Lords Sitting of 20 March 2001

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

UNESCO Cultural Property Convention
Lord Renfrew of Kaimsthorn Lord Renfrew of Kaimsthorn asked Her Majesty's Government.
When they propose to accede to the 1970 UNESCO Convention on Means of Preventing the Illicit Traffic in Cultural Property, and to implement the other recommendations made last December by the Ministerial Advisory Panel on Illicit Trade, chaired by Professor Norman Palmer.
Lord McIntosh of Haringey: My Lords, I am pleased to confirm my Answer to the Written Question of the noble Lord, Lord Renfrew, on 13th March. The Government have taken the decision to accede to this convention once the normal parliamentary and other formalities have been completed. We are giving active consideration to the other recommendations of the report of the ministerial advisory panel, particularly the criminal offence, and we will announce progress on these in due course.
Lord Renfrew of Kaimsthorn: My Lords, will the Minister accept my congratulations and, no doubt, those of other noble Lords on this very welcome, if perhaps long-awaited, announcement in relation to the UNESCO convention? Will he confirm that it will be possible to complete the formalities to which he referred before the Summer Recess? The noble Lord will be aware that one of the recommendations of Professor Palmer's working party was that there should be four new members of staff in the export licensing unit to facilitate its work. Can the noble Lord say how soon we can expect the appointment of these new staff members in order that London will no longer be a bazaar for unprovenanced antiquities?
Lord McIntosh of Haringey: My Lords, in accepting the noble Lord's congratulations, may I return them. The noble Lord, Lord Renfrew, was a distinguished member of the panel, the recommendations of which we have accepted.
The formalities involve preparing the convention and an explanatory memorandum as a White Paper, which would then have to be presented to Parliament for at least 21 sitting days. I am not sure that I can promise that this will be done by the Summer Recess, but it can certainly be done this year. As to the issue of four additional staff, we do not think that quite as many will be needed. We are working on the numbers and on the costs involved quite actively.
Baroness Anelay of St Johns: My Lords, will the Minister join me in welcoming the recent publication
1280
by the British art dealers' federation of a new code of practice in this area? What are the Government's plans for monitoring its progress?
Lord McIntosh of Haringey: My Lords, I join the noble Baroness, Lady Anelay, in welcoming the new code of practice of the British Art Market Federation, which seems to cover the necessary ground very effectively. I think self-regulation—in the first instance, at any rate—is probably the wiser course of action.
Baroness Hooper: My Lords, perhaps I may press the Minister on his reference to the creation of a criminal offence in connection with archaeological finds. Can he give any kind of timescale as to when that criminal offence will be introduced in this country?
Lord McIntosh of Haringey: My Lords, as I said in my original Answer, we are giving active consideration to the recommendation of making this a criminal offence, but first we have to establish how far it needs to be a new criminal offence and how far the offence is covered by the existing law. The panel also made a recommendation that there should be an international database of legislation, which is a very valuable recommendation. When we have completed the review of whether the existing law is adequate for the purpose, if there are any gaps we will then consider how they should be filled. That would probably be by means of an insertion in a criminal justice Bill. As we seem to have criminal justice Bills every year, that may not mean too long a delay.
Lord Renfrew of Kaimsthorn: My Lords, can the Minister give any indication of the Government's thinking on the proposed Home Office database of stolen and looted antiquities and antiques?
Lord McIntosh of Haringey: My Lords, we support the recommendation and we are discussing it actively with the Home Office. Incidentally, in view of an article which appeared in the Sunday Telegraph last Sunday which suggested that there should be a log book for all items of cultural property, I should say that this is not something which is being discussed between the Department for Culture and the Home Office. That idea was specifically rejected by the Palmer panel. It seems to us to be an unnecessarily bureaucratic and intrusive burden on the trade. A database of stolen and illegally removed property is a much more sensible idea.

Fishing Industry: Compensation
2.41 p.m.
Lord Mackie of Benshie Lord Mackie of Benshie asked Her Majesty's Government:
What plans they have to compensate British fishermen who can no longer make a living as a result of government action.
Lord Carter: My Lords, the Government and other EU member states have been obliged to act as a result

1281
of the severe decline in some of the main commercial fish stocks. If not reversed, this decline in stocks threatens the long-term viability of the industry. We are urgently considering requests from the industry for financial assistance, and we expect to be able to make an announcement shortly—within days rather than weeks.
Lord Mackie of Benshie: My Lords, I am very pleased to hear that Answer. I assume that, as the necessity is to reduce the catching capacity, the Government are thinking of a decommissioning scheme. Will the Minister assure the House that it will not be like the previous one, which was so unrealistic that fishermen sold their quotas and their boats to Dutchmen and Spaniards rather than take part in the scheme? Will the noble Lord also assure the House that, in addition to the decommissioning scheme, some short-term measures will be taken to alleviate the present distress caused by boats being tied up without fish to fish for?
Lord Carter: Yes, my Lords. I do not have the details of the plan that is to be announced; however, I am aware that decommissioning is high on the agenda. The Government have certainly learnt from the experience of the previous decommissioning scheme. The noble Lord referred to foreign vessels taking advantage of that. It is worth pointing out that the number of foreign-owned vessels in the UK fleet has been reduced substantially. They represent about 5½ per cent of the fleet and about 17 per cent of the vessel capacity. A scheme is in place to provide £60 million over three years in England and in the devolved administrations in order to help the fishing industry. That will help to alleviate some of the problems referred to.
Lord Campbell of Croy: My Lords, in terms of tonnage at least half of the British fishing fleet is Scottish. As fishing is a devolved matter, and as the Scottish Executive, consisting of Labour and Liberal Democrat members, recently took an extraordinary decision—contrary to the advice of fishermen's organisations—leading, it seems, to the massacre of juvenile haddock, from where would any compensation come? Would it come from Westminster, from Edinburgh, or from both?
Lord Carter: My Lords, I am delighted to say that I am not responsible for the actions of the Scottish Executive. The Scottish Executive announced a scheme to provide up to £25 million for decommissioning. The money came from the famous—I almost said "notorious"—Barnett formula funds, and the money will obviously have to be found from somewhere else within the total. That decision was followed by a Motion in the Scottish Parliament for a change of policy, which succeeded by one vote; namely, the casting vote of the Presiding Officer, the noble Lord, Lord Steel of Aikwood. I understand that the Scottish Executive is going ahead with the scheme
1282
to provide £25 million for decommissioning, which, I repeat, comes from Scottish funds and not from the taxpayer in England and Wales.
Lord Hughes of Woodside: My Lords, for the record, is my noble friend the Minister aware that the changes in areas where vessels might fish in the North Sea have absolutely nothing to do with the Scottish Executive or any extraordinary decisions taken by it? The Presiding Officer—I am not sure whether he should be described as the noble Lord, Lord Steel, or Sir David Steel—took a step that was extraordinary in the circumstances and used his casting vote. Is it not the case that fishermen primarily in the north-east of Scotland voluntarily decided not to go to sea? Is it not extraordinary that they should demand compensation for their own actions?
Lord Carter: My Lords, my noble friend is right. In his existence as Sir David Steel, the Presiding Officer of the Scottish Parliament did exercise the casting vote in favour of a Motion to add a tie-up scheme to decommissioning. As I understand it, the Scottish Executive decided to stick with the plan that it had already announced; namely, to spend £25 million only on decommissioning.
Baroness Byford: My Lords, will the Minister explain further the arrangements that the Government are making? They have spoken about decommissioning; but how much money is being set aside for those members of the fishing fleet who have their boats tied up and cannot fish at the present time and who do not want to decommission? Secondly, if the Scottish Parliament has made this sum of money available, what do the Government intend to do about the English, Welsh and Northern Irish fishermen?
Lord Carter: My Lords, as I have explained, an announcement will be made within the next few days which will set out the Government's proposals in response to the problems presently faced by the fishing fleet. I cannot say at this stage how much will be involved. However, I shall be surprised if the scheme does not involve the decommissioning of vessels. As I said, £60 million has been allocated over a period of three years for the UK—that is, for the devolved administrations and the Westminster Parliament. The tying up of boats does not provide the long-term solution to the problem of over-capacity within the fishing fleet; nor does it provide any short-term conservation benefit for fish stocks. For example, the protection of the abundance of small haddock is best addressed through technical measures. To tie the boats up and offer, as was proposed in Scotland, £1,000 for a period of time does not solve the long-term problem. Once the stocks have recovered, the tied-up boats are there and the over-capacity still exists.
The Earl of Onslow: My Lords, will the Government make certain that when the European Union is subsidising the Spaniards to build extra fishing boats

1283
it is not at the same time subsidising Scots to tie boats up? That is what has been happening, and it cannot be sensible.
Lord Carter: My Lords, all the measures attempted by other member states to support their fishermen must be within EU rules. The Commission is much more active than it used to be in examining the way in which the rules are interpreted. For example, the French attempted to compensate their fishermen for the cost of fuel. This was immediately stamped on by the Commission.
Lord Stoddart of Swindon: My Lords, my noble friend made reference to over-capacity in the fishing fleet. Does he mean the European fishing fleet or the British fishing fleet? Would British fishermen be better off remaining within the common fisheries policy or, indeed, coming out of it?
Lord Carter: My Lords, I must say that the last part of my noble friend's intervention comes as a complete surprise to me. I should point out that there is over-capacity throughout the European fleet. I shall repeat a line that I know my noble friend has heard a number of times previously—however, I shall try once more: withdrawing from the common fisheries policy is totally unrealistic. I am sure that my noble friend knows that fish are a natural and mobile resource; they do not respect national boundaries.
Conserving fish stocks requires co-operation among member states in the EU. Pretending that leaving the CFP will solve all fishermen's problems is a distraction from the real issues with which the country is faced today. Although we recognise that, at present, the CFP is far from perfect, the Government's approach is to work for an improvement within it. The way in which the Irish Sea cod recovery programme—and now the North Sea cod and northern hake plans—are being developed is a good start. It shows that the CFP can work.
Viscount Cranborne: My Lords, despite the admirably succinct way in which the Minister answered the noble Lord, Lord Stoddart, I am afraid that I am still in something of a quandary. Can the noble Lord explain for the benefit of the House how it is that the CFP has benefited both fish stocks and British fisherman more than, for example, a 200-mile exclusion zone would have done?
Lord Carter: My Lords, we have in fact done well out of the closure plan. Although we received more than 50 per cent of the allowable catch in the closure area, what we actually have is less than 50 per cent of the area to be closed.
The Earl of Caithness: My Lords, when the Government make their announcement in the next few days or weeks, can the Minister say whether it will affect the whole of the British fleet—as set out in the
1284
Question tabled by the noble Lord, Lord Mackie of Benshie—or whether it will apply only to the English and Welsh fleets?
Lord Carter: My Lords, as far as I am aware, it will be for the English and Welsh fleets. However, if that information is incorrect, I shall write to the noble Earl.

London Underground
2.51 p.m.
Lord Ezra Lord Ezra asked Her Majesty's Government:
What has been the outcome of recent talks with the Commissioner for Transport for London on future responsibility for the London Underground.
The Minister of State, Department of the Environment, Transport and the Regions (Lord Macdonald of Tradeston): My Lords, during recent talks on the implementation of the public/private partnership for London Underground, our negotiators made detailed proposals to address the concerns of Bob Kiley, the Transport Commissioner. Last week, Mr Kiley resolved these issues into a 55-point plan designed to give him unified management control over key areas of activity under PPP contracts, including maintenance of track and signalling. Those proposals are largely acceptable to the Government. It was agreed with Mr Kiley on 2nd February that modifications would be sought inside the structure of the PPP. If that agreement is respected, I believe that we could have a basis for agreement that would also be acceptable to prospective private sector partners.
Lord Ezra: My Lords, I thank the Minister for that reasonably positive statement. However, does he agree that this whole issue has dragged on for too long and that, in the meantime, journey times on the Underground have lengthened, delays have become more frequent, and overcrowding at peak periods— both on trains and stations—has increased thereby raising safety issues? Can the noble Lord therefore confirm what I believe is implied in his Answer; namely, that when the solution is finally announced it will include unified management for the whole of the Underground system, so that such issues can be dealt with vigorously and coherently?
Lord Macdonald of Tradeston: My Lords, our priority is to stop the political wrangling and to get on with the serious business of doubling annual investment on the London Underground. I am sure that that is also the priority for Tube passengers and, indeed, for noble Lords. When Mr Kiley returns from America at the end of the week, we shall press on to try to ensure that the public/private partnership, suitably modified, is implemented as a matter of priority. Londoners deserve no less.
Lord Haskel: My Lords, my noble friend will be aware that the unions are threatening strike action over safety on the London Underground. Can he tell

1285
the House whether anything is being done to reassure the unions in that respect? Indeed, can be say whether there is any further information regarding this threatened strike about which we ought to be aware?
Lord Macdonald of Tradeston: My Lords, on the question of the threatened dispute, I should point out to my noble friend that when the demand for safety was first made the request was for a joint safety forum. My understanding is that this body has now been established; that it has met; and that the suggestion is that it need not meet again for some months.
The other three demands from the trade unions are: jobs for life; no staff reductions in any circumstances; and that all staff should be kept on existing terms and conditions. Therefore, although safety is a priority for us, it is not an issue in respect of which the operation of the London Underground should be stopped for a day, or even two days, to the great inconvenience of Londoners. I hope that the unions will think again.
Lord Brabazon of Tara: My Lords, bearing in mind that we seem to be getting contradictory daily press reports on the matter, can the Minister tell us exactly who is pulling the strings at present? For example, is it Mayor Livingstone, Mr Kiley, the Deputy Prime Minister, the Chancellor of the Exchequer or, indeed—as we probably hope—is it the Minister in this House?
Lord Macdonald of Tradeston: My Lords, I am very grateful to the noble Lord for that expression of misplaced confidence. However, the noble Lord is right. The Mayor did make an optimistic statement last Thursday when he said that a deal on the Tube is now very close. He said:
"I am optimistic that we will get a deal, even if it is not exactly the one that I want".
As I said, we have responded very positively to Bob Kiley's 55-point plan. However, noble Lords should be aware that the Mayor is now making negative noises, and negotiations are currently suspended until later in the week. We should, perhaps, be anticipating a new set of demands. If so, I trust that they will fall within the framework of the PPP, as agreed in February, and that they will not form part of an attempt to open new issues at this late stage. Noble Lords should be assured that the Government stand firm on the issue.
Lord Berkeley: My Lords, my noble friend said that a deal is very close. He also quoted the Mayor of London to that effect. However, when everyone is expecting a deal to be completed by the end of the week, is it not a little surprising that Mr Kiley has gone off to New York for a few days? Is that the normal way of getting both sides round the table, as it were, and completing the negotiations in the shortest possible time?
Lord Macdonald of Tradeston: My Lords, I should point out that we have been involved in a very arduous
1286
set of negotiations for both sides that has been going on for many weeks. As I said, those negotiations concluded in the 55-point plan that has now been offered to us by Mr Kiley. However, I hope that we can return to the issues by the end of this week. I also hope that we can deal with the issue of safety, which, I believe, has been raised rather irresponsibly in these discussions.
I should make it clear to the House that the safety case that is being operated at present is thoroughly approved by the Health and Safety Executive. The detailed assessment that is being made as regards the PPP has raised the 273 issues. However, the HSE has said:
"The number of issues should not be interpreted as evidence of concern about the deterioration of safety standards on London Underground".
Indeed, London Underground has said:
"Some commentators seem confused about the Health and Safety Executive process, and their inaccurate comments are creating a completely false and irresponsible climate of fear and uncertainty for over 3 million passengers who travel safely by Tube every day".
I hope that noble Lords will join both me and London Underground in condemning such irresponsible alarmism.
Baroness Gardner of Parkes: My Lords, is the Minister aware that, when Mr Kiley came to speak to the all-party London group of this House, he said that there was quite a problem as regards the number of overland trains coming into the various terminals and the interchange between them and the Tube network? He pointed out that the surge of commuters at certain times of the day can almost be a safety hazard in itself. Can the Minister say whether that is one of the factors that is being taken into consideration in the negotiations?
Lord Macdonald of Tradeston: My Lords, that will certainly be a factor for the Health and Safety Executive to consider. We shall have a separate set of discussions with Mr Kiley, in his new role as Transport Commissioner, and, indeed, with the Strategic Rail Authority, on planning the future integration of rail and Tube services in London. I look forward to moving on to that kind of positive agenda, as soon as possible.
Lord Clinton-Davis: My Lords, by the time that Mr Kiley returns home next week, will my noble friend the Minister ensure that an agreement has been reached on these issues? The people of London are sick and tired of the toing and froing that has occurred in the matter. They demand no less than that they should be able to travel both safely and well on the Underground.
Lord Macdonald of Tradeston: My Lords, my noble friend can be assured that we shall use every endeavour in this respect; indeed, we shall take a very flexible and accommodating approach. I go forward optimistically

1287
in the hope that we shall achieve the kind of results that my noble friend requests, and which I am sure the whole House desires.

Meteorological Office: Relocation
3 p.m.
Lord Newby Lord Newby asked Her Majesty's Government:
What is their estimate of the cost savings to be made by relocating the Meteorological Office to Exeter.
Lord Burlison: My Lords, the Meteorological Office's existing accommodation in Bracknell is not suitable for a modern, IT-based organisation. It therefore places weather forecasting services at unacceptable risk and is increasingly costly to maintain. A new site with purpose-built accommodation is the best way of meeting the Met Office's long-term needs and those of its customers.
Compared to a move in the Bracknell area, the Met Office expects additional annual operating cost savings of up to £5 million as a result of relocating to Exeter. The Met Office expects to use this cost saving both to reduce costs to its customers—especially those in the public sector—and to provide essential investment for the future.
Lord Newby: My Lords, is not the truth that this decision will rip the heart out of a world-class body of climate expertise and threaten the chance of a proposed European meteorological office being created near Reading? Will not the Government even at this stage institute a serious review of the decision, looking at the long-term future of meteorological research in this country rather than short-term cash savings?
Lord Burlison: My Lords, the Met Office is of the view that by moving to Exeter it will still maintain its links with various bodies. In choosing Exeter, all the relevant factors were considered, including the potential benefits of being located at Shinfield Park in close proximity to some of the centres of relevant scientific expertise as well as the European Centre for Medium-Range Weather Forecasts. Both the financial and non-financial arguments are substantially in favour of Exeter.
Lord Hunt of Chesterton: My Lords, do the Government agree that the Met Office plays a central role in policy and research both military and civilian and therefore should be as centrally located as other headquarter branches of the MoD? Will the Government reconsider their decision?
Lord Burlison: My Lords, I agree that the Met Office plays a central role in operations policy and in UK, European and global research into military and civil aspects of climate prediction. The Met Office believes that the emphasis should be on collaboration and
1288
strengthening ties with European partners. There are many organisations across Europe with which the Met Office wishes to maintain and develop close working relationships. It is therefore by no means essential that the Met Office should be in close proximity with the European centre in order to derive maximum benefit for the UK. With modern technology, communications should not be a problem.
Lord Merlyn-Rees: My Lords, will the close historical relationship between the Met Office and the RAF be affected by this change?
Lord Burlison: My Lords, relationships of that nature should not be affected by the change. As I said to my noble friend Lord Hunt, with the improved IT facilities, communications are better. According to the information which the Met Office has given, I see no reason why that relationship should in any way be damaged.
Baroness O'Cathain: My Lords, will all those who are experts in weather forecasting move to Exeter or will the Met Office lose much of the expertise that has been built up over many years?
Lord Burlison: My Lords, many facilities and established organisations in the meteorological field will remain where they are at present. The Bracknell facility will move to Exeter. The Met Office feels strongly that the element that moves to Exeter will maintain a close relationship with the bodies that do not move and, indeed, with other establishments in the Reading area.
Lord Burnham: My Lords, which department of state will benefit from the £5 million saving of which the noble Lord spoke? Will the Ministry of Defence get it or will the Treasury get it as usual?
Lord Burlison: My Lords, the future of the Met Office is based very much on changes, not only the geographical changes that are likely to take place but also in terms of improved information technology and improved facilities generally. As regards the £5 million annual savings, the intention is that the bulk of it will be used to reduce costs to the Met Office's customers and to fund research and development.
Baroness Dean of Thornton-le-Fylde: My Lords, does my noble friend accept that those of us who regularly commute from the West Country do not regard Exeter as the other side of the earth and that what is important is the quality of services coming from a modern facility and the charges made for those services? While the decision was taken by the meteorological board and not the Government, will my noble friend confirm that he is content that the services in the future from the new facility will probably be even better than at present?
Lord Burlison: My Lords, I can only repeat the information that is given to me by the Met Office on this issue. I agree with my noble friend that Exeter is not a million miles away; in fact, it is a couple of hours' journey. But most of the Met Office's argument is based on the availability of communications between it and those bodies which will provide this facility in years to come.
Lord Carter: My Lords, immediately after the Third Reading of the International Criminal Court Bill my noble friend Lord Whitty will, with the leave of the House, repeat a Statement on the foot and mouth outbreak and the rural economy.

Borough Freedom (Family Succession) Bill [H.L.]
3.6 p.m.
Lord Mustill: My Lords, I beg to introduce a Bill to make new provision relating to admission to borough freedom. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Lord Mustill.)
On Question, Bill read a first time, and to be printed.

Business of the House: Standing Order 40
The Lord Privy Seal (Baroness Jay of Paddington): My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That Standing Order 40 (Arrangement of the Order Paper) be dispensed with today to allow the Motion standing in the name of the Baroness Miller of Hendon to be taken before the Report stage of the Vehicles (Crime) Bill.—(Baroness Jay of Paddington.)
On Question, Motion agreed to.

Business of the House: Consolidated Fund (No.2) Bill
Baroness Jay of Paddington: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That, in the event of the Consolidated Fund (No.2) Bill being brought from the Commons, Standing Order 46 (No two stages of a Bill to be taken on one day) be dispensed with tomorrow to allow the Bill to be taken through its remaining stages that day.—(Baroness Jay of Paddington.)
On Question, Motion agreed to.

International Criminal Court Bill [H.L.]
3.8 p.m.
Read a third time.
Lord Howell of Guildford Lord Howell of Guildford moved Amendment No. 1:
Before Clause 1, insert the following new clause—
RATIFICATION: RESERVATIONS AND DECLARATIONS
(". The Secretary of State shall not ratify the ICC Statute unless—

(a) a report is laid before Parliament, setting out—

(i) any reservations Her Majesty's Government proposes to make and the reason for those reservations,

(ii) any declarations Her Majesty's Government proposes to make and the reason for such declarations, and

(b) that report is approved by each house of Parliament.").

The noble Lord said: My Lords, the amendment states that,
"The Secretary of State shall not ratify the ICC Statute"—
that is, of course, the Rome Statute—
"unless—

(a) a report is laid before Parliament, setting out—

(i) any reservations Her Majesty's Government proposes to make and the reasons for those reservations,

(ii) any declarations Her Majesty's Government proposes to make and the reason for such declarations, and

(b) that report is approved by each house of Parliament".

The obvious concern behind the amendment is that each House of Parliament should be kept in the know about what will be done by the Government and what will be laid down in the way of reservations or declarations or interpretative comments before they ratify the measure. Those who have followed our proceedings will have noted that while reservations to the statute are prohibited under Article 120, a range of declarations and interpretative comments have been placed on the ratification status document by some of the 39 countries which have already ratified the statute. In some cases, those are very detailed—in particular as regards France and Israel. It seems only right that we in Parliament, and your Lordships, should seek to know what declarations the Government intend to put down. They will colour the way in which this country approaches the statute and the entire project, and deals with the International Criminal Court authorities in the future.
Not having had much luck at earlier stages in seeking clarification from the Opposition on how our Armed Forces will be protected where the United Kingdom is unwilling to make an investigation but where the ICC therefore feels that it has the jurisdiction to do so, and having found some reluctance by the Government to state what declarations there will be—they would in effect be reservations with a small "r"—we seek again to elicit this information by placing the requirement proposed in the amendment on the Government before they ratify.
It is an important requirement. It is not just an idle request in order to keep Parliament informed in an age when, all too often alas, it is by-passed. It is a matter of great concern. That concern has been expressed strongly in this country by our Armed Forces. If anyone doubts that, he should have read the front pages of our daily newspapers. A great deal of uncertainty remains. If anyone thinks that this is an idiosyncratic request coming only from one side in the British context, look at the attitude of other countries.
France and Israel have made declarations which seek to protect their armed forces. They are clear on the ratification status document. I draw attention to one. It states that the declaration of the Government of France does not preclude France from directing attacks against objectives considered as military objectives under international humanitarian law. Another declaration seeks to interpret the phrase, "military objectives", which appears in the war crimes schedule, in ways which would be handled by the French themselves.
What is behind those and other considerations is not a narrow nationalism or even an unwillingness to support the noble and excellent principles behind the setting up of the court, and the Bill. It is simply to accept—the point was made by the noble Baroness, Lady Williams of Crosby—that modern actions by troops, soldiers and armed forces are extremely complex, sensitive and difficult. They involve many levels of response, from the non-response—"Don't shoot back at all"—to a self-defence of the most vigorous kind. These require the most refined and rapid judgments under fire and place on our Armed Forces considerable burdens of decision as to whether they are acting in a lawful way, or an unlawful way which could constitute in the eyes of others—not of their own commanding officers, their own jurisdiction or their own country—a war crime and, therefore, make them liable to investigation and charges.
We believe strongly that Parliament must know the declarations that our Government will put down on the status document to protect the Armed Forces—they are trying to do their job in difficult circumstances—against these additional risks and challenges.
That is the thinking underlying Amendment No. 1, grouped with Amendments Nos. 3 and 7. Perhaps I may speak to Amendment No. 3 in the name also of my noble friend Lord Kingsland. It returns to the question of reservations but particularly in relation to Clause 50. One cannot make reservations about the statute itself. But reservations in relation to other treaties which may be relevant to the interpretations of articles under the statute can be withdrawn, made, revoked or amended by the Government.
Parliament has a right to expect to be involved in the detail of such matters. Amendment No. 3 proposes that before any such reservation or declaration to a treaty predating the International Criminal Court statute is withdrawn, the reason for such withdrawal is approved by both Houses of Parliament.
Underlying the two amendments is the continuing concern—it has not been answered in all our discussions—about the further protection of Armed Forces. I am the first to concede that life is difficult enough for those operating in hot war, or nearly hot war, situations under the mixture of constraints and laws which rightly govern the modern warfare in which our nation becomes increasingly involved; namely, humanitarian causes and peacekeeping. But it is evident, and many believe—I am one—that unless we are very careful we shall add to rather than subtract from those difficulties. It is in that spirit that I beg to move the amendment.
3.15 p.m.
Lord Shore of Stepney: My Lords, Amendment No. 7, which stands in my name, is grouped with Amendment No. 1, moved by the noble Lord. I have no disagreement with what he said. Indeed, my task is made simpler. I shall seek to reinforce the case made by the noble Lord in his usual moderate way.
In some ways a long tradition inhibits me from intervening on Third Reading and moving an amendment. It is almost unknown in another place. But this House gives quite extraordinary latitude to Members and I shall take advantage of it.
It is a serious move to which I wish to draw the attention of the House. Let us be clear. I have no problem with the thrust and purpose of the convention and the Bill. I welcome the implementation as an international crime, and with all the mechanisms so described in the Bill, of genocide (Article 6 in the convention), crimes against humanity (Article 7), and the traditional war crimes, with which we have been familiar since the First World War, referred to in the first part of Article 8. I add this point. The kind of circumstance which most noble Lords have addressed when speaking in favour of the Bill would be covered entirely by the enactment of Articles 6, 7 and 8(2)(a). Dreadful monsters such as Pol Pot and Saddam Hussein, who have inflicted such misery on their own people and on others, would be caught under those provisions. There is no worry about that. Thai would close a great gap in international law.
So what is my problem? It is twofold. The lesser part of it is that, almost unbelievably, the list of very important acts of war, which are to be outlawed in Article 8(2)(b), has not even been mentioned in either House of Parliament during the evolution of the convention. Statements were made in both Houses in July 1998 saying that we were signing the Rome Convention and just before that my noble and learned friend Lord Archer of Sandwell initiated a valuable debate in which he gave his principled case for the implementation of Articles 6, 7 and 8(2)(a) as part of an international treaty. However, on none of those occasions or in the Commons debate on a Wednesday morning some time in November 1999 has anyone mentioned the list of acts of war that are to be criminalised. I was going to call them new crimes,

1293
although others might call them old crimes. That is an astonishing failure of Parliament to do its job, but we have a chance to rectify it now.
Lord Archer of Sandwell: My Lords, does my noble friend appreciate that we cannot amend the statute now? There is nothing that Parliament can do about it at this stage.
Lord Shore of Stepney: My Lords, my noble and learned friend has pointed out that, because of failures at earlier stages, we are faced with a procrustean treaty and a procrustean Bill that we cannot amend. I wholly accept that. Only two devices were available to us. One was to delay implementation of Article 8(2)(b) for seven years. The noble Lord, Lord Howell, moved an amendment to that effect on Report. I supported him on that. The only alternative is to put a statement on the record as to the real reservations—
Lord Lamont of Lerwick: My Lords, before the noble Lord agrees too readily with the noble and learned Lord, Lord Archer, does he recall that when President Clinton ratified the statute in the last days of his presidency, he said that it should not be made legislation by Congress without amendment? It was his view that it ought to be amended.
Lord Shore of Stepney: My Lords, I am grateful to the noble Lord for that helpful comment.
I assure the House that I shall be very brief in refreshing memories about my concerns. My amendment is very similar to that tabled by the noble Lord, Lord Howell. I have itemised certain aspects of Article 8(2)(b). I have no objection to some parts of it, but there are others that affect our ability to wage war. The article would make it a war crime deliberately to bomb civilians in a major war, intentionally to direct attacks against civilian objects or intentionally to launch an attack,
"in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects".
It would be dishonest to put my name to that. No one can fight a major war without engaging in measures that will involve civilians and civilian property. There is no point in denying that.
Further on, the article lists,
"Employing poison or poisoned weapons",
and,
"Employing asphyxiating, poisonous or other gases".
That is very unpleasant, but many people think that depleted uranium is a poison. Depleted uranium bullets were used recently against tanks during operation Desert Storm. Are we going to allow that to become a legitimate subject of criminal prosecution?
The article also refers to,
"Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival".
1294
One great ingredient of the Second World War was the blockade. We did not wish to inflict starvation on our enemies, but depriving them of resources was one of the weapons that we judged necessary for waging war.
Many of the issues listed arise not just in massive total warfare, but in the minor warfare—minor in terms of cost and endurance—and engagements that we have been involved in since the end of the Second World War. We bombed civilian targets in Kosovo, Serbia and elsewhere as recently as two years ago. We know that. I greatly fear that we shall put our military in an impossible position.
We have literate Armed Forces. Our servicemen can read and write. They are an intelligent force equipped by a modern democracy. It is not just the odd barrack room lawyer who will read such documents. They will be read much more generally. There will be a challenge and an uncertainty to the exercising of authority throughout the Armed Forces. It is carrying matters to the limits of absurdity and dishonesty to say that those who give commands are to be held responsible for any breach of those commands.
That brings me back to the issue of what to do with this Procrustean treaty and Bill. Having failed to secure a seven-year reprieve, at least we can insist that the Government make a declaration. That is allowed for. The French and others have used that device already. I am not going to write the declaration for the Government, or even dare to suggest the words, but surely there is sufficient sense, resource and responsibility in our Government to produce a short document that covers such problems and makes it clear that our Armed Forces or the people who command them will not be hauled before international tribunals or be made the subject of false accusations in our country and its courts.
We are in good company. The Americans find the whole thing difficult to accept. That is not just because they have a more robust or indifferent view. They are constantly engaged in the policing of the post-war world. We are only second in terms of frequency of action. The French are also involved. Is it not rather surprising that three of the five members of the Security Council have refused to go along with the statute without reservation? Are we to be so isolated? Other countries which have difficulty with it are democracies for which I have considerable respect, such as India and Israel, to which the noble Lord referred in his earlier remarks.
I end by giving an additional reason for my concern. I mentioned such matters as depleted uranium being poisonous, and the bombing of civilian targets, even when incidental. Can one imagine what the government of Iraq will pour out from Baghdad in terms of propaganda? All the sympathetic—or, rather, bullied—countries which want to remain in favour with Iraq will propagate charges in relation to such matters.
As my noble and learned friend the Attorney-General assured me during our debate at Second Reading, if such charges ever reach the courts, he will win the case because he has the ability and the

1295
conviction, and so on. He knows that we are right and that we would not dream of carrying out such dreadful deeds. As I said to my noble and learned friend on that occasion, we shall lose not in the court of law—although that is possible—but in the court of public opinion. All over the world, the enemies of this country and of democracy will seize the type of material that is set out in the Bill and say, "They are not even observing their own laws and convention. What a lot of hypocrites they are"— when we only take up arms to protect ourselves and to protect the cause of democracy.
3.30 p.m.
Lord Lester of Herne Hill: My Lords, I shall not attempt to match the oratory of the noble Lord, Lord Shore of Stepney. I shall deal with a fairly narrow but important constitutional issue. I am very glad to do so in the presence of the Attorney-General because I believe that the amendments raise an important issue of constitutional law and practice. I shall say something about the merits of what the noble Lord, Lord Shore, said with regard to redefining war crimes. However, I shall not say anything about the responsibility of force commanders until we reach Amendment. No. 7, under which that matter logically arises.
I believe that the House owes a debt of gratitude to the noble Lord, Lord Howell of Guildford, for tabling his amendments. They raise an important issue that has concerned me during most of the time that I have been in this House—that is, the extent of parliamentary involvement with the executive branch of government when that government sign and ratify international treaties and make reservations or declarations under those treaties.
Indeed, some years ago I was moved to introduce a Private Member's Bill on that subject, and I received support from all sides of the House. It was a much more modest measure than these amendments. Essentially, it proposed that an impact statement should be made in order to explain to Parliament the impact of important treaties that the Government intended to sign and ratify. It also proposed that a committee—I believed that preferably it should be of this House—should be formed in order to scrutinise in some detail treaties such as this so that the House would be better informed when it came to debate. No doubt, that committee could have examined proposed reservations and declarations.
The story thus far is that the previous government accepted impact statements. They are now laid with treaties so that we have some idea of the object, purpose and impact of a treaty. The Royal Commission on the reform of this House recommended that a treaty scrutiny committee should be formed. However, through the Liaison Committee, your Lordships recently decided that now was not the appropriate time to follow that course. That decision was reached for reasons that I understand perfectly well; they are mainly resource reasons. We have so
1296
many new committees that I can see that adding a further one at this precise moment might overstretch our resources in terms of Peers and support.
The Government have indicated—the Minister will correct me if I am wrong—that they will change the current practice. In future, important treaties which the Government are minded to ratify will, as I recall, be referred to Select Committees of the other place in order that they can be examined—not across the board but in terms of subject speciality. I believe that that is a welcome step forward.
These amendments seek—they do so only in relation to the ICC statute—to write into the Bill a condition that the executive branch of the Foreign and Commonwealth Office cannot on behalf of the government of the United Kingdom and, hence, on behalf of the United Kingdom as a whole ratify the ICC statute until both Houses of Parliament have approved a report setting out the reservations and declarations. Of course, as a democrat, I cheer in a way because that is the maximum amount of parliamentary approval that one could possibly expect with regard to declarations and reservations.
However—I hope that in what I am about to say I am not regarded as too executive-minded—I am not sufficiently democratic to wish to go that far in relation to this or any other treaty. One practice that I do not admire in the United States is that which requires the United States Senate to give its approval to the ratification of treaties. It is precisely that which has caused a prevailing conservative majority in the Senate, led by such distinguished Senators as Bricker, either to tack on to international treaties amendments of their own in order to frustrate the purpose of government in entering into them on the international plane or, having in one way or another hampered the ability of successive United States governments—Republican as well as Democrat—to be able to enter into treaties such as the genocide convention, to take only one of several extreme examples.
I believe that there are limits to democratic accountability. In the field of European Union law, rightly we have very deep scrutiny—for example, in this House—because legislation which emanates from the European Union is often directly binding on this country without the need for Acts of Parliament. However, I do not believe—nor do I consider that my party would believe—that we should go so far with democratic scrutiny as to say that, whether in relation to this or any other treaty, the executive branch cannot ratify unless any reservation or declaration has first been laid before each House by report and approved.
Perhaps I may remind your Lordships briefly that, so far as I am aware, that has never been the practice in relation to previous treaties, however important or controversial. I take as an example the one that I remember best—that is, the European Convention on Human Rights. The Attlee government did not even lay it before Parliament for debate. When the Conservatives won power and in, I believe, 1953 ratified the first protocol, which did very controversial things in the field of education, property and voting

1297
systems, they made a reservation under the education provision. It would have been unheard of for Parliament to have to approve the signing and ratification of either that protocol or the reservation that was made at the time.
Therefore, we are considering the relationship between Parliament and the executive in the treaty-making sphere. Although it would be most welcome if, at the right time, the Government were able to inform the House of the reservations or declarations that they proposed to make, I do not believe that it would be proper or sensible for Parliament to write that requirement on to the face of this or any other Bill dealing with treaty incorporation.
Finally in relation to this matter, it would give a strange sense of our priorities were we to write in such a requirement for the International Criminal Court Bill, which deals with such important subject matter as war crimes, crimes against humanity and acts of genocide. It would appear in some way as though we considered this treaty to be more difficult to accept than all the previous treaties concerning torture, inhuman and degrading treatment, punishment, and so on. That is all I want to say about the principle raised by each of these three amendments. It is a very important issue.
So far as Amendment No. 7 is concerned, this is not the time for me to explain in detail why what is contained in Article 8 of the statute, in the definition of "war crimes", has for many years represented the relevant international law. The only way in which I can appeal to the noble Lord, Lord Shore of Stepney, is not by explaining the law but perhaps by quoting something said by a very famous American General after the war in the controversial context of the Yamashita case. I do not believe that the majority of the Supreme Court in the case of Yamashita gave a ruling with which I agree; I prefer the dissents. However, that is beside the point. For me, the words of General Douglas MacArthur sum up an answer to the values expressed by the noble Lord, Lord Shore. General Douglas MacArthur said:
"The soldier, be he friend or foe, is charged with the protection of the weak and unarmed. It is the very essence and reason for his being.
When he violates this sacred trust he not only profanes his entire culture but threatens the very fabric of international society. The traditions of fighting men are long and honourable, based upon the noblest of human traits—sacrifice.
The officer, of proven field merit and entrusted with a high command including authority adequate to his responsibility, has failed this irrevocable standard, has failed his duty to his troops, to his country, to his enemy, and to mankind; he has failed utterly his soldier faith".
For those kind of reasons, we are opposed to all three amendments.
3.45 p.m.
Lord Campbell of Alloway: My Lords, the noble Lord, Lord Lester of Herne Hill, has all but kicked into touch, into the groves of academia, Amendments
1298
Nos. 1, 3 and 7 as printed on the Marshalled List. With the leave of the House, I should like to return to them and to the relevant provisions of the Bill.
The House will be grateful to my noble friend Lord Howell of Guildford for having drawn our attention to the need for clarification of matters which at the moment remain obscure—and I do not propose to indulge in any repetition—and on which the Government are under an obligation to inform Parliament and seek the approval of Parliament. Those matters relate—and here we come to the provisions of the statute—to reservations entertained by government on any articles of the statute on which a formal reservation on ratification is prohibited by Article 120.
One has to draw the distinction, as I think my noble friend did when he talked about "R" with a small "r" and a large "R"—it is a vital distinction, because reservations are prohibited—between that and the exceptions as to the jurisdiction of the ICC on Article 8 up to seven years, which may be made, and have been made by France, under Article 124. That exception is declared on ratification, which, it is understood, it is not the intention of this Government to make. From a practical point of view, that is where we stand in considering Amendment No. 1.
At Committee stage, on my amendment on prisoners taken in armed conflict, which is not at all the same as the protection of those indulging in armed conflict—the matter before the House today—the noble and learned Lord, Lord Williams of Mostyn, informed the House that the Government would make interpretative statements on ratification. I do not know what that means. I respectfully ask: for what purpose, related to which articles, what is the substance, for what reason should they be made, and what would be their effect? I ask, not to try to be clever—as someone said, as a barrack room lawyer but because I simply do not know; and I think that the House is entitled to know.
It is also important to know whether Amendment No. 1, if accepted, would delay ratification. It is certainly of importance to me, having accepted an undertaking on my amendment on the basis that there should be no such delay. Having accepted that undertaking, if there were any effective delay, I should have to abstain on a Division. I respectfully ask when, in due course, the Government intend to ratify the measure. If this amendment could be implemented before that intention were implemented, there would be no objection.
Your Lordships are entitled to have answers to these questions on the Floor of the House before this Bill do pass. In the absence of any satisfactory undertaking on this amendment and on Amendment No. 3, these amendments could well commend themselves to your Lordships. If so, Amendments Nos. 1 and 3 are in no way inconsistent with Amendment No. 7, spoken to by the noble Lord, Lord Shore.
I turn to Article 9, the machinery of the statute, in relation to which no great academic expertise is required; one has only to read Article 9 at the end of

1299
Schedule 8 of the Bill. It is understood that the draft text of the elements of crime on interpretation and application of Articles 6 to 8 will be approved by the state parties, and that under paragraph 2 of Article 9 any state party, a majority of judges, or the prosecutor may make proposals for amendments, which could not be implemented until 2007, by the assembly of states—not, of course, by our Parliament or the parliament of any member states. As these elements of crime, as amended, will govern the interpretation and application of these articles in our domestic courts, ratification, let us face it, will involve a limited surrender or pooling of sovereignty, save as excepted for up to seven years under Article 24, as proposed by Amendment No. 7 tabled by the noble Lord, Lord Shore.
As one of the leading Christian states in Europe, perhaps the servants of the "Grand Design" of King Henry of Navarre and his great Minister, Sully, we shall ratify the statute which seeks to afford universal protection against inhumanities. That is a moral commitment not called into question by Amendments Nos. 1, 3 or 7.
There is little for me to say on Amendment No. 7 in the name of the noble Lord, Lord Shore, because, in effect, it has all been said, and said much better than I could say it. I wish only to point to the fact that during the course of debate on this Bill, many concerns have been expressed on Article 8, most of which relate to the provisions of Article 8 referred to in the noble Lord's amendment.
As yet, those concerns have not been addressed other than by the Government contending that such is the state of public international law, and we then all say "yes", and the provisions as they stand are adequate and wholly intelligible, and we all say "no" and the Government say "yes". There is the issue and there is the need for concern.
But on the protection and safeguards of those taken prisoner in armed conflict, the Government have given a most valuable undertaking, which addressed one particular concern, which ensures that if inadequacies appear to exist, on representations, proposals for amendments to the elements of crime will be made for the consideration of the assembly in 2007.
As the contention is that such inadequacies do exist today and that Article 8 should be reviewed for redefintion and clarification, I support this amendment. It does not and could not delay Royal Assent or ratification of the statute. Therefore, having accepted the undertaking from the Government, I have no qualms about supporting this amendment in any event.
The reasons for my support have already been given on Second Reading, in Committee and on Report when speaking to my amendment which was withdrawn on this undertaking. On more than one occasion in debate on this Bill, the noble Lord, Lord Shore, has given reasons—coincidentally, they are not in prior arrangement with me—which have squared with my own, more or less. The noble Lord has made
1300
an admirable speech, for which the House will be grateful, and it is not for me to indulge in repetition and I commend Amendment No. 7 to the House.
Lord Blaker: My Lords, I want to mention two items listed as war crimes in Article 8 which have not yet been mentioned in this debate. They seem to me among the most important. Item 2(a)(i) refers to "wilful killing" and (iii)refers to,
"Wilfully causing great suffering, or serious injury to body or health".
Are not those exactly the sort of things which our troops in war are instructed to try to inflict on any enemy?
Baroness Park of Monmouth: My Lords, I want to make only three very brief comments in support of this group of amendments. The first is that, like it or not, civilians are part of a total war. In the last war, we had to bomb Berlin; they bombed us. People were proud to be part of the war, part of the front line. If we had not bombed—I am sorry to say—the Ruhr, I doubt whether we should have been able to invade the Continent and liberate it. We needed to destroy the arms which were being built there. That is the first point.
The second matter is that the word "intentionally" is very subjective. It seems to me that many people, like members of the IRA, would come back and create any number of "Bloody Sundays" without anyone being able very easily to prove whether something done had been intentionally or not.
If one looks at the UN and its record of activity, in general, the UN troops are quite hopeless at policing any sort of active conflict because they are inhibited in how they respond to attack. We would be doing that to our troops. What on earth would be the rules of engagement if the MoD had to flog through this and wonder whether or not the rules of engagement would be protecting them and protecting the people?
It seems to me that we would completely inhibit the ability of our troops not only in a serious fighting war but even in the matter of the so-called Petersberg tasks and humanitarian events. One has only to look at what is now happening on the border of Macedonia to see that troops need to have absolutely clear rights to defend themselves. If we come back to the word "intentionally", it all hangs on whether the other side says that you intentionally shot them before they shot you.
The Attorney-General (Lord Williams of Mostyn): My Lords, I am grateful for the contributions which have been made. I deal first with the remarks of the noble Baroness. She asked, rhetorically, what would be the rules of engagement. One of the difficulties about rhetorical questions is that sometimes, they call for an answer.
The rules of engagement, with which she and I are both well familiar, are, of course, presented and provided to our Armed Forces at the moment in relevant conflicts, of which there have been a number

1301
recently. They are all drawn in conformity with the law, which includes international law, and, of course, they are there for the dual purpose internally that they shall know what the law allows; and secondly, to protect them when they act lawfully. So I can say from personal experience that there is no difficulty at all in casting and providing rules of engagement for our servicemen who themselves—I take up the theme of the noble Lord, Lord Lester—wish to act honourably and lawfully and who, in the overwhelming number of circumstances of which I am aware, fulfil that task.
I go back to the question which was put specifically by the noble Lord, Lord Campbell of Alloway, who asked whether there would be significant further delay. There would inevitably be such delay deriving from the structure of the first amendment in the name of the noble Lord, Lord Howell, because a good deal of parliamentary activity has to be gone through, not least in a report to be set out and approved by each House of Parliament. Of course, for a significant period of the year, neither House is sitting and there would be very substantial delay. The noble Lord was good enough to indicate to me that he might raise this question. Our policy purpose—I hope that it has been abundantly approved as a policy purpose by both Houses—is to be among the forefront of those who ratify.
As my noble friend Lady Scotland and I have said on previous occasions, we were in the vanguard of this particular international activity. We want to be among the first 60, and until 60 ratify, the treaty cannot come into effect.
I mentioned the noble Lord, Lord Lester. He raised what he indicated was a wider question and one not limited to this Bill. I am happy to revert to what my noble friend and I have said on earlier occasions. I agree with the noble Lord, Lord Lester, that there is a genuine issue that should be addressed on another occasion as to whether we should have a treaty scrutiny committee. Perhaps he will forgive me if I simply, without presumption, endorse that that is a valid matter and move on from that wider point.
First, I turn to Amendments Nos. 1 and 3, which deal with matters of reservations and declarations and, secondly, without trespassing on your Lordships' patience, I shall deal in some detail with what the noble Lord, Lord Shore, said. The first two amendments relate to reservations and declarations. Having self-instructed ourselves during previous debates, we all now know that no reservations are capable of being made to this statute and, accordingly, Her Majesty's Government will not make any. As noble Lords have pointed out, that is Article 120 of the Rome Statute:
"no reservations may be made to this Statute".
Statements upon ratification are matters that we have discussed previously. Two states have made statements that included comments on interpretation of the statute. As far as I am aware, the second comment on interpretation was a response to the first. It is likely that we shall make a statement on ratification. The statement will cover issues such as the
1302
fact—already found in some declarations—that we would want English to be the language in which the ICC documents are transmitted to us. I agree that that is a mechanical detail, but nevertheless an important one.
We do not intend to make the opt-out declaration under Article 124. No final decisions have been made on other statements that the United Kingdom may make. I know that the noble Lord, Lord Howell, has received a full letter from my noble friend Lady Scotland and we are happy to keep in close contact with the noble Lord or with any other noble Lords who are interested in this matter. At the risk of tedium, I have to say that reservations are not allowed. We shall not be allowed to make any effective declaration that purports to modify the legal effect of the statute.
I repeat that we signed, to a general welcome in both Houses. There is already parliamentary provision—I use that as an umbrella description—in the Bill at Clause 50 for any statements made to be laid before Parliament by Order in Council. Clause 50 sets out that Articles 6, 7 and 8.2 of the statute shall be construed subject to and in accordance with any relevant declaration made by the United Kingdom when ratifying any treaty or agreement relevant to the interpretation of those articles. We intend to lay before the House, in that form, any relevant declarations, including any made on ratification of this statute.
This is not new. The noble Lord, Lord Lester, is quite right. In the Geneva Conventions (Amendment) Act 1995, for example, it was thought appropriate under our predecessor regime that the statements made on ratification should be set out by Order in Council after they had been made. We believed that that was the correct approach then and we believe it is the correct approach now.
The noble Lord, Lord Blaker, introduced certain short questions, to which he is entitled to an answer. The answer and the matters that engaged his mind are to be found in the work of the preparatory commission for the ICC. Article 8, as the overarch to the introduction to war crimes, makes it quite plain. I shall read it out as it focuses precisely on the question put to me by the noble Lord.
"The elements for war crimes under Article 8, paragraph 2 of the statute shall be interpreted"-
I pause to underline the following words—
"within the established framework of the international law of armed conflict, including as appropriate the international law of armed conflict applicable to armed conflict at sea"—
which refers to the question raised about blockade. In other words, those acts that are lawful, pursuant to the established framework of international law of armed conflict, remain lawful.
Having set out my objections and explanations on Amendments Nos. 1 and 3 on behalf of the Government, I turn to do honour to the argument deployed by the noble Lord, Lord Shore of Stepney, in a little detail. He raised questions about a number of distinct articles. I shall introduce the matter in this way: Article 8.2(b)(i) is taken from Article 51 of the Additional Protocol I to the Geneva Conventions. It

1303
is a grave breach under Article 85.3 of that protocol. Therefore, it has been an offence under United Kingdom law since 1995 under Section 1 of the Geneva Conventions (Amendment) Act 1995, which I mentioned a moment ago.
British courts have universal jurisdiction over that and all other grave breaches of the convention. In parenthesis—this is an important parenthesis—I should say that both the noble Baroness and I have tried to underline on every appropriate occasion the principle of complementarity, which is not a dry piece of jargon loved only by lawyers. It is important that I repeat, for the reassurance of the House, that that means that domestic jurisdiction has the first opportunity of trying those charges. If charges are to be brought, they can be brought in the United Kingdom courts. Only if the domestic jurisdiction, namely our own, is unable or unwilling to take jurisdiction will the international criminal court feature at all.
Article 8.2(b)(ii) comes from Article 52 of the protocol. Article 8.2(b)(iv) is a weaker version of Article 51.5(b) of Additional Protocol I, which is already a grave breach under Article 85.3. Therefore, I repeat that it is already a criminal offence under UK law. It is true that, in the past, prosecutions have been rare if not unknown, but that does not mean that the law does not exist with its power and weight available to be deployed on any suitable and relevant occasion.
Article 8.2(b)(xvii), to which the noble Lord particularly referred, comes from Article 23(a) of the Hague Convention IV of 1907. Forgive this historical recitative, but we ratified that in 1909. Article 8.2(b)(xviii) comes from the Geneva Gas Protocol of 1925, to which, rightly in my opinion, we have been a party since 1930. At the time of signature, we entered reservations but those were superseded when we adhered to the later Chemical Weapons Convention of 1993.
Article 8.2(b)(xix) comes from the Hague Declaration 3 of 1899, to which we have been a party since 1907. Article 8.2(b)(xxv) is based on Article 54 of Additional Protocol I.
All those crimes that I have mentioned in what I recognise to be tedious detail, but necessary for the record as well as for reassurance, are already crimes under international law and many of them are crimes under domestic law. We have lived by them for many years and have no difficulty in accepting them now. I repeat that I have confidence in the ability of Her Majesty's Armed Forces to discharge their duties honourably and lawfully.
We come to a fundamental question which lies behind the Bill and our action, which, I repeat, was endorsed by both Houses. Do we wish the law to have the strength and power to which we pay lip service? Lip service is easy, cheap, costs nothing and offers no remedy.
Lord Howell of Guildford: My Lords, I am grateful to the noble and learned Lord and to all noble Lords for their comments. I am pleased by the reception
1304
which the amendment has been given by your Lordships but I am a little less pleased by the Minister's comments.
Perhaps I may first put aside the amendments to Clause 50. I assume from what the Minister said that there will be Orders in Council and that they will be handled by affirmative resolution. Unless I am checked on that matter, I am to some extent satisfied. I fully accept that those reservations lie outside the Rome Statute, that Parliament will be fully involved and that the affirmative resolution procedure will apply.
Secondly, I repeat—the noble and learned Lord repeated it and we all repeated it to each other—that we recognise that reservations are not allowed under the Rome Statute. That is why the amendment, which specifically mentions reservations because they are relevant to other treaties, emphasises the point about declarations. It simply asks that Parliament should be involved in the process leading up to such declarations as Her Majesty's Government will put down at the time of ratifying the statute in the ratification status document.
I am afraid that, although the noble and learned Lord promised not to lose contact over these matters, he did not address the central issue of whether Parliament should be properly involved. I shall turn in a moment to the broader question raised fascinatingly by the noble Lord, Lord Lester, about the extent to which Parliament should be involved in any treaty arrangements or to what extent the Royal Prerogative prevails. In this case, which I shall argue is a special case and not a precedent-setting case, the right of Parliament to know what is happening is very strong and can be reasonably pressed.
Behind the issue is the worry, which was addressed with great eloquence by the noble Lord, Lord Shore, that these war crimes are widely drafted and need the most careful guardianship with assessment. We raised the matter at earlier stages of the Bill and this is the point where suitable declarations ought to be drafted and brought before Parliament in order to reassure those who are worried and to safeguard our Armed Forces and other people.
There is no doubt that the definitions are wide. The point has been made not only in this House, because the new American Under-Secretary of State, John Bolton, said:
"War crimes have enormous definitional problems concerning civilian targets … Would the United States, for example, have been guilty of war crimes for its World War Two bombing campaigns and the use of atomic weapons under the Rome Statute?".
That is not a frivolous comment made by a bystander; it is a serious comment made by a senior member of the American administration.
We shall turn to the responsibility of commanders when we debate Amendment No. 6. We shall also debate matters relating to the Manual of Military Law and to what extent it covers, and has long since covered, all these issues and all the various definitions of war crimes. The noble and learned Lord was kind enough to give us a long history of the way in which the

1305
various crimes have become recognised international crimes and have long been accepted as part of the context in which war must be fought, as, indeed, it could and has been argued, have the lists of crimes in the military manuals and the rules of engagement.
However, with the greatest respect to the noble and learned Lord, all that is extremely interesting but, to use his own words, it completely misses the point. The point is that whether or not the crimes were previously on the statute book, we are now introducing a new and higher jurisdiction which may, in some cases we are not willing to investigate, want to press the matter. This is a new aspect, a new dimension, to an existing situation. It is no defence to say that because for years and years we have recognised these as international crimes everything is as before. Everything is not as before. The Bill is proof that we are trying to change things; we are trying to introduce a new jurisdiction. We welcome that in principle, but it means that we must be 10 times more careful in our handling of the definitions of these war crimes.
The noble and learned Lord urges that we be at the forefront in carrying forward the project. Indeed, other noble Lords have spoken again and again about the need for the United Kingdom to set an example and be among the founder members and so forth. I suggest to Ministers and to the noble and learned Lord that there are two ways in which we can best be an exemplar and a role model. First, we must try to bring along the great United States, which has enormous concerns. Its non-participation will come close to wrecking the project; it will severely question the plausibility and credibility of the International Criminal Court if we cannot get the Americans to move further than merely signing with reservations. We shall debate the American position in a moment, so I shall not go into more detail. However, everyone is agreed that American involvement would be a huge advance and to take steps to encourage that would set a fine example. However, they have made it absolutely clear that they are opposed to ratification, and General Colin Powell repeated that again recently.
The second way in which we should set an example would be to reassure our Armed Forces and to do so in ways which show that we recognise that there is a new situation. For all the rules of engagement, and for all the war crimes which have been adopted as international crimes since 1909, there is a new situation in which a higher jurisdiction may—not always, of course—want to involve itself at the instigation of an independent prosecutor who will not come under British jurisdiction.
Would our humble amendment, which merely asks that Parliament should know about the Government's concerns and how they will be reflected before the statute is ratified, set a precedent? I do not believe that it would. Your Lordships' House does not necessarily set precedents. Furthermore, perhaps I may say in good heart to the noble Lord, Lord Lester, that I do not believe that it would be carrying democracy over the top and to too great an extent. We merely ask that Parliament be informed and that a report be laid while
1306
the Government carry on with what is no doubt difficult business in international affairs. I am the first to recognise that that cannot be undermined at every point by ceaseless argumentation. Decisions must be made.
The truth is that this is a different kind of treaty. It brings into our statute law a whole range of crimes from the international criminal code book. It means that the higher jurisdiction could penetrate deep into the lives of our citizens and Armed Forces, our commanders and superior officers, and even possibly our political leaders, in a way that has never happened previously. To query how we handle that is not to oppose the principle, with which we on this side of the House agree. We merely believe that the best way forward is to make this project effective, which means that we must bring along the Americans and ensure that our own Armed Forces and others do not believe that they have been further hobbled.
The range of crimes, to some of which the noble Lord, Lord Shore, referred, sounds rather fearsome. As I child, I remember receiving a message that my father had escaped from the second siege of Tobruk, which very much pleased me. It never occurred to me, and I am sure to him, that war crimes were involved. It is very difficult to define a siege and a military objective. Those matters have been on a list of international crimes and are now coming onto our statute book. I believe it is right that we should have some protective declarations to reassure our people that these matters will be handled in a sensible, mature and wise way. In so doing that will merely reflect the concerns expressed by our neighbour France, Israel, the debates in the Canadian and New Zealand Parliaments, although they are enthusiastic supporters, and the most learned minds in the United States. We should not be afraid of keeping such company. I believe that we should pursue the action set out in the amendment.
Lord Williams of Mostyn: My Lords, I gathered that the noble Lord was coming to his conclusion. Since he put a question to me earlier I thought it better to allow him to develop his theme. I hope that I have not intervened too early in order to assist him and the House. The noble Lord asked me a particular question about Clause 50. I should not like the noble Lord to proceed on a misapprehension. Clause 50, which draws on the Geneva Conventions (Amendment) Act 1995, makes provision by Order in Council. The Delegated Powers and Deregulation Committee did not comment adversely on that and call for the affirmative resolution procedure. I do not want the noble Lord to proceed on an incorrect basis.
Lord Howell of Guildford: My Lords, that is a further disappointment and does not in any way impede me from uttering the final sentence of my speech. I propose that the opinion of your Lordships' House be tested upon this amendment.
4.23 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 120; Not-Contents, 172.

Division No. 1

CONTENTS

Ampthill, L.

Laing of Dunphail, L.

Anelay of St. Johns, B.

Lamont of Lerwick, L.

Ashcroft, L.

Lane of Horsell, L.

Astor of Hever, L.

Lindsay, E.

Attlee, E.

Liverpool, E.

Biffen, L.

Luke, L.

Blaker, L.

Lyell, L.

Blatch, B.

McColl of Dulwich, L.

Boardman, L.

Mackay of Clashfern, L.

Brabazon of Tara, L.

Marlesford, L.

Brightman, L.

Masham of Ilton, B.

Brougham and Vaux, L.

Mayhew of Twysden, L.

Burnham, L. [Teller]

Miller of Hendon, B.

Byford, B.

Molyneaux of Killead, L.

Caithness, E.

Monro of Langholm, L.

Campbell of Croy, L.

Monson, L.

Chadlington, L.

Montrose, D.

Chalfont, L.

Mowbray and Stourton, L.

Clark of Kempston, L.

Murton of Lindisfarne, L.

Coe, L.

Noakes, B.

Colwyn, L.

Northesk, E.

Cope of Berkeley, L.

O'Cathain, B.

Courtown, E.

Onslow, E.

Craig of Radley, L.

Oxfuird, V.

Cranborne, V.

Park of Monmouth, B.

Crickhowell, L.

Peyton of Yeovil, L.

Dean of Harptree, L.

Plumb, L.

Denham, L.

Plummer of St. Marylebone, L.

Dixon-Smith, L.

Rawlings, B.

Elles, B.

Rees-Mogg, L.

Elliott of Morpeth, L.

Renfrew of Kaimsthorn, L.

Elton, L.

Renton, L.

Erroll, E.

Renton of Mount Harry, L.

Feldman, L.

Roberts of Conwy, L.

Ferrers, E.

Rotherwick, L.

Fookes, B.

Ryder of Wensum, L.

Fraser of Carmyllie, L.

Saltoun of Abernethy, Ly.

Freeman, L.

Sandwich, E.

Gardner of Parkes, B.

Seccombe, B.

Geddes, L.

Selborne, E.

Gilmour of Craigmillar, L.

Sharples, B.

Glenarthur, L.

Shaw of Northstead, L.

Glentoran, L.

Shore of Stepney, L.

Gray of Contin, L.

Skelmersdale, L.

Greenway, L.

Soulsby of Swaffham Prior, L.

Hanham, B.

Strange, B.

Hayhoe, L.

Strathclyde, L.

Henley, L. [Teller]

Swinfen, L.

Hodgson of Astley Abbotts, L.

Taylor of Warwick, L.

Hogg, B.

Thomas of Gwydir, L.

Holderness, L.

Trumpington, B.

Home, E.

Vinson, L.

Hooper, B.

Vivian, L.

Howe, E.

Waddington, L.

Howell of Guildford, L.

Wade of Chorlton, L.

Hunt of Wirral, L.

Wakefield, Bp.

Jenkin of Roding, L.

Walker of Worcester, L.

Jopling, L.

Weatherill, L.

Kimball, L.

Willoughby de Broke, L.

Kingsland, L.

Young, B.

NOT-CONTENTS

Ackner, L.

Amos, B.

Acton, L.

Andrews, B.

Addington, L.

Archer of Sandwell, L.

Ahmed, L.

Ashley of Stoke, L.

Alli, L.

Avebury, L.

1308

Bach, L.

Jay of Paddington, B. (Lord

Barker, B.

Privy Seal)

Barnett, L.

Jenkins of Hillhead, L.

Bassam of Brighton, L.

Jenkins of Putney, L.

Berkeley, L.

Kennedy of The Shaws, B.

Bernstein of Craigweil, L.

King of West Bromwich, L.

Billingham, B.

Laming, L.

Blease, L.

Lea of Crondall, L.

Bradshaw, L.

Lester of Herne Hill, L.

Bragg, L.

Levy, L.

Brooke of Alverthorpe, L.

Linklater of Butterstone, B.

Brookman, L.

Lipsey, L.

Burlison, L.

Lock wood, B.

Carter, L. [Teller]

Lofthouse of Pontefract, L.

Christopher, L.

Macdonald of Tradeston, L.

Clarke of Hampstead, L.

McIntosh of Haringey, L [Teller]

Clement-Jones, L.

MacKenzie of Culkein, L.

Clinton-Davis, L.

Mackenzie of Framwellgate, L.

Cocks of Hartcliffe, L.

Mackie of Benshie, L.

Dahrendorf, L.

McNally, L.

David, B.

Maddock, B.

Davies of Coity, L.

Mar and Kellie, E.

Davies of Oldham, L.

Marsh, L.

Dean of Thornton-le-Fylde, B.

Mason of Barnsley, L.

Desai, L.

Massey of Darwen, B

Dholakia, L.

Merlyn-Rees, L.

Dixon, L.

Miller of Chilthorne Domer, B.

Dormand of Easington, L.

Milner of Leeds, L.

Eatwell, L.

Mishcon, L.

Elder, L.

Mitchell, L.

Evans of Parkside, L.

Molloy, L.

Evans of Temple Guiting, L.

Morris of Castle Morris, L.

Evans of Watford, L.

Newby, L.

Ewing of Kirkford, L.

Nicholson of Winterbourne, B.

Ezra, L.

Northover, B

Oakeshott of Seagrove Bay, L.

Falconer of Thoroton, L

Orme, L.

Falkland, V.

Parekh, L.

Farrington of Ribbleton, B.

Peston. L.

Faulkner of Worcester, L.

Phillips of Sudbury, L.

Filkin, L.

Plant of Highfield.L.

Fitt, L.

Ponsonby of Shulbrede, L.

Fyfe of Fairfield, L.

Prys-Davies, L.

Gale, B.

Ramsay of Cartvale, B.

Gibson of Market Rasen, B.

Randall of St. Budeaux, L.

Gilbert, L.

Razzall L.

Gladwin of Clee, L.

Rea, L.

Goldsmith, L.

Redesdale, L.

Goodhart, L.

Rendell of Babergh, B.

Goudie, B.

Rennard, L

Gould of Potternewton, B.

Richard, L.

Grabiner, L.

Rodgers of Quarry Bank, L.

Graham of Edmonton, L.

Rogers of Riverside, L.

Greaves, L.

Roper, L.

Gregson, L.

Russell, E.

Grenfell, L.

Sandberg, L.

Hamwee, B.

Sawyer, L.

Hardy of Wath, L.

Scotland of Asthal, B.

Harris of Greenwich, L.

Scott of Needham Market, B.

Harris of Richmond, B.

Sharman, L.

Harrison, L.

Sharp of Guildford, B.

Haskel, L.

Shutt of Greetland, L

Hilton of Eggardon, B.

Simon, V.

Hogg of Cumbernauld, L.

Simon of Glaisdale, L.

Hollis of Heigham, B.

Smith of Clifton, L.

Hooson, L.

Smith of Gilmorehill, B.

Howells of St Davids, B.

Stoddart of Swindon, L.

Howie of Troon, L.

Stone of Blackheath, L.

Hoyle, L.

Taverne, L.

Hughes of Woodside, L.

Taylor of Blackburn, L

Hunt of Chesterton, L.

Thomas of Gresford, L.

Hunt of Kings Heath, L.

Thomas of Walliswood, B.

Hutchinson of Lullington, L.

Thomson of Monifieth, L.

Irvine of Lairg, L. (Lord

Thornton, B.

Chancellor)

Tomlinson, L.

Islwyn, L.

Tope, L.

1309

Tordoff, L.

Wigoder, L.

Turner of Camden, B.

Wilberforce, L.

Wilkins, B.

Wallace of Saltaire, L.

Williams of Elvel, L.

Walmsley, B.

Williams of Mostyn, L.

Watson of Richmond, L.

Winston, L.

Whitty, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.35 p.m.
Lord Lamont of Lerwick Lord Lamont of Lerwick moved Amendment No.2:
Before Clause 1, insert the following new clauseߞ

RATIFICATION: TIMING
(". The Secretary of State shall not ratify the ICC Statute before it has been ratified by the United States of America.").
The noble Lord said: My Lords, I shall be extremely brief. The purpose of the amendment is merely to back up the admirable sentiments expressed so vigorously by the noble Lord, Lord Shore, and my noble friend Lord Howell on the Front Bench, particularly what they have said about the reservations of the United States towards the proposed legislation and the establishment of the court.
The Government say that they are determined that Britain should be in the vanguard; they say that they are determined that Britain should be among the few; they say that Britain should be up there with those human rights-respecting countries, Zimbabwe and Iran, but take a different approach from the United States. It is not that we lack confidence in our Armed Forces, as was suggested, but we fear that there will be frivolous prosecutions and that unjustified accusations will be made. Before Ministers dismiss those fears, they should acknowledge more than they have done that they are strongly and widely held in the United States. As I said earlier, when I intervened in the speech of the noble Lord, Lord Shore, even President Clinton, who chose to ratify the statute at the very end of his presidency, said that it required amendment before there could be legislation in the United States Congress. There is strong opposition in the United States to what is proposed. John Bolton has been one of the fiercest and most outspoken opponents, but Mr Rumsfeld, the Secretary of Defense, Secretary of State Powell and Mr Wolfawitz have all expressed their fears. Senator Helms said that the measure will be dead on arrival if it arrives in the United States Senate.
I put it to the House that the United States and Britain are at the forefront of peacekeeping. When I said that in one of our earlier debates, I was rebuked and reminded of the efforts of Luxembourg and Israel in international peacekeeping. It seems to me that the difference between Luxembourg and Britain is as great as the difference between Britain and the United States. But we are the countries that are very much at risk. We cannot just dismiss the fears that have been expressed so widely in the United States. It is not just
1310
a question of a so-called "conservative" Congress, as has previously been alleged. There is very little democratic support for the measure.
Lord Archer of Sandwell: My Lords, I am most grateful to the noble Lord for giving way. Is he suggesting that there is virtually universal anxiety in the United States about ratification? Has he by any chance seen the letter recently written by 10 presidents and past presidents of the American International Law Association declaring that the anxieties are simply based on misconceptions?
Lord Lamont of Lerwick: My Lords, I am sure that plenty of American lawyers are in favour of this; the same could be said of lawyers in this country. However, what we are worried about is the opinion of certain non-lawyers. I suggest to the noble and learned Lord that political opinion in the United States, including that expressed by the Democratic Party, is against this measure. It has received little support in Congress.
I know that I shall be told that not only are lawyers to some extent in favour—although I suspect that they are in a minority—but that, in the past, the United States has on occasion been conservative about ratifying international agreements. That seems rather irrelevant. What matters is that we consider the case on its merits; namely, whether American opinion on this is right or wrong today, not whether American opinion has been right or wrong in the past.
I believe that the arguments put forward by the noble Lord, Lord Shore, and by my noble friend on the Front Bench deserve serious consideration. I wish that the Government would acknowledge that widespread fears have been expressed in the United States, both in the administration and in political circles generally. For that reason, I think that it would be most unwise for the two leading countries in peacekeeping to go along with this proposal until either the United States has—as has been suggested by President Clinton—secured certain changes, or something is produced along the lines suggested by the noble Lord, Lord Shore. I beg to move.
Lord Clinton-Davis: My Lords, I am bound to say that the doctrine which has been enunciated by the noble Lord, Lord Lamont, is a doctrine of despair. He is saying that the United States, whether it is right or wrong, should be followed. That is not a doctrine that I am prepared to accept. I am surprised that such a suggestion should have come from his lips. The noble Lord has not always supported the United States. To argue, as he does, that the United States should be followed regardless of the argument is not appreciated by this House and is, as I have said, a doctrine of despair.
I hope that the noble Lord will not pursue his logic and seek to divide the House. We have heard the argument put forward by my noble friend Lord Shore. As always, he has been engagingly articulate on a subject about which he is deeply concerned. However, having followed its logic, we have now passed that

1311
argument. I hope, therefore, that the noble Lord, Lord Lamont, will not pursue his suggestion and seek to divide the House.
Lord Lester of Herne Hill: My Lords, one of the great charms of this House is that one can hear opinions expressed from all sides of the debate, including those which are eccentric. I am very much in favour of the expression of eccentric opinion. I hope that the noble Lord, Lord Lamont, will allow me to say that I regard the amendment before us as eccentric.
Above all, the noble Lord is someone who has stood for the political and legal sovereignty of this country. Above all, he is someone who has pointed to the danger of intrusions upon sovereignty from the European Union. One cannot imagine ever seeing an amendment, tabled in his name indicating that we should not ratify this or any other treaty until Germany or France had done so. Indeed, on a previous occasion I think that the noble Lord referred to France in slightly pejorative terms. However, we have before us an amendment which indicates that, as an independent sovereign state engaged in deciding on the best interests of this country in the world community, we should not ratify this treaty unless and until the United States of America has done so.
I owe an enormous amount to the political and legal traditions of the United States. I studied at Harvard Law School for two years, learning at the feet of Henry Kissinger, among others. But I cannot imagine that the values of Senator Jesse Helms should influence us when deciding what is best for this country within the world community. Furthermore, the United States has a proud and honourable record of compliance with international treaty obligations, of upholding the rule of law, and of upholding due process.
There are many in the American legal community who would agree with the noble Lord, Lord Lamont, but there are also many in that community who would disagree with him. The same applies politically. Small "c" conservatives are not to be found only in the Republican Party; that position is not confined to either side of politics in the United States.
It is my respectful view that it makes no sense whatever for us to reach a decision on the ratification of an international treaty on the basis of what some other state decides it should or should not do. I agree that it is essential to the future of the ICC Statute that the United States should adhere to it as soon as that is possible. Furthermore, I agree that we should take every step we can to encourage our American friends and close allies to do so. Indeed, I am sufficiently optimistic about human nature to believe that, just as the United States eventually ratified the genocide convention, despite opposition from the likes of Senator Helms and his predecessor, Senator Bricker, the United States will, in due course, be reassured.
I have looked at the American objections one by one. They have been set out clearly in a helpful paper from the Medical Foundation for the Care of Victims of Torture. With great respect, I do not believe those objections to be well founded.
4.45 p.m.
The Earl of Erroll: My Lords, perhaps I may put a brief question to the Minister. If the Americans require amendments to be made before they will ratify the treaty, the treaty will then operate under a joint command. At that point, they will operate under an amended treaty while we will operate under this one. Will the fact that, in effect, two different treaties have been signed, produce a conflict of interest?
Lord Lester of Herne Hill: My Lords, I believe that the noble Earl may have addressed his question to me. I do not think that the United States would be allowed to pick and choose. Like every other state in the world, it would have to accept without reservation the international obligations set out in the treaty. The same would apply to the Republic of India, which is another great democracy, and to the state of Israel. There are also many states that are not democracies at all and which have refused to sign and will not ratify the treaty. All nations will have to reach their own judgments. I understand that in the cases of India and Israel, both have problems to be faced. The same may be true of the United States. However, one hopes that, in the end, they will be able to follow suit.
Lord Howell of Guildford: My Lords, my noble friend Lord Lamont has done the House a service in moving this amendment. It has enabled us to focus on the position of the United States for reasons that I touched on when speaking to an earlier amendment. I agree with the noble Lord, Lord Lester, that the participation of the United States is much to be desired and encouraged.
Perhaps I may say to the noble Lord, Lord Clinton-Davis, who speaks with great sincerity, that, with respect, what my noble friend Lord Lamont is saying is not a doctrine of despair but rather a doctrine of positive encouragement. It is possible that we shall be able to bring the United States into this great scheme. As the noble and learned Lord, Lord Archer of Sandwell, reminded us, certain senior lawyers in the American Bar Association believe that this is the right way to go. Unfortunately, however, there are certain very senior people, ranging right across the political spectrum and at the highest legal levels in the United States—regardless of whether they are Clinton or Republican appointees—who believe that the statute is seriously flawed. I do not think that that opinion can be laid entirely at the feet of Senator Jesse Helms. I do not want to be disrespectful to him, but it must be said that he is generally perceived as representing one wing of politics. It is neither fair nor accurate to suggest that all opposition to the measure has emanated from him.
The previous American president, President Clinton, stated that:
"In signing"ߞ
he authorised that just before the end of his presidential termߞ
"we are not abandoning our concerns about significant flaws in the treaty".

1313
The president referred to "significant flaws", but the presentation offered to this House has been one that suggests that this is a treaty that we must sign lock, stock and barrel; that we have to sign up to the whole statute because it cannot be changed; and that the Bill before us must therefore mirror, reflect and emulate the statute as closely as possible. Personally, I do not believe that that doctrine is accurate. I believe that later we shall see that other countries have not followed that course.
The expression "significant flaws" was a strong phrase for the then American president to use. To dismiss that or to say that it is not well founded suggests a leap of faith that I for one would not necessarily wish to follow. I believe that the United States can be brought along if we are careful and if we do not dismiss its concerns as being merely arrogant or isolated. We must recognise that it has been worried all along, even though it negotiated fully in the earlier meetings that informed the drafting of the Rome Statute. At the end of 1998, one of the notes that it sent to the Secretary-General stated that it was profoundly worried that the correction procedures for amending the then draft Rome Statute were not being properly followed in accordance with normal procedures on these occasions.
With regard to the flaws in the treaty, there are many areas where wise support of the project leads one to be very careful about dismissing the views of the highest Americans and says instead that we should proceed with the greatest of care and make our own points—without going back over the previous amendment—and put down our own declarations about how we wish to go forward.
That is the way to encourage the Americans to come along. That would be the greatest possible asset that those who genuinely have the interests of this project at heart could contribute in this place. My noble friend has therefore done us a service in enabling us to look at the amendment and discuss the central position of the Americans.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Scotland of Asthal): My Lords, I viewed the amendment with a little surprise and disappointment. I was tempted in reply simply to say that I agreed wholeheartedly with the comments made by my noble friend Lord Clinton-Davis and by the noble Lord, Lord Lester, and to say no more. But that would not do justice to the issues that the noble Lord, Lord Lamont, has raised.
Perhaps I may say straightaway that we have the greatest respect for our American partners. They have been with us in many times of trouble. We take their important views very seriously. But I remind the House that our American partners are now in the same position as Zimbabwe and Iran. They too have signed but not ratified the statute. I am sure that the noble Lord would not suggest that we should await the ratification of it by either of those two states before we independently come to our own judgment.
1314
This House is a House of Parliament in Britain. The Members of the other place were voted into government by the people of this country—and it is our decisions, our views and our debate which is the most important.
If, in the past, we had adopted the surprising and somewhat unusual approach advocated by the noble Lord, Lord Lamont, we would not have ratified the Convention on the Rights of the Child, the Ottawa Convention on Anti-Personnel Landmines, the Additional Protocol to the Geneva Convention of 1997, or the Geneva Convention on the Law of the Sea. We would have had to wait a great many years to ratify the genocide convention. Therefore, that is not a position that attracts Her Majesty's Government. I am sure that when a different administration were in power, they would not have attracted noble Lords who now sit opposite and form part of her Majesty's Loyal Opposition.
Many noble Lords have spoken with great passion about the independence of this country. Therefore, it is with some surprise and no little disappointment that I listened to the matters now being advocated by some of the same noble Lords. It is right to say that opinion in the United States is not as clear cut as the noble Lord, Lord Lamont, seeks to suggest. There is a good deal of discussion and debate. I hope that the noble Lord will forgive me for also belonging to that somewhat ill-fated profession of lawyers, and saying that lawyers, too, have the ability to look at what is in their national interests. As has been stated, many lawyers in America have said very clearly that they are concerned that the United States has chosen to drag its feet in relation to the matter. We hope that we shall encourage it to change and see the benefits of the negotiations in which it participated to make the statute as good as it now appears to be, balancingߞ
Lord Archer of Sandwell: My Lords, I thank my noble friend for giving way. Does she agree that when what has been put forward by 10 of the most distinguished lawyers in America is that the opposition is based on a misconception of international law, it is something which perhaps should be taken seriously?
Baroness Scotland of Asthal: My Lords, I respectfully agree. But I would invite the noble Lord not to press this matter to a Division, not to surrender our sovereignty, and in doing so to say that this is not an appropriate matter for Her Majesty's Government.
Lord Lamont of Lerwick: My Lords, I am very sorry to have caused so much hand-wringing and to have disappointed the Minister. She was speaking with such sorrow and was disappointed in my approach. I have no intention of putting this matter to the vote. As the House well understands, I wanted to raise the issues that have been seriously put by the United States. The matter has nothing whatever to do with sovereignty. That really is a nonsensical argument; talk about the word "eccentric" "It is completely illogical to say that in one instance we should follow an example of another country voluntarily, through our own

1315
Parliament in a matter that is for our own free decision. What that has to do with all the other conventions and following the Americans, I simply cannot see. I am surprised that the Foreign Office could not come up with something better to put in the Minister's brief because that really does not follow. I have no intention of pressing the matter to a vote. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendment No. 3 not moved.]
Clause 12 [Right to review of delivery order]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 4:
Page 8, line 16, leave out ("(8)") and insert ("(9)")
The noble Baroness said: This is a technical amendment. As a consequence of the changes made to Clause 5 on Report, I regret that a minor drafting error has occurred in Clause 12(4)(b). The intention is that, like the competent court, a higher court which hears an application for habeas corpus will be able to issue a declaration if it determines that the person's rights have not been respected. That declaration shall be transmitted to the ICC.
As it presently reads, subsections (4) to (8) of Clause 5 would apply to a court hearing an application for habeas corpus but not subsection (9), which provides for a declaration by the court to be passed to the ICC. The amendment would remedy that error. I beg to move.
On Question, amendment agreed to.
Clause 51 [Genocide, crimes against humanity and war crimes]:
5 p.m.
Lord Avebury Lord Avebury moved Amendment No. 5:
Page 26, line 5, at end insert (", or
(c) outside the United Kingdom by a non-United Kingdom national, when the alleged crime was committed against a United Kingdom citizen.").
The noble Lord said: My Lords, as Clause 51 stands, it is an offence against the law of England and Wales for a person to commit genocide, a crime against humanity or a war crime, but only if the act concerned is committed in England or Wales, or outside the United Kingdom by a UK national, a UK resident or a person subject to UK service jurisdiction.
On previous occasions, without success, we have tried to remove those restrictions. I do not propose to return to that general argument now. I deal with the limited case where the victim of a Rome Statute crime outside the United Kingdom is a British citizen. That is a point that I have raised on two occasions in the past without eliciting any response from the Minister on the Front Bench.
If a person who is alleged to have murdered a British citizen in the course of an internal armed conflict comes here and we cannot arrest him because we deliberately failed to take the power suggested in the amendment, the British people might find that very hard to understand or excuse. The Minister may say that if the evidence is good enough the ICC would, in
1316
any case, issue a warrant and the offender would be taken into custody following the procedures in Clause 2. But would that always be so?
Your Lordships may remember the case of Tharcisse Muvunyi, against whom the Rwanda Prosecutor-General said there was overwhelming evidence of his involvement in the genocide in Rwanda, and yet it was not until February 2000 that he was arrested and brought before a court in London, having lived here since March 1998. So it took nearly two years to get around to issuing an indictment. One must suppose that the International Criminal Court, with a great many more cases than either of the two existing tribunals, will not issue indictments more expeditiously than either of those tribunals have done in the past.
A few minutes ago the noble and learned Lord, Lord Williams of Mostyn, underlined the principle of complementarity; he said that only if the domestic jurisdiction is unable or unwilling to exercise its powers would the ICC come into play. I agree that the whole thrust of the legislation is that, wherever possible, the load should be taken off the shoulders of the international court and dealt with in the domestic jurisdictions of signatory states. It would be helpful to the ICC if this minor extension of our domestic jurisdiction were to be agreed.
In previous debates, I have mentioned the case of Mr Yunus Yosfiah, who was a special forces major at the time of the clandestine Indonesian invasion of East Timor, where he was commanding the unit that murdered five newsmen, including two Britons— Malcolm Rennie and Brian Peters—on 16th October 1975. Those journalists were in Balibo when the Indonesians arrived. An eye witness reported that the journalists were dressed unmistakably in civilian clothes; that they had painted an Australian flag on the wall of their house; and that it was perfectly obvious that they were not combatants. But when the Indonesian forces came into the town of Balibo they shot first Brian Peters and then, as the remainder of the journalists were frantically pointing at the Australian flag and shouting "Australians, Australians", the troops surrounded them and fired automatic weapons at them until they were all dead. The bodies were then burnt so as to remove the evidence, and only fragments of bone were handed over to the Australian authorities a few weeks later.
This Yosfiah spent a year in Britain at the Royal College of Defence Studies in 1989, as Hugh O'Shaughnessy revealed in the Independent in November 1995. We were unaware of his presence at that time, but imagine the outrage if it had become public knowledge that a foreign officer, who was an honoured guest of Her Majesty's Government, had murdered two Britons in cold blood some years earlier but could not be arrested in the United Kingdom for that crime. That would have been the situation then; we could merely have asked Mr Yosfiah to leave the country.
But suppose that all those events were transposed into the future. What will people say when they know that the failure to prosecute results from a deliberate

1317
omission by your Lordships and by the Government? Admittedly, these cases will be extremely rare, but they could become less so as time passes. We have more and more British civilians working as technicians, professionals, humanitarian workers and UN observers in situations of armed conflict such as Chechnya, the Balkans, Angola or Colombia.
From time to time, unfortunately, there may be murders of British civilians such as the three telecoms experts who were abducted in Chechnya in October 1998 and then brutally decapitated two months later. In that case, the Russian authorities say that they have arrested the killers. Nearly always, the government concerned would take responsibility for catching and prosecuting those who commit war crimes. But the whole purpose and rationale of the ICC is that sometimes it is the governments themselves or their agents who are guilty, as they were in East Timor, as I have mentioned.
The amendment envisages a very special set of circumstances: that a British citizen is the victim of a Rome Statute offence in some other country; that the authorities of that country are unwilling or unable to prosecute the perpetrator or that he is careful to stay outside their jurisdiction; that the ICC has not got around to issuing an indictment against the perpetrator; and that he comes within our jurisdiction. The case of Yunus Yosfiah shows that the combination is not impossible. I beg the Government to accept this small extension of our jurisdiction to deal with it. I beg to move.
Baroness Scotland of Asthal: My Lords, I agree with the noble Lord, Lord Avebury, that when British citizens are the victims of serious crime it is a matter of great concern to us all. However, it is the traditional legal position in the United Kingdom that our courts do not take jurisdiction on the basis of the nationality of the victim. For that reason, I must oppose the noble Lord's amendment.
We do not agree that there is a case for changing the general legal proposition in the case of ICC crimes. We do not wish to adopt a position where we are saying that there are different classes of victim; that justice should be done in a different way depending on the nationality of the victim. If a crime is committed against a British national overseas, we expect the country where the crime took place to investigate and prosecute. Occasionally we pursue this through our bilateral dialogue with the country concerned and occasionally we offer support in such an investigation.
But we consider that the proper place for the trial is in the country where the crime took place or the country of nationality of the accused. That is where the relevant evidence and witnesses will be most readily available and where the most swift, effective judicial process is likely to be achieved.
1318
We also consider that the establishment of the ICC and the provisions in this Bill which incorporate ICC crimes into domestic law would not justify changing this policy. If anything, there is even less reason to take jurisdiction ourselves because, in the case that the state where the crime took place cannot investigate, we would refer that matter to the ICC to do so.
It is appropriate that I should say a word about Yunus Yosfiah. The noble Lord, Lord Avebury, has raised that case on a number of occasions. I should like to give a little of the history in order that there is a proper understanding of what happened.
At the time that Colonel Yosfiah attended the course in the United Kingdom, we were not aware of any allegations against him. I understand that it was several years afterwards that he was first linked with the Balibo incident. With the best will in the world, the United Kingdom authorities can act only when they have the knowledge to do so. From looking at the papers, it is clear that they did not have the knowledge at the time.
As was made clear at Report stage, in future, were such allegations to be made against people visiting this country, we would take it up with their state of nationality; they would be liable to extradition to a state which took jurisdiction over them; or we would surrender them to the ICC if it took jurisdiction. With that explanation, I hope that the noble Lord will not seek to press his amendment.
Lord Avebury: My Lords, I shall not seek to press the amendment to a Division. Now that the facts have become known, the Indonesian authorities have not pressed charges against Yunus Yosfiah, even though there is abundant eye-witness evidence of what happened in Balibo. It is common ground that Yunus Yosfiah was the major in command of the 300 troops who invaded that town and committed that atrocity. Therefore the assumption that the Minister is making, that we can always rely on other governments to prosecute their own citizens when we call their attention to crimes committed against Britons in their jurisdiction, is not justified. The amendment I propose would provide us with a fallback.
As I said, it would be very rare, were we to appeal to those countries to prosecute those who had killed or committed other war crimes against British citizens, that they would fail to exercise their power to do so. I recognise that in only one case in a million should we have a Yunus Yosfiah in this country, know that he had committed such acts and be able to prosecute him in our courts. Nevertheless, I am disappointed that the noble Baroness has not given me a more forthcoming reply at this stage.
I do not, however, feel able to press the matter to a Division. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 65 [Responsibility of commanders and other superiors]:
5.15 p.m.
Lord Howell of Guildford Lord Howell of Guildford moved Amendment No. 6:
Page 32, line 30, leave out from ("or") to ("that") in line 31, and insert ("wantonly or recklessly disregarded information that clearly indicated.").
The noble Lord said: My Lords, this amendment seeks to remove certain words from Clause 65 and to insert certain others. We are dealing with the degree of protection, the height of the threshold of protection, for commanders and their superiors in regard to whether, when going about their legitimate business having intentionally made use of force, they have committed or laid themselves open to a charge of having committed an ICC crime.
The problem is one of subjectivity, as we have found throughout the passage of the Bill. It is easy to say with hindsight that a commander should have known at the time what was happening. The questions hang in the air. What is the test? What is he supposed to have known? How should he have known it? Under the Bill as drafted, the clause allows for the dissection and scrutiny of the actions of commanders and other superior officers after the event by the investigatory branch and the prosecutor of the International Criminal Court, assuming that the state is unwilling to make its own investigations.
The Government have repeatedly argued that any higher test, any raising of the threshold to protect members of the Armed Forces from vexatious prosecutions is not necessary. We moved amendments in Committee and on Report that would have corrected the position, and we continue to seek the protection of the Armed Forces, as we have done throughout the passage of the Bill. The wording of the amendment is already incorporated in the legislation of Canada. In our view, after taking careful legal advice, the wording in the amendment would give British Armed Forces a greater level of protection in line with that found in Canada.
Before referring to the Canadian example in more detail, perhaps I may deal with another aspect; namely, the argument used in varying forms in Committee and on Report that none of this is necessary because it is all in Part III the Manual of Military Law and in the Rules of Engagement; therefore, soldiers have always operated under these conditions and there is nothing new.
Apart from the point that I have made ad nauseam, and it would almost certainly plead tedium if I were to repeat it, there is something new. Military commanders will have a new legal jurisdiction with which to contend. Apart from that, there is the question of whether the Manual of Military Law really can be said to inform, now or in the future, members of the Armed Forces who are operating under conditions of intense stress in the complex conditions of modern low-intensity warfare and peacekeeping.
1320
The noble Lord, Lord Lester, has been diligent in calling our attention to these matters. Part III of the manual states:
"The commander is also responsible if he has actual knowledge, or should have knowledge, through reports received by him or through other means, that troops or other persons subject to his control are about to commit or have committed a war crime, and if he fails to use the means at his disposal to ensure compliance with the laws of war".
So it could be said that, although there is the new jurisdiction, which is a higher level of argument, at least it was known that these were war crimes.
The question is whether Part III of the Manual of Military Law is, or ever was, adequate provision for soldiers fighting in a war. I understand that it has long since been replaced by a new format and I am not sure that the words appear in that form. I understand that, anyway, Part III of the manual is now out of print, so it is not much help to soldiers in difficulties in the Balkans or wherever they may be as they work out whether they are additionally exposed to some charge that—although they are fulfilling their duty by their own likes and by the likes of their commanding officer, and fulfilling the policy of their government—they may nevertheless be committing an ICC crime. Those are the first points that want to make about the reason why we are seeking more protection, because I do not think that on that score alone the protection is there.
The broader question I want to examine is raised by the way in which the Canadians have handled this matter. The plain fact is that the Canadians have altered the wording. Therefore, the proposition that this Bill had to reflect verbatim the words of the statute is not an imperative; it is simply a policy wish on the part of the Government. That ought to be made clear. If it is, one is entitled to ask why. The Canadians have managed to get different words on to the statute book because they wished to have a higher level of protection for their own armed forces carrying out their duties.
So the question is this: if the Canadians can change the wording, why cannot we? Is the Canadian statute inconsistent with the Rome Statute? It is not as though Canada is one of the renegade states that have merely signed on for the ride and do not really support the whole project. On the contrary, Canada has been zealous and to the fore in promoting the ideas of the International Criminal Court; its lawyers and statesmen have worked extremely hard to do so. Canada is a very important signatory. Therefore, I should like a better answer to that question than I received on Report. If the Canadians can do it, why cannot we; and why do we not want to protect our commanders and their superiors in the way the Canadians do?
Finally, perhaps I may ask a rather narrower question, but on the same point. Will the Minister who is to reply confirm that, should our amendment fail, Clause 65 as drafted requires specific intent to be proved? I am moving into deep legal waters, but that is clearly the position as it is expected to stand unless amended in some way by the Bill. If it is the intention

1321
that specific intent has to be proved, could some kind of explanatory memorandum be provided along with the other publicity about which we know very little that will be provided to commanding officers and armed troops so that they know the score and know the new conditions under which they are potentially operating?
If the answer is that this is not a "specific intent" offence, then we are in quite different territory. That would be a definite signal that a lower test is being adopted which will deprive our commanders of a necessary safeguard and which in effect appears to rewrite English criminal law.
So clarification is needed on some important questions which were not clarified earlier. We need the matter to be crystal clear if we are, in fairness, to provide the right context in which not only can the court go forward, but our Armed Forces, going about their duty as servants of the state, can proceed without finding that unwittingly or unfairly they have committed an offence under a new law and perpetrated a new crime. I beg to move.
Lord Lester of Herne Hill: My Lords, Article 28 of the ICC Statute provides as follows:
"A military commander"—
I shall leave out unnecessary words—
"shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be"—
I emphasise the following words—
"as a result of his failure to exercise control properly over such forces, where

(i) That military commander"—

again, I emphasise the following words—
"either knew or, owing to the circumstances at the time, should have known, that the forces were committing or were about to commit such crimes; and
(ii) That military commander … failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution".
Those words are matched by Clause 65(2), which Amendment No. 6 seeks to amend.
The mental element required is knowledge or what in English criminal law would amount to recklessness or criminal negligence. That accords with the position described in paragraph 631 of the British Manual of Military Law for 1958 which the noble Lord, Lord Howell of Guildford, cited. It also accords with the position in the US Department of Army Field Manual 27–10 of 1956 on the law of land warfare—the chapter on "Remedies for Violations of International Law"—which, in paragraph 499, says:
"The term 'war crime' is the technical expression for a violation of the law of war by any person or persons, military or civilian. Every violation of the law of war is a war crime".
Thereafter, in paragraph 501, it uses the very words that appear in the equivalent section of our manual that I understand was amended by Sir Hersch Lauterpacht, Colonel Gerald Draper and Joyce
1322
Gutteridge in 1958. So, on both sides of the Atlantic, we have exactly the same concept put into the military manuals on the laws of war dealing with this matter.
The noble Lord, Lord Howell of Guildford, is quite right to say that it is not enough to rely upon manuals issued to members of the Armed Forces. Of course, one of the merits of Clause 65(2) and of Article 28 is that this will now become the law of the land in a much clearer way than simply incorporating it into military manuals.
Amendment No. 6 would introduce a more restrictive test than is needed to establish liability as a matter of current English law—I emphasise "current English law"—and as a matter of current international law because the test that it would introduce is wanton or reckless disregard of information clearly indicating that the forces were committing, or were about to commit, such crimes.
Amendment No. 6 is more restrictive in requiring either "wanton" disregard or "reckless" disregard of information clearly indicating,
"that the forces were committing or about to commit such offences",
unlike the position in English law and in international law—I shall be corrected by the noble and learned Lord the Attorney-General if I am wrong—where criminal knowledge means awareness that a circumstance exists, or a consequence will occur, in the ordinary course of events (a view reflected in paragraph (3) of Article 30 of the ICC Statute), and where the court has regard to all relevant circumstances, including what the British and American manuals refer to as knowledge not only through reports received by the commander but also through other means.
I should point out that those principles were fully reflected in the judgments of the majority of the justices—and of the dissenting minority, Justice Murphy—in the case of Yamashita, which we have discussed previously and in respect of which I have made it clear that I should have been for the minority, not the majority.
There is a misunderstanding about the position in Canada that I must correct. The test of Amendment No. 6 is more restrictive than the one adopted in Canada in the legislation giving effect to the ICC Statute, where either knowledge or criminal negligence in failing to know is required, as set out in Section 7(1) of the crimes against humanity and war crimes legislation of 2000, which I shall not read into the record unless any noble Lord is misguided enough to ask me to do so. I summarise what the Canadian legislation does: it does not rewrite the ICC statute. It incorporates into the equivalent Canadian concept of criminal law what is contained in Article 28 of the ICC Statute.
The New Zealanders have used the same approach as that contained in this Bill: they copy the language word for word into the New Zealand statute. The Canadians have used the concept of criminal negligence rather than doing it in that way, but it comes to exactly the same thing. The degree of

1323
knowledge is exactly the same. No specific intent is required in the sense of the specific intent for the crime of murder, but criminal negligence or recklessness is required if all the other ingredients are satisfied.
For those reasons we should be opposed to an amendment that would be retrograde. It would actually dilute criminal responsibility in this area, as it has been incorporated into English law and international law since the time when I had the privilege of doing two years' national service. We are therefore opposed to the amendment.
Lord Lamont of Lerwick: My Lords, I should like to support the amendment moved by my noble friend Lord Howell which I believe is designed to give added protection to British forces as regards the question of whether "intent" was involved in an alleged war crime. I should like the Minister to reply to one particular point. I have in mind the wording in Clause 65, which my noble friend's amendment seeks to amend. Can the Minister say how she would interpret that wording when applied to the question of the NATO bombing of the Chinese embassy in Belgrade?
Obviously one accepts that it was an accident, but, equally, the bombing of civilians and of an embassy is an offence under the Bill. That is very relevant to the question of "should have known", the phrase used in the Bill, because the explanation that was offered for the bombing was, first, that an out-of-date map had been used. The second explanation, as reported in newspapers, was that the CIA had intended to hit the arms agency rather than the Chinese embassy, but had no numbers for the street in question. Therefore, those concerned had merely transferred the street numbering from a parallel street and applied it to the one in which the embassy was situated. Either way, it was clearly an error and, according to many sources, the embassy was marked unambiguously on maps.
Indeed, I have a note with me of a CIA spokesman saying that they had not bothered to locate where the Chinese embassy was because they were not trying to hit it. Of course, that is but one explanation. I should like to know quite how that fits in with the wording that a military commander "should have known" that the forces were about to commit an offence. Plainly, that could be argued to be an offence under the Bill. Can the Minister say what we would be able to plead in defence of NATO troops?
Earl Attlee: My Lords, I declare an interest as I am a serving officer in the Territorial Army, Therefore, I could, potentially, be affected by the Bill at some date in the future. Noble Lords will recall our debates at Report stage on the matter. My noble friend Lord Howell then referred to the Emperor Caligula and the poor promulgation of his laws.
The noble Lord, Lord Lester, said in reply to my noble friend,
"is the noble Lord aware that in this case the words are not put on very tall pillars in very small writing so that citizens cannot read them? They are put into the handbook of military law, to which every serving member of the Armed Forces has access, as I well recall from personal experience".—[Official Report, 8/3/01; col. 367.]
1324
This evening we have discussed the Manual of Military Law, Part III. I checked the validity of the noble Lord's reference to the 1958 version of the Manual of Military Law. I sought to follow the advice of the noble Lord at col. 432 on 8th March when he said that the Conservative Front Bench ought to check it. I tried to check it, but unfortunately I found that Part III of the Manual of Military Law is not held at unit level. Therefore, serving officers—
5.30 p.m.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble Earl for giving way. Will he accept that what I said referred to my rather inglorious period of military service—I think I made it clear—when I was a second lieutenant in the Royal Artillery and had access to the manual and had to read it at the time? I did not refer to the present position. I have no idea whether it is now available; I referred specifically to 1958.
Earl Attlee: My Lords, I just quoted the words of the noble Lord on Report when he said that present members of the Armed Forces can refer to the Manual of Military Law, particularly Part III in connection with land warfare.
I was not surprised to discover that the Manual of Military Law is not issued to units because, according to Amendment No. 20, Chapter 1, paragraph 8(b) of the Manual of Military Law, it is no longer printed. It states:
"The Manual of Military Law, Part III, deals with that part of international law known as the law of war on land and is now out of print".
My noble friend Lord Howell has already referred to that point. This goes to the heart of our concerns. Our officers and NCOs are expected to, and will, adhere to the Geneva Conventions and their principles. However, the noble Lord, Lord Lester, expects the members of our Armed Forces to be experts on the details of the law of armed conflict. I have spent more time studying health and safety and equal opportunities than I have studying the law of armed conflict. Is the noble Lord confident that the manual is available to all members of our Armed Forces? Will the Minister ensure that Part III is reprinted and distributed right down to sub-unit level in military units so that officers and senior NCOs can study the appropriate law?
Baroness Scotland of Asthal: My Lords, I reassure the noble Earl, Lord Attlee, that the manual is still held by all units, or should be. The part to which the noble Earl referred is currently out of print because it is being revised. However, I can certainly reassure the House that there has been, and will be, no significant change in relation to those matters.
Earl Attlee: My Lords, I checked that very point this morning. Will the Minister undertake to do a double

1325
check, as it were? If she finds that she has been incorrectly advised, perhaps she will inform the House at some convenient point.
Baroness Scotland of Asthal: My Lords, I shall certainly do that. However, I have been advised by the Ministry of Defence that the position I have just stated to the House is the correct one. Of course, we realise that sometimes not all units have what they are supposed to have. I do not know what the position is with regard to the noble Earl's unit but that is what I am advised should be the case.
Earl Attlee: My Lords, I checked the position in two units.
Baroness Scotland of Asthal: My Lords, the answer remains the same. In relation to that matter, I reassure the House that there is no significant change envisaged as a result of the new Bill that we hope will be enacted in due course.
I turn to the point made by the noble Lord, Lord Lamont, as regards intentionally attacking civilian objects and the mistake that was made in relation to the bombing of the Chinese Embassy. However, that was clearly a mistake. It did not amount to a crime and it did not fall within the category of issue for criticism.
Lord Lamont of Lerwick: My Lords, of course I accept that it was a mistake. I accept that there was no intention to bomb the Chinese Embassy. However, the Bill uses the phrase, "should have known". That is what my query relates to. Surely one could argue that the NATO forces should have known where the Chinese Embassy was situated. That is the whole point about maps and having it clearly marked.
Baroness Scotland of Asthal: My Lords, as regards the meaning of the phrase "should have known", what we are talking about is a neglect of the basic duty that a military commander has to ensure that those under his effective command and control do not commit war crimes. That principle has been summarised by the former head of the British Army Legal Services, Major General Anthony Rogers, in his book on the laws of war. It may assist the House if I quote from that book. It states:
"Responsibility may arise if war crimes are committed as a result of the commander's failure to discharge his duties either deliberately or by culpably or wilfully disregarding them, not caring whether this resulted in the commission of war crimes or not".
It does not refer to the circumstances that were involved in the incident at the Chinese Embassy; that is, a genuine mistake. The fact that that principle can be implemented in practice was shown in numerous war crimes cases which our judges, and those of our allies, dealt with in the aftermath of the Second World War.
Lord Lamont of Lerwick: My Lords, what happens if there is a case of negligence? The Minister will be
1326
aware that a CIA official was sacked after the incident I mentioned. Would a sacked official not also be liable to be summonsed before the ICC?
Baroness Scotland of Asthal: My Lords, the noble Lord will know that subsection (2)(a) and (b) of Clause 65 are conjunctive. I shall read them to refresh the noble Lord's memory.
Lord Lamont of Lerwick: My Lords, I have it here.
Baroness Scotland of Asthal: My Lords, I am grateful that the noble Lord says from a sedentary position that he has that. Therefore, I draw his attention to paragraph (b) which states:
"he failed to take all necessary and reasonable measures within his power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution".
Both paragraphs (a) and (b) have to be proven. If we apply that test to the circumstances to which the noble Lord referred, he will see why the mistake that took place in the bombing of the Chinese Embassy does not fall within the section. The noble Lord, Lord Lester, has already dealt with the issues in relation to the test. Therefore, I shall not reiterate them but simply say that I agree with the noble Lord's assessment. I accept—
Lord Waddington: My Lords, I am sorry to intervene at this stage. I have listened with the greatest attention to what the noble Lord, Lord Lester, had to say. I think that I understood what he said. Is the position that whereas we chose to incorporate in our Bill the exact words of the ICC statute, the Canadian Government elected not to use those precise words but words which reflect in exactly the same way what is contained in the statute? If that be the case, have we not at least arrived at the point—which I think is a new point in our deliberations—that we do not actually have to put in our own legislation the exact words of the ICC statute and we can, if we think fit, amend the Bill to change the wording so long as the new wording does not depart from the intention of the ICC statute? If we have reached that point, we have moved our ground to some extent.
Baroness Scotland of Asthal: My Lords, it is right that I should explain what has happened in relation to the Canadians. It is indeed true that the Canadian legislation speaks of "criminally negligent in failing to know"; and that that is slightly different from the statute.
We understand from speaking to our Canadian colleagues that this language was introduced specifically in response to jurisprudence developed by the Canadian courts under their Charter of Rights and Freedoms. As the notion of "criminal negligence" has been thoroughly analysed by the courts in the light of their charter, the Canadian Government believed it preferable to use that language. However, they consider the test to be no different. That was only to ensure that the Canadian courts could accurately reflect what is contained already in the statute.

1327
We are not in that disadvantageous position because we do not have the Canadian jurisprudence here in Britain. Therefore we do not need to change or alter the statute in any way. One of the difficulties is the issue of complementarity, as my noble and learned friend the Attorney-General said. One of the greatest protections we have for our Armed Forces is that British courts, British judges, will be trying these issues. Our servicemen and women will be subject to the British system and, if proven guilty of any of these issues, will be held responsible to British justice. That is our greatest protection for our armed servicemen and women.
We should like there to be no chink of light between the ICC Statute and our statute so that it cannot be said that our statute does not cover precisely the same ground as the ICC. The ICC will be deprived, therefore, of an opportunity to say that we have failed to comply. If they are suspected of doing something wrong, we wish to try our men and women ourselves. If we reflect precisely the wording of the statute, we limit the opportunity for our men and women to be subject to difficult situations and to deprive our courts and our judges of the opportunity to deal with them appropriately.
5.45 p.m.
Lord Lester of Herne Hill: My Lords, does the Minister agree with me that one of the advantages of our approach over the Canadian approach is that it achieves better legal certainty for officers and those under their command?
Baroness Scotland of Asthal: My Lords, it does indeed. Although we understand why, because of their particular situation, the Canadians have felt the need to do as they have, they run the risk of it being said that their approach is not precisely the same. One could argue that they leave a chink of light between the two systems: that they should not or could not deal with the matter appropriately. We do not wish to put our servicemen and women in that jeopardy. We wish to ensure that, if there is a difficulty, our courts, our judges, will have full responsibility to deal with it. By arranging our Bill to reflect precisely the language, we believe that we better protect our servicemen and women.
As the noble Lord, Lord Lester, said, the noble Lord, Lord Howell, is not correct in saying that the amendment he proposes is exactly the same as the Canadian legislation. Regrettably, it is not; it is materially different. We think that it would be disadvantageous to our servicemen and women.
The noble Lord, Lord Lester, said rightly that both issues are contained in the British Manual of Military Law which remains current to this day. The noble Lord was also right to say that it is reflected accurately in the US Department of Army Field Manual dating from 1956. So those issues are covered.
The concern of the noble Lord, Lord Howell, is that the ICC might seek to second guess the decision of a British military commander. The best protection we
1328
can give our Armed Forces is to make sure that the ICC has no chance to second guess any such decision. For that reason, Clause 65 is expressed in the way that it is.
We have a long history of behaving appropriately and properly. The term has been fully understood by the servicemen and women of this country. There has not been difficulty in that understanding. It is right to remind your Lordships that the Ministry of Defence was assiduous in its efforts in this regard and has taken every opportunity to ensure that the servicemen and women of this country are appropriately protected by this legislation.
Perhaps I may quote a recent Statement made by the Secretary of State for Defence in another place. He said:
"The priority of the Ministry of Defence in the drafting of the International Criminal Court Bill and its passage through Parliament has been to ensure that members of the armed forces are fully protected from malicious or ill-founded prosecution by the ICC. The armed forces have been closely involved in the consultation process. I am confident that the Bill before Parliament provides all necessary protection".—[Official Report, Commons, 16/3/01; 756W.]
I hope noble Lords will accept that the Secretary of State for Defence properly takes into account the trials and tribulations which the armed servicemen and women will face and properly gives consideration to what needs to be done to protect them. We have looked together at the definition of "should have known". We are confident that the steps which have been taken make clear the basis upon which the servicemen and women will be found responsible. Perhaps the clearest exposition of this principle was contained in the judgment of the Nuremberg Military Tribunal in trying members of the German High Command. It was stated:
"Criminality does not attach to every individual in this chain of command from that fact alone. There must be a personal dereliction. That can only occur where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part. In the latter case it must be a personal neglect amounting to a wanton, immoral disregard of the action of his subordinates amounting to acquiescence".
It is a high standard which has been well established for some time.
This notion of criminal negligence can also be found in similar terms in Article 86 of the 1977 Additional Protocol I to the Geneva Conventions and in the statutes of the Yugoslav and Rwandan tribunals. The ICC and, by virtue of Clause 65(5), the British courts, if they needed to interpret the wording in question, would thus have recourse to the detailed and prudent jurisprudence of the Hague and Arusha tribunals as well as that from the trials of Nazi and Japanese war criminals.
I regret to say that the amendment of the noble Lord, Lord Howell, would go against this international practice. The amendment talks about wanton or reckless disregarding of information that clearly indicated that war crimes were being committed. This might leave serious gaps. What happens if the commander, in flagrant dereliction of

1329
his duty to prevent such crimes, did not ask for or read reports which talked about such crimes; or, if having read reports which spoke obliquely about massacres, he failed to request the additional information which would have made that plain?
We believe that we have made proper provision to protect our men and women, that our British courts will have the tools to give them that protection, and that we should support the international community in this praiseworthy attempt to bring all under the same umbrella. The noble Lord spoke earlier about significant changes. There have not been significant changes. Our servicemen and women are already bound by those rules. They already apply them and they have already demonstrated that the confidence that we have traditionally put in them is merited. There is no reason for us to feel anxiety on their behalf.
Earl Attlee: My Lords, the Minister has been very patient this evening. Will Part III of the Manual of Military Law be revised, reprinted and reissued?
Baroness Scotland of Asthal: My Lords, we expect Part III to be revised, we expect it to be reprinted and we expect it to be reissued.
Lord Howell of Guildford: My Lords, I have listened carefully to the Minister's reassurances and the quotations that she has given from the Secretary of State and the Ministry of Defence to the effect that everything is fine and our Armed Forces are protected. The exchange arising from the fascinating intervention of my noble friend Lord Attlee about the publicity given to changes in military law was not reassuring. We are not sure what steps are being taken to ensure that simple explanations of such changes in the law will be available. They have to be simple, because they have to be interpreted in the heat of stressful situations. There is a yawning lacuna—perhaps lacunae do not yawn; I should say a yawning gap—between the recognition that something fairly substantial has changed and the knowledge and information that should be made available to our fighting forces in the conditions in which they daily find themselves having to making agonisingly difficult decisions. I repeat my objection to the constant claim that there is nothing new in what we are doing. I find the situation worrying. This is not the state in which I had hoped that we would leave the Bill before it passed to another place.
I listened with the greatest respect to the noble and learned Lord, Lord Lester, and to the Minister on whether the amendment would provide a better protection or a lower tripwire for commanding officers and superiors. The advice that I have received from Canadian legal authorities, who are deeply involved in trying to make their legislation work—there is no question of them trying to undermine it—is that, although they have found the need for changes to the wording and the wisdom to make them, there is no chink of light or deviation from the intents and purposes of the Rome Statute. They have made
1330
adjustments to suit their domestic law and conditions with which they feel comfortable. It is extraordinarily difficult to understand the doctrine, to which we have been subjected throughout the passage of the Bill, that we must be made to feel uncomfortable and that the verbatim copying of the Rome Statute into our law is necessary and will provide the best protection. There is room for two opinions on that. We have not two but 200 legal opinions on whether that is right. I suspect that those disputes will continue if and when the Bill passes into law.
My noble friend Lord Lamont mentioned the bombing of the Chinese Embassy. We all agree that it was a genuine mistake, but should such an event happen again—the provisions are not retrospective—and should the Chinese be signatories to the statute, the lingering question is whether they would think that it was a genuine mistake. The issue all along has been whether other parties who may not see things our way or the way of our allies are prepared to go to the independent prosecutor and say, "Whatever the British or Americans say, we think this was a crime". I think—I stand to be corrected—that the Chinese said that the Belgrade embassy bombing was a crime.
That will be the problem in the future. People who are not well motivated and do not see things our way will argue that actions that we would not dream of investigating as crimes were in fact crimes. The whole issue is very questionable and worrying. I do not wish to leave it unchallenged.
My noble friend Lord Waddington shrewdly put his finger on the fact that the Canadian example shows that modifications can be made, regardless of whether their wording or ours raises the threshold or keeps it where it is. In the interests of making the legislation work in our domestic jurisdiction and reassuring our people, the general public and the Armed Forces, some modifications are possible. The Minister has said yet again that they are not possible—or rather, that she does not wish them to take place and that any modifications would somehow reduce the protection for our Armed Forces. Not everyone in the Armed Forces accepts her argument.
In answer to a Question from an MP, the Secretary of State for Defence said that there had been no representations from the Armed Forces about the Bill and that he felt that the protection provided was full and secure. That contradicts the comments that appeared in many newspapers—not inspired by the Conservatives here or in the other place, but apparently coming from the high levels of the military forces—that there were considerable worries that were shared by the Armed Forces of other countries, particularly the United States.
At the end of Third Reading, we are still left with a feeling of considerable unease. For all those reasons, it would be right for me to test the opinion of the House.
5.57 p.m.
On Question, Whether the said amendment (No. 6) shall be agreed to?
Their Lordships divided: Contents, 105; Not-Contents, 169.

Division No. 2

CONTENTS

Allenby of Megiddo, V.

Lane of Horsell, L.

Anelay of St. Johns, B.

Lindsay, E.

Ashcroft, L.

Luke, L.

Astor of Hever, L.

Lyell, L.

Attlee, E.

Marlesford, L.

Biffen, L.

Mayhew of Twysden, L.

Blackwell, L.

Miller of Hendon, B.

Blaker, L.

Monro of Langholm, L.

Blatch, B.

Monson, L.

Boardman, L.

Montrose, D.

Brabazon of Tara, L.

Mowbray and Stourton, L.

Bridgeman, V.

Noakes, B.

Brougham and Vaux, L.

Northbrook, L.

Burnham, L. [Teller]

Northesk, E.

Buscombe, B.

O'Cathain, B.

Byford, B.

Onslow, E.

Caithness, E.

Oxfuird, V.

Campbell of Alloway, L.

Palmer, L.

Clark of Kempston, L.

Park of Monmouth, B.

Coe, L.

Peel, E.

Colwyn, L.

Plumb, L.

Cope of Berkeley, L.

Prior, L.

Craig of Radley, L.

Quinton, L.

Craigavon, V.

Rawlings, B.

Cranborne, V.

Rees, L.

Cumberlege, B.

Rees-Mogg, L.

Dean of Harptree, L.

Renton, L.

Denham, L.

Renton of Mount Harry, L.

Dixon-Smith, L.

Roberts of Conwy, L.

Elles, B.

Rotherwick, L.

Elliott of Morpeth, L.

Saatchi, L.

Elton, L.

Saltoun of Abernethy, Ly.

Erroll, E.

Seccombe, B.

Ferrers, E.

Sharples, B.

Fookes, B.

Shaw of Northstead, L.

Freeman, L.

Shore of Stepney, L.

Gardner of Parkes, B.

Soulsby of Swaffham Prior, L.

Geddes, L.

Stewartby, L.

Glenarthur, L.

Stodart of Leaston, L.

Glentoran, L.

Strange, B.

Hanham, B.

Strathclyde, L.

Hayhoe, L.

Swinfen, L.

Henley, L. [Teller]

Taylor of Warwick, L.

Hodgson of Astley Abbotts, L.

Thomas of Gwydir, L.

Hooper, B.

Vinson, L.

Howe of Aberavon, L.

Vivian, L.

Howe, E.

Waddington, L.

Howell of Guildford, L.

Wade of Chorlton, L.

Jenkin of Roding, L.

Walker of Worcester, L.

Jopling, L.

Weatherill, L.

Laing of Dunphail, L.

Willoughby de Broke, L.

Lamont of Lerwick, L.

Windlesham, L.

Young, B.

NOT-CONTENTS

Acton, L.

Bassam of Brighton, L.

Addington, L.

Berkeley, L.

Ahmed, L.

Bernstein of Craigweil, L.

Alderdice, L.

Blease, L.

Alli, L.

Borrie, L.

Amos, B.

Bradshaw, L.

Andrews, B.

Bragg, L.

Archer of Sandwell, L.

Brooke of Alverthorpe, L.

Ashton of Upholland, B.

Brookman, L.

Avebury, L.

Brooks of Tremorfa, L.

Bach, L.

Burlison, L.

Barker, L.

Carter, L. [Teller]

Barnett, L.

Christopher, L.

1332

Clarke of Hampstead, L.

Mackenzie of Framwellgate, L.

Clement-Jones, L.

MacKenzie of Culkein, L.

Clinton-Davis, L.

McIntosh of Haringey, L.

Cocks of Hartcliffe, L.

[Teller]

Cohen of Pimlico, B.

McNally, L.

Dahrendorf, L.

Maddock, B.

David, B.

Mar and Kellie, E.

Davies of Coity, L.

Mason of Barnsley, L.

Davies of Oldham, L.

Massey of Darwen, B.

Dean of Thornton-le-Fylde, B.

Merlyn-Rees, L.

Desai, L.

Miller of Chilthorne Domer, B.

Dholakia, L.

Milner of Leeds, L.

Dixon, L.

Molloy, L.

Dormand of Easington, L.

Morris of Castle Morris, L.

Dubs, L.

Newby, L.

Elder, L.

Nicholson of Winterbourne, B.

Evans of Parkside, L.

Northover, B.

Evans of Temple Guiting, L.

Oakeshott of Seagrove Bay, L.

Evans of Watford, L.

Parekh, L.

Ewing of Kirkford, L.

Patel of Blackburn, L.

Ezra, L.

Peston, L.

Faulkner of Worcester, L.

Phillips of Sudbury, L.

Falkland, V.

Plant of Highfield, L.

Farrington of Ribbleton, B.

Ponsonby of Shulbrede, L.

Falconer of Thoroton, L.

Ramsay of Cartvale, B.

Fyfe of Fairfield, L.

Razzall, L.

Gale, B.

Rea, L.

Gibson of Market Rasen, B.

Redesdale, L.

Gilbert, L.

Rendell of Babergh, B.

Gladwin of Clee, L.

Rennard, L.

Goldsmith, L.

Richard, L.

Goodhart, L.

Rodgers of Quarry Bank, L.

Goudie, B.

Rogers of Riverside, L.

Gould of Potternewton, B.

Roper, L.

Grabiner, L.

Russell, E.

Graham of Edmonton, L.

Sainsbury of Turville, L.

Greaves, L.

Sandberg, L.

Grenfell, L.

Sawyer, L.

Guildford, Bp.

Scotland of Asthal, B.

Hamwee, B.

Scott of Needham Market, B.

Hardy of Wath, L.

Sharman, L.

Harris of Greenwich, L.

Sharp of Guildford, B.

Harris of Richmond, B.

Shutt of Greetland, L.

Harrison, L.

Simon, V.

Haskel, L.

Smith of Clifton, L.

Hilton of Eggardon, B.

Smith of Gilmorehill, B.

Hollis of Heigham, B.

Stern, B.

Howells of St Davids, B.

Stoddart of Swindon, L.

Howie of Troon, L.

Taverne, L.

Hoyle, L.

Taylor of Blackburn, L.

Hughes of Woodside, L.

Thomas of Gresford, L.

Hunt of Chesterton, L.

Thomas of Walliswood, B.

Hunt of Kings Heath, L.

Thomson of Monifieth, L.

Hylton, L.

Thornton, B.

Irvine of Lairg, L. (Lord

Tomlinson, L.

Chancellor)

Tope, L.

Islwyn, L.

Tordoff, L.

Janner of Braunstone, L.

Turnberg, L.

Jay of Paddington, B. (Lord

Turner of Camden, B.

Privy Seal)

Uddin, B.

Jeger, B.

Wakefield, Bp.

Jenkins of Putney, L.

Walker of Doncaster, L.

Kennedy of The Shaws, B.

Wallace of Saltaire, L.

King of West Bromwich, L.

Walmsley, B.

Lea of Crondall, L.

Warwick of Undercliffe, B.

Lester of Herne Hill, L.

Watson of Richmond, L.

Levy, L.

Whitty, L.

Linklater of Butterstone, B.

Wilberforce, L.

Lipsey, L.

Wilkins, B.

Lockwood, B.

Williams of Elvel, L.

Lofthouse of Pontefract, L.

Williams of Mostyn, L.

Longford, E.

Winston, L.

Macdonald of Tradeston, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.8 p.m.
Lord Shore of Stepney Lord Shore of Stepney had given notice of his intention to move Amendment No. 7:
Page 41, line 50, at end insert—
("(3) The Secretary of State may not make an order under this section until—

(a) the Government has made a declaration of its reservations about the observance of Article 8(b)(i), (ii), (iv), (xvii), (xviii), (xix) and (xxv) on War Crimes when the United Kingdom is exercising its right of self-defence and when its armed forces are being deployed to resist aggression committed against a fellow Member State of the United Nations, and

(b) that declaration has been submitted to, and approved by resolution of, both Houses of Parliament.").

The noble Lord said: My Lords, in view of the debate that we have already held on Amendment No. 2, upon which we voted, and the close proximity of the terms of that amendment to my own, I do not intend to move my amendment.
[Amendment No. 7 not moved.]
An amendment (privilege) made.
Lord Campbell of Alloway: My Lords, with the leave of the House, I want to say a word of appreciation for the valuable undertaking that has been given in relation to prisoners of war. That is due to the good offices of the noble and learned Lords, Lord Williams of Mostyn and Lord Archer of Sandwell, the officials at the Foreign and Commonwealth Office—
Baroness Ramsay of Cartvale: My Lords, perhaps I may point out to the noble Lord, Lord Campbell of Alloway, that we are dealing with the privilege amendment. If he intends to say something, I believe that he should do so on Bill do now pass, which has not yet been moved.
Baroness Scotland of Asthal: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(Baroness Scotland of Asthal.)
Lord Campbell of Alloway: My Lords, I apologise for having spoken at the wrong moment. I wanted to say a word of appreciation for the valuable concession that was made. It was entirely due to the good offices of three Members of this House: first, the noble and learned Lord, Lord Williams of Mostyn, who set up a meeting with officials from the Foreign and Commonwealth Office and the Home Office so that the matter could be considered in depth; secondly, the noble Baroness, Lady Scotland of Asthal, who evinced a personal sympathy towards this matter; and, thirdly, the noble and learned Lord, Lord Archer of Sandwell, who used his influence to ensure that a satisfactory arrangement was made in amity.
In fact, it comes to this: the Government have given an undertaking that, if there is any concern as to whether the regime affords adequate protection, oral
1334
representations from any quarter shall be taken into account, the inadequacies shall be highlighted and addressed, and the proposals to amend the regime shall be raised in all appropriate fora, including any review conference, and that they will closely watch the developing jurisprudence of the ICC. On behalf of all those of whom I have spoken, I should like to express my gratitude.
Lord Howell of Guildford: My Lords, it would be wrong not to reinforce very briefly the words of appreciation expressed by my noble friend Lord Campbell of Alloway about the way in which this Bill has progressed. I should also like to thank all noble Lords who have participated in the debate, the noble and learned Lord, Lord Williams of Mostyn, and the noble Baroness, Lady Scotland, as well as her ministerial advisers, for their support.
I observe that this is a global Bill, in the sense that parliaments and legislative experts all round the world have followed its progress and offered their own comments and views on it—a reminder that through this Bill we shall be participating in a global institution, with all the benefits and problems that that may involve.
I end by saying that I hope the Bill, because of its vast significance, will be debated fully in the other place. With those comments, I am happy to support the Motion that the Bill do now pass.
Lord Lester of Herne Hill: My Lords, it has been a great pleasure to take part in these memorable debates. I should like to pay tribute to the Minister and to the noble and learned Lord the Attorney-General not only for their learning, tact and commitment to the international rule of law but, above all, for their patience in listening to many speeches, from all sides of the House, scrutinising this Bill almost line by line. We on these Benches wish the Bill well. We hope that it will be speedily enacted in the other place in order that the Government, on behalf of the people of this country and those elsewhere in the world, may see us in the vanguard in bringing this important measure into full effect.
Lord Archer of Sandwell: My Lords, lest some of us from the Government Back Benches be misconstrued, I rise to say that we congratulate the Government on having throughout been in the vanguard of international opinion and greatly enhancing the reputation of this country. We are grateful to both my noble friends on the Front Bench. We hope to see an early ratification of the Bill, and we wish it well.
Baroness Scotland of Asthal: My Lords, I should like to reciprocate those expressions of gratitude. Many noble Lords have worked very hard on this Bill. I thank and congratulate all those who participated in the meetings held prior to the proceedings in the House. We give this Bill our very best wishes. It should significantly change the course of history.
On Question, Bill passed, and sent to the Commons.

Consolidated Fund (No. 2) Bill
Brought from the Commons endorsed with the certificate of the Speaker that the Bill is a Money Bill, and read a first time.

Foot and Mouth Outbreak: The Rural Economy
6.16 p.m.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, with the leave of the House, I should like to repeat the Statement made by my right honourable friend Mr Michael Meacher in another place earlier today. The Statement reads as follows:
"Mr Speaker, I wish to report on the work of the Rural Task Force, which held its second meeting this morning. We all agree that our first priority remains to eradicate foot and mouth disease as soon as possible. The situation remains an extremely serious one. Its effects are very serious for both farmers and the wider rural community, especially in tourism. The Rural Task Force, which has representatives from a range of rural interests and government departments, is working urgently to develop measures to alleviate these impacts.
"I must commend the response of the public who have been very anxious to avoid spreading the disease. But large parts of the country are not affected and people wrongly believe that the whole countryside is out of bounds. This has had a devastating and unnecessary impact on many of the businesses which depend on visitors to rural areas. The best way to help rural business is to encourage its customers to return as quickly as possible to the many places where it is safe to do so.
"So the task force has agreed on a number of actions to achieve this.
"First, last Friday we issued new guidance to the public on what they can do safely in the countryside - and what they must not do. The basic message is that the public should stay away from livestock and their pastures, but that there are still plenty of things to do and places to visit in the country without risking spreading the disease.
"Secondly, an increasing number of rural properties will be opening to the public again very shortly. English Heritage are announcing today that over 200 properties will be open from 1 April. The National Trust will announce shortly that they will be opening around 150 properties between now and 1 April. British Waterways will be reopening many of their canals, starting next week. In all cases this follows a very careful in-depth review agreed with MAFF.
"Thirdly, local authorities and National Park Authorities will be considering where footpaths can be safely opened, and I hope that there will shortly be a much wider availability of footpaths for the public outside the infected areas.
1336
"Fourthly, we are mounting a public information campaign to ensure the message gets through to the public about what they can and cannot do, and the benefits that they can bring to rural businesses by their visits to the countryside, and, in particular, to rural and seaside towns and villages, hotels, guest houses and tourist attractions in rural areas. The Government, in conjunction with the tourism industry, are setting up a public information phone. This will steer callers to more detailed help on what attractions are open. Extra funding will be made available to the tourist boards to promote rural attractions.
"We are also developing a preliminary package of measures to alleviate the immediate financial hardship of small businesses in rural areas which have been badly hit by the sudden drop in visitors and other knock-on effects of the foot and mouth disease. In preparing this package we have met with, and listened to, a wide range of rural interests. The first stage measures are as follows.
"First, we can offer help through the rates system.
"We will consider help through the rates system by increasing the central government contribution to rate relief from 75 per cent to 95 per cent for small businesses in rural authorities in areas of greatest need that are suffering greatest hardship as a result of foot and mouth disease. We will be announcing our proposals shortly.
"Affected businesses can also apply to the Valuation Office Agency for a temporary reduction in their rateable value.
"Yesterday we presented a Bill which will extend mandatory 50 per cent rate relief to all food shops in small rural settlements. We will also lay regulations to extend mandatory 50 per cent rate relief to sole village pubs and garages with a rateable value of less than £9,000. Local authorities will also consider using their existing powers to allow deferred payment of rates. We are also announcing a three-month extension to the deadline for business rate appeals.
"Secondly, we shall take steps through the tax system. As a first step, Ministers have asked Inland Revenue and Customs officials to take a very sympathetic approach to businesses experiencing financial problems as a result of the outbreak. The revenue departments already have power in specific circumstances to defer payment of taxes and national insurance contributions and agree extended arrangements for time to pay. They will make maximum use of this flexibility for agricultural, transport, tourism and related retail businesses in the countryside which cannot pay debts because of cash-flow problems, where cash-flow assistance through rescheduling tax or NIC liabilities would help.
"Thirdly, we are considering with the Small Business Service and the banks how we can ensure continuing credit for small businesses badly affected by the impact of foot and mouth disease, including the use of the small firms loan guarantee fund. The

1337
Small Business Service, through a national helpline, will provide more information on the package of support available and access to the network of local business links.
"Fourthly, we are taking action through the benefits system. Jobseekers' allowance may be available to both employees and self-employed people out of work as a result of foot and mouth; and the Department of Social Security will be making its procedures as fast and flexible as possible.
"I have also had constructive discussions with the major banks. It is clear that they fully understand the problems being faced by businesses from all sectors affected and they are being pro-active in contacting their customers likely to be in trouble. They made it clear that they are keen to support their customers wherever possible. They will look, on a case-by-case basis, at mechanisms such as extended lines of credit, capital repayment holidays and other measures. I would encourage all bank customers in difficulty or expecting problems to contact their local bank manager as soon as possible to discuss what options may be available.
"Finally, I should like to pay tribute to the important role the voluntary sector is playing in relieving rural distress. I can announce today that the Government will match the public donations which have been made to them for this purpose.
"I should stress that this is a preliminary package. The task force will continue in being as long as it is needed, and I look forward to making further announcements in due course".
My Lords, that concludes the Statement.
6.22 p.m.
Baroness Miller of Chilthorne Domer: My Lords, in view of the extended nature of the previous debate, I may not be able to stay throughout the debate on the Statement and I apologise to the House for that. I am going to Brussels with Sub-Committee D and have already booked a seat on the train. Therefore, I ask for the understanding of the House. I also thank the noble Baroness, Lady Byford, for allowing me to speak before her on the Statement.
We welcome this package of measures and the fact that the Government have moved quickly to introduce some certainty into the situation regarding rate relief and associated matters. However, I say immediately to the Minister—I repeat what I said last week—that on these Benches, we are disappointed by the Government's blanket approach to this issue. Clearly, some areas are in extreme crisis—for example, Devon, Cumbria and Powys—while much of the nation is barely affected by it. The Statement does not recognise sufficiently the very regional nature of the problem. I hope that when this package of measures is applied, authorities in the worst affected areas will be able to take much more extreme measures, in particular in deciding which businesses should be eligible for rate
1338
relief. The Minister listed a number of businesses but clearly in some areas, such as Devon, all businesses are now affected.
There is also the question of what message the Government wish to give those coming from abroad to use our tourist facilities. On their televisions and in their newspapers, people from abroad are still seeing piles of animals burning. That makes it very difficult for the Government to succeed in putting across the message that the countryside is open. The Government must achieve a very difficult balance in that respect. On these Benches, we want to see the revival of tourism but the issue of which regions are worst affected needs to be dealt with extremely frankly.
However, if that is done, it will be clearly understood that the North West and South West are difficult areas in which to walk and, after all, that is why most people visit, for example, the Lake District and Dartmoor. Again, I ask the Government to consider using the contingency fund in a major way, particularly in those areas where tourism, small businesses and agriculture are most affected. That could perhaps be done through the regional development agencies. There really is a case of extreme need in those areas and I believe that consequential compensation is the only route there.
I must declare an interest as my husband is chairman of the Exmoor National Park Authority. But there is much concern in Exmoor about the existence of a confirmed case at South Molton. The authority has no power to close minor roads through open land where stock graze and it feels that that is necessary. Access needs to be restricted in infected areas with diversions via minor roads into uninfected areas. It believes also that it is a necessary to disinfect essential vehicles entering an uninfected area, with support from army services personnel. I make a special plea for Exmoor because of the large deer herd there. That is a problem which is particular to that area.
These are the short-term measures. In the medium or long term, again, I urge that the steps which the Government have taken to encourage British supermarkets to buy British produce should come into effect rapidly. Those steps would include the provisions the code of conduct and the recommendations of Food from Britain which, in their response to the rural White Paper, the Government said would encourage supermarkets to stock regional produce. When farmers can no longer export, that is absolutely crucial.
6.27 p.m.
Baroness Byford: My Lords, I thank the Minister for repeating the Statement made in another place earlier today. I pay tribute to the members of the task force who have come forward with these first proposals. We welcome the Government's commitment to match the donations given by individuals and charities in response to this disaster. I add my thanks to all those in the voluntary sector who have given money or who are supporting those families which have been devastated by these recent events.

1339
While some of the measures outlined today bring hope to some businesses, by far the biggest help that the Government could give would be to bring this foot and mouth outbreak under control. The Statement does not announce any new measures on that front. It refers to the rate relief and possible deferred payment of taxes and national insurance contributions, and other help to rural businesses. Those concessions are indeed welcome. But will the Minister assure the House that those reliefs will be speedily available, with the minimum of red tape, particularly bearing in mind that the rate billing season is now upon us?
Does not the Minister accept that there is total confusion throughout the country as to whether or not the countryside is open to visitors? Does he accept also that farmers and those involved with the outbreak are furious that members of the public wander across country lanes and footpaths, many of which have restricted notices displayed? How can members of the public make and have a considered judgment when MAFF is going in one direction, the DETR in another and the DCMS going in yet another direction as to what is or is not possible?
Mr Meacher said earlier today in the debate in the other place that he accepted that decisions on whether to close or keep open footpaths will be made locally. Does the Minister accept that that will only add to the difficulty and confusion? That will make practically impossible the running of any national hotline which is set up.
What is or is not open to visitors? Mr Meacher even suggested that people could visit areas that were livestock-free, but how will the general public know what animals have been or are likely to be in certain fields without greater direction? What about wildlife? The noble Baroness, Lady Miller of Chilthorne Domer, referred to wildlife and in particular to deer. If the disease spreads on the wind, as currently believed, in addition to direct contact, how can the Minister balance the words in the Statement? How are walkers to know which fields have livestock and which have not, and how will overseas visitors be briefed?
Why have the Government shied away from persuading the Environment Agency to relax its administrative procedures and to permit more and speedier burials? That matter, which was the subject of a strong recommendation in the report on the 1967 disaster, has not been addressed properly by MAFF or DETR.
The mounting of a public information campaign is vital. Visitors from abroad assume that our whole country is affected. I suspect that they will not change their views until a clear announcement is made that the disease has been eradicated. Many visitors are fearful of the implications that the disease may have upon them when they return to their own country. Can the Minister comment on that and tell the House what proposals there are?
We welcome the extra funding that is being made available to the tourist boards. The Statement refers to the sole pub, shop or garage in villages, but some small villages of fewer than 3,000 people have more than one
1340
pub. The Statement suggests that such places will not be helped. Is that correct? The Statement also referred to the job seeker's allowance, saying it "may" be available. Surely, it should say "shall" be available. Who has the discretion?
Already 118 people have been made redundant in Dumfries and Galloway as a direct result of the foot and mouth disease. Can the Minister give the House the figures for England and Wales? What help is to be given to employers who have to bear the costs of redundancy? What happens to businesses that technically still have staff and want to keep them but are currently financially unable to pay them?
While the measures set out in the Statement are welcome, does the Minister accept that the biggest help that the Government can provide is to bring this outbreak under control? 'The Statement is helpful in parts. It provides help for rural businesses. But do the Government accept that it produces no specified new money to help to fight the disease? We have had contact with farmers in affected areas who tell us that they have no or, at best, little confidence that the Government are in control of events. Their personal experience shows us that inadequate resources have been supplied. They are also frustrated by the many delays that they are experiencing. That is in stark contrast to the approach taken in France and in Northern Ireland.
6.33 p.m.
Lord Whitty: My Lords, I appreciate the seriously qualified welcome given to the Statement from the two Front Benches opposite. Clearly, there are anxieties, but I do not believe that it is useful to say that there is total confusion or—
A noble Lord: My Lords, there is total confusion.
Lord Whitty: My Lords, "total confusion" may be fed by irresponsible comment both in the media and in political circles.
Baroness Byford: My Lords, I wonder whether the noble Lord will give way. I understand what he is saying but I assure him that there is confusion. The Government should understand that. We are in London, although we go home to various parts of the country, and there is confusion.
Lord Whitty: My Lords, we have a difficult and complex situation because circumstances differ in different parts of the country. It is important that people realise what the situation is in the parts of the country that they visit. Government advice has been geared and is being geared to providing that information, for example, through the Countryside Agency, the tourist boards and so forth.
Counties in areas that have not been affected, as well as those that have been affected, have taken measures to close all rights of way, and other bodies, such as

1341
English Heritage and the National Trust, have closed properties even when there has been no evidence of a potential problem for a particular property. Those bodies have said, as we have said, that a more selective approach to the matter needs to be taken and that we should look at those areas where it is possible to open properties, paths, tow paths, canals and so on where there is no danger of the disease being spread. That approach will reassure people in the locality that we are not closing down the countryside; it will reassure people who want to visit the locality that they can enjoy certain activities in the countryside; and it will reassure people that prosperity can be spread to those areas of the countryside that are being damaged more than they need to be on any continuing basis.
It was right that such bodies were exceptionally cautious to start with, but we can now take an approach that will allow those businesses that can operate to operate. We can send a message to the public that many of the attractions of the countryside—stately homes, the seaside, restaurants, hotels and in many cases gatherings—can take place without danger of spreading the disease.
That situation will be different in different parts of the country. As the noble Baroness, Lady Miller, said, there is a particular problem in relation to Devon, Cumbria, Powys and some other areas where clearly the measures that we have announced today would need to be applied more intensively. We have now given the local authorities the ability to do that.
The idea that different messages are coming from government is not correct. This Statement and all other Statements have been agreed between my department, MAFF and the DCMS. The English Tourist Council is likewise putting the same message on its information systems. However, it is clear that we must, as a top priority, contain and eradicate this disease, but at the same time we must not, by default, close down the rest of rural industry and services.
Therefore, this is not a blanket approach, as the noble Baroness, Lady Miller, said; in fact, it is a selective approach that focuses the attention of the eradication process and of the restrictions on movement in those areas most directly affected or in adjacent areas. It is important that we assure tourists, as the noble Baroness, Lady Miller, said, that there are opportunities available to them. In the short term we must look at the package that we have produced today, in terms of immediate measures to relieve the pressures, particularly on small businesses in rural areas, because those are closest to the margin and are therefore those with the most acute cash-flow difficulties; but we must also look at the long-term effects as to where the more substantial, wider measures may be necessary to deal particularly with the worst affected areas.
In relation to Exmoor, for example, the local highways authorities have the ability to close roads, and no doubt the Exmoor National Park, in conjunction with Devon and Somerset councils, could close roads. I understand that not many local authorities have used those powers and primarily they
1342
have not done so on their own veterinary advice. Nevertheless, the powers are in place and if the danger is perceived as particularly acute there is no reason why such restrictions or closures of roads could not take place.
I endorse the final point raised by the noble Baroness, Lady Miller, in relation to the appeal to supermarkets and other food distributors to "buy British" in this period and to try to sustain some of the produce from our agricultural and horticultural sectors.
The noble Baroness, Lady Byford, referred to the Environment Agency. It is certainly true that there has been frustration about the way in which that agency's procedures have operated. The Environment Agency is well seized of that. However, it is important to recognise that the agency has a big responsibility. Burying the carcasses can often be seen as the quickest way of disposal, but the Environment Agency must assess the long-term pollution effect of that. It is taking steps to speed up the way in which it does that and to be as flexible as it can with farmers and others in trying to dispose of livestock in that way where it is appropriate. However, it has wider and longer term responsibilities in that respect.
In relation to all government agencies—to social security and the tax authorities—we are attempting to speed up the bureaucratic processes in order ensure that the aid referred to in the Statement and previously is delivered as rapidly as possible to those who most need it. We have gained the co-operation of the banks as regards private finance.
Many of the decisions as regards particular rights of way, restrictions or movements will be made locally. Those local decisions must be based on veterinary advice. It is important that the advice given to local authorities, to farming enterprises and to MAFF co-ordinates the information and it is important that people recognise that the situation will be different in different parts of the country. The point of the package is to minimise the devastating impact on farming in many of the areas and also to ensure that the rest of the rural economy, which employs many more people than farming, does not suffer unduly from the knock-on effects of the disease.
The announcement of itself does not deal with the measures directly to eradicate the disease, as mentioned by the noble Baroness, Lady Byford. However, we have intensified those measures, particularly in the worst affected areas, and there is a clear determination to use all facilities, including the use of troops and private-sector resources, in order to eradicate and contain the disease. That remains our top priority, but it is also necessary to look after the rest of the rural economy and to take into account the serious impact the disease is having, particularly on the tourist trade.
Lord Rotherwick: My Lords, the Minister said that the primary objective of the rural task force is to eliminate foot and mouth disease. He also said that the Government would soon inform the general public of

1343
the areas of the countryside to which they could return safely. However, that would exclude livestock and pastures. I am anxious that that advice should include areas frequented by wild deer, as mentioned by the noble Baronesses, Lady Miller and Lady Byford.
In the outbreak in Bicester in Oxfordshire the M40 is guarded on both sides by deer fencing. Fifteen miles away, where I live, it is normal to shoot about 200 wild deer in a year. It can therefore be seen that a considerable number of wild deer in certain parts of the country are vulnerable to foot and mouth.
Will the Government ensure that the general public are made aware of the problems relating to wild deer? Will the Minister ensure that the areas which the general public are allowed to use will not include footpaths next door to arable fields and woodlands which are frequented by muntjac? Will he also ensure that the general public are aware of the muntjac, which frequent people's gardens?
Lord Whitty: My Lords, I believe that I can reassure the noble Lord on that count. The first line of the information on what one should not do reads:
"Do not go near cattle, sheep, pigs or deer wherever they are".
That includes wild deer and deer which are corralled. Therefore the information is clear.
6.45 p.m.
Viscount Bledisloe: My Lords, I declare an interest in that I farm a livestock farm not far from some outbreaks of foot and mouth disease and I have a tourist attraction which would, but for the present situation, be about to open. I want to ask the Minister two specific questions.
First, will he ensure that no footpath which is currently closed is reopened without close consultation with those who farm the land over which those footpaths run? I am sure he recognises that a farmer who realises that his livestock is at risk of total slaughter will be absolutely infuriated if he feels he is exposed to the slightest additional risk by the reopening of a footpath merely to allow people to wander and derive a little pleasure. It may imperil his entire enterprise and it is a recipe for confrontation. Any sensible farmer, including myself, who felt that there was a risk would keep the footpath closed, whatever the local authority said.
Secondly, the Minister said that tourist boards will have funding enabling them to make plain to the public which tourist attractions are open. Will he confirm that that funding will extend to making plain which tourist attractions are not open? There is a considerable problem as regards those who have spent money advertising their attractions and who are now faced with the difficulty of informing people they will not be open. They have wasted their money on advertising, so can the Minister assure them that the tourist boards will assist them in informing people that the attraction is not open?
Lord Whitty: My Lords, decisions on the opening of footpaths in areas where there has been a blanket
1344
closure of all rights of way will be for the local authorities. They will necessarily take into account the views of landowners and veterinary advice. Some rights of way are closed but could now be opened and all those considerations must be taken into account. The general advice is that footpaths which cross areas where there are livestock or wild deer should not be reopened.
The tourist boards' information states what is open and what is not. The problem is that a large proportion of the population and foreign visitors believe that the whole of the countryside is closed. We need to correct that as facilities open, but it is intended that there should be comprehensive information on where people can and cannot go.
The Lord Bishop of Guildford: My Lords, coming from Surrey, a county which thankfully has not yet been affected by the disease, I can say that its rural communities are affected by what is happening across the country. This year's county show has been cancelled and I have recently cancelled a major youth event which was due to take place on Easter Monday because it is impossible to determine which footpaths are available and which are not.
I am concerned lest we believe that the only places which are in anxiety and need help are those which are directly affected. Will the Minister accept that farming and rural communities across the country are feeling the pressure and need a sense of support?
Lord Whitty: My Lords, yes. The fact that, understandably and rightly, decisions have been taken to close rights of way and restrict movement throughout the country means that many farming enterprises, industries and services throughout the country are affected by the disease, no matter how far away they may be from the nearest confirmed outbreak. Therefore, the measures which we are debating will support small businesses in rural areas and will apply to all areas which are affected by a restriction. The point I made in response to the noble Baroness, Lady Miller, was that more help will be needed in the areas of higher devastation but the facilities for help exist across the country.
Lord Walker of Worcester: My Lords, I declare an interest as a farmer in Worcestershire. Is the Minister aware that over the next two weeks it is probable that 1 million ewes that are now grazing will lamb? At the moment the Ministry of Agriculture tells the farmers concerned that they cannot transport their ewes to the lambing sheds, but agrees with them that ewes lambing in the open, sodden pastures on which they are now grazing gives rise to an animal welfare issue and it is much better if the Ministry culls the sheep concerned. Therefore, we face the potential slaughter of 1 million healthy sheep because the Government say that they should not be transported to lambing sheds. The farmers have said that they will send them in sealed lorries which are sprayed before they move, on routes where there is no foot and mouth disease either side of the road, and yet they have not been given permission

1345
to do that. They find it very difficult to understand why during this particular period the Government urge more of the urban population to travel to the countryside but farmers cannot deliver their ewes to the lambing sheds.
Lord Whitty: My Lords, neither I nor the Government have stated that the urban population should move in areas where there is livestock, let alone infected livestock, and to say otherwise is a complete distortion of our advice. We are saying that there are places and businesses in the countryside which are open and can be used, but not in the vicinity of livestock, whether healthy or infected by the disease, or adjacent to areas affected by the disease. The task force is dealing with the impact on businesses other than agriculture.
The Government's top priority is to restrict the spread of this disease. The most obvious way in which the disease is spread is by the movement of animals. Therefore, MAFF has taken the decision to restrict the movement of animals. We recognise that in some cases that will have a fairly devastating effect on the farming community in those areas, but the top priority is to restrict the most obvious way in which the disease is carried. There may be different situations in different parts of the country and MAFF, based on the best veterinary advice, will have to take separate decisions according to the outbreak of the disease and the pattern of movement within those areas.
I am not able to comment on the precise restrictions in Worcestershire, but the priority of MAFF, as well as local authorities, must be to restrict movements of livestock.
Baroness Gibson of Market Rasen: My Lords, I welcome the Statement, but can my noble friend explain a little further the position of the leisure and tourist industries, particularly in small market towns? I think particularly of East Anglia where, thank goodness, so far there has not been an outbreak of foot and mouth disease. I am also very aware of the way that small market towns, such as my home town of Market Rasen, have been hit. Obviously the same restrictions apply there, and the people who run hotels, inns and shops are extremely worried. Can my noble friend explain how these measures will help the leisure and tourist industries in the market towns?
Lord Whitty: My Lords, the measures announced today relate primarily to businesses within small rural communities, but we are looking more widely at businesses which have been affected in larger settlements. It is clear that what is happening on farms and in the countryside can have a devastating effect on businesses in both large and small towns which are based in the centre of rural areas. It is the job of the task force to look at the way in which we can relieve the pressure on the tourist industry and other businesses in those areas as well.
Baroness Masham of Ilton: My Lords, with Easter approaching, what advice can the Minister give in
1346
relation to caravan parks? An example is Skipton which is an important area of sheep farming. There is a large caravan park situated between two areas affected by foot and mouth disease: Hawes, which has three cases, and an area near Bradford in South Yorkshire, which has two cases. I declare an interest in asking the Minister whether he is aware that I had hoped to open my riding and trekking centre at Easter. At the moment, like many people, I am in limbo, with the welfare of farm animals taking priority. There is also a herd of deer involved. Everyone in Yorkshire is very worried as foot and mouth is a creeping paralysis which strangles initiatives and livelihoods. Does the Minister agree that this is an impossible situation for some people?
Lord Whitty: My Lords, the exact position will depend on the geography and the nature of the movement involved. If one is within 3 kilometres of an infected area, clearly movement will be totally restricted, and there may be restrictions beyond that. Any business that is fairly close to an infected area needs to obtain veterinary advice from MAFF and the county. There will undoubtedly be serious restrictions on enterprises of that kind, and one of the points of the package announced today is to limit the financial strain to which such businesses are subject.
Viscount Cranborne: My Lords, I declare an interest as president of the British Pig Association. I also have considerable interests not only in farming but in a large number of businesses of the kind that are covered by the Statement. I should like to put two questions. First, in view of the happy consensus in this House that the first priority is to eradicate the disease as the best way to help people affected by it, when the Government come to consider whether burying rather than burning carcasses is a sensible way to address the problem in a number of cases, is there any EU restriction to prevent that, if that is what the Environment Agency decides is expedient?
Secondly, is the noble Lord content with the arrangements to police the import of food, particularly meat, into this country? At first sight, it appears that our arrangements are rather less rigorous than they are in a number of other countries, including our partners in the European Union. In view of at least the possibility that this outbreak of foot and mouth disease, and the outbreak of classical swine fever in East Anglia earlier in the year, resulted from lack of controls on imported meat, is it sensible for the Government to give a little more attention to that aspect as well?
Lord Whitty: My Lords, I have already touched on the role of the Environment Agency. Clearly, there will be a mixture of burning and burial in disposing of carcasses. I have said that the Environment Agency must speed up its procedures. The agency must look at the total effect in the medium and long term on the particular piece of landfill; and in particular it must look at the water table. Such European regulations as apply to this area relate to the effect on the water table.

1347
Whether or not EU legislation applied, we would wish to take that into account. That is the main concern of the Environment Agency in its cautious approach to burial.
The general view of my colleagues in MAFF is that there is a fairly tight regime in operation in relation to meat imports. It is not clear where this virus originated. It is clear that, however tight the regime, there may well be areas for improvement to which the Government will give their attention.
Lord Sandberg: My Lords, as a former banker I was very glad to hear that the Government had talked to banks and received a sympathetic reply, but I was sad to note that there was no reference to any approach having been made to the Bank of England. Speaking for myself, I believe that the Bank is very reactive in its decisions. Surely, at this time it should be proactive and provide some help to small industries by giving more serious thought to lowering the interest rate.
Lord Whitty: My Lords, in the immediate situation that we have been talking to the banks about, the small businesses within rural areas would be more concerned with deferrals of interest, interest holidays and delaying loan repayments than with the precise rate of interest. That, as the noble Lord knows, raises somewhat wider issues. The Bank of England is independent on such matters.
Lord Taylor of Blackburn: My Lords, perhaps I may ask my noble friend a question following on from what the noble Baroness, Lady Miller, asked regarding orders of priority. For example, in the North West we have the Blackpool Zoo, Knowsley Safari Park and Chester Zoo, These places are now closed and the staff are redundant. Will they qualify for compensation in the same way, even though there is no foot and mouth disease in the area?
Lord Whitty: My Lords, in general, relatively large enterprises, such as zoos, would not benefit from the proposed package. Clearly, as we move to the next stage, we need to look at those areas of the tourist trade which have been particularly affected and see what best we can do. A significant number of zoo animals are susceptible to foot and mouth. Therefore, it will be necessary for zoos to remain closed for some time, whatever the situation on foot and mouth in other areas. So there will be an issue to be addressed there. But this particular package is unlikely to affect those particular rather large zoos.
The Earl of Caithness: My Lords, does the Minister agree that the confusion is highlighted by having a different regime in Scotland? Will he instil in the Environment Agency some sense the importance of making the right decision the first time? It instructed a friend of mine at 10.30 a.m. to dig a pit to bury stock. At 4.30 p.m. it said, "No, you cannot bury the stock". He had to fill in the pit. The next morning he was instructed to reopen the pit and start burying.
1348
Will the Minister also answer the question of my noble friend Lady Byford about the number of redundancies in England and Wales as a direct result of foot and mouth?
Lord Whitty: My Lords, that last question is impossible to answer. Clearly, the impact is both immediate and longer term. We do not have figures that relate to the knock-on impact of the disease across the whole of the rural and tourist economy. Such figures are not capable of being produced until the crisis is over. It is to be hoped that the job losses will be short term.
The different regimes in England and in Scotland are a consequence of devolution, on which I appreciate that some noble Lords are not particularly keen. Nevertheless, it is important that decisions are taken locally. That means locally by the Scottish authorities, both at national Scottish level, including the Scottish environmental authorities and by the Scottish county and other local authorities. That probably means that there will be slight differences of treatment in different parts of the country. However, the (thankfully so far) relatively small areas of Scotland affected are different topographically and in terms of their agricultural nature from areas in England and therefore one would expect some decisions to be slightly different.
In relation to the Environment Agency, as I have said, we want to speed up the process of decision-making, but that sometimes means that one makes decisions too fast. I am not sure whether it was the Scottish or English Environment Agency to which the noble Earl was referring, but I hope that we can avoid conflicting advice and avoid mistakes. In all these cases speed is important, but it is also important that the decision is robust and meets all the requirements. I hope that people will recognise that, like the MAFF veterinary service, the county and other veterinary services, the Environment Agency is doing its desperate best to ensure that the situation is contained as much as possible. A great deal of work is being done by huge numbers of government people who are working 18 and 20 hours a day in some cases. So we are committed to containing the disease. The package is intended to ensure that the knock-on effects of the disease are minimised as far as possible. Nevertheless, some desperate situations will arise, both in the farming community and in the rest of the rural area. We need to do our best to minimise that.

Weights and Measures (Metrication Amendments) Regulations 2001
7.5 p.m.
Baroness Miller of Hendon Baroness Miller of Hendon rose to move, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 17th January, be annulled (S.I. 2001/85).
The noble Baroness said: My Lords, I move this Motion not because of any desire to revert to bushels, pecks, rods, poles and perches, which I remind noble

1349
Lords are known throughout the world as imperial measures, but for two reasons: first, because there is absolutely no public or legal demand for it. A survey in November 1997 showed that 74 per cent of the public find feet and inches, pints, pounds and ounces most convenient for their everyday purchases. Most importantly, it showed that 70 per cent of people would prefer a system of dual labelling which would allow the consumer to choose the system which best suited him or her.
Tesco reverted to dual pricing because it found that nine out of 10 of its customers still used imperial measures in their heads. Yet the Government relentlessly pursue their determined drive to abolish those familiar measurements. In my view, that is part of the Government's long-term project to airbrush out our history, including the existence of the United Kingdom, the traditions and status of Parliament itself, in both Houses, and the reduction of England into petty regions in the style of French départements and German Länder.
The date of the survey that I have just mentioned is significant. In 1989 the previous government obtained a 10-year derogation from the EC directive permitting the sale of loose goods such as meat, fish, vegetables and fruit in pounds and ounces. Despite the fact that the Government had two clear years notice of public opinion before the derogation expired on 31st December 1999, they just allowed the date to go by default without lifting so much as a finger to obtain an extension. That was clearly a deliberate decision on the part of the Government.
In reply to a Question for Written Answer from my honourable friend the Member for Bognor Regis and Littlehampton in July 1999, which at least would have been a reminder, if the Government amidst their so many other preoccupations had overlooked it, the Minister for Competition and Consumer Affairs said:
"The Government have not discussed the derogation for goods sold loose with Members of the European Commission".—[Official Report, Commons, 8/7/99; col. 583W.]
The result is that it is now illegal to sell bananas by the pound or for children to buy 2 ounces of dolly mixtures. However, it is still permitted under EU law for the equivalent in imperial measures to be shown as so-called "supplements" underneath the metric marking. This is technically called in Eurospeak jargon "supplementary indications" or "dual marking". The regulations that we are discussing today are to put an end to even that dual marking on 31st December 2009. These regulations sound the death knell for pounds and ounces in less than 10 years' time. The question I have to ask is, why?
The same question was raised by some of my right honourable and honourable friends in the other place and answer came there none. The only pathetically specious reply that the Minister could dredge up was:
"The directive is to establish harmonised use of the international system of metric units for education, public health, public safety and administrative services".
1350
Before the Government side gets over-excited, it is true that the previous government signed up to the directive. One was negotiated by the Labour government in 1979 just before the Thatcher government came into office. I shall, if I may, revert to that aspect in a few moments.
I remind your Lordships that we also negotiated the derogation which the Government have deliberately allowed to expire, in the same way that my right honourable friend the former Prime Minister established and negotiated the principle of subsidiarity which the Government waive at every opportunity. The Minister in the other place claimed that imperial measures had to disappear into history because of,
"public health and public safety",
as if people would be fainting in the aisles of Sainsbury's if they were confronted with a label quoting prices in both kilos and pounds; as if an eleventh plague would be visited on us if we were allowed to buy a pound of Cox's Orange Pippins.
Harmonisation is another excuse. Well, I can understand the commercial need not to attempt to sell goods in pounds and ounces to countries that have had the metric system for more than 200 years. But what principle of harmony is breached if some market trader in Sunderland sells his customers bananas by the pound? Even if overseas visitors patronise his store, or even Safeway, surely they will not be insulted if they see a sign containing a so-called "supplementary indication". If millions of British tourists—
The Minister for Science, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, perhaps I may ask the noble Baroness a simple question. The regulations that we are discussing simply allow the supplementary indicators to be continued for another eight years. If we do not have them, we will not have the use of supplementary indicators, which are wholly in the consumer interest.
Baroness Miller of Hendon: My Lords, the Minister is not correct in that. If we were to reject the regulations, consumers would gain, choice would gain and the public would gain because we would be going back to what was in place before the regulations were brought forward. Perhaps I may refer to some of the regulations on the back of the instrument; for example, the Measuring Equipment (Capacity Measures and Testing Equipment) Regulations 1995, with which I am sure the Minister is well acquainted. The existing provisions allow for the indefinite marking of gallons, pints, quarts or gills and fluid ounces as a supplementary indication to litres and centilitres. The regulations against which I am praying would insert a cut-off date of 31st December 2009. However, if those were rejected, supplementary marking would still be allowed.
Lord Sainsbury of Turville: No.
Baroness Miller of Hendon: I am perfectly happy to discuss the matter with the Minister after the debate,

1351
but I have been advised very clearly that supplementary marking would still be allowed. I believe that the Minister will find that to be the case.
Perhaps I may return to the point I was making. If millions of tourists can cope with litres and kilos when they go on holiday and adapt to driving on the wrong side of the road, I am sure that our visitors can manage with dual pricing when they decide to buy a bag of oranges. In other words, what business is it of Brussels or even of our own authoritarian Government how my local corner shop and its satisfied customers do business?
I said a few moments ago that the previous government accepted the directive subject to the derogation. But it was an earlier Labour government, in their dying days in 1979, who negotiated the original directive which referred to,
"laws which regulate the use of measurement in the member states differ from one member state to another…as a result hinder trade".
Which member states were being talked about? They were the United Kingdom and Eire. In what way do imperial measures hinder trade? That ex cathedra statement is not based on the slightest shred of fact or evidence. Indeed, the United States of America has emphatically rejected metrication. If we do not use imperial measures on, say, pots of our highly prized jam, that will hinder trade, as manufacturers will have to run separate production lines to produce different labels.
My right honourable friend the Member for Wells pointed out in the other place the difference in attitude to regulation between the United Kingdom and the Continent. In France, everything is permitted; in Germany, everything is forbidden unless it is permitted; in the United Kingdom, everything is permitted unless it is forbidden. I had my own experience of that in 1974 when I expanded my mail order business into Germany. I had to negotiate a special licence with the German Post Office because it did not allow one to put envelopes on the outside of packets, even though that is done world-wide.
My right honourable friend in the other place also asked why anyone needs permission to display helpful information. In the hope that in the week that has elapsed since that question was asked in the other place the Government have had the time to think up an answer, I ask the Minister exactly the same question. Indeed, I go further. By what right do the Government seek to censor labels on supermarket shelves of pots of marmalade? If in a free country I decide to put political slogans on my products, there is nothing to stop me, much as this Government may dislike my doing that. I have no need to remind your Lordships how Tate&Lyle comprehensively routed the government of the 1940s—perhaps it was the 1950s: I am not sure—with its brilliant "Mr Cube" campaign opposing the government's plan to nationalise it. If, in exercising my right of free speech, I can include on my jar of home-made pickles, which are very good, a statement about class sizes or hospital waiting lists, or even on the shelves of my shop, why do the Government believe that they are entitled to prohibit me from saying that a kilo of onions costs 78p—equivalent to 35p a pound?
1352
The Government have claimed that that causes confusion. Who does it confuse? The customer can rely on which unit of measure and price he or she chooses. In real life, unless one is among the fortunate few whose greengrocer still delivers—whether it is Fortnum's or the very helpful corner shop—most people do not even buy loose fruit by weight. They pick up six bananas or five apples and the person at the check-out tells them what they cost. So why cannot the customer see the price on the shelf in whatever units he or she is most comfortable with?
If we are going to discuss confusion, perhaps I may remind your Lordships about the confusion that was caused by the last compulsory imposition, without an adequate transition, of metrication on this country. We have just reached the 30th anniversary of the overnight decimalisation of our currency. It was done in a most confusing way. We did not adopt a 10-shilling unit, as was the case in Australia and New Zealand. We stuck to the pound. I do not blame the then Chancellor of the Exchequer—now the noble Lord, Lord Callaghan—personally because he followed the advice that he was given at the time. However, as a result, many people no longer understood what they were paying for anything, when 17 shillings became 85p instead of 1.7 new pounds, sovereigns, or whatever. Older people still have difficulty in relating decimal coinage to the old prices, to real prices or to, as so many people call it, real money.
How many of your Lordships realise that your Evening Standard costs you seven shillings and that it costs 5s 2½d to post a letter? Conversion of petrol pumps to litre pricing only disguises the fact that petrol is now more than £4 a gallon. In the case of metrication, we are not just talking about older people. Tens of millions of our citizens have grown up with pounds and ounces, pints and gallons. Millions of those who were born before Harold Wilson invented the "white heat of technology" in 1963 and introduced the now defunct Metrication Board during his 1964 administration will, it is to be hoped, still be alive in 2009. But the Government are clearly saying that those survivors of the pre-Wilson era will not be worth bothering about in nine years' time. That is a clear act of age discrimination.
While I am talking about confusion—I assume that our benevolent Government want to protect the public from being misled in some way by being given more information than is thought good for them—have your Lordships thought about the confusion that is caused by the change to metric quantities? Butter used to be sold in half pound packets. Now it is sold in a 250 gram pack. But 250 grams is nine ounces, so the supermarkets benefit from a 12½ per cent boost in sales. I am sure that the noble Lord, Lord Sainsbury, is very well aware of that.
Noble Lords: Oh!
Baroness Miller of Hendon: I think that he probably is. But as he made a slight mistake previously about the effect of the regulations, perhaps he is not. I do not know.

1353
On the other hand, the old standard 12 ounce—three-quarters of a pound—pot of jam is now rounded down to 340 grams—just one-eighth of an ounce less; not much less; just 1 per cent less jam today, my Lords, but the public have not noticed. By what piece of bureaucratic nonsense is it all right to inform the public that their pint of milk is equal to 568 millilitres but not that a bunch of grapes, at £2.99 a kilo, is equivalent to £1.36 a pound?
The regulations we are considering today go beyond the requirements of the directive, which merely requires the use of a uniform system of measurement; a directive from which the Government deliberately and consciously lost our opt-out. The directive did not prohibit dual pricing or supplementary marking, but, as is typical of this Government in their dealings with the EU, they are adopting their usual submissive attitude and gold-plating the directive. They have put in an eventual time-limit on dual marking. That is the sole purpose of this regulation.
European Union firms that sell to the United States of America are not permitted to sell only in metric measurements. Imperial marking is also required. The EU has responded by graciously permitting even sellers of pre-packed goods to use dual marking. As I have already mentioned, the EU has taken this further and entirely logical step to prevent the uneconomic need for two different production runs, one for Europe and the other for the United States. Indeed, the EU permits dual marking on goods to be sold within the EU and I understand that it extends that permission even to loose goods such as bananas.
However, the Government wish to prohibit that practice from 2009 onwards, but only for British businesses. Europeans will be permitted to sell their goods in bushels, firkins or any other medieval measurement they may choose, just so long as they also use metric measurements. Britain is to be censored and prohibited by an increasingly despotic Government from doing so after 2009. Again, I shall ask the same, unanswered question, which I think is amusing the Minister. I am glad that I have managed to amuse the noble Lord but I hope that, when he thinks about it, he will realise that this is a serious matter. I shall ask him the same question: why?
What the regulation does is to restrict freedom of expression for no reason or benefit whatsoever. If there is no reason for it or benefit from it, I ask again: why? What have we or the EU to fear from giving British shoppers the choice of how they want the goods they buy to be priced and measured? Do we seriously expect shopkeepers to be prosecuted for telling confused shoppers the weight of the goods in pounds and ounces? Will the Minister, in all seriousness, tell noble Lords categorically, here and now, that a Labour government would support such prosecutions?
Once in a while, a piece of nonsense crosses a Minister's desk, although of course the Minister may see plenty of nonsense passing over his desk. Some of those pieces of nonsense have nothing to do with the
1354
real world but, occasionally, there is something that the Minister will be able to do about it. I say this to the Minister: sometimes the pieces of nonsense that pass across his desk do no more than provide work for a few bureaucratic, regulation-loving officials. Advisers are there to advise; Ministers are there to decide. In this case, I look to the Minister to stand up for himself and decide that there is no compelling case for this piece of administrative madness.
This totally purposeless regulation should be revoked. To support that proposition, I should like to reverse the question that I have asked several times in the course of my remarks. I shall quote my personal motto, which reflects my personal philosophy. When I meet an illogical piece of obstinacy, I then say: quare non—and why not?
Moved, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 17th January, be annulled (S.I. 2001/85).—(Baroness Miller of Hendon.)
Lord Shore of Stepney: My Lords, I shall intervene only briefly because the matter has been covered more than adequately in the speech of the noble Baroness. I am not quite sure what is the correct emotion to demonstrate: should we laugh in scorn at this matter, or should we feel gusts of anger at the humiliation inflicted upon our Parliament by the Brussels authorities, for that is what it is?
First, using a single sentence, I shall try to put this matter into perspective. No one in possession of their senses would have any objection to the adoption of a metric system where it is in the interests of Britain to do so. Many of our traders who conduct most of their business with the Continent find it convenient to use metric units. Those who export primarily to the dollar areas do not, because the recipients of their goods are familiar with imperial units. Common sense rules what decisions are made.
So far as concerns the ordinary consumer, it is only a matter of what is most convenient; namely, what each consumer is most familiar with. There can be no justification at all, in terms of public demand, for getting rid of our traditional system of weights and measures.
Lord Sainsbury of Turville: My Lords, I am grateful to my noble friend for giving way. I do not wish to prevent noble Lords expressing their views about the metric system or their anti-European sentiments; it is obviously very therapeutic.
I point out again that these extremely limited regulations simply extend for up to a further eight years the period during which pricing using both imperial and metric units can take place. That is all that the regulations will do. Obviously, people have views on metric measurements, but tonight we are debating only that one simple proposition.
Lord Shore of Stepney: My Lords, with respect, the regulations do not simply reiterate the status quo. We are now envisaging for the first time the total

1355
suppression of imperial units by a given date—admittedly on 31st December 2009. Why on earth we should have anything to do with the year 2009 is beyond me, unless the Government wish to be provocative.
Lord Sainsbury of Turville: My Lords, I must insist: a previous EU directive brought all supplementary indicators to an end in 1999. The regulation before the House extends the period during which such indicators can be used for a further 10 years. We have negotiated this extension. If we had not done that, the use of supplementary indicators would have stopped in 1999.
Lord Shore of Stepney: My Lords, if the regulations simply extend the status quo and merely give us a terminal date, we should have taken the opportunity to renegotiate the matter so as to escape from the ludicrous provision we are already saddled with.
Perhaps I may put one or two questions to my noble friend, because they will help to clarify the point. I understand the present situation to be that, in this country, it is unlawful to sell units of goods using imperial measurements. What we are allowed to do—the Minister should blush with shame at this, as should we all—is to display our traditional units as "supplementary indicators".
The term "supplementary indicator" has yet to be fully described or defined. However, I gather that the imperial weights and measures must be less prominently displayed than the metric units. To sell using only those "supplementary indicators" is unlawful; it is unlawful today. As noble Lords know, we are presently awaiting the result of a test case where a Sunderland greengrocer, whose name is Steven Thoburn, sold a pound of bananas as a pound of bananas in his shop in Sunderland. What have they done? They have confiscated his scales and, because he persists in refusing to use metric measurements, they are now trying to inflict further punishments. Perhaps I may ask the Minister what are the maximum punishments under the present regime. Are there prison sentences and fines? We might as well have the details put on the record.
The Earl of Onslow: My Lords, perhaps they have the galleys.
Lord Shore of Stepney: My Lords, we can make a joke about this, but I am concerned with far more important matters here than whether one can buy and sell bananas by the pound. Greater issues are at stake here. This case illustrates what is happening. What is meant by the loss of self-government is that unelected bureaucrats tell the citizens of this country what they can and cannot do, when what they are doing has no relevance at all to the European Union. It is an invasion of freedom. In my view, this House and the other place, which is debating this matter tomorrow, should be up in arms and refuse to re-enact these regulations, thereby giving notice to the authorities in Brussels that we will not stand it any longer.
7.30 p.m.
Lord Taverne: My Lords, I oppose this Motion. I cannot believe that the noble Baroness will wish to press it because she is far too sensible. The technicalities will be explained by the Minister; I wish to make some general remarks.
First, it is not very sensible to have dual systems. It is no more sensible to continue to show pounds and ounces than it would be to have figures showing pounds, shillings and pence, as in some ways the noble Baroness suggested.
Secondly, it does not have very much to do with the bureaucrats of Brussels. Metrication has an interesting ancestry. There was a unanimous recommendation by a Select Committee of the House of Commons that metrication should be instituted in 1862, which, as I far as I remember, was somewhat earlier than the founding of the Common Market.
The Metrication Board was set up to promote metrication in this country. It was recommended in 1968 by that well-known Europhile, that lackey of Brussels, Mr Douglas Jay. He was backed in this by that other Europhile, Mr Anthony Benn. Metrication was introduced into our schools by the noble Baroness, Lady Thatcher.
This is not a gigantic plot. Every other country in the world has gone metric. Every Commonwealth country has completed metrication. Is that because they are dominated by the bureaucrats of Brussels? What on earth is the noble Lord, Lord Shore, talking about? It was magnificent Churchillian rhetoric, full of sound and fury, but signified nothing.
These changeovers sometimes cause a fuss. It would have been much easier if we had kept the Metrication Board. I remember decimalisation because I was the Minister in charge of decimalisation in 1968. I remember the great "Save the Sixpence" campaign. The sixpence was given, rather weakly, by the then Prime Minister, Harold Wilson, a reprieve for a certain time. It was meaningless because a sixpence—a 2½p coin—had no place in a metric system, and the 2½p coin duly disappeared.
This really is a great deal of nonsense about nothing. It is a pity that the Decimalisation Board, which did a great job, was not followed in due course by the Metrication Board, which, as the noble and learned Lord, Lord Howe, explained, was abolished, I think by him, as one of the first acts of the new government He rather regrets that it was done. The Decimalisation Board was a great success. If the Metrication Board had been, the fuss might be somewhat limited.
Do not let us pretend that this is a great story about domination by Brussels. That has nothing to do with it. Why should all Commonwealth countries have adopted metrication? Why should the United States be adopting it as well?
The Earl of Onslow: My Lords, perhaps I may bring the attention of the noble Lord, Lord Taverne, back to the issue. It is not a question of whether or not we should adopt metrication; it is whether it should be a

1357
criminal offence for someone, after 2009, to display his produce in pounds and ounces as well as in kilos. No one is saying that we should not display in kilos, but we should be able to display in both. That is all that the issue is about.
Some say it will die out—it probably will—but why do we buy from the fishmonger in Barfleur, the fish market, "les huitres: le livre". After all, the French invented metrication and they still use their old bourbon levels of measurement in some markets—they do in the vegetable market in Carcassonne—but they do not get sent to the guillotine or the Temple prison in Paris.
I regret to say that governments of both parties have been prone towards the intolerable habit of over-regulating. There is no need to ban it. When people do not want it, it will die like the sixpence. The difference is fundamental; it is not an attitude of anti-metrication but one of live and let live. I thought—I may be wrong; I am being proved wrong—that the Liberal Democrats believed in that. They obviously do not at the moment. They say, "Let's boss people about". The noble Lord, Lord Phillips, may split the Liberal Democrat Front Bench, I do not know, but that is the issue.
I pride myself on being what can be called a "xenophiliac". I rather dislike the way that Brussels governs us, and the two are not mutually exclusive. That is why we should be able to love the pound and love kilos and not send people to the galleys, the guillotine, the Temple or fine them two thousand quid.
Lord Howe of Aberavon: My Lords, I am sorry that I was not here for the opening moments of my noble friend's eloquent and emotional speech. It was effective in its way, as always. It matched in emotional content the speech of my old sparring partner, the noble Lord, Lord Shore. However, as a former Minister for metrication—if I may get that on the record—I find the existence of this debate, with its hugely generated emotions, in itself a very sad commentary on the lack of skill and, quite frankly, the lack of candour with which we have set about the metrication process. It is a very distressing state of affairs.
I say "we" because all parties have connived in quiescence and a lack of candour. We have never secured a statutory endorsement by Parliament, which was a mistake. Even as I see the smile on the face of the noble Lord, Lord Taverne, I say "we" because his party colleague, the Member for Weston-Super-Mare, Mr Brian Cotter, has made speeches of matching eloquent emotionalism to the ones we have already heard. So it is an all-party shambles.
The myths which underlie the shambles are, first—this has been dealt with already—that this is the fruit of some hideous alien imposition. It is true that it was the French revolutionaries who first started designing the metric system. They had the courtesy, rather remarkably, to ask the then British government to attend consultations about how to do it. With a better excuse in those days than in the present circumstances, the British Government declined the offer.
1358
The noble Lord, Lord Taverne, is right that in 1862 a unanimous Select Committee of the Commons recommended metrication because, in its view, no country—especially no commercial country—should fail to adopt the metric system, which would save time and lessen labour. Nine years later, by five votes only, the House of Commons failed to endorse metrication and decimalisation simultaneously. Decimalisation then would have cost trade £3 million; decimalisation 100 years later in 1971—a long delay even for this country—cost £300 million. That is one of the prices we have paid for it.
Successively, the Hodgson committee appointed by Lord Attlee unanimously recommended metrication in our national interests; the Metrication Board was set up in our national interests; and in 1972 we started teaching our children in metric measures in our national interests. While I was waiting for the debate to begin I was talking to an old friend of mine in Port Talbot, a retired primary school headmistress. I mentioned what we were about to embark upon, and she said how upset she had been when she had taught all the children going through her primary school in metric measures, as she was led to understand was necessary, and found that when they moved on to their secondary schools they were back to imperial measures again. That is no way to run a country.
It is wrong to believe that this is an alien imposition; it is wrong to believe that it is intrinsically bad; it is, above all, wrong to believe that we can continue indefinitely living in a twilight world with both systems having a kind of equal parity. If we were the first Commonwealth country to embark on metrication and are now the only one not to have completed it, does not that lead one to question why we alone have to have this extraordinarily emotional excitement?
It is partly because we have allowed the thing to come among us now in European dress. In 1972, when the Heath government published the metrication White Paper, even that was published before we joined the European Community. We have made the mistake of relying upon that background instead of saying, "Look, guys, this is for us" to the British people. Canada, Kenya, South Africa, Australia and New Zealand have done it. New Zealand started it in 1972 and finished it in 1977. If you do it with a properly designed, sustained educative process, you do not need to contemplate prosecution.
My noble friend was right to refer to the use of the livre on the French coast. I have bought a livre of moules marinières in Barfleur. But the livre is a residual designation of a demi-kilo. There would be confusion unless we got it clear in this country that the pound, if we wanted to go on using it, was now to be understood as meaning 500 grams or half a kilo.
The tragedy is that we have not carried this process through in a sensible, systematic fashion. That is something of which we all ought to be collectively ashamed. To have successive governments saying that this is the way we are going, introducing measures to achieve it and letting the schools embark upon it, and

1359
successive oppositions remaining hugely excited about it, is not the way to run an adult democracy. I am very sad that that we still find ourselves in that age.
I grieve deeply that, not just my honourable friends—with whom I am very friendly—but the noble Lord, Lord Shore, with whom I am normally on very good personal terms, as I am indeed now, and I should find ourselves divided in this extraordinary fashion at the beginning of the 21st century over a system that we ought to have adopted in the middle of the 19th century.
Lord Phillips of Sudbury: My Lords, the noble Earl, Lord Onslow, was correct in one of his remarks and incorrect in another. I am not, and am not likely to be, a Front Bench spokesman for this party. That is partly because I do not intend to speak up for my noble friend Lord Taverne on this occasion.
I do not believe that this debate is "much ado about nothing". The noble and learned Lord, Lord Howe, and my noble friend Lord Taverne are too rational about the issues involved. Little things sometimes mean a lot to "little people", as Dickens called them. We need to understand about the European Union. I make no bones about the fact that I am a complete supporter o f our membership of the European Union. But people need to understand that the public in this country are not in love with the EU. They find it bureaucratic, distant, impersonal and arrogant. I believe that the way in which this whole question of measurement has been dealt with is a classic example of just that—as well as, I concede, a failure on our part to be sensible in the way in which we have dealt with education.
People feel put upon by bureaucratic busybodies and, frankly, they feel put upon by us. This is a good example of how we often fail in our duty. I say to the Minister that it is true that we are talking about a derogation for 10 years. But what those of us who are in favour of the Motion disagree with is the guillotine that will come down at the end of 2009 and which will make illegal thereafter any use of alternative, supplementary or additional measurements. That is what I disagree with; and I believe that the House should have disagreed with the previous derogation Motion.
Let us consider what we are dealing with. In Halsbury's Statutes there are 175 pages dealing with weights and measures. The Weights and Measures Act 1985 has 122 pages; and 28 EC Council directives dealing with, weights and measures are still in force. The directives have been amended many times. Let us take, for example, the directive dated 15th January 1980 on,
"Ranges of Nominal Quantities and Nominal Capacities Permitted for Certain Pre-packed Products"—
a snappy little title! We find that the EC Council directive of 1980 was amended by another directive in 1985, another in 1989—the occasion giving rise to the matter with which we are dealing, when, I believe I am right in thinking, Douglas Hurd and Francis Maude were present at the Council which approved the
1360
directive from which this comes. Then there were the Units of Measurement Regulations 1986. Those regulations have since been amended on several occasions: three time in 1994, and again in 1995. Trying to get to the bottom of this matter is a nightmare; and that in itself tells us something that we need to hear.
My point is a simple one. On 1st January 2010, it will become a criminal offence for any small trader, shopkeeper or market stall holder to have additional measurements along with the metric measurements relating to any goods for sale. If someone goes up to a small shopkeeper or trader on 1st January 2010 and asks for a pound of apples, the trader will be committing a criminal offence if he supplies them. That is like something out of Alice in Wonderland. It is a nonsense. Above all, it is completely unnecessary. I have studiously tried to understand this, and there is no single justification for such criminalisation.
No one is damaged by allowing the supplementary measurements; no great principle of European trade is traversed by allowing them. Indeed, if one is talking about damage, surely the damage is to the many, many consumers who will understand only our traditional measurements. Let us not forget that the latest survey indicates that 93 per cent of the population prefer to deal in traditional measurements. I believe that we shall find that anyone who is over the age of 40 will in 10 years' time be completely lost if he or she has no alternative indicators. Only bottles of milk and pints of beer and cider will then be allowed in traditional measurements.
My point is that there is a basic libertarian issue here. It is easy for some to say that it does not matter, that it is silly. My noble friend Lord Taverne said that it is not sensible. We are not dealing with sense; we are dealing with choice, and with the right of people to express themselves as they think fit. Measurements are a mode of expression like anything else.
It is easy for this House to fall into the managerial attitudes that are now so prevalent, but it is dangerous. It is dangerous because it alienates the very people whom we as a Parliament ought to be setting out to woo. Those of us who do not want the backlash against the European Union to gather force to the point where the time may come when a party will go to the public seeking withdrawal from the European Union need to understand what people resent and why they resent it. Unless there is a good reason for making it a criminal offence on 1st January 2010 for people to supply goods in alternative measurements—I do not believe that there is one—we damage the cause of the European Union. For that reason, I am strongly against the criminality provision that will come into force at the end of the 10-year period.
7.45 p.m.
Lord Richard: My Lords, I assure the House that I shall be brief. I am slightly mystified by this debate. Frankly, I did not intend listening to it, but I was told that it was a matter of some importance and of some constitutional note, so I came into the Chamber. I was

1361
greeted with what I had, frankly, slightly expected. I heard a speech from the noble Baroness, Lady Miller, which was passionate—certainly that came across. There was an argument there, although, if I may respectfully say so, one had to dig for it a little in order to try to decipher it. I heard the speech of my noble friend Lord Shore, which was Churchillian in its tone and which seemed to elevate what is, after all, a fairly small issue into Trafalgar, Waterloo, Dunkirk, the beaches: "We must stand and defy these terrible people who somehow or other are going to eat into our liberties".
Then we heard the noble Earl, Lord Onslow. I told the noble Earl earlier, and I shall repeat my remark to the House, that I have begun noting the length of time that it takes him to get to his feet from when he first comes through the door into the Chamber. That interval is getting shorter—
The Earl of Onslow: My Lords—
Lord Richard: No, my Lords. Perhaps I may, first, amuse the noble Lord before he decides that he must respond.
We have had the benefit of the noble Earl's contributions on two occasions today in what is probably his first appearance for some time. I hope that the noble Earl comes to the House more often. When he comes, he is entertaining; indeed, we all enjoy seeing him. Some of us enjoy listening to him, as long as he does not go on for too long.
We have, again, heard this great libertarian issue. Does the noble Earl wish to intervene now?
The Earl of Onslow: My Lords, my only slight defence was that I did arrive slightly late for the Question on fishing that was dealt with earlier today. The noble Lord is right to say that I was fairly sharpish off my feet at that time. However, on this occasion I had made a plan; namely, to arrive, to listen to the opening speech and to the other speakers, and then to intervene with what I hoped would be a constructive and libertarian contribution. The noble Lord may not agree with what I said, but then he is excellent at not agreeing; indeed, he is excellent at showing disdain of a rather patrician kind, which we all have known and have grown to love. But at least three of us can play this game.
Lord Richard: My Lords, I am bound to say that to be accused by the noble Earl, Lord Onslow, of being patrician seems to me to be a somewhat astonishing proposition even at this hour of the night, and on this particular issue.
We also heard from the noble Lord, Lord Phillips, who said that this is a basic libertarian issue. That was greeted by a chorus of "Hear, hear!" from those on the other side of the Chamber. This is not a libertarian issue. The noble Lord said how terrible it will be when this becomes a criminal offence on 1st January 2010. That prospect seems to appal the other side. It is a very
1362
strange way to be appalled: they are appalled by a criminal offence coming into being on 1st January 2010, yet they seem to want it to come into being on 1st January 2001. With respect, that is precisely what will happen if this derogation is not granted.
Noble Lords: Oh!
Lord Richard: My Lords, I urge noble Lords opposite to try to follow the argument. That is being a bit patrician! Indeed, it could have come from the lips of the noble Earl, Lord Onslow. It is going to be a criminal offence on 1st January 2010 if the derogation goes through. However, as I understand it, if it does not go through it will become a criminal offence at the period of time when the derogation should have come into practice, but did not—
Lord Phillips of Sudbury: My Lords, I am grateful to the noble Lord for giving way. I call upon his vastly superior experience to mine and ask him how he would contend with the position in which we now find ourselves if we feel strongly that criminalising the sale by alternative indications in 2010 is wrong?
Lord Richard: My Lords, I do not quite know how I should deal with the present situation, except perhaps to recognise it. The previous government and the previous Labour government—but especially the previous government under the noble Baroness, Lady Thatcher—accepted the principles of metrication for the United Kingdom. We are talking about the process of how that metrication is introduced. As I understand it, the previous government managed to get a derogation for 10 years. The effect of these regulations will be to give a further derogation for 10 years. So we are debating a 20-odd year period, within which metrication is being introduced into the United Kingdom. That is no position from which to start tearing a passion to tatters, as we have heard tonight.
The House would be well advised to listen to the rather wise words of the noble and learned Lord, Lord Howe of Aberavon. I believe that he got it absolutely right: this is something that should have been done a very long time ago. However, it was not done and now should be.
Lord Monson: My Lords, I support the noble Baroness, Lady Miller, wholeheartedly—and not for the first time. We have heard one illiberal speech from the Liberal Democrat Benches, though not by any means for the first time, which was more than balanced by an excellent and highly liberal speech from the noble Lord, Lord Phillips of Sudbury, as is his wont.
I should point out to the noble Lord, Lord Richard, and other supporters of the Government that all law—in particular, a new criminal law—any breach of which may result in an individual being fined or sent to prison, should have some moral basis. That applies whether a law affects 10 million or only two dozen people. Similarly, it does not matter what date it comes

1363
into effect. Unless it rests on a moral foundation, it is likely to be arbitrary and, most probably, also tyrannical.
Where is the actual morality in outlawing dual marking? Is there anyone in the entire world who would be harmed in the slightest degree if these regulations were rejected? The answer is surely no. Is there any popular demand across the European continent for these regulations; for example, are the Greeks and the Belgians demonstrating in the streets, rioting and insisting that dual marking be outlawed in the United Kingdom? That is certainly not the case. Would the handful of zealots in the European Commission and among the EU bureaucracy really lose any sleep at all if the regulations were rejected? Even here, I suspect not.
Above all, it is the europhiles and euro-enthusiasts, like the noble and learned Lord, Lord Howe, and the noble Lord, Lord Richard, who should be worried by these regulations. As the noble Lord, Lord Phillips, suggested, nothing is more likely to provoke the British people into hating the EU, and all its works, than this sort of arrogant and unnecessary interference in our purely internal affairs.
On a technical point—here I declare an interest as a patron of the British Weights and Measures Association—it is worth pointing out that bicycle wheels all over the world, including the whole continent of Europe, are measured not in millimetres or even centimetres but in inches. If the regulations go through, we could end up in the year 2010 as the only country in the EU where sellers are forced to advertise bicycle wheel measurements in millimetres, while France, Germany, Italy, and so on, remain free to advertise them in inches. As a number of noble Lords have pointed out, there are also other examples of continuing Continental use of imperial measurements. I hope, therefore, that the House will reject these regulations as we are now—thank goodness!—fully entitled to do.
Lord Blackwell: My Lords, I listened with some interest to those noble Lords who have spoken in favour of these regulations. I listened in particular to my noble and learned friend Lord Howe. So far, I have to say that the arguments fall with my noble friend Lady Miller. As other speakers have said, I cannot see what is to be gained by removing the right of consumers to choose how they buy goods. It is not a question of being for or against Europe, and it is not even a question of being for or against metrication: it is simply a question of being for choice and liberty.
It is certainly true that we must have a legal form of measures and that we have chosen to have the metric system in this country. However, what is generally missed is the fact that any two measurement systems have, by necessity, an exact conversion. It is not a question of using one measurement system to try to short-change the public by using short pints or bent rulers. It is not a question of fraud: one measure is exactly the same as the other. It is just expressed through a conversion factor. A certain quantity of produce will cost exactly the same in pounds and pence
1364
whether it is measured by one metric system or, indeed, by old imperial measurements. As far as concerns the public, there is nothing to be gained.
The regulatory assessment that was issued with these regulations says that there is no cost involved in extending dual marking to 2009. If no cost is involved in extending dual marking to that date, it seems to me that there is no cost in extending it in perpetuity. However, there is a cost involved in bringing dual marking to an end. In economic terms, we know to our cost that any regulation introduced in this country is enforced. As the noble Lord, Lord Shore, pointed out, people will be travelling around the country enforcing the regulation and will be incurring costs in the process, as well as imposing costs on those on whom they attempt to enforce it.
However, as the noble Lord, Lord Phillips, pointed out, there is a more important cost involved; namely, a cost as regards liberty. There ought to be a bias in this country that a strong benefit must be derived from introducing a regulation, or reducing a freedom, before it is implemented. I cannot see any benefit coming from the implementation of this regulation. It will reduce consumer choice and force people to adopt only one source of information.
Lord Phillips of Sudbury: My Lords, I am grateful to the noble Lord for giving way, but there is a further cost and that is that on 1st January 2010 everyone will have to throw away their existing scales because it will be a criminal offence from that date to have scales that have both traditional and metric measurements.
Lord Blackwell: My Lords, I accept that point. It occurs to me that there is no calculation in the regulatory assessment we have been given of the cost of introducing this terminal date for dual marking. Does the Minister advocate a date on which dual marking should be abolished? If we had free choice in the matter, would he have advocated it in 1999? Does he advocate that in 2009 as a positive measure? If he believes that the prayer of the noble Baroness, Lady Miller of Hendon, is not an appropriate way of getting ourselves out of this "box", what can the Government do to extend—as it appears that the majority of noble Lords here would like to do—dual marking in perpetuity? What do we have to do to achieve that? Will the Government bring forward whatever measures are necessary to support that intent?
Lord Willoughby de Broke: My Lords, I give an example which I hope may be helpful to your Lordships to demonstrate why this matter is so infuriating to those of us who support the Motion of the noble Baroness, Lady Miller of Hendon. It is all about subsidiarity. It is a living example of subsidiarity in your Lordships' House. I enjoy going to the Refreshment Department to order my steak for lunch and dinner. Only comparatively recently, to my horror, I found that the steak was described as weighing 200 grams.
In most London restaurants the steaks are described as weighing eight ounces. We all know what an eight ounce steak is; it is an edible size of steak. We can

1365
picture an eight ounce steak in our mind when we order it. But for some reason it is now described as weighing 200 grams. Who has any idea what a 200 gram steak looks like?
I took the liberty of writing to my noble friend Lord Colwyn who is chairman of the Refreshment Sub-Committee. Sadly, he is not present at the moment. However, I saw him coming in so perhaps he will read Hansard. I asked him why it was necessary to have the steak uniquely described in grams. Like other noble Lords, I have no objection to dual marking but we do not have the choice. The figure is given just as 200 grams, whatever that may mean.
I did not receive a satisfactory answer from my noble friend Lord Colwyn. Therefore I wrote—I shall not say higher up as one can hardly get higher than the chairman of the Refreshment Sub-Committee—to Mr Edward Ollard. He informed me that it was a requirement that purchases should be conducted in metric measures and that that was far more convenient for what the noble Lord, Lord Phillips, called the managerial mindset. That may be the case for people buying in metric measures. But why cannot we have both measures? Why cannot we have eight ounces? If a product happens to be 233 grams, it can be marked eight ounces or 233 grams. Why is it just marked 200 grams? Incidentally—
Lord Richard: My Lords, does the noble Lord feel the same about a bottle of claret, which we all know is 75 centilitres? There is no choice whatsoever there. The noble Lord has to accept that measurement.
The Earl of Onslow: My Lords, before my noble friend replies, Berry Brothers used to sell a very convenient pint bottle of claret which was exactly the right amount one wanted until it was forced to sell it only in 75 centilitre bottles. That applies also to imperial pints of champagne and imperial pints of claret, which were exactly the right amount.
Lord Willoughby de Broke: My Lords, I am most grateful to my noble friend Lord Onslow. I hope that that answers the point made by the noble Lord, Lord Richard. I do not want to intervene in the cross-Floor repartee. What I tried to explain before the noble Lord, Lord Richard, intervened is that 200 grams is seven ounces or 7.133 ounces. Noble Lords may not know it but they are being short-changed. When they buy a 200 gram steak and they think that they are getting an eight ounce steak they are not, they are getting a seven ounce steak. All I am saying is that surely we could have a choice in this matter. I wonder whether the usual channels could persuade the Refreshment Department to rethink the matter so we could have marked 200 grams or 231 grams and eight ounces. That is a living example of why this regulation is so absurd. If my noble friend divides the House, I shall support her.
Lord Sainsbury of Turville: My Lords, I welcome the opportunity to explain the regulations. I have been
1366
longing to explain them because they are simple and they do not need a debate on all the fundamental issues. I remind the House that since 1965 all governments have supported the change to the metric system on a gradual basis and for an ever increasing range of uses because of the global move to metric.
The main directives were adopted in 1976 by a Labour government and in 1980 and 1989 by Conservative governments. The 1989 directive set 31st December 1999 as the date after which grams and kilograms must be used to sell loose goods by weight, mainly fresh foods such as meat, fruit and vegetables. The implementing legislation, which has been challenged in the Sunderland case, was made in 1994.
If we are to play the cards of libertarianism and British history, I remind the House that in Magna Carta for the first time the people of Britain established the case and the need for a single form of measurement in the country. With a general election coming up it is no time for the Conservative Party to line up behind King John on the ground that somehow having a series of weights and measures is a good thing. I say that by way of background.
I now take noble Lords through the regulations that we are debating. The regulations I am discussing are those listed in the schedule to the present regulations and in Regulation 3(2). The regulations set out constructional requirements and limits of error for different classes of weighing or measuring equipment. They also include the option for the equipment to display the quantity weighed or measured by means of a supplementary indication in imperial units.
The regulations serve to implement, in respect of the listed equipment, the provisions on supplementary indications in Directive 1999/103/EC, which amends European Community Directive 80/181/EC on units of measurement. Directive 80/181/EC originally set 31st December 1989 as the period after which non-metric units were no longer authorised for use as supplementary indications alongside metric units on measuring equipment or for other purposes such as the quantity mark on packaging or the unit price of goods.
In 1989 the directive was amended to extend the period for supplementary indications until 31st December 1999. The new deadline—and the other amendments to the directive—were debated on the Floor of another place in 1989. The present Government have now negotiated a further 10-year extension for supplementary indications for two reasons.
First, under legislation made in 1994, goods sold loose by weight were required to be sold in grams and kilograms after 1999. It was clear that consumers would welcome a further 10-year period during which trade weighing machines could display indications in both metric and imperial weights.
Secondly, under US legislation, consumer packages—including imports from the UK and other EU member states—must be labelled in metric and US imperial units. Packing in metric only for the EU market and in metric/US imperial for the US market would clearly add to the costs for UK exporters. It was

1367
again clear that there was benefit in extending the period for supplementary indications by a further 10 years.
It is also important to recognise that the amending directive was passed by the European Parliament. If UK MEPs had considered that the 10-year extension period was not adequate, they could have tabled an amendment; and they did not do so. Perhaps I may say to the noble Lord, Lord Phillips, that it would be open to a future government to seek a further extension if in 2009 there were an indication that a further extension was needed.
It seems wholly perverse, therefore, for the House to turn down regulations which extend the period during which supplementary indications can be used, the provision of which is wholly in the interests of consumers. The regulations extend the period in which supplementary indications can be given for another 10 years. I cannot see what is to be gained for the consumer by turning that down. If people still want supplementary indications in 2009, it will be open to the government at the time to seek to extend them for a further period.
Perhaps I may respond to points made during the debate. Since 1st January 2000 it has been unlawful to use imperial units only. That was as a result of legislation passed in 1994, and debated at the time in the House of Lords.
My noble friend Lord Shore asked about maximum punishments. The maximum punishment is £1,000 and/or confiscation of the weighing machine.
The consumer can ask for goods in imperial measures. The metric equivalent can be weighed out now and after 2009. The libertarian argument fails to recognise that one of the oldest functions of government is to define the legal units of measurement. Just as all governments have always had a monopoly on issuing notes and coins, if there was no legal definition one man's pound or kilo would differ from the next's.
I come back to this point. These are simple regulations. They act entirely in favour of the consumer by extending the period for 10 years. It is not appropriate again to raise the whole question of metrication. Both governments have supported metrication consistently for a long period. It is sensible to extend the measure for a further eight years. If, after that period, there is a wish to do so, it is up to the government of the day to seek a further extension.
Lord Monson: My Lords, before the Minister sits down, does he agree that the reason why governments have the power to regulate weights and measures is to prevent the consumer from being confused or cheated? That is exactly what we do by allowing the use of dual measurements.
Lord Sainsbury of Turville: My Lords, while in the short term it is clearly sensible to allow supplementary indications, as a general principle it is a good idea to have one unit of measurement and to stick to it.
Lord Phillips of Sudbury: My Lords, perhaps I may ask the Minister's indulgence before he sits down. At
1368
the end of his speech I believe the Minister said that if a trader or shopkeeper is asked for goods in traditional weights after 2009, it will be possible for him to supply them. However, the shopkeeper will not then be able to use scales or a weighing machine with traditional measurements. Therefore, that will be impossible.
Lord Sainsbury of Turville: My Lords, the consumer can ask for goods and they can be weighed out in those measurements, but the shopkeeper would have to do that on a metric machine and make the conversion.
Baroness Miller of Hendon: My Lords, I do not want to tire the House; we have heard so much. However, when I spoke, the Minister intervened to explain that if I divided the House and won annulment of the regulations, we could not even now have the use of supplementary indicators. On the advice that I have been given, that is not so. If that were so, I would not ask the House to annul this regulation. We on this side of the House are looking for choice; I am glad that many others have joined us on this issue.
I mentioned the Measuring Equipment (Capacity Measures and Testing Equipment) Regulations. I shall not do so again. However, the Minister continues to say that the regulations are sensible. I wish to ensure that noble Lords understand the position. In the schedule there is reference to nine different regulations. The eighth paragraph refers to the Measuring Equipment (Liquid Fuel and Lubricants) Regulations. If the measure were annulled, one comes back to what that regulation states. The fourth point of that regulation states that any indication on measuring equipment referring in metric units of measurement to the quantity of liquid fuel supplied may be accompanied by a supplementary indication. That reflects the strong advice that I received today from a colleague who visited the Library, and from my honourable friends in another place.
We could annul the regulation. The Minister did well in his response. He tried hard, but his arguments are not good enough. I wish to test the opinion of the House.
8.16 p.m.
On Question, Whether the said Motion shall be agreed to?
Their Lordships divided: Contents, 76; Not-Contents, 115.

Division No. 3

CONTENTS

Allenby of Megiddo, V.

Burnham, L. [Teller]

Astor, V.

Buscombe, B.

Astor of Hever, L.

Byford, B.

Attlee, E.

Caithness, E.

Barber, L.

Carlisle of Bucklow, L.

Blackwell, L.

Colwyn, L.

Blaker, L.

Cope of Berkeley, L.

Blatch, B.

Cumberlege, B.

Boardman, L.

Dean of Harptree, L.

Brabazon of Tara, L.

Dixon-Smith, L.

Brougham and Vaux, L.

Elliott of Morpeth, L.

1369

Elton, L.

Montrose, D.

Ferrers, E.

Noakes, B.

Fookes, B.

Northbrook, L.

Glenarthur, L.

Northesk, E.

Glentoran, L.

Norton of Louth, L.

Greenway, L.

O'Cathain, B.

Hanham, B.

Onslow, E.

Harris of Peckham, L.

Palmer, L.

Hayhoe, L.

Park of Monmouth, B.

Henley, L. [Teller]

Peyton of Yeovil, L.

Hodgson of Astley Abbotts, L.

Rawlings, B.

Hooper, B.

Renton, L.

Howe, E.

Rotherwick, L.

Islwyn, L.

Seccombe, B.

Jenkin of Roding, L.

Sharples, B.

Jopling, L.

Shore of Stepney, L.

Kelvedon, L.

Slim, V.

Lamont of Lerwick, L.

Stodart of Leaston, L.

Lindsay, E.

Stoddart of Swindon, L.

Lucas, L.

Strathclyde, L.

Luke, L.

Thomas of Gwydir, L.

Lyell, L.

Vinson, L.

Mancroft, L.

Vivian, L.

Mayhew of Twysden, L.

Waddington, L.

Miller of Hendon, B.

Wade of Chorlton, L.

Monro of Langholm, L.

Willoughby de Broke, L.

Monson, L.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Graham of Edmonton, L.

Addington, L.

Greengross, B.

Alderdice, L.

Grenfell, L.

Alli, L.

Hamwee, B.

Amos, B.

Hardy of Wath, L.

Andrews. B.

Harris of Haringey, L.

Archer of Sandwell, L.

Harris of Richmond, B.

Ashton of Upholland, B.

Harrison, L.

Bach, L.

Hayman, B.

Barker, B.

Hilton of Eggardon, B.

Bassam of Brighton, L.

Hollis of Heigham, B.

Bernstein of Craigweil, L.

Howells of St Davids, B.

Borrie, L.

Howie of Troon, L.

Bragg, L.

Hoyle, L.

Brooke of Alverthorpe, L.

Hughes of Woodside, L.

Brookman, L.

Hunt of Chesterton, L.

Brooks of Tremorfa, L.

Hunt of Kings Heath, L.

Burlison, L.

Jeger, B.

Carter, L. [Teller]

Kennedy of The Shaws, B.

Clarke of Hampstead, L.

King of West Bromwich, L.

Clement-Jones, L.

Lea of Crondall, L.

Clinton-Davis, L.

Lipsey, L.

Cocks of Hartcliffe, L.

Lockwood, B.

Cohen of Pimlico, B.

Lofthouse of Pontefract, L.

Currie of Marylebone, L.

Macdonald of Tradeston, L.

Darcy de Knayth, B.

MacKenzie of Culkein, L.

David, B.

Mackenzie of Framwellgate, L.

Davies of Coity, L.

McNally, L.

Davies of Oldham, L.

Mar and Kellie, E.

Dixon, L.

Masham of Ilton, B.

Dubs, L.

Massey of Darwen, B.

Evans of Parkside, L.

Mitchell, L.

Evans of Temple Guiting, L.

Northover, B.

Evans of Watford, L.

Parekh, L.

Ezra, L.

Peston, L.

Falconer of Thoroton, L.

Ramsay of Cartvale, B. [Teller]

Farrington of Ribbleton, B.

Rea, L.

Faulkner of Worcester, L.

Redesdale, L.

Filkin, L.

Rendell of Babergh, B.

Fyfe of Fairfield, L.

Rennard, L.

Gale, B.

Renwick of Clifton, L.

Gibson of Market Rasen, B.

Richard, L.

Gilbert, L.

Rodgers of Quarry Bank, L.

Gladwin of Clee, L.

Rogers of Riverside, L.

Goldsmith, L.

Roper, L.

Gould of Potternewton, B.

Sainsbury of Turville, L.

1370

Sawyer, L.

Tordoff, L.

Scotland of Asthal, B.

Turnberg, L.

Sharman, L.

Turner of Camden, B.

Shutt of Greetland, L.

Wallace of Saltaire, L.

Simon, V.

Warner, L.

Taverne, L.

Warwick of Undercliffe, B.

Taylor of Blackburn, L.

Watson of Richmond, L.

Thomas of Gresford, L.

Whitty, L.

Thomas of Walliswood, B.

Wigoder, L.

Thornton, B.

Wilkins, B.

Tomlinson, L.

Williams of Mostyn, L.

Woolmer of Leeds, L.

Resolved in the negative, and Motion disagreed to accordingly.

Vehicles (Crime) Bill
8.26 p.m.
Report received.
Clause 21 [Cancellation of registration by the Secretary of State]:
Viscount Astor Viscount Astor moved Amendment No. 1:
Page 12, line 20, leave out "28" and insert "90"
The noble Viscount said: My Lords, the noble Lord, Lord Whitty, was kind enough to point out in a letter to some of us who spoke in Committee that the cancellation of registration after 28 days is a power, not a duty and whether it is exercised in any particular case will depend on the authority's assessment of a person's business status, taking account of all available evidence, including, for example, VAT.
I realise that the Minister was trying to be helpful and I am grateful to him for writing that letter, but we still feel, for various reasons, that 28 days is not long enough. First, although he says that it is a power and not a duty, we know that if the legislation says 28 days, local authorities will always go for that period. They will not consider whether the period should be longer or shorter, so 28 days will become the norm. The idea that it will not is a misunderstanding.
The Minister said that guidance would be issued that would take full account of the points made during the passage of the Bill. That may be so, but if we are to rely on guidance it would be better not to specify a short period in the Bill and to allow the number of days to be set out in guidance so that the Government could change it if they found that it was not working because the period was either too short or too long. That would be more sensible. The guidance cannot specify, because the Bill already does so. The guidance cannot contradict the Bill.
Various organisations have expressed concern, particularly some of the smaller organisations whose members have seasonal operations. The caravan industry, for example, is a seasonal business. Someone could easily be claimed to be not operating for 28 days at certain times of year. Such organisations favour a longer period. The Government will have to issue guidance. Extending the period to 90 days would give them the flexibility to set out that that was the maximum period and that local authorities should

1371
seek to act within a shorter period if that was right. However, we feel that the 28-day period suggested by the Government is too short.
I am sure that the noble Lord will point out that in another place the Official Opposition put forward a different view in relation to the number of days from the one that I suggest in the amendment. However, that proves that we are a flexible and thinking Opposition and indicates that we have been able to examine the matter in greater detail. I know that the two Ministers who are dealing with the Bill are also flexible and that they take account of the views expressed. We all learn more about the industry as the Bill proceeds through Parliament.
Therefore, I hope that the Government will consider the matter carefully. My amendment is meant to be helpful and is intended to elicit a positive response from the Government. It is not in any way intended as an attack on any of the principles of the Bill. I believe that it will make it easier for the Government to issue guidance on the matter. On that basis, I commend the amendment to the House. I beg to move.
Lord McNally: My Lords, as Ministers will be aware, in Committee my noble friend Lady Scott expressed broad sympathy for the thinking behind the amendment. We still believe that 28 days is too short a time and that it will bear down most unfairly on the small operator. However, in case the Opposition feel lucky and believe that they can lure us into their Lobby, perhaps I may make it clear that we would not join them in the Lobby if they divided on this issue. But we share their concerns and hope that the Government show some of the flexibility that has been urged on them.
Lord Brougham and Vaux: My Lords, my noble friend on the Front Bench talked about the passage of the Bill in another place. I believe that your Lordships' House has given the Bill very good scrutiny. Although we have not persuaded the Government to accept any amendments, I believe that people outside will be much clearer as to what the Government intend to achieve through the Bill.
I turn to the last paragraph of the Minister's letter to the noble Baroness, Lady Scott. I take it that the noble Lord is saying that, although the Bill cannot be amended in this House because the Government fear that they will lose the legislation if, as everyone believes, a general election is forthcoming, amendments will be made in regulations. If that is the case, that will probably be a good idea. I look forward to the Minister's response.
Lord Whitty: My Lords, I could not possibly comment on some aspects of the recent remarks of the noble Lord, Lord Brougham. I believed that the letter which I sent to several noble Lords who took part in the earlier debate set out the situation and explained how flexible we already were. I shall have another attempt at doing so and shall perhaps focus a little more on the procedures.
1372
The provision for the cancellation of registrations is not intended as a punitive measure but as an informational one so that the register is kept up to date and does not include businesses which no longer operate as number plate suppliers. Before cancelling a registration, the registration authority must serve notice on the person concerned and must give him the opportunity to make representations. Following that, he has at least 14 days in which to respond to the notice. That should guard against cancellations based on misinformation.
As an additional safeguard, if the registration authority decides to proceed with a cancellation, the supplier may still appeal to the magistrates' court within 21 days. That means that in total, through the process built into the Bill, at least 63 days will have elapsed from the day when, according to the judgment of the authorities, the person ceased to trade, say "at least" because the 63 days does not take account of delays in administration and decision-making time between each stage. In practice, the time taken is likely to be much longer than 63 days.
If a supplier avails himself of the extensive safeguards in the Bill, there will be plenty of opportunity to make clear to the registration authority that the authority is wrong and that he is still trading as a number plate supplier. In most cases, the registration authority will be told by someone else that the business is not continuing. We shall not require a constant check on every business. Of course, a duty rests on the suppliers because they are required to give such notice under Clause 26.
The noble Lord asked why the notice period should be specified in the Bill. He asked why it cannot be provided for through guidance or, as the noble Lord. Lord Brougham, said, through regulations. The period of 28 days was not plucked out of the air. It follows the precedent of the Scrap Metal Dealers Act 1964. I do not believe that in practice the application of a 28-day period to that industry has given rise to difficulties.
Therefore, the 28-day period is consistent with the period within which registered persons are required to notify the registration authority that they are not carrying on a business. That is an important link because it would be slightly peculiar if the authorities had to wait for 90 days before acting on information that the supplier was required to provide within 28 days. Of course, as we debated earlier, the 28-day period also applies to the cancellation of registration as a motor salvage operator.
I believe that some of the misgivings about this provision are misplaced. A business that continues to offer number plates for sale is carrying on the business even if no one buys the plates. Therefore, it is not as though a seasonal trader in, for example, caravan number plates would be deemed to have ceased to trade simply because he had not sold any plates between November and Easter. There is no question of putting people out of business simply because they have not been successful in selling their number plates.

1373
Likewise, the temporary closure of a business for a holiday or because of a seasonal fluctuation in trade, or some other reason, does not constitute a break in the activities of the business. The business of a number plate seller continues in existence until a decision is made to stop selling number plates as part of that business. At that point, there is a requirement on the supplier to notify the authorities, and he has 28 days in which to do so.
Therefore, this process is more subtle and sophisticated than is implied by the suggestion that the 28-day period will lead immediately to a cut-off point and that it is an arbitrary figure with no bearing on anything else. I hope that that is understood within the industry, and I hope that the guidance that we issue will spell out how the provision will operate. I do not believe that there is a case for deleting the 28-day period from the face of the Bill. However, there is a case for explaining the matter more clearly when we come to implement this part of the Bill.
Viscount Astor: My Lords, the Minister has been helpful. He has gone further than he did in his letter in explaining the point in relation to seasonal operators and the fact that, even if they do not sell goods, they are considered still to be trading. I believe that that is helpful. The noble Lord has gone a long way towards satisfying my concerns. I shall obviously study carefully what he said. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Astor Viscount Astor moved Amendment No. 2:
After Clause 25, insert the following new clause—
"OFFENCES RELATING TO SALE OF REGISTRATION PLATES
(1) A registered supplier who supplies a registration plate to another person when he knows or reasonably suspects that it will be used for an unlawful purpose shall be guilty of an offence.
(2) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 5 of the standard scale."
The noble Viscount said: My Lords, Amendment No. 2 follows an amendment moved by my noble friend Lord Brougham and Vaux in Committee. On that occasion, I believe that the Minister tried to give a helpful answer. However, we find ourselves somewhat confused by the Bill in relation to the offences. The noble Lord, Lord Whitty, said:
"Although we require a new offence in relation to the supplier, it is not necessary to create a new offence in relation to the purchaser. While I understand the intention behind the amendment, I do not accept that it is necessary".—[Official Report, 6/3/01; col. 151.]
I have studied the Bill with as much care as I can muster, but I admit that I am not a lawyer. It seems to me that the Minister has acknowledged a need for a new offence relating to the supplier. I cannot find in the Bill any provision for such an offence. That is why I have tabled Amendment No. 2. I beg to move.
Lord Brougham and Vaux: My Lords, as my noble friend has said, we discussed this matter fully in
1374
Committee. I should briefly like to say that, having considered all the responses made in Committee, we do not believe that the Bill as currently drafted makes provision for this offence. I shall be interested to hear what the Minister has to say about that.
Lord Whitty: My Lords, the Bill deals with the question of who can supply number plates and on what terms. To go beyond those terms would clearly constitute an offence under the provisions of Clause 25(1) of the Bill. The Bill would require the supplier to carry out checks to ensure that the purchaser is entitled to the plates that he asks for. The question of deciding whether the plates would be used for illegal purposes would not then arise. If the requisite checks are made with due diligence, the plates would be sold only to a genuine purchaser.
If this amendment is passed, it will place an unreasonable burden on suppliers by forcing them to make a subjective judgment about whether plates may be used for an unlawful purpose. If, in checking the credentials of the purchaser, due diligence was established, it would be difficult to place a further burden on the supplier to establish that he was supplying somebody who was deceiving him.
The existing criminal sanctions already allow for the prosecution of persons who obtain plates by deception. Section 1 of the Forgery and Counterfeiting Act makes it an offence to issue a false instrument. That would cover any attempt to pass off as genuine a false document in order to deceive a supplier of number plates. There are also specific offences of forging driving licences with intent to deceive and forging vehicle registration documents. Therefore, offences already exist which deal with a purchaser practising a deception in such a way that leads to him being legally supplied with number plates by a supplier, without an offence being committed by the supplier. This amendment attempts to create a new offence relating to the purchaser, and that is covered by existing legislation. I hope thatߞ
Viscount Astor: My Lords, before the Minister proceeds, perhaps I may ask a question which I hope will be helpful. The Minister said that my amendment would impose a burden because it would mean that a supplier would have to make a judgment. My amendment states,
"when he knows or reasonably suspects".
If he does not know or does not reasonably suspect, he does not need to make any difficult judgments. Does the Minister accept that? I believe that that is the case. What he said implies that a supplier would have to guess, and that is certainly not the case; nor is it part of the amendment.
Lord Whitty: My Lords, a supplier would clearly have to check the documentation. If apparently genuine documentation is provided, it would be unreasonable to expect a supplier to make further additional checks in relation to whether those documents were in order, whether they related to the vehicle to which they purported to relate, and whether

1375
the individual possessed the personal driving documents to establish that he was the keeper of the vehicle. But if those documents were forged, or if a person claimed a different identity—in other words, if they were not forged documents but stolen documents—there should be no duty on the supplier to establish that. One would not expect that. But a criminal act would already have been committed by that purchaser either forging documents or representing himself to be another person. Either way, the offence by the purchaser is covered by long-standing law.
8.45 p.m.
Viscount Astor: My Lords, the Minister has put forward an interesting argument. However, it does not address the bones of this amendment. The Minister has talked about the purchaser. This amendment has nothing to do with the purchaser; it concerns the supplier. The Minister has referred to forged documents. This amendment is quite simple. It does not suggest that the supplier should make a huge number of background checks on anybody. The Minister has used an argument against it which does not relate to the amendment. The amendment is quite simple. It states:
"when he knows or reasonably suspects that it will be used for an unlawful purpose".
If he does not know and does not reasonably suspect, there will be no offence. The Minister does not appear to accept that. If the Minister wants to intervene and agree that that is the case—some form of divine intervention may reach him to help to settle this debate—or if he would like to clarify any point before I decide what to do with this amendment, I shall, of course, be grateful for any assistance.
Lord Whitty: My Lords, I shall have to repeat the point that I am making. There is provision under Clause 25(1) for the supplier to obtain proof that a prospective purchaser is entitled to receive plates. What does the noble Viscount's amendment mean over and above the requirement that he "knows or reasonably suspects"? What requirement does that put on the supplier over and above that which already exists in Clause 25(1)? If it does not require the supplier to do what I suggest—that is, to go behind the documents and make further inquiries to establish evidence one way or another that a purchaser is entitled or not entitled to present those documents, and therefore is an unreasonable burden on the supplier—what other additional requirement does his amendment mean? We believe that what he has just said is covered by Clause 25(1) in any event, or will be covered by the regulations to be made under Clause 25(1).
Viscount Astor: My Lords, the Minister has moved on. When he began his reply, he said that its provisions were covered by Clause 25(1). They are not presently covered by Clause 25(1). That refers to,
"information of a prescribed description from their prospective purchasers before the completion of a sale".
1376
But the first line states that the Secretary of State "may by regulations provide" that. If the Minister is suggesting that the regulations will cover the instances that this amendment addresses, that is a different matter altogether.
I recognise that the Minister has, as ever, tried to be helpful. However, his initial arguments on this amendment did not help the process very much. He has moved a little. I hope that he now understands more clearly our thinking behind these amendments. I am not satisfied with the Government's answer, but it is an area that we might be able to consider between now and the next stage of the Bill. I hope that the Minister too will study Hansard and consider what has been said. I think that the intention is the same. It is a matter of how we reach agreement. It is quite clear to me that as drafted Clause 25(1) does not cover the offences that are dealt with by my Amendment No. 2.
The noble Lord said that he will bring forward regulations but he has not been clear what those regulations will be and how they will work. We shall certainly give him the opportunity to do that at Third Reading. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 33 [Issue of new registration documents, vehicle identity checks etc.]:
Earl Attlee Earl Attlee moved Amendment No. 3:
Page 18, line 34, at end insertߞ

"( ) notification of serious damage to vehicles,"

The noble Earl said: My Lords, this amendment deals with the need to destroy the identity of a vehicle, especially when it is unlikely to be used again. That is necessary in order to avoid the cloning and ringing of stolen vehicles which, as your Lordships know, is one of the key objectives of the Bill.
In Committee, I moved Amendment No. 27. A t the time I accepted that it was not perfectly drafted and therefore the Minister was unable to give as full an answer as he would have liked. I described why it was desirable to destroy the identity of the vehicle as scion as possible, or perhaps not to destroy it but to make the identity unusable for a criminal. In order to do that, we must make sure that the DVLA is aware that a particular chassis number or a particular vehicle registration number no longer relates to a serviceable or repairable vehicle. Of course the chassis number and vehicle registration number should not be erased from the DVLA computer for obvious reasons.
The Minister said that he had some sympathy for my point and, subsequently, I received a helpful letter from him which referred to the Motor Conference code of practice regarding the destruction of a vehicle's identity. In principle, that requires the salvage operator to remove the number plate and the vehicle identification number plate—the shiny little plate that is in the engine compartment.
But the problem is that criminals are interested only in a vehicle's identity; that is, the VIN number and the registration number to which it relates. The log-book or registration document would be helpful, but at the

1377
moment, although the Minister may have plans to change this, it is possible to tax vehicles without their registration documents.
Your Lordships will recall that in Committee we agreed that only company directors of salvage companies need to be clean, if I can use that expression. Very few checks would be carried out on employees of vehicle salvage organisations. So there would certainly be no criminal record check and it would be impossible, for practical reasons, to avoid dubious characters accessing the information.
Noble Lords should not get too excited about the VIN plate being destroyed under the code of practice. It is very easy to manufacture and forge a vehicle identification plate. It is a simple photographic process. Indeed, I have my own kit for making aluminium name plates. It is for a strictly legal purpose—doing decals on controls on some sophisticated engineering equipment. I assure your Lordships that I have no intention of making an illegal VIN plate.
But I suggest that the solution to all this is for the DVLA to be informed as soon as either the vehicle is a complete write-off—that is, a burn-out—or is so severely damaged that its future is questionable. If the vehicle finds that it has a second life after extensive repairs, the Bill provides for how that vehicle can continue to be registered.
It is no use relying on the Hire Purchase Investigations database because, as we discussed in Committee and on Second Reading, not all write-offs are recorded. That occurs especially if the vehicle comes to grief when it is only covered by third party insurance or, indeed, no insurance at all.
If the Minister accepts my amendment, he will be able to use his powers under new Section 22A of the Vehicle Excise and Registration Act 1994 to avoid the possibility of a cloned vehicle being taxed and, therefore, used apparently legally on the road, because the DVLA will have put a flag against that particular vehicle registration number, indicating that there is something questionable about that vehicle.
Without my amendment, the Bill will be weak, unless one looks at the operation of the vehicle salvage industry through rose-tinted spectacles. I beg to move.
Lord Brougham and Vaux: My Lords, I have my name to this amendment. When the noble Lord, Lord Bassam, replied in Committee to a similar amendment, he said that he speculated that the matter was best dealt with in other ways but that he would think further about it. I wonder whether he has thought further. I look forward to his response.
Unfortunately, I shall not be here next week for Third Reading. However, I thank my noble friends on the Front Bench and Ministers on the Government Front Bench for all the work they have done on the Bill. It is not quite right but I think we shall get there. In the long run, it will achieve what the Government,
1378
my noble friends, the European Secure Vehicle Alliance and I want. I look forward to the publication of the regulations, which we shall study with care.
The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, I am grateful to noble Lords opposite for raising this issue again. My understanding of the amendment suggests that it allows for the making of regulations to notify a person presenting a vehicle for an identity check of serious damage to the vehicle. That would effectively involve making a very thorough inspection of a vehicle over and above simply checking its identity. We did not include such a provision because we did not consider that it would be justified to do so. In particular, there is no evidence to show that accident repair vehicles are a particular threat to road safety.
Lord Brougham and Vaux: My Lords, did I hear the Minister say that accident repair vehicles have no effect on road safety? It is well proven that two parts of a vehicle welded together have a tremendous effect on road safety.
Lord Bassam of Brighton: My Lords, I accept that particular point, which is rather different from the point that I was making. I entirely accept the noble Lord's point. Of course that is the case.
The noble Earl, Lord Attlee, said that there is a need to destroy a vehicle's identity when it is taken to a salvage yard if it is to be destroyed. That need is addressed by the Motor Conference code of practice for the disposal of motor vehicle salvage. That requires scrap dealers to remove number plates and vehicle identity number plates from vehicles at the time of scrapping. In addition, a scrap dealer is required to supply the DVLA with a notification of destruction when vehicles are destroyed, thereby providing an audit trail for each destroyed vehicle.
However, if a vehicle is taken to a salvage yard in a repairable condition, then it is necessary to keep the identity of the vehicle until and unless it is destroyed. If the vehicle is repaired, it will be subject to a vehicle identity check under Clause 33 before it is allowed back on the road to ensure that it is the vehicle it is purported to be. There is nothing in the Bill which relates specifically to when the identity of a vehicle should be eliminated.
We take the view that that does not necessarily result in a loophole for criminals to exploit. The Bill contains two measures which will reduce the criminal demand for stolen vehicle identities. First, under the provisions of the Bill, salvage dealers will need to be licensed and keep records. Secondly, as I have already indicated, written-off vehicles will need to have their identity corroborated before returning to the road after repair.
We believe that these two measures make the idea of controlling the date of destruction of a vehicle's identity unnecessarily burdensome on the industry and over-regulatory. That is an argument that I know noble Lords opposite have been particularly keen to follow and with which, in broad measure, they have agreed. For those reasons we do not believe that this

1379
amendment, well-intentioned as it is, is entirely necessary. I hope that the noble Earl will agree to withdraw it.
On a final legal point on the amendment, the noble Earl agreed that his previous effort in drafting this amendment was not technically correct and this one is also technically defective. It would empower the Secretary of State to notify but would not empower him to carry out the kind of thorough inspection that would be necessary in order to decide whether or not to give such a notification. I do not believe that the amendment achieves what the noble Earl seeks.
Earl Attlee: My Lords, I am grateful to the Minister for his response. At this time in the parliamentary calendar I understand his reluctance to accept any form of amendment. Does the Minister agree that it is easy to forge the VIN plate? Although the code of practice, to which he referred, mentions destruction of the VIN plate, does he agree that it is easy to forge, especially when one considers how much money can be made by cloning or ringing a vehicle? We are talking of thousands and thousands of pounds and it may cost only £100 to forge a VIN plate.
The Minister referred to the need for thorough inspection. Surely, the regulations to be made by the Secretary of State will state how thorough the inspection will need to be. It should be fairly obvious whether a vehicle is seriously damaged or whether the damage to a vehicle as a result of an accident is cosmetic. When a vehicle ends up in a vehicle salvage dealer's yard it has probably had some serious damage inflicted, otherwise the original owner of the vehicle would have had it repaired and would not dispose of it.
The Minister referred to notification of destruction of the vehicle. At what point does the Minister consider that the DVLA would be notified that the vehicle has been destroyed in the salvage yard? Perhaps the Minister could answer those points before I decide what to do with the amendment.
Lord Bassam of Brighton: My Lords, as to the noble Earl's first point, it is clear that, for whatever reason, he knows far more of such matters than I do. However, I do not agree with him entirely because, if I were to, it would suggest that measures currently in place and those that we anticipate putting in place would be wholly ineffective. I do not think that the noble Earl believes that to be the case.
Earl Attlee: My Lords, I do.
Lord Bassam of Brighton: My Lords, in that case, I venture to disagree with him firmly. I accept that it can happen, but I do not believe that it is something that happens regularly; nor do I believe with regard to the proposed legislation that that is likely to happen often. I accept that it is an issue, but this is not necessarily the best way to deal with it—a point on which the noble Earl may want to reflect. In any event, I believe that the amendment is technically deficient.
1380
In answer to the second point raised by the noble Earl on when to notify the DVLA, we can certainly address the issue in guidance. I do not see why there should be any cause for delay in that matter at all. It is an issue that we can deal with fairly immediately. While I understand the sincerity and the well-meaning nature of the amendment, I do not believe that it achieves what the noble Earl seeks. As we can cover the DVLA issue in guidance, I urge the noble Earl to withdraw his amendment and to reflect on those points.
Earl Attlee: My Lords, it must be comforting for the Minister to know that he is confronted with a defective amendment. I am grateful to the Minister for his reply.
Lord Bassam of Brighton: My Lords, I am even more comfortable when I know that there is a defective argument behind an amendment.
Earl Attlee: My Lords, it also makes me comfortable to know that the Minister's argument is defective. I am concerned that it is extremely easy to forge a VIN plate. Although the Bill has desirable objectives, I fear that a number of loopholes are left in relation to the way in which the Bill will operate. I suspect that it will not work as well as the Minister would like. Unfortunately, in view of the way things are, we shall not be able to improve it as much as your Lordships would like. I am not happy with the Minister's reply and I intend to return to the matter at a later stage with considerable vigour. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

Health and Social Care Bill
9.6 p.m.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Hunt of Kings Heath.)
Earl Howe: My Lords, with some reluctance I intervene at this point to express our considerable dismay and disquiet at the fact that we are commencing today's Committee proceedings at this late hour. Yesterday when the Government offered us additional time in Committee for this evening, that offer was presented on the basis that we would be able to begin our proceedings at around 6 p.m. Although that would have been late in the day, nevertheless, it would have been acceptable to us because it would have given us up to five hours of debating time.
It is now after five past nine. In normal circumstances we would have told the Government to abandon any idea of beginning Committee proceedings so late. The only reason why we have not adopted that course is because it suits us to make some

1381
headway with the Committee proceedings, bearing in mind that a number of noble Lords have attended especially for this Bill. This is in no way to be regarded as a precedent.
This is a major Bill. It has 75 clauses over 91 pages. By the time we complete the Committee stage we shall not have had more than two-and-a-half days to debate in excess of 330 amendments. That is a ridiculously short time. Members of the Committee may recall that the Social Security Fraud Bill contained 22 clauses over 22 pages, which is one quarter of the length of the present Bill. Although it was relatively uncontroversial, it was nevertheless given two-and-a-half full days in Committee. We are led to believe that we shall not be allocated any more time for this Bill. That is highly regrettable and does no service to an extremely important measure.
Lord Clement-Jones: My Lords, I do not want to delay the proceedings and was not given notice of what the noble Earl, Lord Howe, wanted to say. However, I agree with him in many respects. My personal estimate, which was not rocket science, was that four days in Committee were required to deal with the number of amendments tabled. I communicated that to the Government Front Bench. That is proving to be the case.
It is not helpful to be proved right, but we are being short changed on the Bill. We shall try to co-operate as much as possible during the time available to us, but a lack of planning has been demonstrated. If a little more time had been made available, we could have sorted things out more effectively.
Lord Carter: My Lords, I am responsible for the procedure and the programme and must take full responsibility. If I were the health spokesman in Opposition, and if I had been sitting where the noble Earl is sitting now, I would have made exactly the same point.
However, he will remember that he agreed the Bill could be completed in Committee in three days. We are hoping to achieve that. Today's programme has included the Third Reading of the International Criminal Court Bill. A succession of amendments, which were major items of policy, were tabled by the Opposition at that stage and therefore the debate took much longer than expected. We then had what I can only call a remarkable debate on the order dealing with metrication measures. Again, that took much longer than expected.
Last night I suggested to the usual channels that I hoped to begin the Bill at about six o'clock—a little later if, as we thought there might be, there was a statement on the foot and mouth epidemic. However, the House regulates itself and self regulation requires all Members of the House to regulate themselves.
I am in the hands of the House. I believe that we should now make some progress. I understand the position that noble Lords take and believe that we all want the Bill to receive proper consideration. We have
1382
Thursday to deal with it and I know how our Lordships feel about sitting late on Thursday. When I make arrangements I do so in entirely good faith—I am sure that the noble Earl accepts that—but today is the kind of day when self regulation does not quite work.
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Lyell) in the Chair.]
Clause 15 [Annual reports]:
Lord Astor of Hever Lord Astor of Hever moved Amendment No. 108:
Page 12, line 2, after "established," insert "the overview and scrutiny committee, the Patients' Council, the Independent Local Advisory Forum, the Health Authority,"
The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 109A. Clause 15 requires patients' forums to prepare and publish a report of their activities on an annual basis.
Lord Hunt of Kings Heath: I am sorry to interrupt the noble Lord, but does he mean Amendments Nos. 109 and 110?
Lord Astor of Hever: I am speaking to Amendments Nos. 108 and 109A. Clause 15 requires patients' forums to prepare and publish a report of their activities on an annual basis. These reports shall include details of how the forums have sought to obtain the views of patients. That is an important requirement of patients' councils if forums are to fulfil their duty as intermediaries and advisers in the health service in their areas.
For that reason, we believe that the reports should be circulated more widely than is proposed in Clause 15(1)(b). Amendment No. 108 ensures that the annual report is sent to each overview and scrutiny committee established within its area, to the patients' forum, the independent local advisory forum and the health authority. As the Bill is currently drafted, a copy of the report will be sent only to the relevant trust and to the Secretary of State. The bodies which our amendment seeks to include will be important partners in overseeing and maintaining a high standard of health and social care for residents and patients. If they are to play a key role in taking a strategic view of patient services and provision, they will need to be aware of all the relevant data which enable them to carry out their tasks more effectively.
I turn to Amendment No. 109A, which is slightly different. The patients' forums as proposed under the Bill will take over one of the most vital parts of the role now carried out by CHCs. CHCs have statutory powers of inspection in relation to hospitals, NHS premises and premises where NHS care takes place. Under present arrangements CHCs report their findings to health authorities and trusts, and that is a vital two-way process. This amendment places a duty on patients' forums to prepare a report of any matters that arise from the inspection of premises within 60 days of the visit. It is proposed that that report will be sent to the relevant trust's overview and scrutiny

1383
committee, independent local advisory forums and the relevant health authorities. Those bodies will again have a duty to respond.
Where the patients' forum is not satisfied with the response from any of the listed bodies, it has the power to refer the matter to the Secretary of State. That is an important safeguard for patients which we believe will lead to a quicker response to patients' concerns. Without sanctions and a public airing of concerns, health service providers may be slow to remedy unsatisfactory situations, or be unable to remedy situations without national input.
Although we do not support the abolition of CHCs, we believe that, if there are to be new bodies to take over their functions, they should have all the tools at their disposal to ensure that patients' views are aired and remedied and maintain a link with all partners in the provision of healthcare. I beg to move.
9.15 p.m.
Lord Clement-Jones: I rise to speak to Amendment No. 110. I hope that the Minister understands from the wording that this is a probing amendment which is designed to elicit assurances from the Government about the independence of patients' forums from trusts. Clearly, this is one of the issues that run throughout the provisions relating to the forum and the council. This amendment seeks to make sure that the annual report of the patients' forum makes transparent whether such influence has taken place.
Lord Hunt of Kings Heath: I apologise to the noble Lord, Lord Astor, for confusing Amendments Nos. 109 and 109A. The noble Lord was absolutely right.
I turn first to Amendment No. 108. Clause 16(2)(1) already states that regulations may be made in respect of the preparation and publication of reports by patients' forums. For that reason, we do not believe that it is necessary to include this provision within the body of Clause 15; nor do we believe it is necessary to specify the organisations to which the forum should send its report. This is very much a matter for the forum itself. The forum will send its report automatically to the Secretary of State and the trust. It need not be limited to that, and I am sure that it would not be so limited in practice.
Amendments Nos. 109 and 109A both refer to patients' councils, but those bodies will not be responsible for making visits or inspections of premises. That is the function of patients' forums which will work at trust level. Patients' councils will be made up of members of patients' forums in that area and will make reports to health authorities, local authorities and the Secretary of State for a response, if necessary. I understand that there may be an intention here that patients' councils should act as co-ordinating bodies which might prepare reports on their member forums' inspections. But we must avoid duplication of effort in relation to the particular focus of patients' forums in undertaking visits. Patients' councils will wish to keep an overview of the activity carried out by
1384
forums in their areas. There is nothing in the Bill to prevent a council referring matters to the Secretary of State.
Forums already have the duty to make reports and recommendations to the trust on the operation of its services and patients' views of those services. To ensure that their views are effective they will appoint a non-executive director to the trust board or a member of the primary care trust. They must also produce annual reports which detail their activities as specified in Clause 15. These arrangements make forums independent of the trust and ensure the transparency of their relationship, while ensuring that the bodies maintain a constructive working relationship. In a sense, that is my answer to the noble Lord, Lord Clement-Jones, in relation to Amendment No. 110. The link between forum and the trust is central to our proposals.
These proposals are not intended to engender adversarial relationships. Patients are the most important part of the health service, and it is intended that patients' forums work in concert with their trust to improve services. I repeat the points I made yesterday in Committee. The forums have the status and the tools to ensure that they have a real influence in the running of the NHS. They will be bodies secure in their independence from the trust to which they relate. It is not necessary to replace a requirement in the Bill for them to record any attempts on behalf of the trust to influence the discharge of their functions.
Again as I said yesterday in Committee, if there are specific problems in the way a trust behaves towards its forums, that would be a matter for referral to the regional office of the Department of Health which would take the appropriate action.
Baroness Masham of Ilton: May I ask the Minister a question? The noble Lord mentioned the fear of duplication. Why not have one body combining the patients' forums and the patients' councils? That would help to avoid the confusion, which I am sure will arise, in the public's mind.
Lord Hunt of Kings Heath: There are two points there. First, we have made it clear that there will be a common secretariat between the council and the forums which are covered in the area of that council. That will ensure co-ordination and a pooling of resources.
Secondly, we particularly want to put the emphasis of patients' forums as close as possible to the decision-making point where the patients are particularly affected. We believe that that is best done at the trust level where matters are decided in relation to operational services which affect the experience of patients. That is very much an improvement on the current arrangements. The common secretariat will ensure that there is no duplication of effort. It is

1385
important to re-emphasise that it is very much at the patient care level where we want these measures to make an impact.
Baroness Masham of Ilton: What happens if there is conflict between the forums and the councils? Who sorts it out?
Lord Hunt of Kings Heath: A council is made up of representatives of the forums. The individual forums will be responsible to each trust for their own actions. If the forum representatives on a council come together, just like any other group or organisation, they will have to work out a way of working which embraces as common a view as possible. Clearly, there may be disagreements. I do not think that we should particularly worry about that matter.
Lord Astor of Hever: I am grateful to the Minister for that answer and clarification. Although we are slightly disappointed with his response to both amendments, I was happy that the noble Lord on two or three occasions said that patients are the most important part of the NHS. We shall consider his response to both amendments. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 109 to 110 not moved.]
Clause 15 agreed to.
Clause 16 [Supplementary]:
[Amendments Nos. 111 and 112 not moved.]
Earl Howe Earl Howe moved Amendment No. 113:
Page 12, line 10, leave out "may" and insert "shall"
The noble Earl said: In moving Amendment No. 113, I should like to speak also to Amendments Nos. 115, 116, 118 and 120. Clause 16 deals with the regulations pertaining to patients' forums and patients' councils. Currently, much of the work of CHCs is governed by regulations. It is important that regulations set out exactly what will be expected of patients' forums and patients' councils and how they will operate. The impact of the work of patients' forums will extend far beyond the boundaries of the trust for which they are established. It is therefore essential that the patients' forums and councils are properly informed, with information being supplied not just by the relevant local trust but also by health authorities and OSCs. Just as CHCs have a statutory right to receive information from health authorities, so the same should apply to the new bodies. That is the purpose of Amendment No. 115.
It was inevitable that we would encounter at least a handfull of amendments proposing the substitution of "shall" for "may". We have had one or two already. Amendment No. 113 does so because in this instance I simply do not understand why there should be any uncertainty about the issuing of regulations in Clause 16. Assuming that the Bill passes into law, we need be
1386
in no doubt that the regulations will be essential. That seems to be borne out by the wording of subsection (4), which begins by stating:
"The regulations must secure".
I am not clear why there should be a permissive power at the beginning of the clause and then a mandatory duty below that.
Amendment No. 120 tries to set out on a probing basis an outline of the membership of patients' forums. Its purpose is to ensure that the membership is balanced, inclusive and representative. There will doubtless be many interest groups that will claim to be representative of an area. But, to me, the key groups are patients, carers and relevant voluntary organisations. It is no use trying to lay down precise numbers for each category of representative, but it helps to set an upper limit to allow for flexibility and to ensure that no single category of member dominates the forum.
The purpose of Amendment No. 116 is to ensure that the comments made by OSCs, as well as by trusts and health authorities, on reports or recommendations by patients' forums and patients' councils are published. I see that as important in the interests of transparency and also to ensure that OSCs make the most of their role. I beg to move.
Lord Clement-Jones: I wish to speak to Amendments Nos. 119 and 120. Amendment No. 119 would add further provisions for which the Secretary of State may make regulations. In a sense, the amendment is designed to elicit from the Minister answers as to how he sees the patients' forums and patients' councils being funded, how the whole issue of travel and other allowances to members of the patients' forums and patients' councils will be met, and also the provision of information to patients' forums and patients' councils and how that will be organised. There seems to be a gap in the current clause.
The noble Earl, Lord Howe, touched on the issue of representation, which is covered by Amendment No. 120. In our view, the current provisions of the clause are rather sketchy. The noble Earl used the words "representative", "balanced" and "inclusive". I very much agree with that form of words. A scheme such as that included in Amendment No. 120 would meet that description. I do not believe that the concentration on individuals provided in subsection (4) of Clause 16 is adequate in that respect. I look forward to hearing what the Minister says in that regard.
Lord Rea: Perhaps I may add a few words at this point. Clause 16(4) states that regulations must secure that the members of a patients' forum include at least one member of a voluntary organisation and at least one patient. If that is interpreted precisely, it could lead to a very unrepresentative membership, including perhaps just one patient or one member of a voluntary group.
In the NHS Plan the intention is set down that there should be 50 per cent of each of the groups. But the regulations do not actually require that. Amendment

1387
No. 20 seeks to rectify that. As well as rectifying that possible outcome, it also includes the requirement to have a sizeable group of carers, who might otherwise be unrepresented and who would provide valuable insights.
Baroness Masham of Ilton: I should like to support what has been said by the noble Lord, Lord Rea. I hope that the Minister will take serious account of his words.
9.30 p.m.
Lord Hunt of Kings Heath: Clause 16 provides for further regulation-making powers to define the detailed provisions relating to patients' forums and patients' councils. The amendments in this group seek to add requirements to the list of issues about which the Secretary of State can make regulations. However, I believe that some of the amendments deal with issues already covered by the Bill as drafted. The regulation-making powers in Clause 16(2) already apply to both patients' forums and patients' councils, making Amendment No. 119 unnecessary, as subsection (2) covers funding, expenses and the provision of information.
Similarly, the same remarks can be applied to Amendment No. 117. Clause 12(2)(f) allows additional functions to be given to patients' forums, while Clause 13(3)(d) serves the same purpose for patients' councils. Taken together with the general power to make supplementary regulations in Clause 16(2), the powers are already available to ensure that we can equip patients' forums and patients' councils to carry out their functions.
Lord Clement-Jones: Perhaps I may interrupt the Minister for a moment. He said that this was already covered in the clause. Can he elucidate that for me? As I read it, Amendment No. 119 covers both patients' forums and patients' councils, whereas the paragraphs under subsection (2) in Clause 16 cover only forums.
Lord Hunt of Kings Heath: I believe that it states that:
"(1) The Secretary of State may by regulations make further provision in relation to Patients' Forums and Patients' Councils.
(2) The regulations may in particular make provision as to".
Subsection (3) then states that:
"Subsection (2) applies in relation to a Council as it applies in relation to its member Forums".
I hope that that makes it clear to the noble Lord.
Perhaps I may turn to the issues raised in regard to overview and scrutiny committees. We are anxious not to prescribe a relationship between patients' forums and councils and the relevant overview and scrutiny committee. They have different, if complementary, roles and it is important that local co-operation should determine their relationship. That is why we have not sought to introduce a regulation-making power of the kind proposed in Amendments Nos. 115 and 116. However, we recognise the need to provide for the effective flow of information between patients'
1388
forums, patients' councils and health authorities. The noble Earl will have noticed that we have tabled government Amendment No. 114 to that effect.
Amendment No. 118 stems from the view that the local authority overview and scrutiny committee cannot be independent enough to scrutinise services provided by the local authority in partnership with the NHS. I have discussed this issue in earlier amendments and I do not accept that argument. The whole purpose of local authority overview and scrutiny committees is that they will be independent from the local authority executive. Their main role will be scrutiny of the local authority executive's decisions. I see no reason why they should not be able to provide effective scrutiny arrangements of services delivered under the Section 31 partnership arrangements.
In relation to membership issues, I do not accept the approach taken to membership in Amendment No. 120. We have made clear our policy that we want patients' forums and patients' councils to represent patients, carers and voluntary organisations representing patients. We envisage forum membership being 50 per cent patients and carers and 50 per cent voluntary organisations. But surely those are issues best left to regulations, which will allow flexibility to adapt as experience of the new system grows or enable local circumstances to be taken into account. It is very important that I should emphasise to the Committee that, whatever the proportions, we are committed to the NHS appointments commission overseeing all appointments.
Finally, I can reassure the Committee that we will lay regulations in each of the areas in Clause 16(2), so there is no need for Amendment No. 113, which would have no further effect over and above this commitment.
Lord Rea: Before the noble Lord sits down, perhaps I may ask him a question. When regulations are drawn up, is attention given to what has been said in debates in your Lordships' House and in the other place?
Lord Hunt of Kings Heath: I am happy to assure the noble Lord that we always pay attention to the debates in this House.
Earl Howe: It is very reassuring to hear that from the Minister. It makes me feel wanted. On a more serious note, I am grateful to the Minister for his full reply. I shall have to read carefully what he said because I am not entirely sure that he addressed all the points that I and the noble Lord, Lord Clement-Jones, were seeking to make. In the interests of moving on the proceedings, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 114:
Page 12, line 30, after "established" insert "or by a Health Authority"
The noble Lord said: Amendment No. 114 is a minor but important amendment. It relates to the regulations that the Secretary of State can make

1389
concerning the information that has to be provided to patient councils and patient forums. At the moment, under Clause 16, regulations can be made concerning the information to be provided to patient forums by the trust for which they are established. The amendment changes the subsection so that regulations can be made about the information both trusts and health authorities have to provide to patient forums and patient councils.
This is particularly important for patient councils because they will have a more strategic role than patient forums and, in addition to accessing information from individual trusts, they will also need to access information at health authority level. Similarly, patient forums will undoubtedly want to work together on a number of issues and may want information from a health authority when they are looking at those wider issues.
Amendments Nos. 121 and 122 are clarifying amendments. Patient forums will not be set up in Wales by this Bill. The effect of both amendments is to make clear that only trusts and primary care trusts in England will have a member of the board appointed by the patients' forum.
Amendment No. 123 is a minor drafting amendment to ensure that the words inserted by the paragraph are inserted in the right place. It ensures that the power to make regulations about the appointment of directors to trust boards in the 1990 Act is qualified by the provision that one non-executive director is to be appointed by the patients' forum. I beg to move.
Baroness Hanham: I have tabled Amendment No. 121A and this may be a convenient moment for me to speak to it.
With the amendment, I return to a matter I spoke about on Second Reading; that is, my very great concern with the proposal that a member of the patients' forum should be appointed by that forum as an executive director of the trust for which the forum exists.
My concerns relate to the difficulties that I foresee, first, with the impartiality of the patients' forum representative; and, secondly, with the appropriateness of someone who has the right of access and investigation to the trust being then a member of the trust board and required to make decisions on the corporate basis that trust non-executive members are required to do.
I had an opportunity of discussing this matter, very briefly, with the Minister shortly after Second Reading. It would be fair to say that he does not share that concern. But the corporate nature of a board is a very real aspect of it, and nothing in the Bill will change the responsibility that is placed on all non-executive directors for the corporate management of a trust. It seems to me that to have a cuckoo in the nest, someone who has a very real lobbying locus, may be difficult not only for that person but also for the trust itself.
1390
Perhaps I may raise two other concerns that I had at Second Reading. The first is that all non-executive directors are currently appointed by the regional chairman after extensive interviews and "Nolanisation". That duty and responsibility will pass to the advisory committee for the region as non-executives will still have to be cleared on that basis. I understood the Minister to say yesterday that members of the patients' forum will also be selected by the advisory committee. If that is right, it will leave the independence of the forums somewhat adrift when they come to nominate someone for a non-executive role.
My third concern relates to the question of whom the non-executive will replace. Under the present legislation, the number of board members is balanced between executives and non-executives. The present number is five, and I believe that that was done by regulation. If the patients' forum is to have an appointment, there are two possibilities: one is that it has to be yet another executive appointment in order to balance out the patients' forum appointment; the other is that that patients' forum non-executive will replace one of the existing non-executives.
I believe that I am right in saying that none of the non-executives has a specific role. We are all there to manage the trust corporately. But it is a fairly heavily loaded job, as I am sure the Minister will accept. Most non-executives do a good job. Within the board there are usually those who develop an expertise in finance, who are responsible for audits, who are dealing with patients' complaints, for example. To have to replace one of those with someone else seems inappropriate.
Not least among the aspects to be taken into account are patients' complaints, which are presently a matter for the board. Patients' complaints are one of the prime focuses of the patients' forums. Therefore, a person would be excluded from dealing with such an aspect if he or she became a member of the board.
I have rather forlornly, and probably not very expertly, tried to get round this by proposing an amendment which would enable the forum to nominate a person from the forum to the board in an advisory capacity. The position would be a great deal stronger than that of the current community health council representative. At present that representative can attend as an observer but has no right to speak unless the chairman of the board enables him or her to do so. My amendment would enable a patients' forum member to be appointed and to be there specifically to give advice to the board about all the things that the patients' forum is there to do.
I must make it clear that I have no difficulty with patients' forums. I believe that the role of protecting the patient is well placed and well meaning. But we do not want to undermine its capacity by this particular move forward. The Minister was concerned about the patient element. I find that very difficult; what on earth is an NHS trust there for if it is not to look after patients and attend to their complaints and worries? It would mean that the patient focus would be brought to the board by right, although the person would then

1391
not have the corporate responsibility of NHS non-executive directors. I can add no more to my remarks, and I look forward to the Minister's reply.
9.45 p.m.
Baroness Cumberlege: I support my noble friend Lady Hanham on this issue. I have been engaged in a good deal of work recently with nurses who are on the boards of PCTs and PCGs—mostly PCGs. One of the issues with which they are faced is that many of them have actually been voted on to the board by nurses within their area. A point for debate with every group that I meet is: what is their role? Are they there to represent the nurses who have voted them on to the board, or do they have a corporate responsibility? Alternatively, are they there in their own right?
We are carrying that dilemma further up into the NHS trusts and the PCTs. I believe that the issue needs teasing out. It is important to ascertain whether these people are representatives of the forum, delegates of the forum or whether they are there in their own right. One of the dangers when one gets into this area and says, "We must have one of those, and then we need another of these", and so on, is that one gets all sorts of people—often very good people—who are well-meaning and form a nice group but who are actually not fit for the purpose. The board is not fit for the purpose because, as my noble friend said, one does not go for the skills that are needed to run an organisation; for example, those of finance, human resources and, indeed, just understanding how a very complex, difficult organisation runs.
These trusts are much more difficult to run than many companies in the private sector because they have both different and difficult accountabilities: they are accountable to politicians; they are accountable to their local communities; and they are accountable to taxpayers. The more that we have representatives, delegates, or whatever, on these trust boards the more difficult it is for them to act effectively. It is in all our interests that they should be both efficient and effective.
Lord Hunt of Kings Heath: We are discussing an important matter. I am grateful to the noble Baroness, Lady Hanham, for raising the point. Of course, she speaks from considerable experience of the NHS. I certainly very much agree with her that the contribution that chairs and non-executives make to the health service is crucial. I am also glad to hear about the work that the noble Baroness, Lady Cumberlege, is carrying out in relation to nurses. I believe that we need nurses to be evermore forceful on the boards of NHS organisations.
I understand the issues that both noble Baronesses have raised. There will be some very interesting challenges ahead both for the board and for the patients' forum person who is on the board to ensure that the body acts effectively, that it has a strong patients' voice at the highest level in the trust and that it also acts in a corporate manner. I do not believe that it is impossible for that to happen. It is absolutely vital that we have the benefit of a board member who has
1392
specific responsibilities in relation to ensuring that the patient's voice is fully considered in the deliberations of the trust.
Perhaps I may answer the specific points raised by the noble Baroness, Lady Hanham, about the practicalities of how the process is to be implemented. There is no intention to increase the overall number of trust board non-executive directors. However, it would be wrong to expect a newly-established patients' forum to wait until a convenient vacancy occurred before making the appointment. Therefore, we accept an additional non-executive director, mainly to be appointed temporarily, until such time as a vacancy occurs. Once it is established, the NHS appointments commission (which is due to be established on 1st April of this year) will assume responsibility for appointing trust and health authority non-executive directors. The commission will take that responsibility from the Secretary of State.
However, under the Bill the patients' forum has the power to appoint a non-executive to the trust board. In order to maintain standards of membership and meet basic requirements, regulations will be laid down detailing the selection process. They are likely to contain a reference to qualifying criteria laid down by the NHS appointments commission which will oversee the whole process.
We then come to the crux of the question as to whether such a board can act corporately. I believe that it can. Once appointed, the patients' forum non-executive will assume full board status and will be bound by the corporate governance arrangements, the code of conduct and appraisal arrangements which apply to all trust board members. I was interested in the comments of the noble Baroness, Lady Cumberlege, when she referred to nurses being elected. She talked about the different accountabilities that boards in the NHS have to face up to. I agree with that. There have always been dual accountabilities in the NHS. Board members have always come from various backgrounds to which it might be felt they owed some allegiance.
My first experience in the NHS was as an Oxford City Council representative appointed to the Oxfordshire Health Authority. I soon learned that to be effective within that authority I had to act corporately. I believe that that also applies to nurses and doctors. One might also consider university representatives. A university makes two nominations and the Secretary of State chooses between them. The health service is used to those different kinds of appointment mechanisms and thrives on them. Overall I believe we can be satisfied that our boards act corporately. I also believe that a patients' forum non-executive will add to the performance of a board and that such people will be able to act as corporate members.
Baroness Masham of Ilton: Before the noble Baroness responds, will it be made clear to the member

1393
representing patients what his or her role is and will there be a substitute should that member be absent for a long period as there is only one of them?
Lord Hunt of Kings Heath: I do not think that it would be possible to appoint a substitute. If a non-executive member were absent for a long period his or her membership of the board would undoubtedly be called into question. As regards the standards expected of all board members, I refer to the code of conduct and appraisal arrangements in the health service and the corporate governance arrangements which would be applicable to all trust board members.
The Earl of Listowel: Can the Minister explain how long such a patient representative is expected to stay on the board? Is there a finite length of membership?
Lord Hunt of Kings Heath: The maximum period for each term is four years, although non-executives are sometimes appointed for less than that. One can be appointed certainly for two four-year terms and then I believe there are circumstances in which one can be appointed for another one or two years. I would expect that the kind of limits on appointments that apply to other non-executives would also apply to the non-executive from the patients' forum. However, that will be specified in guidance and regulations.
Baroness Hanham: I am grateful to the Minister for his careful reply. I was not expecting anything more. However, I cannot say that he has reassured me. I am very concerned. The terms for the patients' forum representative are unusual. I can think of no other situation where one has an individual with the right of inspection. That is an unusual right. There is the right of inspection of a trust—the premises and everything that goes with it—and then the turning from poacher to gamekeeper by sitting on the board. The patients' forum representative is a very strange animal.
A secondary issue is the confidentiality aspect. Not much these days is debated in private; it is mostly open and above board but there are issues about patients' complaints and sensitive matters relating to patients.
I shall read what the Minister said. It is one of those rare occasions with this Minister when I do not agree. I believe that he makes a mistake. I shall consider the matter carefully. We shall probably return to the issue if there is a later stage of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 115 to 120 not moved.]
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 121:
Page 13, line 10, leave out from "members" to end of line 12 and insert "under paragraph 4(c) above of a Primary Care Trust for which there is a Patients' Forum shall be a person appointed by the Forum."
On Question, amendment agreed to.
[Amendment No. 121A not moved.]
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendments Nos. 122 and 123:
Page 13, line 15, leave out from "trust" to "and" in line 16 and insert "for which there is a Patients' Forum shall be a person appointed by the Forum.","
Page 13, line 17, leave out "before "any"" and insert "at the beginning"
On Question, amendments agreed to.
[Amendment No. 124 not moved.]
Clause 16, as amended, agreed to.
Clause 17 [Independent advocacy services]:
[Amendments Nos. 125 to 133 not moved.]
On Question, Whether Clause 17 shall stand part of the Bill?
Lord Clement-Jones: Although we on these Benches wholly support the concept of independent advocacy, I wish to speak to the Question in order to debate the overall shape of provisions regarding patient advocacy, patient consultation and patient representation.
The noble Lord, Lord Harris, made some valuable points yesterday in Committee. He asked the Minister:
"Would my noble friend think it appropriate to place some residual duty on the patients' councils to satisfy themselves that appropriate advocacy arrangements are in place and are strong enough so that, if they are not satisfactory, the patients' council can provide the service?".—[Official Report, 19/3/01; col. 1197.]
We had a considerable debate about how independent advocacy services would be provided. I took no great satisfaction from the Minister's reply. He said:
"It is clear that the independent advocacy services could be provided in the way suggested; alternatively, they could be provided by another public organisation. Indeed, they could even be provided by a voluntary organisation".—[Official Report, 19/3/01; col. 1199.]
It is widely accepted across the Committee that the provisions relating to consultation, representation and advocacy are flawed and highly fragmented. There has been very little give in what the Minister has said about the scheme yesterday and, to some extent, today, despite the fact that it was hurriedly put into the plan at the last minute; and outside the Government there is a universal belief that the provisions taken as a whole are fragmented and unsatisfactory. The Government have given very little extra in Committee apart from the new national patients' council. We welcome that, but the new scheme is flawed and we are not satisfied with it.
The Minister could have given much more of a fair wind to the idea of bolting together independent advocacy with the patients' councils. That would be logical and, in the view of many outside observers and many in this House, it would considerably improve the scheme. Giving patients' councils the right to commission and provide independent advocacy services would be a significant improvement to a fragmented scheme.

1395
I shall not go on at great length, because we have a great deal of business to get through today. I have given an example of the inadequacy of the provisions. As we progress through the Bill, the Minister's approach and his attitude to suggestions for improvement will colour our view on these Benches as to whether the proposals as a whole can be approved. I am in considerable doubt about whether to give any kind of a fair wind to these very fragmented proposals. I look forward to the Minister's reply.
10 p.m.
Lord Hunt of Kings Heath: I do not want to go over all the ground that we covered in our eight-hour debate yesterday on these matters. The Government's case is that the arrangements will result in a stronger, more effective mechanism for user involvement, for dealing with and sorting out problems out and for helping people through the complaints system. At the local level, there will be democratic involvement in the decision-making process. I firmly believe that. I have no doubt that at the end of the day, we shall have much stronger patient and public involvement in and impact on the National Health Service. I am tempted to go back to Mrs Archibald, but I shall resist at this stage. I am convinced that she and her relatives would receive a better service as a result of the arrangements that we are putting in place than they receive at the moment.
I listened with great interest to the noble Lord's comments on independent advocacy. We want some flexibility on how the advocacy arrangements can be made. Patients' councils could be one of the organisations that provide that advocacy, but we believe that we need greater flexibility. I am also convinced that the responsibility should be laid firmly on the Secretary of State, although he will have a duty to consult the relevant patients' councils on the arrangements to be put in place for independent advocacy providers. I also assure the noble Lord that we shall specify criteria that will define best practice for independent advocacy. Those criteria will include the need to make use of existing high-quality local provision; the need for the services to be accessible, including in relation to language—I take to heart the comments made yesterday by the noble Earl in that respect; physical access will need to be open; there must be proof of quality of output; and, whichever service is commissioned, it must be equipped demonstrably to offer advocacy expertise.
I believe that the presence of independent advocacy, established in a way that many people over many years have requested, will prove to be an absolute boon to members of the public who have found failures in the service and who wish their complaints to be addressed. They will find that they receive an enormous amount of support from those services. I believe that the provision will prove to be a very important plank in the new arrangements.
The Earl of Listowel: I welcome the Minister's statement that measures will be put in place to ensure that the independent advocacy services are acceptable to people who do not speak English. That is an
1396
important concern. I believe that in Tower Hamlets more than 60 different languages are spoken. At the CHC at which I called this afternoon, a Kurd visited with a friend who was a translator. Therefore, I welcome that news.
I should like to know more about the independent advocacy service and to know whether it will be run on a walk-in, non-referral basis. In addition, can the Minister indicate whether the current community health council premises, of which I believe there are more than 100, many of which have recently been refurbished, might be used to house the independent advocacy service? My key concern is whether alternative access will be made available other than through NHS Direct. We spoke about that matter during yesterday's debate. I can see that there is a great advantage in picking up a telephone and being able to reach the service easily. Equally, sometimes delicate matters can be dealt with better in person.
Baroness Masham of Ilton: Following on from the points raised by the noble Earl, perhaps I may ask the Minister about the training of advocates. Will a list of advocates who can be called upon be available, and will there be a rota? Different training will need to be given in different parts of the country. The needs in an area such as Herefordshire are quite different from those which one comes across in Tower Hamlets.
Lord Hunt of Kings Heath: Some of those matters will need to be developed as the Bill, if enacted, is implemented. Clearly in terms of the commissioning process for local advocacy services, the criteria that we set will need to tackle many of the issues raised by the noble Earl; for example, with regard to open access. I very much agree with that point.
I understand that when he asks whether a referral procedure will be put in place, he means that a person should not be required to go through a bureaucratic system before gaining access to the advocacy service. I share that point of view. In order for the service to be successful, people must have quick and easy access to it. Whether through a telephone call, through NHS Direct, through telephone booths that may be placed in NHS trusts, or whatever, people must be able to gain access as quickly as possible.
So far as concerns premises, I believe that that matter is for local determination. However, if useful premises existed in the high street, those would clearly be an option.
The noble Baroness, Lady Masham, asked about rotas. I assume that she is inquiring whether an out-of-hours advocacy service will be provided. Again, I believe that that matter must be determined through local discussion. However, we would not want to see the situation which sometimes arises at present with regard to people seeking help in relation to complaints. On certain days it is difficult to obtain help. Clearly, in a society such as ours, we need to provide as much access as possible.
The issue of training is a very important one. We would expect any organisation or service commission providing independent advocacy at local level to have

1397
the experts to do so; and part of that would be their own continuing professional development. In addition, if the amendment tabled by the noble Lord, Lord Clement-Jones, is passed today, I am sure that the national body will also have an important role to play in considering the question of training and support for those services.
Lord Clement-Jones: My Lords, I appreciate much of what the Minister has said about independent advocacy services. We on these Benches believe that the independent advocacy services have great potential. We have previously argued for them, in the context of both care standards and the Health Act 1999. But the services set out in this Bill must be judged as part of a total package of representation and advocacy.
Although I admire the Minister's certainty with regard to how the scheme as a total package will work, I fear that the total package may founder on a lack of willingness of the Government to respond to criticism of their current proposals. That is all it may amount to. However, in the mean time, before we reach the next stage of this Bill, I shall not press my opposition to the Question.
Clause 17 agreed to.
[Amendment No. 134 not moved.]
Lord Clement-Jones Lord Clement-Jones moved Amendment No. 134A:
After Clause 17, insert the following new clause—
"NATIONAL PATIENTS' BODY FOR ENGLAND
(1) The Secretary of State shall by regulations establish a body corporate ("the national body") to exercise in relation to the health service in England the following functionsߞ

(a) advising the Secretary of State, and such bodies as may be prescribed, with respect to arrangements for public involvement in, and consultation on, matters relating to the health service;

(b) representing to the Secretary of State and such bodies as may be prescribed, and advising him and them on, the views, as respects the health service, of Patients' Forums, Patients' Councils and those voluntary organisations and other bodies appearing to the national body to represent the interests of patients and their carers;

(c) assisting Patients' Forums and Patients' Councils in, and advising them with respect to, the performance of their functions;

(d) such other functions as may be prescribed.

(2) In carrying out its functions the national body shall have regard to any guidance given to it by the Secretary of State.
(3) The Secretary of State may by regulations make further provision in relation to the national body.
(4) The regulations may in particular make provision as toߞ

(a) the appointment of members;

(b) any qualification or disqualification for membership;

(c) terms of appointment;

(d) circumstances in which a person is to cease to be a member or may be suspended;

(e) the proceedings of the national body;

(f) the discharge of any function of the national body by a committee;

(g) the appointment, as members of a committee, of persons who are not members of the national body;

1398

(h) the provision of information to the national body by a health service body, a Patients' Forum or a Patients' Council, including descriptions of information which are or are not to be provided;

(i) the funding of the national body;

(j) the payment, to or in respect of members of the national body, of such remuneration, pensions, gratuities and allowances as may be determined in accordance with the regulations;

(k) the preparation and auditing of accounts of the national body.

(5) The regulations may include provision applying, or corresponding to, any provision of Part 5A of the Local Government Act 1972 (access to meetings and documents), with or without modifications.
(6) The regulations may authorise the national body to make charges for the provision of advice or other services.
(7) The national body shallߞ

(a) prepare a report in relation to its activities in each financial year,

(b) as soon as possible after the end of each financial year, send a copy of its report for that year to the Secretary of State,

(c) publish any such report in accordance with prescribed provisions,

(d) make such other reports to the Secretary of State, and supply to him such information, as he may require.

(8) Before making any regulations under this section the Secretary of State shall consultߞ

(a) such persons as appear to him to be appropriate to represent the interests of patients and their carers, and

(b) such other persons (if any) as appear to him to be appropriate.

(9) In this sectionߞ

"carer" has the same meaning as in section 12;

"the health service" has the same meaning as in section 7;

"health service body" meansߞ

(a) a Health Authority,

(b) a Special Health Authority,

(c) an NHS trust, or

(d) a Primary Care Trust;

"patient" has the same meaning as in section 12;

"prescribed" means prescribed by regulations made by the Secretary of State."

On Question, amendment agreed to.
Clause 18 [Abolition of Community Health Councils in England]:
[Amendments Nos. 135 to 139 not moved.]
Clause 18 agreed to.
Clause 19 [Power to abolish Community Health Councils in Wales]:
[Amendments Nos. 140 and 141 not moved.]
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 142:
Page 15, line 15, after "may" insert "by regulations"
The noble Lord said: This amendment corrects an oversight in Clause 19. As drafted, the clause does not specify how the National Assembly for Wales can exercise its power under subsection (2) to amend or repeal any legislation if the Assembly decided to abolish CHCs. The amendment makes it clear that the National Assembly and the Secretary of State can,

1399
through regulations, amend or repeal legislation concerning CHCs if it decides to abolish CHCs. I beg to move.
On Question, amendment agreed to.
[Amendment No. 143 not moved.]
Clause 19, as amended, agreed to.
[Amendments Nos. 144 and 145 not moved.]
Clause 20 [Intervention orders]:
Baroness Northover Baroness Northover moved Amendment No. 146:
Page 15, leave out lines 22 to 30 and insert—
"( ) If the Secretary of State—

(a) receives evidence from the Commission for Health Improvement or the Commission for Mental Health or the Audit Commission of serious and persistent failures in the way a body to which this section applies is run or evidence that such a body is not performing one or more of its functions adequately or at all, and

(b) is satisfied that it is appropriate for him to intervene under this section,

he may subject to subsection (3A) below make an order under this section in respect of the body ("an intervention order")."
The noble Baroness said: In moving this amendment, I speak also to Amendment No. 154, both of which seek to render this system less subject to the whim of the Secretary of State. Amendment No. 146 provides that the Secretary of State alone should not decide on interventions, should any of the various bodies proposed in the Bill be considered to have failed. Such action should be taken only after receiving the advice of the Commission for Health Improvement, the Commission for Mental Health or the Audit Commission.
Amendment No. 154 lays down that the Secretary of State should, at the same time, publish a report giving a detailed description of the failure which is the subject of the intervention order. Again, that makes matters far more accountable and open. I beg to move.
10.15 p.m.
Earl Howe: I shall speak to Amendments Nos. 147 to 151, 153 and 157. Debates in another place established the intention behind this clause, which is that an intervention order would be triggered only as an exceptional measure and in extreme circumstances. We can all be relieved that the use of those new powers will not be frequent nor in any way routine.
As I said before, the more we can maintain local managerial accountability and build on it, the better it will be for the working of the health service and for the morale of its employees. Much of the present lack of morale in the NHS is directly attributable to the feeling of not being appreciated by those in high places. That feeling of not being appreciated is not just a matter of pay. It originates from a whole variety of reasons. But one reason is undoubtedly the way in which Whitehall insists on directing matters from the centre and loading the health service with objectives and targets, which in some cases distort clinical priorities and erode local accountability.
Against that background, it is difficult not to be acutely suspicious of Clause 20, which is another centralising power. But the relief generated by the
1400
reassurances given in another place is tempered by a further examination of the Bill's language and we must ask whether the Bill's drafting lives up to what Ministers have told us.
The first issue is that raised by the noble Baroness, Lady Northover; that is, the gravity of the test which is set as a trigger for an intervention order. The Explanatory Notes first explain this Clause in terms of,
"the most serious and persistent failures".
However, at paragraph 96, they then speak of the Secretary of State merely having concerns about the management of that body. The subsection makes clear that the Secretary of State needs to be of the opinion that there are significant failings in the way the body is being run. However, in the same breath, the test for failing one or more of that body's functions is described only in terms of the adequacy with which the function is performed.
It would be a rare health body which did not, on occasion, fall down on one or other of its functions. That is why I believe that we should consider two amendments in that regard. The first is to make clear that the shortcomings in performance should be of a significant order; and the second is to specify that it will be only after all other appropriate avenues have been explored and exhausted that the power of central intervention can be triggered.
At the risk of appearing contrary, I have also tabled a further amendment which proposes that an intervention order should be linked directly to the quality of care and the quality of financial and general management as revealed by the annual audit.
I am drawn to that amendment because it is based on the idea of the whole process being triggered by a third party—that is, someone other than the Secretary of State. Once again, transparency is essential in this regard, because if there is not transparency, those sweeping powers will have all the potential to be used as a charter for "scapegoating", to put it at its simplest.
To follow that sentiment still further and to enable the appropriate lessons to be learned, I suggest that every time an intervention order is made, a report of that fact and the background to it should be published and laid before Parliament.
But what happens then? The power to intervene in the affairs of an NHS body is couched in very sweeping terms. We need to ask whether it is right and justifiable for that power to be used, as it could be, willy-nilly and without warning. I do not believe that it is. That is why I suggest that there should be a system of prior notification so that the body, if it chooses, can make appropriate representations about the proposed course of action.
Finally, Amendment No. 151 does not set up a formal appeals procedure. Instead it inserts a process whereby the Secretary of State formally sets down his concerns and his proposed solutions. That process would allow the body to state its case. The health authority, trust, or PCT should have the opportunity to correct unfair, incorrect or misleading statements. I

1401
hope that the Minister will be sympathetic to the arguments that I have advanced for tempering these considerable powers.
Baroness Cumberlege: I support my noble friend Lord Howe on these amendments, one of which stands in my name. I am divided about the principle behind this matter. I believe that it is absolutely right that the Secretary of State should be able to dismiss his appointees when they fail to satisfy what he feels is a reasonable standard. The Secretary of State should have power to appoint and to disappoint. At the moment the system does not work well at all. It is quite ghastly. The chair of a trust of PCT who fails is taken behind a bike shed at dead of night and is persuaded to fall on his sword, drink hemlock or something similar. If the chair being dismissed seeks to hold out and tries to stand his ground, what is a bad situation locally becomes an impossible situation and a real shambles. I believe that that part of the proposals in the Bill is right.
However, I have grave concerns that the Secretary of State can seek powers to dismiss an executive director of a trust. Usually such people spend the whole of their careers in the health service or they have a job within the health service and their whole life can be ruined. They can be deprived of their job, their career and their reputation by an idiosyncratic Secretary of State who decides to take action without having the transparency that my noble friend has suggested and without reports going before Parliament and so on. Throughout the Bill we have sought to make people accountable, and the Secretary of State too should be accountable.
I have some misgivings, but I understand the purpose behind this point. The NHS Confederation, an august body with a distinguished past, has put forward some good proposals. I am not sure whether the Minister, through his various channels, has had an opportunity to see them but the confederation suggests that, where there is an occasion when an intervention order is necessary, followed by an inquiry or an investigation into an incident, it is right that the Secretary of State should present a report explaining the reasons prior to making such an intervention.
There are some detailed systems laid down that can be adopted in order to make that situation acceptable to those involved. I recommend that the Minister considers whether those are acceptable to him. As the Bill now stands, I believe that it is unacceptable. We have seen cases, particularly at the Bedford Hospital, where there was real anger at the way that the chief executive was treated, not only among the local population but also among the staff in the hospital, particularly among the consultant body, who rose up to support the chief executive, whom they felt had been treated extremely unfairly in being dismissed and in having pressure put upon him.
When such a case concerns a chair, a non-executive who has been appointed by the Secretary of State, there should be an open, fair, transparent procedure, so that everyone can see how the Secretary of State has
1402
acted and why he has acted. In regard to executive directors, dismissal should be by the local board. Such a local board would be on the patch and would know the individual, his reputation and his expertise, or, in cases where that person had failed, it would have become dissatisfied with him. I support the amendment put forward by my noble friend.
Baroness Noakes: I support my noble friends Lord Howe and Lady Cumberlege. The proposals as drafted are draconian. They would allow the Secretary of State to intervene in almost every trust if he really put his mind to it. The test is only that the trust does not perform one or more of its functions adequately. In my experience, almost every health body does not perform one or more of its functions adequately. That is the nature of managing in such complex environments as health trusts.
We are looking for a much higher test. The Explanatory Notes mention persistent and serious failure, but that is not how the Clause is drafted. I look for clarification from the Minister on which particular ill he is trying to address in the clause. Is it an ability for the Secretary of State to intervene in any trust he chooses? That appears to be the way in which the Bill is drafted. Is it to intervene in only the most serious cases? If so, I suggest that different wording is used. If that is the case, will the Minister reflect on whether the existing procedures do not adequately allow proper action to be taken in the most "persistent and serious" cases, the language used in the Explanatory Notes?
I am not clear what the Government are trying to achieve with these provisions and look for further clarification before deciding whether the wording of the Bill is acceptable.
Lord Hunt of Kings Heath: We return to last Thursday's debate on the balance between national direction and leadership and local autonomy. I listened to the noble Earl's unkind words about centralising power, but every government who have been responsible for the NHS have faced the same dilemma.
I was interested to read Rudolf Klein's book, The New Politics of the NHS, in which he described in detail the previous government's dilemmas. Dealing with the 1982 reforms when district health authorities were created, he wrote that the rhetoric of delegation had a short shelf life. He stated that Norman Fowler began a series of measures designed to strengthen the grip of central government and that the DHSS moved to a tighter system of control and accountability than had ever existed in the history of the NHS.
Moving on through those years, Klein concluded that the NHS became a transmission belt for ministerial will and that further reforms in the 1990s, including the abolition of regional health authorities, were further indications of that process of centralisation.
I do not refer to that by way of criticism of the previous government. I merely refer Members of the Committee to it because I believe that there has always

1403
been a genuine problem about the NHS. As the noble Baroness, Lady Cumberlege, said, accountable through Ministers to Parliament is the expenditure of a huge amount of public money.
Clearly, the Secretary of State must have the ability to manage and direct the NHS accordingly. Equally, I accept that it is important that the people at local level, who are of high calibre and I assure the noble Earl were certainly appreciated by myself and ministerial colleagues for their hard work, are given sufficient ownership and control to do their job properly.
How does one achieve central balance? That is where earned autonomy comes into play. Earned autonomy is very much about giving greater freedom to those organisations which do well in the health service, while there is greater intervention in those organisations which are not doing well. That is the background to the debate on Clause 20 and the answer to the many philosophical points put forward by Members of the Committee.
As far as concerns the specifics of Clause 20, the clause creates a new power which enables the Secretary of State to use two types of intervention, either separately or together, in failing NHS bodies: the removal or suspension of all or part of the body's board and the replacement by other persons nominated by the Secretary of State who may then constitute a new management team; and a requirement on the failing NHS body to make arrangements for some other person or body to perform the specified functions of that NHS body. For example, that would enable the Secretary of State to require the body to delegate the exercise of specified management functions to a third party.
The test that must be met before the Secretary of State can intervene is, as Members of the Committee have said, referred to in new Section 84A(1). The test requires the Secretary of State to be of the opinion that an NHS body is not performing one or more of its functions adequately, or that there are significant failings in the way that the body is being run. In addition, the Secretary of State must be satisfied that it is appropriate for him to intervene. Therefore, the test has two elements to allow for a situation either where there has been a very serious one-off incident or where there has been a failure to provide a satisfactory service to patients over a period of time.
I assure the Committee that in the second situation clearly it would be inappropriate to use the powers of intervention at the first sign of merely inadequate delivery of services. That would not be our intention. The kinds of situations in which the Secretary of State might use the power could include the failure of trust management to address serious malpractice; for example, carrying out procedures without informed consent. Although in that example there may be only one clinician involved in that situation, if the trust was aware but failed to tackle it, or handled the incident badly, that might be a case for intervention and the removal of board members. A second incident might
1404
be the continuing failure of a trust board to take the necessary action to ensure that the trust was in financial balance. A third area might be continuing failure to provide services to an adequate standard. For example, a satellite renal unit might be unable to provide adequate haemodialysis because of nursing shortages. In that instance, the trust could be required to let a third party, such as a better performing green light NHS body, provide the service for a fixed period. We envisage that the use of those powers of intervention would, generally speaking, be a last resort when other actions had failed or were deemed inappropriate because of the seriousness of an incident.
10.30 p.m.
Baroness Noakes: I thank the noble Lord for giving way. Can the Minister enliven his presentation by giving examples where the existing powers have failed to enable the Government to take appropriate action when problems within trusts or other health service providers have been identified? I am troubled that the drafting gives the Secretary of State very draconian powers. I am not at all clear in what circumstances the existing powers have failed to allow the Government to take appropriate action. I should be grateful if the noble Lord could enlighten the Committee.
Lord Hunt of Kings Heath: I can think of a number of examples where a trust fails to deal with a given situation despite many efforts to try to persuade it to perform better. Clearly, one route is the "bicycle shed" to which the noble Baroness, Lady Cumberlege, referred, whereby an attempt is made to persuade the chair of the trust to resign. Other efforts may be made by the regional office to persuade the trust to make a change of management. But there may be real problems where the trust board absolutely refuses to make the necessary changes. It is in those circumstances where this power of intervention might come into play.
Baroness Noakes: I was trying to probe the Minister on what examples have led the Government to make such a sweeping power to intervene in the management of health bodies. When my noble friend Lady Cumberlege referred to the bicycle shed, she was referring to what happens in many organisations where there are one or more levels of management failure. Obviously pressures are brought to bear on an organisation to achieve management changes or changes in corporate governance generally. Over the past 50-odd years, the NHS has worked rather well to cope with many circumstances. That is why I was trying to press the Minister for some examples of why this additional power needs to be taken in the legislation.
Lord Hunt of Kings Heath: There may be instances where that has not worked. For instance, although a trust, may have made efforts to pressurise an organisation into making a change, either its management has been unwilling or, because of the way

1405
in which it provides services, it is unable to do so. So it is an issue of last resort where it is clear that it is the only realistic way of getting the effective change made.
Baroness Noakes: I press the Minister yet again; have there been any such examples in recent memory which would lead us to think that this power is an appropriate power to include in the legislation?
Baroness Masham of Ilton: Just recently there was a case. I represent a voluntary organisation. We were very unhappy with a trust because all kinds of matters were going wrong. The noble Baroness, Lady Cumberlege, previously mentioned the trust. The Minister kindly came down to that particular hospital. It was very helpful. There are problems. It is helpful if a Minister can come down to help sort matters out.
Baroness Noakes: The Minister would not have to visit the hospital to sort out matters because of a provision on the statute book. I fully accept what the noble Baroness has said. There are problems from time to time in many types of organisation. But I am seriously concerned about the making of these sweeping powers to deal with common-place situations relating to large complex managerial organisations.
Baroness Cumberlege: I rise to support my noble friend Lady Noakes. Our concern is that already there are powers that the Secretary of State can use. The noble Baroness, Lady Masham, is absolutely right. I referred to a hospital the other day. I know that since then heads have rolled. In the Bedford case, many people thought that very unfair, idiosyncratic and really quite vindictive action was taken to sort out the matter. In the Explanatory Notes we are told that the Secretary of State can intervene,
"where there has been a one off catastrophe".
At Bedford it was not a one-off catastrophe for the local population or for the staff working there. They supported the chief executive. It was a catastrophe for the chief executive. He was treated very badly indeed. When these matters are already happening without additional powers having been taken, I am sure the Minister will understand why, as my noble friend has said, we are deeply concerned about additional draconian powers being introduced and used totally inappropriately.
Lord Hunt of Kings Heath: I want to make two points. First, I shall not engage in a debate about the specific circumstances of Bedford. I do not think that would be appropriate without the full facts of what happened being available for everyone to understand, although I believe that at the end of the day chairs and chief executives of NHS organisations ultimately have to bear responsibility for what occurs in their trusts.
Secondly, there are actions that can now be taken, there are powers of direction and there is an ability to require non-executives to retire in the interests of the health service. That is true. But there may be
1406
occasions—either when there is a specific incident that requires immediate intervention or where a trust is continuing to fail to provide an effective service despite all the pressures and reminders and despite all the performance management systems that are in place—when an intervention would be in order. Surely there is benefit in the sense that, because of the way in which the proposal is made, that is much more likely to be a transparent process than any bicycle shed approach that may have had to be adopted in the past.
These powers can be considered only as part of a much wider package of performance improvement initiatives outlined in the NHS Plan. We have debated the whole performance management framework, earned autonomy and the traffic light system. The intention is that, as the NHS Plan is implemented, we shall see more and more of the NHS move towards local ownership of targets and freedom to innovate within a clear framework of accountability, with the intervention power very much a last resort.
I turn to Amendment No. 146. If the amendment were accepted, there would be a requirement that the Commission for Health Improvement, the Mental Health Act Commission or the Audit Commission would have to present evidence to the Secretary of State showing sufficient justification for an intervention order. That would mean that at least one of the commissions would have to inspect the NHS body concerned before an intervention order could be issued. That could lead to delays, which in some cases might be vital. In most cases where an intervention order might be needed, the NHS body in question would probably already be classified as red under the new system of performance traffic lights. That means that it would already have a recovery plan in place and would now most likely be subject to intervention orders because of its failure to carry through the detail of the plan.
Amendment No. 147 would have the same effect as Amendment No. 146. But it would also alter the first element of the test for intervention, so the Secretary of State would have to demonstrate that an NHS body was failing to perform one or more of its functions "to a significant extent" rather than "adequately". Amendment No. 148 also makes that change. To amend the clause as suggested would mean that, ultimately, there would be no sanction against persistent failure over a period of time if the NHS body was performing its functions to some extent. That is unacceptable since we need to ensure that patients receive the high standard of care which they have a right to expect.
Amendment No. 149 would stipulate that the Secretary of State should make an intervention order only when all other possible action has been taken. I have no disagreement with the principle being put forward. I have already said that the measures in the clause should be taken as a last resort or at the end of a series of other measures except in the event of an immediate or, as has been mentioned, a catastrophic failure when urgent action must be taken.

1407
I appreciate the reasons why Amendment No. 150 has been tabled. I understand the concern that the Secretary of State might seek to use these powers of intervention out of the blue and that the NHS body concerned would not be forewarned and might not appreciate why the order was being made. If the Secretary of State wished to use the intervention powers in a case where an NHS body was failing to perform to an adequate standard, it is likely that he would do so if that body had already failed to respond over a period of time to other support mechanisms. In such a situation, the body would already have been working on areas of concern with its Department of Health regional office and the Modernisation Agency. It would have agreed a recovery plan with them and it might also have been visited by the Commission for Health Improvement.
The body would therefore be fully aware of what it needed to do to improve, which would be set out clearly in the recovery plan. The recovery plan would also specify the timescale that was agreed for the necessary performance improvements. This would vary depending on the nature of the body's problems, but the body would always know what it had to do and by when. It would thus be fully aware that continued failure to make the necessary improvements could lead to an intervention order being applied.
The other situation in which the Secretary of State might wish to use the intervention powers is when a NHS body experiences a very serious one-off service failure, or if there was a significant failing in the way the body was being run. In such situations, patients and the public would quickly lose confidence in the body if swift action was not taken to ensure appropriate standards of service and patient safety. If we were to accept this amendment, we would introduce unnecessary delay into the process because we would need to use these powers in the most serious of cases.
Amendment No. 151 follows on from Amendment No. 150 and is concerned with the Secretary of State giving detailed reasons for intervening; in effect, what the NHS body would have to do once it was subject to an intervention order. I have already explained that bodies subject to an intervention order would have to have a detailed recovery plan, agreed with their Department of Health regional office and normally the modernisation agency. As I said, the recovery plan would have set out the areas of failure and what action needed to be taken. It would also agree a timescale over which specific improvements would be monitored.
It is therefore our intention that the issues raised in paragraphs (a), (b) and (c) of this amendment would be covered by the recovery plan, which would then be reinforced by the intervention order if the body had shown insufficient signs of progress since agreeing the original recovery plan. There would therefore be no need for these paragraphs of the amendment.
The second part of the amendment is concerned with a period of notice before the intervention order could take effect and with what seems to amount to a
1408
right of appeal for the NHS body concerned. I have reservations about a formal period of notice, 28 days or otherwise, from the issuing of an intervention order to it taking effect. This would surely introduce unnecessary delay into the process and might even threaten patient safety in cases where a serious incident required quick application of intervention powers.
Similarly, I would not wish to introduce what amounts to a formal right of appeal on behalf of the NHS body concerned because of the delay that this would cause to implementation and service improvement. This does not mean that Ministers would not be interested in the views of those representing the body concerned. Indeed, it is hard to imagine a situation in which Ministers would not wish to meet representatives of the body concerned and to discuss the problem and action required.
Amendment No. 153 is in two parts. The first part of the amendment would stipulate that the Secretary should make an intervention order only when all other possible action had been taken. I have already confirmed that it is our intention that the measures in this clause are to be taken as a last resort. The second part of the amendment would insert a new subsection (5) into the clause requiring a report to be laid before both Houses setting out what action had been taken to ameliorate the situation, why the order was being made and for how long it was expected to be in force. This matter was discussed at some length during the Committee stage of the Bill in another place. My right honourable friend the Minister of State for Health,
"concluded that it is sufficient to recognise that the Secretary of State will need to state clearly why he has taken action".
He added that he was,
"not persuaded that a formal reporting system would add anything to the procedure".—[Official Report, Standing Committee E, 23/01/01; col. 58.] I should like to reiterate the Government's commitment that a clear statement of reasons will be given whenever the Secretary of State seeks to use these intervention powers.
Amendment No. 154 would require a report to be published giving a detailed description of the serious and persistent failure which is the subject of the intervention order. I have discussed this already in answer to the previous amendment. I do not believe that a more formal reporting system is necessary.
As to Amendment No. 157, which is also concerned with making details of the reasons for intervention available, it would be unusual to make it a statutory duty to lay copies of an intervention order before both Houses as this order is not a statutory instrument.
So far as concerns the point raised by the noble Baroness, Lady Cumberlege, let me make it clear that, in relation to executive directors, the power does not relate to the dismissal of those directors as employees of the trust. It would ensure that they stood down as directors of the trust; their employment position would clearly then be a matter for the trust concerned.
All I wish to say in conclusion is that this has to be seen in the round; this has to be seen in the context of earned autonomy. We are seeking to provide a great

1409
deal of incentive to organisations to improve their performance and to reward them for doing so. We are also seeking to ensure that those organisations which have weaknesses are given all possible support to enable them to improve their position. At the end of the day, it may be necessary in a few cases for the intervention powers to be used. This is the purpose of the clause.
Baroness Noakes: May I respectfully suggest that the Minister has demonstrated a sense of schizophrenia about this issue? In one sense he is suggesting that the powers will be used only in very few cases, yet the powers are drawn very widely and would enable the Secretary of State to intervene in a large number of cases. If, as the Minister has done, we link it to earned autonomy, it is potentially 25 per cent of cases; and, if we go into the middle band, it is potentially up to 75 per cent.
I think that the Minister will accept that the powers are drawn very widely. I find it difficult to understand what he is saying. He said that it is only for a very few cases. We have asked him to explain to us what kinds of case but they seem to exist in his imagination; they are not shared on these Benches. We have severe doubts about the nature of the power being taken, although not about the necessity for intervention in extreme cases. I find it difficult to sign up to the fact that the powers are necessary to deal with the generality of managing the health service from the perspective of the Secretary of State.
Lord Hunt of Kings Heath: Perhaps I may make two points in response. My first point concerns traffic lights. It is my hope that we shall have very few red light organisations. The whole emphasis of the earned autonomy is on recognising those that are successful and helping those who are less successful to improve their overall standards.
None the less, I believe that there may be occasions when, in a very few organisations, there is a problem which, despite all efforts, the trust is either incapable of solving or refuses to put right and when some intervention will be necessary. It becomes very much a last resort in this whole context of performance management and earned autonomy.
Ultimately, the Secretary of State is accountable to Parliament for the NHS. It is right that he should have these intervention powers. Equally, I have tried to assure the Committee that these powers will be used very sparingly indeed.
Baroness Northover: This debate has illustrated just how important are the amendments that I have tabled. It is a running theme throughout the Bill that the Secretary of State is seeking to take wide powers. It does not seem to be a conflict, therefore, with what the Secretary of State may be seeking to do to have a back-up sitting alongside the Secretary of State, to have other organisations involved in these decisions, and to have a report-back mechanism built in. So I am afraid
1410
that I am not reassured by what the Minister has said. It sounds as if other Members on these Benches are not reassured either.
Earl Howe: Before the noble Baroness decides what to do with her amendment, perhaps I may respond briefly to what the Minister said. As always, I am grateful for the full way in which he addressed the points raised. However, I was disappointed by his response. His language was couched in many cases in reassuring terms, but a great many of my worries remain.
The Minister said that these powers would be treated only as a last resort measure. That assurance was given in another place. But the Bill does not state that. Legally, the Secretary of State would have scope to take action at any time he liked. I do not think that the drafting is tight enough.
Equally, the Minister admitted that these powers could be used without warning—something that again worries me. I accept that there are cases where time can be of the essence, but I believe that we should think twice, if not several times, before drafting legislation to cater specifically for the extreme circumstance. In the past, the NHS has always managed to cope with genuine one-offs without special legislation. My strong preference, if we need these powers at all, is to draft the clause with much more routine circumstances in mind.
The Minister is right to speak of the general tension between control from the centre and local autonomy. I do not dispute that at all. It has been a feature of the NHS, as he rightly said, since it began. But whenever we see before us, as we do now, a new and very wide power, as my noble friend said, to arrogate yet further control to Ministers, that power must be justified fully. We are talking about intervening in the day-to-day affairs of health service bodies.
The Minister spoke of "earned autonomy", a concept that we discussed earlier in Committee. As I remarked then, it is a somewhat Orwellian phrase. It means autonomy earned in return for achieving objectives that are set by the Secretary of State. If one were not a cynic, that might appear perfectly satisfactory. But the targets and objectives set by the Secretary of State are not, as we all know, always such as the man in the street would regard as beneficial to patients. I hesitate to raise the matter again, but the waiting list initiative is one such example. Politically driven objectives make me feel distinctly uncomfortable in this context.
I think I shall want to return to this matter at a later stage of the Bill, if indeed there is a later stage. In the meantime, in the interests of allowing the proceedings to continue, I shall say no more.
Baroness Northover: At this stage I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 147 to 151 not moved.]
Baroness Northover Baroness Northover moved Amendment No. 152:
Page 15, line 35, at end insert—
"(e) Care Trusts"
The noble Baroness said: This amendment adds care trusts to the bodies appropriately covered by any new arrangement that might replace CHCs. The thinking behind the amendment was to try to produce closer links between health and social services, a subject that is addressed later in the Bill.
However, yesterday I heard the Minister explain that care trusts would be included in this kind of context. Given the importance of the inclusion of care trusts, perhaps he is willing to comment. I beg to move.
11 p.m.
Lord Hunt of Kings Heath: As the noble Baroness suggested, I said yesterday—and I say again tonight—that it is unnecessary to add care trusts to the list of bodies to which intervention orders can be applied. They would be constituted legally either as a primary care trust or as an NHS trust, both of which are already listed in the clause as drafted. Perhaps I may give the Committee an example. If we are talking about a primary care trust that has delegated some local authority responsibilities, it would be a care trust but it would be formally known and recorded in statutory provisions as a primary care trust. However, in similar circumstances, if we are talking about a mental health acute trust that has taken on responsibilities delegated by a local authority, it would be a care trust but in statute it would remain an NHS trust. I certainly agree with the principle behind the amendment, but I believe that its purpose is already covered.
Baroness Northover: I am reassured by the position being made explicit. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 153 and 154 not moved.]
Earl Howe Earl Howe moved Amendment No. 155:
Page 16, line 22, at end insert—
"( ) The Secretary of State shall agree with the Commissioner for Public Appointments the process whereby individuals are selected prior to being specified in or determined in accordance with the order to replace those removed from office under subsections (2) or (3) above."
The noble Earl said: I shall deal briefly with two amendments that relate to various consequential aspects of an intervention order. In moving this amendment, I shall speak also to Amendment No. 156. The first concern I have is that there should be a proper process for selecting people to take over boards following an intervention order. Ideally, the full process laid down by Nolan or Neill would be involved. However, with time pressing, I am the first to recognise that that course is impractical. In its place, I have suggested something that I hope is quite flexible; namely, that the process used for making the
1412
appointments—not the appointments themselves, but the process used—should be the subject of agreement by the Commissioner for Public Appointments.
The Minister will need no explanation from me as to why I have chosen that particular route. I do not need to go into too much detail if I simply mention the recent report by the Commissioner for Public Appointments, in which some pretty critical comments were made about the political nature of some of the appointments made by the present Government.
Perhaps I may ask the Minister a specific question about the sub-contracting provisions. Subsection (5) empowers the Secretary of State to force the body to sub-contract some or all of its functions. The Explanatory Notes say rather baldly that expressions of interest will be selected from an approved list, but there is no mention of how such an "approved list" will be drawn up. It would be helpful to have some detail in that respect.
In subsection (5), we have a provision that specifies that the health service body itself has to foot the Bill for any sub-contracting. That is not a wholly unreasonable requirement. However, Amendment No. 156 seeks to ensure that the intervention order is not used to specify a price or any other conditions that are unaffordable to the body concerned. In the sections of the 1977 Act, and other Acts that are cited here, the basic financial duty is to break even. With this amendment, the Secretary of State could not force the body to incur a deficit. I beg to move.
Lord Hunt of Kings Heath: The appointment to the boards of public bodies should be free from political interference. Of course, we very much agree with that aim. That is why the intention was set out in the NHS Plan to establish an independent appointments commission, which will oversee the appointment of lay members to NHS bodies. The commission will start life from 1st April of this year.
I agree with the noble Earl, Lord Howe. It is absolutely right that we should give the commission a clear role in relation to the appointment of temporary replacement non-executive members of NHS boards. I should stress that we are talking about temporary replacement. If the Secretary of State seeks an intervention order requiring the removal of board members, their replacements would, in the first instance, be appointed on a temporary basis subject to time-scales set out in the recovery plan agreed with the body subject to the order. The remit would be to ensure that the failing body was able to implement the recovery plan in the time specified.
At that point, and assuming the performance of the body had been turned around, the Secretary of State would want to make regular appointments to the board in question for the normal period of tenure. These appointments, of course, would be subject to the established processes of the NHS Appointments Commission; that is, by advertisement and open competition. The temporary replacement members might wish to apply for the permanent positions but it would not be a case of rubber stamping their appointments.

1413
The involvement of the Appointments Commission in the appointment of temporary replacement members would be in accordance with standard procedures agreed with the Commissioner for Public Appointments. This means that it would have the responsibility for making the appointments and would ensure that the candidates met the relevant criteria and had the particular expertise needed. The only difference between temporary appointments and long-term appointments is that the former would not be advertised because when the intervention powers are used there will be a need to address a serious matter and therefore one would not want to delay the process. It would be open to Ministers, the Modernisation Agency or the department's regional offices to put forward names for consideration. The NHS Appointments Commission would have to treat those candidates in the normal way and take the final decision on their appointment. In those circumstances it is highly likely that experienced chairs or non-executives already serving in the NHS would be appointed temporarily to fill those positions. I hope that I have given the assurance on that matter that the noble Earl requires.
Amendment No. 156 would alter subsection (5) of the new Section 84B inserted by this clause. The subsection provides that where functions are to be performed by a third body, such as a better performing green light NHS body—we shall publish in due course details of the approved list—the body subject to the order must meet the cost of those arrangements. The amendment that the noble Earl has put forward stipulates that that could happen only if the directions did not contradict the body's existing statutory financial duties.
The financial duties to which the noble Earl's amendment refers in essence require NHS bodies to break even. An NHS trust has to ensure that its revenue, taking one year with another, is sufficient to meet its outgoings. Health authorities and primary care trusts must ensure that their expenditure in any year does not exceed the aggregate of the income they receive from various sources. These statutory duties cannot be removed or modified by the directions under the new Section 84B. In essence, directions cannot "trump" the provisions of primary legislation. Indeed, it would be unlawful for the Secretary of State to give directions which conflicted directly with the duty or prevented the body concerned from complying with its statutory duties.
That is particularly relevant to our discussions last week when discussing Clause 2. I explained that a new performance fund will be available from next year, distributed on a fair shares basis to all NHS bodies. This is additional funding which will be used by NHS bodies to incentivise performance improvement.
NHS bodies which are traffic lighted as red or poorly performing will have the spending of their share of the performance fund determined by the Modernisation Agency. They will work with their regional office and the Modernisation Agency to agree a recovery plan to turn round their areas of poor
1414
performance. Their share of the performance fund will be used to implement the recovery plan. In some situations implementation of the recovery plan may be cost neutral—improvements in performance will result from better ways of working and targeting existing resources. But if money is required to set up new and improved systems of working, the performance fund will be available to pay for it.
If the intervention order is applied, for instance as a result of a one-off or very serious failure, to a body that was not previously classified as red, we would then expect that body to agree its spend of the performance fund with the Modernisation Agency to make sure the failing was addressed.
We consider the amendment unnecessary, not only because a performance fund would be able to provide extra money for service improvements but also because it would be unlawful for the Secretary of State to give directions which conflicted with a body's statutory duties.
Earl Howe: I am grateful to the Minister for that helpful reply. I take on board the point that the power of direction could not trump an existing statutory duty. The difficulty would be in cases where it is not entirely clear whether a direction from the Secretary of State puts a trust in a difficult financial position. There would be one view of the matter from the trust's perspective and another perhaps from that of the Secretary of State. Much argument will no doubt take place.
However, I am reassured by what the Minister said about the availability of the NHS performance fund. I would hope that the existence of that fund will obviate most of the difficulties to which I have referred. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 156 and 157 not moved.]
On Question, Whether Clause 20 shall stand part of the Bill?
Earl Howe: Perhaps I may ask the Minister a brief question. How will an intervention order be brought to an end? Will targets have to be achieved? Will those targets be known when the order is made? What happens then? Once an intervention order is terminated, does the relevant body return to the status it had previously, run by a board which does not consist of caretaker directors? I believe that that was the implication of what the Minister said. Perhaps the noble Lord could elucidate that very quickly.
Lord Hunt of Kings Heath: The recovery plan, which has to be seen in relation to the intervention order, will have details of what has to be done to ensure that the trust meets the terms set out in the order. I would expect to be included in that order some targets in relation to timing. The hope and expectation are that these interventions will be of a temporary nature. It would be in everyone's interest to ensure that the organisation got back on an even keel as soon as possible.
Clause 20 agreed to.
Clause 21 agreed to.
Clause 22 [Vacancies for medical practitioners]:
Lord Rea Lord Rea moved Amendment No. 158:
Page 18, line 4, after "consultation" insert "including consultation with the local medical committee for its area"
The noble Lord said: I take advantage of my pole position on this group of three amendments briefly to revise the debate on the abolition of the Medical Practices Committee when I had to break off with a frog in my throat. My noble friend then replied that,
"we shall debate the Medical Practices Committee later.—[Official Report, 15/3/01; col. 1074.]
But, apart from this amendment, I do not see any other undebated amendments in which that can be done.
My noble friend dismissed the suggestion of a national medical practice advisory body, suggested in Amendment No. 225, as recreating the medical practices committee in another guise. I believe that that may have been the intention of the amendment. The new arrangements seem to the British Medical Association and many others, including myself, to be insufficient to maintain and further improve the even spread of GPs throughout the country. That has still not been achieved. Without such a committee or an equivalent body, it is less likely to be achieved Different health authorities or even different regional offices will be able to tempt general practitioners into their areas in various ways even if basic remuneration scales are nationally agreed. The preservation of a national body to continue the role of the MPC in an advisory capacity is highly desirable if only to feed information onwards to the proposed national workforce mechanism.
I am in favour of golden hellos and golden handcuffs to attract GPs to deprived areas and to keep them there. Those mechanisms will be more effective if an expert national monitoring and advisory body is retained.
Having got that off my chest, perhaps I can return to my amendment, which would simply require that the local medical committees should be consulted when health authorities—rather than the previous local medical committees or family health service authorities—decide when to create a GP vacancy in an area. That would not only be courteous, but would provide expert local knowledge to the health authority about the situation of general practice in the area.
I shall finish by quoting the comments of the British Medical Association:
"Local medical committees have the requisite local understanding to promote the delivery of high standards through their professional contacts with all general practitioners".
The amendment could be included in the Bill with benefit. I beg to move.
11.15 p.m.
Lord Hunt of Kings Heath: I have only two points to make. I am the first to acknowledge that, particularly under the leadership of Ro Day, the Medical Practices Committee has done its best to try to redistribute GPs in the way that we all want. However, for one reason or another, it has not been successful enough. The arrangements that we wish to put in place will be very helpful in ensuring that the local health authority is in prime position to deal proactively with the problems and that the funding mechanism provides the right incentives.
I accept the principle behind my noble friend's remarks on local medical committees. It is not a matter for the Bill, but I assure him that the regulations will require health authorities to consult with local medical committees before making any determination on whether there is or will be a vacancy for a general practitioner in their area. I hope that my noble friend will accept that assurance.
Lord Rea: I have very little option but to do so. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 159 and 160 not moved.]
Clause 22 agreed to.
Clause 23 agreed to.
Baroness Ramsay of Cartvale: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Colchester Borough Council Bill
Returned from the Commons agreed to.
House adjourned at twenty minutes after eleven o'clock.