Lords Sitting of 22 May 2002

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

Road Safety
Lord Janner of Braunstoneasked Her Majesty's Government:
What steps they are taking to reduce the toll of death and injury on the roads.
The Minister of State, Department for Transport, Local Government and the Regions (Lord Falconer of Thoroton): My Lords, Britain has one of the best road safety records in Europe, but there is still much that we can all do to help to improve it. The Government set out a comprehensive strategy for reducing road casualties in Tomorrow's roads—safer for everyone, published in March 2000. One of our targets is to reduce the number of deaths and serious injuries by 40 per cent by 2010, compared with the average for the years 1994 to 1998.
Lord Janner of Braunstone: My Lords, I thank my noble and learned friend for that Answer. However, does he accept that one of the gravest risks while travelling in cars arises from the failure of people to wear seat belts? Does he accept that a majority of drivers or those who travel in the front seats of vehicles who die in road accidents are killed because passengers in the rear do not wear seat belts? What do the Government propose to do to enforce the law on seat-belt wearing? Are they proposing any active campaign to encourage and induce people to wear seat belts, thereby saving many lives, possibly including their own?
Lord Falconer of Thoroton: My Lords, I cannot over-emphasise enough how important it is that drivers and front and rear-seat passengers wear their seat belts. In most cases, it is illegal for people not to wear seat belts. What are the Government doing to bring the matter to people's attention? I do not know whether my noble friend has seen the current advertising campaign which involves a very effective film of a family travelling in a car. The commentator says in effect that someone is about to be killed. One sees the teenage son being thrown through the car and one assumes that the driver is killed by her son hitting her from the back. Therefore, it is a matter that we take seriously and an issue on which the Government are campaigning. It is already illegal not to wear seat belts. It is for the police to decide whether to prosecute or to give fixed-penalty notices in respect of the offence, but it is a matter of considerable importance to road safety.
Lord Brougham and Vaux: My Lords, I declare an interest as a vice-president of the Royal Society for the Prevention of Accidents. I also declare an interest in that I do not have a mobile telephone. Can the Government confirm that they have done a U-turn or, at best, have had a change of heart? Is it the case, as stated in an article in last night's Evening Standard, that they are considering introducing legislation to ban the use of mobile telephones while driving?
Lord Falconer of Thoroton: My Lords, the use of mobile telephones in relation to cars is a problem. Such use can already be illegal if it leads to careless, dangerous or reckless driving. Several issues arise in relation to this matter, but we have not ruled out a ban on the use of hand-held telephones. Indeed, that idea is under active consideration.
Lord Taylor of Blackburn: My Lords, is my noble and learned friend also aware of an article in Monday's Evening Standard which drew attention to police excesses in fining people for travelling at only a little over the speed limit? I know that speeding at an excessive rate can cause death, but I believe that the way in which we enforce speed restrictions with the use of cameras spoils the situation for many motorists who drive carefully.
Lord Falconer of Thoroton: My Lords, I do not agree with the implication that safety cameras spoil things for motorists. Speeding is against the law. Safety cameras are intended to persuade drivers not to speed and, therefore, not to attract fines. In the pilot areas where speed cameras are operating and being tested, the reduction in road deaths has been in the region of 47 per cent.
Lord Bradshaw: My Lords, will the Minister advise those in the department who brief the Evening Standard and the Daily Mail that no revenue goes to police authorities or counties other than that used for the process of prosecuting people? Will he please tell the House that, instead of going to the Treasury, some of the money should be spent by the police, county councils and unitary authorities on road safety measures, which are desperately needed and for which there is no money at all?
Lord Falconer of Thoroton: My Lords, the noble Lord is broadly right. Money collected from speed camera fines is used to cover the cost of the speed cameras and the processes attached to them, but the remainder goes to the Treasury. Decisions are then made about how that money is spent, and priorities must be identified by the Treasury.
Lord Campbell of Alloway: My Lords, does the noble and learned Lord agree that it would be a rather sad day if the police were deprived of exercising their discretion?
Lord Falconer of Thoroton: My Lords, questions of prosecution are almost invariably a matter of discretion for the police. It is important that they continue to exercise it reasonably and sensibly.
Lord Dubs: My Lords, does my noble and learned friend have any information about how helpful road humps are in cutting down speeding and therefore road accidents? It seems to me that expensive cars sail over them very quickly unlike cars such as mine. I respect my shock absorbers and go very slowly. But do humps contribute to road safety?
Lord Falconer of Thoroton: My Lords, the effect of humps must be to slow down traffic in certain circumstances. I do not have available specific statistics about their effect, but their purpose is plainly to slow down traffic with a view to reducing injury and death on the roads.
Viscount Astor: My Lords, the Government's transport adviser, the noble Lord, Lord Birt, has put forward recommendations on the introduction of toll roads. Those, of course, would have an impact on road congestion and, therefore, road safety. The noble Lord, Lord Birt, feels unable to submit himself to parliamentary scrutiny or debate. As I know that the Minister agrees with open government, will he give an assurance that he will publish the report?
Lord Falconer of Thoroton: My Lords, I am not sure which report is being referred to. I am here to represent open government. So ask me any question about road tolling, but do not ask me about the process.
Baroness Nicol: My Lords, does my noble and learned friend accept that I have discovered a new kind of road offence? When I finally managed to draw level with someone who had been weaving around while using his telephone, I found that he had hung it up and was trimming his moustache with a small pair of scissors.
Lord Falconer of Thoroton: My Lords, I accept that using mobile phones, trimming one's moustache and eating a takeaway meal in cars can all give rise to charges of careless or dangerous and reckless driving. I cannot emphasise enough how important it is that people do not use mobile phones in a way that causes danger.
Lord Trefgarne: My Lords, referring to the Question on the Order Paper, while we all agree on the importance of wearing seat belts, both front and back, is not a considerable deterrent—at least to rear seat passengers—to the wearing of seat belts the fact that they are so uncomfortable and inconvenient? Are the Government doing anything about that?
Lord Falconer of Thoroton: My Lords, in many cases they are comfortable and convenient. The safety that comes from wearing them is great, not just, as my noble friend Lord Janner said, for the people wearing them, but, just as significantly, for the front seat passenger and the driver. So, even if they are a little uncomfortable, for the safety of everyone in the car, it is best that they are worn.

Economic Growth
2.44 p.m.
Lord Roberts of Conwyasked Her Majesty's Government:
What was the economic growth rate in the first quarter of 2002 and how it compares with the rate in the last quarter of 2001.
Lord McIntosh of Haringey: My Lords, according to the preliminary estimate published by the Office for National Statistics, UK GDP growth strengthened to 0.1 per cent in the first quarter of this year, following zero growth in the final quarter of 2001. In 2001 as a whole, the UK economy grew by 2¼ per cent, the highest rate of growth in the G7.
Lord Roberts of Conwy: My Lords, does the Minister agree that those figures represent disappointing prospects so far as concerns growth, and especially the Government's annual growth target which has implications of course for revenue? Does the noble Lord further agree that the increase in national insurance contributions is detrimental to growth and will stimulate price and wage inflation as the Bank of England expects?
Lord McIntosh of Haringey: My Lords, as the noble Lord, Lord Roberts, knows, we do not produce forecasts intervening between the Budget forecast and the pre-Budget forecast six months later. We have no basis on which to alter the forecast made in Budget 2002 of growth this year of 2 to 2½ per cent. Our forecasts over the past few years have been exceptionally good. The 2001 forecast was predicted in each of the six-monthly figures produced between the Pre-Budget Report 1999 and the Pre-Budget Report 2001. So we are fairly confident that we stay within our forecasts.
No, I do not agree that the increase in national insurance contributions will be a danger to growth. On the contrary, it will be a significant contribution to the necessary funding of the National Health Service.
Lord Barnett: My Lords, does my noble friend accept that the more important growth figure is that given in the Budget report this year of the trend growth rate of 2¾per cent? Does my noble friend recognise that growth forecasts, even those made by the noble Lord, Lord Saatchi, or his researchers are as likely to be wrong as weather forecasts? In those circumstances, does he nevertheless accept, and is it the Treasury view, that if there is a blip in that 2¾ per cent the changes he would need to make would not affect the public expenditure forecast?
Lord McIntosh of Haringey: My Lords, with no disrespect to the Meteorological Office, no, I do not think so. Our forecasts are always produced within a range. They have been within that range for the past two years at least and, I would almost certainly say, further back. In Budget 2002, we forecast growth

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this year of between 2 to 2½ per cent and next year of 3 to 3½ per cent. I see no reason why we should alter those forecasts.
Lord Lamont of Lerwick: My Lords, without in any way disagreeing with what the noble Lord, Lord Barnett, has said, is it not the case that Budget 2002 expects the budget over the next four to five years to grow 3 to 3½ per cent faster than the G7 average? Is it not also true that, as the noble Lord, Lord Barnett, has said, the long-term rate of growth is expected to be 2¾ per cent rather than the historic 2¼ per cent faster than the EU average? Given that in the short run we shall outperform G7 and in the long run we shall outperform the EU, what is the beef in the argument for the euro?
Lord McIntosh of Haringey: My Lords, the argument for the euro is not based on those calculations. There is no reason why it should be. It does not figure in the Chancellor's five economic tests.
Lord Newby: My Lords, the Minister will know that the increase to 2¾ per cent for trend growth is based largely on the Government's projections of continuing high levels of immigration. Can the noble Lord tell us what assumptions the Government have made about where those high future levels of immigration will come from; what skill levels the immigrants will have; and, of great importance particularly in London, what the implications will he for public infrastructure and, not least, housing?
Lord McIntosh of Haringey: My Lords, that is a little far away from the Question. I do not accept that the forecasts of medium-term growth are based in large measure on assumptions on immigration. Of course there are assumptions about levels of immigration contained in the forecasts, but I think that the noble Lord, Lord Newby, is exaggerating their impact. It is a fact that we have had a substantial level of immigration of people of working age. In view of the longer-term problem of the balance of people between working age and those older and younger who are not able to contribute to the economy, that may be rather a good thing.
Lord Saatchi: My Lords, if the Government's record of economic forecasting is as reliable as the Minister suggests, why is it that in Budget 2001 the Government forecast their own need for borrowing to be £34 billion and yet, just a year later, in Budget 2002, they forecast that they will need to borrow more than double that—£72 billion?
Lord McIntosh of Haringey: My Lords, there are two answers to that. First, when I referred to the validity—rather than reliability—of government forecasting, I was talking about government forecasting of economic growth. Forecasts of government borrowing are forecasts of a difference between two very large figures. One reason why there is a difference between the forecasts for government
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borrowing is that the Government have made expenditure decisions to protect our public services, which the previous government failed to do.
Lord Berkeley: My Lords, if my noble friend is looking for people of working age to come into this country, may I remind him that there are several thousand of them sitting in Sangatte near Calais wanting to come over in a freight train?
Lord McIntosh of Haringey: My Lords, I do not like saying that supplementary questions are outside the scope of the main Question, but it is about the economic growth rate in the first quarter of 2002.
Lord Renton of Mount Harry: My Lords, in answer to my noble friend Lord Lamont, the Minister mentioned the five economic tests. When does he expect to give us an answer as to whether the five economic tests have been met?
Lord McIntosh of Haringey: By 2003, my Lords.

Competitive Tendering: National Security Exemptions
2.51 p.m.
Viscount Goschenasked Her Majesty's Government:
On how many occasions since 1997 the requirement for the Government to engage in a competitive tendering process has been waived on the grounds of national security.
Lord McIntosh of Haringey: My Lords, central records are not maintained on individual procurements or the procurement routes used. Responsibility and accountability for procurement is delegated to the accounting officers of government departments, local authorities, NHS authorities and trusts and certain utilities.
Viscount Goschen: My Lords, is it not time that the Government gave a straight answer to a straight question? The national security exemption from the procurement directive is extremely narrowly drawn and should be used only in extraordinary circumstances. Is it not then extraordinary that the Government are unable to answer the Question about when the grounds of national security were used to exempt the Government from what are otherwise their legal obligations?
Lord McIntosh of Haringey: My Lords, national security obligations under paragraph 6(h) of the supply regulations are, to my surprise, rather widely drawn. Indeed, exemptions from competitive tendering are extremely widely drawn. That wording states that there is an exclusion for contracts for,
"work which is classified as secret or where the carrying out of services under it must be accompanied by special security measures in accordance with the laws, regulations or

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administrative procedures of any part of the United Kingdom, or when the protection of the basic interests of the security of the United Kingdom require it".
That is widely drawn, and the House can imagine the complication there would be if we started to give details of, for example, Ministry of Defence contracts that fell within that category.
Lord McNally: My Lords, when those exemptions are invoked, is Parliament's Intelligence and Security Committee asked to make a judgment on whether the powers have been correctly used?
Lord McIntosh of Haringey: My Lords, not so far as I know.
Earl Howe: My Lords, as regards the smallpox contract, does the Minister agree that in the United States there was an open and competitive procurement process that was completed within six weeks, compared to that in the UK, which took more than four months without competitive tendering? Are there lessons to be learnt from that for future similar procurements, if only to ensure value for money for the taxpayer?
Lord McIntosh of Haringey: My Lords, of course I cannot comment on the reasons for the United States decisions, but they carried out a procurement exercise for what is known as the New York version of smallpox vaccine, which is certainly viable and has been widely used in the United States and the Americas. Our requirement was for a vaccine that is equally viable and has been widely used in the World Health Organisation eradication programme. We have particular experience of its use in Europe, Africa and Asia.
The professional view taken by the Joint Committee was that we should choose that vaccine. We talked to five manufacturers considered capable of producing that vaccine. The outcome was that one supplier was considered to be able to meet our requirements for specification, quantity and delivery.

Youth Crime
2.55 p.m.
Baroness Seccombeasked Her Majesty's Government:
How they respond to the result of the survey, commissioned by the Youth Justice Board, indicating that a quarter of all children between the ages of 11 and 16 have committed a crime in the past year.
Lord Rooker: My Lords, the "quarter" referred to in the noble Baroness's Question relates to those at school. For those excluded, it is nearer two-thirds. The survey is informative but its conclusions are not new—it is the fourth survey of its kind. We are working hard to tackle youth crime and have made significant
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improvements to the youth justice system. In recent years, we have established the Youth Justice Board, youth offending teams and introduced new measures and interventions. We have also halved the average time taken to deal with persistent young offenders from 142 days to exactly 71 days at present. We continue to make further improvements, including tackling street crime and truancy.
Baroness Seccombe: My Lords, I am sure that we all agree that detection is vital in fighting crime. But I understand that about 20 per cent of those young offenders are now getting away without punishment from either the police, youth offending teams or the courts. How does the Minister propose to deal with that problem?
Lord Rooker: My Lords, the noble Baroness's figure is slightly inaccurate. It is true that not everyone gets caught, but the survey showed that there has been an improvement. I must distinguish between those at school and those who have been excluded— the figures are given separately and they are dramatically different. That is why we need to get those who have been excluded back into mainstream educationschool—as quickly as possible.
The proportion of those pupils in the survey —which consisted of about 6,000 pupils—who have not been apprehended or not suffered any punishment has fallen to 16 per cent from 22 per cent. In other words, 78 per cent of those at school were being apprehended and punished; that proportion is now 84 per cent. For those outside school, the proportion is up from 88 per cent to 94 per cent. So there has been an improvement even in the past year in the proportion of those receiving a punishment of some kind that they knew about and admitted to in the survey.
Lord Dholakia: My Lords, has the Minister read the report from Her Majesty's Chief Inspector of Prisons published this week on Onley and Hindley—two young offender institutions? Does he agree with its findings that there are impoverished regimes; that youngsters have to take their meals in their cells; that there is no evening association; and that they are locked up for up to 20 hours a day? How are the prisons' objectives of rehabilitation to be met if 60 per cent of those who reoffend in that age group leave prison without any rehabilitation process?
Lord Rooker: My Lords, I have glanced at the report, but I must tell the noble Lord that the Question relates to the MORI survey of young children aged between 11 and 16 who have committed a crime in the past year. To be honest, I am much better briefed to answer questions on that—even though I shall probably get some of the answers wrong—than I am to deal with the prison inspectorate's report, which is vital in respect of both the women's prison and the young offender institutions on which it reported.
Lord Alton of Liverpool: My Lords, when considering the reasons why young people between the

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ages of 11 and 16 commit crime, does the Minister agree that the powerful drugs culture prevalent in so many urban areas is a major factor? Recent data show that about 800,000 children now no longer have contact with fathers, which is another contributory factor. Does he agree that we need to devote more time and resources to those areas?
Lord Rooker: My Lords, the noble Lord is right regarding drug culture. It is an interesting aspect of the survey that young people sometimes exaggerate their drug use. I do not know whether this was done in the previous three surveys, but to determine whether young people exaggerated their reported drug use, the Youth Justice Board added a false drug to the list in this year's survey and 2 per cent of young people claimed that they had taken it.
Lord Corbett of Castle Vale: My Lords, can the Minister confirm that young people are the main victims of crime? Will he also explain what efforts the Home Office is making, and encouraging other agencies to make, to involve young people in new initiatives to deter and detect crime?
Lord Rooker: My Lords, my noble friend is right. The survey is extensive, and I have here only an executive summary, but I can say that young people are the victims of crime. The proportion of young people in school who are victims is much greater than the proportion of those out of school. It is as though they are targeted because they have something: an education.
The survey brings out young people's attitudes to crime and to what is right and what is wrong. The difference in attitudes to right and wrong between those in school and those out of school is surprising. I shall not read out the findings; they are appalling, and I do not want to add to the problem. However, between last year's survey and this year's, the movement has been in the right direction. More people, regardless of whether they are in school or out of school, agree on things that are wrong in any circumstances. That is the result of the work done by the Youth Justice Board and the voluntary agencies working on this important issue.
Lord Elton: My Lords, I ask the Minister again whether the Government would not be better advised to direct more of their energy to getting to children before they become criminals. To that end, there should be core funding for the many voluntary agencies who do that with great dedication.
Lord Rooker: My Lords, before I answer the noble Lord. I shall apologise to him for the way in which I answered his topical Question last week. There was a glitch between the House and the Home Office, and I had the wrong Question. I had one that the noble Lord did not ask. I apologise for that. The problem was that someone had attempted to make the Question into a topical one, without telling the noble Lord. I have also written to the noble Lord.
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The noble Lord has made a vital point, and we come back to the issue of youngsters who are out of school, whether the work that is done with them is done by the voluntary agencies or the education authorities. The work includes the truancy project, which involves the police with local schools, and the truancy sweeps. From September, all permanently excluded pupils will have access to full-time education. Similar measures for children who are temporarily excluded will be piloted, involving the further education sector, home tuition or pupil referral units.
I do not mind whether those schemes are run by the local education authority or by the voluntary sector, which plays a vital role. Reducing the number of young people out of school is hound to mean less crime among young people.
Lord Dixon-Smith: My Lords, as the Minister has indicated, the report is like the curate's egg. It has good and had in it.
One of the more depressing conclusions that one might draw from the report is that children who are suspended from school are likely to become intermittent criminals, while children who are excluded from school are likely to become endlessly repetitive criminals. Without wishing to start an interdepartmental debate, which would be easy to do, I must say that it is exceedingly rash to exclude children from school and put them into the open environment of the streets. There should be discussions between the Home Office and the Department for Education and Skills to see whether we can rationalise the situation and prevent so many of those children becoming perennial criminals. Will the Minister comment on the possibility of such discussions?
Lord Rooker: My Lords, to answer the noble Lord, I could repeat what I have just said. That situation is the reason why Parliament recently passed legislation that will mean that, from September, excluded pupils will be put into mainstream education. That is crucial.
There is enormous variation in the rates of offending and in the likelihood of being caught. By and large, the key offenders are white, male and aged between 15 and 16. In some ways, that knocks some of the myths on the head. The highest offending rates are in the South East, the North East and London, and the clear-up rate in London is lower than that for anywhere else for reasons that we all understand. That is why street crime initiatives have been targeted on those areas, particularly London.
Lord Pilkington of Oxenford: My Lords, does not the Minister think that creating more referral units to deal with children who misbehave would help? If they are sent back into mainstream education, they are often the rotten apple in the barrel. Why should we not have more referral units?
Lord Rooker: My Lords, as II have said, from September, permanently excluded pupils will have access to full-time education. However, there is no automatic assumption that they will go back to the

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schools from which they have been removed. Sometimes, there is a good reason for that: they stop the other 30 or so pupils getting an education. We should make no bones about that.
We know that exclusion has important consequences. Pupils may be placed in a further education college, where the regime is slightly different. Perhaps, we can get them an education that way. It is not a question of all or nothing. It will be a combination, perhaps involving home tuition, in extreme circumstances. One way or another, they will all have access to full-time education. There will be no excuse for letting them loose to commit crime.
Lord Mackie of Benshie: My Lords, the surveys purport to cover the whole country. Do they also show where the situation is really bad? That would be valuable.
Lord Rooker: My Lords, they do. I shall not go over all the regional figures, but I can say that offenders are more likely to be caught in Wales than anywhere else. There is a message for people committing crime there. The number of pupils being caught and detected is also high in the North East. I shall not play one region off against another; it is a national issue.
It is also a generational issue. If we can nip it in the bud now and cut into the spiral, we can make sure that the next generation of youngsters does not suffer as the present generation is suffering.

Business of the House: Debates this Day
The Lord Privy Seal (Lord Williams of Mostyn): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the debate on the Motion in the name of the Lord Maclennan of Rogart set down for today shall be limited to three hours and that in the name of the Baroness Barker to two hours.—(Lord Williams of Motion.)
On Question, Motion agreed to.

Church and State
3.7 p.m.
Lord Maclennan of Rogartrose to call attention to the case for the constitutional separation of powers between Church and State throughout the United Kingdom; and to move for Papers.
The noble Lord said: My Lords, yesterday, a journalist returning from a holiday abroad said to me, "I'm a bit out of touch, but I hear that you have secured a debate in which you can be rude to the bishops". I was quick to say that he was, indeed, out of touch. Besides, how could I hope to rival that notable
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English cleric, Sydney Smith, who denounced his old schoolmate, Henry Phillpotts, who had become a conservative divine, saying:
"I must believe in the apostolic succession as it is the only explanation of the descent of the Bishop of Exeter from Judas Iscariot".
Reopening the issue of the constitutional relationship between Church and state, a matter that has unleashed high passion and wrought martyrdom throughout our history, may seem like the abandonment of common sense. "Quieta non movere"—"Let sleeping dogs lie"—may be the tag that springs to your Lordships' mind. However, after some self-questioning, it seems prudent and timely to have such a debate. The most reverend Primate the Archbishop of Canterbury led the way with a notable speech, delivered in Lambeth Palace on St George's Day last month, extolling the establishment of the Church of England. I wish, respectfully, to take issue with some of his arguments.
First, I must affirm that I do not have a wholly secular view of society. It is in the interest of organised religion and the proper working of democracy in this country that both should be self-governing. In the modern world, it is as bad for a Church to be seen as enmeshed in the state as for the state to be seen giving privileged eminence to a Church. I also affirm the actual and potential benefits of religion to the lives of our citizens. I acknowledge the beneficent effect that adherence to religion by the citizenry may have on society. The historian, Lord Acton, well observed that religion,
"locates and strengthens the notion of duty. If men are not kept straight by duty, they must be by fear. The greater the strength of duty, the greater the liberty".
Acton's syllogistic argument for religion and liberty fully recognised that,
"the paths of both are stained with infinite blood".
Acton spoke as a Roman Catholic. My own antecedents are different. I am a child of the Establishment in Scotland, as my late father was twice appointed Lord High Commissioner on the advice of Willie Ross, then Secretary of State. In Scotland, too, the relationship between Church and state stirs controversy. Noble Lords will recall that during the passage of the Human Rights Act 1998, the then Lord Advocate, the noble and learned Lord, Lord Hardie, overrode the objections of the Church of Scotland by refusing to exempt religious courts from the definition of "public authority", thereby enabling the secular courts to accept jurisdiction in a spiritual matter.
I note also the resolution of the Scottish Parliament in December 1999 concerning the Act of Settlement 1701, expressing the Scottish Parliament's wish that those discriminating aspects of the Act be repealed and affirming its view that Scottish society must not disbar participation in any aspect of our national life on the ground of religion. That repeal, a reserved matter for this Parliament, is a duty that we should not shirk.
The case for a state church to protect citizens from disorder caused by religious dissension may be traced back, in the Christian world, as far as Constantine. However, it received its real fillip as a principle of the

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Reformation, confirmed by the Westphalian Settlement. Establishment had more to do with public order than with the protection of religious truth. Even in the 1789 Declaration of the Rights of Man, freedom of religious expression was subjected in Article 10 to a public order proviso. In modern times, and in Britain in particular, religious toleration has tilted the argument in a different direction. The challenge for a modern democracy is to secure the equal treatment of' religions by law and the safeguarding of their coexistence in a plural society. That difficult task is not helped by the existence of a state Church.
Internationally, we face threats from within states where religious imperatives are claimed to validate external attacks. These acknowledge no superior international legal order. The fatwa against Salman Rushdie, which brought murder to Belgium and Japan, was no isolated incident, as the tragic events of September 11th in the United States have shown. There can be no religious override of international law. If we seek the international acceptance of such normative rules as guarantee religious toleration within Britain, all must ensure that British rules are shining exemplars. That is not so while the English common law of blasphemy applies only to Christianity. When in 1991 the High Court, in ex parte Chaudhury, blocked the English Muslims' case for the prosecution of Rushdie, the signal was clear: in England there is one law for Christians and another for the rest. It is too easy to conclude that it is the established Church which maintains this partial curb on the freedom of expression.
Perhaps Blackstone's well-known statement,
"Christianity is part of the laws of England",
would not be upheld today. It may be that the position has been changed by the Human Rights Act. I am simply not sure. In 1995, in the Wingrove case, European judges at the European Court of Human Rights endorsed the British censors relying on that Christian law of blasphemy. I would submit that the state Church might have served itself and the cause of freedom of speech by seeking its repeal.
But the impression created abroad may be of less importance than the impact of Establishment on our own society. In the speech to which I have referred, the right reverend Primate the Archbishop of Canterbury spoke of,
"the interweaving of Crown and State and Nation [which] have come down to us through the long and steadily evolving set of relationships known as the Establishment".
The heroism of that history touches us all. Have we not all been shaken as much by Cranmer's renunciation of his recantation as by Sir Thomas More's steadfast to death disavowal of the state church? Who is unmoved by the serene beauty of East Anglia's "wool" churches, the transporting periods of the Authorised Version of the Bible:
"Consider the lilies of the field, how they grow; they toil not, neither do they spin".
And yet I must reject the conclusions of the most reverend Primate. It is that historical "interweaving" called "establishment" which has drawn out for so
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long the process of entrenching toleration in our society, which has unduly protracted the removal of disability on the grounds of religion. Above all, it is the fact of establishment which has held hack the espousal of free and equal citizenship as the foundation of our democracy.
Such free and equal citizenship is surely not opposed to the Christian valuation of the individual, nor to the Christian ascription of responsibility to the individual. How regrettable that, so far from being in the vanguard of those who seek a civil society reflecting these values, the Church of England throughout its history has shown reluctance to embrace democratic reform.
When the five-day debate on the "Great Reform Bill" ended on 7th October 1831, the vote was taken. From the Bench of Bishops, one alone, Edward Maltby, then Lord Bishop of Chichester, was present in person to vote in favour. The infirm William Bathurst, Lord Bishop of Norwich, also sent his proxy vote in support. The rest, dragooned by the Duke of Wellington and marshalled by the then Archbishop of Canterbury, William Howley, voted en bloc the other way.
In this respect, history did not end with the millennium. The noble and learned Lord the Lord Chancellor, whom I thank for winding up our debate, will remember how in 1974 an Act was passed at long last enabling Roman Catholics to serve in his office. Only last year, the religious disqualification of the clergy from membership of the House of Commons was ended by statute. This Government have secured major constitutional reforms. Others may emerge, touching the place of Bishops in this House. These things are being done with a democratic electoral mandate.
But the constitutional power of the state over the Church and of the Church within the state is seen differently by the Government. When on 27th July 2000 in this House the noble Lord, Lord Bassam, answered on behalf of the Government a Question put to him by his noble friend Lord Dormand of Easington, he said:
"The Government would not contemplate disestablishment of the Church of England unless the Church itself wished it".— [Official Report, 27/7/00; col. 571.]
How the hereditary Peers must have wished that their place in our constitutional arrangements might have been similarly left in their hands.
But if the liberum veto rests with the Church, perhaps I should direct my remaining remarks not to the Government, but to those right reverend Prelates for whose presence and participation I am most grateful.
My concluding thoughts are these. The present Archbishop of Canterbury will retire shortly. Is it appropriate that his successor, first in honour among perhaps 70 million adherents to the Episcopal Church around the world, should be appointed by the hazardous advice of our Prime Minister? To

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Jeremy Paxman on "Newsnight" last week, Tony Blair affirmed both his Christianity and his very proper reluctance to,
"colonise…religion from one political position".
But how could any Prime Minister judge, say, the administrative efficiency of the different candidates, let alone their spiritual leadership qualities as well and as perceptively as the Church itself? Or is the political appointment of the one whom the Church would not have preferred simply a cross that it has to bear?
My second question concerns the role of the Church in relation to other faiths. When the right reverend Primate the Archbishop of Canterbury spoke of "hospitable establishment" on St George's Day, is the case being made that Muslims, Jews, Hindus, Sikhs, Buddhists, Presbyterians and Roman Catholics alike would do well to accept the Church of England lead in protecting their religion in our society? That would seem to lead to what the political philosopher, John Rawls, has described as the,
"containment of religious differences by seeking overlapping consensus".
That narrow consensus is not how most spiritually motivated people view religious truth. It was, perhaps, the least bad alternative in 1610 when Hugo Grotius wrote his ground-breaking Meletius or Letter on the Points of Agreement between Christians. For today it is an impoverishing choice limiting the rich pluralism of beliefs. Moreover, in modern society we face a triad of tensions between the rights-based claims of the state seeking to preserve unity, the religious and other groups seeking to preserve their particularity and the individual seeking freedom of expression and identity. It is the difficult duty of democracy to equilibrate that triad.
And so I ask the advocates of establishment, what do you fear? The state adds nothing to the power of the message of Christ. National religious leadership stems from the example of Christian charity, whether it be that of Cardinal Hume or of Archbishop Runcie.
About 50 years ago the sovereign took the Coronation oath to preserve the settlement. That solemn oath will not be lightly discharged, but if it is the will of her Church and her people, in this, as in all else, Her Majesty will do her duty.
A politician myself, I conclude with the words of another. Our Leader in this House, the noble and learned Lord, Lord Williams of Mostyn, said:
"The Welsh Church was successfully disestablished in 1914—effectively in 1920 after the First World War—and it is a thriving organisation within the life of Wales".—[Official Report, 12/3/98; col. 304.]
Much good has come out of Wales. It is time for the rest of us to follow that Welsh lead. I beg to move my Motion for Papers.
3.22 p.m.
Lord Faulkner of Worcester: My Lords, I congratulate the noble Lord, Lord Maclennan of Rogart, on introducing such a fascinating subject for debate and on his eloquent and intriguing speech.
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The House may recall that on 11th February this year I tabled a Starred Question about whether there are any plans to change the arrangements for the appointment of bishops and archbishops. My noble and learned friend the Lord Privy Seal replied on that occasion that currently there were not. He then referred to the review of the Crown Appointments Commission, chaired by the noble Baroness, Lady Perry of Southwark, and the forthcoming discussions that are to take place in the Synod of the Church of England.
In my short contribution today I shall question whether it is desirable or appropriate for the Government to be involved at all in episcopal appointments. Further on in the exchange on the Starred Question to which I have referred, my noble and learned friend reminded the House—this is consistent with what the noble Lord, Lord Maclennan said—that,
"There is an admirable model to the west of the border between England and Wales, where the Church…has an entirely different method of choosing bishops and archbishops and has, at the moment, an admirable archbishop who certainly speaks his mind on every appropriate occasion".—[Official Report, 11/2/02; col. 883.]
Other Churches in the Anglican communion follow a similarly inclusive approach for selecting their bishops, particularly the province of Southern Africa, the Episcopal Church of the United States and the Anglican Church of Australia. These are matters which will be considered by the General Synod of the Church of England in July, when the report of the review group chaired by the noble Baroness, Lady Perry of Southwark, will be considered.
There will, I understand, be a motion moved from the diocese of Southwark which will call for,
"a reform in the method of appointing diocesan bishops in the Church of England so as to detach the process from any involvement with Downing Street and the monarchy, and to provide for a more participatory and open Church procedure than is currently possible".
We can predict with some confidence that this will be a lively debate. It will, I am sure, be pointed out that the present arrangements for appointing bishops are governed by Henry VIII's Ecclesiastical Appointments Act 1534, the purpose of which was to exclude the Pope from any part in the process and to locate the powers solely in the monarch's hands.
Apart from the inescapable fact that, unlike in the days of Henry VIII, Church and state are now two separate entities and that Britain is now a multi-faith, largely secular society, the most significant recent developments came in the 1970s, when the last serious efforts were made to change the way bishops were appointed. The Chadwick Commission proposed in 1970 that a church commission should choose one name to be sent to the Prime Minister who, as a convention, would forward that name to the monarch.
This radical proposal was approved by the Synod in 1974, which indeed went further and effectively said that it was pointless to keep the Prime Minister in the process simply as a postman and that it would be more logical for the single name to be submitted directly to

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the sovereign. There were then discussions which involved the leaders of the three political parties. Eventually, on 8th June 1976, a Parliamentary Answer was given in the other place by my noble friend Lord Callaghan to a Question from the noble Baroness, Lady Thatcher. It stated:
"There are, in my view, cogent reasons why the State cannot divest itself from a concern with these appointments of the established Church. The Sovereign must be able to look for advice on a matter of this kind and that must mean, for a constitutional Sovereign, advice from ministers. The archbishops and some of the bishops sit by right in the House of Lords, and their nomination must therefore"—
note that "therefore"—
"remain a matter for the Prime Minister's concern. But I believe that there is a case for making some changes in the present arrangements so that the Church should have, and be seen to have, a greater say in the process of choosing its leaders".—[Official Report, Commons, 8/6/76; col. WA 613]
That led to a report to the Synod, which had then to make the best of an outcome which was a long way short of the "decisive voice" it had sought in 1974. It secured as a concession the right of any Church Commission to send at least two names to No. 10, stating the order of preference of the two and the precise voting numbers. But even then the Prime Minister would retain the right to refuse both and to ask for more names. In the case of the Archbishopric of Canterbury, the Prime Minister would also appoint an Anglican lay communicant to chair the commission. That is where we still are today.
Returning to the reason given by the noble Lord, Lord Callaghan, for why the Prime Minister appoints diocesan bishops—this is the "therefore" in the Parliamentary Answer—it is based on the assertion that, because only the Prime Minister can appoint Peers, so the Prime Minister must appoint bishops.
That argument no longer works. First, we now have new Members of your Lordships' House who have been appointed as Cross-Benchers by an independent commission. The Prime Minister has not played any practical part in their appointment.
Secondly, we are about to embark on the second stage of reforming the composition of your Lordships' House. I assume that for as long as the Church of England is the established Church we shall have representatives of the Church as Members. But do they have to be bishops? What happens if in future the Church says that it would like other men—and, indeed, women—to represent it here as well as the bishops? In those circumstances, where is the logic in the prime ministerial involvement in ecclesiastical appointments?
Thirdly, it is already the case that a substantial number of diocesan bishops never reach your Lordships' House. Obviously the odds on them doing so will get worse when the number is reduced from 26 to 16 or to whatever figure is finally decided. For those who do not make it here, again, why should No. 10 have anything to do with their appointments?
I could say a great deal more on this subject but I am aware that many other speakers are waiting to enter the debate. I conclude with one thought. It would be
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interesting to speculate how a practising Roman Catholic Prime Minister—and there will undoubtedly be one some day—would see his or her responsibilities for appointing bishops in a Church where number 37 of the 39 Articles states clearly and explicitly,
"The Bishop of Rome hath no jurisdiction in this realm of England".
3.39 p.m.
Lord Hurd of Westwell: My Lords, I join in congratulating the noble Lord, Lord Maclennan, both on his choice of subject and on the way in which he introduced the debate. He did this with an elegant conviction that is characteristic both of himself and of the intellectual tradition to which, as he told us, he belongs. It is a conviction that brings a cool logic—although in my view not always an irresistible logic—to bear on modern problems. That is the same logic that would convert our counties and cities into regions, this House into a body of wholly elected politicians, and—one day, although not today—our monarchy into a republic. It is the oldest philosophical argument in British politics: it is Hume and Paine against Burke and Disraeli. What I would argue his approach lacks is an understanding of certain loyalties and emotions that help to form us and keep us going in this country.
As regards government, there is no formal, clanking machinery to describe the relationship between the Church of England and the government of this country. There is, rather, a series of distinct and subtle relationships. When I was at the Home Office, and again at the Foreign Office, I used occasionally to cross the river, go to Lambeth and discuss with the Archbishop of Canterbury matters that were on my mind and about which I thought I needed advice that I believed he could give. This was not exclusive; there were others whom I consulted from time to time. However, with the Archbishop of Canterbury it was a natural visit. It needed no explanation on either side. It was useful to me and conceivably to him. I certainly did not feel that I was enmeshing him, to use the phrase of the noble Lord, Lord Maclennan, or that he was enmeshing me. I do not recall an occasion when the Archbishop urged me to follow a foreign policy that would lead us into war for religious purposes, as the noble Lord feared might have happened.
If that is true of the subordinate offices, it must be more true of matters about which t know much less; namely, the private and continuous relationships, as of right and as of office, between the Prime Minister and the Archbishop and between the Queen herself and the Archbishop. The good in these types of relationships is in my view clear and I do not see the harm. There would be harm if the Church became a tool or any ally of any particular government. However, I do not believe that it can seriously be argued that that is a danger now. We have moved a little way from the time of the Great Reform Bill and the Duke of Wellington.
The two most famous actions for which I suppose the previous Archbishop, Archbishop Runcie, will be remembered were his sermon in St Paul's Cathedral on the occasion of the Falklands memorial service and the publication of Faith in the City. Members of the

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government to whom I belonged were highly critical of both those matters at the time. I believe that both pronouncements stand up well. However, whatever their merits, no one can say that the Archbishop was acting as in some way a tool or ally of government. Archbishop Runcie himself used the phrase "critical solidarity". I do not think that that is at all a bad way of describing the potent relationships between government and the Church. Of course others also speak by virtue of their personalities of spiritual matters when they believe that the nation needs such a voice. But the Archbishop does so by virtue of his office. Much is expected of him, perhaps more now in the time of mass media. Again, the good is clear; I do not see the harm.
I remember going to France on the occasion of the D-day memorial celebrations, in 1994, and attending some of the British service commemorations that took place, as your Lordships will remember, along the beaches that clay. The then French Foreign Minister, Alain Juppé, courteously came with me. Afterwards, I asked him how our services differed from those which would have occurred on a French occasion. He said at once, "You have much more religion in your form of service. You have hymns and a blessing". We are of course familiar with that because of what happens at the Cenotaph each November, when we all recall moments of death, fear, courage and sacrifice. These are moments when people of all faiths are more likely to think of God and need God. I think it is right that we should have that particular dimension in our remembrances. However, that is a product and the result of the relationship that we are discussing today. Again, the good is clear; I do not see the harm.
We come in all shapes and sizes, not only in this House but in this nation. I happen to live in a benefice in Oxfordshire with 10 ancient village churches which are reasonably well attended, although not as well attended as they were. Many people go to other churches and even more stay at home. However, almost everyone, I think, in each of those villages looks on the church—that building, that place—as their church, the church of their community and of their nation. The test of that is a very practical one. I am always amazed at the way in which people are prepared to contribute truly large sums, whatever their own religious views or lack of views, to keep these churches in good repair.
Of course it is different in the cities. We are all familiar with the Victorian spire presiding over a neighbourhood that has totally changed since that church was built. In the talk that the Archbishop of Canterbury gave on St George's Day, to which the noble Lord, Lord Maclennan, has referred, the Archbishop said of the cities that,
"the draining away of services and resources at periods of economic hardship has meant that the parish priest has been at times a crucial focus for keeping beleaguered neighbourhoods afloat and for breathing into them a vision of new life and worth and purpose. Sometimes, the parish priest is the only professional person still living in the area he or she serves".
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We are talking of the biggest voluntary organisation in the country, with 13,000 parishes, and the only organisation of its kind that provides anything like a comprehensive network.
It is not a question of whether this situation changes; of course it changes. It is not a question of resisting or denying change, but of deciding whether that change takes place in harmony or by some abrupt break. The Church of England, like the Church of Scotland, was established, as the noble Lord, Lord Maclennan, said, by rough decisions of kings and queens. In its early days, both Churches used their authority roughly and to the exclusion of others. However, I do not think that that could conceivably be described as the situation today.
I declare an interest at this point as High Steward of Westminster Abbey. The funeral recently of Her Majesty the Queen Mother was conducted by the Archbishops, flanked by the Cardinal, flanked by the Moderator of the Church of Scotland, flanked by leaders of other Christian denominations and other faiths. All took part. However, they took part in the natural place, using their own words alongside the traditional language. I do not suppose that the next Coronation will be in the same shape as the Coronation of the Queen in 1953, because much has changed during that time. However, are we to say that the Coronation of the next sovereign is not to he in the Abbey, not to be conducted by the Archbishop of Canterbury, not to be a symbol of the nation gathered in that way to offer prayers and good wishes to the sovereign? I think that such a conclusion would be harsh and wrong. However, it is in the logic that the noble Lord, Lord Maclennan, has set out.
We learned from those who circled the coffin of the Queen Mother, not far from here, why they came. When asked, they all talked of a link with the past. The past is a different country where they do things differently, as Alan Bennett said. Many of our fellow citizens come from pasts quite different from our own, and we recognise that. However, they are now here in this country with our distinctive past. So let us change where change is needed, but in harmony with that past, keeping the links that help to hold us together. I believe that, of the links, the one we are discussing today is not the least important.
3.43 p.m.
The Lord Bishop of Durham: My Lords, I, too, thank the noble Lord, Lord Maclennan, for introducing this fascinating subject. I think that I speak for all Members on these Benches, both present and absent, when I say that we are very glad that the subject has been brought into the public domain at this time. It is a topical subject in the life of the Church, and this is a very good place in which to rehearse those arguments. It is also a great privilege to follow a speaker as distinguished as the noble Lord, Lord Hurd, who is such a stalwart in enabling the Church of England to think through much of its current strategy, not least on appointments and the role of the Archbishop of Canterbury.

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I believe that this is a hugely important issue, in relation to which we understand not so much the Church of England, but something about the heart of the nation. In other words, it would be a pity if this debate were to become side-tracked on to some of the issues and components of the Church-state relationship without our beginning to understand what we are as a nation. I do not believe that it is a debate about the so-called privilege—which we call service—of the Church of England.
I do not believe, in spite of the passionate intervention of the noble Lord, Lord Faulkner, that the debate is about the bishops' membership of the House of Lords, or indeed about the Prime Minister's appointment of bishops. There will be other places and other debates, even in this House, where those issues can be fully debated. I do not believe that the debate is essentially about the constitutional obligations which the Church of England carries out in every locality in the land; nor do I believe that it is about the scrutinising of Church legislation by Parliament. Each of those expressions of the Church-state relationship has proved capable of development and change without affecting the basic constitutional ties, and those processes will continue.
More subtly and more powerfully, the Church is part of a constitutional weave which includes the monarchy, Parliament, the law, and faith. The noble Lord, Lord Maclennan, asked what it is that we fear. For my part, a quick answer is that I fear the law being left to the lawyers alone, politics being left to the politicians alone, and religion being left to the bishops alone. We need each other in that weave of the constitutional understanding of the nation. Locally and nationally, each of those ingredients of our constitutional framework finds practical expression in what makes up a nation. Each element needs the other. Without the checks and balances, monarchy could become despotic; Parliament could become a playground of personal ambition; law could become detached from the hinge of justice and compassion; religion could become fanatical and fundamentalist—1 agree with that point. But within our national framework, we owe each other a mutual accountability; and indeed we owe a corporate accountability to the people of this land.
The record of religion, strengthened by a constitutional partnership, is impressive in the fields of education, social justice, the law and— with their historical and ethical insights—in disciplines such as medicine, the arts and economics.
That contribution is best made from within the constitution. The Church has a unique presence in every community. Perhaps that is even envied, especially by political parties. The Church exercises leadership in many regional and national institutions, because it is regarded there as a good broker between sectional interests.
Of course, some of these roles are played out by Churches and faith communities in other parts of the world which have no formal church-state expression. But we are here—we are where we are in the evolution
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of the constitutional arrangements with which we work. To disengage constitutionally from the Church would jettison the opportunity for the state to recognise the powerful contribution which religion plays in our national life, socially, morally and symbolically.
To consider closing that relationship would condemn religion to privatisation—perhaps that is what some people in public life are looking for. Religious institutions and individuals with religious motivation do not want to be patronised as though faith were a nice optional extra. They want to be partners with the rest of the policy-makers and the priority-formers—not in terms of privilege for ourselves, but for the common good.
The present constitutional arrangement offers a starting-point for further evolution shaped by The Times in which we live. It offers a gate through which other Christian traditions, and indeed other faith communities, can be encouraged into constitutional participation. This, I believe, is the way to provide for the voice of equality for which the noble Lord, Lord Maclennan, passionately pleaded.
Her Majesty the Queen is an example of a way in which these strands can be brought together in a celebration of national identity. The Church of England's presence at all levels of society, its relationships with other faith communities, its provision of a focus and a venue for the expression of powerful symbol—all these factors suggest its commonly accepted role and accountability among all the other expressions of national life. All those should not be abandoned without weighing very carefully the far-reaching consequences.
There is no evidence in history to suppose that a church with a formal relationship with the state loses its prophetic independence. The noble Lord, Lord Hurd, referred to some good examples in recent history. There is indeed much more evidence to suggest that the religious dimension, which touches the vast majority of the people of this land, is more likely to be side-lined, ignored or patronised if the religious voice does not have an acknowledged place within the fabric of the nation.
3.46 p.m.
Lord Habgood: My Lords, I welcome the debate. It has been one of the great strengths of the dissenting traditions to emphasise that at the heart of the Christian faith there is a tension between the kingdoms of this world and the kingdom of God. This is a crucial Christian insight, crucial in the most literal sense, because the Cross was the supreme demonstration of it. But it has from the beginning carried the danger, to which the right reverend Prelate has just referred, that Christians might separate themselves from this world, ignore the need for good government, and just carry on doing their own thing in their own little playground.
Fortunately, that is not what has happened. The biblical tradition that rulers are ultimately responsible to God was too deeply rooted to be ignored. Hence the early Church took the risk of involvement with the

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Roman state. The result is that we have a Christian civilisation, with all the strengths, plus all the potential for corruption which such a close relationship can bring.
The tension between worldly involvement and other worldly separation is inherent in the Christian faith. On the one hand, it is essential for Churches to maintain their own integrity and to be free to speak their own mind; but on the other hand, it is essential for the state to be based on some moral authority which has deeper and more permanent roots than the opinions of the government of the day, or even the will of the people. It is essential, too, for that authority to be more than just a memory; it needs symbolic expression. The 20th century, and even recent weeks, brought painful reminders of how easy it is for people to be bamboozled by unscrupulous leaders, and how highly popular movements, based on immoral principles, can attract great followings and have horrific consequences.
Our country is peculiar in that we have no written constitution, and our Parliament has no formal limit to its powers. As a result, the question of where the state's ultimate source of moral authority lies can be both urgent and controversial. The question of how it is symbolised is not trivial.
It might be argued that the Human Rights Act goes some way towards entrenching in law some of the basic principles of human behaviour; but it remains to be seen how effective an appeal to individual rights can be as a means for calling the state to account in the actual complexities of political life. In fact it has already become apparent in one or two cases how rights centred on individuals can prove to be inadequate guides in difficult matters of public policy. Nor is it convincing to say, as some do, that we should look at the United States, which is full of flourishing religions in an anti-establishment environment. But, of course, the Americans have their own national quasi-religion, based on the constitution and on the flag, with its own rituals.
To look for an ultimate moral authority is not to argue for the kind of religious ascendancy within the state, as expressed in the heyday of the establishment. Today, the Church has no such ascendancy, nor is it likely to have again, even if that were felt to be desirable. What we now have is a rather weak form of establishment, in which the two national Churches, here and in Scotland, have substantial power to order their own affairs, and in which the state, although recognising them, is not beholden to them. Neither is dependent on the other. But the fact of a relationship between the Church and the state safeguards matters of importance for both. In fact, they are rather lucky that the relationship has evolved, and continues to evolve, while still remaining unbroken. In my view, it would be foolish to spit on our luck.
Perhaps I may correct the noble Lord, Lord Maclennan. We are not a state Church. We never have been. If you want a state Church, you should look at some of the Scandinavian Churches. We have never been controlled by the state in that way.
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These days, established Churches place few constraints on government. However, they are valuable reminders that the state itself is not absolute. They point to a moral authority that transcends us all. In this Chamber we begin our day with prayer, because we are in a Christian country. The established Churches hold in trust for the whole of the United Kingdom the belief that sovereignty is to be exercised as a God-given responsibility and not as a manifestation of arbitrary power. They keep alive the language and ritual that allow such insights to be expressed. They bring into politics perspectives and accumulated experience, which can easily be ignored in the rough and tumble of political controversy. Nowadays, after a century of ecumenism and growing interfaith co-operation, they can do that in partnership with all religious traditions and can open the way for the interests of all to be represented at the highest level.
I differ from the most reverend Primate, our Archbishop. This is not about hospitality. It was very unfortunate that he used that word. It is about partnership. That is the way in which the Churches actually think about it. There is much evidence from other traditions that this role at the interface of religion with the state is both welcomed and valued. Establishment in this mode gives religion public access and a public face, and is a reminder that there are more important matters than political supremacy.
It has been rightly said that what the Churches of England and Scotland gain from being established has nothing to do with power or privilege. In so far as those exist at all, they are outward trappings. The real benefit is that, being public symbols of the importance of religion in the life of the nation, they are saved, as we have just been told, from the all too pressing danger of becoming private associations. In lean times, such as the present, it is easy for religious bodies to relapse into a kind of cosy sectarianism—there are signs of that already happening—but to do so would betray our history.
By all means, let establishment continue to evolve. We can no doubt do something about the Prime Minister, although, in 12 years' experience of the delicate matter of appointing bishops, I have never really had reason to fault the Prime Minister. But that is by the way. I gather from the laughter opposite that I have probably been misunderstood. Prime Ministers have many faults. However, in the particular matter of choosing between two names offered to them by the Church, they have, in my direct experience, always acted straight—and good for them.
It is useful to go on examining the rather subtle relationship that I have been sketching, whereby both Church and state are forced to reckon with one another, without being too beholden to one another. I therefore welcome this debate. But actually to sever the relationship would mean serious loss to both of us.
3.56 p.m.
Lord Lea of Crondall: My Lords, about two years ago, a former colleague of mine at the TUC, Marjorie Nicholson, who had retired some years previously,

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having been associated in particular with the TUC's work in Africa, India and the Caribbean, died. It was announced that her funeral would take place at a parish church not too far from St Albans. We all arrived, and there was the coffin. The first action of the vicar was to read a letter from Miss Nicholson, which she had written some days before her death. The key passage struck me rather forcibly. She wrote:
"Dear Vicar, I am an atheist—certainly an agnostic—but I wish to draw to your attention the fact that you are obliged to carry out a Church of England funeral service for me, using the Prayer Book, laid down under the Act of 1550 or thereabouts",
which he proceeded to do. I have often thought about that gesture. Was it absurd, as some may contend, or quite the opposite, as some may equally strongly contend? If it was not absurd, what inferences can we reasonably deduce from it?
First, the Church of England is very inclusive. It is involved with minor matters, of passing interest, such as: "Why is there a universe in the first place? If it was an accident, in respect of which norms was it accidental? How does it all relate to Darwin? Is Genesis an allegory on evolution?", and so on.
It is a fact often commented on that many millions of people in England—I speak as a back-bench member of the Church of England—share Marjorie Nicholson's view, which, not to put too fine a point on it, supports the retention of the established Church and at least its essentials, reflecting, as I believe it does, the settled opinion of the great majority of the country.
The starting point of the iconoclasts is seductive. Is it not time that the established Church was reviewed? It is, of course, regularly reviewed in detail. But, in its broader sense, this debate creates some strange bedfellows. In a recent article in The Times attacking the establishment of the Church of England, circulated to Peers by the National Secular Society, Miss Libby Purves wrote:
"I am one oft hose who believe that without faith human life is impoverished, but for God's sake keep it out of the corridors of power. The other way leads to crusade and jihad, to witch hunting; and Taliban, or at the very best the wet hesitancy of a PC Anglican Britain".
What a neat juxtaposition. But then we get a clue. Miss Purves continues:
"Trust me, I know. I am a convent girl".
"Bully for you!", I thought.
Even if we can all see the obvious fallacy of saying that if you do not want the Taliban, neither logically can you have the Church of England, with the Queen as its head, let us unpick this a little further. If I were the chief propagandist for the National Secular Society, I, too, would probably try to pose the two choices: the polarity of secularism against fundamentalism, whether in the sense of Hinduism, Judaism, Buddhism, Islam or Christianity. The Church of England—fundamentalist? I should have thought that fundamentalism was the one charge that no one in his right mind would ever contemplate making against the Church of England. The minority of UDI merchants in the General Synod and possibly on the Bishops' Bench, for all I know, would echo that.
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Does the Church of England have a privileged financial position? Far from it. On the question of the upkeep of churches, for example, the paradox is that in France, despite all its traditions of anti-clericism, the state actually owns the Roman Catholic churches built before 1905 and undertakes major repairs to them. I wish that the same were true in my parish of about 1500 where we are trying to find £300,000 for the fabric. I remind your Lordships that some 80 per cent of Grade I listed buildings in this country are Church of England churches.
I hope that I may introduce a somewhat irreverent note on the question of whether the Church of England is too political. It all depends what one means by political. The TUC—I was assistant general secretary at the time—invited the Archbishop of Canterbury to address Congress in Brighton in 1997. It was a very impressive occasion, both as regards the content of his address and the warmth of the response. The Archbishop spoke in the morning and the Prime Minister in the afternoon. I knew that the Archbishop had hit the bull's eye when a wag said at the dinner that evening, "Interesting day—we had the politics this morning and the sermon this afternoon".
On a slightly more serious note, when we took soundings of the TUC General Council on the question of inviting the Archbishop to address Congress, we also consulted Cardinal Flume. He said that he would strongly support such an invitation as he fully recognised the leading role of the Church of England. I recall that we had a similar conversation with the Reverend Tony Burnham, Moderator of the Free Churches' Council. We received the same answer.
The debate is couched in broad terms. I very much agree with the argument just advanced by the former Archbishop of York that this is not really a debate about the need for the Prime Minister to give advice to the monarch so long as the Queen is head of the Church of England and, to use a phrase which I believe the noble and right reverend Lord, Lord Habgood, used, unless one unravels the whole ball of wool. In respect of that and in respect of the formal religious position of the Church, I make one point which has not been made so far: there is no way in which the Queen can be one-tenth this, one-tenth that and one-tenth the other. That is an absurd proposition, whoever may make it.
In conclusion, the Church of England in broadly its present disposition is what a rather broad consensus of the people of England, with all their variations, are largely content with. To go back to the question of fundamentalism, the Church of England is very much the basis on which we can build a more inclusive society with all our friends from other religions. Indeed, I go further and say that as we become more multi-cultural, more Europeanised—I am very proEuropean—and more globalised, it is a part of our national architecture which the people of England would wish to sustain.
4.4 p.m.
Lord Pilkington of Oxenford: My Lords, I, too, congratulate the noble Lord, Lord Maclennan of Rogart, on introducing the debate. I confess to an interest in that I have been a priest of the Church of England for over 40 years.
When I was a young man learning at the feet of the noble and right reverend Lord, Lord Habgood, I felt passionately that the Church ought to be separated from the state as I thought in my enthusiastic youth that the Church was weakened by that connection and deprived of the opportunity to fulfil its prophetic mission in the state. However, over the years, and possibly through my experience as a curate in a parish, my view has changed. It is true that the establishment is the result of history and can seem odd in a modern and largely secular society. It is also true that the establishment has been abused and that the Church at times in its history has been a persecutor and an unhappy master. But in general, looking at the whole and particularly over the past 200 years, its effect has been beneficial rather than malign.
The Church of England at present—and certainly for the past 100 or so years—sees its role as being the servant of the whole community rather than a dominant force. My experience in a parish influenced my thinking about this matter. When I was a curate in a country town in Derbyshire I was seen by the whole population as someone to whom they turned, even though only 100 or so of a population of 5,000 went to Church. When I visited the sick, the bereaved and married and buried the various members of the parish, even those who did not regularly attend Church, I felt that my role was valued. I was the only person in the community who performed that role. When I visited people in street after street I never received less than a welcome in the homes I visited. However, that was not true of my non-conformist or Roman Catholic colleagues. They saw their role as being confined to their own communities. I and my colleagues were the only people who dealt with the whole community and to whom the community turned at times of death, sorrow and disaster.
The Church is the only institution that has that role in the community at present and the parish system is the only one that puts it into action. That in reality is the most concrete example of the establishment. If one separates Church and state, that goes overnight. The Church would become more sectarian and more denominational and would deal only with the believers—the 100 or so who attended Church in my parish. The matter is wider than that. The Coronation, and particularly the act of anointing, reminds us all in the absence—I endorse the remarks of the noble and right reverend Lord, Lord Habgood, in this regard— of a written constitution that in a largely unbelieving society the state has obligations beyond the practical and material. That embodies the very nature of our state, as the flag and the constitution embody America.
I must emphasise that that is valued even by non-Anglicans. Paradoxically, I am a governor of Downside. My colleagues at Downside value the
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establishment because they feel that religious issues are being placed in the context of political considerations. But, more than that, I belong to an inter-faith group and I have found that Buddhists, Muslims and other non-Christian denominations value the fact that within the constitution of England a religious view is represented by the nature of the establishment.
We have many examples in Europe of separation of Church and state caused by bitter revolution and secular logic such as—forgive my saying—the noble Lord, Lord Maclennan, has put forward, and it has resulted in bitterness and conflict. I remember attending a wedding in France where people stood in the porch of the church. They did not go inside the church as that was against their belief. They attended the wedding out of friendship but did not wish to hear a nuptial mass. We have avoided that situation here. In other words, the establishment has been benign rather than malicious. Even in the secular world it is good that the values of Christianity that we in this House all would recognise—compassion and care for others—should be represented at all important civic and national events, from having chaplains to mayors to services at the Cenotaph and, of course, a service for the Golden Jubilee.
All of that would go if we agreed to the Motion of the noble Lord, Lord Maclennan, and all of that would be lost if Church and state were separated. Let us give a thought to our history and realise that some good things may emerge from this establishment, and that sometimes one can be too Scottish and too logical.
4.10 p.m.
Lord Lester of Herne Hill: My Lords, the important constitutional issues to which my noble friend Lord Maclennan of Rogart has so powerfully drawn attention aggravate the problems we face in this country in promoting equal citizenship based on modern democratic values.
As the Home Secretary wrote in the Guardian on 14th December,
"It is vital that we develop a stronger understanding of what our collective citizenship means, and how we can build that shared commitment into our social and political institutions".
As several noble Lords have said, unlike almost all other western democracies we do not have a written constitution defining and limiting the powers of the public authorities of the state and the rights and obligations of British citizens. In the Human Rights Act 1998 we use the European Convention on Human Rights as a substitute for a basic constitutional charter. The archaic obscurity of our tangled constitutional arrangements undermines the notion of equal citizenship and a collective understanding of the core civic and political values of a plural society.
The problem is especially pressing as a result of the past half century of Commonwealth migration and settlement and Britain's membership of the European Union. It is aggravated by the failure to make a constitutional separation between the British state and the powers and activities of the Church of England. By

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the establishment of the Church of England, the state accepted it as a religion truly teaching the Christian faith and gave it a special legal and political position.
I pay tribute to the Church's great efforts in promoting inter-faith dialogue, especially during the past 20 years. But, as Clifford Longley pointed out in The Tablet on 11th May, in terms of establishment England is in unsplendid isolation. Of the 38 provinces that make up the Anglican Communion, 37 are disestablished and none of them regrets it. Establishment has been rejected in countries the world over, but not in England.
Surely, as my noble friend Lord Maclennan explained, it is in the best interests not only of the Church of England itself to cease to be the official religion of the state, but also in the wider public interest of the United Kingdom and its peoples. A constitutional separation would recognise the reality of our modern diverse society in which members of the Church of England number only about a million; a minority not only among those who are religiously devout in adhering to other faiths, but also among the overwhelming majority of our fellow citizens who do not practise any religion. Disestablishment would make it easier to promote racial and religious equality in an atmosphere of mutual tolerance and respect for human rights, and to promote a common and collective sense of what British citizenship entails.
In a perceptive article in The Times, Joan Smith argued that the accommodation with modernity that Christian Churches in the West made some time ago— usually expressed in a formal or de facto separation of Church and state—is in danger of unravelling. Her concern is with fundamentalist forms of religions which offer few compromises to other religions or other values. She rightly observes:
"There are good reasons for being phobic about all religions in their militant phase, whether Islam, Christianity, Judaism, or the fanatical form of Hinduism which has been targeting Muslims and burning them to death in India over the past few months."
In her words,
"There are few more urgent questions than whether people with strongly held religious views are prepared to live harmoniously alongside those of us whose faith is milder or who have no belief at all."
It would be much easier to seek to persuade people with strongly held religious—even militant—views to live harmoniously alongside others if there were no official state religion giving preferred treatment in our system of governance. I declare an interest as counsel for Penguin Books in the Satanic Verses case, where I learned a great deal that informs what I am saying.
I hope that the Select Committee on Religious Offences—and the Church itself—will support the abolition of the ancient and anomalous common law crime of blasphemy which protects Christianity against gross insult or attack as part of the special legal protection given to the established Church. In 1996, the Irish Supreme Court wisely decided that the offence of blasphemy was not recognised in Ireland because there is no established Church in Ireland.
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There is a pressing need to meet another legitimate source of resentment, especially among British Muslims; the absence of effective legal protection against unfair religious discrimination. I hope the Government will soon legislate against this form of discrimination, not only in employment and occupation, so that British Muslims may enjoy equal protection under law with ethnic minorities and with women.
There is also the vexed question of the preferred position of Christianity in state-maintained faith schools and the Government's plans to increase the number of faith schools. As part of the constitutional separation of Church and state, as in the United States, the government of this country should he carried out in a way that goes no further than supposing the existence of a supreme being. The United States is by far the most religiously observant country of any western democracy; yet neither religious instruction, other than broad-based humanities curricula, nor compulsory prayers are permitted in state-maintained schools. That makes it much easier to promote both the integration of immigrants and their children and a sense of collective citizenship and common purpose.
If we must have state-maintained faith schools, then let us at least ensure, as happens for example in France, that they are not permitted to discriminate against pupils of other faiths or no faith, and that they are required to teach a broad-based core curriculum.
Delicately, I hope that when this House is fully reformed, neither the Anglican bishops nor the Law Lords will be Members of the upper House merely by virtue of their public offices, a view shared by the majority of those who responded to the Government's consultation on Lords reform. As Clifford Longley observed, the notion inherent in establishment that the Church of England plays host to other faiths and religions is objectionable because it,
"tells any Catholic, Methodist, Jew, Muslim or Atheist, born in England with full legal citizenship that they still do not really belong to it…They are merely the guests of their hospitable host, the Church of England."
The time has come to remove those anomalies and sources of grievance and to complete the process of disestablishing the Church of England as part of a new constitutional settlement appropriate to the political and social conditions of this country in the 21st century. We should no longer by governed by the Tudors.
4.18 p.m.
The Lord Bishop of Birmingham: My Lords, this is a topic of perennial importance. We must be grateful to the noble Lord, Lord Maclennan, for initiating the debate, although, with the noble and reverend Lord, Lord Habgood, I shall want to dispute some of his assertions both of fact and interpretation.
There can be no absolute separation of Church and state. Let us take the example of France, where Church and state were separated on secularist principles in 1905. The state owns all the Church buildings—what kind of a separation is that? Even in the United States

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of America the Union flag has pride of place in nearly every church or chapel. That may be a separation of Church from state, but it is no separation of state from Church. The fact is that every Church exists under the law if only because it is a corporate body that employs people and holds property. The Methodist Church, which is a free church, is governed by the Methodist Church Act; the United Reform Church likewise.
That suggests that the idea of the separation of Church and State is a wax nose. One has to ask in each case what is meant. The same is true of the idea of establishment. So far as the Church of England is concerned, establishment is simply the particular set of laws and conventions by which its relationship with the state is governed. Other arrangements apply to other so-called established Churches, such as those in Scotland and the Scandinavian countries. It is worth remembering the situation in Germany, where the Catholic and Protestant Churches are free to order their internal affairs but are supported by state-collected taxes. Is that established or not?
In some cases, certain privileges may be involved but in others certain restrictions of freedom are involved. Earlier this month, when noble Lords were debating the proposed Divorce (Religious Marriages) Bill, my brother the right reverend Prelate the Bishop of Guildford said:
"we should be careful not to intrude on the internal theological and legal debates of different religious traditions. I do not think that Parliament would be wise to enter into that area".—[Official Report, 10/5/02: col. 1406.]
The right reverend Prelate's words were received in this House with widespread approbation. Well, if that principle holds for one religious community, it should hold for all. If Parliament should keep its nose out of the internal theological affairs of the Jewish community, the same principle should apply to all other communities, including the Church of England.
There is here a persistent issue—that has been so throughout 2,000 years of the Church's history; it involves the issue of the freedom of the Church. That involves not freedom for anything but freedom to pursue its proper ends. Speaking personally, I believe that the Church of England could do with a little more of the substance of freedom in exchange for a little less of the appearance of privilege.
To those who might fear disaster from that, I say that we should remember that the Church of England rests on deeper foundations than the present constitutional arrangements. I say to the noble Lord, Lord Pilkington, that the mission of the Church of England to all the people of England rests not on our relationship with the state but on the Lord's command to His Apostles to witness to the Gospel to all the peoples of the world. After all, there was a Church in Britain and bishops in Britain before ever there was a king of England, or even a House of Lords.
When people ask for a wider separation between Church and state, what are they asking for? Mere secularism is a dead end and can be as tyrannical as any religion. If ever the Church of England and the Church
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of Scotland are to lose their special position, that must be done in favour of the proper recognition of all religious communities, not of none.
The roots of much traditional opposition to the particular rights of the established Church, such as they are—actually, there are not many—lie in the schools' struggle of the late 19th and early 20th centuries. The arguments that we hear today are often a secularised version of that kind of nonconformist opinion, which involved the belief that one can remove the dogmatic accretions of ecclesiastical Christianity in favour of a pure remnant of unsectarian and uncontroversial Biblical religion. That tradition also had a low view of the corporate character of Christianity and put a corresponding stress on the individual believer. The secularised offspring of that tradition is the view that religion is a purely individual and optional affair. It fails to recognise the inherently corporate and therefore institutional aspect of all religious faith. The way to proceed nowadays is not by abolishing the rights of the Church but by recognising and establishing the rights of all bona fide religious communities.
One of my memories of this House's debates on the human rights legislation was the one-sided concentration on the rights of individuals and an unwillingness to accept that corporate bodies, including Churches and other faith communities, have an inherent life of their own with corresponding corporate rights.
Whether or not we talk about the separation of Church and state is really a diversion and a distraction. The vital issue for the human and spiritual good of our country is whether or not the state gives proper recognition to the inherent corporate rights of all religious communities. I say that in the light of having been Bishop of Birmingham for nearly 15 years. I say in passing that it is a pleasure to see my predecessor sitting on the Steps of the Throne.
The Church of England in Birmingham has virtually none of the trappings commonly associated with establishment—no vast cathedral and no cathedral close. We are about as far from Barchester as one can possibly imagine. Furthermore, the inherited political traditions of Birmingham are nonconformist. The Church's and the Bishop's contribution to the life of the city and its communities has to be offered on the basis simply of its merits and quality.
One of things that I have tried to offer is an insistence that public authority must take the religious dimension seriously. It has to deal not merely with many cultures and ethnic groups but with a variety of communities whose life is fundamentally determined by religious practice and belief. We must recognise that those faith communities will be able to make their proper contribution to the life of the wider community only in so far as society as a whole gives proper recognition to their community life in its integrity, including its religious integrity.
It is more than 90 years since Neville Figgis, who was both a priest of the Church of England and an historian of political theory—he was much admired by

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Harold Laski —gave four lectures to the clergy of the Diocese of Gloucester on the subject of Churches in the modern state. His concluding paragraph included the following words:
"We must learn to allow to others that liberty we claim for ourselves as a corporate society, and fairly face the fact which I have called 'the religious heterogeneity of the modern state'"
That, my Lords, was said 90 years ago.
4.27 p.m.
Lord Alton of Liverpool: My Lords, the right reverend Prelate the Bishop of Birmingham shared with us some of his experiences from Birmingham. The noble and right reverend Lord, Lord Sheppard of Liverpool, who is in his place, will, I am sure, have shared many of those experiences. His example, and that of the late Archbishop of Liverpool, Derek Warlock, show how irrelevant the debate on establishment or disestablishment is in the context of Christian unity and of interfaith dialogue.
The whole House is indebted to the noble Lord, Lord Maclennan of Rogart, for eloquently setting out the issues. The noble Lord, Lord Hurd of Westwell, put the other side of the argument trenchantly and vividly. The noble Lord, Lord Maclennan, did the House a service by initiating the debate, although share not his views but those of the noble Lord, Lord Hurd of Westwell.
On Trinity Sunday next, my father-in-law will celebrate 53 years as an Anglican priest. There are five ordained Anglican clergy on my wife's side of the family. I come to this debate as an outsider—as a Catholic. In common with many Catholics, I should oppose any move that seeks to weaken Christianity in Britain. I have my differences with individual Anglicans but firmly believe that the Church of England has brought innumerable benefits to our national life and that any attempt to undermine it would be inimical to the country's best interests.
I want to make three points. First, establishment recognises the centrality of Christianity in our society. Secondly, disestablishment would give the signal that religion and, more particularly, Christianity no longer matters. Thirdly, establishment is broadly welcomed by other faiths and other Christian denominations, although its precise form may well evolve. A number of the points raised by the noble Lords, Lord Maclennan of Rogart and Lord Faulkner of Worcester, and others, could be adequately addressed while remaining well short of disestablishment.
At her Coronation on 2nd June 1953, Her Majesty the Queen made a promise to God and the people to,
"maintain the laws of God and the true profession of the Gospel".
The Archbishop of Canterbury handed the Queen the Bible as,
"the rule for the whole life and government of Christian princes".
Beyond that ceremonial symbolism are the principles that underpin our constitution. Foremost among them is the recognition that the state and government are subject to a higher law—the law of God.
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Canon Tom Wright, who recently gave the first in a series of jubilee reflections at Westminster Abbey, observed:
"Where, in the last century, nations and states have decided to get rid of the symbols in then midst which speak of responsibility to God, they have quickly become totalitarian".
It is easier to destroy than to build. When I witnessed the wholesale destruction of communities in Liverpool, I argued then that we needed an 11th commandment, "Thou shalt not bulldoze until you know what you are going to put in its place'. If it is hard to rebuild communities, how much more so is it to rebuild institutions and traditions?
Institutions, from Parliament to the courts, from the Royal Family to the Church, are often hard to love and currently receive a bad press. But a landscape devoid of trees would be a bleak and barren place. If we continue to cut down all the trees, there will simply be nowhere left for the birds to sing.
As the noble Lord, Lord Pilkington, told the House all over the country the Church of England is still looked to by all kinds of people, from community leaders to the destitute, not only to preach the gospel and minister the sacraments, but also to be an honest broker, to hold the ring, to provide stability and focus and, yes, to provide hope. Over three decades now of being involved in an inner-city area, I know that some of the most dedicated and committed people have been local clergy—providing oases of stability. Establishment underlines the Church's responsibility to serve the whole community. When it has the courage to do so, it can also speak prophetically on social and ethical issues. The fact that it is here in your Lordships' House means that it is more likely to be listened to on those subjects.
Canon Wright succinctly captured the importance of establishment as a visible symbol of the role of Christianity in society when he said:
"It means that the church is there for everybody, and though of course there are many places where that means nobody bothers, there are many others where the society as a whole regards the church as its own".
I turn from centrality to my second point; namely, that disestablishment would send a clear signal that religion, but more particularly Christianity, is no longer relevant to contemporary society. No doubt this is something that some of the proponents of disestablishment would welcome. Yet speaking last week—and I agree with him—to London Church leaders, Trevor Phillips, chairman of the London Assembly, warned:
"A society which banishes faith is heading for catastrophe".
Christianity still provides our society with a moral compass, as well as social glue. The Prime Minister, Mr Blair, recognises this. He told a meeting of black Church leaders in Brighton that,
"to have faith is an important form of humility, because it is the recognition that there is someone greater than onesell".
The United Kingdom has never been a secular state. The hallmarks of Christianity are stamped all over our political and legal order. Each act of worship here is a daily reminder to politicians that their actions are

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finely constrained by God's higher laws. The wellbeing of a nation does not rest in legislative action alone, but in the goodness and providence of God's blessing.
Those who argue for disestablishment seem content with what Canon Wright labelled,
"a split-level world in which religion and faith belong upstairs and society and politics belong downstairs",
and never the twain shall meet. Here I particularly agree with what the noble and right reverend Lord, Lord Habgood, said about the consequences when we banish faith into a privatised sector. Religion would become a purely private matter that should not interfere or impact upon public life. Martin Luther King well understood what the consequences would be when he said that, in so doing, we would create a "dry as dust" religion.
Christianity is woven into the fabric of our nation and can be seen in the symbols, rituals and stories that pervade public life and that people cling to at times of national celebration, crisis and mourning. Let us think for a moment about the aftermath of 11th September and the events surrounding the recent death of Her Majesty the Queen Mother. Establishment becomes a focus for national unity.
Disestablishment of the Church of England would represent a significant milestone in the unravelling of what Dicey called the "dignified parts" of the constitution and would quickly be followed by other changes further weakening the role of religion in society.
Already there is a drive towards the removal of blasphemy laws, without saying what would be put in their place, or, indeed, how they could be extended to protect, for example, Muslim believers. The removal of prayers in Parliament and the removal of prayers and RE from schools have also been suggested, and challenges have been made to the role of chaplains in prisons, in hospitals and in the Army.
Disestablishment should be recognised as part and parcel of the secularist agenda, and that leads me to my third and final point. Secularists complain that the position of' the established Church gives privileges to Christianity not enjoyed by other faiths, and that it is socially exclusive. Yet establishment is welcomed by many other faiths and denominations. Within other Christian denominations, many believe that the public affirmation of Christianity through the established Church can give them the courage to witness publicly to their beliefs.
When John Smith wrote his booklet Reclaiming the Ground for the Christian Socialist Movement, he received responses from Hindus and Muslims thanking him for speaking out as a man of faith, because it allowed them to do the same. Clearly discriminatory legislation, such as parts of the Act of Settlement, must evolve but should not be used as a smokescreen for a politically correct and wholly secular agenda.
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When secularists argue that we live in a religiously plural society, they usually do not actually want to take those religions seriously. Today, no belief is regarded as true, except the belief that no belief is true—and that has become a new dogma.
The clarion call is "inclusivity", but this is often so much rhetoric. Being socially included is becoming a mask for enforced conformity. No one of faith will want to be socially included if it resembles the position of Jonah in the whale, or the chicken in the fox. We do not come out of a ghetto to sit mutely in the corner. The truth is that because many have lost the faith of their fathers, some insist that we must lose the faith of ours. Religious belief is belittled and sidelined and replaced by syncretism—lowest common denominationalism— that is, the belief of nobody, taught by anybody, and paid for by everybody.
Theodore Roosevelt once remarked that to educate a man but not to form his values is to create a menace. Mere knowledge without values is a disaster. Formation of the whole man or woman has been one of the traditional roles of the Church in England, and who can doubt that the challenge today to continue to do so is acute?
In conclusion, I am not saying that the Church should not consider new ways of fulfilling that role and meeting that challenge. But for the three reasons that I have outlined—centrality, continuing relevance, and the Church as a force for unity—I think that to destroy a relationship that has served our nation well would be foolish and dangerous. Tocqueville was right to urge us to overcome,
"a secret feeling of fear and jealousy that prevents the citizens from defending the institutions of which they stand so much in need".
4.37 p.m.
Lord Williams of Elvel: My Lords, the House will certainly be grateful to the noble Lord, Lord Maclennan, for introducing this very important debate. It is, of course, a long running saga, as the right reverend Prelate the Bishop of Durham pointed out. But it is no bad thing that from time to time we review the matter. In passing, I would simply note that I have no particular knowledge of the established Church of Scotland, worthy though I am sure it is.
Personally, I am fortunate in that I sit astride, as it were, two religious horses. I am a practising member of the Church of England, when I am in England, and of the Church in Wales, when I am in Wales. To be honest, as an ordinary man in the pew, if I may put it that way, I confess that I find very little difference between the two—the one established and the other disestablished. In England, for instance, there are various legal requirements on parish priests, some under the statute law and some under Canon Law. I refer, of course, to the legal obligation on parish priests to baptise, marry and bury.
In Wales, although there is no longer any statutory obligation, things seem to go on much the same. Priests baptise, marry and bury in just the same way as they do in England, apparently—I hope—with the

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same effect. The reason for this, to put it in a nutshell, is quite simply social: this is what the community expects, and this is what the community gets.
I am bound to say that—although I have been, I hope, a dutiful member of the Ecclesiastical Committee for a number of years—I have no particular view on whether the propagation of the faith, if I may put it like that, is helped or hindered by establishment. I can only report the view of a parish priest whom I have consulted; namely, that, one way or the other, establishment or disestablishment would make little or no difference to his work.
Having said all that, and announcing myself spiritually neutral, as it were, I have two serious practical objections. The first concerns the legislative implications. I remind your Lordships that it took Lloyd George seven years—admittedly, with the interruption of the First World War—to disestablish the Welsh Church, which he wished to do, so we are told, because he disliked the Welsh bishops of the day.
I cannot believe that disestablishment of the two Churches —England and Scotland—could be accomplished in a shorter period since, at least in England, the procedure would be much more complex. For example, in England, Parliament would not only have to abrogate its powers over the rules governing the Church but, presumably, would have to hand over existing legislation to the Church of England Synod. How that would work, I know not; but I suppose that, in turn, the Synod would have to re-enact that legislation if it so wished. But that would be entirely in its discretion.
Furthermore, the whole hole matter of the Crown would have to be re-defined, both as Supreme Governor of the Church of England and, thereby, as the residual author of Crown appointments. The whole apparatus, for example, of the appointment of archbishops and bishops —not to mention royal peculiars—would have to he re-east. Transfer of assets would certainly be another problem. In short, the Lloyd George timetable seems to me to be optimistic. It would certainly be a brave government that took it on.
My second objection is even more serious. It is this. The Archbishop of Canterbury, whoever he—or, perhaps in the future, she—may be, is not only the Primate of All England but the leader of the Anglican communion world-wide. As such, of course, he has great spiritual responsibilities. But he also has an immensely important political role, and one which is often overlooked. In any efforts to reconcile communities—in Africa, for example, or even the Church of the Nativity in Bethlehem most recently—the Archbishop of Canterbury is received not only with a warm welcome, as would be his personal due, but as a figure who at one and the same time is a spiritual leader and someone who has the immediate ear of the British Government when he needs it. I do not believe that that position could be maintained if the Church of England were to be disestablished.
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Whatever the domestic position of the Church of England—or the Church of Scotland, for that matter—all of us who value the force of reconciliation against conflict would be well advised to tread carefully before we raise domestic hares. The world needs spiritual leaders with both authority and credibility. England, whatever the historical baggage, provides one. We would lose it at our peril.
4.42 p.m.
Lord Brooke of Sutton Mandeville: My Lords, the noble Lord, Lord Williams of Elvel, believes that there is no difference between the Churches of England and Wales. The noble and learned Lord, Lord Bingham of Cornhill, was once worshipping at evensong in Wales with his daughter—my god-daughter. Two parishioners—a man and a woman—were sitting separately in the other aisle. The clergyman asked whether, as only three or four people were gathered together, they really required a sermon; indeed, he requested an answer. The noble and learned Lord, Lord Bingham, gestured to the two in the other aisle. The man, having elected himself foreman of the jury, said, "Don't mind". I speak as a Welshman. I do not believe that that series of events could have occurred in the Church of England.
Your Lordships' House is indebted to the noble Lord, Lord Maclennan of Rogart, for providing the chance to debate this topic—indeed, this topical topic. As he knows, he and I, in the words of Lycidas, were nursed on the self-same hill. The noble Lord is, of course, a Scot.
In 1706 Parliament passed paving legislation decreeing that, when the House of Hanover should succeed to the throne, Ministers should not sit in the Commons, thus notionally creating the separation of powers which the United States subsequently endorsed. Writing in 1739, Montesquieu commended our democratic pedigree and alluded to that separation of powers, clearly in ignorance not only of the fact that we had repealed the paving legislation in 1708 but also of all our subsequent history from 1714 to 1739. I have always wondered why we repealed the paving legislation in 1708. The noble Lord's antecedents and his initiative today convince me that the decisive factor was the Act of Union with Scotland in reinforcing our constitution in 1707.
Of those who are participating in the debate today on these Back Benches, my noble friend Lord Hurd of Westwell held high office in the state and discharges high responsibilities in the Church today. My noble friend Lord Pilkington of Oxenford has spoken of his clerical role within the Church of England. My role within these Benches' three-decker pulpit is the much more modest one of speaking as a man in a pew, although I should perhaps declare that for three years I had the great privilege vested in me by Church and state of chairing the former Redundant Churches Fund—now the Churches Conservation Trust.
Outside the trust, and, indeed, outside the pew, I was, at the time that Enoch Powell made his speech about rivers of blood, chairman of the Camden

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Committee for Community Relations—harbinger, I believe, of a body that the noble Baroness, Lady Whitaker, latterly chaired. I was, in another place, vice-chairman of the All-Party Parliamentary Group on Refugees. I value highly the multi-faceted role that refugees have played in this land.
I was present at a dinner of the Council of Christians and Jews some 15 years ago when it was remarked from the chair that, for the first time in a millennium of history, the Judaeo-Christian tradition was in retreat and Islam was advancing. Thereafter, as an inner-city MP, and also with more higher education in my constituency than any other in the country, I kept a modest eye on that advance. I imagine that your Lordships are aware that there can be very real hostilities within British universities between Christian and fundamentalist Muslim students, and that, if spiritual and intellectual conflict turns physical, that is a bad omen for the future.
At about the same time as the CCJ dinner, I attended a seminar, organised by my noble friends Lord Tebbit and Lord Lawson, on the charity concessions and charity loophole blockages in the 1986 Finance Bill. The first question from the floor was from Sir John Smith, the founder of the Landmark Trust, who said that he spoke as treasurer of his parochial church council. He opined that the Church of England had been engaged in an innocent debate about its purposes for more than 400 years and that the Finance Bill was going to settle the debate once and for all at the level of an Assistant Secretary in the Board of Inland Revenue.
The final question, much later, was, by happy equilibrium, from the Imam of all British Imams—or so I understood his title—who prefaced his question by saying that, unlike Sir John Smith, the Muslim Church knew exactly what its purposes were. That was regarded as a very British joke, but it had a separate resonance. The Church of England, is, after all, a very British institution.
I am not one who follows the view of the Scottish judge who said that a change for the better is a contradiction in terms; nor am I seeking to introduce a geo-strategic dimension to our debate today or even echoes of the Battle of Lepanto. But I cannot help harking back to the doctrine of unripe time, for all that it was lampooned by Francis Cornford. Of course, the noble Lord has done us a service today by airing the issue. But, although naturally I would not follow FE Smith in thinking of the disestablishment of the Church of Wales as an act which should shock the conscience of every Christian in Europe, which gave rise to Chesterton's marvellous poem, I hope that we shall not conclude the debate by seriously contemplating separation.
Even on a domestic front, the Church is wrestling with a pension problem more massive still than for those in secular employment. In their tablets to clergy who served 30, 40 or even 50 years in a parish in past centuries, the walls of our churches show the consequences of the absence of pensions in their era. That immobility must have affected the workings of
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the Church. Change has, of course, occurred since. My late noble kinsman in the 1920s attended a rustic evensong where the sermon began:
"Those of you who have been to Thermopylae will remember…".
I doubt whether such sentences occur today; nor are there patronal small advertisements in the Church Times, as there were in the 1930s, stating:
"Rural curate required. Slow left-arm bowler preferred".
But if immobility was the price we paid for being without pensions in the past, then churches unserved at all will be the price that we shall pay for it tomorrow. We do not need other distractions if we are to solve today's problems. And the fact of the church's existence, both with a lower and upper case "c", remains a desired Christian landmark, even among indigenous unbelievers, as indeed a number of your Lordships have already testified.
It was Henry VIII who set us today's examination question, but the magnificent ruins that he ultimately created, which English Heritage attend with care, are not living buildings. Like similar buildings in Ireland which testify to Ireland's role in the dark ages, they are part of our past, but not of our present.
I said at the outset that the debate was topical. The position of the bishops in your Lordships' House hinges of course on a wider debate about House of Lords reform, but it also hinges on today's issue. The bishops can speak here only if there are enough of them, as they also have full-time diocesan duties.
The admirable speech of the right reverend Prelate the Bishop of Birmingham in yesterday's debate on our working practices in this House was as good a prefatory text for today's debate as any.
4.50 p.m.
Baroness Walmsley: My Lords, I join other noble Lords in thanking my noble friend Lord Maclennan of Rogart for introducing this debate.
I believe that the constitution of this country should serve its people, both individually and as a community. On the basis of both of these criteria the Church of England should be disestablished.
The relationship of the Church of England with the state is a historical one and our culture has a generally Christian ethos. That is our tradition in this country. I think that it is reasonable to expect people who come to live here to respect that, just as I respect the culture of an Islamic country if I visit one. However, I also believe we should equally respect the religions of those whom we welcome to live legally in our country. All genuinely held religious beliefs should be treated with respect in today's multi-faith Britain. People should be free to practise them so long as they do not impinge on the freedoms of the rest of our citizens.
However, the validity of the case for having an established Church has been overtaken by the actions of our citizens themselves, or rather—should I say—their inaction. Church-going is very much a minority activity in England and Anglicanism is now a minority religion. According to the February 2001 Statistics of

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Religious Trends, membership of the Church of England has fallen to one third of what it was in 1930, of which only one-quarter actually attend church regularly.
If one assumes attendance at church to be an indicator of genuine belief, the Church of England is not even the predominant Church. The attendance figure for the Roman Catholic Church, being about one-third, is higher as a percentage of its membership and higher in actual numbers. Other religions have about 40 per cent attendance. Church attendance overall is therefore a minority pursuit even among its members. This minority Church, the Church of England, does not, and cannot, represent all religions in public life in the way that the right reverend Prelate the Bishop of Durham suggested.
In 2000, only 8.1 per cent of the population attended any church regularly. There is also reason to believe that the downward trend in the Church of England is gathering momentum because the average age of its members is rising. I do not believe that this decline in religious practice necessarily indicates a lack of spirituality among our population, nor a descent into a lifestyle lacking in morals and values. Many of the most spiritual and moral people I know do not attend church or belong to any religion.
My view on this constitutional matter is not an attack on the Church itself or on any other religion. Indeed, I believe that all people of faith should have an equal right to practise their religion, either in their own home or in a place of worship of their own building and maintenance, if that is how they prefer to do it. I also believe they should have a right to communicate their religious views to their children and bring them up within their own set of moral values. I just do not believe that the state should discriminate in favour of any particular religion and give it a voice in the making of legislation as of right. This is the only legislature in the western world where one religion has places as of right.
Neither do I believe that it is the state's role to force children to undertake a daily act of worship in school, in a state where a minority of citizens profess a faith, nor to subsidise the education of children in any particular religion. I believe the way to equalise educational opportunity is not to set up many more faith schools, because it is quite impossible to do it that way. Where does it end? There are dozens of religions in this country. Are they all to have schools within the reach of every family so they all have an equal opportunity to go there? No, the answer to the challenge of educational equality for people of all faiths is to ensure that faith-run schools serve the communities in which they are located and are not allowed to use a "faith test" as a barrier to admission. After all, they are built and run on money that comes from the taxes that your Lordships and I pay and they should therefore serve us all.
If faith schools are not prepared to agree to this reasonable request, the only alternative, in order to equalise opportunity, would be to secularise education completely, while ensuring the freedom of religions to
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teach their faith to their children outside the classroom. That way, children of every faith would have an equal opportunity to go to the best schools in the country.
Some people claim that parents want church schools. I believe that this is a misunderstanding of the real situation. Parents want good schools and many church schools are good schools, although not all of them. Indeed, some have had poor Ofsted reports, and the Catholic schools in Scotland had a real problem not many years ago, although I gather that has improved of late. However, the standard of education in some of our state schools is so poor that some parents of no faith are prepared to be hypocritical and attend church for months or years in order to ensure that their children can go to a good church school. The churches and the heads of church schools know this perfectly well. They conspire to allow it to continue in order to keep up the impression of a high demand for faith-based education.
All our children deserve a high quality of education. It is a dereliction of duty for the state to pass on to any Church the responsibility for providing it. I think France and the United States have something to teach us. France is normally regarded as a Catholic country and yet its schools do not discriminate on faith. That does not seem to prevent the French from teaching their religion to their children.
Under the United States constitution, as several noble Lords have mentioned, the schools are secular and yet both membership of faiths and attendance at church in the USA are higher than in this country. In answer to the fears of the noble Lord, Lord Alton, Christianity is stronger there, not weaker. Indeed, looking at the figures, the Churches may well feel that the fact that we have an established Church and many faith schools actually holds them back. There is certainly evidence from the United States that secular education, where faiths and races mix according to the mix in the community, has contributed greatly to the improvement in race relations over the past 40 years. The situation is still far from perfect but I think they have something to teach us about the benefits of integrated education on race relations.
Finally, I shall say a word about the human rights of the Royal Family. If one believes in the right of every citizen to choose which religion to practise and to practise it freely, one must extend that same right to the Royal Family. What nonsense, therefore, to institutionalise a ban on Prince Charles becoming a Catholic, a Muslim, a Hindu or anything else, on pain of losing his right to sit on the throne when eventually the angels take his mother. It was both courageous and realistic of Prince Charles to say that he would like to be a defender of faith rather than a defender of the faith.
To summarise, therefore, I believe that the Church of England should be disestablished on the grounds of human rights and equality of opportunity for all children and not because I am anti-religion in general or any religion in particular. On the contrary, I believe that religion is a valuable and integral part of our

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culture and history, but its relationship with the state needs to be brought up-to-date and in line with the reality of the 21st century.
4.58 p.m.
Lord Morgan: My Lords, it is a pleasure to follow the lead given by the noble Lord, Lord Maclennan, whom I first met on the campus of Columbia University nearly 40 years ago. He has spoken with characteristic courage.
I suppose I should declare an interest as the only living author of a book on the history of Welsh disestablishment. It is not a long book, and I doubt very much whether anyone would wish to emulate it. But it brings us very near home because Irish disestablishment in 1869 was the disestablishment of a separate Church—it merged with the Church of England only in 1800—whereas disestablishment in Wales was the disestablishment of an integral part of the province of Canterbury, which for a millennium and-a-half had been part of the Church of England. So this brings us near home.
We have heard about FE Smith and Chesterton. It was a profoundly political argument which was decided, I may say—the noble Lord has disappeared not by Lloyd George but by Mr Gladstone, that famous Anglican who laid down that the verdict of the ballot box—political consideration—should predominate. The Church was seen as a minority linked to the Tory party, hostile to the interests of Wales and unsympathetic even to causes such as that of the University of Wales.
Since disestablishment, the Church in Wales has been transformed. It has grown; it has been a dynamic Church; whereas the Welsh non-conformist chapels have gone into decline. It has been far more responsive to social and cultural change. The poetry of R S Thomas, a parish priest, full of social and cultural criticism, would have been inconceivable in the suffocating atmosphere of the Church prior to disestablishment. It has been far more sympathetic to the Welsh identity—the noble Lord, Lord Roberts, may confirm that. It has done much to promote the Welsh language. The Church of Wales has been intimately involved with all the main national movements in Wales in recent decades, including disestablishment. No longer can it be called the Church of England in Wales—Eglwys Loegr; an alien Church.
Finally, the Church is much better off. In Wales there was not just disestablishment but disendowment—the secularisation of tithe and of glebe, which went to excellent causes such as the University of Wales and the National Museum and Library. The Church has been better off because it has been able to develop an enterprising policy in relation to property investment.
So the disestablishment of the Church in Wales, which aroused many of the objections that we have heard in this interesting but somewhat traditional debate, has been a success. If I read the newspapers
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aright, there is the interesting prospect that the head of the disestablished Church in Wales may even—who knows?—become head of the established Church of England, which, as my mentor, AJP Taylor, would say, would indeed be one of history's curious twists.
Wales shows England the importance of reacting to history. One noble Lord—forgive me, but I forget who—said, "Let us give some thought to history". Let us indeed give some thought to history, but real history, not the metaphysical, mystical concept floating detached from time, space and reality about which we have to a degree heard this afternoon. Wales shows how we should respond to history. Church and state were thought of as coterminous, as embodying the same principle of coherence. The Church has wisely withdrawn.
There has been a long process of civic equality since the 1830s. Incidentally, that is one major reason why our politics have not been blighted by anti-clericalism or the bitter message of some in the National Secular Society. That has occurred in France and Italy but not in Britain, which is to the credit of the Church.
The Church has contributed immensely to our national life through education, the debate on the inner cities and, latterly, the involvement of bishops and others in the movement for regional government. But that is the Church, not the establishment. Establishment has several damaging features, one of which was admirably described in the speech of the noble Baroness, Lady Walmsley: the Church claims to be a national Church. If the words mean anything at all, it is not. It is not even remotely a national Church. Its members form fewer than 2 per cent of the population.
At the most generous computation, even counting all the members of all possible religious bodies in the country, more than four-fifths of the population of the United Kingdom are not identified with any religion. In fact, the vast majority of people in the country belong to a community not represented in this debate: those who do not go to church, who do not have religious faith—unbelievers, as it were. They are the majority; they are the reality; and we should pay heed to them.
The Church of England is now, as it has been for many decades, a fraction of a fraction. Ever since urbanisation, when cities began to grow, the Church has been unable to retain contact with its natural constituency. Establishment is especially inappropriate now in a secularised, multi-cultural and multi-faith society.
I was fascinated to listen to the speech made by the right reverend Prelate the Bishop of Birmingham. Establishment causes anguish in many souls. There are many leading churchmen at present who are the natural heirs of people such as Bishops Charles Gore and Henley Henson, who were strong advocates of disestablishment and who saw the Church's sense of mission and independence severely compromised by the shackles, as they saw them, of establishment—in particular, the fact that leading officers in the Church are appointed by the Prime Minister. The Church is, as

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it were, a giant apostolic quango, part of Prime Ministerial patronage. That is demeaning for a great and historic institution. I am not a churchman, but I deeply regret that and I feel for the Church as it exists.
As the noble Baroness, Lady Walmsley, also explained, establishment is also an anomaly in the constitution. Incidentally, the sovereign is, under Henrician, Elizabethan and Tudor period legislation, Supreme Governor of the Church of England. As I said, the Church in Wales is disestablished; and the sovereign is not supreme governor of the Church of Scotland, where the Church-State relationship is expressed in a different way. Whether such a distinction is appropriate for an era of devolution is perhaps open to debate.
The constitutional role of the link between the monarch and the Church of England creates many anomalies, as the noble Baroness said. For example, there is the question of the faith of the sovereign and the attitude, at least formerly, of religious bodies as to whether the sovereign should or should not marry someone who is divorced. That is not merely promoting views that are totally at variance with the views of the overwhelming majority, especially of young people, who are not represented at all in this House—possibly in the Public Gallery but certainly not in the House. People under the age of 30 or 40 do not understand that. That forces the Church into an intolerant position that it does not support.
Establishment is an incubus to Church and to state. There are many other models, including, as we have frequently heard, that of the United States. With respect, I take issue with the observations of the noble Lord, Lord Habgood. It is false to see patriotism as a religion. It is an ideology, a set of cultural, political and social ideas: it is not a religion. The United States–perhaps not always in the most helpful and attractive way—has shown how Churches flourish under the situation provided by the First Amendment of the Constitution since 1787: the separation of Church and state.
There is no "middle way", to coin a phrase, in this debate. Nothing resembling the Scottish arrangement is feasible for the Church of England. We should remove the last relic of Tudor centralism—no others are left. It is out of date. We should adhere to the principle of a free Church in a free state.
5.8 p.m.
The Lord Bishop of Portsmouth: My Lords, I am grateful for the opportunity afforded by this welcome debate to explore the Church-state relationship. For reasons that will become obvious, I am a strong advocate of the evolution of that relationship, rather than its demise. I say that as someone who is proud to say that I have not one drop of English blood in my veins.
However, I first pay tribute to my friend and colleague, the right reverend Prelate the Bishop of Birmingham on this his last week in office. I have been privileged to know him for many years. As a young and highly critical curate, I remember a sermon he
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delivered in Lincoln Cathedral that I still number as among the best that I have ever heard. When I published some research, his gracious foreword demonstrated a sharper understanding than mine of the many issues that I was trying to elucidate. He played a prominent part in my consecration as bishop and was the senior bishop who introduced me to your Lordships' Chamber two and a half years ago.
Many people have benefited from his wise and trenchant contributions here. I know that I speak for many of your Lordships when I pass on our thanks and best wishes to him on his retirement.
Noble Lords: Hear, hear.
The Lord Bishop of Portsmouth: My Lords, the issues before us are complex, and I do not intend to rehearse them all. Nor shall I raise some of the points of detail that I would question in the powerful speech made by the noble Lord, Lord Maclennan of Rogart, and in what the noble Baroness, Lady Walmsley, said about education. That can be left for another time.
I am glad that the Motion refers to the whole of the United Kingdom. My fellow Scot, the noble Lord, Lord Maclennan of Rogart, will, doubtless, be aware of the Act of Parliament that set up the re-united Church of Scotland in 1929. I do not know how long it took to draft, but it walks the establishment tightrope carefully. It reserves patronage to the Kirk itself, thus placating the demands of the former United Free Church, while maintaining the historic place of the Kirk in the life of the nation. Technically, at least, the Kirk relies on that Act for that place.
That view goes back to Calvin's understanding of,
"the twofold government in man".
Noble Lords must excuse the non-inclusive language of that era. Calvin said that,
"one aspect is spiritual…the second is political".
Thus, the Church has a positive duty to the state, and those words were echoed later in the 16th century by the Anglican theologian, Richard Hooker. It is a view that, with deep gratitude, I saw reflected throughout my childhood in Scotland, albeit from the perspective of an Episcopalian.
No church needs establishment for its existence. I assure the noble Lord, Lord Maclennan of Rogart, that I fear no one except God and, perhaps, my chaplain. Although one could argue for the possibility of separating powers while retaining establishment, it would be difficult in practice, as many of the speeches made this afternoon demonstrated. So, what is the case in favour?
First, I acknowledge many anomalies and widespread misconceptions. Following on from what was said by the noble Lord, Lord Lea of Crondall, I should say that one irritating anomaly that is increasingly resented by parish communities is the crazy scenario in which the Government get more from churches from VAT on church repairs than they pay out through English Heritage. That situation is not confined to the Church of England, although it bears the brunt of the burden. Many congregations are

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expected to maintain the national architectural heritage single-handedly, and many regard the Church-state link in that instance as being distinctly one-sided in its benefits.
The repeated assertions by Roman Catholic journalists of the absolute need for disestablishment are misconceived. They forget conveniently the long history of sometimes rather dubious Church-state concordats concluded by the Vatican and the fact that the president of France, no less, still nominates bishops for Alsace-Lorraine. As in so many other things, life is more complex than it seems.
My fundamental point concerns the need for a religious point of reference in the nation. It is of abiding significance in our increasingly pluralist society. As a member of the Select Committee on Religious Offences, I can assure the noble Lord, Lord Lester of Herne Hill, that his words on the blasphemy law are carefully noted; I concur with them. However, I do not believe that the agenda that often lies behind Motions of this kind adequately reflects the spiritual flavour of post-modern Britain. I am thinking of world events since 11th September, which make Europe's sometimes aimless and cynical way of relating to and adapting her cultural and political history look somewhat tired. Religion is back on the worldwide agenda; it is back in the market-place. It may be more individualised than before, but that is a characteristic of many other aspects of modern life. The whole business of joining and signing up and passive membership is as aspect of political life, as well as ecclesiastical life.
I know that many leaders of other Churches and faith communities value establishment as an important point of spiritual reference. I am led to believe that that is the position of the Chief Rabbi. When we talk to other faith leaders, we find that many of them hold the view that one cannot be a defender of all faiths in the abstract and general; in order to understand other faiths, one must be secure in defending one's own. There is no inevitability about the post-Enlightenment, secularist agenda. Increasingly, the post-modern world views religious and spiritual issues in a way that must be taken seriously and requires specific but inclusive embodiment, not merely vague recognition.
The position argued strongly by the right reverend Prelate the Bishop of Birmingham in the context of a pluralist society would not be so argued by, for example, the right reverend Prelate the Bishop of Bradford. As the Church of England, we are not clinging on to privilege, as the right reverend Prelate the Bishop of Durham said. Like the right reverend Prelate the Bishop of Birmingham, I speak from a perspective that is as far away from Barchester as is imaginable. The model of establishment that I set before your Lordships' House is sometimes called an inclusive particularity. There are examples of that growing and developing in many places, from the way in which schools are run to local chaplaincies, civic and other. In Christian terms, it was demonstrated in a high profile way at the funeral of the Queen Mother,
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although I suspect that the noble and learned Lord the Lord Privy Seal and other Welsh Peers will have noted the absence of a voice from Wales.
Such an inclusive particularity is something, rather than nothing. It can invite and encourage other voices in partnership into a responsibility to articulate what Calvin called,
"the twofold government in man"
in which the spiritual lives side by side with the political, perhaps even enjoying facing head-on the tensions that such a recognition may, from time to time, involve.
5.17 p.m.
Lord Goodhart: My Lords, my noble friend's Motion has given rise to an outstanding debate. I hope that other speakers will forgive me if, like the right reverend Prelate the Bishop of Portsmouth, I pay particular tribute to the right reverend Prelate the Bishop of Birmingham. I do so with pleasure for his subtle and thoughtful speech today and with regret as it will be the last occasion on which he will speak from the Bishops' Bench. I feel that regret all the more strongly because, for the past 20 years at least, he has been a personal friend.
The relationship between Church and state has been a major issue throughout Europe ever since Christianity became the dominant religion of the Roman Empire in the reign of Constantine, 1,800 years ago. That relationship has, sometimes, been stormy. In particular, the Middle Ages were a period of conflict between the temporal power of kings and the spiritual power of the Pope, a conflict symbolised in England by the battle between Henry II and Becket.
After the Reformation, there was a profound change, and, in England at least, Church and state became symbiotic. The established Church supported the established government except in 1688 when the Church withdrew its support from James II because he showed an intent to withdraw his support from the Church. In return, the government supported the established Church by protecting it against the other Churches and by giving its members certain special rights. We are concerned with two relationships: that between the state and the established Church and that between the established Church and the unestablished Churches and, increasingly, other faiths.
I shall consider the second of those relationships first. The Church of England has lost almost all the legal rights and privileges that were once closed to members of other churches and faiths. Members of the Church of England long ago lost the exclusive right to vote, stand for election or hold public office. Indeed, no longer would anyone raise an eyebrow at the fact that the leaders of both the Conservative and the Liberal Democrat parties are Roman Catholics, as are my noble friends the leader and deputy leader of the Liberal Democrats in your Lordships' House. The Prime Minister himself is married to a Catholic and sends his children to a Catholic school.

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Again, members of the Church of England have long since lost the exclusive right of admission to Oxford and Cambridge. The Church of England has lost its right to levy a tax on agricultural property in the form of a tithe, perhaps its most important right and certainly its most unpopular one.
Therefore the relationship between the Church of England and other denominations and faiths is now largely one of equality. The Church of England does not claim exclusive access to truth and, in matters of legal rights and privileges, the Church of England claims for its members no priority over members of other faiths and those with no religious faith. So the state no longer supports the established Church against the other Churches or faiths because the Church of England no longer seeks or requires it to do so. Thus, that part of the symbiotic relationship has ceased to exist.
If the established Church is no longer seen as a bulwark of the state against other denominations, what is the justification for maintaining the special relationship between the state and the Church of England? I have to say that I believe that there is none. In that I must part company with the right reverend Prelate the Bishop of Durham and the noble and right reverend Lord, Lord Habgood. Our objection is not that establishment links religion with public life, but that in doing so it creates a special relationship between the state and one denomination of one faith.
It is not enough to say that the Church of England acts in some sense as a trustee for other sects or faiths. That suggestion is, I believe, very questionable. I also disagree with the noble Lord, Lord Pilkington of Oxenford, that the Church of England is the only Church which looks after the whole community. When in the 1980s I was a parliamentary candidate in Kensington, in the very poor wards of North Kensington I found that the Roman Catholics and the Methodists were at least as concerned with the whole community as was the Church of England. I have in mind in particular two remarkable Roman Catholic priests who will be well known to the right reverend Prelate the Bishop of Birmingham because he was then the Bishop of Kensington, Father Michael Hollings and Father Oliver McTernan.
The Church of Ireland has of course long since been disestablished. It was disestablished by a Liberal government under Gladstone. The Church of Wales was disestablished by a Liberal government under Asquith. Indeed, that disestablishment was the first Act passed without the consent of your Lordships' House under the Parliament Act 1911. I accept that the circumstances of the Church of England are different.
In Ireland and, to some extent, in Wales, the established Church was the Church of a small minority and thus seen by most inhabitants as alien to their personal religious concerns. Certainly in Ireland, although not in Wales, it was an object of positive hostility. Of course that is not the case in England today. In England, many people who are not members of the Church of England regard it, as I do, with great respect and totally without hostility. One could say
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that in many ways it is one of the best-loved institutions in the country. But that is not enough to justify the continuance of the establishment.
Disestablishment, the treatment of Churches and faiths as equals, would involve the repeal of the Act of Settlement and that part of the Bill of Rights which excludes Roman Catholics from the throne. No longer is it acceptable to limit the descent of the Crown to Protestants or to remove from the throne a sovereign who converts to Roman Catholicism or marries a Catholic. I believe that the Act of Settlement should go, even without disestablishment.
Repeal of the Act of Settlement would not exclude a Coronation. As matters stand, a Coronation is not a legal requirement. King Edward VIII was a king of England although he was never crowned as such. The form of the Coronation would be a matter for the sovereign who was to be crowned, although I should say that I believe that the Coronation oath should not be used in the anti-Catholic form specified by the Accession Declaration Act 1910, which was itself an improvement on the rabidly anti-Catholic form prescribed by the Bill of Rights and the Act of Settlement.
Disestablishment inevitably would mean the removal of the reserved places for bishops in your Lordships' House, even if 40 per cent of the bishops were female. I have to say that this would be a cause of real regret. If there is one group within your Lordships' House with whom we on these Benches agree across a wide range of issues, it is the bishops. I remember in particular the powerful and convincing report of the Church of England, Faith in the City. On personal grounds, too, I should like to see the bishops still in their places. However, I do not think that the Church of England should be the only Church that is represented here and I do not think that a compromise would be acceptable. That could leave us with a smaller number of bishops and add official representatives of other Churches and other faiths.
Disestablishment would remove the right of the state to interfere in the affairs of the Church of England. Once again I agree with the right reverend Prelate the Bishop of Birmingham that this needs to be done. No longer should it be necessary for Church measures to obtain the approval of Parliament. The Church of England should be free to choose its own bishops and the next Archbishop of Canterbury surely should be the last to be appointed with the imprimatur of 10 Downing Street.
I believe that establishment now confers little benefit either on the Church itself or on the state. Unlike the noble Lord, Lord Alton, I do not believe that disestablishment will lead to any destruction of or damage to faith, any more than did 75 years of communist rule destroy faith in Russia. The presence of the bishops in your Lordships' House does confer a benefit because of the quality of their contributions to our debates, but it remains an anomaly that I do not believe either can or should be retained in a reformed second Chamber.

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In 1789 the Congress of the United States of America passed the first 10 amendments to its constitution, those amendments now being known as the Bill of Rights. The first words of the first amendment state:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof".
On that occasion, I believe that Congress got it right.
5.27 p.m.
Lord Roberts of Conwy: My Lords, I am sure that we would all agree that we have had an informative, thoughtful debate with some eximious speeches, among which I rank the contribution of the right reverend Prelate the Bishop of Birmingham very highly. On behalf of these Benches, I too should like to wish him a very happy retirement.
I compliment the noble Lord, Lord Maclennan of Rogart, on opening up this time-honoured subject to reveal its modern facets and relevance. The often turbulent relationship between Church and state has bestrode our British history like a Colossus and the history of Europe too—or Christendom, as it was once known. It has been a dominant theme since Constantine adopted the Christian religion, through the medieval centuries of the empire and the papacy, into the Reformation era and our own times.
It has been my impression that the issue of the constitutional separation of Church and state has been comparatively dormant since the disestablishment of the Church in Wales—with the assistance of the Parliament Act and the Great War—apart from odd queries about the inability of a monarch to marry a Roman Catholic or the appropriateness of prime ministerial influence on episcopal appointments, to which the noble Lord, Lord Faulkner of Worcester, devoted his speech. But it may well be that the issue is due for an awakening, primarily because we have become a multi-faith as well as a multi-cultural society. Some of the non-Christian faiths now practised in the United Kingdom have strong adherents and have influence outside the synagogue, the mosque and the temple. One has only to listen to "Thought for the Day" on Radio 4 to realise the diversity of faiths in this country and to understand why His Royal Highness the Prince of Wales is reputed to favour the title of "Defender of Faiths" rather than "the Faith".
Those of your Lordships who have been following the progress of the Education Bill through the House will be well aware of the prominence of the faith school concept and the controversy surrounding it. I made my personal position clear at Second Reading when I said that having accepted Roman Catholic and Church of England schools within the maintained system since 1944, I could not see how we would deny similar support to schools of other religions if there was community and parental demand for them. Of course such tolerance might present problems but we have to trust the intrinsic goodness of the faiths concerned to ameliorate any difficulties that might arise. Of course,
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there are those who are opposed to all such schools, who would turn the clock back if they could. They are secular statists and I respect their view.
Constitutional change is very much in the wind. This may be yet another reason for debating this subject today. There have been numerous references to the current issue which is close to our hearts—that is, the place of the right reverend Prelates in a reformed House of Lords. They have occupied their Bench to the right of the Throne since the 13th century, if not earlier, but I note that more than half of the 1,101 respondents to the Government's White Paper thought that there should be no bishops in the new House. An even greater percentage thought that there should be no Law Lords either. None of us appears to be very secure in this place.
Be that as it may, we shall undoubtedly hear demands for places for representatives of other faiths. The report of my noble friend Lord Wakeham has already set the ball rolling. The Government's White Paper reduces the numbers on the Bishops' Benches to 16 but leaves the representation of other faiths to the appointments commission.
I have mentioned the presence of the right reverend Prelates in the House because it reflects the constitutional affinity between the Church of England and the state. We do not have Roman Catholic prelates or prelates from Scotland or Wales—they have their own ecclesiastical arrangements—although some regret their absence. Indeed, they may come to us in the reformed House.
It does not seem to me that any of the issues raised in the debate call for a radical change in the relationship between Church and state. We appear quite capable of handling most of these issues within our present constitutional framework. Even to deal with the problem of the law of blasphemy we have set up our own Select Committee. I take a very conservative view—with a small "c"—of constitutional change. It should of course be evolutionary rather than revolutionary, otherwise it upsets people and tends to create disorder.
Church and state have been separate in the American constitution from its early days. I am grateful to the noble Lords, Lord Morgan and Lord Goodhart, for their comments in relation to that. But the danger of the state on its own, without its religious dowry or spiritual heritage, is that it becomes over mighty and develops its own secular, and possibly abhorrent, philosophy of power. There have been many instances of that happening in Europe. That would be far removed from the essentially religious idea of service which is part of our democratic heritage. That was stressed by Her Majesty in her Jubilee Address, a point echoed by the right reverend Prelate the Bishop of Durham.
At the same time, I am reminded of the words of Martin Luther King in the 1960s, when he said:
"The church must be reminded that it is not the master or servant of the State but rather the conscience of the state".

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Some believe that the Church has not exercised its conscience sufficiently; others that it has occasionally overplayed its role, as my noble friend Lord Hurd of Westwell reminded us. On the whole, I believe that its record, though not perfect, is to be highly commended.
What we all want to know at the end of the debate is whether the Government have changed their position since 27th July 2000 when—to repeat what was said by the noble Lord who opened the debate and what appears in Hansard—the noble Lord, Lord Bassam, in replying to the noble Lord, Lord Dormand of Easington, said that,
"the Government would not contemplate disestablishment of the Church of England unless the Church itself wished it".—[Official Report, 27/7/00; col. 571.]
As far as I can see, there is no evidence that the Church or, indeed, other faiths wish it to be disestablished, a point implied very strongly by the noble Lord, Lord Alton. I hope that we shall receive an unequivocal and authoritative answer from the noble and learned Lord the Lord Chancellor to the question of where the Government now stand.
5.37 p.m.
The Lord Chancellor (Lord Irvine of Lairg): My Lords, we have had an excellent debate today, for which the House is grateful to the noble Lord, Lord Maclennan of Rogart. There have been many distinguished contributions. Let me, too, say from these Benches that the right reverend Prelate the Bishop of Birmingham will be as much missed on leaving your Lordships' House as he has been appreciated within it.
Perhaps surprisingly there does not appear to have been a full-scale debate on disestablishment of the Church of England in this House or the other place for some years. The debate has provided an opportunity to expound the case against establishment in greater detail, and the noble Lords, Lord Maclennan, Lord Lester, Lord Morgan and Lord Goodhart, and the noble Baroness, Lady Walmsley, have taken that opportunity forcefully. Other noble Lords and right reverend Prelates, however, have argued just as strongly for the retention of the Church's established status. The Government recognise the strengths of deeply-held convictions on both sides.
On the one hand, it is said to be wrong for any one denomination to be given precedence in a society that is characterised both as multi-faith and increasingly secular. Opponents of establishment also find it indefensible that the appointment of bishops and archbishops is not exclusively for the Church and they find it unfair that one denomination has guaranteed seats in your Lordships' House.
On the other hand, it is argued that, far from enabling the Church to bask in privilege, its established status gives the Church a responsibility to the whole community. The nation as a whole benefits from the close connection between Church and state which ensures a voice for moral and ethical issues in public life, and all members of the community, of any faith or none, have a claim on the pastoral services offered by the Church.
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I am sure that most, perhaps all, noble Lords, whatever their views on the issues before us, would recognise the long tradition of inclusive service to the nation which characterises the Church of England. The Church provides pastoral cover for the whole of England. The noble Lord, Lord Pilkington, emphasised that point, as did the noble Lord, Lord Alton of Liverpool. The noble Lord, Lord Alton, also argued that many who belong to other faiths and denominations welcome establishment; it is said that they share many values with the Church of England and find in establishment support for their own priorities about human life and the human condition. Establishment is said to preserve a link between religion, morality and power. The Chief Rabbi, Dr Sacks, for example, defended establishment on these grounds in his Reith lectures in 1991. He argued that disestablishment would be a significant retreat from the notion that we share any values and beliefs at all.
I propose now to explain why the Government are not persuaded that it would be right in current circumstances to favour the separation of Church and state.
First, it would be an enormously complex undertaking to pull out the threads of the established status of the Church of England without damaging the tapestry of the constitution. I develop the metaphor of the right reverend Prelate, the Bishop of Durham, of the constitutional "weave". Establishment has had centuries to embed itself in our laws, customs and consciousness. Constitutionally, the Queen in Parliament is the highest authority in the land, in matters ecclesiastical as well as civil. Disestablishment of the Church would necessitate revisiting laws and procedures governing important areas of the nation's business, including the Bill of Rights, the Coronation Oath Act 1688, the Act of Settlement 1701, the Union with Scotland Act 1706, the Union with Ireland Act 1800, the Accession Declaration Act 1910 and the Regency Act 1937. There could also be implications for the legislation of Commonwealth countries of which Her Majesty is Queen.
In his notable contribution, my noble friend Lord Williams of Elvel spelled out his concerns about the legislative implications. He reminded your Lordships that it took Lloyd George seven years to disestablish the Welsh Church; but whether that was because of a dislike for the Welsh bishops or for more fundamental reasons is not for me to opine. In fact, Lloyd George's Bill was introduced in 1912, received Royal Assent in 1914 and was brought into force on 31st March 1920—so, on a conservative estimate, the process did take seven years, although the suspension of the Act in 1914 was probably due as much to the First World War as to difficulties in achieving disestablishment.
Lord Morgan: My Lords, it was entirely due to the First World War. There was no other consideration. That was a major interval.
The Lord Chancellor: My Lords, although we have the noble Lord's authority for that proposition, it would not necessarily be generally accepted.

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My noble friend Lord Williams went on to say that Parliament would have to abrogate its powers over the rules governing the Church. That, I think, is true. The role of the Ecclesiastical Committee would become redundant, and it would probably go; and it would become necessary to re-think the process under which the Church made binding rules for its members. I am less sure about my noble friend's assertion that Parliament would,
"have to hand over existing legislation to the Church of England Synod",
and that,
"in turn, the Synod would have to re-enact that legislation if it so wished".
I suppose it might be desirable to ensure that existing ecclesiastical law contained in Acts of Parliament or General Synod measures did not continue to have the full force of an Act of Parliament, binding the whole nation as opposed to the Church of England. However, the existing law could and probably should continue to bind the Church. The solution adopted in Section 3(1) of the Welsh Church Act 1914 was to provide that,
"as from the date of disestablishment … the ecclesiastical law of the Church in Wales shall cease to exist as law".
But, at the same time, it was provided that:
"As from the same date the then ecclesiastical law and the then existing articles, doctrines, rites, rules, discipline, and ordinances of the Church of England shall … be binding on the members for the time being of the Church in Wales in the same manner as if they had mutually agreed to be so bound."
Much more fundamentally, my noble friend contended that,
"the whole matter of the Crown would have to be redefined, both as supreme governor of the Church of England and … as the residuary author of Crown appointments".
That, I believe, is correct. If the Church in England were to be disestablished, it would be argued that the monarch could not remain as supreme governor of the Church. This might give rise to questions being raised about the monarch's role as head of state. Responsibility for the appointment of senior clerics would have to be reconsidered. A body similar to the Crown Appointments Commission could presumably take full responsibility, or some form of election might be called for.
Lastly, my noble friend said that,
"Transfer of assets would certainly be another problem".
He is undoubtedly right. Some consideration would have to be given to the transfer of assets. The Church has considerable property holdings—although it does not receive financial support from the state. For example, the Church Commissioners administer the funds of Queen Anne's Bounty, which was established in 1704 for,
"the Augmentation of the Maintenance of Poor Clergy",
and comprised the revenues from "first fruits and tenths" payable to the Crown following the Reformation, and hold the assets of dean and chapter cathedrals and bishops' assets, such as episcopal palaces.
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The disestablishment of the Church in Wales involved its disendowment—the provisions for which took up two thirds of the Act. The disestablishment of the Church of England need not necessarily be linked with its disendowment, but consideration would have to be given to property issues. It would be necessary to ensure that the Church retained sufficient assets to continue maintaining cathedrals and other historic churches unless anyone were to suggest that they be taken over by the state. Thus, my noble friend, in his well-judged speech, summarises some of the major complexities with which we should have to grapple if any question of disestablishment were to arise.
I must not pass over a further matter raised by my noble friend; namely, the important point that the Archbishop of Canterbury is a spiritual leader who, because of his position, has the ear of government when he needs it, and therefore has a special authority. That authority does equip the most reverend Primate for his missions to reconcile communities, whether in Africa or in relation to the Church of the Nativity in Bethlehem.
The noble Lord, Lord Maclennan of Rogart was good enough to acknowledge the scale and ambition of this Government's constitutional reforms. Some, however, complain—of course, I would not agree with them—that we are already suffering from "constitutional overload"—devolution, with a Scottish Parliament and Assemblies in Wales and Northern Ireland; human rights legislation; freedom of information legislation; Lords reform; and the possibility of regional assemblies in England. So a very strong case has to be made out for further legislation of a major constitutional character now.
The question is, therefore, whether the effort involved would be justified, or whether it could be better spent on other issues. With great respect to noble Lords who have argued for disestablishment, it is not at all evident that a majority or even a significant minority of people would want us to go down that road. The issue goes much wider than the Church's own wishes, but I shall consider first the position of the Church, and the attitude governments have taken in response to it.
Previous governments made clear—particularly following the Chadwick report in 1970—that they did not propose to consider disestablishment unless and until the Church itself asked for it. It has not asked for it, and indeed, although there are obviously variances of view within the Church, I believe that the Church as a whole continues to value its established status. The most reverend Primate the Archbishop of Canterbury gave a strong lead to the Church in his speech at Lambeth Palace on 23rd April. He urged that no steps should be taken that would weaken the links between the Church and the state without the very closest examination both of their historic significance and of their wider impact on the community as a whole. This was emphasised by the right reverend Prelate the Bishop of Durham.
The Church does review aspects of its status and procedures from time to time, as is only right. As my noble friend Lord Faulkner of Worcester mentioned,

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in July the General Synod is due to consider a motion to change the procedure by which diocesan bishops are appointed. If changes are proposed, the Government will certainly consider them. But I do not think that either this or any government would devote the considerable time and trouble that would be required for legislation to disestablish the Church unless it were clear that the Church itself indisputably favoured such a move. That is intended to be an unequivocal answer to the question that the noble Lord, Lord Roberts of Conwy, invited me to answer.
I acknowledge that this debate leaves me in cautious mode. As the noble and right reverend Lord, Lord Habgood, put it on another occasion,
"As a country without a written constitution we depend more than most on symbolism, on historical precedent and on subtle linkages between Crown and Parliament and Church. None of these is unalterable"—
Baroness Williams of Crosby: My Lords, I am extremely grateful to the noble and learned Lord the Lord Chancellor for giving way. Would anything he has said preclude two actions—amendment of the Act of Settlement, which is now something of an anachronism, or allowing the choice of Archbishop of Canterbury to be made by the Church without the intervention of the Prime Minister of the day?
The Lord Chancellor: My Lords, the noble Baroness not merely interrupts me, which I am entirely relaxed about, but interrupts the excellent quotation from the noble and right reverend Lord, Lord Habgood, about which I was reminding your Lordships. We could have a three-hour debate on the issues surrounding the Act of Settlement or on the choice of archbishops and bishops in its own right. If your Lordships will forgive me, I shall return to my quotation of the noble and right reverend Lord. He said that,
"As a country without a written constitution we depend more than most on symbolism, on historical precedent and on subtle linkages between Crown and Parliament and Church. None of these is unalterable, but we need to get out of our minds the idea that it is possible to make a few simple changes without the risk of triggering off a whole series of other changes which might be far from what we want".
Today, the noble and right reverend Lord was wise to caution us to see the need for the state to be based on a transcending moral authority requiring symbols to uphold it.
Opponents of establishment tend to see that status as conferring special advantages upon the established Church. Some of the supposed advantages are questionable, but they certainly should not, as has been mentioned, blind us to the special opportunities to serve which establishment gives to the Church. I conclude as unequivocally as I may. As matters stand now, in the Church and in the nation, the Government believe that our collective time can be better spent in pursuing other priorities.
5.55 p.m.
Lord Maclennan of Rogart: My Lords, in thanking all who have participated in this wide-ranging if—to use the word of the noble Lord,
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Lord Morgan—somewhat "traditional" debate, I should like to express my genuine appreciation to those on all sides of the argument who have spoken. As a result of what we have heard, those of us who are constitutional reformers and seek to base our modern constitution on the concept of a free and equal citizenship know the cases that we have to answer. That these arguments have been around for some time does not necessarily diminish their effectiveness in this House.
I conclude by adding my particular felicitations to the right reverend Prelate the Bishop of Birmingham, to whom I owe a special debt of gratitude—not only for making an eloquent plea today for an evolutionary approach to the issue of disestablishment, but also for having confirmed my daughter in his church. I beg leave to withdraw my Motion for Papers.
Motion for Papers, by leave, withdrawn.

Social Care
5.57 p.m.
Baroness Barkerrose to call attention to the case for reviewing the present level of investment in social care; and to move for Papers.
The noble Baroness said: My Lords, I should first declare an interest as an employee of Age Concern England. I am most grateful for the opportunity to introduce this debate on a subject that has been largely neglected as attention has been focused on the headline-grabbing issue of NHS funding. I am also most grateful to the many noble Lords who have agreed to participate. I look forward to many wise and knowledgeable contributions.
Some may question the topic of today's debate, coming as it does so soon after publication of the Wanless report and the subsequent Budget Statement. Indeed, there was an almost palpable sense of relief when the Budget Statement recognised that there has been chronic underfunding of social care. However, as contributions from these Benches will show, this debate is more necessary now than ever. Although there has been an increase in resources, the increase is neither adequate nor strategically directed at the deep-seated problems in social care.
Those with an interest in personal social services who made it to page 92 of the Wanless report, and some of us have, were in for a pleasant surprise. It says that,
"In planning the delivery of care, health and social care must be considered together in order to ensure that both provide high quality services for the individuals receiving care and make efficient use of resources".
Coupled with the headline announcement of a 6 per cent increase in social care funding, some might well have thought that Christmas had come early. However, this is still the Government of spin and recycling and, on the morning after the night before, there was a dawning realisation that it really was too good to be true. Of the £3.2 billion announced, £800 million had already been promised and was

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being re-announced. After taking into account the existing commitments of local authorities and the increases in national insurance, local authorities will still be £500 million short of what they already spend. Furthermore, while services across all clients groups are overstretched, all the increased funding is to be directed to older people's services via a very peculiar mechanism of penalties. Therefore, before addressing other issues, I should like to take this opportunity to ask the Minister whether the £3.2 billion is separate from the Comprehensive Spending Review or an early announcement of the CSR, and for how long will the commitment last?
The social care system is now close to collapse. The outlook for many social services departments is as bleak as that of a Nationwide football club. In the year to March 2002, local authorities will have overspent their budgets by £218 million, in addition to a planned overspend of £1 billion to meet deficits in the SSA. For example, in Oxfordshire, the social services SSA is £85 million. Council spending on social services is £105 million, which is made up from increased council tax and raiding other departments. The amount needed solely to cover existing commitments is £114 million, while the quality of services continues to be driven down.
The eligibility criteria for services are tightening all the time, with the effect that only those with the most severe needs are included. Those with moderate needs and the needs of carers are increasingly being overlooked and preventative services are being squeezed. Local authorities that have for years subsidised under-funded care services from environment, transport and other budgets are running out of ruses.
Not only are older people's services stretched. Across the country, children's services account for two-thirds of the social services overspend. Between 1996 and 2001, the number of looked-after children rose by 15 per cent to 58,100, and there has been an increase of 55 per cent in the number of looked-after children who have suffered abuse or neglect. Increased poverty has had its effects, and, according to the HBAI survey, an increasing number of children live in households with incomes below half the national average.
Two-thirds of looked-after children are placed in foster care. But there is a growing shortage of foster carers and an evident need for increased training, support and remuneration for people willing to give much needed support to troubled, challenging children, who will otherwise end up in residential care.
The child protection system is in urgent need of resources. Thirty-six thousand children are on child protection registers at any one time, and, although few make headline news, one or two children die weekly from neglect or abuse. Whatever priorities they may be dealing with now, social services departments are rightly gearing themselves up to deal with the results of the Climbié inquiry. However, some departments will informally admit that when the report of the noble Lord, Lord Laming, is published, resources will be switched from current services. Furthermore, it is
818
evident that the child protection system desperately needs an increase in frontline staff, properly supported and supervised and capable of bringing experience and continuity to its work and its clients.
There is an underlying problem of staffing across all social services. Your Lordships will note that 1.1 million people work in social care, many of them part-time and among the lowest paid people in our society. The LGA report, Care to Stay, published in February this year, reported vacancy rates of 20 per cent and turnover rates of 17 per cent for home care staff. In London and the South East, the problem of recruitment and retention of care staff is acute.
The Minister and other speakers from his Benches and elsewhere will no doubt reel off a list of initiatives and a raft of figures to show how the Government have allocated money to health and social services. The Department of Health, the DTLGR, the DES, and sometimes even the DCMS, launch initiatives that all have relevance for social care in its widest sense. Funds with new titles crop up all the time. It is impossible to keep track of them—so much so that people who work in the field spend weeks of their time simply chasing pockets of money. There are many short-term funding schemes, which rarely last for more than three years. For some funds, such as winter pressures money, the timescales are so tight that the allocation disappears into the ever-open chasm of the NHS before anyone else has had an opportunity to benefit from them. Even when funds are conditional on partnership bids, the process is so time consuming that success or failure is often a matter of chance. That kind of short-term, piecemeal funding masks the structural deficit that lies beneath.
The Government's response was set out in the Budget Statement—a system of penalties for delayed discharge from hospital. The idea of a perverse, internal health and social care market is intriguing. I look forward to learning from the Minister why the Government opted for that mechanism and, in so doing, chose to ignore the evidence from the LGA to the Health Select Committee, in which it said,
"The funding shortage that faces Personal Social Services is not caused by the need to support people in the few weeks after discharge, but by the lack of funding for preventative services."
That statement is borne out by a recent survey of local authorities, in which fewer than 20 per cent were able to find the resources necessary to implement the Carers and Disabled Children Act 2000.
Since the Budget announcement, people throughout the care sector have tried to envisage how this new system of penalties will work. How will it be possible to prevent inappropriate discharges to residential homes of people who, with a little more hospital care, may be able to return to their own homes? What will happen when discharge from the acute sector is delayed because of a lack of community health services? Will local authorities also have to pay for that? What will happen when residential care beds are available but not enough qualified staff? What is the position of care homes whose registration has been delayed by the backlog of applications at the National Care Standards Commission? What will happen to

819
someone who is recovering from a stroke but cannot return home because of a need to wait for physical adaptations to be made to his or her home? Will people who are discharged from hospital take priority over people who are waiting to go into residential care from their own homes? Above all, how will the Government, who want to reduce health inequalities, stop the creation of vicious and virtuous circles, whereby areas with many problems have more delayed discharges and fewer resources to fund preventative services, while areas without problems have resources and can thereby cut demand?
The Treasury may be satisfied that its announcement has solved the problem of social care. It has not. The problem has been ducked. The Treasury has not come up with a way to control or limit the need for social care. It has simply passed the hot potato of the immediate crisis of insufficient care home capacity to local authorities. I say "local authorities"—not the NHS—because it is impossible to see how anyone other than a clinician could determine that an inappropriate readmission was the result of an inappropriate discharge.
Mr Wanless was half right when in his report he said,
"While the review considered it vital to extend its terms of reference to begin to consider social care, it has had neither the information nor the resources to be able to develop a whole systems model".
There is an urgent need for review of social care and social care funding. But, more than that, there is a need to change the basis on which social care is valued and evaluated. Social care is always overshadowed by arguments about the NHS. However, it is increasingly measured only in relation to the occupancy of acute hospital beds. That is a narrow definition of health and a short-sighted strategy. Social care covers a range of clients. It could be evaluated equally well by a comparison with the cost of custodial sentences, the cost of delinquency in terms of police time, the cost to employers of working days lost by people suffering mental health problems, or by the true cost of caring.
There is an urgent need to consider the efficacy of social care, as part of health in its very widest sense, and to evaluate the efficacy of low-tech services, such as home helps, before they disappear entirely. There is a need to ensure that social care practitioners have sufficient time and resources to evaluate work and disseminate good practice. If a quarter of the time and money spent on consultation about needs—usually the same needs and the same consultation, with the same answers as have been given for years—were spent on research and the training of staff, many of the social care tragedies that hit the headlines could be avoided, and morale in the care sector, which is at an all-time low, could be restored.
The Social Care Institute of Excellence has to be encouraged not only to develop best practice, but to halt the increasing medicalisation of old age before it becomes irreversible. There is a need to realise that rehabilitation cannot be measured by four or six weeks' intensive therapy by a practitioner. Intermediate care needs to be based on evaluating
820
judgments about people's ability to reintegrate back into their social care systems, their social networks. There is a need to demonstrate that funding for a handyperson scheme is an investment that will pay dividends, not just in the fewer number of broken femurs, but in the peace of mind that would enable older people to continue to live independently in their own homes.
This debate is deliberately and rightly centred on the factor of funding. Social care only ever seems to be reported when there has been a tragedy or when economists look at demographic projections and envisage a negative balance sheet. But just as in the health service where there has been a recognition that it is possible to turn around from a reactive approach and by bringing together good practice in the form of NSFs focus on the encouragement and promotion of good health, so, too, in social care it must be possible to move away from crisis and reaction to a system which positively promotes well-being.
Mr Wanless is right, there is an urgent need for review. However, there is an even more urgent need for injection of funds to keep basic services from going under. It is time to take a longer term strategic view. Unlike a rather more famous Member of your Lordships' House, I really do believe that there is a thing called "society". More than that, I believe that all members of the population have a right to take an active part in that society, no matter what their age. I believe that the Government's reaction to the Budget has been short-term and incomplete and that the re is a desperate need to re-evaluate social and healthcare in a wider setting. On that note I beg to move for Papers.
6.11 p.m.
Baroness Pitkeathley: My Lords, I have spent a great deal of my life working either in social care or at the margins of its provision as a social worker, a campaigner for carers who actually provide most social care and, most recently, as the interim chair of the General Social Care Council. I am a fan of social care and those who provide it and II am most grateful to the noble Baroness, Lady Barker, for giving us the opportunity to debate this issue. I share her passionate commitment to it.
Social care services operate in areas of conflicting values and ethical dilemmas. Staff work with groups who are often marginalised, tackling difficulties which most of us would prefer not to admit exist and at the boundaries between public and private interests, individual and family interests, trying to strike a balance between autonomy and dependency and between choice and control. The work involves judgments about risk, priorities, competing and conflicting interests in the most stressful of circumstances and where political and public opinion, especially as expressed in the press, can be volatile, inconsistent and sometimes even vicious.
I want to take the opportunity, therefore, to praise social care services, both statutory and voluntary, for the diligent and responsible way they carry out those onerous duties and also for the fact that many of them

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remain, even in the face of that tremendous pressure, able to embrace new ideas and be innovative in their approach. So if you ask me whether more resources are needed for social care, I shall certainly say yes. What is there is never enough. However, unlike the noble Baroness, I believe that there is some good news to report. As the noble Baroness reminded us, the level of spending on social care has just been reviewed and a three year settlement agreed. I believe that the level of spending agreed demonstrates the Government's firm commitment to social care.
We should remember that between 1992 and 1997 the average real terms increase for social care was 0.5 per cent. In the previous spending review resources increased and the latest Budget delivers average growth in real terms of 6 per cent from the next financial year to the years 2005–06. So there is some good news there for social care, but not as good for sure as those of us who work in it would like. However, as I doubt that the Minister who will reply to the debate will announce a great new tranche of resources, I thought that I would try to draw attention to some of the issues which are perhaps almost as important as money.
The first matter concerns the status of social care which has always been much lower than it should be, as the noble Baroness reminded us. At last we are beginning to hear the Government talk about health and social care as though it is one word. I believe that we have at last begun to establish in government thinking and policy making what many of us have known all our working lives; that is, that provision of healthcare and provision of social care are inextricably entwined and must be considered together. I have lost count of the number of times I have heard lip service paid to that not very revolutionary idea and of how many times I have heard Ministers say that divisions between health and social care must be overcome. However, there are at last signs that the message has been received and understood. The division has famously been called "The Berlin Wall" and older people, as the noble Baroness reminded us, are often victims of a failure of co-operation between services.
It has always been the experience of those of us who work with users of social care that they neither know nor care who provides the services as long as they are of the right quality and are available at the right time. What is also vital, of course, is that services are interlinked and co-operate with each other. Some recent improvements in that regard include the National Service Framework for Older People; the heavy investment in intermediate care to build a bridge between hospital and home for older people; reducing delayed discharges with extra funding and improved co-operation between health and social services through pooling of budgets. I believe that about £1 billion is now spent in that way.
I want to draw attention to the good practice which does exist and to the willingness and commitment of health and social services to work together. Further incentives to do that are to be introduced by the imposition of charges to social care agencies if they fail
822
to meet agreed time limits on hospital discharge. That is, of course, a controversial proposal, which is why I draw attention to the good practice which already exists. I have reminded Ministers before that in my view carrots work better than sticks when it comes to promoting co-operation. I hope that the Minister will give a further assurance that it is envisaged that those penalties will be used only as a last resort.
I also think that it is a pity that emphasis on the connection between health and social care on the part of the Government focuses so heavily on hospital discharge. Care at home and how it is provided is, of course, crucial when it comes to ensuring that delayed discharge is addressed but it is even more important to older people and their carers at home in order to prevent admission to hospital or to care home and to maintain independence at home, which is what most people want.
Most social care is provided by family carers and your Lordships will perhaps have seen the new report by Carers UK—I declare an interest as a vice-president— Without Us, which gives revised figures for how much carers save the nation. For many years we have been working on a figure of carers saving the nation £34 billion, but the estimate is now revised upwards to £57 billion. Some of the reasons for that huge increase are that more carers are providing significant amounts of care; the costs of replacement or respite care have increased enormously; and the fact that although more home care is being provided, it is concentrating on fewer people; that is, those with the greatest need and carers are having to make up the shortfall.
So we must ensure that the increased levels of funding for social care result in an increased range of services as well as more of the existing ones. We must have better packages of home care and faster assessments of the need for home care. Too many local authorities are still not giving carers the services to which they now have a right under the Carers and Disabled Children Act 2000. The reasons that they give for that is that they lack adequate resources or they have had to use the resources for more urgent need. That is simply not good enough. What more urgent need is there than to give carers a brief respite from caring duties which will enable them to go on caring, as most of them want to do, for many more months and years? Supporting carers makes sound economic as well as moral good sense.
It is also the case that systems for monitoring the effectiveness of social care must be established and kept under review. Important changes have just been announced as regards how that will be done. While some of us might have wished that the review period for the newly established National Care Standards Commission had been a little longer, the establishment of the new Commission for Social Care Inspection has been widely welcomed. That will carry out inspections of all social care organisations, as your Lordships will know. We must ensure that there is the utmost cooperation between that commission and the Commission for Health Improvement Audit Committee and that the voices of users are strong as

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regards the way it operates. As legislation will, no doubt, be required, this is an area on which there will be much more discussion in this House. But I hope that the Minister will assure us that the Government are committed to co-operation between the two commissions and to strong user involvement.
I cannot let the opportunity pass to single out for praise the establishing of the General Social Care Council of which I have the honour to be interim chair. One million people work in social care and it seems incredible that until now no government were willing to set up such a body as exists in most professional caring fields with the task of regulating standards, conduct and practice. The GSCC has got off to a flying start thanks to the commitment of its council members and staff.
Nor should we forget, as the noble Baroness reminded us, the work of the Social Care Institute for Excellence. It is undoubtedly the case that as the quality of social care and those who deliver it improve, so more demands will be made on resources for more trained staff and more wide-ranging provision. I may be an optimist but I believe that the Government now understand the importance of social care. That, coupled with the initiative and commitment that have always been shown by my colleagues in the sector, together with the strong voices inside and outside this House devoted to lobbying continually for more money, will change social care from the Cinderella services seen hitherto to take its deserved place as the most important contributor to the health and welfare of our most vulnerable citizens.
6.21 p.m.
Baroness Fookes: My Lords, I congratulate the noble Baroness, Lady Barker, on bringing forward this important and worrying subject at a crucial and opportune moment. In the short time available I want to concentrate on the old rather than the young.
Before attending the debate, I asked a friend involved in the care sector what she thought. I mentioned the level of investment. "What is really needed", she said with a great deal of indignation, "is an emotional investment by government and politicians. If you have that, then money will follow". That is right; there must be concern for the plight of many elderly people.
Unlike the two previous speakers, I have no professional knowledge of the subject, but I saw a number of elderly people during my time as a constituency MP. For me, it is always the individual that matters; usually an older person whose health is threatening to give way, perhaps with relatives who do not care or cannot because they are too far away. The future seems bleak and uncertain for such people. We must never forget that when talking about policy.
People matter; individuals matter. That must always be at the forefront of our minds. Against that background, it disturbs me to see how quickly care places—I do not like to call them "beds"; that sounds like a hospital—in residential homes are vanishing. That shows no sign of abating. Since 1996 it is
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estimated that some 50,000 places have disappeared. The pincer effect is continuing. First, there is often a mismatch between what social services are able to pay for those who cannot pay for themselves and what is actually needed to run homes; secondly, there is the increase in national insurance contributions resulting from the Budget on a sector which relies heavily on staff more than on equipment. About 80 per cent of a care home's costs are on staff.
There is the additional pressure of the minimum wage. I do not suggest that people are not worth the minimum wage, but if it is taken with the other factors bearing on the care home industry there is a problem. I have been told that many care home owners are worried about the development—again, admirable in itself—of checking would-be staff for criminal records. I am told that the theory is fine but in practice it takes several weeks for clearance to come through, by which time the potential employee has found a job somewhere else; perhaps in Tesco or some other place where it is easy to find employment. Therefore homes lose staff before they have even acquired them.
It is hardly surprising that with property prices rising, many home owners feel that it is hardly worth carrying on and that they might as well take the money they can get for their property and depart. I see no reason why that situation should not continue, although it is a worrying and unnerving trend when one considers the need for residential care homes for the most vulnerable in our society.
Ideally we should keep people in their own homes, but that can be expensive, not only in financial terms but in terms of the time of short and hard-pressed staff. It is not always an option. There is another pincer movement; the imposition of new physical care standards. I do not quarrel with the principle but it is a further worry for home owners. Perhaps I may give an example. A home owner was required to put in a lift. Admirable no doubt, but the format of the house meant losing three rooms. Therefore he lost the income from those three rooms, coupled with the need to borrow heavily from the bank to install the lift— £150,000 or more. Is it any surprise that home owners wonder whether it is worth while trying to carry on?
Another home owner found himself up against the desire for single rooms. In his home he had three married couples and two other people who wanted to share. However, he was over the set quota. It is absurd; if people want single rooms it is good to have the choice, but if people want to be together—and many do—why should they not be? Surely choice should be more important than some quota which may not meet the facts in an individual case?
For all those reasons care homes are being squeezed. The noble Baroness, Lady Barker, ably illustrated the issue of bed blocking. I marvel at a system that imposes penalties and charges as though the various organisations involved were criminals. I am sure that every NHS hospital, authority, local authority and social services—anyone involved—is anxious to do the best that it can, so why treat them to such penalties? As

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the noble Baroness pointed out, that can only be bureaucratic and will probably have unfortunate side effects.
I cannot think of a more Alice in Wonderland solution to a problem that could probably be solved by more money being available where needed. That is the key issue. It is no good looking as though we have the money if it is not there. It is unfair to penalise either local authorities or the NHS, which I believe is to be penalised for emergency readmissions. As has been pointed out, who is going to decide whether an emergency readmission is due to premature discharge? I would like the Minister to explain carefully who is to undertake that task, how it will be evaluated, whether there will be an appeal system and who on earth is going to find the time to do all that amid the other pressures.
It is a lunatic system. I urge the Minister to bring pressure on the Government to think again. It is madness; quite the wrong road to go down. I am reminded of the plight of the ancient Hebrews in Egypt who were given materials for making bricks. Suddenly the authorities said that they were no longer going to supply the materials but they must still make the same number of bricks. Bricks cannot be made without straw, as the old saying goes.
6.30 p.m.
Baroness Masham of Ilton: My Lords, I thank the noble Baroness, Lady Barker, for initiating the debate. It comes at the most appropriate time, just after your Lordships have discussed some of the very important responsibilities which are being moved from the NHS to local authorities by the National Health Service Reform and Health Care Professions Bill. If the local authorities are successfully to undertake the new duties, they will need the resources to do so and investment will be needed in training people so that the jobs are done well.
The Minister will be aware that the Local Government Association is concerned to know how the Government intend to ensure that the Commission for Patient and Public Involvement, particularly at the local level, will make full use of and work effectively with existing local authority systems to achieve community leadership, consultation and scrutiny. I hope that there will be no fragmentation and that the Minister can reassure the House that vital health matters, where local authority bodies are involved, will not fall through the net and be neglected, such as happened in the case of Victoria Climbié whose care and well-being were neglected by a social service department. Many people, when they hear of such tragic cases, lose faith in their local authorities. What happens to the elected democratic members? I wonder whether they feel guilty and I wonder whether they will be interested in scrutinising the NHS. What will they know about public health and dust under hospital beds? For example, will they be able to highlight the deficiencies in the care and management of people with epilepsy?
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The Government want to do away with community health councils. Will the expertise that has been established over many years within community health councils be used and incorporated into the new arrangements, or will it just be lost? Will the Government define the responsibilities for the four regional directors of health and social care?
There are questions about social care functions, in particular any implications for the Social Services Inspectorate and other parts of the Department of Health. What happens when the Commission for Health Improvement inspects NHS hospitals or other service providers and finds that they are unacceptably poor and are failing? Will it close them down? It would perhaps have been diplomatic for an NHS body to scrutinise the working of the social services while local government scrutinises the NHS? I welcome, as I think most people will, the fact that the inspection body is independent.
I want to bring to the attention of your Lordships a problem which I hope the better working together of the NHS and social services may be able to solve. However, it involves not only those two departments; it involves the local housing authorities too. There should be joined-up working between departments, not negative brick walls.
Many seriously and permanently disabled people who have been treated in hospital encounter delay in returning to the community because they do not have suitable accommodation to go to—the so-called "bed blocking" situation.
I declare an interest as president of the Spinal Injuries Association. Many people, paralysed mainly as a result of accidents, remain in hospital because their home accommodation is not suitable and they cannot get a disabled facility grant because the social services will do nothing until the patient has a discharge date. He—or she—may need only an extension to the house, but in order to get an assessment he has to wait for a local authority occupational therapist to assess his home situation. He may have to wait months, if not years, to get out of hospital. More occupational therapists to speed up the assessment process would be a very good investment in social care.
Once a patient is ready to go home, it is psychologically damaging and very frustrating to have to stay in hospital, apart from the expense to the NHS and the blocking of acute beds when they are needed for new patients. If the local authority had to pay the cost of the hospital bed because it had not provided the necessary accommodation, that might make it get a move on and put the wheels in motion before the disabled person received his discharge date. The hospital could be given at least the disabled facility grant to help fund the hospital costs.
It is a major problem. If the Minister will look into the matter, the Spinal Injuries Association can provide many case histories of frustrated disabled people. Even the people who can pay for themselves are tied by bureaucracy, having to wait for assessment and

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permission to rebuild. If the Government can unravel some of the red tape which has evolved over the years, it will help the situation.
I was very pleased that the noble Lord, Lord Filkin, took the trouble to visit Wandsworth prison. When I raised the matter in a debate some weeks ago he said that he would. In many prisons throughout the country there are prisoners who are disabled or mentally ill. I welcome the proposed closer working between the NHS and the Prison Service. That will also involve the probation service and local housing authorities and housing associations. Without a range of services for resettlement in the community, there could even be cell blocking in prisons in the future.
Many care homes closing because of the extra expenses they face. Those costs are not being met by social services. So there will not be as many places for long-term sick, disabled and elderly people.
On Monday, as I came to your Lordships' House in a taxi from King's Cross station, I saw someone lying under a pink blanket in a doorway—not an unusual sight these days. But there was no movement. I have been thinking that should he have been dead, how long would he would have remained there with people passing by? With an increasing elderly population and many social care problems due to alcohol and drug abuse, apart from disabled people, there must be a good case for reviewing the level of investment in social care.
It seems that local authorities are not aware of the scale of the problems. Or are they turning a blind eye and shutting the door because those problems have become so great? I hope that the debate will help alert a few people to the immense swell of social needs which can be passed by when people in authority do not have time to stop and look.
6.39 p.m.
Lord Addington: My Lords, I thank my noble friend for introducing this important debate and for doing it so well. The title of the debate draws an incredibly broad brush across a whole section of our society. The noble Baroness, Lady Pitkeathley, enhanced that point by showing how wide we can go. We can talk about social care, health and what happens if things are not done properly.
As regards health and social care, one can make a strong case for saying that a public gymnasium with skilled instructors should perhaps be included in the health budget. I come from a city that has lost all its public gymnasiums, although it is true that we have some nice, interesting housing developments where they were. I shall try to draw that to the attention of the new Liberal Democrat council in Norwich.
When we discuss these problems there is a tendency to go to the worst case scenarios, looking to where the problems are most intense and most readily identifiable. When I saw the title of the debate, I immediately thought of the elderly. It was then pointed out to me that those dealing with the elderly are often in a defensive situation, trying to prevent the loss of independence of living or of standards and dignity. We
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should cast an eye more intently at the situation of the young. Children receive a great deal of attention when we deal with subjects such as education. I have been through many education Bills on which we have dealt with disability, as well as Bills dealing specifically with special educational needs and disability and the problems that such children encounter throughout the education system.
I shall break a habit by giving some figures. The Royal Commission on Long-Term Care of the Elderly estimated in 1999 that there were 340,000 disabled people below the age of 29 in this country. The number gets progressively higher until, by the age 59, we reach a total of 1,918,000—just under 2 million. That is a huge number of people who cannot be described as elderly. They should be participating fully in our society.
Of course, statistics do not show issues such as how severely disabled the people are or what help they want. However, that group of people, especially the younger ones, should be receiving help to enable them to be as independent as possible so that they do not become a burden on society. We have already addressed that in various Acts of Parliament—the primary example being the Disability Discrimination Act 1995—and accepted the argument that somebody who has a disability should be given support and allowed to work and maintain their dignity, or should at least be allowed to take as full a part in society as they can.
On support services, we start to run into problems. They are often locally based and locally focused. People often find themselves dependent on carers, parents and others who become their localised support system. No doubt it is commendable that people wish to take on that role, but we are talking about adults who should be living independent lives wherever possible. They should have the ability to move round to find education, employment or even simply a change of scene if they want. That should be our aim. Unless we make sure that care packages are able to follow from area to area, we will have problems and we will let those people down.
That does not currently happen very easily. We have a localised structure under which it is not possible to assume that because something has been granted to one person, it will also be granted to someone else. We have to try to bring the system to the young so that they are able to move.
The number of organisations and bodies that provide social care is bewildering. I shall not even start to explain it to your Lordships. I was about to start, but I realised that I was not sure how many were covered. We have to start to address that now to make sure that these people gain the benefits of other aspects of legislation.
Under all the governments that I have seen in this House, any Minister who is asked a difficult question responds with a list of that government's achievements and what will be done. Of course the current Government have done better things than the previous one and of course the previous government did better

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things than their predecessors in many areas. There is a line of progression. Governments should do better than their predecessors. I hope that the Minister will take that on board and tell us how the Government are at least thinking about how to follow round the care support services for younger people. Those 340,000 people under 29 should be involved in training and finding new career paths. If we help them to establish themselves, we will relieve some of the pressure on caring and some of the problems of respite care. We hope to make them economically viable. At the moment, the system is very bitty. One bit is got right, but the whole system is not dragged together. Departments suddenly have to talk to each other. On many occasions I have talked to people in one department who have said that something is a great idea, but often they have not dealt with the problem before. When they then go to the department that was initially dealing with it, they say, "Oh, we can't do that". It is a universal Whitehall problem.
Will the Minister give us some idea of the thinking in the department about how the support structures can follow education and training needs, so that at least the start of the process is being dealt with?
6.46 p.m.
Baroness Greengross: My Lords, I add my congratulations and pay tribute to the noble Baroness, Lady Barker, for initiating the debate, which is about vital issues. Like the noble Baroness, Lady Fookes, I shall concentrate on older people in the short time available. It is essential that the difficult role played by those providing social care must be recognised and properly valued, whichever group or sector of society they are called on to care for.
Like the noble Baroness, Lady Pitkeathley, I welcome the increased expenditure that was announced in the spending review. For many, especially for older people, a greater investment in social care is essential if we are to ensure that the increased survival rates and longevity in our population is the good news that it should be and that we face the challenges that it creates. We know that the greatest increase in our population is among the very old. In that group, we will have more chronically sick and very frail people.
Our challenge is to maximise the autonomy of that group of people, to give them a feeling of well-being and to give them choice, particularly about whether to stay in their own home or to go into a care home.
The Government have declared their determination to avoid unnecessary long stays in hospital. To stop frequent delayed discharges we need more preventive care. The whole spectrum of care needs more investment. That starts with health promotion, intermediate care of a high standard, including long-term rehabilitation and, above all, more and better trained staff with increased capacity in the community or in care home settings.
The noble Baroness, Lady Barker, quoted the Wanless review. I agree with her that he wanted a whole systems review of the NHS. That must include
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social care and the other areas of social provision that have big gaps in them such as housing. It must cross boundaries and fill those gaps if we are to meet the multiple needs, particularly of older people, who often have multiple pathologies and do not fit into neat boxes.
We know that there is a lot of discrimination against people who fund their own nursing care. Only 22 per cent of those who do so receive the highest band of nursing care funding of £110 a week. Some get no benefit from that, as the fees have increased in line with NHS increased payments. These are powerless people. Sometimes they are discriminated against compared with those who are paid for by the local authority. Indeed, they often subsidise those people, who are denied a proper needs assessment and care management by the local authority. As has already been said, they are obviously extremely badly affected by home closures. Their vulnerability is obvious. They have to move at a time when it is hardest for them to do so. The numbers of home closures are decreasing their choice daily. We need procedures that are fair to ensure that they have certain rights as residents.
Those who have to fund their own care need advice on the management of their care plan by the local authority. Vulnerable people need protection and the local authority can give them that, although it is often apparently reluctant to do so. The fact that younger residents of care homes have higher fee levels than older people is most unfair and represents a form of age discrimination. We must look at the needs of the individual regardless of age; the point is their needs and their need for care.
We know that older people in social care do not always get properly trained staff to look after them. Clock watching and minimal intervention is often all that is provided. Older people need personal care and a service that incorporates much love. It has been established in case law that the local authority has a duty to provide good social care. However, there are gross anomalies and many problems—for example, if the NHS budget runs out and people are transferred to a local authority.
The noble Baroness, Lady Pitkeathley, mentioned carers. I shall discuss only one aspect of that issue. There should be a statutory disregard of property when a longstanding carer is in residence. I hope that the Minister will keep that under review. The issue causes an immense amount of distress. I hope that he will consider a mandatory disregard of property when a longstanding carer remains in the home. That is part of the investment in social care that is needed.
I turn to shortfalls in the funding of social care. Because the fees in care homes have been going up, desperate relatives are often approached to make up the shortfall. In this country, relatives are not forced to pay for the care of someone else. However, one would not believe that that was the case when local authorities almost force them to pay. The local authority has the responsibility—it is the contracting body—but sometimes it will not pay the higher amount. The Government should as a matter of

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urgency consider the levels of payment by the local authority and set them realistically to comply with the guidance on standards. That is one reason why so many care homes are going out of business. The practice must stop. That is particularly important for those people who were previously funded under preserved rights.
Yesterday's press release from the Government stated that transitional protection of the residential allowance and of part III rates will end in October next year. Those rates were ridiculously low. The proposal will be fine if it leads to a simple transfer whereby the local authority picks up what the individuals lose. I believe that that is the intention. I hope that those people who have made their own arrangements and are using a combination of income support and attendance allowance to do so will not suffer any losses through the move. I also hope that the transfer will include extra costs to the local authority, which will need to reassess large numbers of residents who have transitional protection. That is intended to increase flexibility through the reallocation of money, but that will be needed to make up the loss of the residential allowance to pay for the care home.
People face other difficulties, including those associated with attendance allowance, which may disappear after four weeks if someone is transferred to the local authority and becomes its responsibility. Such complexities are not rare. Attendance allowance needs to be paid according to the needs of the disabled person, not the setting in which he or she lives.
To conclude, we now have a good opportunity, which is greatly helped by the transfer of resources to the NHS. That is intended to develop intermediate care and to improve social care to meet the aims of the National Service Framework for Older People and the standards that the General Social Care Council and the National Care Standards Commission will undoubtedly demand. Older people can no longer suffer lower standards of social care than other groups. The Government cannot afford to ignore them and do not, I believe, wish to do so. I hope that the measures will be successful.
6.55 p.m.
The Earl of Listowel: My Lords, I, too, am grateful to the noble Baroness, Lady Barker, for giving us this opportunity to discuss investment in social care. I was saddened by the many eloquent speeches about the problems facing our elderly citizens. I shall concentrate on the essential partnership between child and adolescent mental health services and social care, and the consequential need for greater investment in both of those areas.
The noble Baroness, Lady Pitkeathley, made explicit the fact that health and social care must work in strong partnership. I once met a hostel resident outside the hostel at the beginning of my shift. He was apoplectic because he had been excluded. On previous occasions, I remember playing table tennis with that young man. Always crowned in a blue baseball cap, he seemed almost mute. Of about my height but of great
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bulk and strength, I see him now doing pull-ups on the bar above the men's lavatory cubicle. I cannot remember the details of his exclusion but I recall that the staff were wholly unequipped to deal with their challenging clients. Most had merely had an induction of a day or two. The lavatory in the hostel was blocked by the accumulation of needles but there was no clear drugs policy. The staff did not have the least understanding of the basics of mental health issues. There were many exclusions. Young people returned to sleep rough on the streets as a result of the ignorance of the staff and their employers, although the staff were of course doing their best. I was told that that was a widespread practice. The least qualified staff often worked in temporary winter shelters.
The Government's Rough Sleepers' Unit and Louise Casey, its director, appear to have turned the situation around. However, there is still a vast need for greater training and support of staff caring for vulnerable children and young people. For example, Young Minds, a charity for children's and young people's mental health, cites the fact that 98 per cent of looked-after children in residential settings and 66 per cent of children in foster care have mental health problems. Despite recent increases in investment, fosterers and residential care staff are still often under-trained and unsupported, compared with our continental neighbours.
A mental health worker charged with developing a specialist mental health service pretty soon adjusted her ideas on arrival in post. She realised that what was most needed was not a specialist service but an understanding of mental health among frontline workers. She found that staff were understandably afraid to question young people about drug use, self-harm and abuse. The consequence was that young people's needs were going unrecognised. Hard as it is to be explicit about those matters, it is essential. She is now investigating training and procedures for hostel workers and training advisers so that they can ask questions, recognise needs and, where necessary, refer the young person on. Dealing with such troubling issues is also disquieting for staff. Means to better support them and to help them manage the troubling feelings provoked by their work are also being examined.
Several years ago I met a mental health nurse who was working in a hostel for young drug users in King's Cross. What she said was so difficult to listen to that I found myself unable to concentrate on my work the following day. She and three of her fellow mental health nurses had been placed in the hostel at the beginning of the year. No thought had been given by the management of how they might be supported. Twelve months later, she was the only nurse who had not resigned; and she was clearly deeply marked by her experience. The organisation appeared to have had no idea of the emotional needs of the client group. It therefore had no inkling of how the staff should be supported.
All these experiences persuade me that social care of vulnerable or challenging children and young people needs to be permeated with an understanding of

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mental health and what makes for mental well-being, from its top to its bottom. The surviving mental health nurse put it to me in this way,
"Without a psychological understanding of these children and young people, staff are working blind".
The charity Young Minds has been providing children's mental health consultancy and training services for local authorities and other agencies for several years. The director of these services writes—I paraphrase:
"While not all looked-after children need specialist psychiatric care, they do need adults who are aware of mental health issues and are working to build children's resilience to mental health problems".
I leave the last word with the manager of a project for care leavers. A child psychotherapist, trained at the Tavistock Clinic, she had managed a children's residential unit for 18 years before taking up her present post. Her plea to me was that more should be done in terms of therapeutic work for looked-after children before they leave care—I remind the House that the noble Baroness, Lady Barker, pointed out that the number of children in care is rising. The manager said that, once out of care, it was virtually impossible to help the young people to develop the emotional language to allow them to express and come to terms with the neglect or abuse that many of them had experienced. The relative containment of care placement was the great opportunity to begin to make up for the emotional deficit that many had experienced.
I beg the Minister to consider more investment to promote the essential partnership at all levels between child and adolescent mental health services and social care. Such investment should be made with particular attention being paid to the needs of children in public care.
7.3 p.m.
Baroness Howarth of Breckland: My Lords, I am grateful to the noble Baroness, Lady Barker, for introducing a topic that is so close to my own heart. As a social worker, a former director of social services, a previous director of a charity, and now a member of the board of the National Care Standards Commission, I seem to have some background in this matter. However, I am never sure why I seem to be placed at the end of debates when all the relevant points have been made. I hope that noble Lords will bear with me if I repeat some of them, because I shall approach them from a different perspective.
The past decade has seen directors of social services spending much of their time worrying about how to cut back services while facing an every-increasing demand. Much of the work undertaken does not carry the popular weight of acute health services: if it comes to a competition about allocation of resources, they usually lose out. Although I have always advocated partnership between health and social services, in some ways I am nervous about it—nervous that the social services aspect might well lose out when it comes to the consideration of priorities.
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In her recent Reith Lectures, my noble friend Lady O'Neill of Bengarve drew attention to the apparent lack of trust that those charged with serving the public in our society experience. I do not wish to repeat the arguments about finance because I believe that they have been covered. I wish to draw attention to other areas of investment; namely, trust, recognition, and support.
Like my noble friend and colleague Lady O'Neill, I believe that we need measurement and monitoring. They may help to bring focus to the work and provide a measure through which the Government can find out what is happening. However, when they are faced with so many—I gather that social services have 290 plus at present—it can distract from the general work. Too much bureaucracy takes away from the core task, and destroys the capacity for innovation and new ideas. It will be interesting to hear from the Minister whether there are any plans for reviewing or rationalising these targets, and giving greater flexibility in the way that need is met. However, trust is not blind; it brings with it responsibility for all partners. There is a need for external inspections—but, as a member of the National Care Standards Commission, I would say that.
Recently, I welcomed the Government's new plans for super regulators. I should say that I am not so sanguine about the way that the announcement was made. On the question of consultation, I believe that there are lessons to be learnt in management as regards how you value staff when exciting and innovatory projects are being taken forward.
In accepting the need for accountability, I must repeat the infamous example of bed blocking. There is evidence to show that putting resources into this area delivers results. Last October, the Government provided an extra £300 million to help councils reduce the number of patients whose discharge was being delayed by the lack of alternative residential or domiciliary help. The extra resources have helped to free up 1,000 beds in health provision—yes, it works. But instead of encouraging the continued progress that a trusting partnership would demand, the idea has been developed that local authorities would have to pay the cost for elderly people to stay in hospital for every day following a decision by a consultant that he or she was medically fit to go home. That seems to be punitive. I simply draw attention to the questions put by my colleagues previously.
Anyone who has worked in these areas will know that there is very little consistency about discharge and that consultants will want to meet their own targets of throughput. Who will make decisions about whether the discharge was appropriate? Will there be proper time to plan complex placements for elderly and disabled people going from hospital to care? Will there be enough resources available fast enough to ensure that people are not discharged into unsuitable and even dangerous alternatives? Particularly for those with complex needs, who have an assessment of high dependency and for whom residential provision is essential, the maintenance of existing placements as well as the development of new

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ones will require injections of funds. There are some myths and legends around what the National Care Standards Commission is expecting at present. Clarity will emerge as the months go on; indeed, we are still very young. However, that does not mean that there is no serious need for more funds for specialist provision.
For many years I have worked with the John Grooms Trustees to provide for people with severe disability. For too long, these placements have been subsidised by fund raising. In today's world this is increasingly difficult to maintain; indeed, there are many who would say that it is inappropriate. So my association, along with others in this field of provision, now have to charge the full cost of placement. I should point out to the noble Baroness, Lady Fookes, whose contribution I welcomed, that trained staff need to be paid more than the basic wage. They are expensive, and we need to value them if we are to retain them. It is only by retaining such staff that we shall be able to provide these very expensive and specialist facilities.
Alongside the need for trust goes a requirement for consistency. I have been associated with the field of social care for 40 years—I started young. The most striking recollection that I have of those years is one of constant reorganisation and change. Yet I believe that change is necessary for development and that it can bring interest and innovation. But too many front-line workers have found themselves concerned about their job and place of work and, most importantly, about being moved from one caseload to another in the middle of vital work with families and children.
While we are focusing today on services, we should remember that, when we divert skill and attention away from work and into reorganisation issues, it is the users of services who lose out in the long run. There are good ways of managing change but, too often, the priority is political expediency and personal whim rather than evidence based on implementation. While I recognise that much of this is within the remit of local government, I should like to see programmes of reorganisation vetted for the benefit that they will bring to end-users. Perhaps the Minister will comment on that point.
Earlier I mentioned that the drivers in the health service tended to minimise the less immediately responsive parts of social care. As we see pressure to improve delivery in acute services, some other parts of provision can become Cinderellas. I believe that social services are in an ambiguous situation, both in their position and direction of travel within local government and in respect of their position within health services. Do they travel with leisure, with housing, with health or what else, or do they have something to do in their own right?
I cannot allow a discussion about resources to pass without mentioning children, and especially looked-after children. I am grateful to my noble friend Lord Listowel, who always graphically illustrates their cause. As the noble Baroness, Lady Barker, said, their numbers have increased significantly. Indeed, I believe
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that the Association of Directors of Social Services recently said that the numbers were going through the roof.
The Government's Quality Protects programme has had an impact on the service delivery to those children. I ask the Minister for reassurance that, as the spotlight continues to focus on acute and adult services, there will be no reduction in the resources or the attention paid to this most important group of social service users.
The debate has illustrated the complexity of the issue. It is steeped in values and attitude as well as cash and demand. I hope that the debate will at least have helped us to think about how we develop services before we simply implement the next ideology. Ultimately, it is about services to vulnerable people and about those who deliver the services.
7.13 p.m.
Lord Clement-Jones: My Lords, I also congratulate my noble friend Lady Barker on initiating the debate. Not only did she make an utterly persuasive introductory case; she succeeded in eliciting this afternoon what I considered to be extraordinarily expert contributions. They have been a pleasure to listen to, despite the subject matter of the debate.
There is no doubt—I believe that noble Lords have illustrated this throughout the debate—that there is a huge amount of evidence of under-investment in so many areas of social care. Even the Treasury, on the advice of Derek Wanless, who, by his own admission, was going beyond his remit, seems to have accepted the charge, first, that social and health care have not been sufficiently integrated and that, secondly, social care expenditure needs to keep pace with health expenditure.
He makes the case, which many of us have been arguing since this Government came to power, and earlier, that health and social care are inextricably linked. Planning for both must be considered together. He said that we need to understand interactions between health and social care. He states:
"The key demand driver for future spending on social care for older people is the assumption about their future health".
Yet, at the same time as making those observations, he noted that the information that he needed to consider the care system as a whole—a number of noble Lords have mentioned the "whole system" approach—was simply not there. But that is in the context of a government who have prided themselves on inventing the phrase "joined-up government".
The truth is that, until the Chancellor announced a 6 per cent rise in social services expenditure from next April—it should be emphasised that this is not immediate money—in resource terms, social care has been grossly neglected. The gap between social and health care has been widening inexorably over the years. Even in the context of the rise in resources which has been announced, my noble friend Lady Barker demonstrated that much of the so-called "new" money

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is, in fact, old money and that, even with the new funding, social services will still be grossly under-funded.
The evidence of under-investment is all around us. Help the Aged recently published its report, Nothing Personal: rationing social care for older people. It says that resources have not kept pace with need over the past 10 years. Only those most in need are receiving adequate support. Low-level services have been cut back, services have been highly variable and long-term care is effectively subsidised by those who pay. Those are just a few of its conclusions.
Ultimately, it concludes that the key problem boils down to one of central government funding and chronic under-investment. That is clearly borne out by the facts. Even in the past year there has been a drop of 5 per cent in the number of care home places for older people. In total, 9,700 care home places were lost in 2000. As the noble Baroness, Lady Fookes, pointed out, over the past five years that has amounted to 50,000 places. The situation has been worse in some places, such as the North, than in others because there are fewer self-paying residents to subsidise state provision.
I and my colleagues in both Houses—not to mention the noble and learned Lord, Lord Mayhew, in December last year—have warned of meltdown in this sector as a result. If 4,500 beds blocked came as a surprise to Mr Wanless, it did not on this side of the House.
In his report, No Room at the Inn, my honourable friend Paul Burstow demonstrated the sheer number of people over the age of 75 who had been affected in a single year from March 99 to March 2000. There were 21,500 such people. In that report, he demonstrates the awful human cost and absurd economics involved in delayed discharge by keeping those older people in hospital rather than paying a fair rate for a care home bed. In addition to the issue of delayed discharge highlighted in the report, there is also the major problem of the massive 18 per cent rise in emergency readmissions over the past two years—another symptom of problems in the care system.
As a number of noble Lords have pointed out, the Government are now promoting an ingenious Swedish system for penalising local government where delayed discharge from the NHS occurs. It was described graphically by my noble friend and, indeed, by the noble Baroness, Lady Howarth. There are huge question marks over that system. But would it not make better sense to start by funding the system properly?
I shall concentrate mainly on the issues surrounding older persons, but a number of noble Lords have made extremely powerful points in relation to children's services. My noble friend Lady Barker and the noble Earl, Lord Listowel, raised that issue: the rise in the number of children in care since 1999; their continuing poor educational achievement; the massive increase in the amount of abuse suffered by looked-after children; and the fact that two-thirds of the over-expenditure in local government is attributable to that area.
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We could mention the whole area of mental health. The Sainsbury Centre for Mental Health and others have pointed out that cash designated towards care in the community for mental health service users is simply not getting through. My noble friend Lord Addington made some trenchant points about services for the disabled.
Even when it comes to major government initiatives, funding is not getting through where it should. The King's Fund made the point in its report, Future Imperfect?, published at the end of last year. It said that the Government had failed to establish a sustainable system for funding long-term care by not implementing the Royal Commission proposals.
Already the inadequacies of the system in England are showing up and the strengths of the free personal care policy in Scotland are coming through. The free nursing care pledge of the Government was always thought to be second best. It is now clearly fourth-rate and in some cases little more than a hoax. As the noble Baroness, Lady Greengross, pointed out, only 22 per cent of the 42,000 people who fund themselves in care homes have been put on the top band of £ 110 per week for nursing care. Nor have all those seen the benefit even of the lowest band of £35 per week, as some homes have absorbed the payments in fee increases. The banding assessments by themselves have taken the time of 1,500 nurses from their front-line duties.
The Government's guidance suggests that people should seek redress for this through the law of contract. Having devised an unworkable system, that amounts to washing their hands of the problem. In Scotland, by contrast, residents have the choice to contract through local authorities for all services or direct themselves for accommodation, with the local authority contracting for personal and/or nursing care. The money is going where it should. At the very least, the Government should adopt a system of direct payment in England.
As regards the standards of care in residential homes, throughout the passage of the Care Standards Act we backed the concept of higher standards. Yet the fact is that the Government have not been prepared to devote the necessary resources to this. Their initial regulatory impact assessments were grossly inadequate. For example, as regards the standards for care homes for younger adults, they initially said that the cost was £52,000 per home but it turned out to be £52,000 per room. The assessment had to be quietly replaced after representations from key organisations such as Leonard Cheshire.
Home owners have neither had the assistance with investment to meet standards, nor have they received the fees necessary to meet the financing costs of the additional investment required. As pointed out by the noble Baroness, Lady Fookes, is it any surprise that so many home owners sitting on a property asset in those circumstances are selling up and getting out?
At the moment, there is no doubt that the charity sector is propping up the costs of state placements. Surveys carried out again by my honourable friend Paul Burstow show that that figure could amount to

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some £200 million. All this adds up to the fact that a proper national strategy is badly needed. There should be an urgent review of care home capacity; the adequacy of fee levels needs to be examined; assessments should be checked; direct payments should be available for self-funders; a proper assessment of need should be carried out and resources allocated to match; and those awaiting banding—and there are many—need to be assessed urgently. I hope that the Government will examine the operation of the scheme in Scotland which was agreed by the coalition government.
My noble friend Lady Barker pointed out that we need to change the basis on which social care is valued and assessed. We need to look at social care as part of health in its widest sense. We need more access to preventive care. There must be a choice in terms of independent living. Home surely is the optimum solution which, in her words, avoids the "medicalisation of old age". That highlights the importance of carers. The noble Baroness, Lady Pitkeathley, made a strong case on the matter. As she said, the latest report showing the value of that care of £34 billion is quite overwhelming. There is a need for joined-up working, a point which the noble Baroness, Lady Masham, also raised.
So, in summary, we need to move from crisis to a system which promotes well-being, in the words of my noble friend Lady Barker. Finally, we need an injection of more funding. Whatever figure the Chancellor may have already announced, it does not appear to be adequate to meet the expectations not only of those in the Chamber who have spoken today but those outside. We desperately need a proper assessment of what funds are required to fund a high-quality social care system.
7.23 p.m.
Lord Astor of Hever: My Lords, this has been an excellent debate. The noble Baroness, Lady Barker, always speaks eloquently on social care issues. I congratulate her on introducing this important and, as my noble friend Lady Fookes said, worrying debate.
A number of concerns have been raised tonight—bed blocking, inappropriate discharges, the care home crisis, the shortage of foster carers, the lack of occupational therapists and children's mental health problems. That shows how wide and complex this subject is. I hope that the Government will listen and be able to act on many of the constructive suggestions made.
The shape of social care will be deeply affected by the Government's recent proposals to end bed blocking, and so will the coffers of social services departments.
Since the Secretary of State's announcement, there has been widespread criticism of the proposals, especially by the LGA and the Association of Directors of Social Services. Despite that, the Government have remained eerily silent about the details of the proposals. When the Minister winds up, I hope he will give more detail on them. I understand
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that they seek to transfer the financial responsibility of NHS acute care patients who have received their treatment to local authority social services departments.
According to the Command Paper— a matter touched on by the noble Lord, Lord Clement-Jones—Sweden is being used as a model for the Government's proposals. When similar reforms were introduced there in 1992, 20 per cent of the total cost for healthcare was transferred from counties to municipalities. Bed blocking has been eliminated by making it more profitable for local authorities to find a care place than to leave an elderly person in an expensive hospital bed.
In Sweden the ÄDEL, reforms provided that, once a hospital has completed a patient's medical treatment, the community has three days' grace after notification before assuming financial responsibility for that patient. What notification period have the Government in mind? Will it be one day, three days or three weeks?
Statistics from the Department of Health for the third quarter last year show that 40 per cent of delayed discharges from hospitals in England are delayed by more than 28 days. The implications of that, when considering the potential cost to local authority social services departments, are alarming.
Further analysis of the statistics shows that 15 per cent of patients waiting to be discharged from hospital in England are awaiting public funding, and 25 per cent are waiting for a nursing or residential placement. The regional variations cause even more concern. In County Durham and Darlington Health Authority approximately 60 per cent of delayed discharges are awaiting public funding; in Walsall the figure is a staggering 71 per cent; and in St Helen's and Knowsley it is 57 per cent.
In the light of those statistics, can the Minister reassure the House that local councils w ill not be forced to reduce any social care services in order to pay for the Government's inability to tackle bed blocking?
Can the Minister tell the House whether discussions were held, by him or his colleagues in the Department of Health, with their opposite numbers in Sweden or Denmark, about the proposals for cross charging. For example, did anyone from the department seek the advice of Gert Alaby who, according to the specialist press, was the architect of the Swedish model of reform? Or are they relying solely on the advice of Mr Wanless? What estimate has the department made of the current cost of delayed discharges to the NHS? How much of that cost will be transferred to local authorities.
The Command Paper states that the Government will consult with local government on implementation of these changes. Does that mean that the Government do not intend to consult local government about any other aspect of the proposals? Is it a fait accompli?

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I hope that the Minister can reassure the House that the Government's plans to tackle bed blocking are rooted in sound research and not, as has been suggested, cobbled together in a panic to satisfy the Treasury.
Plans to ease bed blocking will be further undermined by a shortage of accommodation in care homes. Much of the blame for that lies with the Government. BUPA have warned that the increase in national insurance contributions will cost the private care sector £50 million. That may be too onerous for smaller care homes to cope with. The National Care Homes Association has voiced its concern that stealth taxes are killing its members. Smaller care homes in England are already running at a 5 per cent margin, but for an average care home, wages are 80 per cent of costs and the increase in national insurance will reduce their margins by almost one fifth.
Care homes have felt the financial effect of the national minimum wage, as my noble friend Lady Fookes said, and of the working time directive. Soon, they will have to fund improvements, if that is the right word, to comply with the Care Standards Act 2000. My noble friend gave an excellent illustration of the problems. Due to high levels of non-compliance, closure rates of care homes are likely to accelerate. Now they face fines for bed blocking in the acute sector—Labour's latest stealth tax.
A shortfall of at least £150 million a year in government funding for residential and nursing care in south-eastern England is rapidly cutting local authorities out of the market because they cannot afford private sector prices. Last year, my county of Kent lost 22 per cent of its nursing home places. Care places are being bought by London boroughs, which can pay more because of the local government funding arrangements.
In the Budget, the Government announced a 6 per cent increase in social care funding for local authorities. Can the Minister give an assurance that the majority of that funding will be applied to services for the elderly—in particular, to the funding of care homes? Without that level of commitment, more places and care homes will disappear. Hospitals will face increasing numbers of misplaced, frail, vulnerable people with inadequate, suitable care accommodation to which to be discharged.
The current level of funding that local authorities provide severely limits the ability of care providers to invest in training and the continued development of staff. That makes it more difficult to recruit and retain staff who could build a rewarding career in care, not just hold a transitionary job. Attracting and retaining social workers is an area that really needs investment—and an emotional investment—from the Government. The number of staff working in social services departments in England has fallen by 10 per cent in the past 5 years. The biggest fall has been in residential workers—21 per cent.
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Working in social care is sometimes a job for masochists—the pay is rotten and everyone condemns them if anything goes wrong. But every day, social workers help and protect thousands of vulnerable people. The Government have recently launched the second phase of their awareness campaign to help recruit more social workers. That initiative is vital if we are to develop a strong social care system to support people with serious health issues: older people, people with mental health problems, and abused or homeless children.
Universities and colleges need to take on some of the responsibility and be much more aggressive, particularly in recruiting social work students with disabilities and from ethnic minorities. Do the Government have any plans to encourage that? If students do not come through the system in the first place, there will not be a diverse pool of social workers from which to recruit.
7.34 p.m.
Lord Filkin: My Lords, I welcome this debate, which the noble Baroness, Lady Barker, secured, on the issue of investment in social care. It has been an example of the House bringing to bear a wide range of experience and talent, which is helpful to all who are concerned with the issue.
The noble Baroness, Lady Fookes, spoke powerfully, arguing that this is a debate about individuals and that it is individuals who matter, rather than institutions, organisations or government. Those involved are among the most frail individuals in society: children, the frail elderly, adults with disability and, as the noble Earl, Lord Listowel, said, vulnerable children and young people. The issue is therefore of particular concern to us. It is true that, as the noble Lord, Lord Clement-Jones, said, in some areas, an increase in need is being expressed for both children at risk and some of the frail elderly.
The debate has tended to focus, although not solely, on money. Money and investment are important and necessary, but we do not do justice to the issues if we imply that money is the only issue. It is as much one of people. Several noble Lords have spoken eloquently about the contribution of people in public service—whether employed by local authorities, the NHS or the voluntary sector. The question is how one harnesses their talent and how organisations can work better together to meet needs other than their own. Lastly—and this has hardly been mentioned—it is about how we make better use of the resources that we have, as well as making the case for more resources.
First, let me deal with the issue of resources. It is not true that the position has stood still. Between 1996–97 and the current year, personal social service resources have increased by more than 20 per cent in real terms. I challenge noble Lords to find a recent period when there has been anything like such a comparable increase in resources. The picture that is sometimes painted is one of standstill budgets. That is untrue. Budgets may not be adequate but they have certainly

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not been at a standstill. Many public services would relish the increased investment in PSS over recent years.
This year, the resources available to PSS have increased by £647 million, which is an increase of 6.2 per cent in cash terms, including a 21 per cent increase in cash terms in the carers' grant and a 13 per cent increase in cash terms in the children's grant.
The Chancellor's Budget Statement said that PSS resources will increase by an average of 6 per cent a year in not cash but real terms over the next three years. That is not short-term funding, as was alleged; it is a platform of consistent, significantly above-inflation funding for a priority service—again, the like of which we have not witnessed for many years. That gives us the opportunity—especially if we can move beyond arguing that it is simply a question of money—to make a significant improvement in social care services.
The issue is also about how local authorities perform and make judgments. They are not simply agents of central government in that respect. I hope that most of us believe in locally elected authorities. That means that they have scope to make significant decisions. We hope that that is recognised and valued and that they make those budgeting decisions responsibly and understand their role in introducing reform strategies to get better value and use from their resources.
The Government are seeking to motivate and support that change in performance in local authorities. We will reduce ring-fencing for those councils that are performing well. The first set of social services performance star ratings will be published soon—before the summer Recess. To begin with, three star councils will have greater freedom to spend their share of the new social services performance fund. Monitoring will then be proportionately less, because there is no sense in having a uniform monitoring and inspection regime. Those who perform well should be inspected much less. Other freedoms will follow.
Noble Lords did not speak about changes to the grant allocation formula, so I shall not either, given how tight is the time, but we shall consult on that in the summer and hope—although it is often a vain hope—that that will lead to more of a consensus that we have as fair a system as possible.
I turn to the debate about late discharge. I warmed to what the noble Baroness, Lady Masham, said when she spoke about the evidence given by the Spinal Injuries Association. Yes, we should be pleased to receive that. She reminded us that this is about people staying in inappropriate locations in the system when they should not be. None of us could argue that the current situation works adequately. The argument that we can stay where we are is flawed, unless we hear from local government collectively that there is a set of coherent plans to crack the problem. We deal daily with 5,000 people who are held in hospital when they need not be there.
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I have been asked many times how it will develop. In true ministerial fashion, I shall tell noble Lords to wait and see. The Government will consult fully and—I promise—properly on the proposals in the summer. Officials have met the Swedish authorities and discussed their experience. That has been of interest, but, of course, we do not intend to follow blindly what Sweden does. It is, however, interesting that, in Sweden, councils and health authorities tended to squabble over responsibilities, and people were not getting help. The point is not to say that the NHS is at fault or that local government is at fault but to try to motivate both to work better, so that the public do not suffer as a consequence.
Cross-charging was introduced in Sweden to ensure that the system worked smoothly to give municipalities an incentive to put the right range of community services in place, so that patients could move out of hospital as soon as they were ready. The capacity for caring for people in the community expanded rapidly after the reforms were introduced, and the number of delayed discharges fell. It is our interest to see whether we can make things work better, and I am sure that it will also be the interest of local government. That is our focus. If, on consultation, people suggest that there are better systems, we will want to hear about them. However, the argument that nothing needs to change is bankrupt.
The better use of resources is an issue that was neglected in the debate. We have a substantial body of evidence from what the Audit Commission and the Social Services Inspectorate have been doing for years, not just under this Government, but under the previous Government too. That work commands high respect from all parties, and no one has rubbished it.
The evidence provided by the Audit Commission about delayed discharges is interesting. In short, it says that the current system tends to operate perversely, so that high-cost options are used, although they are not the ones that the public want. There is a tendency to put people in hospital and keep them there, when they do not particularly want that and when, in some cases, it is avoidable. There is also a tendency to discharge people more often than is necessary into residential accommodation, which is more expensive and is usually not what they want. That is the nub of the issue that we must address, not simply in the interests of doing it more cheaply, but in the interests of giving people more appropriate care.
My noble friend Lady Pitkeathley—or perhaps it was the noble Baroness, Lady Greengross—spoke about the importance of preventive action so that people could avoid going into hospital and of early intervention in hospital. The noble Baroness, Lady Masham of Ilton, also spoke about it. It is an appalling situation in which there is no contact until a discharge note has been given. That is nonsense on stilts. We must motivate public bodies to behave differently, as we know from elsewhere to be possible. I have said enough about that.
There have been problems with care home capacity, but it is not good to exaggerate them. They tend to be localised in the South East, where the escalation of

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property prices gives some people another choice for the use of their capital. Overall, the number of residential care homes has fallen by 1 per cent, by the Government's latest figures. There will be hotspots, and no one is saying that there is no problem. It is not, however, an impossible situation.
Lord Clement-Jones: My Lords, is the Minister denying that we have lost 50,000 care home places in the past five years? Is that not a significant problem?
Lord Filkin: My Lords, I would need to wade through my mountainous file to find out whether I agree with that. As I do not want to detain the House any longer than I am already doing, I shall write to the noble Lord about that.
I respect the important points that have been made about the implementation of care standards. The last thing that anyone wants to do is implement clumsily the improved standards and damage the market in the short term. Jacqui Smith wrote to the National Care Standards Commission to give it guidance that homes that provide care of a high standard should not be penalised because of specific environmental standards. We always expected that the NCSC would operate flexibly to reassure home owners and other interested parties. The changes will be implemented with care and intelligence, rather than blindly.
I was asked what we were doing to support carers. A new grant was introduced in 1999–2000. There will, progressively, be £20 million, £50 million, £70 million, £85 million and £100 million a year. DWP improvements to financial support for carers bring in extra resources through the carers allowance.
The noble Lord, Lord Addington, spoke powerfully about the important issue of what we do for young disabled people. There is a particular concern to achieve the better co-ordination between partner agencies that he seeks, hence the New Deal for Disabled People to help them into employment and local welfare-to-work joint investment plans. I hope that the noble Lord will also be pleased to hear that we will shortly publish guidance on fair access to care services. One of the eligibility criteria for all adults who seek help will ensure that people receive care fairly, regardless of their age, health condition or location. That was the noble Lord's particular point. That should facilitate the movement of disabled people around the country.
The noble Baroness, Lady Greengross, spoke about the abolition of residential allowances. I am pleased that she welcomes the change. It will simplify complex benefit rules and will help customers and families to understand what they can claim. Many practical details are still to he worked out, and the DWP is consulting about that. The noble Baroness also referred to mandatory property disregards. They are already there for wives and immediate dependent relatives. It is up to local authorities to go further if they wish, as the House knows. The Government will keep under review the question of whether it would be appropriate to take mandatory disregards further.
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The noble Baroness, Lady Masham of Ilton, asked what CHI would do if it found a hospital that was failing. It will highlight a problem in a particular service, comment on it, analyse the problem and make recommendations such as modernisation to address it, if appropriate.
The noble Baroness, Lady Howarth of Breckland, like one or two other noble Baronesses, spoke with some of the greatest experience of the issues that exists in the House. I endorse her comments about the importance of trust, recognition and support, if we are to get the investment in social care to work effectively. Staff must be valued, supported and trained. We must move away from a culture of vilification towards one that recognises talent and commitment. That cannot, of course, be blind trust; there must be standards, values and inspections. The noble Baroness recognised that and is playing a full part in that.
The star rating that I mentioned would significantly reduce for those authorities the need to produce plans and targets. We are signed up to reducing the number of separate grants to be made to local authorities in the next few years. That is sensible.
I think that I have answered the question asked by the noble Lord, Lord Astor of Hever, about consultation with the Swedes. He asked a good question about the cost of delayed discharge. We do not have the figure to hand, but we will make an estimate and share it with him.
The noble Earl, Lord Listowel, spoke about promoting more partnerships between child and adolescent mental health and other services. The Government have invested an additional £85 million in child and adolescent mental health services over the past three years. We will invest an additional £5 million in 2002–03 in the CAMHS mental health grant for local authorities. That takes us up to £20 million per year. CAMHS has a development strategy. I cannot go into it now, because of time constraints, but I shall write to the noble Earl with more detail.
Building partnerships with the NHS is an issue that we need to mark. It was touched on by some noble Lords in the debate. It is about recognising that there is value in the involvement of local government and the voluntary sector and there is value in having a National Health Service, which very few in this House argue against. It ought to be possible in the future for those separately accountable agencies to work better together, without the need to enter into yet more organisational change. That point was made by the noble Baroness, Lady Howarth. The serious challenge facing us all is to try to prove that that will be possible. Therefore the issue of how to adopt a whole-systems approach, referred to by the Audit Commission, focused around the needs of the public—the client—rather than in response to institutional defensiveness, will be a challenge. In the past, public sector bodies have not had a strong track record on this.
I cite here the problems of interface, where difficulties can arise. The needs of many of the people referred to in the debate sit on the interface between

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public services. Unless we can find non-organisational and institutional ways of changing those defects, people will face problems. Therefore the issue of instituting more joined-up inspection processes is relevant here. That will involve the Commission for Patient and Public Involvement and the local authority overview and scrutiny committees mentioned by the noble Baroness, Lady Masham. I shall spare the noble Baroness and the House a repeat of all that has been said in the debates on NHS modernisation. It is possible, of course, that we may have a future opportunity to debate the matter.
The other side of the penny is resourcing for the NHS. I shall not go into detail, but noble Lords know well that the NHS has had a sustained level of significant real increase in resourcing, matched by a guarantee of a future funding platform stretching five years ahead. Arguably that is as significant as the current increases. Along with the slightly shorter elevated platform for social services at three years, we hope that that will offer a significant opportunity to build capacity and strengthen our provision of services for those who are most vulnerable.
In conclusion, I have argued that we need to look at this not only in terms of money, but in terms of how we can make better use of those resources, how organisations can work better, how we will build capacity in staff—a great deal is being achieved through social workers now moving to a three-year professional qualification and other significant increases in training—and through the work of registration and standards that the General Social Care Council will provide. As the noble Baroness, Lady Pitkeathley, pointed out, an effective inspection and improvement mechanism will also play an important part.
Above all, we have to put resources to better use. We have to focus on the needs of the public, not on the interests of organisations. Furthermore, we have to move beyond describing the problem and then simply throwing money at it. We cannot solve the problem merely by throwing more and more money at it. Money will play its part, but simply to claim that the difficulties concern only money does not do justice to those whom all in the House seek to serve.
7.53 p.m.
Baroness Barker: My Lords, as I anticipated at the beginning, this has been an extremely interesting debate filled with wonderful contributions from knowledgeable and experienced people. One theme ran throughout the speeches; that is, there is a need for a review of social care. That is extremely important. Such a review must be undertaken on its own terms. I do not think that we have asked for increased spending commitments; we have asked for a coherent whole-systems review. I thank all noble Lords who have contributed in their own ways to that request.
I should like to call for Papers, but I suspect that if I did so at this point then I would be hanged by a silken cord. Perhaps I may say, as a Scot, that in the interim before a whole-systems review and papers come
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forward, a great deal of what is now happening in England is resting on the experience of the Swedes. Let us hope that the World Cup does not let us down and let us hope also that the Swedes have their healthcare system right. I beg leave to withdraw the Motion for Papers.
Motion for Papers, by leave, withdrawn.

Sex Discrimination (Amendment) (No. 2) Bill [H.L.]
7.55 p.m.
Report received.
Clause 1 [Amendment of the Sex Discrimination Act 1975]:
Lord Borriemoved Amendment No. 1:
Page 1, line 8, leave out "25" and insert "1500"
The noble Lord said: My Lords, the threshold for the operation of the Bill as it stands is a mere 25 members. Any club of modest size, perhaps a working men's club or a public house darts club with a mere 40 to 50 members which allowed women members to join with some form of membership would be required by law to give women their club memberships on absolutely equal terms with men, entitling them to use the same facilities, the same bars and so forth, at all times.
The proposers of the Bill seem in no way troubled by what I consider to be the gross intervention of the law into freedom of association that members of private clubs and private associations normally enjoy. When we discussed a similar amendment in Committee, I conceded that clubs with a very large membership, such as a substantial golf club set up in an area with no alternative publicly-owned or commercially provided golf links for many miles around, perhaps ought to be required by law to treat men and women equally. The probing amendment tabled in the names of the noble Lord, Lord Henley, and myself at that stage sought to increase the threshold to 2,000 members.
My noble friend Lord Faulkner of Worcester, the proposer of the Bill, was quite unwilling to compromise or to meet us half way. So we are probing again on Report with an amendment to raise the threshold to 1,500 members. I noted that in Committee my noble friend Lord Faulkner said that the average membership of working men's clubs is 900. I accept that figure.
I state as a matter of principle which I hope will be agreed by many noble Lords, that the law—legislation and statute—has no business telling the men running modest working men's clubs with few resources and small premises that if they accept women into some form of membership, they must provide equal facilities, equal rights in the governance of the club, and so forth. According to the Bill, such clubs must even treat women guests in precisely the same way as they would treat male guests.

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On Second Reading my noble friend Lord Faulkner gave the facts about working men's clubs which belong to the Club and Institute Union, the CIU. My noble friend told us that 40 per cent of all working men's clubs, some 1,080, give women full membership rights equal to men. A tiny number—only eight clubs—are single-sex clubs that do not admit women at any price, as it were. But the largest proportion of working men's clubs, 60 per cent or 1,612 clubs, allow women to join with a different class of membership and a lower subscription.
I understand that the national executive of the CIU seems to want all clubs to give women full equality, but the noble Lord, Lord Faulkner, has admitted that the members in local clubs up and down the country in the group comprising 60 per cent of all clubs do not want women to have full and equal rights with men in their clubs.
What moral or other right do we, as legislators, have to impose equality by law contrary to the wishes of members? What is the evil? What is the mischief that calls for such a disproportionate response as to impose by law the requirements of the Bill as it stands? It can only be the mischief of male members setting aside some part of the premises for male only drinking or, perhaps, male only snooker. That must be the mischief against which this heavy-handed Bill is brought to bear.
If the cause for which my noble friend Lord Faulkner fights is equality between the sexes, he is going too far. In any case—I regret repeating what I have said on other occasions—it may be counter productive. It may cause clubs which have agreed to open the doors somewhat to women members and women guests to close their doors firmly shut once more.
I know that many noble Lords, especially women Members of the House, feel that since the Sex Discrimination Act 1975, matters in the field of clubs have moved too slowly. There is no doubt that they have moved too slowly in their minds—in all our minds—in other fields, but I still say that clubs and private associations are closer to private life and what one does in one's family and one's private home than what should be done by public and commercial organisations.
I believe that matters should be allowed to evolve—as everyone must admit they have done—irrespective of the speed at which change has taken place—in relation to working men's clubs, golf clubs and St James's clubs which used to be exclusively men only. Big clubs with big memberships—the noble Lord, Lord Henley, and myself are suggesting those with memberships of more than 1,500—are difficult to distinguish from public or commercial bodies providing services to the general public. Private clubs, in my view, are not places for legal intervention. I beg to move.
Lord Dahrendorf: My Lords, when I went to the Public Bill Office yesterday to add my name to the
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amendment I was told that I was too late because it had started printing the Marshalled List. I am afraid, therefore, that the House will have to bear with me for 90 seconds.
The amendment is not part of a numbers game but defines the limits of the arrogance of legislation. I believe that smaller, private associations must be allowed to operate within a minimum of legal constraints. Therefore it is right that those with fewer than 1,500 members should be excluded from the provisions of the Bill.
Indeed, I believe that the strength of civil society in this country rests on the freedom which associations—notably small associations—have to set their rules within the framework of the rule of law. While 1,500 is not a sacrosanct number, it gives an indication of the deep belief that I share that there must be limits to how far we legislate. I strongly support the amendment.
Baroness O'Cathain: My Lords, before the noble Lord sits down, perhaps I may ask him for clarification. The noble Lord, Lord Dahrendorf, said, "within the limits of the law". Surely sex equality is the law.
Lord Dahrendorf: My Lords, I was aware of that when I used that particular phrase. But, as we see, it is only the law if we decide that it should be the law. It is not at this moment, otherwise the Bill would not be necessary. If the Bill becomes an Act, I shall obviously advocate abiding by its provisions. I hope that it will not become an Act.
Lord Lester of Herne Hill: My Lords, I find it difficult to reply to the two speeches that we have heard because the language used by both noble Lords is uncharacteristically immoderate. I believe that I heard the noble Lord, Lord Borrie, say that the Bill constituted a "gross interference"—those are his words—with freedom of association; and I heard my noble friend Lord Dahrendorf speak of the "arrogance of legislation" and the "strength of civil society" being at risk, and the rule of law as well.
What are we talking about? We shall come to the amendments standing in my name later. They seek to make it crystal clear that the Bill in no way interferes with the fundamental freedom of association of the noble Lords, Lord Borrie, Lord Henley, Lord Dahrendorf, and Lord anyone else, in their members' clubs and their ability to exclude women totally if they wish to do so. That is their fundamental right. It is the fundamental right of women to do the same thing and of gay and lesbian people to do the same.
The only legislative interference there has been with that fundamental right was in 1976 in a Bill for which I was partly responsible. It became the Race Relations Act, which forbade colour bars in private clubs unless they had as few as only 25 members, when it was a kind of extended family. I cannot believe that my noble friend or the noble Lord, Lord Borrie, would at that time have taken the same position as the noble Lord, Lord Monson, when this House blocked that provision. It was left to the democratic Chamber to

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restore the policy of the Government and to forbid colour bars in any club—whether a working men's club, which was the main problem throughout the country, or a club to which I then belonged, which did not have a colour bar, the Garrick Club. That is the only way at the moment in which legislation has interfered in clubs.
The Bill, as amended today, will not touch single sex clubs at all. I drafted that amendment in order to meet the legitimate concerns expressed by the noble Lords, Lord Henley, Lord Borrie and Lord Dahrendorf in Committee. I thought that having done that and having made it crystal clear, that would be the end of the matter. But, no, what we now have is an amendment that would remove from the scope of the Bill any club with 1,500 members or fewer, even though the club had chosen to admit members of both sexes. In other words, the noble Lord, Lord Borrie, has in mind a club which is more than double the size of your Lordships' House.
Such a club would continue to be free to treat its women members less favourably than men solely on the grounds of their sex. Women will continue to suffer sex discrimination in some large golf clubs or other sports clubs, for example, by being excluded, as they are at the moment, from full voting rights or equal access to the club's facilities and services. As many mixed clubs would fall outside the scope of the Bill, its central purpose would be frustrated. That is why this is a wrecking amendment.
It is common ground that the Bill will not apply to clubs which exercise their freedom to choose to exclude members of one sex from membership. It is most unfortunate that that does not satisfy the supporters of the amendment.
Where a club chooses to admit members of both sexes, there is surely no justification for permitting the male majority to maintain second-class membership for the female minority. That is the principle. It is one thing to create different categories of membership, such as full membership, family membership, associate membership or country membership; it is quite another to create sex-based categories of members, with men being given rights and privileges that are not enjoyed by women.
The amendment is not based on a notion of fairness or equality for women and men. The only argument advanced is dressed in high constitutional language; namely, that we must protect the fundamental right to freedom of association. That argument was used in this House more than a quarter of a century ago to seek to enable clubs to maintain a colour bar, as the noble Lord, Lord Monson, reminded us in Committee.
When I made that point in Committee, the noble Lord, Lord Henley, explained that he regarded discrimination based on colour as different in kind from discrimination based on sex. But if the argument based on freedom of association that we have just heard were correct in principle, it would apply to both forms of invidious discrimination—for discrimination on the ground of colour and discrimination on the ground of sex are alike: they are based not on the
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personal attributes of individual men and woman, but on their innate physical characteristics with which they were born. I see the noble Lord, Lord Borrie, smiling, but it is true that the only basis for differential treatment—
Lord Borrie: My Lords, does the noble Lord consider—I use the word because he is a human rights lawyer—that it is proportionate to the mischief about which he has been speaking that the law should intervene in this tiny category of clubs which have male and female membership but on a different basis? What are the grounds for interfering with that situation and telling the existing members—from on high, from the House of Lords and the House of Commons—how they should conduct their lives in private clubs?
Lord Lester of Herne Hill: My Lords, I thought that I had answered that point. The principle upon which the Bill depends is the simple principle of equality of treatment without unfair discrimination. The application of that principle to the private sector, whether it be a private school or any other private body, should not be any greater than is genuinely necessary in the public interest. It is in the public interest so far as the supporters of the Bill are concerned—just as it is to stamp out colour bars in private clubs of more than a small family size—where a club chooses to admit members of both sexes, to allow them to maintain different categories of membership but not on the basis of colour or gender. That is the principle.
The noble Lord, Lord Borrie, is prepared to concede that that principle should apply to clubs whose membership is larger than 1,500. With respect, that is an absurd proposition. A club which has a membership of 1,501 may quickly become a club which is just under that number. There will he shifting membership and shifting categories of membership. So there are practical reasons, quite apart from reasons of principle. But 1,500 is far too high, because most sport clubs and most working men's clubs would not be caught or could easily evade the law.
As the Bill recognises, there are some voluntary associations so small that they are like an extended family. They should be excluded from the scope of the Bill in recognition of the principle that the noble Lord, Lord Borrie, has strongly expressed namely, that the law should not intrude disproportionately or too far into the private sphere. That is why the exclusion for clubs with fewer than 25 members in the Race Relations Act is matched by the provision in this Bill.
So far as I am aware, the provision has caused no problem in practice. I am not aware that any clubs have found it necessary to make the kind of protests about the anti-colour bar provisions that are now being put forward in relation to a gender bar. I submit that one cannot claim that a club more than twice the size of the House of Lords is an extended family—although some might think it to be such—to be given a zone of privacy in which unfair discrimination may flourish against a minority of women members who have insufficient voting power to secure genuine equality of treatment.

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We on these Benches therefore strongly oppose the amendment. We await with great interest the position taken by the Conservative Front Bench, especially because of the encouraging statement made yesterday about the Conservative Party, committed as it is to protecting the vulnerable and promoting equality of opportunity. I find it difficult to imagine that the Conservative Front Bench will take a different position on this issue from that taken by these Benches.
8.15 p.m.
Lord Henley: My Lords, perhaps I should say a word or two, as I have added my name to the amendment. Before I begin, perhaps I may offer my thanks to the noble Baroness, Lady Scotland, for answering so speedily the question that I put to her on the previous occasion. My question was: when was she going to respond to the Written Question of my noble friend Lady Blatch, which had been tabled some eight weeks before the Committee stage, about the Government's general attitude to sex discrimination in clubs? The noble Baroness, Lady Scotland, announced at the time—at nine o'clock that night—that she would be answering the question "shortly". I then discovered that it had been answered some time earlier and the Written Answer appeared in Hansard the day after. I admire the noble Baroness for the speed with which she offered that Answer—"shortly" was shorter than ever before!
I do not want to add much to the remarks of the noble Lord, Lord Borrie, nor to those of the noble Lord, Lord Dahrendorf, other than to congratulate the noble Lord, Lord Dahrendorf, on giving us the genuinely Liberal view from the Liberal Democrat Benches that one expects to hear from the Liberal Democratic party. It is the noble Lord, Lord Lester, who is now trying to turn this into a party matter. This is not a party matter. That is why the noble Lord, Lord Borrie, I myself, and the noble Lord, Lord Dahrendorf, are supporting the amendment. No doubt there may be a different view from the Front Bench of my own party, just as the noble Lord, Lord Dahrendorf, has sadly found that there is a different view from the Front Bench of his own party—and it is not one that could be described by anyone as "liberal". I refer to the view expressed by the noble Lord, Lord Lester of Herne Hill.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble Lord for giving way. I am tempted by what he has just said. I wonder whether he appreciates that any true Liberal understands that liberalism embraces also principles of equal treatment and fair dealing, as well as laissez-faire ideas from the 19th century.
Lord Henley: My Lords, I believe that I know as much about liberalism as the noble Lord. My father was a leading member of the Liberal Party, and I was a Liberal myself for a time—before I saw the light and joined another party. But let us leave that matter where it is.
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I wanted to pick up only one point from the intervention by the noble Lord, Lord Lester. He seemed to be accusing us of a degree of illogicality in that we had accepted the provision on race discrimination in relation to private member clubs, although at the time we had pointed out that the position was an infringement of people's liberty. Obviously, there was no need to change that later when we were in government. That would have sent out completely the wrong messages. The noble Lord said that the same should therefore apply in relation to sex discrimination. But at the same time, he is prepared— and I am grateful to him for doing so—to make an enormous exemption in relation to sex discrimination in terms of excluding single sex clubs.
I worry that this is merely a first step and that, later, the noble Lord, with his desire to push all forms of so-called anti-discrimination legislation as far as they can be pushed, will return with another Bill—it will no doubt be promoted by the noble Lord, Lord Faulkner, and supported by the noble Lord, Lord Lester—which will say that even single sex clubs are unlawful. I wait to see that in due course. It depends on what happens to this Bill.
The noble Lord, Lord Borrie, has quite sensibly suggested a figure of 1,500. He suggested 2,000 at an earlier stage, but that did not meet with the Committee's approval. We have therefore come forward with the compromise of 1,500. If that does not find the approval of the House, perhaps we will come forward with another figure on Third Reading, when we can argue out the issue. I imagine that the noble Lord will not wish to press the amendment today.
All I should like to say now, as we are coming on to the amendments tabled by the noble Lord, Lord Lester, is that we are very grateful for the fact that, despite his belief that sex discrimination legislation should ultimately be extended to all clubs, he has seen fit to table an amendment which I suspect the entire House can support as it addresses a great many of the problems that have been highlighted by the noble Lord, Lord Borrie, by myself and by the noble Lord, Lord Dahrendorf.
Baroness Crawley: My Lords, I am grateful to the noble Viscount for giving way. As he has put his name to Amendment No. 1, he obviously supports the status quo. It is generally agreed that the status quo entails second-class membership—or second-class association, for associate members—for women as opposed to men. Perhaps he will tell us how he can justify supporting an arrangement that makes women second class.
Lord Henley: My Lords, I am grateful to the noble Baroness—as I was to the noble Lord, Lord Lester—for promoting me from the rank of mere Baron to that of Viscount. I shall leave that with the Leader of the House, who no doubt can offer advice to the Government for my promotion in due course.
As the noble Lord, Lord Borrie, said, I do not intend to try to justify this because it is a matter for the clubs themselves to decide. As he also said, it is not proportionate for Parliament itself to seek to tell clubs,

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"This is what you must do". Why cannot clubs decide these matters for themselves? He also very sensibly made the practical point that the provision would positively discourage some clubs from moving in the direction preferred by the noble Baroness, Lady Crawley. I have no doubt that most clubs will eventually move that way. In one club of which I was a member—the Carlton Club; there is no reason why I should not mention it—I voted for women to come in. I may wish in due course to do the same in other clubs of which I am a member. The sheer economics of clubs pushes them in that way.
Baroness O'Cathain: Oh my!
Lord Henley: My Lords, this is a matter for clubs themselves to decide. It is not something that Parliament should seek to impose on clubs. As my noble friend Lady O'Cathain seemed to say from a sedentary position that this should not be a matter of economics, I shall merely make the point that there are single-sex clubs that are simply dying on their feet. That is why some wish to go along the road of partially extending membership, or possibly allowing women in on certain occasions. Again, however, it is a matter that should be left to the clubs to decide for themselves.
Baroness O'Cathain: My Lords, I apologise for making a sedentary comment. However, it is absolutely outrageous to suggest that a club which is on its uppers and has male members should bring in women to fund the men's fun. Really!
Lord Henley: My Lords, I am terribly sorry, but I feel that my noble friend has misunderstood my position. She only has to go into certain clubs to see that many clubs have insufficient membership. Social change has made people want to behave differently and many people do not want to stick with a club. That is why some clubs change. They do not change merely to bring women in to spend more money. They change in line with society. However, the clubs themselves must decide that and not busybodies in this House or in another place.
Baroness O'Cathain: My Lords, I should like to finish the point by reminding my noble friend, whom I greatly admire, of the old saying, "When you're in a hole, stop digging".
Lord Burnham: My Lords, I must apologise to your Lordships that I have not taken part in the various stages of this Bill so far, but I have read very carefully what has appeared in Hansard. I join my noble friend Lord Henley in being extremely shocked by the attempt of the noble Lord, Lord Lester, to take this as a party matter. I remind him that when he—unsuccessfully, thank goodness—proposed in a London theatre that the Garrick Club should admit women, he and a large number of others were told by Mr Derek Nimmo that he had taken a considerable survey of women as to whether they wanted to join the
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Garrick Club and they universally said, "Over my dead body". These were the female members of the staff.
I also ask the noble Lords, Lord Faulkner and Lord Lester, to consider a certain problem. I am terribly sorry, but if their Bill were to be enacted they would get 400 extremely angry women loosed on them. I am a member of a club which I accept has a very expensive subscription. It has 400 wives and unmarried daughters of club members, commonly known as LAMs—lady associate members—who pay one tenth of the subscription paid by male members. Are the noble Lords, Lord Faulkner and Lord Lester, suggesting that they should pay the other nine tenths, or that they should be chucked out totally, or what? I consulted that club last weekend, and it believes that enactment of this Bill would be a very difficult problem.
Baroness Buscombe: My Lords, perhaps I should begin by saying that I have just been advised to be gentle. However, I am glad that the noble Lord, Lord Borrie, started by saying that this is a probing amendment. I very much hope that he will not press it. I also speak very confidently on behalf of Her Majesty's Opposition in supporting entirely everything that the noble Lord, Lord Lester of Herne Hill, has said. I shall therefore be brief.
I entirely disagree with the noble Lord, Lord Borrie, when he says that this Bill goes too far. Indeed, from a personal standpoint, I do not think it goes far enough. This is not a numbers game; surely the numbers are irrelevant. It is a small point, and the Bill affects only a small category of clubs, but it is symbolic. As a matter of principle, I believe that the Bill ought to apply to any club that has a membership of more than one and admits both men and women.
I am nevertheless glad that the remaining amendments clarify an insecure and uncertain situation which was quite rightly debated at length in Committee. This Bill does not apply to single-sex clubs, and nor does it apply to the guests and the wellbeing of the guests of single-sex clubs. I say to my noble friend Lord Henley that, in the event that a Bill were introduced to outlaw—if I may put it that way—single-sex clubs, I would be most hesitant to support it. There are ladies-only clubs, and long may they live.
The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal): My Lords, I have been exhorted to be very short and I shall try to do so. I am in total sympathy with the noble Baroness, Lady Buscombe, and the noble Lord, Lord Lester. Not surprisingly, but with great regret, I am totally out of sympathy with my noble friend Lord Borrie. Notwithstanding the very kind comments that the noble Lord, Lord Henley, has made about my swift answering of his Question, I also find myself out of sympathy with him. I mast say, however, that the past few moments have given me great enjoyment.
I think that we have heard today echoes of old debates—debates in this House on the freedom of slaves, on women's suffrage and on racial

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discrimination—and on each of those occasions I think it was said that matters should be allowed to evolve. I should confess an interest, both as a woman and a person of colour, that in relation to suffrage and discrimination matters were not allowed to evolve—hence I give thanks, because otherwise I doubtless would not stand in your Lordships' House.
In the area of discrimination, which still continues, in relation to women's equal rights in clubs, matters were left to evolve. That has lasted a long time. Notwithstanding my intention to be brief, perhaps I may remind your Lordships of something that was said in 1958, since when there have been changes. The Dowager Marchioness of Reading, Baroness Swanborough, said about the House:
"I have not been to such an interesting school in my life. The House of Lords is a delicious place to be in. People move so slowly, nobody runs down passages, nobody uses used envelopes, nobody does anything for himself if he can ask a gentleman with a gold chain to do it for him".
The Baroness Wootton of Abinger said in 1958:
"There are strongholds that have not yet been breached. We look forward to a far greater distinction than entry into the House of Lords, and that is entry for women into the Athenaeum Club".
Historic matters. We cannot wait for very much longer. This is a small, modest Bill. It does not right all the wrongs that need to be righted, but it goes some way towards doing so.
Twenty five is not a number taken at random. It is the number used in the 1964 Licensing Act. In England and Wales in 2001, there were 3,748 commercial private clubs, proprietary clubs, owned by an individual or company, and 22,037 non-profit-making registered clubs, political clubs, working men's clubs, Royal British Legion clubs, sports clubs, and so on. All those have bars. In Scotland, there were 2,556 registered clubs with liquor licences. The figure for licensing is taken at 25. So there is a well-trammelled distinction that 25 is the cut-off point at which private endeavour moves into the public arena. We have heard nothing today to cause us to believe that 25 is not the correct figure.
Notwithstanding the huge joy that I have had listening to this debate, I believe that the fun should stop here. I therefore ask the noble Lords not to press the amendment.
8.30 p.m.
Lord Faulkner of Worcester: My Lords, my noble friend Lord Borrie will not be surprised that I cannot invite the House to accept his amendment. The consequences of doing so would be similar to those described by many of your Lordships in Committee when we considered the amendment, also moved by my noble friend Lord Borrie, to make the threshold 2,000.
In practical terms, the amendment would remove the overwhelming majority of private members' clubs from the scope of the Bill. To be fair to my noble friend, I believe that that is exactly what he wants to do. For example, in the case of working men's clubs affiliated to the Club and Institute Union, it would
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take 2,539 clubs, with between 25 and 1,500 members, out of the scope of the Bill and leave only 163, with over 1,500 members, within it.
To allow a significant proportion of those clubs—almost 60 per cent—to continue to practise sex discrimination would not only be wrong, but, as the CIU national executive knows only too well and has said on a number of occasions, would also be much against their commercial interests.
The effect of the noble Lord's amendment on golf clubs would be even more drastic. The Royal and Ancient Golfer's handbook for 2001 shows that there are 1,764 clubs, of which only six had more than 1,500 members. Thus, virtually every golf club would be removed from the scope of the Bill.
Support for the Bill comes very strongly from the Ladies' Golf Union, which says:
"The vast network of volunteers and staff promotes, maintains and regulates amateur ladies' golf at all levels throughout Great Britain and Northern Ireland and, as such, welcomes any positive steps to improve the level of services and facilities offered to its members and prospective members".
I have received a similar letter of support from the chief executive of the Central Council for Physical Recreation in which, answering the point made by the noble Lord, Lord Burnham, she comments:
"Of course, the current situation prevents many men from enjoying the benefits of associate membership (i.e. reduced fees for playing at less popular times), so there are potential benefits for both sexes. There is no sensible reason for different baselines on gender and race".
I have received a number of endorsements from other organisations, particularly the Equal Opportunities Commission, that want to see the Bill go through.
However, in view of the lateness of the hour—I know that noble Lords want to progress to other subjects—I shall finish with the question: why 25? My noble friend the Minister referred to the Licensing Act. The much missed and much loved Lord Harris of Greenwich, the senior Home Office Minister who, on behalf of the government, piloted the Race Relations Bill through this House, offered the following definition of why 25 was the right number:
"I acknowledge at once that it is a somewhat arbitrary dividing line, and I would not suggest otherwise. The reason is that 25 is the minimum number of members a club must have in order to qualify for registration under the Licensing Acts".
It was the right number for the Race Relations Bill, and it is the right number for the Sex Discrimination (Amendment) Bill. I hope that my noble friend will withdraw his amendment.
Lord Burnham: My Lords, before the noble Lord sits down, perhaps I may ask him how, if the Bill were enacted, he would deal with my lady associate members paying one-tenth of the subscription.
Lord Faulkner of Worcester: My Lords, I thought that I had answered that question. The important point about associate membership is that it will continue, if the club and the members wish it to continue. However, both categories of membership

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must be equally available to both genders. Men should have the right to be associate members and women should have the right to be full members. That is what the Bill seeks to achieve.
Lord Mackie of Benshie: My Lords, may I ask the noble Lord to clarify one matter? I had intended to go to the Garrick for dinner, but when I heard of this debate, I thought that I had better come here. Would it be safe for me to go there in the future?
Lord Faulkner of Worcester: My Lords, the noble Lord may have to wait for the next amendment to be absolutely satisfied on that.
Lord Borrie: My Lords, this has been a most interesting debate in which a number of people who did not take part at earlier stages of the Bill have spoken.
Sex equality is a principle of tremendous importance to all liberal-minded people. Freedom of association is also a liberal principle. The Bill ignores the latter and over-emphasises the former. As the noble Lord, Lord Henley, who supports my amendment, said, 1,500 is only a probing figure. But, as at Committee stage, my noble friend Lord Faulkner has moved not at all.
Because of the application of the threshold of 25 to race discrimination, and perhaps my noble friend the Minister's discovery of the new point relating to the licensing laws, it does not seem to me appropriate that 25 should be the figure. That is because it would involve compelling the members of many working men's clubs—my noble friend mentioned hundreds—whatever their views, to treat male and female members in precisely the same way, not even having a single room, a bar, where men can drink on their own among other men. Is that such a terrible thing for male members to want?
Lord Lester of Herne Hill: My Lords, I thank the noble Lord for giving way. Does he appreciate that that is not quite right? A club can have a separate bar for men and a separate bar for women, provided they are equal. That is made clear by the Sex Discrimination Act.
Lord Borrie: My Lords, in practical terms, with regard to modest sized premises, the noble Lord's point may not be feasible.
My main concern in trying to increase the threshold from 25 to a more reasonable number is to ensure that hundreds of working men's clubs are not required by law to do what this House may think should be done. There is no doubt—my noble friend Lord Faulkner has admitted this point—that, of the hundreds of working men's clubs, some have gone in a certain direction while others have not. Evolution is regarded as taking place too slowly and therefore the law must intervene.
My noble friend the Minister said that this is a small Bill. However, hundreds of clubs, each with dozens or even hundreds of members, will be required to do
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something ex hypothesi that they do not wish as yet and have not decided as yet to do. Is a Bill justified on that basis? I very much doubt it. As there are views on all sides of the matter, I am tempted to divide the House on this amendment. However, it is only a probing one.
Noble Lords: Oh!
Lord Borrie: My Lords, I do not know how many noble Lords are present in the House as a whole or what the outcome of that would be. However, I do know that the noble Lord, Lord Faulkner, has been comforted by the fact that each of the debates on the Bill so far has taken place on a quiet Wednesday evening. The number of noble Lords who would give a credible total to those voting has not been very great. No one has been Whipped. I do not know when the Third Reading will take place and my noble friend Lord Faulkner does not either. My noble friend nods. He is well in with the Government, as it were, and I am not. It would appear that the noble Lord knows the date of the Third Reading.
Lord Faulkner of Worcester: My Lords, in the interests of accuracy I should make it clear that as the sponsor of the Bill I have been offered a date by the usual channels but it has not yet been confirmed.
Lord Borrie: My Lords, I am happy on this occasion to beg leave to withdraw the amendment.
The Deputy Speaker (Lord Elton): Is it your Lordships' pleasure that this amendment be withdrawn?
Noble Lords: No!
The Deputy Speaker: The Question is that this amendment be agreed to. As many as are of that opinion will say "Content", to the contrary "Not Content".
Noble Lords: Not Content!
The Deputy Speaker: The Not-Contents have it. On Question, amendment negatived.
8.45 p.m.
Lord Lester of Herne Hillmoved Amendment No. 2:
Page 1, line 11, after "29(1)" insert—
"() it is not an organisation which restricts membership to persons of one sex;"
The noble Lord said: My Lords, I can deal with this like greased lightning. This amendment, as I tried to explain, is designed to make it clear beyond argument that an organisation which restricts membership to persons of one sex will not be affected in any way by this Bill. To answer a question that was raised a short time ago, the reason this is entirely symmetrical with the Race Relations Act is as follows. The Race Relations Act draws a distinction between colour bars

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and clubs which promote the cultural values, for example, of Bangladeshis, Afro-Caribbeans or any other group. In the same way, a distinction is being drawn in this Bill between the single sex clubs and clubs that admit both sexes. I hope that we have the drafting right. The consequential amendment to which I also speak, Amendment No. 4, is designed to do away with the vague and ambiguous provisions in what is now new Section 29B which might bring the Garrick and other clubs within the scope of the Bill. This is designed to make it crystal clear that that will not happen. Provided that the club does in fact exclude women, it may freely do so. Provided that a club excludes men, it may freely do so. That applies to guests as well as to members. I beg to move.
Lord Borrie: My Lords, it is good to my mind that the proposers of this Bill—my noble friend Lord Faulkner and the noble Lord, Lord Lester of Herne Hill—have moved away from what was certainly the earlier view of my noble friend Lord Faulkner; that is, that while single sex clubs should generally not be covered by the Bill, they should be bound by the so-called "guest" provision and should treat male and female guests precisely equally. It was unclear from the earlier drafting—I think that that was admitted in Committee—what would be the outcome if the Bill as it originally stood had gone forward.
My belief is that Amendment No. 2 of the noble Lord, Lord Lester of Herne Hill, has achieved the complete exclusion of single sex clubs from the Bill. I am glad to note that exclusion in his amendment does not turn on the club's constitution or some particular written document. It suffices if, as a matter of fact—I hope that the noble Lord will agree with my interpretation—the club does restrict membership to one sex. I see that the noble Lord nods and therefore I trust that that is the case. I welcome that. I shall at the appropriate moment withdraw Amendment No. 5 in my name which seeks to achieve the same result.
Lord Henley: My Lords, I do not think that it is necessary for me to add anything to what the noble Lord, Lord Borrie, has said. I am grateful to the noble Lord, Lord Lester, for coming forward with his amendment which I think is probably superior to the amendment put forward by myself and the noble Lord, Lord Borrie. I have taken some advice from a colleague of the noble Lord, Lord Lester, who is learned in the law. I am assured that it achieves those things that we seek. On that basis, like the noble Lord, Lord Borrie, I shall not want to press our amendment when we get to it. I shall be more than happy to accept—if the noble Lord, Lord Faulkner, is happy to accept it, which I take it he is as he has his name to it—the amendment of the noble Lord, Lord Lester.
Baroness Buscombe: My Lords, on behalf of Her Majesty's Opposition I rise to support the whole group of amendments. However, I also have a preference for the amendments in the names of the noble Lords, Lord Faulkner of Worcester and Lord Lester of Herne Hill.
Baroness Scotland of Asthal: My Lords, the Government understand the drive towards simplification and the problem that some elderly, indeed, venerable associations have no specific constitution and that many which do have constitutions will not say explicitly that their membership is to be limited solely to men or to women. Therefore, we see the thrust of the amendment that my noble friend puts forward. We now think that the factors which have been mentioned in the debates on the Bill suggest that a more simplified test of whether a club limits its membership exclusively to one sex is likely to provide the way forward. We cannot at this stage specifically endorse the amendment as currently phrased but we certainly endorse its thrust.
Lord Faulkner of Worcester: My Lords, I do not think that I need say more than that I have added my name to the amendment of the noble Lord, Lord Lester. In Committee we gave an undertaking that we would look again at the relevant section to make the situation absolutely clear regarding single sex clubs. Therefore, I am happy to accept the amendment.
On Question, amendment agreed to.
Lord Lester of Herne Hillmoved Amendment No. 3:
Page 2, line 49, at end insert—
"29AA EXCEPTIONS FROM SECTION 29A IN CERTAIN CIRCUMSTANCES
Nothing in section 29A shall render unlawful—

(a) the provision of separate facilities or services, or the separate use of facilities or services, for men and women, if the facilities or services are provided for, or are likely to be used by two or more persons at the same time, and—

(i) the facilities or services are such, or those persons are such, that male users are likely to suffer serious embarrassment at the presence of a woman, or

(ii) the facilities or services are such that a user is likely to be in a state of undress and a male user might reasonably object to the presence of a female user; or

(iii) the facilities or services are such that physical contact between the user and any other person is likely, and that other person might reasonably object if the user were a woman; or

(b) the provision of facilities or services restricted to men, or of separate facilities or services, or the separate use of facilities or services for men and women, if—

(i) the association exists for the purposes of an organised religion, and

(ii) such restrictions or use are maintained so as to comply with the doctrines of that religion or avoid offending the religious susceptibilities of a substantial number of its followers."

The noble Lord said: My Lords, Amendment No. 3 seeks to write into the Bill exceptions which seek to match the exceptions already in the Sex Discrimination Act 1975, which apply to Section 29 of that Act which concerns the provision of goods, services and facilities to the public. The exceptions are

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of a similar kind and are similarly worded to those in the proposed new Section 29AA. I shall give your Lordships the relevant cross-references. The analogy with the first part of the proposed new Section 29AA concerns Section 35(1)(i) and (ii) and Section 35(2) of the Sex Discrimination Act. That is what I call the "Turkish bath" exception. Where men and women are going to undress in front of each other and suffer personal embarrassment and so on, there is an exception, provided always that there are separate but equal facilities.
There is an even more obscure provision in proposed Clause 29AA(b), which has an analogy with Section 35(1)(b) of the Sex Discrimination Act 1975. It deals with bodies about which I know nothing; small religious study groups that for religious dogmatic reasons, good or had, decide to have only women or only men reading Biblical texts or carrying out various religious activities. It aims to preserve freedom of association and freedom of religion and religious practices in legitimate areas where there should be exceptions. I hope that the critics of our work such as the noble Lord, Lord Borrie, will appreciate that I am doing my best to strike a fair balance in the exceptions between the principle of equality and other principles which have to be recognised, including personal privacy and freedom of religion. I beg to move.
Baroness Buscombe: My Lords, I rise to support the amendment.
Lord Faulkner of Worcester: My Lords, I rise to accept it.
Baroness Scotland of Asthal: My Lords, everyone wants to know the Government's view. We think it is a good idea.
On Question, amendment agreed to.
Lord Elton: My Lords, Amendment No. 4 has been formally spoken to. If it is accepted, I shall not be able to call Amendment No. 5.
Lord Lester of Herne Hillmoved Amendment No. 4:
Page 3, leave out lines 1 to 12.
On Question, amendment agreed to.
[Amendment No. 5 not moved.]

Public Services (Disruption) Bill [H.L.]
8.52 p.m.
Lord Campbell of Alloway: My Lords, I beg to move that this Bill be now read a second time.
Noble Lords will no doubt recall that it was the late Lady Castle of Blackburn—that spirited, courageous innovator—whose design, In Place of Strife, first proposed mandatory procedures which were subsumed in the Industrial Relations Act 1971, administered by the National Industrial Relations Court, a branch of the High Court, and within their limited remit worked to the satisfaction of both trade
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unions and employers. It is sad that we should be deprived of Lady Castle's contribution, which would assuredly have enhanced our debate.
The Bill, drafted and tabled at no one's behest, is but a tentative response to a matter of current concern, as expressed by the Prime Minister and the Leader of my party, who both said earlier this year that something had to be done to contain disruption of our public services occasioned by industrial action at the behest of trade unions. The Times reported on 22nd April that the Prime Minister also said that he was ready to don the mantle of my noble friend Lady Thatcher by confronting trade unions and doctors' organisations over health reform.
Health is one of the proposed designated services under Clause 3(2), as defined by the Standard Industrial Classification referred to in the Written Answer of 24th April, for which I am much indebted to the noble Lord, Lord McIntosh. According to the figures of the Office for National Statistics for 2000, out of a total of 499,000 working days lost, 122,000—more than a fifth—were lost through disruption of the health and social services by industrial action.
I am not a statistician and statistics can be misleading. They give only a broad guide to trend and dimension. Classification has changed from time to time, and privatisation has blurred the distinction between private and public sectors. But the Written Answer of 24th April was not before the Delegated Powers and Regulatory Reform Committee. Public services, as identified by the Standard Industrial Classification supplied by the Registrar General of the Office for National Statistics, are embodied as designated services under Clause 3(2), as I said. It is not understood why there should be a problem with definition.
The Written Answer classifications embodied in Clause 3(2) show that the percentage of working days lost in public services out of all working days lost through collective action in 1996 was 91 per cent and in 2001, 83 per cent. That is the dimension; I am not interested in the accuracy of the figures, only the trend and the dimension, as a perspective in which the measure of current concern is seen. The right honourable Gentlemen said that something must be done, but neither has said what he proposes to do to contain disruption in public services.
Like most problems, it is not a new problem. The concept of the Bill, like most concepts, is not new. It could have materialised either in the form of the last step in a step-by-step approach or as envisaged in the Green Paper of November 1996, Command Paper 3470. On page 4 of the Green Paper, according to the Board of Trade statistics, in 1995 of the order of 75 per cent of all working days lost was in the public sector due to collective action.
The Bill proposes mandatory arbitration under Clause 1, applicable only to designated public services under subsections 3(2) and 3(3), which by amendment could be implemented by Order in Council. Employment is a reserved matter the Bill would apply to Scotland. Subsection 4(3) could be amended to

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bring the Bill into effect by Order in Council as suggested by the Delegated Powers and Regulatory Reform Committee.
The scheme of the Bill invokes the jurisdiction of the High Court. The arbitral award would be enforceable when made by order of the High Court, which under Clause 2 may sanction such industrial action if it is not "disproportionate" within the meaning of Clause 3(1). Unless sanctioned by the High Court, no designated public service may be disrupted by such action, as provided by Clause 2(1), a prohibition which is enforced by the High Court under Clause 2(2). This prohibition renders unlawful any such disruption of the public services by collective action at the behest of a trades union whether in contemplation or furtherance of a trade dispute with an employer or a political dispute with government on a matter of policy.
If any action is taken by government to be effective action, such action must be taken by primary legislation within a new framework of law, enforceable by the High Court. The principle, but not of this Bill, was discussed on 18th April when the Government were asked what action was being taken to contain disruption of public services. The speech of the noble Lord, Lord McNally, who had worked at Downing Street as political adviser to the noble Lord, Lord Callaghan, during the "winter of discontent" serves as a tuning fork for today's debate. On that occasion he said that,
"there is a case for exploring whether compulsory and binding arbitration, certainly in some industries, is the best way forward".
He later added:
"The public want to see that the Government are aware that the storm clouds are gathering and they are not just waiting for the storm to break".—[Official Report, 18/4/02; cols. 1155–56.]
On that occasion, it was not possible to acknowledge the content of that remarkable speech, but I do so now.
My noble friend Lord Tebbit was of the opinion that if only the Government refrained from doing favours to their trade union financiers—I use his word and do not make it up—and repealed the human rights legislation, there would be no need for the Bill. That assumption was rebutted by my noble friend Lord Northesk, at col. 1158 of the Official Report of 18th April, in a well-reasoned argument.
The noble Lord, Lord Macdonald of Tradeston, was of the opinion that the approach that was needed was "partnership allied to investment" and if we had that we would remove the need to strike and so render the Bill otiose. The noble Lord, Lord Lea of Crondall, went right off track to defend the trade union movement, an essential estate in our industrial society which assuredly was not under attack.
But what on earth is meant by "partnership allied to investment"? How does it remove the need to strike if policy is opposed by trades unions whose members are in the public services? Is not that the very cause, the fons et origo, of this disproportionate disruption with which we are all concerned? Is not that policy, without
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any specific commitment, but a catch-phrase devised by the political sorcerers as a kind of "placebo" for government in action?
Assuredly neither the anxiety of the public waiting for the storm clouds to break shall be allayed by that policy nor the intention of the Prime Minister to take effective steps to contain disruption of our public services could possibly be fulfilled by that proposal of policy. If the Bill were to commend itself in principle to be read for a second time, there would be a period of gestation in which amendments which afforded any effective constructive step would be welcome.
The Bill would permit "proportionate" industrial action, adjudged to be such, where, for example, a reduced or emergency service was left open to the public and substantial hardship and damage was not occasioned under Clause 3. And it would not affect the individual entitlement to withdraw or withhold labour.
It is common ground, is it not, that the constitutional entitlement of any government to govern on a matter of policy, subject to due parliamentary process, must be asserted and that some framework of law must now be introduced to protect the public and the economy from being taken hostage by disproportionate disruption of our public services?
A patient public has suffered far too much for far too long and to no great advantage to any trades union or to any government. I do not regard this as a political matter, although its resolution depends upon political action and on an undertaking to table amendments for clarification, as suggested by the Delegated Powers and Regulatory Reform Committee. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Campbell of Alloway.)
9.8 p.m.
Lord McNally: My Lords, the noble Lord, Lord Campbell of Alloway, has pursued this matter with the doggedness of which we all know him to be capable. He has had a Starred Question and a debate on an Unstarred Question and now he is promoting a Bill. I am not sure how far the Bill will progress, but, as he indicated when quoting my remarks from the Unstarred Question debate, I think he is on to something that the Government should take seriously. It will not be sufficient to say that something must be done. We are already seeing the odd cloud in the sky suggesting the prospect of a gathering storm. There is evidence that a new breed of leader is coming to power in the trade union movement—people who seem to have learnt nothing and forgotten nothing about industrial militancy.
As the noble Lord said, I was in Downing Street from 1976 to 1979 as political adviser to the noble Lord, Lord Callaghan. That time was probably the high water mark of trade union power. The influence that trade unions had, the dialogue that they had with government and the access that they had to senior Ministers were greater during that period than at any time in our history, and it was not all bad or negative.

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Union leaders such as the noble Lord, Lord Scanlon, and Jack Jones made a major contribution to seeing us through economic crises that raised the question of whether Britain was governable. Of course, it all ended in the hubris of the winter of discontent and, when the Conservative government came to power, with the challenge to elected government that went beyond industrial disputes, using secondary picketing for political ends.
As a Member of another place, I voted against the original Bill produced by the noble Lord, Lord Tebbit. Looking back, I have probably come to the same conclusion as the Government. They did not try to repeal it when they got back to power. The lesson of the 1970s and 1980s was learnt and we have had a period of industrial calm, which has gone along with a period of considerable prosperity.
The danger is that the idea that strike action is acceptable in public services such as the Tube, the railways, the fire brigade and schools is creeping back into discussions. We have to face up to the challenge of industrial relations that amount in a way to secondary picketing. If a teacher goes on strike, it is not the director of education who is inconvenienced, but the working mum who does not know who is going to look after her children if the school is closed. As anyone who lives in or around London knows, if the Tube drivers go on strike, it is not the bosses at London Underground who are put through misery, but hundreds and thousands of London commuters. That is unacceptable.
There is a dilemma. Here I part company with the noble Lord, Lord Tebbit, because deep in my psyche I believe that one of the bulwarks of a democracy is a free trade union movement. It is no accident that wherever tyranny, whether of right or left, has raised its head, the trade unions have been among the first institutions to be attacked.
The right to withdraw labour is strong within our system. During one recent dispute, an instant poll conducted by a television news programme asked whether the right to strike should be banned. The majority came out against. The British people realise that that is a fundamental freedom. The question is how best to promote the modernisation of our trade union movement that has taken place over the past 20 years and its rethinking of the role of unions and how they serve their members. As the noble Lord, Lord Campbell of Alloway, rightly said, there is nothing new under the sun.
In the early 1980s, the now departed Social Democratic Party—the SDP—promoted the idea, under the noble Lord, Lord Owen, of pendulum arbitration backed by law. That is not simply a matter of legislating against the trade unions. It would be prudent for the trade unions, particularly those in the public services, to think of ways of building into our system a means of getting social justice for their members that does not involve punishing the public at large. There is a limit to the public's patience. The British people are slow to anger but they do not like to see power being abused. In some recent disputes,
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particularly that involving the Tube, power has been abused. The idea that not liking a certain system of privatisation or code of safety allows one to bring the whole service to a halt and to hurt hundreds of thousands of people is simply not acceptable.
The approach of the noble Lord, Lord Campbell, deserves more than a dead bat from the Minister. We no longer have a Minister of Labour. I am not sure where responsibility for industrial relations rests these days; we have come a long way. It is 38 years since Ray Gunter emerged from Downing Street and said, "I've got the bed of nails", which was the old Ministry of Labour. There is still a role for government in promoting a different approach to industrial relations—they should not to allow us to slip back into bad old ways. As I said in the speech to which the noble Lord, Lord Campbell of Alloway, referred, in the end the loser will be the trade union movement itself.
I hope that I shall be permitted one last heresy. On the death of Lady Castle, I thought about the pain that the labour movement would have been spared if it had had the wisdom to follow her In Place of Strife. I know that that did not carry entirely with my later employer, the noble Lord, Lord Callaghan. The chance to anticipate legislation and to be constructive about industrial relations was missed. It was left to the noble Lord, Lord Tebbit, and other Conservative Ministers to put through the industrial relations reforms that were needed.
In this Bill, and in his previous actions, the noble Lord, Lord Campbell of Alloway, has highlighted a real and present danger to industrial relations. The warning signs are there. Certain trade unions and certain trade union leaders are willing to use the power that public service gives them to hurt the public in order to further political and industrial ends. That is as unacceptable today as it was in the late 1970s. The Government would be well advised to take notice of those warning clouds and to use the initiative offered by the noble Lord as a spur to ensure that the trade union movement anticipates the problem and is willing to address it. As I said, if it does not and if the British public see such abuse and the Government are unwilling to address that abuse, they will find a government who will.
9.18 p.m.
The Earl of Northesk: My Lords, I begin by congratulating my noble friend Lord Campbell on securing this Second Reading debate and thank him for the customary lucidity and attention to detail of his explanation of its purpose and provisions. I think it appropriate too at this stage to make the point that we should not underestimate the wealth and breadth of my noble friend's experience and expertise in this field. On a previous occasion, the noble Lord, Lord Macdonald of Tradeston, rightly referred to the fact that industrial relations—in the public services and more generally—have over the years been an area of policy in which my noble friend specialised and took a keen and active interest.

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As the noble Lord, Lord McNally, pointed out, this Second Reading debate follows my noble friend's Unstarred Question on the matter a month or so ago. I do not propose to rehearse the substance of those arguments but I stress a point that I made on that occasion; namely, that we on these Benches are wholly and wholeheartedly committed to the ideals of the public services. As my right honourable friend lain Duncan Smith said only yesterday:
"Poor public services are not fair. They hit the vulnerable the hardest".
Therefore, although we may disagree about the method to be used, all of us are under an obligation to secure improved service delivery for the public. My noble friend's Bill is aimed at a specific area where progress can be made to that end.
It is also important to put on the record two substantive and significant conclusions, if not points of agreement of all sides of the House, that I believe emanated from our previous debate. First, irrespective of whether the proposition of my noble friend can be seen as a natural progression from previous legislation in this field, the context into which it is being introduced is significantly distinct from conditions that may have prevailed in former times. At its simplest, this can be characterised by the perception that our citizens now have rights to essential services which should not be lightly or, to use the phrasing on the face of my noble friend's Bill, "excessively" or "disproportionately" removed or interfered with.
As Janet Daley puts it in today's Daily Telegraph:
"Services should be tailored to people's individual needs, not to government directives. Flexibility and choice are what we have come to expect".
Moreover, it is significant—I have no hesitation in reitering this point—that the Government accede to this analysis in the report of the Performance and Innovation Unit entitled, Reforming Our Public Services: Principles into Practice. I repeat a passage from page eight of the report that I have cited previously:
"Public services … have to be refocused round the needs of the patients, the pupils, the passengers and the general public rather than the problems of those who provide the services".
I turn to the second point to emanate from the previous debate. Given that, in the words of the noble Lord, Lord McNally, at col. 1153 of Hansard on 18th April,
"rumblings of discontent can be heard throughout the public sector",
the debate that my noble friend has initiated, and is carrying through with this Bill today, is both necessary and timely. I need not labour the point by citing current examples—the previous debate achieved that purpose well enough. Rather, I can do no better than quote the noble Lord, Lord McNally, directly. Quite simply, in the words of the noble Lord during the previous debate, the issue to be addressed is,
"how we can build a system of industrial relations within our public services which gives the freedom of trade unions but also recognises the rights of the wider community".—[Official Report. 18/4/02; col. 1156.]
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In other words, what the noble Lord defined tonight as a gathering storm.
Moreover, as my noble friend has made plain, a particular theme of the Prime Minister's period in office has been to emphasise the need for reform in, and a restructuring of, the essential services as a mechanism to guarantee improved delivery to the public. I hope that I do not misrepresent my noble friend's purpose if I suggest that, in terms, this is what his Bill is seeking to do. Therefore, it follows logically that, to this extent, the case for it is made. It may well not be the only solution to the problem, but it is none the less a solution.
I turn to the Bill. Happily my noble friend's exposition of his purpose has been precise. Accordingly, I do not need to enunciate each clause of the Bill in turn. However, I offer this summary, principally to ensure that I have correctly understood the intention: the right to strike of unions designated by an order made by the Secretary of State will be subject to the adjudication of the High Court as to whether the proposed industrial action would be excessive or disproportionate as the means to resolve the dispute. In essence it is a commendably simple and straightforward proposition. It is also striking that, at its heart, there is an acknowledgement of the passage into law of the Human Rights Act; in other words, it is in tune with the Prime Minister's obeisance to the principle that the grant of rights carries with it attendant responsibilities.
We should not be surprised by this, given that my noble friend has served with such distinction on the Joint Committee on Human Rights. But it underlines a significant aspect of the Bill; namely, its deference to principles of proportionality and equity. The sensitivities of all those involved in, or affected by, disputes in the essential services—the unions, the public and the employers, be they public or private—are attended to and respected. In other words, the construct of my noble friend's proposition is equitable both to the customers of the public services concerned and to the workforces and employers.
I confess that I have read the report of the Delegated Powers and Regulatory Reform Committee on the Bill with interest. I am somewhat nonplussed by the committee's question, at paragraph 5, as to whether,
"it is appropriate to leave the scope of the bill to be decided entirely by the Secretary of State".
As I read the Bill, any order issued by the Secretary of State under its terms will be subject to affirmative resolution and therefore will be exposed to appropriate parliamentary scrutiny by both Houses.
Also at paragraph 5, the committee makes the following recommendation:
"The House may think it preferable to amend the bill to include a definition of 'public service' which lists at least some services while allowing an order to add to the list".
I have no criticism of that. I merely note in passing that all of us who participated in my noble friend's Unstarred Question on this matter were well seized of what he had in mind in using that term.

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Perhaps previous terminology gives rise to some confusion here. Certainly a broad spectrum of possible interpretations could be applied, ranging from "public sector" on the one hand, through to "public services" to "essential services" on the other. But I am certain that my noble friend will have thought extremely carefully about that point before deciding upon using the phrase "public services" on the face of the Bill.
Indeed, it occurs to me that, at many levels, the committee's concerns on that point are as much an issue about the way in which the context of public service has changed in recent times as anything else. None the less, if the concerns of the committee do pose difficulties, as my noble friend has so generously intimated, we can attend to them as of need during later stages of the Bill.
In conclusion, we warmly applaud my noble friend in his initiative. At the very least, we can hope that it will focus the mind of the Government on how they intend to address the matter. That is desirable in its own right. Not surprisingly, therefore, we look forward with keen anticipation to the response of the Minister. For our part, we on these Benches recognise that public service delivery stands at the very top of the political agenda—a point that I made in the Unstarred Question a month or so ago.
Throughout the life of this Parliament, and very probably for some time into the future, this will be a recurring theme that we shall need to revisit on a regular basis. Irrespective of whether my noble friend's proposal is the right way forward so far as concerns the specific aspect of the problem, we on these Benches have every intention of being engaged in this ongoing debate in a constructive and coherent way.
9.28 p.m.
Lord McIntosh of Haringey: My Lords, it is appropriate that I start with the usual disclaimer. The Government do not take a formal view for or against Private Members' Bills, and therefore we shall take no steps to oppose the Bill's progress through your Lordships' House.
Having said that, of course I commend the noble Lord, Lord Campbell, for his doggedness in pursuing this matter—pursuing it, as the noble Lord, Lord McNally, said, in a number of Starred Questions over a period of time, in Written Questions and, of course, in an Unstarred Question just over a month ago. It is incumbent on me to give an indication as to our analysis of the problem which the noble Lord claims to identify and to look at whether the solutions proposed in the Bill are appropriate.
I start with the nature of the problem that is claimed to be before us. We have figures for industrial disputes in 2001—they come in calendar years. In the year 2001, 510,000 days were lost in industrial disputes. That is the seventh lowest figure since statistics started to be collected in 1891. We had 181 stoppages. That is the second lowest figure since those figures started to be collected in 1920.
I must ask the question: what is the problem being identified of industrial disputes in the public sector? Clearly, there are threats of disputes. There are new
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leaders of public sector trade unions who have been elected on the basis of threatening greater militancy. But the facts do not bear out the claim that there is a new problem of industrial disputes in the public sector.
The noble Lord, Lord Tebbit, when he took part in the debate on the Unstarred Question last month, said that 20 years ago when he was responsible for these matters he did not take the view that special restrictions should be placed on industrial action in public services. If that were true then, how much more is it true now? He was talking at a time when disruption in the public services was many times greater than it is today.
I turn to the analysis of this claimed problem. It is also the fact that trade union legislation, as described so graphically by the noble Lord, Lord McNally, in the late 1970s is very different from the situation at the end of the first Parliament of the Labour Government. As the noble Lord, Lord McNally, rightly said, we did not seek to overturn the whole panoply of industrial employment legislation which was introduced by a Conservative government. Instead we introduced the Employment Relations Act 1999. Those who were involved—as I was—in the passage of that Bill will recognise that it was an extremely hard-fought compromise between the wishes of the employers, as expressed by the CBI, and those of the trade unions, as expressed by the Trades Union Congress. The Act had an 80-page schedule—a detailed and definitive statement of the conditions in which disputes were permitted and the precautions which had to he gone through before they were permitted.
My preliminary view on that is that the provisions of the 1999 Act are working rather well. Even if that view is disputed—and there are those who dispute it—we have always undertaken that there would he a review of the 1999 Act. The review starts next month, in June of this year. The results of it will be made public. If there is any legislative action which needs to be taken, it is our intention that it will be taken in the course of this Parliament. So it cannot be said that the Government are indifferent to the issue of industrial disputes in the public or in the private sector.
Behind all this—and the noble Lord, Lord McNally, was right to remind us—there is something fundamental about the right to strike. That applies to all people working in our society. We must have a fair system of rights and responsibilities. It is right for the Leader of the Opposition to remind us that the responsibilities of the public services are to their users—to the patients, the public sector travellers and to the school users. That must be balanced against the rights of those who work in public services. It will not be overcome by discrimination in the right to strike between public services and the rest.
I hesitate to spend too long looking at the Bill because, frankly, it is so full of difficulties that it would take too long to enumerate them. On the last occasion, the noble Lord, Lord Tebbit, said that he shuddered at the task of legislating to define a public service. Not only does the Bill not define a public service, it does not restrict its action to the public services. It covers not

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disruption in the public services but disruption of the public services. In other words, it is not confined to those who work in the public services but applies to all those who supply products or services to the public services and whose industrial action could affect their operation.
The Bill talks about withdrawal of the services of members at the instigation of a trade union. Therefore, it presumably applies to official strikes approved by a trade union but not to unofficial strikes—wildcat strikes. Can that be defended? It talks about "disproportionate action", which,
"means collective industrial action excessive to resolution of a dispute".
What does that mean? Who is to define that?
It talks about mandatory arbitration by the Central Arbitration Committee. The whole basis of the Central Arbitration Committee is that its powers and activities are restricted in order to protect not only the rights of employees to strike but the rights of managers to manage. Compulsory, mandatory arbitration as proposed in the Bill would be an offence against employers' right to manage, as well as against employees' right to strike. There is no reference in the Bill to the Advisory, Conciliation and Arbitration Service, which is not mandatory and which relies for its effectiveness on not being mandatory. It would be interesting to know whether it would play any part in the thinking of the noble Lord.
So the Bill is profoundly defective in its detail, but it is also—I would say if I were not standing at the Dispatch Box and therefore formally neutral profoundly wrong in its analysis of the problems and of the action that has been and is being taken to deal with the issues that it raises.
I ask the noble Lord, only in the interests of the time of the House, to consider whether it might not be wise not to press for a Second Reading. Of course, I can do no more than ask him; he is fully free to do so.
9.38 p.m.
Lord Campbell of Alloway: My Lords, if I had been the slightest bit impressed by the speech of the noble Lord, Lord McIntosh of Haringey, I might well have considered withdrawal. But I am not. He has totally failed to understand or analyse and has made so many criticisms that I do not have time tonight to deal with them, and I do not propose to do so. They will all be dealt with if the Bill is given a Second Reading.
The noble Lord produces some statistics and says that strikes are at a low level. But those are not the relevant statistics for anyone looking at the matter with an objective eye. He comes to the conclusion—it was a wonderful, bravura performance—that there is no problem. Ask any commuter whether there is a problem. For the Government to say from the Dispatch Box that there is no problem and try to support that with the type of performance produced by the noble Lord, Lord McIntosh—I do not know, it takes the biscuit.
I shall make two points and then ask, respectfully, that the Bill be read a second time. The first point was taken up strongly by the noble Lord, Lord McNally. I made the point, rightly, that this is not legislation against the trade union movement or anything of the kind. Secondly, the individual freedom to strike, withhold labour or withdraw labour is wholly preserved and in no way impinged upon. If the Bill is read a second time, there will be time to deal with it in detail and refute the criticisms made by the Minister. From the Government Front Bench, they say that there is no problem.
I respectfully ask the House to give the Bill a Second Reading.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
House adjourned at nineteen minutes before ten o'clock.