath, L.

Blackstone, B.

Irvine of Lairg, L. (Lord

Bledisloe, V.

Chancellor)

Boothroyd, B.

Janner of Braunstone, L.

Borrie, L.

Jay of Paddington, B.

Brennan, L.

King of West Bromwich, L.

Brooke of Alverthorpe, L.

Layard, L.

Brookman, L.

Lea of Crondall, L.

Brooks of Tremorfa, L.

Lipsey, L.

Burlison, L.

Listowel, E.

Burns, L.

Macdonald of Tradeston, L.

Campbell-Savours, L.

McFarlane of Llandaff, B.

Carter, L. [Teller]

Mclntosh of Haringey, L.

Castle of Blackburn, B.

[Teller]

Chalfont, L.

Mclntosh of Hudnall, B.

Chandos, V.

MacKenzie of Culkein, L.

Chorley, L.

Maginnis of Drumglass, L.

Christopher, L.

Mallalieu, B.

Clarke of Hampstead, L.

Marsh, L.

Clinton-Davis, L.

Masham of Ilton, B.

Cobbold, L.

Massey of Darwen, B.

Cohen of Pimlico, B.

Merlyn-Rees, L.

Condon, L.

Milner of Leeds, L.

Corbett of Castle Vale, L.

Mitchell, L.

Craig of Radley, L.

Morgan, L.

Crawley, B.

Morgan of Huyton, B.

Currie of Marylebone, L.

Morris of Aberavon, L.

Darcy de Knayth, B.

Nicol, B.

David. B.

Pendry, L.

Davies of Coity, L.

Peston, L.

Davies of Oldham, L.

Pitkeathley, B.

Dean of Thomton-le-Fylde, B.

Plant of Highfield, L.

Dearing, L.

Puttnam, L.

Dormand of Easington, L.

Radice, L.

Dubs, L.

Ramsay of Cartvale, B.

Elder, L.

Randall of St. Budeaux, L.

Emerton, B.

Rendell of Babergh. B.

Evans of Parkside, L.

Renwick of Clifton, L.

Evans of Temple Guiting, L.

Rooker, L.

Evans of Watford, L.

Sainsbury of Turville, L.

Falconer of Thoroton, L.

Sawyer, L.

Farrington of Ribbleton, B.

Scotland of Asthal, B.

Faulkner of Worcester, L.

Sewel, L.

Filkin, L.

Sheldon, L.

Fyfe of Fairfield, L.

Simon, V.

Gale, B.

Slim, V.

Gibson of Market Rasen, B.

Smith of Gilmorehill, B.

Gilbert, L.

Stone of Blackheath, L.

Gladwin of Clee, L.

Strabolgi, L.

Golding, B.

Strange, B.

1474

Symons of Vernham Dean, B.

Warwick of Undercliffe, B.

Taylor of Blackburn, L.

Wedderburn of Charlton, L.

Tenby, V.

Whitaker, B.

Thornton, B.

Whitty, L.

Tomlinson, L.

Wilkins, B.

Turner of Camden, B.

Williams of Elvel, L.

Varley, L.

Williams of Mostyn, L. (Lord

Wakefield, Bp.

Privy Seal)

Walker of Doncaster, L.

Williamson of Horton, L.

Warner, L.

Woolmer of Leeds. L.

Resolved in the affirmative, and amendment agreed to accordingly.
Original Motion, as amended, agreed to.

LORDS AMENDMENT
40 Clause 102, page 62, line 25, leave out paragraph ( b) and insert•
"(b) for the purposes of prevention or detection of crime or the prosecution of offenders which may relate directly or indirectly to national security."
The Commons disagreed to this amendment for the following reason:
40A Because it is not appropriate to limit the power conferred by this clause in the manner proposed by the amendment.
6.57 p.m.
Lord Rooker: My Lords, I beg to move that the House do not insist on their Amendment No. 40 to which the Commons have disagreed for their reason numbered 40A.
I shall be brief. We have made it clear that the retention of communication data provisions in the Bill will be proportionate and necessary and, I repeat, they will comply with all the data protection legislation and be wholly consistent with the European Convention on Human Rights and our Human Rights Act obligations.
We have listened to and acted on the concerns of noble Lords by providing on the face of the Bill for consultation with the Information Commissioner on the code of practice. The code of practice will also need to be approved by both Houses of Parliament under the affirmative resolution procedure. These are all new provisions since the Bill came from the other place, so the Government have moved on the issue.
However, I must make it clear that it is impossible to distinguish at the retention stage what data may be relevant for national security or terrorism purposes. I must remind noble Lords that the data will be retained not by the Government but by the communications providers. The provisions do not extend the access powers agreed by Parliament 18 months ago in the Regulation of Investigatory Powers Act, which are also compatible with human rights legislation. There cannot be any mass trawls. Only data used for billing purposes—date, time, place, telephone number, period of call—will be retained, not conversations or messages between individuals.
Earlier today, your Lordships' House voted not to press an amendment to restrict the purposes for which data may be disclosed by public authorities under the provisions of Part 3 of the Bill. The provisions in

1475
Part 11 are not about access to data but about its retention by communications service providers. It makes no sense to limit Part 11 to national security. Part 11 will be proportionate and it will follow EC law and the European Convention on Human Rights. There will be consultation with the Information Commissioner and the code will be subject to parliamentary approval.
It is our intention and our avowed desire to carry out the terms of this provision in voluntary agreement with the industry. We do not want to have to move to a statutory provision. Under a voluntary arrangement and given the code of practice, it is almost implicit that the Information Commissioner and the industry have a veto. If they do not agree, it cannot be clone voluntarily. We should then have to go down the statutory route, which has its own built-in sunset clause. So there is a safeguard—a double lock, as it were—on that part of the Bill's provision. Therefore, I hope that noble Lords will see that the Government have moved considerably in this respect on data retention. Bearing in mind the principle behind the decisions made on Part 3, I hope that the original amendment will not be pressed.
Moved, That the House do not insist on their Amendment No. 40 to which the Commons have disagreed for their reason numbered 40A.—(Lord Rooker.)
40B Lord Phillips of Sudbury rose to move, as an amendment to the Motion that the House do not insist on their Amendment No. 40 to which the Commons have disagreed for their reason numbered 40A, leave out "not".
The noble Lord said: My Lords, I am grateful to the Minister for setting out the present position. It is my belief—and. I think, that of the House—that he underestimates the communications data that can be captured under this part of the Bill. It is true that the content of telephone conversations and other communications cannot be pried into. However, as is well known in the industry, the "where, when, how, to whom and with whom?" of all communications, the website hits that anyone makes in the course of the daily round, if trawled automatically, enable the state and the "relevant authorities" to build up a personality profile that tells a great deal, in intimate detail, about citizens. That is the background.
There have been repeated assurances by Ministers in the course of the past year that the very thing that is being done would not be done. Perhaps I may give an example. On 10th May, when Patricia Hewitt took part in an on-line question and answer session for the Guardian, the following question was asked:
"The police (NCIS and ACPO) are still pressing for a new law to compel ISPs to log the addresses of all e-mails sent and received, websites browsed, and newsgroups perused, for ALL their customers indiscriminately, for up to 7 years.… Will Labour enact such a law in its next term?".
The answer was "No". The same categorical answer was given on three occasions.
Lord Rooker: My Lords, will the noble Lord give way? This Bill would not be before the House if it were
1476
not for the events of 11th September. So what is the use of quoting an answer by Patricia Hewitt which was made months before that date? What on earth is the relevance of that?
Lord Phillips of Sudbury: My Lords, that is a partially fair point and I do not seek to deflect it. But I am saying that Ministers are now going back on their determination—before 11th September, I admit—to have nothing to do with such a provision. The whole issue is the correct balance between our traditional civil liberties and the needs of the moment. I need not remind the Minister that ours is the only country in Europe that is enacting new laws in the present situation. This House wants new laws. But the question addressed by the amendment is: how far should they go?
Clause 102 gives complete discretion to the Secretary of State to issue a voluntary code of practice. Everyone hopes that such a code will be the one that sticks. But Clause 103 gives the Minister compulsory powers of direction. There is no limit on those powers. He does not have to come hack to Parliament. Their contents can apply—and, it is expected, will apply—to the whole industry. The Minister and those on these Benches have batted remarks hack and forth on the issue of "trawling". The Minister resolutely maintains that there will be no trawling. We resolutely—
Lord Rooker: My Lords, will the noble Lord give me the opportunity to make a further point? What he says is not true. He is close to misleading the House. The powers are time-limited if we go down the statutory route. The Secretary of State would have to come back to Parliament after two years and obtain affirmative resolutions for the powers to continue. So it is not fair to say that there is no time limit on the powers in Clause 103. There is a time limit and it is set out in Clause 104. Indeed, the clause is headed:
"Lapsing of powers in section 103".
Lord Phillips of Sudbury: My Lords, the Minister is talking about time limits. I was not. I was talking about the issue of trawling. Of course there is sunset provision included in the Bill. We happen to think that it is a weak one. We also take note of the fact that time-limited provisions tend to continue ad infinitum, as the noble Lord, Lord Jenkins, made clear at Second Reading.
I want to return to the important issue of trawling, as it worries many Members of this House. A document issued by the Home Office last month entitled The Retention of Communications Data—with the unhappy subheading, Supplementary Regulatory Impact Assessment— says this on the impact on civil liberties:
"Data relating to specific individuals under investigation will only be available if data relating to the communications of We entire population is retained, since a criminal's data cannot be distinguished from anyone else's at the time of collection/ retention. Mass retention has obvious civil liberties ramifications … A balance must therefore be drawn between security and privacy".

1477
That makes it clear beyond peradventure that, whatever the Minister thinks about mass trawling and mass surveillance, the Home Office knows that that is precisely what these clauses relate to. It is their ability, via the Secretary of State's direction, to require the entire industry to retain its entire stock of traffic data for an unlimited period. It is that power that enables the security industry to have access, via the Regulation of Investigatory Powers Act and the Data Protection Act, to this huge warehouse of information. We on this side of the House have repeatedly said that we are not content with the balance as struck. That is why we want the amendment to remain.
Perhaps I may remind the House that, in giving directions, the Secretary of State only has to "have regard" as he thinks necessary for the prevention or detection of crime or the prosecution of offenders. The provision is completely general. We want the words to be inserted:
"prevention or detection of crime or the prosecution of offenders which may relate directly or indirectly to national security".
That is the difference between us.
Perhaps I make two more points. First, the oversight and care, as it were, of the data collection machinery provided for in various statutes is in our view wholly inadequate. One of the reasons we feel strongly about this is that there is no effective oversight of the whole business.
To give one example, the parliamentary Intelligence and Security Committee recently commented that the tribunal set up under the Regulation of Investigatory Powers Act to control access to information and data did not even have enough staff to open the mail. I believe that we shall find that the Interception of Communications Commissioner, Lord Justice Swinton Thomas has a staff of two or fewer. Concerns on this side relate to the inadequacy of the oversight and protection of the citizen and his or her confidential information.
The National Criminal Intelligence Service is building—and has made it quite clear that it wants to go on building—a national traffic data warehouse. That is its aim. Indeed, a senior member of that body said recently, "We want to have all the information we can lay hands on. It's up to you fellows to stop us".
That is what this amendment is about: stopping an excessive and insufficiently controlled acquisition and retention of data information which can then be accessed under the Regulation of Investigatory Powers Act, and with limited protection under the Data Protection Act. Your Lordships will know that, in certain circumstances, if the Secretary of State issues a certificate, none of the eight principles of the Data Protection Act will come to the aid of a citizen at all, even if he or she knows that his or her privileged information has been breached. That is a huge problem.
For all those reasons, it is our strong wish to see the amendment remain. I beg to move.
Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 40 to which
1478
the Commons have disagreed for their reason numbered 40A, leave out "not".—(Lord Phillips of Sudbury.)
Baroness Buscombe: My Lords, I support what the noble Lord, Lord Phillips of Sudbury, has said. While we welcome the agreement of the Home Secretary to subject the code of practice on data retention to affirmative resolution, we do not believe that that concession is enough. We believe that Lords Amendments Nos. 40 and 44 properly limit the scope of the proposed data retention provisions without in any way undermining the capacity of law enforcement authorities and intelligence agencies to counter the threat from global terrorism.
As my noble friend Lord Northesk said on Report, there is a very real risk that the vast accumulation of data that the Bill currently envisages could prove counter-productive and, thereby, hinder the work of the intelligence services in their challenging task of fighting terrorism. As the Minister has always insisted, investigations under the Regulation of Investigatory Powers Act, and on advice from the Information Commissioner, have proceeded, and are proceeding satisfactorily. With excellent co-operation from communication service providers, why do the Government require this extension of power?
Yesterday in another place the Parliamentary Under-Secretary of State argued that CSPs are unhappy with your Lordships' amendment to Part 11. He said:
"The providers say the amendment is not workable".—[Official Report, Commons, 12/12/01; col. 907.]
Of course, we do not know which providers have made representations to the Home Office. But I am bound to say that that does not tie in with our advice from the ISPA (Internet Service Providers Association). That association favours the amendment because, given the general lack of legal clarity within Clause 102, it would much prefer checks for proportionality and reasonableness to be made within the narrower, although still wide, framework proposed. In that case, we shall insist that this House supports Amendments Nos. 40 and 44.
Lord Rooker: My Lords, I shall be brief. I shall reply to the central points that have been raised. First, we have made it absolutely clear that there will not be a data warehouse. Secondly, this is not a matter of mass surveillance, even though the retention by data providers of people's information is necessary. The Data Protection Act will cover that. That data cannot and will not be touched by the law enforcement authorities unless the regulation of investigatory powers tests are met: they are necessity and proportionality. As I said before, quite extravagant language is being used which is designed to frighten people into believing that they will be subjected to mass surveillance. They will not be.
I shall set out some of the points. The code of practice will set out the time limits. In this House we have already agreed that it will not be seven years. We were specifically asked about an article in the Observer

1479
and we said that it would not be seven years. I cannot say what it will be, but the implication is that it will be less than seven years because we need to achieve agreement on the code of practice.
Britain is not the only country to have data retention legislation. Belgium and France have such legislation. Contrary to what has been asserted by the noble Lords opposite, this is not the only country to introduce emergency anti-terrorism laws. France and the United States have done so. It is not true to say that we are isolated in that respect.
This is not an extension of police powers, but service providers will retain information that they already collect. This is not new, but we want them to retain that information a little longer so that if there are grounds for checking up on people, the information is there to be used.
The practice of retaining information has been carried out on an informal and voluntary basis since 11th September. It has proved extremely useful and we have had excellent co-operation from the data providers. I have no criticism of the Internet and telephone networks service providers. However, it is important to put such matters on a statutory basis with all the protections that this Bill provides, contrary to the assertions made by the noble Lord, Lord Phillips.
Lord Phillips of Sudbury: My Lords, I thank the Minister for that reply. I stand corrected if France has introduced legislation. I specifically said "Europe". If that is right, I believe it is right to say that France is the only other country that is doing anything.
Baroness Whitaker: My Lords, does the noble Lord accept that the Federal Republic of Germany has also recently introduced an anti-terrorism Act?
Lord Phillips of Sudbury: My Lords, if the noble Baroness, Lady Whitaker, says so I certainly shall accept that. I would be interested to know exactly what that country has introduced.
The protections to which the Minister referred are in place, but it is not true to say that there is no extension of powers in this Bill. The retention powers are new and potentially they are for the whole industry and for the industry's entire capture of traffic data. That is why, through this amendment, we seek a limit to those powers.
7.16 p.m.
On Question, Whether the said amendment (No. 40B), shall be agreed to?
Their Lordships divided: Contents, 196; Not-Contents, 145.

Division No. 4

CONTENTS

Aberdare, L.

Anelay of St Johns, B.

Ackner, L.

Arran, E.

Addington, L.

Ashdown of Norton-sub-Hamdon, L.

Allenby of Megiddo, V.

1480

Astor, V.

Jellicoe, E.

Astor of Hever, L.

Jenkin of Roding, L.

Attlee, E.

Jopling, L.

Barker, B.

Kimball, L.

Biffen, L.

King of Bridgwater, L.

Blackwell, L.

Kingsland, L.

Blaker, L.

Kirkham, L.

Boardman, L.

Knight of Collingtree, B.

Bowness, L.

Laird, L.

Brabazon of Tara, L.

Lane of Horsell, L.

Bradshaw, L.

Lang of Monkton, L.

Bridgeman, V.

Lawson of Blaby, L.

Brigstocke, B.

Lester of Herne Hill, L.

Brooke of Sutton Mandeville, L.

Linklater of Butterstone, B.

Brougham and Vaux, L.

Liverpool, E.

Burnham, L.

Livsey of Talgarth, L.

Buscombe, B.

Lucas, L.

Byford, B.

Lyell, L.

Caithness, E.

MacGregor of Pulham Market, L.

Campbell of Alloway, L.

Carlisle of Bucklow, L.

Maclennan of Rogart, L.

Carnegy of Lour, B.

McNally, L.

Carr of Hadley, L.

Maddock, B.

Cavendish of Furness, L.

Maginnis of Drumglass, L.

Chadlington, L.

Mancroft, L.

Chalfont, L.

Marlesford, L.

Chalker of Wallasey, B.

Mayhew of Twysden, L.

Clement-Jones, L.

Methuen, L.

Coe, L.

Miller of Chilthorne Domer, B.

Cope of Berkeley, L.

Miller of Hendon, B.

Craig of Radley, L.

Molyneaux of Killead, L.

Craigavon, V.

Monro of Langholm, L.

Crickhowell, L.

Monson, L.

Cumberlege, B.

Montrose, D.

Deedes, L.

Moore of Lower Marsh, L.

Denham, L.

Moynihan, L.

Dholakia, L.

Murton of Lindisfarne, L.

Dixon-Smith, L.

Naseby, L.

Donaldson of Lymington, L.

Newby, L.

Eccles of Moulton, B.

Nicholson of Winterbourne, B.

Elliott of Morpeth, L.

Noakes, B.

Elton, L.

Northbrook, L.

Ezra, L.

Northesk, E.

Falkland, V.

Northover, B.

Feldman, L.

Norton of Louth, L.

Ferrers, E.

O'Cathain, B.

Flather, B.

Oakeshott of Seagrove Bay, L.

Fookes, B.

Onslow, E.

Forsyth of Drumlean, L.

Oxfuird, V.

Fraser of Carmyllie, L.

Park of Monmouth, B.

Freeman, L.

Pearson of Rannoch, L.

Freyberg, L.

Peel, E.

Gardner of Parkes, B.

Perry of Southwark, B.

Geddes, L.

Phillips of Sudbury, L.

Glenarthur, L.

Pilkington of Oxenford, L.

Glentoran, L.

Platt of Writtle, B.

Goodhart, L.

Plumb, L.

Goschen, V.

Plummer of St. Marylebone, L.

Greaves, L.

Quinton, L.

Greenway, L.

Rawlings, B.

Hamwee, B.

Razzall, L.

Hanham, B.

Reay, L.

Harris of Richmond, B.

Redesdale, L.

Hayhoe, L.

Rees, L.

Henley, L.

Rees-Mogg, L.

Higgins, L.

Rennard, L.

Hodgson of Astley Abbotts, L.

Renton, L.

Hogg, B.

Renton of Mount Harry, L.

Holme of Cheltenham, L.

Roberts of Conwy, L.

Home, E.

Rodgers of Quarry Bank, L.

Howe, E.

Roper, L. [Teller]

Howe of Aberavon, L.

Rotherwick, L.

Howe of Idlicote, B.

Russell, E.

Howell of Guildford, L.

Saatchi, L.

Hunt of Wirral, L.

St John of Fawsley, L.

Jacobs, L.

Saltoun of Abernethy, Ly.

1481

Scott of Needham Market, B.

Thomas of Gresford, L.

Seccombe, B. [Teller]

Thomas of Swynnerton, L.

Selborne, E.

Thomas of Walliswood, B.

Selsdon, L.

Thomson of Monifieth, L.

Sharman, L.

Tope, L.

Sharp of Guildford, B.

Trefgarne, L.

Shaw of Northstead, L.

Trumpington, B.

Shrewsbury, E.

Tugendhat, L.

Shutt of Greetland, L.

Vivian, L.

Skelmersdale, L.

Wakeham, L.

Smith of Clifton, L.

Walker of Worcester, L.

Stern, B.

Wallace of Saltaire, L.

Stevens of Ludgate, L.

Walmsley, B.

Stewartby, L.

Watson of Richmond, L.

Stoddart of Swindon, L.

Wigoder, L.

Strange, B.

Wilcox, B.

Swinfen, L.

Williams of Crosby, B.

Taverne, L.

Willoughby de Broke, L.

Tebbit, L.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Faulkner of Worcester, L.

Ahmed, L.

Filkin, L.

Alli, L.

Fyfe of Fairfield, L.

Alton of Liverpool, L.

Gale, B.

Amos, B.

Gibson of Market Rasen, B.

Andrews, B.

Gilbert, L.

Archer of Sandwell, L.

Gladwin of Clee, L.

Ashley of Stoke, L.

Golding, B.

Ashton of Upholland, B.

Goldsmith, L.

Attenborough, L.

Gordon of Strathblane, L.

Bach, L.

Goudie, B.

Barnett, L.

Gould of Potternewton, B.

Bassam of Brighton, L.

Graham of Edmonton, L.

Berkeley, L.

Greengross, B.

Bernstein of Craigweil, L.

Grenfell, L.

Billingham, B.

Grocott, L.

Blackstone, B.

Harris of Haringey, L.

Bledisloe, V.

Hayman, B.

Boothroyd, B.

Hilton of Eggardon, B.

Borrie, L.

Hollis of Heigham, B.

Brennan, L.

Howarth of Breckland, B.

Brooke of Alverthorpe, L.

Howells of St. Davids, B.

Brookman, L.

Howie of Troon, L.

Brooks of Tremorfa, L.

Hoyle, L.

Burlison, L.

Hughes of Woodside, L.

Burns, L.

Hunt of Chesterton, L.

Campbell-Savours, L.

Hunt of Kings Heath, L.

Carter, L. [Teller]

Irvine of Lairg, L. (Lord Chancellor)

Castle of Blackburn, B.

Chandos, V.

Janner of Braunstone, L.

Chorley, L.

Jay of Paddington, B.

Christopher, L.

King of West Bromwich, L.

Clarke of Hampstead, L.

Layard, L.

Clinton-Davis, L.

Lea of Crondall, L.

Cobbold, L.

Lipsey, L.

Cohen of Pimlico, B.

Listowel, E.

Condon, L.

Macdonald of Tradeston, L.

Corbett of Castle Vale, L.

McIntosh of Haringey, L. [Teller]

Crawley, B.

Currie of Marylebone, L.

McIntosh of Hudnall, B.

Darcy de Knayth, B.

MacKenzie of Culkein, L.

David, B.

Mallalieu, B.

Davies of Coity, L.

Marsh, L.

Davies of Oldham, L.

Masham of Ilton, B.

Dean of Thornton-le-Fylde, B.

Massey of Darwen, B.

Dearing, L.

Merlyn-Rees, L.

Dormand of Easington, L.

Milner of Leeds, L.

Dubs, L.

Mitchell, L.

Elder, L.

Morgan, L.

Emerton, B.

Morgan of Huyton, B.

Evans of Temple Guiting, L.

Morris of Aberavon, L.

Evans of Watford, L.

Nicol, B.

Falconer of Thoroton, L.

Peston, L.

Farrington of Ribbleton, B.

Pitkeathley, B.

1482

Plant of Highfield, L.

Symons of Vernham Dean, B.

Puttnam, L.

Taylor of Blackburn, L.

Radice, L.

Tenby, V.

Ramsay of Cartvale, B.

Thornton, B.

Randall of St. Budeaux, L.

Tomlinson, L.

Rendell of Babergh, B.

Turner of Camden, B.

Renwick of Clifton, L.

Varley, L.

Roll of Ipsden, L.

Wakefield, Bp.

Rooker, L.

Walker of Doncaster, L.

Sainsbury of Turville, L.

Warner, L.

St. John of Bletso, L.

Warwick of Undercliffe, B.

Sawyer, L.

Wedderbum of Charlton, L.

Scotland of Asthal, B.

Whitaker, B.

Sewel, L.

Whitty, L.

Sheldon, L.

Wilkins, B.

Simon, V.

Williams of Elvel, L.

Slim, V.

Williams of Mostyn, L. (Lord Privy Seal)

Smith of Gilmorehill, B.

Stone of Blackheath, L.

Williamson of Horton, L.

Strabolgi, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
Original Motion, as amended, agreed to.
7.26 p.m.

LORDS AMENDMENT
44 Clause 103, page 62, line 39, at end insert "for purposes prescribed in section 102(5)"
The Commons disagreed to this amendment for the following reason:
44A Because it is not appropriate to limit the power conferred by this clause in the manner proposed by the amendment.
Lord Rooker: My Lords, I beg to move that the House do not insist on their Amendment No. 44 to which the Commons have disagreed for their reason numbered 44A.
Moved, That the House do not insist on their Amendment No. 44 to which the Commons have disagreed for their reason numbered 44A.—(Lord Rooker.)
44B Baroness Buscombe rose to move, as an amendment to the Motion that the House do not insist on their Amendment No. 44 to which the Commons have disagreed for their reason numbered 44A, leave out "not".
Moved, as an amendment to the Motion that the House do not insist on their Amendment No. 44 to which the Commons have disagreed for their reason numbered 44A, leave out "not".—(Baroness Buscombe.)
On Question, Amendment No. 44B agreed to.

LORDS AMENDMENT
48 Clause 110, page 66, line 10, leave out subsections (2) and (3) and insert—
"(1A) For the purposes of subsection (1), the following are third pillar measures"

(a) the 1995 Convention drawn up on the basis of Article K.3 of the Treaty on European Union on Simplified Extradition Procedure between the Member States of the European Union,

(b) the 1996 Convention drawn up on the basis of Article K.3 of the Treaty on European Union relating to Extradition between the Member States of the European Union, and

1483

(c) any framework decision adopted under Article 34 of the Treaty on European Union on the execution in the European Union of orders freezing property or evidence, on joint investigation teams, or on combatting terrorism."

The Commons agreed to this amendment with the following amendments:
48A Line 9, leave out "and"
48B Line 13, at end insert—
"(d) the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, and the Protocol to that Convention, established in accordance with Article 34 of the Treaty on European Union, and
(e) the provisions of the Schengen acquis which are referred to in Council Decision 2000/365/EC, so far as they relate to Title VI of the Treaty on European Union."
48BB Lord Rooker rose to move, That the House do agree with the Commons in their Amendment No. 48A and so much of Amendment 48B as falls within paragraph (d) and do disagree with so much of Amendment No. 48B as falls within paragraph (e).
The noble Lord said: My Lords, as an English translation of that, Amendment No. 48BB is in my name and those of the noble Lords, Lord Dixon-Smith and Lord McNally. Bearing in mind the circumstances, nothing else need be said, as we have obviously reached an agreement on the issue.
Moved, That the House do agree with the Commons in their Amendment No. 48A and so much of Amendment No. 48B as falls within paragraph (d) and do disagree with so much of Amendment No. 48B as falls within paragraph (e).—(Lord Rooker.)
On Question, Motion agreed to.

LORDS AMENDMENT
66 After Clause 124, insert the following new clause—
"EXPIRY

(1) This Act, apart from Part 12, shall (subject to subsections (2) to (5)) cease to have effect at the end of the period of one year beginning with the day on which the Act receives Royal Assent.

(2) The Secretary of State may, subject to subsections (3) to (5), by order provide—

(a) that a provision of the Act which is in force (whether or not by virtue of this subsection) shall continue in force for a specified period not exceeding twelve months;

(b) that a provision of this Act shall cease to have effect;

(c) that a provision of this Act which is not in force (whether or not by virtue of this subsection) shall come into force and remain in force for a specified period not exceeding twelve months.

(3) Parts 1, 2, 6, 7, 8, 9 and 14 of this Act shall, by virtue of this subsection, cease to have effect at the end of the period of five years beginning with the day on which this Act is passed.

(4) Parts 3, 5, 10, 11 and 13 of this Act shall, by virtue of this subsection, cease to have effect at the end of the period of two years beginning with the day on which this Act is passed.

(5) Part 4 of this Act shall, by virtue of this subsection, cease to have effect at the end of the period of one year beginning with the day on which this Act is passed.

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(6) Any order made by the Secretary of State under subsection (2) must be made by statutory instrument and may not be made unless a draft has been laid before and approved by resolution of each House of Parliament."

The Commons disagreed to this amendment but proposed the following amendment in lieu thereof:
66A Before Clause 121, insert the following new Clause—
"REVIEW OF ACT

(1) The Secretary of State shall appoint a committee to conduct a review of this Act.

(2) He must seek to secure that at any time there are riot fewer than seven members of the committee.

(3) A person may be a member of the committee only if he is a member of the Privy Council.

(4) The committee shall complete the review and send a report to the Secretary of State not later than the end of two years beginning with the day on which this Act is passed.

(5) The Secretary of State shall lay a copy of the report before Parliament as soon as is reasonably practicable.

(6) The Secretary of State may make payments to persons appointed as members of the committee."

Lord Rooker Lord Rooker had given notice of his intention to move, That the House do not insist on their Amendment No. 66 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 66A in lieu thereof, with the following amendment to Amendment No. 66A—
66AA After subsection (5) insert—
"( ) The Secretary of State shall also lay before Parliament, as soon as is reasonably practicable, a statement as to—

(a) his views on the report, and

(b) what action (if any) he proposes to take in response to it ."

The noble Lord said: My Lords, I am getting better at the procedures in this place, but they are still a mystery to me. I understand that it may be possible to reach agreement to deal with the concerns raised on the clause. I therefore do not propose to move Amendment No. 66AA. The debate should therefore take place on Amendment. No. 66B. If the wording of what I have just read out means exactly what it says, I do not think that there is much room for a debate, because there is a possibility of reaching agreement to deal with the issue.
I beg to move that the House do not insist on their Amendment No. 66 to which the Commons have disagreed.
Moved, That the House do not insist on their Amendment No. 66 to which the Commons have disagreed.—(Lord Rooker.)
66B Lord Dixon-Smith rose to move, as an amendment to the Motion that this House do not insist on their Amendment No. 66 to which the Commons have disagreed, leave out the words after "House" and insert "do insist on their Amendment No. 66 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 66A".
The noble Lord said: My Lords, things may be going on elsewhere, but we still need to create an environment in which those things can continue. To do that, we have to ensure that the sun will set on this Bill.
We may have sounded last post some time ago, and the sun may indeed have gone down, but I understand that the clock has stopped in another place.
We have to include this sunset clause. We have very thoroughly debated it all before, including the procedures under which we have had to consider the Bill perforce. We want the legislation as much as the Government do. As the Bill is not wholly satisfactory, however, this sunset clause is justified. I do not intend to waste the time of the House. I beg to move.
Moved, as an amendment to the Motion that this House do not insist on their Amendment No. 66 to which the Commons have disagreed, leave out the words after "House" and insert "do insist on their Amendment No. 66 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 66A".—(Lord Dixon-Smith.)
On Question, Motion agreed to.
Viscount Bledisloe: My Lords, I think, subject to your Lordships' guidance, I can hardly move Amendment No. 66C because it would amend Amendment No. 66A, which has not been moved. I hate to make a suggestion to the Chair, but I see that those who are at the Table are nodding.
All I shall say, as I have been allowed to get to my feet, is that I hope that at some stage I may be informed of what those secret conclaves are deciding so that I know what to do with my amendment at a later stage. I think that I am out of order, but it is not my fault.
Lord Dixon-Smith: My Lords, I thought that the only amendment that had been moved and spoken to was Amendment No. 66B. However, I thought that the Lord Chairman said Amendment No. 66A when he stood up, which is unfortunate.
The Deputy Speaker (Lord Skelmersdale): My Lords, it was clearly not moved.
Lord Rooker: My Lords. I may be wrong, but I think that we have agreed to Amendment No. 66B without a vote. It was agreed without a vote on the basis that discussions are taking place elsewhere. So as far as I am concerned, this House has concluded its consideration of the Commons Amendments.

Office of Communications Bill [H.L.]
7.33 p.m.
Read a third time.
Clause 1 [The Office of Communications]:
Baroness Miller of Hendon Baroness Miller of Hendon moved Amendment No. 1:
Page 1, line 11, at end insert—
"( ) The appointment of chairman of OFCOM shall not be made until a bill to give effect to the proposals in section 2(3) to regulate communications is published."
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The noble Baroness said: My Lords, in moving Amendment No. 1, I shall also speak to Amendments Nos. 2 and 4, the second of which was tabled by the noble Lord, Lord Gordon of Strathblane, and myself.
I think that the amendments are self-explanatory, and Amendments Nos. 1 and 2 are a logical extension of Amendment. No. 4. The group consists of what could be called sunrise amendments which are designed to modify the amount of pre-emptive activities and expenditure that can be entered into by the embryonic Ofcom under this enabling legislation before Parliament has defined its powers and duties.
As the well-known saying goes, cometh the hour, cometh the man—or perhaps I should say person. But the Government have had more than five years—since they started drafting their 1997 general election manifesto—to formulate detailed proposals in this sphere. However, whatever their drafting problems, we cannot establish an elaborate and potentially powerful organisation, with an equally powerful chairman and chief executive, without knowing precisely what qualifications might be best suited to the performance of their duties, what the organisation is going to do, or even when it is going to do it. The only way of aligning Ofcom with the eventual substantive legislation that it will administer is to link them by ensuring that Ofcom starts to operate only when its brief and duties have been fully defined.
The amendments have two purposes. The first is to ensure that Ofcom does not go galloping off in using the fairly wide powers provided by Clause 2(3) to spend money, to set up its organisation and possibly to formulate policies that will then be presented to Parliament as a fait accompli while or—this is very important—even before the substantive legislation is being deliberated on. All we are asking is that before this legislation which the Government describe as enabling comes into effect, Parliament has the opportunity to see precisely what is being enabled in the long term.
In moving his amendment which I fully supported—on this topic in Committee, the noble Lord, Lord Gordon of Strathblane, accepted that the Government had a problem, and he accepted their assurance that they would consult as widely as possible. He also acknowledged, as I do, that the Government cannot tie themselves down to a particular form of consultation or to a legislative timetable, although we hope that they will manage to sort out their intentions and announce them very quickly. The uncertainty is not doing the communications industry any good at all. These amendments will ensure that Parliament knows what the organisation we seek to establish is all about before the Government are able to press the button starting its operation.
The second and possibly more important purpose of Amendment No. 1 is to remove uncertainty from the existing five regulators. Even before passage of this Bill, they have been working in a type of limbo, and so have their staff. Staff realise that merger of the five regulators will result in some redundancies, and it

1487
would not be surprising if some of them sought other employment before the arrival of their P45s. That type of slippage means that the regulators could find themselves short of key personnel during the interregnum, thereby reducing their efficiency. Even the individual regulators' usual commercial decisions are being inhibited. Purchase of new equipment and contracts for services, for example, may very well have to be put on hold.
The Minister's commitment to a six-monthly progress report from the Government is very welcome. However, no one knows whether or when the substantive legislation, still in the throes of drafting, will receive parliamentary time. We have all witnessed, particularly in the past few days, how sudden calls can be made on legislative time, thereby disrupting the Government's programme even when a drastic timetable curtailing discussion has been imposed.
The purpose of this group of amendments is only to concentrate the Government's mind on getting on with the main Bill, which, with all the constructive goodwill that exists, will inevitably require detailed scrutiny. If precedent is followed, the Bill will take from six to nine months from introduction in the other place to Royal Assent. We are not trying to limit the Government's powers or to inhibit the intended substantive legislation. On the contrary, we have made it absolutely clear that we support the general principle of having a single regulator to cover the industry entirely.
On 15th October the Minister stated that,
"the work in process now embarked on by the steering group of regulators and DTI/DCMS officials provides a satisfactory process for carrying on with the planning for the new body".
So no time will be lost by accepting this series of amendments. At this time we want a simple assurance from the Government that Ofcom will remain a shadow organisation until the Government show us the substance. I beg to move.
Lord Gordon of Strathblane: My Lords, I do not go quite as far as the noble Baroness in that my sunrise simply requires the publication of the draft Bill for one week. It does not require discussion; it does not require scrutiny. I rely simply on the fact that if it is published, all those interested in Ofcom will respond quickly and the Government will obtain within a week a clear idea of the public reaction to the draft communications Bill.
However, I agree with the noble Baroness that it would be sensible for the Government to wait until they have tested the water with their proposals before making key appointments like the chairman and chief executive. I warn them that we will only get public consultation when people have seen the detail of legislation. That is the only way to gauge the impact of the full consultative process.
The Government have gone a long way in giving us pre-legislative scrutiny and we all welcome that—me more than anyone—but let us be clear. We hope that pre-legislative scrutiny will improve the quality of the communications Bill, and perhaps also smooth its
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passage through Parliament. We are not talking about the full communications Bill; we are talking about the creation of Ofcom and simply expressing the concern that if we make key appointments to Ofcom before the full Bill is even published, there is a danger that the right people may not have been chosen for the right jobs, or even that the right range of jobs were not had in mind.
I can give two possible scenarios. It is by no means impossible that the relationship between Ofcom and the BBC will be somewhat different by spring from that which exists now. Furthermore, a consultative exercise is taking place on cross-media ownership. A very tough regime will arise out of that or a very light one. Surely we need to know which before we decide how to staff up and resource that particular department of Ofcom.
All I am saying is that I started in Committee asking for 12 weeks. I dropped that to four weeks. I am now dropping it to one week. I simply say this: it would be silly to appoint the chairman of Ofcom and its chief executive before the draft communications Bill is published. I shall not press this amendment. But I give the Government this warning: if they do not wait, then on their heads be it if they get it wrong.
Viscount Falkland: My Lords, we on these Benches agree with a good deal of what has been said by both noble Lords, particularly the noble Lord, Lord Gordon of Strathblane. We feel that the Government should get on as quickly as possible to produce the main Bill. We look forward to seeing the draft Bill when it comes before us.
We on these Benches appreciate that this is extremely complicated legislation, perhaps the most complicated in this Parliament. There are obvious difficulties in drafting. Whether or not it is right to set up the structures as outlined by the noble Lord, Lord Gordon of Strathblane, we do not know. We feel that he has some good points and shall be interested to hear the Minister answer the anxieties expressed. By and large we are grateful to the Government and to both noble Lords on the Government Front Bench for dealing with the concerns expressed—many more than we expected—and we look forward to the assurance, which I am sure the noble Baroness is just about to give us, that a draft Bill will be with us as quickly as possible. We can then allay in short order many of the fears, as the noble Lord, Lord Gordon of Strathblane, and the noble Baroness, Lady Miller of Hendon, said, expressed within the industry and staff.
7.45 p.m.
Lord Brooke of Sutton Mandeville: My Lords, I was not in the House at Second Reading. I was not a Member of the House at that time, though I could and can read the debate. I was present in Committee, though I had not made my maiden speech at that stage. It is recommended that we make our maiden speech in a debate where there is a prepared list of speakers so that whoever has the misfortune to speak after us can in fact phrase in advance what they want to say about the maiden speech.

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I felt in Committee that the subjects of these amendments were well worth discussing. I have two reasons for supporting the amendments, but I share with the noble Lord, Lord Gordon, the feeling that it is important that the principle should be established rather than that there should necessarily be a great delay.
My first reason is that I was the first head hunter in this land and one of the things that head hunters try to insist on with their clients is that there should be extremely rigorous specifications before an appointment is made. It is possible to rue in retrospect if somebody is appointed before there is a clear idea of what they are going to do.
My second reason is that, as I believe I mentioned on Report, I had service as the chairman of the Building Societies Ombudsman Council. One of the difficulties while building the ombudsman schemes was that the Financial Services and Markets Act took a long time to come to its conclusion—not in terms of its going through the House, but in terms of the dates of execution. Indeed, N2, which is what wound up the old ombudsman schemes, occurred only on 30th November—two weeks ago—long after the legislation had been passed. A great many people therefore were sitting around effectively taking pay but not doing much while the Financial Services Authority worked out the various codes and brought the various ombudsman schemes together. It seemed unfortunate to me that that contingency had not been foreseen, though it was necessary for us to remain in existence.
I can see the opposite happening in this scheme; that if there are considerable delays for the legislation, then the officers of the new organisation will, equally, be sitting around not doing much and drawing pay in a manner which is not necessarily the best way of running a railroad.
The Minister of State, Department for Culture, Media and Sport (Baroness Blackstone): My Lords, the noble Baroness, Lady Miller, said she wanted to concentrate our minds in relation to producing the communications Bill. I can say that no minds can be more concentrated than they are on making sure that this Bill is produced and ready for the pre-legislative scrutiny that we have guaranteed. That in itself requires a great deal of concentration of mind, so I hope I can give her that initial assurance. Everyone who is involved will be working extremely hard to get the Bill ready so that there can be the proper scrutiny of what the noble Viscount, Lord Falkland, described as a very complex Bill.
Any of these amendments could cause unfortunate delay in the preparation to create Ofcom and I see no advantage in delay of that kind. I hope that the firm commitment that we have given on pre-legislative scrutiny will assure all noble Lords who have taken part in the passage of this Bill that there will be the fullest possible opportunity to debate the substance of
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the new regime. There is therefore no need to delay the practical steps that need to be taken in relation to appointments.
I hope that the noble Baroness does not want to postpone appointments until the introduction of the Bill. That may be a year away. The drafting of her amendment is not entirely clear. But even if she would be content to see appointments made when the draft communications Bill is published, I see no benefit in linking the timing of these events. As I said, we want to publish the Bill as soon as we possibly can, and we also want to appoint the chairman without delay so that the complete Ofcom board can take charge of the practical steps as soon as possible after next summer.
Perhaps I may respond to a couple of points which the noble Baroness made. Ofcom will not be able to regulate until the main Bill receives Royal Assent. The White Paper sets out what OFCOM will do. We are clear about the kind of qualities required for the chairman and the other hoard members. In that sense delaying the appointments is also unnecessary. The Bill makes clear that OFCOM cannot interfere with existing regulators. In my view the way to reassure staff is to make early progress in creating OFCOM. That is the best possible reassurance they can be given. Let us get on with the appointments as soon as practicable.
I respond to a further point which the noble Baroness made. I believe she suggested that commercial decisions might be put on hold. There is no sensible reason why the existing regulators should cease to operate as normal. They are well aware that the intention is that transfer schemes, drafts of which are provided for in Clause 4(2) of the Bill, will ensure that all the current commercial relationships will continue unaffected after the transfer to Ofcom.
I turn now to the amendment of my noble friend Lord Gordon of Strathhlane. That would also delay appointments until the introduction of the communications Bill. Like the BBC and cross-media ownership, it will be fully debated during the pre-legislative scrutiny. There again, I see absolutely no reason to delay the appointment of the chair. The full board will appear several months later, after the chair is appointed.
Lord Gordon of Strathblane: My Lords, I ask the Minister to give way briefly. Would she not agree that the appointment of the chairman and chief executive would be better made after the debate rather than before?
Baroness Blackstone: My Lords, no. The whole purpose of appointing a chairman and subsequently other members of the board, is for them to start working with the existing regulators. I believe that that will provide reassurance to staff, as I have said. The dates on which the Government plan to make the appointments have now been agreed by the existing regulators. Therefore, we should get on with it.
I ask my noble friend and the noble Baroness, as I did at Committee stage, what they consider to be the benefit of delay. Some noble Lords have expressed

1491
concern that the details of the new regime have not yet been spelt out. But anyone who has read the White Paper has a pretty clear picture of the functions that the Government intend for OFCOM. There is now a consultation document on media ownership. Perhaps I may yet again reinforce that there will be a full opportunity for pre-legislative scrutiny of the draft Bill by a joint committee of both Houses.
In the light of those reassurances and the commitment I have made to get on with the matter, I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Miller of Hendon: My Lords, I thank all noble Lords who have spoken supporting Amendments Nos. 1 and 2. I separate that from what I say about Amendment No. 4. I believe that the Minister has probably misunderstood. I suggest that we all take some blame for that but certainly not the Minister, because we want to make sure that when the chairman and the chief executive of Ofcom are appointed those making the appointments know exactly what the chairman and the chief executive are to do. We have not seen the Bill. In an organisation which I chair I have recently been through a lengthy process to choose a chief executive. There is no way in which I would have become deeply involved in choosing somebody unless the person chosen had seen the dots and crosses made so that they knew exactly what they were taking on and the skills required.
However, as the noble Lord, Lord Strathblane, said, there is no question of dividing on the issue. I believe he said something to the effect of "Be it on your head if something goes wrong". I emphasise that again. It is right to have it on the record that we believe it would be much more appropriate if those kinds of appointments were made at least after the draft Bill had been published. I say no more than that. The Minister said quite rightly that the Government's mind is really concentrated on this Bill. Presumably, therefore, the draft Bill will arrive when we believe it is due. It should not be too long after that that one can go ahead and appoint the chief executive and the chairman.
The Minister has made her points and we have made ours. For the record we hope that the noble Baroness is correct. If she is not, then it will not be good for the communications industry about which we are all concerned.
As regards Amendment No. 4, the noble Lord, Lord Strathblane, said that he would not go as far as I would. Indeed, I believe the noble Viscount suggested that he was more in tune. I would like to believe that he is because of what the noble Lord, Lord Gordon of Strathblane, said. I have looked again at my wording. I read it very carefully. I said,
"In other words, all we are asking is that before what the Government describes as this enabling Bill comes into effect, Parliament has the opportunity to see exactly what is being enabled".
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One can see very well what is being enabled in a draft Bill. Therefore, I am not suggesting anything different from that suggested by the noble Lord; only that my wording is slightly different. I shall not push the amendment. I beg leave to withdraw it.
Viscount Falkland: My Lords, before the noble Baroness sits down, for the record I said that I sympathised with what both she and the noble Lord said. But since the noble Baroness has spoken, on these Benches I am more in tune with her than I am with what the Government have said.
Amendment, by leave, withdrawn.
[Amendment No. 2 not moved.]
Baroness Anelay of St Johnsmoved Amendment No. 3:
After Clause 2, insert the following new clause—"
CONSIDERATION OF PROPOSALS

(1) The Secretary of State shall ensure that any bill containing provisions relating to the implementation of any relevant proposals within the meaning of section 2(3) is—

(a) published in draft; and

(b) subject to consultation.

(2) The period for consultation shall be such as to allow scrutiny of any draft bill by a joint committee of both Houses of Parliament.

(3) The Secretary of State shall publish a report on the outcome of a consultation exercise concerning the rules governing media ownership in such a way as to permit its consideration by any joint committee referred to in subsection (2)."

The noble Baroness said: My Lords, this amendment picks up on points that the Minister has already made as regards the pre-legislative scrutiny. At Report stage the Government gave assurances about the pre-legislative scrutiny of the draft Bill which were most welcome. But just four days later the Government published their consultation document on new proposals on media ownership. These are policy issues which formed part of the White Paper, but which have not formed part of our debates on this Bill.
I have therefore tabled this particular amendment at this late stage simply because, first, this is the first time one could do so as the consultation paper has only just appeared; and, secondly, in order to follow the proper guidance under Third Reading rules and Standing Orders: that is, to give the Government the opportunity to clarify certain uncertainties which follow on from the assurances that they gave the House at Report stage on the matter of pre-legislative scrutiny.
The press release issued by the DCMS issued on 26th November states,
"The consultation will last two months—the deadline for responses is 25 January—and will inform the draft Bill on Communications".
My question tonight is this: what does the Government mean by "inform"? Looking through the consultation document it appears that the Government are using two different approaches to different policy issues. On one occasion the

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consultation paper states that "views are invited", which looks a very green approach indeed. On another the paper states directly that,
"We will introduce a clause"
to the Communications Bill. In other words, it is done and dusted. For example, at paragraph 6.2.10 it states,
"We will retain the nominated news provider system for ITV but will introduce a clause to allow the Government on advice from OFCOM to revoke it".
It is proper at this stage before we get to pre-legislative scrutiny—on which the Government have given a commitment—to ask what is meant by "inform". Will the new clauses be added to the draft Bill for consideration by the joint committee, or will there be a separate Bill? Tonight the Minister reassured us. I believe that she said that issues of media ownership would be fully debated in pre-legislative scrutiny. One assumes that they can be fully debated only if they form part of the draft Bill. I hope that the Minister will be able to reassure me on that matter.
The practical effect of my amendment would be to require the Secretary of State to publish a report of the consultation exercise in sufficient time and in a format which would enable the joint committee to take those responses properly into consideration during its scrutiny of the draft Bill. I hope that the Government will accept that that is a responsible way forward. I make it clear at this point—as I hope that I have already—that I shall not press the amendment to a Division. It is merely a probing amendment to enable the Government to put on the record their commitment with regard to the work carried out by the joint committee. I beg to move.
8 p.m.
Lord McIntosh of Haringey: My Lords, it is nice to consider this matter without the threat of a timetable in front of us. It is also nice to be able to say that, largely, we can meet the wishes of the noble Baroness, Lady Anelay, with regard to the amendment.
Subsections (1) and (2) of the proposed new clause would require the Secretary of State to publish the communications Bill in draft for consultation and consideration by a joint committee of both Houses of Parliament. Subsection (3) would require the Secretary of State to publish the outcome of the current consultation exercise which could be considered by the joint committee.
We announced in the Queen's Speech that the draft Bill would be published this Session. We shall consult widely on it, just as we have consulted widely on the White Paper. On Report we gave a clear commitment that we would invite Parliament to establish a joint committee for pre-legislative scrutiny. The noble Baroness, Lady Blackstone, has just confirmed that. I confirm it "doubly", if that is of any assistance. Therefore, there is no need for the first two subsections of the amendment.
As regards subsection (3), the noble Baroness, Lady Anelay, rightly reminded the House that the consultation exercise which is now in process is due to
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report by 25th January. As soon as possible after the receipt of the responses, we shall publish a summary of the responses to the consultation document. In addition, unless respondents have asked for them to be treated as confidential, the responses will be available through the DCMS and DTI websites. Of course, at that point the Bill will still be going through the House of Commons, so that will inevitably occur before the joint committee has been set up.
As regards what is meant by "inform", the answer is twofold. First, as I said, we shall publish a summary of as many responses as we are able to publish. Secondly, that will inform the draft Bill and the explanatory notes to the draft Bill. I believe that that is the right way to do it rather than put another piece of paper in the public domain. I hope that with those remarks the noble Baroness, Lady Anelay, will feel that all of the elements in her amendment are met. The consultation document is a combination of firm proposals and proposals which are less firm. We must include in the draft Bill actual media ownership proposals. There will not be two Bills. The conclusions we reach and the outcome of the consultation will be reflected in the wording of the draft Bill.
Baroness Anelay of St Johns: My Lords, I am grateful to the Minister for making clear the Government's plans with regard to media ownership. I am also grateful for his explanation of what the Government mean by "inform". I am relieved to hear that any such proposals will be part of the draft Bill. I appreciate that that puts an extra onus on the Government to get the drafting of the draft Bill completed in good time. Noble Lords will recall that at the various stages of the Bill we have been concerned about the timing of the draft Bill. The late consultation on media ownership and the Minister's response make it clear that we may wait even longer for the draft Bill than might otherwise have been the case. I give way to the Minister.
Lord McIntosh of Haringey: My Lords, the noble Baroness, Lady Anelay, should not draw that conclusion. As I said, the consultation period will end when the Bill is still in its early stages in the House of Commons. We shall need some time to analyse the results of the consultation, but that will be concurrent with the passage of the Bill through the House of Commons. Therefore, I do not believe that any time will be lost. I have a pocketful of euphemisms on timing ranging from "very shortly", to "shortly", to "in due course", but I do not think that I need to use them.
Baroness Anelay of St Johns: My Lords, I believe we sometimes feel that the term that should be used is "eventually", but never mind. I am grateful to the Minister for that explanation. As I made clear, this is a probing amendment. I am grateful that my honourable friends in another place will have the opportunity further to consider Ofcom's structure with regard to media ownership issues. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Short title, commencement and extent]:
[Amendment No. 4 not moved]
An amendment (privilege) made.
Baroness Blackstone: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(Baroness Blackstone.)
On Question, Bill passed, and sent to the Commons.

Nursing and Midwifery Order 2001
8.7 p.m.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath)rose to move, That the draft order laid before the House on 15th November be approved [10th Report from the Joint Committee].
The noble Lord said: My Lords, this order will implement important reforms to the system of professional self-regulation for nurses, midwives and health visitors. The order will establish a new regulatory body, streamline the present arrangements and deal more effectively with the complex range of issues affecting these vital professions.
The order has been the subject of extensive consultation going back over some years and, I am glad to say, of broad agreement. We have responded positively to many of the points made during the consultation process. A number of significant changes have been made along the way. I confirm today my view that the provisions of the order are compatible with European convention rights.
Under the order, the Nursing and Midwifery Council will replace the UK Central Council for Nursing, Midwifery and Health Visiting and the four national boards. These proposals represent a key component of our wider efforts, working in partnership with the professions themselves, to drive up and sustain quality throughout the health service. The public and patients are entitled to expect that those treating them are properly regulated and that there is consistency across professional boundaries. We signalled our intention to modernise regulation in the NHS Plan in July 2001 and set three tests for the regulatory bodies. They must be smaller, with much greater patient and public representation. They must have faster and more transparent procedures. They must develop meaningful accountability to the public and the health service.
These orders fully reflect those commitments. But this is only a part of the reforms which are now under way. For example, we have strengthened the GMC's powers to deal with allegations against doctors; and we are working with the council on a wide-ranging programme of reform covering governance, revalidation, registration and conduct procedures. We have embarked on reforms to the regulation of dentists. In addition, the NHS Reform and Health
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Care Professions Bill that is being considered in the other place will further strengthen and improve professional self regulation.
The proposals meet the tests set by the NHS Plan. They will provide for a streamlined structure of council, statutory committees and panels, allowing far wider lay participation and expert input from the professions; a flexible, enabling framework with much greater scope for the council to design efficient procedures; a wider definition of unfitness to practise and more powers to deal effectively with it; and a duty to work in partnership with key interests—for example, employers, education providers, the professions and other regulators.
I referred to the need for and the benefits of consensus. The proposals have been endorsed by the professional bodies most closely concerned—the Royal College of Nursing, the Royal College of Midwifery, the Community Practitioners and Health Visitors Association, and Unison. I suppose that I ought to declare an interest in Unison. Those organisations' concern—and surely that of your Lordships—is that the law should be translated into effective action.
The professions concerned are the backbone of the health service—635,000 nurses, midwives and health visitors—and delivering on our aspirations for the NHS depends critically on supporting those key staff and encouraging an active partnership between them and those they serve.
The new council's principal purpose is set out in Article 3. It will, for the first time, be required explicitly to treat the health and well being of patients as its prime objective. The council will have a duty to collaborate with and to consult all those with an interest in its work—the professions, patients and clients, employers, education providers and other regulatory bodies. The council will have to be open and proactive in informing the public and the professions about its work.
The new council's core function, at Article 5, will be to keep a register of qualified professionals. It will establish and monitor compliance with standards of education and training, conduct and performance. The measure will not seek to define those standards—nor should it, since that is properly a matter for the council. In that respect, the order continues the tradition of 150 years of professional regulation. It is designed to modernise that tradition by providing a flexible and enabling framework within which the council can respond rapidly and effectively to changes in the provision of services, education and practice, and in public expectations.
The council will no longer need to seek rule changes through Parliament before it can change its operational procedures, as the UKCC must do now. That will give it the tools to do the job properly. That freedom is rightly balanced by areas that must be subject to approval by the Privy Council that are key to the performance of the core regulatory functions. They are the parts of the register and the protected titles for each part.

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In addition, the Privy Council will approve the fees that the council proposes to charge registrants; its election scheme for registrant members; and its forward business plan. The Privy Council will also appoint lay members and receive the council's annual report and accounts to present to Parliament. Both councils will have wider powers to deal with individuals who present unacceptable risks to patients. They are set out in Articles 22 to 33. The councils will have powers to deal with registrants whose fitness to practise is impaired through ill health, lack of competence or misconduct. At present, the UKCC labours under a wholly opaque definition of misconduct, as
"conduct unworthy of a nurse".
The council will also have a wide range of powers and sanctions to apply to registrants who are found unfit to practise. They will include cautions; conditional registration while retraining is undertaken or health is regained; suspensions; and striking off the register in extreme cases where the practitioner needs to be removed from treating the public.
The council will also have a critical role in positively guiding and supporting the vast majority of practitioners whose fitness to practise is never in doubt. The council will be much leaner and more strategic than the current bodies. Its initial composition will be 23 strong, with an elected professional majority of one. There will be guaranteed membership from each of the professions regulated. The Nursing and Midwifery Council will also have statutory committees—including one specifically to advise on midwifery issues, to recognise the unique regulatory function of midwifery supervision. The council's structure allows for an equal number of nurse, midwife and health visitor members.
The council may establish any other committees and panels that it needs, so it will have extensive opportunities to co-opt non-members to advise on professional matters or national policy, or to undertake detailed casework within the strategic framework that it sets. The council will report to Parliament through the Privy Council, which will approve any statutory rules the council makes.
We have taken on board most of the concerns raised by those who responded to an earlier draft but I want to address the issue of health visitors, as there has been great concern about the order among some members of that profession. The Government consider health visiting an extremely important profession, on which the NHS and the public depend. Health visitors have a hugely important public health role. Many people know them best for the help they give to families with new babies and their support through children's early years.
Health visitors also work with the most vulnerable people in our society. Health visitors work with individuals and families, to help them to change their diet; to stop smoking or abusing drink and drugs; and to encourage healthier lifestyles. They work in communities to build support for those with no family
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and friends. That way, health visitors promote physical and mental well being, and help to keep people living in their own homes.
With the developments in primary care that will be introduced over the next few years, health visitors will be at the forefront of joint working with partners in social care. I make it clear that the order will regulate health visitors. The words "health visitors" do not appear in the order because we do not want to tie the new regulatory body to only the health visiting function as it is now. We recognise that health visiting is expanding into other areas of community and public health practice. We want to give the new council the flexibility to reflect that changing role.
The order is the culmination of many years' hard work and discussion. I pay tribute to the representatives of nurses, midwives and health visitors who have made such an important contribution to the preparation of the order. There have been compromises along the way. Not everyone is happy with everything contained in the order's 101 pages but there is broad agreement that the measure represents a sensible outcome that will enhance the professions, provide faster and more transparent procedures, enable greater patient representation and, above all, uphold and strengthen public interest in professional self-regulation. I hope that the House will support the order. I beg to move.
Moved, That the draft order laid before the House on 15th November be approved [10th Report from the Joint Committee].—(Lord Hunt of Kings Heath.)
8.18 p.m.
Lord Clement-Jonesrose to move, as an amendment to the above Motion, at end to insert "but that Her Majesty's Government should also lay an amended order containing a provision for a compulsory register of specialists in community and public health, including health visitors".
The noble Lord said: My Lords, I thank the Minister for his customary clarity. I declare a family interest in the order, in that my sister is a health visitor—which gives me some insight into the value of the work of health visitors and the deficiencies in the order.
The Health Act 1999 represented agreement that changes to professional regulations would be effected by the affirmative order procedure, not primary legislation—and there were assurances that there would be full consultation. I recognise that there will be a number of competing professional interests and that a government are not always in control of the intra-professional communication that is needed. However, there is an overriding need to ensure adequate consultation and that reforms are not steamrollered over a profession in a minority. That applies both to this order and to the Health Professions Order, which is the subject of our next debate. Examining the Nursing and Midwifery Order convinces me that health visitors are not being treated properly or fairly. No compulsory register will be set

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up specifically for them, as at present, and there is no reference to the words "health visitor" in the title of the order, as there was in the 1979 Act. In fact, there is not a single mention of health visitors in the order.
Let us look at the situation from the point of view of health visitors. They happily believed that their representative organisation was busily negotiating away on a new regulatory structure. Then they heard that in order to fulfil a "modernisation agenda" for the creation of a wider group of specialist community practitioners, they would need to give up their right to separate registration. In fact, they were told that they will have to subsume themselves within that wider group and, under Article 6, that there will not even be a compulsory register for the new wider group, only one that may be set up by the Privy Council on the proposal of the new council—the NMC. Their membership may be only temporary to that body and, even then, they will be in a small minority. That is hardly satisfactory.
The only groups with a compulsory register will be the nurses and midwives. How would that make me feel as a health visitor—a member of a profession that has been in existence since 1860 and separately in statute since 1919? I would feel that I had been badly represented and I would be justifiably angry with the Government for creating anxiety and uncertainty among my professional group.
I do not place all of the blame on ministerial shoulders. The representative body concerned, which purports to represent some 16,000 or so public health specialist nurses, district nurses, community nurses, school nurses and health visitors appears to date to have failed to obtain adequate assurances from Ministers and to have caused a great deal of unhappiness among its members by failing adequately to debate these matters.
The Minster and his colleagues have on previous occasions and in correspondence said that everything will turn out all right. They say that whatever the arithmetic of the new council—health visitors will initially represent four out of 23 council members—community nurses, including health visitors, will in due course be granted their own register.
But what evidence is there that that will happen or that health visitors will not simply be treated as specialist nurses without their own register? Both the RCN and RCM are hostile to there being a third register. They say that health visitors are a group within nursing and are not a separate profession. Indeed, the RCN said that separate regulation is "confusing" for the public and other specialist interests in nursing. The proposal may never actually come about. It is for that reason that, without wishing to negate the order, we on these Benches want to amend it.
We seek cast-iron assurances from the Minister in various areas. First, we want the register for specialist community and public health practitioners to be definitely set up under the terms of the order, and we want it to include health visitors as a specific registering group or class of registrants. Secondly, we
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want name protection to be given to health visitors as part of that compulsory register. Thirdly, we do not want the order to dilute the pre-registration standards of qualification that are expected of health visitors. Moreover, if review work that is now in progress recommends that longer training is required, we want there to be mechanisms under the order to allow for that.
We on these Benches support much of what the professions and the Government are trying to do in terms of giving greater status and qualification to specialists in community and public health. However, that must not be done at the expense of damaging the morale of health visitors or their professional standing and qualification. That would be highly counter-productive. Research papers have clearly demonstrated that there are difficulties yet to be overcome before the specialist community practitioner role can be properly dealt with. As part of the regulatory reforms, I want a strong and viable public health visiting profession. The Victoria Climbie case has already demonstrated that the role of the health visitor in the community should not be minimised. They assess the factors involved with placing children at risk. I hope that the Minister can give the necessary assurances. I beg to move.
Moved, as an amendment to the above Motion, at end insert, "but that Her Majesty's Government should also lay an amended order containing a provision for a compulsory register of specialists in community and public health, including health visitors".—(Lord Clement-Jones.)
8.25 p.m.
Baroness Noakes: My Lords, I thank the Minister for introducing the order so comprehensively and the noble Lord, Lord Clement-Jones, for the clarity with which he moved the amendment. This is a complex area of professional self-regulation. I pay tribute to all those in the professions who have worked hard with the Department of Health to bring forward the proposals.
I am aware that these proposals are supported by the Royal College of Nursing, the Royal College of Midwives, and the Community Practitioners arid Health Visitors Association. Those organisations have provided me and, I am sure, other noble Lords with some helpful briefing. Noble Lords should welcome much in the order, which improves the regulatory framework within which those professions work. However, there are aspects of the order that cause concern, as the noble Lord, Lord Clement-Jones, made clear.
The Nursing and Midwifery Council, which will be created by the order, is the successor body to the UKCC. We should remember that the UKCC, while usually known by the initials of the first four words of its name, was in fact the UK Central Council for Nursing, Midwifery and Health Visiting. The new body, however, takes within its title only the professions of nursing and midwifery, not that of health visiting.

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Noble Lords may well ask: what is in a name? Names matter because they send powerful signals to the outside world. As the noble Lord, Lord Clement-Jones, said, health visiting has existed as a profession in statute for more than 80 years. The disappearance of the name from the title of the regulatory body could mislead the public as to the status of health visitors. More importantly, it could lead health visitors to believe that they are not a profession. That is important because the belief in, and practice of, specific professional standards is crucial to the delivery of high-quality care, the maintenance of standards and recruitment.
As the noble Lord said, just as serious as the omission of the name from the title is the omission of any mention of health visiting anywhere in the order or the Explanatory Notes. Conspiracy theorists would have had a field day. Health visitors have been amazed at the Government's fierce determination to refuse to mention health visitors. I was glad that the Minister took the opportunity today to place on record the Government's support for the profession of health visitors and their value in society.
The noble Lord, Lord Clement-Jones, explained that while the Community Practitioners and Health Visitors Association has supported the order, that is only part of the story. As he said, there is a strong body of opinion among health visitors that they have been sold down the river by the CPHVA. While the CPHVA claims that it has around 80 per cent support from its membership, it has never asked its members whether they are content with the terms of the order. The question that gets 80 per cent support is whether health visitors should remain part of the family of nursing. Health visitors have not been asked about the order, which contains no entrenched protections for the profession of health visiting.
A small group of health visitors, including a recent former chairman of the CPHVA, became disturbed at the development of the draft order and the absence of specific reference to the health visiting profession. They enlisted the support of a number of branches of the CPHVA and called for a special meeting of the association to discuss the matter. The council of the CPHVA refused that elementary democratic process. This group of health visitors, who have styled themselves the Grassroots Network, have contacted a number of individuals who are involved in the affairs of the association's branches. It does not claim that those people form a statistical sample. However, the overwhelming view of those to whom they spoke wanted to see "health visiting" in the title of the NMC. That is perhaps not surprising. But 80 per cent of the members expressed concern about inadequate regulatory safeguards in the order which they believed would adversely affect health visitor training and education.
The amendment put forward by the noble Lord, Lord Clement-Jones, refers to the compulsory establishment of a separate register for community and public health nurses. That is not the desire of the Grassroots Network, whose primary aim is to protect
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and enhance the role of health visiting. At present there is no recognisable profession of community and public health nursing, and it is not self-evident that such a register will provide the necessary protection for the health-visiting profession. But, on the basis that half a loaf is better than none, I am confident that if there were a requirement for a separate register for community and public health nurses the democratic processes of the CPHVA could be harnessed for the benefit of the health-visiting profession in that context.
Health visitors form a small part of the professions of nursing. As the noble Lord, Lord Clement-Jones, said, they fear that their larger cousins in the Royal College of Nursing and the Royal College of Midwives do not regard health visiting as an identifiable profession. While health visitors will initially have four out of the 23 council places, there is a fear that, once the NMC arrangements are in place, the other bodies will gang up on the health visitors, remove the separate register, resist the creation of a separate community and public health register, and thereby remove specific representation of health visiting on the council.
I do not believe that that is a flight of fancy. The general secretary of the Royal College of Nursing said in a letter to me that the name of the NMC—that is, excluding reference to health visitors—
"reflects the view of the majority of RCN members that it is appropriate that the regulatory body refer only to the professions, rather than groups within the professions, that are regulated".
The RCN thus believes that health visiting is a group within nursing and not a profession.
Of course, if this were to come to pass, a majority of the council would have to be persuaded to remove the recognition of health visitors, and the Privy Council would also need to be involved. But I have been involved in professional bodies for a good part of my working life and I know how easy it can be to marginalise minorities. These are very real fears.
I want to raise a number of important questions relating to health visitors in addition to those put by the noble Lord, Lord Clement-Jones, to which I believe answers should be given. Is it the Government's intention that a part of the register will be maintained for health visitors, both transitionally and for the future? Do the Government believe that the health visitors' part of the register should not be closed without the consent of the council members who are health visitors? Do the Government believe that the health visitors' part of the register should not be closed unless a majority of health visitors themselves agree to closure? Do the Government believe that council representation for health visitors should not be removed; for example, if a majority of the council voted to close that part of the register but did not set up a separate community and public health register? And do the Government agree that the NMC must facilitate the protection and development of the professional knowledge of health visiting; for example, by updating its training rules?

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If the answer to any of those questions is anything other than an unequivocal "yes", health visitors everywhere will fear for their profession. And noble Lords would rightly conclude that the amendment proposed by the noble Lord, Lord Clement-Jones, is an essential adjunct to the order before us today.
8.34 p.m.
Lord Hoyle: My Lords, in rising to speak on this matter, I declare an interest. I am an ex-president of MSF, which is the permanent body to which the CPHVA is affiliated. I also want to say that I speak for the vast majority in the profession. I speak for many thousands of people. I must also put into context the health visitors' Grassroots Network, which I believe has written to all of us about this matter. Having said that I speak for the vast majority of its members, I should add that they number 150.
There has been talk about consultation, and several figures have been quoted this evening. It was said that 81 or 94 per cent of health visitors wanted "health visiting" in the title. But only 88 per cent of the people were consulted, which means that the survey was based on only 81 people. Against that, the CPHVA consulted all its members. It held a ballot and 81 per cent of those who replied were in favour of the order as it stands. Since then, independent surveys have shown that 5,000 people have been balloted
Baroness Noakes: My Lords, I thank the noble Lord for giving way. When he referred to what the members were balloted on, can he confirm that they were asked specifically—I believe that this is what he said—whether or not they were happy with the draft order?
Lord Hoyle: My Lords, I said that they were happy with the way that matters had progressed in relation to this matter. I also said that 81 per cent had gone further than that. Independent surveys were carried out in which 5,000 people were canvassed—that is, 82 per cent of the total. Only recently—that is, this year when the matter came before us—3,700 people were contacted. Again, 81 per cent of those balloted were in favour. Therefore, I say to the noble Lord and to the noble Baroness, who have spoken from the Opposition Front Benches, that they are speaking for a minority—a vociferous minority, I accept. However, that is the group for whom they are speaking.
This order is not about titles; it is about what will happen in the future. In the future the order will not only bring together the professions; it will also involve the public far more. It is about protecting the public as well as the professions. Professions are important but we must not be hidebound by them or by their names. We must see what is being done.
There are more health visitors on the new council than there were on the old one. In addition, they will have equality. This issue has not arisen out of nothing. Not only has consultation taken place among the members of that profession; there has been consultation with Ministers and officials. It has taken six-and-a-half years to arrive at the point that we have reached this evening. I say to anyone who wishes to
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destroy what has been built up over six-and-a-half years that there is a pointer to the profession being better and more professional. Health visitors will become involved. Their profession is a very proud one. In addition, as has been said, the public will be protected in relation to community and public health, too. We are moving forward.
I do not want to see this matter unravel because of amendments, however well meaning. I hope that, on reflection, the noble Lord, Lord Clement-Jones—he says that a member of his family belongs to this profession—will take into account what has been said by those of us who speak not only for one person but for the vast majority of health visitors and other professionals, such as those who work in community and public health. I hope that the order will not be held up or even destroyed because of a good intention upon which the amendment is based. I believe that we have moved on and that the noble Lord speaks for a tiny minority.
Baroness Emerton: My Lords, I declare an interest having had 48 years experience as a nurse and 23 years of being involved in the professional regulatory system. I was chairman of the UKCC until 1993. It is true that a need for change in the nurse regulatory system and nurse education was identified in 1948 and it took until 1979 for legislation to be passed. From 1983 until now there have been great movements forward in bringing nurse education into further education and universities. There has been movement in terms of the profession coming closer together. However, there is no doubt that large bodies are not effective and efficient at working speedily. It has been apparent that professional conduct work has been slowed down by procedure.
After the review of the present structure by JM Consulting recommendations were taken on board. We know that primary legislation was urged by the profession. However, we were persuaded by Ministers at the time, because consultation would take place, to go for an affirmative order. The profession, which includes nursing, midwifery and health visiting, were resistant at that stage. However, it was finally persuaded and consultation took place. As stated by the noble Lord, Lord Hoyle, that took place over a period of six years.
I am mindful of the words used by the noble Lord, Lord Clement-Jones, in terms of the minority group. The noble Baroness, Lady Noakes, referred to the minority of health visitors—which is a small minority—who wish to contest the title of the order and the fact that they do not have a separate register. We live in a fast moving world of change in the health professions. I support the order. I would ask that the amendment before us tonight be revisited in the light of the fact that the draft order states that the council may set up a register and that there is representation on the council of an equal number of nurses, midwives and health visitors, as the Minister stated, with a majority of one professional.

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I therefore support the draft order. I take into account the views of health visitors, who play an important part in the future of community and public health nursing. They have a proud profession on which to reflect. However, we have to look to the future in the provision of health care, both within hospitals and the community, which is fast moving. The delivery of the health professionals is extremely important. The draft order provides a facility in which there can be flexibility and whereby a register can be set up which could embrace all those that work in the community. I am sure that any council which well and truly reflects public and patients' interests will ensure that there is equal representation in terms of a need to set up a register.
8.45 p.m.
Baroness Turner of Camden: My Lords, I, too, declare an interest. The noble Lord, Lord Clement-Jones, said that his sister is a health visitor. My step-daughter is a health visitor and a member of the HVA. I was an official of MSF, which is the overall organisation to which the Health Visitors Association is affiliated. The HVA is a democratic organisation. It had its own elected executive and annual conference. The group that has been lobbying in favour of the amendment or against the order seems to be a tiny, maverick group. When consultation takes place, that must be with the elected leadership of those organisations. Who else should consultations proceed with?
The HVA is keen to have this order after six years. It thinks that it will help its members to move forward. It is anxious that the order should pass unamended tonight. It has pointed out to me that this will give the HVA stronger representation on the council than it has ever had before. It believes that the order will be helpful, and that it speaks for its membership except for a tiny minority. We do not have to take note of tiny minorities, no matter how articulate. What really matters are the elected senior representatives of the organisation. They are both elected and supported by the membership. I therefore hope that we shall vote tonight for the order unamended.
Lord Hodgson of Astley Abbotts: My Lords, the noble Lord, Lord Hoyle, had his finger on the button when he spoke of the key criteria being patient care and patient safety. Therefore, I understand the thrust behind the order which the Minister clearly explained. That having been said, I believe that the noble Lord, Lord Clement-Jones, has made a good point. I do not want to re-run the arguments put before your Lordships' House; they are clear.
Twenty years ago, as a Member of another place, I served on the Standing Committee which dealt with the Nurses, Midwives and Health Visitors Bill, which became an Act in 1997. Some of the issues that we are debating tonight are echoes down the years of the tensions that exist between the different professions—or different branches of the same profession, depending on how one looks at it—that we then had.
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As I recall, there was a long discussion within the then Labour Government about the short title of the Bill. As a result of that, it was concluded that "health visitors" should appear in the short title, as eventually happened. The reason given by the then Labour Government was that health visitors had a distinctive role in healthcare. More than any other, they operated in the community not within the structures of the NHS or the educational system. Theirs was an important and distinctive role, albeit a preventive one, but none the less important for that, as opposed to the curative role with which the other professions were concerned.
In the eyes of the Minister's predecessor at the time, Roland Moyle, it entitled them to a specific mention in the title of the Bill. There is a danger that if one is trained as a health visitor and called a health visitor one does not feel as committed to an order entitled "The Nursing and Midwifery Order" as a nurse or a midwife, or even a factory nurse or school nurse. I understand from official correspondence which I along with other Members of your Lordships' House have received that all parties, at least at an official level, are happy with the title of the order and what is contained therein. However, as the noble Lord pointed out, Clause 6(3) states "may provide". It does not require the register to be set up.
It is easy to talk of 19 or 20 per cent as being a vociferous minority. However, if we were to find a way to move from "may" to "shall", surely that would have the effect of calming the concerns of those health visitors who feel that their profession may be overwhelmed under the new structure and those who feel their distinctive contribution may be overlooked.
I hope that the Government will think about the noble Lord's amendment as a way of bridging the gap and ensuring that we move forward with the thoroughly praiseworthy reasons behind the order but that at the same time we carry not just 80 or 70 per cent of the health visiting profession with us but all of it, because it carries out such an important preventive role for the health of our society.
Baroness Howells of St Davids: My Lords, I feel compelled to speak in this debate. I am sure that noble Lords will not doubt me when I say that the one place in which the black community has excelled is in support of the profession that we are discussing. They have given unstinted help from the 1960s to now and have reaped the rewards. Nevertheless, I felt that it was important to find out from them what was really going on. They are in full support of the Royal College of Midwives, the Royal College of Nursing and the Community Practitioners and Health Visitors Association in welcoming the order.
All these organisations would have liked far more for themselves, but they all recognise that a fully comprehensive consultative process has taken place and the best possible formula has been found to accommodate all parties. They all say that this has been a long drawn out process that has found an

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acceptable solution to a very complex situation. The solution has been reached only with the dedication and commitment of the organisation involved, as well as the Departrnent of Health, which has handled this matter in a very efficient manner.
As has already been said, there has been extensive lobbying within Parliament by a small minority of health visitors who want a disproportionate level of representation on the nursing and midwifery council. The whole idea of the council is for the RCM, the RCN and the health visitors to work together in partnership, a word that is often used in this Chamber. Working in partnership is not for their benefit but for the benefit of the public. That will be a very tall order with these rebels creating tension within the three bodies. They oppose the setting up of the council unless they achieve all their demands. That is not democracy at its best and I suggest that noble Lords will recognise it as such.
If we allow this vocal minority of rebel health visitors to succeed, and we halt these orders, we shall see a situation where the public have less protection from practitioners. I am sure that no Member of this House would vote for members of the public to be left unprotected and open to the practices of unqualified medical practitioners.
There is another reason why we should support these orders. Should they fall, the professions will remain under the auspices of the United Kingdom Central Council for Nursing, Midwifery and Health Visiting. This body is preparing to be wound up. We know that it wants to wind itself up, because one senior officer has already announced her resignation and I am sure that others will follow. We shall be entrusting the welfare of the public to a body that has accepted that it is now time for a more modern body to come into being.
The organisations concerned with the NMC order are quite clear that they will want a full review of this legislation if there is further opportunity. They estimate that the process may take a further two years and will be an exhaustive affair. Two years of the public—the very public that we want to serve—being left without full protection; two years with the UKCC left in uncertainty; and two years of further wrangling between these august bodies.
We need to think about the welfare of the general public. We also need to take into account the views of the royal colleges of midwives and nursing, as well as the Community Practitioners and Health Visitors Association, which have all found agreement through this legislation. Voting against this order will be a retrograde step for Parliament and the health service and may have detrimental health implications for the general public.
Baroness Cumberlege: My Lords, before I make my contribution, I declare an interest as vice-president of the Royal College of Nursing and of the Royal College of Midwives and I hope a friend of the Health Visitors' Association.
The other day the Minister reminded me that it was I who conceived this difficult debate. When I was a Minister I commissioned JM Consulting Group Inc to
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review the regulation of nurses, midwives and health visitors. I did so because, prior to becoming a Minister in 1992, I was a lay member of the UKCC. I served under the very inspiring leadership and skilful chairmanship of the noble Baroness, Lady Emerton. I was very conscious when I was serving on the UKCC that the noble Baroness was determined that the issue that was most important was the protection of the public, as well as keeping these professions together in the nursing family.
That was not explicit in the regulations, it was implicit, and the noble Baroness consistently arid continually reminded us of our role. Having served on that body, I understood that the UKCC was cumbersome, rigid, slow, bureaucratic and very demanding of members' time. I should like to pay tribute to all the members of that body, particularly the professional members. But the costs to the National Health Service were high, because those people when they were in committee, on the professional conduct hearings and all the mechanisms involved in that, were not looking alter patients or clients in the community.
Like my noble friend Lady Noakes, I do not subscribe to the conspiracy theory. I understand the health visitors' fear about their professional status being eroded and also that the public is not being fully protected. But their fears are being exaggerated. As I understand the matter, the health visiting profession will be separately identified through the dedicated part of the new register; only a registered health visitor will be entitled to use the title that has been designated from that part of their new register; and under transitional provisions the health visiting profession will have separate representation on the new council and parity with the other professions. That is a huge step forward.
When I reviewed community nursing 15 years ago, I remember the publicity in the press. There were headings such as, "What do Health Visitors do?", "Why are health visitors there?", "What is their role?". There was tremendous ambivalence. There was pressure on my team to try to erode the role of health visitors. Trevor Clay, who was the general secretary of the Royal College of Nursing, asked me, "Are you going to do away with health visiting?" We did not because it has such an important role.
In the intervening 15 years we have seen its role expand enormously. They really are the praetorian guard. They are the people there to promote health. I have seen the cycle of deprivation broken very impressively, not by social workers but by health visitors. So of course I have great feeling for their concerns. But those involved in health visiting see the future. It is interesting that they have even changed the name of their organisation to the Community Practitioners and Health Visitors Association. That is visionary, and I hope that in future they will go on to break new frontiers to improve the health of our nation.
Much consultation has taken place over a long time, which should not be rubbished. The association has been extremely diligent in trying to obtain the views of

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its members. The view of the minority, and all the rest of it, has already been debated, so I shall not go into that. But the potential of the new council should be realised and the building blocks are there. It is with huge embarrassment that I find myself totally in support of the Government on this occasion.
I shall refer briefly to midwifery. A concern has been expressed about Article 45. I know that the Minister shares my view that women should have a choice about where they give birth. A lot of pressure is being put on women to give birth in hospital rather than at home when they would prefer to be at home. There is concern that where husbands, partners or friends take part in a birth and a midwife is not present, they may be prosecuted under the order.
I should like an assurance from the Minister that that choice will still be open. I hope that he will promote it in any way that he can. I also hope that he will assure us that no prosecutions will take place in such circumstances.
9 p.m.
Lord MacKenzie of Culkein: My Lords, I also rise to support the order and to oppose the amendment in the name of the noble Lord, Lord Clement-Jones. In doing so, I declare an interest as a current registrant in the register held by the United Kingdom Central Council and, latterly, as an associate general-secretary of Unison—although I have not been briefed by Unison for this debate.
There has been every opportunity for the organisations representing the professions to have their say during the long consultation period. Indeed, the outcomes have been very much influenced by the nursing and midwifery organisations. The royal colleges of nursing and midwifery, Unison and the Community Practitioners and Health Visitors Association have all been active in consulting and representing their members.
As someone who gave evidence and made representations to the Labour government in the run-up to the 1979 legislation, which gave effect to the UKCC and the four national boards, I know just how seriously nursing organisations take the issue of registration, professional regulation and discipline. The noble Lord, Lord Hodgson of Astley Abbotts, referred to that legislation and its run-up. It was the last Act carried by that Labour government before it fell in 1979, and I know that many concessions were made. I cannot remember whether the inclusion of health visitors was one of those, but many concessions were certainly made in the wash-up period before the Act was passed.
I also know, unless the world has changed since my day of representing nurses, that none of the organisations will have got everything that it wanted during discussions with the Government. That is the nature of the real world. The order represents an acceptable compromise agreed between the Department of Health and the professions of nursing, midwifery and health visiting. Lest any noble Lord be
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in any doubt, the unions to which I referred represent the vast majority of nurses and midwives on the register. None of those organisations will regard it as helpful if the amendment is carried.
When I was general-secretary of the Confederation of Health Service Employees—an organisation with about 70 per cent nurse membership, together with some midwives and health visitors—I was familiar with groups of members being unhappy with the outcomes of negotiations, consultations or democratic decision-making. Their cry was, as the noble Baroness, Lady Cumberlege, said, "We've been sold down the river by the leadership". They sought to engage every avenue to pursue their cause—including, of course making representations to Opposition politicians. I know nothing of the current internal business of the CPHVA, but sometimes such causes have as much to do with trying to usurp the leadership or preparing for a round of elections as with the issue.
What we have here is a great deal of compromise to reach middle ground with which everyone can live in the interests of the greater good. A group of health visitors believe that they have been sold down the river. They do not appear to see the wider picture. They do not see what others have given up in the course of reaching that compromise that meets the wider interest.
Let me give one example of such a compromise. If memory serves me correctly, the present statutory body, the UKCC, contains 28 elected nurses, four health visitors and four midwives among its membership. The order tonight provides for four nurses, four health visitors and four midwives. I know many nurses who think that that change in the ratio between the professions from 7:1 to 1:1 with health visitors may be a compromise too far, but the majority of them accept the need for a streamlined, efficient and flexible organisation. Nurses have not become a dissenting voice, notwithstanding what they have given up—some would say, given away.
To carry the amendment would be manifestly unfair to nurses, not least because many nurses—I am among them—accept that health visiting is part of the greater family of nursing. One cannot be a health visitor unless one is a nurse. Nursing is a family with several branches and, within those branches, many specialisms. Of course health visitors do a great job and tribute has rightly been paid to them today. We shall continue to do so. But many others do a great job: practice nurses, palliative nurses, district nurses, community psychiatric nurses and others in community teams who are not nurses, such as physiotherapists and occupational therapists. The boundaries between all of them are becoming increasingly blurred. Which would be in, and which out, in the definitions proposed by the noble Lord, Lord Clement-Jones?
If I can for a moment be critical of my profession, it has a propensity for élitism. All nurses are special, perhaps none more so than nurses registered in the specialty of caring for people with learning difficulties. They are special, but they are not élitist. They have not

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been lobbying for their own part of the register to be guaranteed. That may well happen—I have no doubt that it will—but they have not been lobbying for it.
Most of my clinical practice was in operating theatres and in trauma intensive care. We were a scarce commodity, but we were not, I hope, an élitist group. How could we be when so many of our colleagues used to suggest that we were really technicians?
In a profession as disparate as nursing, there is no room for élitism. There has to be room for change, development and continuing learning to keep pace with all the changes in society. As the noble Baroness, Lady Cumberlege, properly pointed out, in recent years health visitors have played a tremendous part in that change. I have no doubt that they will continue to do so.
There is no need for the amendment. There is already provision in the order for setting up a part or parts of the register for community and public health specialists. And with one health visitor to every nurse, to every midwife, I have not the slightest doubt that health visitors are well provided for; and I believe that a part of the register will include health visitors. However, the amendment would create uncertainty and would be a distraction from the real business of bringing regulation up to date and, most importantly, of protecting the public.
Baroness Gibson of Market Rasen: My Lords, I rise to support the Nursing and Midwifery Order and to support the CPH VA, whose leadership may have been a little maligned on occasions today. I here declare an interest. Before entering your Lordships' House, I worked for the Manufacturing, Science and Finance Union of which the CPHVA is a valid part. I worked there for 13 years with and for the CPHVA, so I am very familiar with the debate which is taking place in the Chamber today.
I also had the honour—and it was an honour—during that time to attend the annual conferences of the CPHVA. There has perhaps been a suggestion that the CPHVA is not a democratic organisation. Every year it holds a large conference attended by many representatives who represent the 18,000 members. Every year the director of the CPHVA addresses the conference.
I want to read a short extract from a report of the director's address to the 1999 conference because it has been suggested that the CPHVA did not mention to its members what was taking place. The article states:
"In her opening address she"—
Jackie Carnell, director of the CPHVA—
"said that the CPHVA's developing role in the arena of primary and community health care had meant letting go of some of the things held dear in the past, such as the name 'health visitor' in the title of the new Nursing and Midwifery Council.
Ms Carnell is then reported as saying:
"Some feel that this is a disaster for the future of health visiting. My message to all of you who feel this way is that you are wrong".
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The article continues:
"CPHVA members should have the confidence to know that health visitors were still leading the agenda from their place on the new council, so professional differences should be left behind. 'They weaken us and detract from the main agenda—an agenda to secure the right and appropriately regulated workforce for the future".
Jackie Carnell was not howled down. There were no shouts of "horror" from the floor. There were no riots at that conference. Instead, she was received with acclaim and a standing ovation at the conference for what she and the executive behind her had done for CPHVA members in relation to this order.
Finally, the CPHVA is not an organisation which is irresponsible. It obviously wanted to look after its members, so it took legal advice. It was firmly advised that the order as it is written fully covers the HVA and what it requests from the order.
9.15 p.m.
Lord Hunt of Kings Heath: My Lords, this has been a high-quality debate. That is not surprising because the issues we are debating are extremely important in relation to the future of these professions. All noble Lords have spoken from a great degree of experience in these areas. The noble Baroness, Lady Emerton, set the context of self-regulation. The enormous strides which have been taken over the past 40 years have been partly as a result of her profound leadership of the profession and her stewardship at the UKCC. While I firmly believe that the current rules surrounding the UKCC are not up to what we need for the modern professions and their regulation, I pay tribute to all UKCC members who have put in an enormous amount of hard work.
My noble friend Lady Howells of St Davids made a telling point about the community interest to black minority ethnic nurses, health visitors and midwives. She pointed out that they, along with most of the professions, which are so dedicated, welcome what is contained in the order.
The most striking point that I should like to make to noble Lords tonight is that the health professions are often accused of tribalism. Sometimes that accusation has been correct, but those professions—I include the 12 professions that we are to debate shortly—within the Health Professions Council have ridden above that tribalism. Surely it is unique that the Government stand before noble Lords with the backing of the 15 professional organisations, together with Unison, in support of the order. It is an order that will enormously enhance the public interest and public involvement in those regulatory councils. I repeat, surely that is unique.
My noble friend Lord MacKenzie spoke of the compromises that enabled this development to take place. Yes, there have been many compromises, but I believe that they have come about through a measured process of consultation. The noble Baroness, Lady Cumberlege, has already referred to her starring role in commissioning JM Consulting. When she welcomed its first report, concerning the professions supplementary to medicine, she said that she

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welcomed the report and supported its conclusions, but that completely new legislation would be required to streamline the existing arrangements. How right she was. Considerable consultation has taken place since 1996 in relation to the health professions, and since 1997 in relation to nurses, midwives and health visitors.
It is also worth making the point that we published our original proposals for a three-month public consultation on 1st August 2000, and completed those by 1st November 2000. Having considered those responses and having been involved in many discussions between the professions and those organisations which reflect the public interest, as well as the Department of Health, a draft order was then published for consultation. The comments we received as a result of that consultation very much reflected support and a recognition of the fact that the Government had listened.
I come to the issue of health visiting. We have had a long and passionate debate. I am aware of those health visitors who are concerned about the position of the health visiting profession, but I have to say that the professional body for most health visitors has campaigned long and hard for this very change. As my noble friend Lady Gibson pointed out, my experience of the CPHVA confirms that it is an extremely professional organisation that is well able to speak on behalf of its membership. Any government must rely on the basis of discussions held with the recognised professional organisations. That is what we have done.
In the light of all the discussions that have been held over the past few weeks since the order was debated in another place, I have talked to Mr Jonathan Ashbridge, the president of the shadow Nursing and Midwifery Council. I felt that noble Lords would find it helpful if I were able to give the assurances which he has given to me and to place them on the record tonight. In a letter which I received yesterday, Mr Ashbridge states that:
"I can confirm that the Council is committed to ensuring that there is a part of the register for health visiting. Indeed, at its meeting next Thursday, the Council will be asked to approve its response to the competence framework required for entry onto this part of the register.
The NMC's prime function is public protection. The full range of public health and community practice that health visiting embodies is seen by the Council as a vital component of the provision of healthcare in this country. It is therefore essential that the existing high standards of regulation must continue and be enhanced. It is inconceivable that health visitors would not play a significant role in the conduct and work of the Council as the majority of care provided in this country is and remains in the community.
Health visitor registrant members are already making a vital contribution to the work of the Shadow NMC. This reflects their comprehensive preparation in terms of education and training, but also their unique ability to articulate the wider health needs of the public. The proactive approach epitomises the modern face of regulation which is encapsulated in the draft order and is a valuable base which will underpin the Council's work".
I want to make it clear that we need to be able to protect the public by registering the whole range of health visitors and community and public health
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specialists. This protection does not come from having a profession named either in the order or in the name of the council itself. The protection comes from being included in the register held by the council. This means having the power to create a part of the NMC register for that whole group of practitioners, with a designated title and appropriate qualifications to match. The order contains a provision to do just that.
As noble Lords have remarked, we have provided for a part of the register for specialists in community and public health and for their four places on the council. In practice, this might change only if they themselves wanted it to happen, by extending their role to cover a wider group of specialists in community and public health. Before any change could occur, the council would have to consult health visitors and must have proper regard to their differing considerations as a group. This would extend their protected title and protected specialist training into a wider group.
The part of the new register will carry with it a protected designated title, which means that only those with the specialist approved training, such as in health visiting, which leads to registration in that part of the register may call themselves by that title. The title and part itself is for the council to propose and the Privy Council to determine. To make a far-fetched suggestion, even if the council tried to overrule the health visitor members by not proposing such a part—which is most unlikely—the Privy Council would still be able to overrule the council.
The title might be "Registered Health Visitor"; it might be "Registered Community Practitioner (Health Visitor), "Registered Community Practitioner (Public Health Practitioner)" or "Registered Community Practitioner (Family Health Practitioner)". The additional identifier in the parenthesis could be whatever health visitors choose, the NMC proposes and the Privy Council decides on to reflect their changing wider role. But, whatever it is, only practitioners with that special training may call themselves by that title. In future, the part of the register may be for "Registered Community Practitioner" with additional identification of the branch of specialist qualification in parenthesis—for example, "(Health Visitor)". There is an exact parallel to this on the Health Professions Council, which we shall come to debate shortly.
As to membership, the election scheme in Schedule 1 Article 2(2)(b) must be devised by the Nursing and Midwifery Council itself. Again, the health visitors on the council will be there to see that the election scheme provides for their part of the register to have members to represent it. Given that there must be health visitors on the council, it is inconceivable that they will not propose to have their own part on the register. From my discussion with Mr Ashbridge yesterday, I can assure the House that there are four very able and assertive health visitors already playing a full part in pursuing their professional interests.
My noble friend Lord MacKenzie made a telling point about membership. At the moment, on the UKCC there are 40 elected professionals. They

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comprise 28 nurses, eight midwives and four health visitors. The new shadow council, the transitional council, enables there to be four health visitors, four nurses and four midwives. What better protection can there be for health visitors than that change?
Like every noble Lord, I believe that the health visitor profession is a noble one. It has, as the noble Baroness, Lady Cumberlege, said, played an enormous role in developing public health in this country. I believe that the way in which the order has been constructed enables the profession to go forward and to enhance its responsibilities and role. I am convinced that there are sufficient safeguards in the order to enable that to happen.
I turn to the question raised by the noble Baroness, Lady Cumberlege, concerning midwives, and particularly to the proposal to increase the fine applicable to those who commit the offence of attending a woman in childbirth as a provider of care without an appropriate qualification as either a midwife or a medical practitioner. By "attend" we mean "assume responsibility for care".
The proposal is not intended to outlaw husbands, partners and relatives whose presence and general support for women in childbirth is extremely important. The point of the offence is to protect the function of midwifery in the interests of public safety. This has been an offence since the Midwives Act 1902. The fine incurred by the offence was £10 at that time. We received advice from JM Consulting, which thought that the level of the fine should reflect the seriousness of the offence. The Royal College of Midwives and some consumer groups supported that.
I am aware that the Association for Improvement in Maternity Services feels strongly that a fine for this offence should be dropped altogether. I understand why. The association wants this so that, in the case where a woman wants to give birth at home but there are no qualified midwives available to attend her, she may at least have the attendance of a partner or relative on the grounds that having someone unqualified is better than having no one in attendance at all.
The noble Baroness, Lady Cumberlege, knows that I am sympathetic to matters relating to childbirth as two of my own children were born at home. However, I also believe that the safety of both mother and baby is paramount. I accept the challenge that the noble Baroness lays down. But the best way to tackle this is to increase the number of practising qualified midwives to enable the health service to offer the home birth service which I believe it should be offering. I say unequivocally that that is our intention. I point out that there have been hardly any prosecutions for this offence. We have come across only one, which took place nearly 20 years ago.
Again, the quality of the debate has been outstanding. We are all agreed that we want to see enhanced professional self-regulation to enhance the public interest. No one disagrees with the noble Lord, Lord Clement-Jones, as to the importance of health visitors. I hope, however, that I have reassured the
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noble Lord that the intent in this order is to enhance the profession, to safeguard it, but to create the conditions in which it can expand and develop the services that it offers to the public.
Lord Clement-Jones: My Lords, I agree with the Minister that this has been an extremely useful debate. I very much welcome the support from the noble Baronesses, Lady Noakes and Lady Emerson, and from the noble Lord, Lord Hodgson for the Motion to amend the order.
I admit, however, that I am totally unrepentant in the face of the speeches of the noble Lord, Lord Hoyle, the noble Baronesses, Lady Turner, Lady Gibson of Market Rasen and Lady Howells, and the noble Lord, Lord MacKenzie—whose view seemed to be that I was entering into the trade union politics of the matter rather than debating the merits of the order.
Whether or not they are a "vocal minority" or "rebel" health visitors—and the noble Baroness, Lady Turner, suggested that we do not have to take any notice of tiny minorities, just of the "senior people"—the fact is—
Baroness Turner of Camden: My Lords, will the noble Lord give way? My point was that the people who were consulted were not just senior people; they were elected through the democratic process within the union.
Lord Clement-Jones: My Lords, I and others on these Benches have always taken one of the functions of this House to be the protection of minorities. It is an extremely important function. It is precisely why this Motion was tabled.
That minority has done a great service. It has elicited considerable assurance from the Minister. He elicited the letter from the shadow president of the new body giving the assurances on each of the three areas about which I asked him. That demonstrates that the minority was right in asking for such assurance. It was right to articulate its concerns to Members of this House.
I shall repeat those assurances because I believe that, effectively, the Minister has answered them. The first is that the register will be set up: I believe that the Minister has given us that assurance, and that it will include health visitors. It will not just be on a transitional basis, but it will be permanent. Secondly, there is the assurance about name protection for health visitors. Lastly, I believe that the Minister has also given an assurance about health visitors' qualification standards and that the new order can deal with and enhance those standards as part of the new registration process.
I am pleased that the Minister has given us those cast-iron assurances for which I asked. I believe that all health visitors will be able to unite behind the order. We have had an effective demonstration of how it is possible for Ministers to give such assurances. Although at the first hurdle they did not succeed, at the

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second hurdle—namely, in this House—we have had a satisfactory debate. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hunt of Kings Heath: My Lords, I commend the order to the House.
On Question, Motion agreed to.

Health Professions Order 2001
9.31 p.m.
Lord Hunt of Kings Heathrose to move, That the draft order laid before the House on 15th November be approved [10th Report from the Joint Committee].
The noble Lord said: My Lords, some of the remarks that I made in introducing the previous order are applicable to this one so my speech will be briefer.
This order is consistent with the order that we have just discussed. It will replace the Council for Professions Supplementary to Medicine (CPSM) and its 12 uniprofessional boards. It makes the same provision and gives the same benefits for the allied health professions and the patients who use their services, as the previous order does for nurses, midwives and health visitors.
Importantly, the HPC will be able to initiate proposals for the extension of regulation to new groups. This is a big step forward. The CPSM was restricted by law to covering only 12 professions, but the HPC has no such restriction. I pay particular tribute to the patience of such groups as the Association of Operating Department Practitioners and Perfusionists who did not secure the limited slots available with the CPSM. I know that they and other professional groups will look forward to the new HPC taking that work forward.
The HPC will have an option to have 25 members, 13 professional and 12 lay, where the president is a professional, as is the case with the appointments made to the shadow council. Of the 13, one will be the president and the rest will each represent one of the professions regulated by the council. We would not expect those members to do the work by themselves. The council must also have four statutory committees to cover the main functions of a regulatory body. Those committees will be multi-professional too, but there is no limit on their membership.
The council will have wider powers to deal with individuals who present unacceptable risks to patients set out at Articles 22 to 33 of each order. It will have powers to deal with registrants whose fitness to practise is impaired, whether through ill health, lack of competence, or misconduct. That will be a big improvement on the current limited powers of the CPSM, which is able to deal only with infamous conduct in a professional respect and has only one option for action which is striking off.
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The council will also have a critical role in positively guiding and supporting the vast majority of practitioners whose fitness to practise is never in doubt. In addition, the council may set up any other committees and panels that it needs. It will have extensive opportunities to co-opt non-members to advise on professional matters or on national policy or to carry out detailed casework within the strategic framework that they set.
I understand that one issue that will be discussed in the debate on this order is the matter of chiropodists, particularly unregulated chiropodists. The profession is split into those currently regulated, who have a full three-year degree training to cover footcare across the whole ill and well population, and the unregulated, who, I believe, train chiefly to carry out basic footcare on otherwise healthy people.
The order provides a transitional pathway to registration, open to those who can demonstrate that they have been practising safely and effectively or that their qualifications and experience are comparable to the current requirements for registration. I know that there are some concerns about how that will operate. I assure the House that both sectors are meeting regularly under the facilitation of the Department of Health and the shadow Health Professions Council with a view to reaching an agreed position on the requirements for registration before the new council is established next April.
In the order we have sought to tackle gaps in existing legislation. We have also taken on board the concerns raised by the professions and by consumer and patient organisations. They are unanimously in support of the order being passed. I understand that there are concerns, particularly about chiropodists, but I believe that the order is the best way forward. I commend it to the House.
Moved, That the draft order laid before the House on 15th November be approved [10th Report from the Joint Committee.]—(Lord Hunt of Kings Heath.)
Earl Howerose to move, as an amendment to the above Motion, at end to insert "but that Her Majesty's Government should also lay an amended order containing a provision for a practicable transitional period for entry of unregistered members of the chiropody profession to the register of the Health Professions Council and for wider representation on professional advisory committees".
The noble Earl said: My Lords, I thank the Minister for his comments on the order, which is very welcome in principle. We all recognise the importance of protecting professional titles and ensuring proper standards of training and competence on the part of those who administer treatment to patients. As a concept, the establishment of a Health Professions Council with enhanced powers compared with those of the CPSM is also a positive step forward.
However, as the Minister said, one group of professionals—the large group of non-state registered practitioners of chiropody and podiatry—are far from happy with the order. Chiropody is unique among the

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12 or so professions covered by the HPC in that it is the only one split almost 50:50 between state registered and non-state registered practitioners. Both sections account for about 8,000 members, although the non-state registered sector is slightly larger.
The split goes back to 1945 when five British chiropody organisations amalgamated and began offering their members to serve the needs of the newly formed National Health Service. They subsequently became the examining body for the purposes of state registration under the Professions Supplementary to Medicine Act 1960. At that time there was no compulsion and little incentive to be registered, unless one wished to work for the NHS. For that reason, the other half of the profession, represented by the British Chiropodists and Podiatrists Association and the SMAE Institute, which had not amalgamated, opted to remain unchanged.
The issue for non-state registered chiropodists is that, upon approval of the order, to be able to work as a chiropodist or podiatrist in the community they will need a three-year honours degree. The existing qualifications of those 8,000 practitioners will officially count for nothing, no matter how long, how safely or how successfully they have been practising.
Nobody, least of all the BCPA, has an interest in allowing sub-standard chiropodists to treat patients. Everyone wants proper regulation. However, the way in which the order will impact on the chiropody profession flies in the face of common sense. All of a sudden we shall be faced with the prospect that a substantial number of chiropodists and podiatrists who are doing important and valuable work will no longer be available to look after their patients. A large decrease in chiropodist numbers will put added pressure on an area of the NHS that is already over-burdened.
The HPC may or may not take a sensible, pragmatic view of this issue. However, the HPC will be dominated by the state-registered sector; the independent sector will have no representation on it whatsoever. I am quite certain that the state-registered sector is approaching these concerns responsibly and will want to avoid a large fallout of numbers, but the matter is largely not within their hands. A two-year transitional period has been allowed for to enable independent practitioners to transfer to the new registry. That period is totally impracticable bearing in mind not only the 8,000 applications that will need to be considered and processed, but independent-sector students who are due to qualify after the critical period.
It should be possible to find a way forward. There are already provisions to enable state-registered practitioners to be registered automatically even if they have no academic degree. So far, however, the picture looks exceedingly unclear. I am sorry to say this, but the Government give the impression that they have rushed the matter along without sufficient thought or discussion. They now seem to be throwing up their hands and saying, "It's all too difficult; the profession itself must sort out the problems". I believe
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that that is not a responsible position for Ministers to adopt. We are not talking about some small minority of under-qualified or unsuitable people from whom the public need to be protected; on the contrary, it is a very large number of skilled practitioners who to a greater or lesser extent have relieved the pressure on the NHS for very many years and do not feel that the Government have done them justice.
The order will enable the Government to wash their hands of the problem in the knowledge that the chiropody profession will now be fully regulated. It is deeply regrettable if that is all that matters to the Government. The Government should have felt that they had a responsibility to resolve these difficulties.
Perhaps I may turn to other matters of concern as reflected in my amendment. The Society of Chiropodists and Podiatrists, which represents the state-registered sector, is worried that there will not be adequate representation for each profession on the HPC. Without that, the society fears that the HPC's main aim will not be achieved—the effective protection of the public. I am aware of the proposals to establish professional advisory committees, but the PACs will only be ad hoc working panels to advise on specific projects; as I understand it, they will not be standing committees. Unless sufficient representatives of each profession have a real input into the HPC, it is hard to see how the public are to be reassured by what is now proposed. I wonder whether the Minister could comment on that.
Additionally, the society wants to see a role for the professional advisory committees in ensuring that the four United Kingdom countries are effectively represented in the deliberations of the HPC. There is currently no guarantee that each profession from each of the devolved countries will have a voice on the HPC, although that is apparently what the Government want to see. All that the Government have provided for is for at least one of the professional members and alternates to come from each UK country. As the society has stated, that could mean that a biomedical scientist from Scotland could end up representing all the Scottish professions on the HPC. How practical and how fair do the Government think that that would be?
As I said, we on these Benches have no quarrel with the principle of this order. Our complaint is that the Government should have taken a little more time and trouble to ensure that the concerns that I have outlined were eliminated. That should not have been beyond the wit of man. Regrettably, however, they have taken the decision that it is more important for the order to be rushed through, loose ends and all. I hope that the Minister can provide us with some real reassurances on those important matters. I beg to move.
Moved, as an amendment to the Motion, at end to insert "but that Her Majesty's Government should also lay an amended order containing a provision for a practicable transitional period for entry of unregistered members of the chiropody profession to the register of the Health Professions Council and For wider representation on professional advisory committees".—(Earl Howe.)
9.45 p.m.
Lord Clement-Jones: My Lords, I join the noble Earl, Lord Howe, in thanking the Minister for his exposition of the effect and benefits of the new Health Professions Order. In some ways, clearly, putting together the order for the new Health Professions Council to replace the CPSM has been even more difficult than the previous order. But it is clear that most of the professions involved are broadly supportive of the order, believing that it offers a better regulatory system than the current one. I particularly welcome the common registration for independent and state sector practitioners and the type of protection that that will give.
Yet as the noble Earl, Lord Howe, said, there are still strong concerns and problems. In the jargon of the trade, many of them are uni-professional concerns; that is, concerns that relate to individual professions and not necessarily to the scheme as a whole. One of those concerns relates to the practice advisory committees.
Under the previous 1960 Act there was a scheme of boards for each profession which was set up to regulate education and training for each of the 12 professions. Under the order there will be no statutory uni-professional arrangement. However, there will be professional advisory committees which can be set up by the council under paragraph 3(12)(b) of the order.
There is no compulsion for those professional advisory committees to be set up, nor is there any clear ambit for their responsibilities. Those committees should be standing committees with a clear remit.
In addition, as the noble Earl, Lord Howe, said, there is concern among some of the professions about the representation by each of them from the different nations in the UK on the slimmed-down council. The Minister and the council need to ensure that, as far as possible, the interests of the four countries are represented on the council. Perhaps the Minister can explain how that will be achieved under the order as it now stands.
Finally, there is unhappiness at the level of representation on the council among those professional bodies which reflect effectively two or three disciplines, such as the prosthesists and orthotists, or the arts, music and drama therapists. What comfort can the Minister give to those professions who feel that the size of the new body will cause problems to those individual disciplines?
Lord Hodgson of Astley Abbotts: My Lords, I must begin by apologising to the Minister because I was unable to attend the briefing he kindly held on this order the other day. Therefore if he tells me that the points I make were covered there, I accept that reprimand and pray his indulgence this evening.
I support the broad principles behind the order and its purpose. As more and more consult what is rather inelegantly called in this order the "relevant" professions, those professions are making an increasingly valuable and widespread contribution to our health and welfare. Therefore, conversely, the
1522
general public are ever more entitled to seek some form of imprimatur of their conduct, behaviour and competence.
I should like to ask for the Minister's reassurance on three points. The first concerns the grandfathering, which takes place in paragraph 6(3)(c) on page 11. I pray in aid here the fact that I was a board member in the City of one of the first regulatory authorities which required us to bring together individual registers and combine them. When we began to do this under the Financial Services Act in the late 1980s, early 1990s, we found that there was considerable difficulty in ensuring that the right standards of competence were held by all participants. It presented us with many practical problems. The grandfathering proposal in this order, while obviously attractive in theory, is not always as attractive in practice.
The proposal before us is designed to raise standards, to impose common levels of competence and so increase public confidence. The reassurance I seek from the Minister is that he is really convinced that this wholesale grandfathering from the 1960 Act will not undermine the authority and reputation of the new body. Clearly, some difficulties in the early days of the new body would severely damage its public reputation.
The second point concerns continuing professional education. It is a commonplace that we live in an age of rapid change, and the healthcare world is not immune. That is not just as regards the practise of professional skills, although that is obviously very important; it also covers the whole area of professional relationships. We no longer live in a deferential age but in a questioning age. Professional relationships have shifted and are continuing to shift.
I seek the Minister's reassurance that as regards Article 15(1)(b) on page 19 he believes that there is imposed a sufficiently clear duty for there to be a proper programme of continuing professional education. As a layman I did not find the wording of that clause particularly clear or compelling.
The last point concerns the discipline of the incompetent or errant. Until last summer I was the deputy chairman of a private hospital group. It was a for profit acute hospital group. In such companies one does not employ doctors, consultants or surgeons; one provides a facility within which they practise. But although one has no authority over their professional conduct, one has an interest in their competence because of the impact on the reputation of the hospital.
We found that complaints against doctors took a very long time to be heard by the GMC. They took many months and often one to two years. That was in no one's interest. It certainly was not in the interests of our company. It was not in the interests of the doctor, who had a cloud hanging over him the whole time. Above all, referring to our primary duty mentioned in the last debate, it was not in the interests of the patient, whose safety might be compromised.
I do not see in this order any requirement for urgency in the disciplinary procedures. I believe that the new body should have some duty imposed on it to

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act with sufficient celerity. If we are seeking to build public confidence we need to ensure that complaints are addressed promptly. I would therefore like to hear the Minister's views on that issue as well.
As I have said, I believe that this is a welcome order and I am pleased to see the emphasis that we are giving to the relevant professions. But I would like to hear the Minister's views on those three points.
Baroness Masham of Ilton: My Lords, can the Minister give an assurance to the House that in the interim period of state registration of chiropodists, there will be enough of them to deal with the ever-growing elderly population and the increase in the number of people with diabetes? Can the Minister say how a non-state registered chiropodist obtains full state registration?
Lord Prys-Davies: My Lords, it is rather late and I shall be brief. I support the order. I am very sorry that my noble friend Lord Morris of Manchester is unable to take part in the debate. He is president of the Society of Chiropodists, but he has had to keep a hospital appointment.
I am aware of the concerns, particularly among chiropodists, about some of the provisions of this order. I believe that the most important concern of the state registered chiropodists is that in their view the order fails to ensure that a strong, professional advisory committee will be established for each of the professions. Article 3 empowers the Health Professions Council to establish a PAC and that is obviously an advance. But it must also be said that the Health Professions Council is not under a duty to execute that power. Moreover, although the HPC has established a professional advisory committee, it can also abolish that committee.
The role of an advisory committee is usually to advise on any matter affecting its interests, including reporting on present conditions and making recommendations for future changes. What will be the role of an advisory committee established under Article 3? We have read what the president of the shadow Health Professions Council has had to say. She is in a key position. But the concept which she advanced has come in for criticism. I should be grateful if my noble friend the Minister could say how the department considers that a professional advisory committee should operate under this order.
I refer to an aspect of devolution. As far as I can see, the order contains at least three provisions which relate exclusively to Wales; namely, Article 6(3)(g), Article 20 and Article 45. There may be others which I have missed. Yet nowhere in the explanatory note is there a reference to those provisions. They are nowhere mentioned. I envisage that there will be more such provisions in the future as the Welsh Assembly develops policies to meet Welsh needs. Therefore, it would be helpful to the practitioner in Wales if the explanatory note were to draw his or her attention to
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the existence of such provisions within the order. That would be a simple improvement which should be built into the explanatory note in the future.
Lord Neill of Bladen: My Lords, I understand that the noble Earl, Lord Howe, raised a concern which I hope the Minister will address. The thrust of the argument seemed to be that a category of chiropodists, for example, would have to acquire a professional qualification over a set period to be able to go on the register, but the timing was such that they could not acquire that within the time limits imposed by the order. The practical effect of that appears to be that, for a period at least, certain people will be driven from their professional activity.
If that is the case, have the Human Rights Act implications of that been thought or If one passes legislation which has the effect of depriving a person of a profession, normally, as the noble Lord, Lord Hodgson, said, one has efficient grandfather clauses which ensure that all competent people who have practised a profession are carried on into the new system. There is no guillotine and one does not put people out of business. It may be that the legal premise for that is wrong. However, if a category of professionals could be put out of business by the order as they could not comply with its terms, that would be a grave matter. I hope that the Minister will address it.
10 p.m.
Baroness Dean of Thornton-le-Fylde: My Lords, in welcoming the order I declare an interest as president of the College of Occupational Therapists which greatly welcomes the order which has taken many years to reach the House. I have been president of the college for approximately seven years. I assure noble Lords that in that time, and before, the professions allied to medicine have pressed hard for the kind of order that we have before us. This is not a new idea. It has not been rushed through and it is greatly welcomed by the profession. Certainly, the provisions within the order for closure of title—as a lay person would express it—will prevent those without appropriate qualifications parading as titled practitioners. That measure is extremely welcome from the consumer protection angle.
Both that measure and the proposal to require the regulated professions to provide evidence of their continuing professional development and fitness to practise are welcome and are supported not only by the College of Occupational Therapists but also by the bodies that form the 12 professions which are covered by the order. College members work both in the state sector and private practice but there has been a relationship for many years between the college and universities for validation of degree courses—for which students receive no state aid, unlike nurses who can receive bursaries. That issue should be addressed but it is not before us this evening.
The college, together with allied health professionals, supports the order's provision for a robust system of self-regulation that puts public protection at the forefront. That does not exist at

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present. Persons are practising in professions allied to medicine who do not have a recognised qualification. The order provides for qualifications to be withdrawn but they must be held in the first instance. That provision is similar to one in the nursing profession where the regulatory body can withdraw a nurse's licence to practise. The order will introduce a similar measure to all the professions that it covers.
I hope that the noble Earl, whose views I much respect, does not press his amendment. The order has been a long time coming. There has been plenty of time for people without qualifications to improve, to ensure that registration is within their grasp. The transitional arrangements should provide for that to happen. If your Lordships insist on specifying who will sit on the new body, what committees it will form and how it will operate, that would tie the council's hands. The new body will not be a closed shop but will have lay representation, which the professions also welcome.
Does the Minister agree that the new Health Professions Council must work in partnership with the College of Occupational Therapists and the 11 other professions? Also, will the Government ensure that the regulated professions play a full and equal part in maintaining high standards of professional practice—if for no other reason than the protection of the public?
The majority of professions allied to medicine welcome the order. They pressed the previous government for such a measure but did not get far. They have been pressing the present Government since the 1997 general election. The order will underpin the quality of services provided. It will ensure that when individuals do not practise to high standards, their professional body will have the authority to withdraw their title. I welcome the order and hope that the House will support it.
Lord Hunt of Kings Heath: My Lords, a common theme has been the importance of the 12 professions that will be regulated under the new council and the hope that other professions will be regulated in future. Considering the challenges facing the National Health Service, there is no doubt that the professions covered by the proposed Health Professions Council will have an important role.
I was somewhat amused when the noble Earl, Lord Howe, said that the process by which the order was brought to your Lordships' House involved "rush"; that is not the word that I should choose. It has been a very long process—too long, in many ways.
As with the NMC, extensive work has been undertaken with the professions, groups that represent the public interest and the department to try to get the matter right, and I believe that we have done so. My noble friend Lady Dean raised an important point when she discussed partnership with the profession. One criticism that I should make of the CPSM's record is that in many cases it had lost the confidence of the professional organisations. I believe that the HPC will work effectively only if, in serving the public interest, it develops a strong partnership with each of the 12 professions.
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We have appointed a very good shadow council and I am confident that the right leadership is being provided. I say to my noble friend that I am convinced that the HPC will seek to work in partnership with those professions. Unless the HPC, in protecting the public interest, also allows those professions to feel real ownership in relation to the its work, it will not work effectively.
We seek to ensure that we do not have an over-sized council. Twelve professions are involved and inevitably there will be a limited number of places. Essentially, each profession will have one representative. In that context, my noble friend Lord Prys-Davies raised a concern about the shape and status of the professional advisory committees, which are provided for in the order. It is important that the HPC is left to advance its own proposals about how it will organise its work within the general parameters that are laid down in the order. Setting up PACs is a matter for the HPC.
Following discussions with noble Lords over the past two weeks, I have satisfied myself that the shadow HPC is working in partnership with the professional bodies to ensure that they have confidence in the arrangements relating to PACs. I understand that the HPC will produce proposals that will give wider representation than at present. That would involve more professionals with targeted expertise who would ensure high-quality, speedy and appropriate expert professional input to the functions of the HPC. That would be backed up with full training in those functions.
The shadow HPC welcomes the positive contribution of professional bodies. I should expect the HPC to work through its registrant members to develop a range of appropriate mechanisms to enable the professions to contribute to the successful implementation of the order.
The HPC will need arrangements that take account of the needs of the different professions. That may include regular standing advisory committees and making use of existing networks. The HPC should consult widely among registrants and the professions on its proposal to obtain professional advice before it finalises its arrangements. It will be required to report to the Privy Council each year on how it has carried out its functions. It is envisaged that the HPC will hold frequent PAC meetings, particularly in the early stages while setting up its new procedures.
The order also permits the council to delegate some of its functions to the bodies that it sets up. But the HPC can accommodate all this with a fresh approach. I am sure that the shadow HPC will continue as it has done, working in partnership with the professions to ensure that it has the professional advice and input that it needs.
A very relevant point was raised by, I believe, the noble Earl, Lord Howe, about the concern of state-registered chiropodists in relation to professional representation from all four UK countries in a smaller, more strategic council. One way in which we shall ensure that is through the supplementation of the work

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of the council by statutory committees plus other networks and committees which can draw on other professionals from each country. Again, in that way, with a flexible, inclusive approach, the HPC will be able to cover the four-country angle. It will also do so by encouraging professions fully to brief council members.
Much of the detailed work involving professional difference will not be handled by the council but by its committees. Again, they may draw on a wide range of professionals from all four countries. But a profession which does not have council representation in a country can always ensure that its concerns are raised both by its own professional representatives and also by its own country members. I am confident that the HPC will be able to handle the four-country issue.
I turn to the question of chiropodists. In doing so, perhaps I may pick up some of the points that were raised by the noble Lord, Lord Hodgson, and others. First, I fully accept the point that the noble Baroness, Lady Masham, made. Chiropodists are very important. I believe that their role, in particular in relation to the mobility of older people, is crucial. The National Service Framework for Older People is the way in which we wish to develop services for older people. Within that, I would expect the role and number of chiropodists to be given full attention.
As the noble Earl, Lord Howe, said, the profession is split into two. In essence, in relation to the grandfathering provisions there is a very important debate as to how long the HPC register should be kept open to allow those who have not been trained on an approved course time either to undertake extra training or to demonstrate experience in safe practice so that they may register before the register is closed to all but those who are trained in the approved way. As the noble Lord, Lord Hodgson, suggested, that method of registering people who do not have approved training is called "grandparenting".
Article 13 of the order provides a transitional pathway to registration which is open to those who can demonstrate that they have been practising safely and effectively or that their qualifications and experience are comparable to the current requirements for registration. In that context, perhaps I may make it clear that in either case the HPC may, but need not, require them to pass a test of competence.
I want to repeat a point that I made in my introductory remarks. Both sectors are meeting regularly under the facilitation of the Department of Health and the shadow HPC with a view to reaching an agreed position on the requirements for registration before the new council is established next April. The noble Earl, Lord Howe, chided me because he believed that those discussions should have been completed by now. The Department of Health made strenuous efforts to ensure that the discussions took place, but, in this case, it takes three to tango. Representatives of the non-state-registered sector have proven rather reluctant to engage in the discussions. Having said
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that, meetings are now taking place regularly. As a Minister, I am very keen to ensure that they come to a successful conclusion.
Baroness Masham of Ilton: My Lords, before the Minister leaves that point, perhaps I may ask him whether he believes that there will be enough people to assess the non-registered chiropodists and how long that process will take.
10.15 p.m.
Lord Hunt of Kings Heath: My Lords, I shall come to that. I believe that this will be a challenge to the HPC but, as I have explained, this matter does not rest with the individual members of the HPC. It is able to use professional people from the field. I am sure that it would be able to find a way to do as the noble Baroness suggests. That is the whole point of facilitating discussions between the two sectors; that is, to ensure that this is carried out as smoothly as possible.
There is a balance to be struck. It is unsatisfactory that we have a situation at present in which people who have not gone through state registration can call themselves chiropodists. We have to protect the public interest. That is the paramount consideration. The noble Lord, Lord Neill of Bladen, raised the issue of human rights in relation to this specific question. The view of the Government is that the order is compliant with the Human Rights Act. Article 12 is applicable. The council must consult those affected on criteria for grandparenting. There is a choice of routes, either through qualifications or experience. Reasoned decisions must be given. Applicants have a right of appeal, first, to council and to the courts. It has to be a careful process. We must uphold the public interest. However, equally we must ensure that those people who do have the relevant qualifications, or can obtain them, or have the relevant experience, are given as much opportunity as possible to enable them to be registered by the council.
The noble Baroness, Lady Masham, asked about timing, which is important. We have received representation from the unregulated sector, which wanted the transitional period for meeting the standards before the new register is closed to all but those with the approved training extended to seven years. The order proposes two years. It is the view of the Government that, given that full training is up to three years at most, the call for a transitional period of seven years seems excessive. It may be designed to allow those who are currently practising to reach retirement before they need to comply with the new standards. There is a difficult balance between public interest and being fair to the unregulated sector. But I believe that that sort of extension is unacceptable.
However, the timetable allows flexibility. If your Lordships approve the order today, the health professions council will be set up on 1st April 2002. It will inherit the register, rules and procedures of the CPSM to begin with, so that there is no break in the regulatory function. During its first year, the HPC will have to propose the parts, protected titles, associated qualifications and standards of proficiency which its

1529
new register will encompass. It must consult registrants and prospective registrants on those proposals. It will then propose to the Privy Council, which will ultimately determine the parts, titles and qualifications relating to each profession in the register, which it will then be able to open.
Even if we rush in an unseemly way, I do not believe that that process could be undertaken in less than one year. The expectation is that the process might take up to April 2003. Once the register is open, it will remain open for a transitional period of up to two years before it is closed to all except those who achieve registration by reaching the standard of practice and training the HPC requires. That is likely to happen by April 2005. From now until 2005, a period of about three-and-a-quarter years is likely to be available for those in the unregulated sector who wish to become registered with the HPC and to carry on practising as chiropodists or podiatrists, using whatever title is protected under this order to demonstrate to the HPC that they meet its standards. That is a reasonable period of time.
I also point out—the noble Baroness, Lady Cumberlege, is no longer here that the JM report was published in 1996. It is apparent that that has been the aim of both the previous and of this Government. The unregulated profession has had time to think through some of these issues. We are essentially saying that it has three and-a-quarter years from today before the likely end of the grandfathering provision.
Perhaps I may take up two points raised by the noble Lord, Lord Hodgson. Both were extremely interesting. He asked about continuing professional development. I refer the noble Lord to Article 19 on page 24. That relates to post-registration training. Paragraph 19(1) states:
"The Council may make rules requiring registrants to undertake such continuing professional development as it shall specify in standards.
Continuing professional development is vitally important. The order clearly gives the HPC the power to do it. I am sure that, consistent with what is happening in the other professions, continuing professional development will be a very important factor.
The noble Lord asked another important question: how will the new body enhance and speed up the disciplinary procedure? I agree with the noble Lord that speed is of the essence. The smaller dynamic councils that we hope to establish will lead to swifter and more transparent decision making in addressing public protection issues. The establishment of statutory committees linked to the core regulatory function, including the main areas of fitness to practise work, the investigation committee, the conduct and competence committee and the health committee, give an ability to the HPC to ensure that it has effective procedures.
It is also worth bearing in mind, and as a trailer to the NHS modernisation Bill, which is proceeding rapidly through the other place, that within that Bill is a provision to establish a UK council of health
1530
regulators. That council will have an important role to play in ensuring that the different regulatory bodies are working as effectively as possible.
I am grateful to noble Lords for the issues that they have raised. I understand the concerns of the chiropody profession. I reiterate that we shall work as hard as we possibly can with representatives of both sectors to enable the matter to be dealt with fairly and effectively but crucially in the public interest. I am grateful to noble Lords for their attention.
Earl Howe: My Lords, I am grateful to the Minister for his full reply and to all noble Lords who have spoken in the debate.
The Minister has helpfully clarified the element of the proposals relating to the transitional period for registration on to the chiropodist and podiatrist register. Much of the concern expressed by the BChA relates to the practicality of the arrangements for non-state registered members to qualify for registration within the statutory time frame. I understand that there is effectively a three-year plus window in which registration can occur. That will no doubt be sufficient for some.
The concern is perhaps broader than that. Non-state registered practitioners want to know that sensible rules will be applied to enable those among them who can readily demonstrate proficiency to be admitted to the register without undue fuss, and certainly without having to undergo a mandatory three-year degree course. If common sense is not applied to the situation many chiropodists will simply call it a day. I cannot emphasise enough how damaging that would be. Eight thousand practitioners is not only the majority of practising chiropodists but a large number of individuals.
It is reassuring to hear from the Minister that the HPC is doing its utmost to establish sensible arrangements with regard to registration. But some bridge-building needs to take place. I am encouraged by the Minister's stated view that that is happening.
Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Earl for giving way. I want to reassure him that the Department of Health will work hard to continue facilitating sensible arrangements and agreement between the two sectors that the HPC can take forward. We all want a sensible outcome. We do not want to preclude people who have a contribution to make from practising in future. Equally, we must uphold the public interest. The department will work hard to ensure that the process is conducted sensibly and fairly.
Earl Howe: My Lords, I am grateful to the Minister for those reassurances. I am hopeful that his confidence that the HPC will want to work in partnership with the individual professions will be fulfilled in practice. I hope that the HPC will be inclusive in its general approach to chiropodists. I am also grateful for the Minister's assurances about professional advisory committees. I welcome what he was able to tell us about their proposed composition and functions. That clarification is certainly helpful.

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This debate has been useful. Several important points have been put on record. The Minister has given important reassurances. In the light of those, I am persuaded that it would not be right to press my amendment to a Division. However, while it is not appropriate to divide the House, I hope that the concerns registered in this debate will be followed through with vigour. I am sure that the goodwill that exists throughout the chiropody profession can be harnessed to ensure not only a meeting of minds but a building of confidence that will unite the profession in a real and tangible sense. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Motion agreed to.
Lord Carter: My Lords, your Lordships will be aware that the other place works in a mysterious and, I am afraid, rather stately way to conduct its business. With that in mind, I beg to move that the House do now adjourn during pleasure until 11.30 p.m. That will allow for up to 30 minutes for the tabling of amendments after the Bill has returned from the other place.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 10.27 to 11.30 p.m.]

Anti-terrorism, Crime and Security Bill
CONSIDERATION OF COMMONS REASON AND AMENDMENT
[The page and line refer to HL Bill 29 as first printed for the Lords.]
Lord Rooker: My Lords, I beg to move that the Commons reason and amendment be considered forthwith.
Moved, That the Commons reason and amendment be considered forthwith.—(Lord Rooker.)
On Question, Motion agreed to.

LORDS AMENDMENT
38C After Clause 101, insert the following new Clause—
"SCOPE OF POWERS CONFERRED BY THIS PART
Any powers conferred by this Part, except in so far as they confer powers replacing police powers which existed immediately before the coming into force of this Part, shall only be enforceable in relation to any suspicion, or investigation, or acts, of terrorism or any matters of national security."
The Commons disagree to this Amendment for the following Reason—
38D Because it is not appropriate to limit the powers conferred by this Part of the Bill in the manner proposed by the amendment.
Lord Rooker: My Lords, I beg to move that the House do not insist on their Amendment No. 38C to which the Commons have disagreed for their reason numbered 38D.
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Moved, That the House do not insist on their Amendment No. 38C to which the Commons have disagreed for their reason numbered 38D.—(Lord Rooker.)
On Question, Motion agreed to.

LORDS AMENDMENT
66 After Clause 124, insert the following new clause—
"EXPIRY

(1) This Act, apart from Part 12, shall (subject to subsections (2) to (5)) cease to have effect at the end of the period of one year beginning with the day on which the Act receives Royal Assent.

(2) The Secretary of State may, subject to subsections (3) to (5), by order provide—

(a) that a provision of the Act which is in force (whether or not by virtue of this subsection) shall continue in force for a specified period not exceeding twelve months;

(b) that a provision of this Act shall cease to have effect;

(c) that a provision of this Act which is not in force (whether or not by virtue of this subsection) shall come into force and remain in force for a specified period not exceeding twelve months.

(3) Parts 1, 2, 6, 7, 8, 9 and 14 of this Act shall, by virtue of this subsection, cease to have effect at the end of the period of five years beginning with the day on which this Act is passed.

(4) Parts 3, 5, 10, 11 and 13 of this Act shall, by virtue of this subsection, cease to have effect at the end of the period of two years beginning with the day on which this Act is passed.

(5) Part 4 of this Act shall, by virtue of this subsection, cease to have effect at the end of the period of one year beginning with the day on which this Act is passed.

(6) Any order made by the Secretary of State under subsection (2) must be made by statutory instrument and may not be made unless a draft has been laid before and approved by resolution of each House of Parliament."

The Commons insist on their disagreement to this Amendment, but propose the following Amendment in lieu thereof—
66F Page 72, line 17, insert the following new Clause—
EFFECT OF REPORT

(1) A report under section (Review of Act)(4) may specify any provision of this Act as a provision to which this section applies.

(2) Subject to subsection (3), any provision specified under subsection (1) ceases to have effect at the end of the period of 6 months beginning with the day on which the report is laid before Parliament under section (Review of Act)(5).

(3) Subsection (2) does not apply if before the end of that period a motion has been made in each House of Parliament considering the report."

Lord Rooker: My Lords, I beg to move that the House do not insist on their Amendment No. 66 to which the Commons have disagreed and do agree to their Amendment No. 66F in lieu thereof.
Moved, That the House do not insist on their Amendment No. 66 to which the Commons have disagreed and do agree to their Amendment No. 66F in lieu thereof.—(Lord Rooker.)
Baroness Williams of Crosby rose to move, as an amendment to the Motion that the House do not insist on their Amendment No. 66 to which the Commons have disagreed arid do agree with the Commons in their Amendment No. 66F in lieu thereof, leave out

1533
the words after "disagreed" and insert ", do disagree with Amendment No. 66F and agree the following amendment in lieu thereof—
66G After Clause 124, insert the following new Clause—
"DURATION

(1) This Act shall (subject to subsections (2) to (3)) cease to have effect at the end of the period of one year beginning with the day on which this Act is passed.

(2) The Secretary of State may, subject to subsection (3), by order provide—

(a) that a provision of the Act which is in force (whether or not by virtue of this subsection) shall continue in force for a specified period not exceeding twelve months,—

(b) that a provision of this Act shall cease to have effect;

(c) that a provision of this Act which is not in force (whether or not by virtue of this subsection) shall come into force and remain in force for a specified period not exceeding twelve months.

(3) This Act shall, by virtue of this subsection, cease to have effect at the end of the period of five years beginning with the day on which this Act is passed."

(4) Any order made by the Secretary of State under subsection (2) must be made by statutory instrument and may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.""

The noble Baroness said: My Lords, we on these Benches would like to argue that we should retain the original amendment which was agreed by the House at the earlier stages of discussion between ourselves and another place. Given the lateness of the hour, I shall put the reasons briefly.
First and foremost, the period is surprisingly long for a piece of sunset legislation compared with earlier terrorism legislation. The original terrorism legislation in 1974, which followed the outrages in Birmingham, Guildford and elsewhere which many people will recall as a result of the operations of the then IRA, made provision for a six-month period followed by a six-month extension, the entire Act to expire within at most one year of the passage of the Act.
In the Prevention of Terrorism (Temporary Provisions) Act 1989, provision was made for one year and an extension of one year by order, after which the Act ceased to operate. The Northern Ireland (Emergency Provisions) Act 1991 similarly made provision for a 12-month expiry and a maximum extension of a period of 12 months. In 1996, the then Northern Ireland prevention of terrorism legislation made similar provision. In the Terrorism Act 2000 provision was made for the Act to expire after one year in the case of Part 7 unless it was extended by a statutory order. It also required an annual report.
The concern of those on these Benches with regard to the expiry period is that that originally proposed in the Bill of five years seemed to us exceptionally long for legislation so little debated and discussed as this. Perhaps I may remind your Lordships that of the 135 clauses of the Bill, precisely 86 were debated at all in another place. Not a single line of those other clauses was debated in the so-called "elected" Chamber. May I also point out that some of the major clauses in the Bill such as Clause 17, Clause 19 and others, were never adequately debated in another place. In this
1534
House, too, I think that we would have to admit that the debates were, at best, only sketchy for reasons of time.
We do not object to that. We recognise that this is emergency legislation, as we also recognise the scale of the emergency. However, we believe that the original period of five years is exceptionally long to revisit with the full scrutiny of Parliament provisions which will have such a substantial effect on the civil liberties, privacy and freedom of our fellow citizens.
We now have an amendment, to which I believe that the Government have acceded, which suggests that in place of the original proposal to create an automatic expiry of the Bill within a period of one year, we have provision for a Privy Council committee which will review the operations of the Act after two years and will then produce a report, after which the relevant parts of the Bill would expire within six months unless the report produces a reason why they should not so expire.
Let me say simply, by quoting the words of the noble Lord, Lord Brennan, that,
"in a democracy whose provisions and whose legislation is often regarded as a model for the rest of the democratic world, one should be very careful indeed about allowing this kind of legislation to run for as long a period as is the case on the face of the Bill".
I shall add to that the comment that noble Lords know what happened with emergency legislation passed in many countries that once upon a time were colonies, which then made that provisional legislation permanent—I could cite Malaysia and many African countries. Those noble Lords will understand the great danger if such provisional legislation does become permanent and thus paves the way from democracy to autocracy. On these Benches we do not suggest that that is the case, but perhaps I may say that a committee of the Privy Council, distinguished though no doubt Privy Counsellors are—and I know because I am one of them—is not much of a substitute for proper sunset legislation.
The reason that such a committee is not much of a substitute—let us be direct about it—is, first, that Privy Counsellors come from a rather narrow sector of the community and can have little familiarity with the ways in which the Act will be likely to operate on a number of our fellow citizens, not to speak of those from other and far less fortunate parts of the world. Secondly, Privy Counsellors, by the nature of their position, will be appointed to the review body by whom?—by the Secretary of State. I do not regard that as the clear establishment of the independent judgment of the Privy Counsellors.
Finally, like many other noble Lords, I attended the debates held in another place. There I heard the honourable Member for Hampstead and Highgate complain about the intervention of an unelected House in this legislation. I have to say that what is required for the purposes of scrutiny and review is not only to be elected, but also to have an independent judgment and the commitment of one's own convictions. It is up to another place to find its voice, to express itself and to insist on its own standards of

1535
accountability from the executive to itself. It is in that context that 1 believe that the House of Commons' own reform depends on the willingness of the Members of that House to stand up and demand such reform.
Having made those points, let me conclude by saying that there is no reason of any final kind why Privy Counsellors should not be subject to the agreement of the two Chambers of Parliament in taking up this highly responsible role. It is clear that they should report to the two Chambers of Parliament. I hope that they will feel themselves to be accountable to the two Chambers of Parliament and not only to the Minister who appoints them.
I thank Ministers for the way in which they have dealt with some of the attempts that we have made to modify and change this legislation. I add to that our gratitude to the Official Opposition for the way in which they have conducted their own approach and review of the Bill.
Final victory over terrorists will lie in making emergency legislation of this kind a permanent feature of our democracy, with all the limitations on the civil liberties of citizens that that implies. It is therefore incumbent upon this House to behave not only with great responsibility but to the highest standards of what it is to be—a scrutinising chamber. I am very proud of noble Lords for the way in which they have conducted their part in this Bill. Ultimately, it is now a better and safer Bill, a Bill which will serve well the citizens of this country in an extremely grave and difficult situation. Striking a balance between liberty and security is one of the most difficult tasks any legislative chamber is ever called upon to fulfil. I beg to move. Moved, as an amendment to the Motion that the House do not insist on their Amendment No. 66 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 66F in lieu thereof, leave out the words after "disagreed" and insert ", do disagree with Amendment No. 66F and agree Amendment No. 66G in lieu thereof.—(Baroness Williams of Crosby.)
Lord Dixon-Smith: My Lords, the noble Baroness, Lady Williams, has made a powerful speech, with which Members in most sectors of the House will have some sympathy. However, ultimately—even in this House, where there is a strong degree of independence and idealism—we have to live in the realms of practical politics, and we have to look at the totality of the Bill as it is now. It is for that reason that we shall not be supporting the noble Baroness in her assertion in regard to Amendment No. 66G.
We are grateful to the Government for the care and consideration that they have given to the views expressed by the House. We have been fortunate to have a much greater time to consider the Bill—rushed though it has been, complain about it though we have—than Members of the other place were permitted. The noble Baroness is correct: we cannot say that the Bill was considered in the other place. But we have demonstrated here that the totality of Parliament can work well on behalf of all the British
1536
people. We have been able to do here that which they were unable to do in another place—that is, to give the Bill considerable detailed consideration. Now, with the help of the Government, we have removed many of its worst faults.
It is a result in which this House can take considerable pride. We have a Bill with which Parliament in its totality can be pleased and which the country in due time will come to appreciate. It has been an immensely hard task for those involved, but we have arrived at what I regard as a satisfactory conclusion. I regret that on this occasion we shall not be supporting the noble Baroness.
11.45 p.m.
Lord Rooker: My Lords, I note what the noble Baroness has said. However, I must say that she uttered an unfortunate phrase at this time of night, bearing in mind the position we are in, referring to the "so-called elected Chamber". It is a phrase that she may come to regret later.
I accept that what we propose in lieu of a review of the Act is unique. However, as was made clear earlier, in this country our legislative system does not allow for systematic reviews of Acts of Parliament so that we could ask after mature consideration: does this Act do what Parliament intended when it passed it? We do not have a systematic review like that. It is a matter about which many people in both Houses have complained in the past.
This is a unique structure, asking a group of Privy Counsellors to review the legislation—a minimum of seven; we have not fixed the number. There are 500-odd members of the Privy Council to choose from, of course—some of whom are probably slightly longer in the tooth than myself, it is true. Nevertheless, the chances are that they are likely to be Members of both Houses. They will be people of experience—probably in dealing in the past with so-called emergency legislation. It is an important step.
I must also make the point, so that there is no misunderstanding, that it is our intention that the Act should be reviewed in the way in which it is implemented. It will not merely be a review after two years. It is true that there will be a report before two years, but our intention is that the review will start as soon as the Act comes into effect, so that there will be a constant period of review. We cannot say when, but the committee will be set up and proposals will be drawn up as soon as possible, early in the new year. It has never been our intention that everything should go to sleep and then, all of a sudden after two years, the committee will look at what has happened. Our intention has always been to have a constant review. I hope that no other impression has been given.
Lord Elton: My Lords, will the Home Secretary consult before making these appointments; and, if so, with whom?
Lord Rooker: Yes, my Lords, he most certainly will consult. It is not something that we shall do lightly. It

1537
is not a question of the Home Secretary one day publishing a list of names. Of course he will consult as widely as possible. We want to move reasonably quickly on this matter. Much of the legislation comes into force on Royal Assent and, subject to your Lordships' wishes, that will be in a very short period.
I listened to the debate in the other place during the past hour. It is true that there has been a great deal of criticism about the way in which both Houses have dealt with the Bill in terms of time. I accept that in this House the biggest problem has been lack of time for consideration between the Bill's stages. That has caused problems for everyone.
In the other place, many Members could rightly say that three days was not enough time for a piece of legislation such as this—that is a legitimate point—but between both Houses, over a considerable period of hours and days—bearing in mind that the legislation was not rushed; it took us three months to produce it. It may have been produced in an emergency situation, but the Bill is not emergency legislation in the sense of being thought up one week and presented to Parliament the next. It has been improved at every stage of its progress. At every stage of its progress through both Houses changes have been made. To that extent, every part of the process has been an improvement. As the Home Secretary said, 98 per cent of the Bill is there. It is true that there is the other issue, which I shall not go into, regarding religious hatred. Nevertheless, the general thrust of the Bill meets the circumstances in which we find ourselves. It is moderate, proportionate and measured. I also welcome the points made by the noble Lord, Lord Dixon-Smith, in favour of the proposed amendment.
As this is the last time that I shall rise to speak on the Bill, perhaps I may take the opportunity to thank all noble Lords who have participated—sometimes privately with little billets-doux, at other times vociferously in the Chamber. I also want to thank the team of civil servants who have worked on the Bill—I must say, having seen their office in Queen Anne's Gate, in quite appalling conditions. They have worked their socks off night and day, seven days a week during this process. It has been a massive effort—but it has been damned good experience!
I also want to thank my own private office in the Home Office. Dealing with our day-job on immigration and asylum we have a large caseload in addition to this Bill. I look forward to dealing with all the other Home Office Bills that will be brought before your Lordships' House.
Lastly, I thank the ministerial team. Six Ministers have dealt with the Bill on a departmental basis. It has been absolutely crucial that we have been able to operate as a team and to share the load so that we could put before your Lordships a coherent package of measures. The Bill is long and complicated, but the central issue is a simple one: to take some moderate precautions into our legal framework for dealing with the terrorists rewriting their rulebook on 11th September.
Lord McNally: My Lords, perhaps I can take the briefest moment to congratulate the Minister on what I believe was a parliamentary tour de force. When I watched the Home Secretary in another place, I fully appreciated the fact that he is the softy in the Home Office! I want to thank my home team. I often say that if we had to pay them we could not afford them. We have tried to make a constructive contribution from the considerable expertise that exists on these Benches. We are also grateful for the co-operation of the "official" Conservatives. We have all had times when we have lost our cool, but I believe that we have reached a good ending. I thank the Minister.
Baroness Williams of Crosby: My Lords, I beg to seek the opinion of the House on this amendment.
11.52 p.m.
On Question, Whether the said amendment (No. 66G) shall be agreed to?
Their Lordships divided: Contents, 48; Not-Contents, 135.

Division No. 5

CONTENTS

Addington, L.

Monson, L.

Alton of Liverpool, L.

Newby, L.

Ashdown of Norton-sub-Hamdon, L.

Nicholson of Winterbourne, B.

Northover, B.

Avebury, L.

Oakeshott of Seagrove Bay, L.

Barker, B.

Phillips of Sudbury, L.

Bradshaw, L.

Razzall, L.

Clement-Jones, L.

Redesdale, L.

Dahrendorf, L.

Rennard, L.

Dholakia, L.

Rodgers of Quarry Bank, L.

Falkland, V.

Roper, L. [Teller]

Goodhard, L.

Russell, E.

Scott of Needham Market, B.

Greaves, L.

Sharman, L.

Hamwee, B.

Sharp of Guildford, B.

Harris of Richmond, B. [Teller]

Shutt of Greetland, L.

Holme of Cheltenham, L.

Smith of Clifton, L.

Jacobs, L.

Taverne, L.

Lester of Herne Hill, L.

Thomas of Gresford, L.

Linklater of Butterstone, B.

Thomas of Walliswood, B.

Livsey of Talgarth, L.

Tope, L.

Maclennan of Rogart, L.

Wallace of Saltaire, L.

McNally, L.

Walmsley, B.

Maddock, B.

Watson of Richmond, L.

Miller of Chilthorne Domer, B.

Williams of Crosby, B.

NOT-CONTENTS

Ahmed, L.

Borrie, L.

Alli, L.

Brennan, L.

Amos, B.

Bridgeman, V.

Andrews, B.

Brooke of Alverthorpe, L.

Archer of Sandwell, L.

Brooke of Sutton Mandeville, L.

Ashton of Upholland, B.

Burlison, L.

Attenborough, L.

Burnham, L.

Attlee, E.

Campbell of Alloway, L.

Bach, L.

Campbell-Savours, L.

Bassam of Brighton, L.

Carter, L.[Teller]

Berkeley, L.

Cavendish of Furness, L.

Bernstein of Craigweil, L.

Chadlington, L.

Billingham, B.

Chandos, V.

Blackstone, B.

Clinton-Davis, L.

Blackwell, L.

Cobbold, L.

Bledisloe, V.

Cohen of Pimlico, B.

1539

Colwyn, L.

McIntosh of Haringey, L.

Cope of Berkeley, L.[Teller]

McIntosh of Hudnall, B.

Corbett of Castle Vale, L.

MacKenzie of Culkein, L.

Crawley, B.

Mallalieu, B.

Currie of Marylebone, L.

Mancroft, L.

Davies of Oldham, L.

Marlesford, L.

Dean of Thornton-le-Fylde, B.

Massey of Darwen, B.

Desai, L.

Mayhew of Twysden, L.

Dixon-Smith, L.

Milner of Leeds, L.

Dubs, L.

Mitchell, L.

Elder, L.

Monro of Langholm, L.

Evans of Parkside, L.

Morgan of Huyton, B.

Evans of Temple Guiting, L.

Morris of Aberavon, L.

Falconer of Thoroton, L.

Moynihan, L.

Farrington of Ribbleton, B.

Northbrook, L.

Faulkner of Worcester, L.

Norton of Louth, L.

Filkin, L.

O'Cathain, B.

Fraser of Carmyllie, L.

Onslow, E.

Fyfe of Fairfield, L.

Orfuird, V.

Gale, B.

Palumbo, L.

Geddes, L.

Puttnam, L.

Gibson of Market Rasen, B.

Ramsay of Cartvale, B.

Gilbert, L.

Randall of St. Budeaux, L.

Gladwin of Clee, L.

Rawlings, B.

Golding, B.

Rendell of Babergh, B.

Goldsmith, L.

Renwick of Clifton, L.

Goudie, B.

Richard, L.

Gould of Potternewton, B.

Rooker, L.

Greengross, B.

Saatchi, L.

Grenfell, L.

Sainsbury of Turville, L.

Grocott, L.

Saltoun of Abernethy, Ly.

Hanham, B.

Sawyer, L.

Hannay of Chiswick, L.

Seccombe, B.

Sewel, L.

Harris of Haringey, L.

Shrewsbury, E.

Harris of Peckham, L.

Simon, V.

Hayman, B.

Stone of Blackheath, L.

Henley, L.

Strathclyde, L.

Hollis of Heigham, B.

Symons of Vernham Dean, B.

Howells of St. Davids, B.

Taylor of Blackburn, L.

Howie of Troon, L.

Thornton, B.

Hoyle, L.

Tomlinson, L.

Hughes of Woodside, L.

Warner, L.

Hunt of Chesterton, L.

Warwick of Undercliffe, B.

Hunt of Kings Heath, L.

Wedderburn of Charlton, L.

Hunt of Wirral, L.

Whitty, L.

Irvine of Lairg, L. (Lord Chancellor)

Wilcox, B.

Wilkins, B.

Jay of Paddington, B.

Williams of Elvel, L.

Kirkham, L.

Williams of Mostyn, L. (Lord Privy Seal)

Layard, L.

Lea of Crondall, L.

Williamson of Horton, L.

Macdonald of Tradeston, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
On Question, Motion agreed to.

Animal Health Bill
Brought from the Commons; read a first time, and to be printed.
Lord Carter: My Lords, for the benefit of my colleagues, I am tempted to say that the Whip is off, the roster stays.
I beg to move that the House do now adjourn during pleasure until 12.25 a.m. For those of your Lordships who wish to be absolutely sure that the Anti-terrorism, Crime and Security Bill receives Royal Assent, you are extremely welcome to join us in the Chamber. However, three of us will be here to ensure that it does receive Royal Assent.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 12.4 to 12.25 a. m.]

Royal Assent
The Lord Chancellor: My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Act:
Anti-terrorism, Crime and Security Act.
House adjourned at twenty-six minutes past midnight.