Lords Sitting of 4 April 2003

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

Code of Guidance on Sites of Special Scientific Interest: Encouraging positive partnerships
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton rose to move, That the draft code of guidance laid before the House on 5th February be approved.
The noble Baroness said: My Lords, the Government have a long-standing commitment to protecting biodiversity. A coherent network of designated sites remains vital to nature conservation and a core element of our wider biodiversity strategy. Sites of special scientific interest are at the heart of the system of designated conservation areas and safeguard the best of England's wildlife and geology.
There are over 4,000 sites of special scientific interest in England, covering more than 1 million hectares of land. This is about 7.5 per cent of England's total land area. Over three-quarters of the area is of international importance. The key features of the modern regime for managing and protecting these areas were put in place under the Wildlife and Countryside Act 1981. Far-reaching changes to this regime were introduced by the Countryside and Rights of Way Act 2000 for England and Wales. I am sure many of your Lordships will remember the debates we had in the Chamber during the passage of that legislation. It contained significant new provisions concerning notification, protection and management of SSSIs. The changes were made to secure positive management of sites of special scientific interest and to ensure robust protection responsive to today's threats.
The 1981 Act sets out a requirement under Section 33 for a code to be prepared from time to time containing advice, recommendations and information to guide those exercising functions relating to SSSIs and those who are affected by those functions. The revised draft code before your Lordships today seeks to meet this requirement. It reflects the legislative changes and represents a significant enhancement over the previous code, issued in 1982. Although there is a statutory requirement for the code itself, its content is advisory only and does not provide any additional basis for enforcement proceedings or prosecution, or have any bearing upon them.
The code applies to England only; it is aimed at English Nature, local authorities, land agents, public bodies, all those exercising functions that could impact on SSSIs and corporate and individual owners and occupiers of SSSI land. A separate code is being prepared for Wales.
The draft code summarises and explains the regime now protecting SSSIs, taking into account the effect of the new legislation. It explains in more accessible terms than the legislation how the provisions for site notification, management and protection should operate. It sets out the Government's expectations of English Nature and explains to interested parties their rights and what they can expect of their dealings with English Nature. It also highlights the obligations on owners and occupiers as well as public bodies. The new positive statutory duty that local authorities have to protect and enhance SSSIs when they exercise their functions is highlighted along with the consultative obligations this requires.
We consulted widely on the draft code in August 2000 and again with key bodies in 2001. The code does not introduce any new burdens in respect of SSSIs but provides guidance within the context of the existing legislation. The Government have set a public service agreement target that 95 per cent of SSSIs should be in favourable condition by 2010. I believe the code will help to make a contribution towards that target by raising awareness among public bodies, landowners and other groups and by explaining in a clear way the powers and procedures associated with them. Of course, achievement of the target will require a sustained level of commitment and action from many people and organisations within government and beyond. Nevertheless, the setting of the target shows we are serious in our commitment to biodiversity. The code will significantly help in establishing a clear understanding of the basic legislative regime for protecting and enhancing our SSSIs.
The code has received a broad welcome from the various groups that have seen it, such as landowners and occupiers, NGOs, and statutory agencies and bodies. It sets out very clearly the partnership approach that is essential in managing SSSIs to get the maximum benefit from them, and our commitment to working with all interested players in this area. I am sure that everyone here today shares the objectives of protecting our valuable sites and enhancing the biodiversity of our country. I commend the code to the House.
Moved, That the draft code of guidance laid before the House on 5th February be approved.—(Baroness Farrington of Ribbleton.)
Baroness Byford: My Lords, I thank the Minister for putting this code before us. The noble Baroness said, slightly wryly, that many of us would remember the hours we spent on the Countryside and Rights of Way Bill. Indeed, I think it is imprinted on our hearts. There were many agonising times, and before return to the code, I should like to reflect on the difficulty we had in trying to balance the protection of wildlife with the proper management of land, because sometimes they are in conflict.
I accept that the code is advisory and sets out very clearly the expectations that the Government and all of us have of English Nature and the way in which the

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rights and dealings will take place between landowners and those who work the land. I have one or two specific questions.
The code is for guidance only. It refers to the 1981 Act to emphasise the importance of positive management of SSSIs, something we all welcome. It recognises the need to develop further the constructive relationship between landowners, managers, officers of conservation agencies, English Nature and, in regard to Wales—although the code does not refer to Wales—the Countryside Council for Wales.
The code is to assist English Nature in exercising its powers and to give guidance to public bodies and utilities. By January 2006, every owner or occupier should have had a clear statement of the proposed management requirements for the SSSI. A formal appeal system will be in place. Would the Minister clarify for me that if there is an impasse between the owner and English Nature, it is the Secretary of State who will give the final decision?
English Nature will also be required regularly to report to the Secretary of State on the progress of improving the conditions of the SSSIs. Will the Minister define "regularly" for us?
As the Minister said, the Government have set a target of 95 per cent of SSSIs to be in a favourable or unfavourable but recovering condition by 2010. However, when the original White Paper was published, it set a different goal. It stated that the Government had set themselves,
"an ambitious target of ensuring that 95 per cent of the nationally important sites in England are in a favourable condition by March 2010".
Why has the wording been altered? Did the Government feel at that time, or subsequent to their discussions, that they could not achieve their original goal for favourable conditions? The wording has been changed and one might say, in interpretation, that the target has been watered down.
I turn to one section of people who work on SSSIs and to the question of commoners' grazing rights. Having considered the draft code, I do not believe that they are included in it. Many commoners do not have ownership of the land; they have only grazing rights upon it. Will the Minister comment on that?
Finally, I turn to a letter that I was sent only this week, which expresses some of the concerns that are being felt now that the new Act and the codes are coming into being. It is from a Mr Pope from down in Dorset, who has about 1,500 acres of Dorset countryside. He says:
"So we have an SSSI (plus potentially another) and most is ESA. We work with the RSPB, and with Butterfly Conservation, and we have an extraordinary concentration of flora and fauna from spawning salmon, water voles and egrets, to barn owls and rare orchids"—
all the things that we would love to be out there seeing today, rather than debating in this House. Mr Pope goes on to say that,
"it is precisely this level of care which has exposed us to the full brunt of the right to roam, with no hope of defence. Because the Right will not give access to 'improved grassland', other land I
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know well where environmental crime has been committed in the past, is safe from this intrusion. Because investors in the land pay a premium for privacy, one can expect to see values suffer, but so will the wildlife we have protected, and the businesses we try to run".
He goes on to say that he has an internationally famous shoot, and that,
"we take the greatest care that it is positive to wildlife; it pays for the maintenance of woodland to be flora and fauna friendly, crops which encourage songbirds, and generally it enriches the food chain; it makes a most significant financial contribution to the local rural economy. At worst, our right to roam areas will make it impossible to run it profitably, whilst our 'improved grassland' areas, which are closer to populations but irrelevant to the shoot, remain undisturbed".
There is more, but I shall not waste your Lordships' time. However, that letter is relevant to our discussions. Here is somebody—and I suspect that there are many others—who is doing his best to preserve and protect wildlife and to look after the countryside as the Government would desire. Unfortunately, some of the implications of the Act make it difficult for those people to do so. I pose only those few questions for the Minister, but I thank her for presenting the code to us this morning.
11.15 a.m.
Baroness Miller of Chilthorne Domer: My Lords, we, too, welcome the code and the implementation of the Countryside and Rights of Way Act. I also have fond memories of sitting with other noble Lords through long hours of night to debate that Bill.
Page 7 of the code gives January 2006 as the date when English Nature must have given every owner,
"a short but clear statement".
Is the Minister confident that English Nature has the resources to implement a policy that will require an additional amount of resource?
On page 8, public bodies that carry out work must,
"minimise and make good any damage caused, where practicable".
The guidance is weakened considerably by the words "where practicable". Does the Minister have it in mind to strengthen that guidance? Many public bodies may claim that it is not practicable.
Also on page 8, under "Offences", the code says that English Nature must be both friend and enforcer. That is a difficult dual role, and the Government may want to keep an eye on that, for English Nature and for the Environment Agency, in some other contexts. The Government might like to monitor whether being the landowner's friend and enforcer makes life very much more difficult for English Nature.
On page 9, the code raises a small point, but one to which your Lordships often return. English Nature must give notification in local newspapers, but we are still failing to put websites into requirements, although that is the medium that many people use. I recognise that the issue of identifying new SSSIs, which is addressed on page 13, is developing. However, it does not seem to have been given much weight in the code, no doubt because there is still a great deal of work to be done on existing SSSIs. Perhaps the Minister can

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tell us whether the Government would consider reviving the code, at which point the identification of new SSSIs could be given a little more weight.
I recognise that the target for 2010—on page 17— has been watered down so that it now includes sites which are in an "unfavourable but recovering condition". Would it not be more helpful if the two targets were split? I see no reason why we cannot have sites designated "favourable" and a second batch of sites designated "unfavourable but recovering". Such definition would be very helpful.
Page 25 of the code offers owners and occupiers the choice of submitting a planning application to the local planning authority or, alternatively, to appeal to the Secretary of State when English Nature refused consent for an operation. Who will offer guidance to the owner or occupier on the best route? The code offers none.
I turn to issues affecting public bodies and I must declare an interest as a Somerset county councillor. I welcome the statement as set out in PPG 9 that local authorities should include policies for the protection and enhancement of SSSIs in their area and their local plans. That is quite right. However, local authorities are driven by the Audit Commission's indicators as outlined in its comprehensive performance assessments. Although the indicators are meaningful, as the Government rightly intended them to be, they are also very rigid. They offer no means of taking account of the sort of requirement which the Government are laying down in the code. Sustainability itself is barely mentioned, and litter seems to be the only environmental consideration. I encourage the Minister to talk to the Audit Commission about how the indicators might better reflect the good work that local authorities are doing in this area.
When the code was considered in the Commons, the Minister's reply on the duties of public bodies was not entirely clear. Perhaps the Minister could clear up two points. Elliot Morley said:
"Under Section 281, any public body is required to take account of advice provided by English Nature. Under current legislation, English Nature can issue a so-called second notice that will include a statement of how the advice has been taken into account, if it is concerned".
It would be helpful if the Minister could confirm that public bodies must take account of advice provided by English Nature. It is also unclear whether the Minister in another place was referring to a second notice. I realise that it is a technical point, but I think that I should quote from my brief which states:
Under section 28H(5)(b) and 28I(6)(a), a public body which wishes to proceed with an activity against the wishes of English Nature must notify English Nature of how (if at all) the advice has been taken account of".
Can the Minister confirm that that is the procedure to which reference was made?
The Minister, Mr Morley, went on to say:
In the end, where there is disagreement between English Nature and a public or private developer, English Nature has the power to apply a stop notice to am development to allow it time to present its case and possibly to negotiate with the developer
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about, for example, a management agreement".—[Official Report, Fourth Standing Committee on Delegated Legislation, 26/2/03; cols. 18–22.]
It is not clear which section of the Act gives English Nature the power to prevent a public body carrying out a damaging activity in pursuit of the public body's statutory functions or duties. I would welcome the Minister's comments on whether English Nature as a government agency has powers over other public bodies.
Lord Crickhowell: My Lords, I must first declare an interest. The whole of the River Usk and its tributaries are about to be designated as an SSSI and ESA, and my home is on the banks of one of those tributaries which flows past my garden. However, that is not the point that I wish to address today. The example which I want to give of one concern is taken from Wales. Therefore, I am dealing with correspondence involving the Countryside Council for Wales rather than English Nature. However, the same principles apply.
A number of noble Lords have received correspondence about the Montgomery Canal. I have already discussed the matter with the noble Lord, Lord Hooson, who has a close interest in it. In recent years, very large sums of public money and private money—many millions of pounds—have been spent on the Montgomery Canal in order to reopen it for use. Previously, large sections were closed or were impassable in one way or another. It is in that connection that I wish to draw attention to paragraph 105 of the document before us, which states:
"SSSIs are capable of accommodating many activities that do not conflict with the special features on them … English Nature should liaise with owners, managers and representative bodies to ensure that a range of recreational and other activities can continue in ways that are compatible with the conservation interest. It will be encouraged to pursue Memoranda of Understanding with representative bodies, and to develop individual management plans, particularly for heavily used sites. It should ensure that the importance of sites, for example as a recreational resource and as part of the nation's wildlife or geological heritage, is properly recognised, and that appropriate management is in place.
That seems to emphasise the need not for positive management of SSSIs but for sensible and in some cases flexible management.
When a part of the Montgomery Canal was closed, a great deal of what ignorant people call weed life—but which the Countryside Council for Wales calls "important aquatic plants"—started to grow. The banks became heavily overgrown so that the passage of boats was impossible. Now, the Countryside Council for Wales is taking such a protectionist view of the weeds—or the important aquatic plants—that use of the canal for its original purpose, by boats, is proving almost impossible.
I am sorry to say that I do not have the letter from the Countryside Council for Wales with me—I apologise to the House for that. I should have liked to quote a most remarkable paragraph which indicates that boating on the canal is very much a secondary use and that it should perhaps be restricted to parts of the

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year when it will not damage the weeds. The letter indicates that boats could be quite useful if they came at the right time of year, because aquatic plants need stirring up from time to time, and that canal boats—which travel everywhere else under their own power—may require special motor power, possibly electric or horse power, in that section. In other words, the emphasis is almost entirely on the aquatic plants and the overgrowth and not at all on the recreational use of a canal that was built for boats.
I am not expert on the exact legal requirements of the European directives and the law in this respect. However, it is a most extraordinary position. A canal was closed for a time and something grew in it; it was then made an SSSI and could not be used for boating. The rules have to be interpreted with sensitivity and flexibility.
I give one other example. I live in a home in Wales which was a watermill. I and some friends, while still at Cambridge, reroofed it. I doubt whether I would be allowed to do that today. I confess that there were a few bats in the roof which no longer live there. I am almost certain that today I would be prevented from converting that building and it would now be a pile of stones—a ruin. No doubt the bats would be happy but I doubt whether that would really be the right decision. I know of other old buildings where bats are present and where perfectly sensible restoration work is prevented because the bats are considered more important than other uses.
So my plea is that in interpreting the legislation and the code of guidance there is a sensitive and sensible approach to these issues, a proper balancing of all the requirements and not an over-concentration on just one of them.
11.30 a.m.
Earl Peel: My Lords, I join other noble Lords in thanking the noble Baroness for having introduced the guidelines. Clearly, the main thrust behind them is one of co-operation between English Nature and owners and occupiers. That is absolutely essential. As time has evolved, a greater confidence has developed between both sides which I welcome. Indeed, paragraph 4 states:
"As recent experience shows, good management and a fruitful partnership between English Nature and the land manager needs to be maintained".
I am sure that all of us would concur with that.
But as a general point—I declare an interest as an owner of part of a very substantial upland SSSI—there is sometimes a tendency for English Nature to jump to conclusions about certain established management practices without perhaps having the relevant scientific evidence to substantiate such claims. For full co-operation to be effective on both sides we cannot rely on vague assumptions that a certain practice might be damaging. Any allegations that that is the case must be substantiated by proper research.
My main point relates to paragraphs 59 and 103 of the code of guidance. I refer here to English Nature's power to make by-laws under Section 20 of the 1949
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Act in relation to nature reserves, which has now been extended to include sites of special scientific interest. In essence I have no problems with that; it is a step in the right direction. The by-laws are designed for dealing with situations that could undermine the reasons for designation of the SSSI by,
"controlling activities and modifying behaviour".
In bold print paragraph 59 further states:
"The Secretary of State considers that powers to make byelaws are an important and valuable tool, which English Nature can use … to address problems arising from damaging activities".
Paragraph 103—I attach a great deal of importance to this—states:
"Increasing public interest in sustaining these important sites has led to requests for more information to be made available".
That is logical because the public will naturally pay greater heed to the by-laws if they are accompanied by some degree of explanation.
I suspect that the Minister will not be surprised when I draw her attention once again to the fact that under the Countryside and Rights of Way Act 2000 there is no statutory obligation on anyone entering an access area to do so via an access point. That being the case, it is inevitable that some visitors will be totally ignorant of any by-laws that English Nature decides are appropriate for a particular SSSI which is subject to open access.
Furthermore, the opportunity for providing more information—to which the Government devote so much attention and as prescribed in the guidelines—will also be lost. That will apply also to any closure orders that may be in place at the time.
I should add that concern is not restricted just to landowners and farmers. I quote from the minutes of the Moorland Access Advisory Group, which consists of representatives from all sides, including English Nature and the Countryside Agency:
"It is still not clear how access points or access information points will be shown … Land that is subject to regular and predictable exclusions and restrictions will not be distinguished from that with unrestricted access on OS maps".
That is a serious problem and one, quite frankly, that the Government have to come to terms with. I have no doubt that the Minister will be aware of the recently published predictions—we discussed the matter in a Starred Question yesterday—by the Countryside Agency on the likely state of the countryside in the year 2020. I shall not quote from that report but one suggestion was that there is likely to be a significant exodus from urban areas to rural areas with all the corresponding pressure that will ensue. Quite frankly, if we are incapable of imposing proper sustainable management structures for designated land now, I suggest that the Government are making a rod for their own back in the future. But, of course, it is not the Government who have to deal with the difficulties. It is the people on the ground, the landowners and the farmers, and, indeed, those representing English Nature and the Countryside Agency.

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I simply say to the Minister and her department that they really must come forward with realistic proposals to deal with a major difficulty that was ducked in the Countryside and Rights of Way Bill.
Finally, I ask the Minister a question that does not relate directly to the guidelines. However, it saves my putting down a Written Question and the Minister having to give me an Answer. When will the regulations relating to Sections 21 and 22 of the CROW Act be published? They were promised last November but, to the best of my knowledge, are still not available. I refer to the implications of the 20-day restriction orders.
Viscount Simon: My Lords, having listened carefully to the contributions, I no longer feel somewhat guilty in asking a question which only touches upon this particular code. Within about 15 miles of where I live there is a beautiful SSSI called Hatfield Forest. It has been unchanged for over a thousand years. It is one of the very few remaining unchanged forests of its type in Europe and the only one remaining in England.
If Her Majesty's Government decide to expand Stansted airport, this ancient forest will be totally demolished. What would future generations think if they learnt that an area of such importance was sacrificed for the commercial reasons of those who travel by aircraft? I simply ask my noble friend how robust these notes of guidance and existing legislation are in protecting areas of such importance which are irreplaceable.
The Earl of Erroll: My Lords, I have to admit that when I first saw the measure we are discussing I thought, "Here is some more bumf that I forgot to refer to in my speech on environmental regulation and agriculture. Here is more bumf for the poor land managers and farmers, such as my wife, to read, mark, learn and inwardly digest". I had forgotten that she owned a tiny SSSI when I spoke in the House that Friday and when I listed a few of the papers that she had to absorb in the line of duty.
The guidance does not come on its own, of course. It refers to three other documents, the main one of which will come in the future, as English Nature is said to be,
"also providing further, more detailed, information on the arrangements",
but we do not see that yet.
I have three or four worries and then some positive points. My first worry is that good old legal disclaimer in the preface, which makes me wonder how the farmers and land managers will get things right if the Civil Service cannot. Publicity of the SSSIs and why they have been given that status is referred to. I know of an ex-SSSI that used to have lily of the valley. Once the wood was publicised as having lily of the valley, the flowers were promptly picked by various marauding people. They do not exist any more, and the site is no longer an SSSI. Publicity could be disadvantageous and counterproductive sometimes, so that should be looked at carefully.
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Paragraphs 63 and 67 intrigue me. Paragraph 63 states that a management agreement should enable the person to meet the costs of whatever works are required. Paragraph 67 states that, if English Nature has to carry out the work, it will recover the excess costs. I suspect that that highlights the original problem—that the amount agreed was insufficient to cover the costs, or the original agreement was for the incorrect amount—so paragraph 67 should not be necessary.
I felt the titles were excellent. The title of the explanatory memorandum uses the words "Building positive partnerships", and the title of the code uses the words "Encouraging positive partnerships". Both are admirable objectives. With the right attitude, such partnerships could be made to work. If English Nature has the right officials with the right ability to handle people and their concerns, and if they really give help and advice, that will work to the benefit of everyone. It is only if they come in as little Hitlers and start telling people what to do that everything will break down.
On that point, there can sometimes be a very difficult conflict of interests. I heard recently of someone who had to dig out their drains in order to maintain the hydrological balance of the area, as has to be done. However, they were promptly penalised for disturbing vole habitats—heads I lose, tails I lose. Such matters must be handled carefully, and we need officials who know how to handle them properly. The legal obligation should not end up on the poor old farmer, but on the person who gives the advice.
As usual, because of the new structures, the implementation is carried out by an agency. I have never really thought that very sensible. It means that Parliament cannot ask questions about the actions carried out in the name of the Government. That has always concerned me. We now have a sort of split. Suddenly English Nature will be making by-laws and its agents taking actions, and we will be able to do nothing about it.
I shall end on a positive note by saying that partnerships can work very well. My wife had an incredible amount of help and support from FWAG when she was working on Countryside Stewardship schemes. If English Nature gives the same level of support and advice on the matters under discussion, everything will certainly work. The key is collaboration, not confrontation.
11.45 a.m.
Lord Monro of Langholm: My Lords, how right the noble Earl is that much of what is important is a matter of attitude rather than legislation. I declare an involvement rather than an interest as the Minister who guided the 1981 Act through Parliament. I subsequently spent nine years as a member of the Nature Conservancy Council, and was then the Minister in charge of SNH. I feel that I shall have "SSSI" on my gravestone.
In passing, relative to SNH and Scotland, I should say that I was one of those who was very enthusiastic in the 1980s and 1990s to convert NCC Scotland into

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having its own responsibility as Scottish National Heritage, and that happened. The principal reason was that Peterborough was a very long way from the highlands of Scotland, where many of the SSSIs were and much of the involvement in nature conservancy was. Last week, the First Minister in Scotland announced that the headquarters of SNH was to be moved from Edinburgh to Inverness. The whole thing will be moved far north, which is most inconvenient and to which the staff object totally. It cannot in any way help conservation in Scotland.
I want the Minister to say whether Scotland will produce a similar code of guidance. So often, in agricultural terms, I have heard Ministers say that Scotland will follow suit, but it never does. Relative to all the legislation and discussion on foot and mouth, Scotland was to produce its own papers, but I am still waiting for them. What relationship and co-operation are we having with SNH, because the borderline does not impact on livestock and nature conservation? We want arrangements to be the same both sides of the Border if at all possible.
The 1981 Act succeeded a Bill introduced by the previous government that fell at the 1979 election after the Porchester report. We felt that that Bill was far too full of compulsion, and wanted to move forward wherever possible by voluntary agreements, backed up by law if required. That was the basis for the Act. The Committee that considered the then Bill was very constructive. The clause that we are debating was put in on Report in July 1981, and called for guidelines to interpret the legislation. Impartially, I would be quite interested if the Minister were to tell me the differences between the guidelines with which we are dealing and the recommendations relative to cattle welfare.
The guidelines are definitely required, as they were in 1981 because the NCC's relationships with farmers and landowners were pretty tense. As has already been mentioned, it failed to be flexible and there was little co-operation. It often led to intimidation and court proceedings. I welcome that we now have commonsense guidelines to procedures, which bring in the social and economic impact of SSSIs on rural areas. The NCC had a reputation for being somewhat heavy-handed, and the guidelines show a positive and more friendly way forward, particularly relative to notification of new SSSIs.
Most owners of SSSIs are proud to have them and want to go along with English Nature, with the appropriate management agreements. One major problem was potentially damaging operations or, in the awful jargon of that world, PDOs. Sometimes simple agricultural operations were banned for, in the views of the farmers or landowners, no good reason. Matters could of course have been resolved amicably, which is what I hope the guidelines set out to do. They are about sympathetic management between English Nature, its area officers and the landowners and farmers.
Much of the success of the code will depend on English Nature and its staff, DEFRA and its staff, and the Ministers responsible. They have to set the tone
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and bring harmony rather than strife to the countryside. They must use their influence with NGOs such as the RSPB, the RSPCA and so on, whose large memberships sometimes seem to dictate final decisions. English Nature and DEFRA must keep a fair balance with the guidelines. Some organisations, such as the National Farmers Union, the Game Conservancy Trust and BASC have a wealth of knowledge at least equal to that of English Nature. Sometimes, built-in opposition to country sports by English Nature has brought most unfortunate repercussions. It tends to forget that those interested in country sports perhaps spend more time improving habitats and conservation than anyone else.
For the beautification of the landscape, the prominence of SSSIs is very important. But to have SSSIs and a lovely landscape, we need profitable farming, and the Government seem to be doing their level best to have the reverse.
Baroness Farrington of Ribbleton: My Lords, I thank all noble Lords who have taken part in this short debate. Perhaps I may underline the point made by the noble Earl, Lord Peel, about the need to co-operate and to work together to protect that which we all agree should be protected.
I begin by referring to the noble Lord, Lord Monro, who sought to draw me into commenting on matters that have been devolved to the Scottish Parliament. I am sure that it was done in all innocence. We are not aware of any immediate plans for a code to be produced in Scotland. We work closely with other conservation agencies across Border sites on issues that are common. There are common monitoring requirements across England, Scotland and Wales. If the noble Lord is not happy with some of the decisions, I am afraid that he must take them up with his representative from the Scottish Parliament. I compliment the noble Lord on the role that he played in introducing the 1981 Act.
As the noble Earl, Lord Peel, said, co-operation must be the watchword. In usual circumstances, it should be possible to reach a voluntary agreement—referred to by several noble Lords—and the use of English Nature's power to issue a management scheme will not be necessary. But, where it is, English Nature is required to consult owners and occupiers on the scheme and to allow them three months to make representations. The code makes clear that English Nature will be expected to consider carefully any comments, suggestions and representations that owners or occupiers may make during the course of developing the scheme, and the scheme must be confirmed within nine months. But where English Nature issues a management notice to secure the implementation of the scheme, owners and occupiers have the right to appeal against the terms of the notice to the Secretary of State, and they must be informed of that right by English Nature.
Perhaps I may cross the other Border for a moment in responding to the noble Lord, Lord Crickhowell. I am aware of the beauties of the Montgomery Canal. I am also aware of the role played by the late Lady

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White in the development and reopening of that canal. I am afraid that the noble Lord seeks to draw me into commenting on the role of the Countryside Council for Wales. While I fear that it is not within my power to do so, I should be grateful if he would send me a copy of the letter that he has received and I shall seek to ensure that it goes through the appropriate route in order to obtain answers to the questions.
I am aware that other people have been up against the problem that the noble Lord avoided by taking very early action in relation to the presence of bats. There will always be conflict—
Lord Crickhowell: My Lords, I am grateful to the noble Baroness for that invitation. But I was also making a general point because, although I use the Montgomery Canal, I was emphasising the need to get this balance right in other cases as well.
Baroness Farrington of Ribbleton: My Lords, l was about to go on to say that the noble Lord, Lord Crickhowell, made the important point that in particular areas there must be sensitive and careful handling of conflicts of interest and conflicts of use. But it is impossible for me to respond to the specific example that he gave.
My noble friend Lord Simon asked a question about possible Stansted airport expansions affecting the Hatfield Forest SSSI. Under the overarching Section 28G duty, it is important to recognise that there is a duty to conserve and enhance SSSIs. If consent for any proposal is to be considered, it will need first to go through the consultation process to which I have just referred. English Nature would be required to provide advice on the impact of the proposal and the public body would have to show how it had taken account of that advice. Ultimately, if English Nature felt that its advice had not been given due weight, it could request that the matter be called in by the Office of the Deputy Prime Minister.
The noble Baroness, Lady Byford, referred to changes under the Countryside and Rights of Way Act which include provisions that English Nature exercises greater control over activities that may affect SSSIs by refusing, modifying or applying conditions to consents as appropriate. An important duty is to be taken into account within that.
The noble Baroness, Lady Miller of Chilthorne Dourer, asked whether further revision of the code was to take place. We believe that new legislation needs to bed in, but we take heed of the point that she raised.
The allegation of watering down PSA targets is incorrect. Favourable conditions include "favourable maintained", "favourable recovered" and "unfavourable recovering" as three scientific categories in the common standards monitoring system, as technical notes on this target made clear from the start in 2000.
Whether or not owners or occupiers choose to apply for planning consent or to appeal to the Secretary of State is, of course, at the discretion of the owner or occupier. But the code promotes a climate in which we
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hope that such disagreement will not arise very often. With regard to enforcement of the statutory duties on public bodies, it is an offence for public bodies to fail to comply with the legislation when carrying out functions that are likely to harm SSSIs.
The noble Baroness also asked whether there was sufficient funding. The code does not place any significant new burdens on English Nature. It advises on the way that English Nature should behave in carrying out its functions required under the legislation. English Nature's funding needs to carry out its duties are considered very fully in the context of annual spending rounds.
The noble Baroness, Lady Byford, raised the issue of the statement of views on management. The statement is advisory and is meant to provide a brief and helpful summary for owners and occupiers. Where specific measures are necessary to manage the land, English Nature can enter into agreements or use more robust powers. The right to roam issues are covered in the code. If noble Lords wish to raise more detailed questions, they may of course write to me.
The noble Baroness, Lady Byford, also raised the issue of commoners. We recognise that matters concerning common land are particularly complex. In July last year, following a lengthy review, we published our common land policy statement. It outlines our proposals for changes to the legislation governing common land, including development and better land management agreements and arrangements. At present, there are no plans to issue specific SSSI guidance concerning commoners. However, we shall give this matter further consideration in the light of experience in applying the current regime and the emerging proposals for the future management of commons.
Several noble Lords referred to the progress being made towards meeting the targets set. English Nature publishes annual reports and it has always been clear that those sites classified as in good condition and meeting the target include those sites which are recovering. The target establishes the baseline for the target at the time it was set at 60 per cent. If any of those sites classified as favourably maintained or favourably recovered had been included, that figure would have been much lower.
Noon
Baroness Byford: I thank the noble Baroness for giving way. One of the questions asked was why the wording was changed from "favourable condition" to "unfavourable condition". It would he helpful to noble Lords if the Minister could tell the House the reason for that.
Baroness Farrington of Ribbleton:: My Lords, my understanding is that it was changed in order to be more sensitive to the different categories. The point was raised by the noble Baroness, Lady Miller, who asked whether it would be possible to distinguish between sites which were unfavourable but improving

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and those which were not. I believe that that answers the question. If not, I shall be happy to write to the noble Baroness.
A question was raised as to the role of the Audit Commission. I shall look into the question of whether the Audit Commission should be made aware of the importance of good work in this field. The noble Earl, Lord Peel, raised the issues of by-laws and the importance of publishing them. DEFRA is due to produce model by-laws to inform English Nature. Public consultation over models, which will include how those should be published, will take place as part of that. English Nature will have to consider how to publicise any by-laws it makes. It could use its regular Sitelines magazine or its Internet site. The department would also consider whether it could publicise any bylaws, for example on the DEFRA website, which was a point raised.
I am conscious that—
Earl Peel: My Lords, publishing the by-laws on a website is all very well, but clearly they will reach only a relatively small number of people. The concern I raised is how on earth the Government will equate the introduction of by-laws on to SSSIs through English Nature. Great attention is paid to the importance of such by-laws and the fact that many of the public who enter access lands simply will not be aware of them because there is no statutory obligation on the public to enter access land via an access point. That is the problem, and it is one with which, frankly, the Government are failing to deal.
Baroness Farrington of Ribbleton: My Lords, I recall, perhaps not with quite the same degree of pleasure as the noble Baroness, Lady Byford, the long debates we had on this subject when the Countryside and Rights of Way Bill passed through your Lordships' House. I take on board the fact that the noble Earl is concerned about this issue. I hope that he will respond to the consultation by raising these points with regard to how publicity can best be given to protect these sites.
Baroness Byford: My Lords, perhaps I may follow up the point raised by the noble Earl. I was giving the noble Baroness the opportunity to reach the noble Earl's second and, I believe, most important point. That concerns not just people's welfare but the welfare of wildlife. One of the long debates we had in this House concerned the whole question of access points, which my noble friend has raised again. I really must request the Minister—it would not be fair to expect her to respond now—to take this matter away and consider it with a degree of urgency. It is now nearly two years since we took the Bill through this House. Fairly soon these issues will raise their head. So far as I am aware the Government have not addressed the matter. My noble friend is right to say that people will have no idea. There is no one point of information. It is two years down the line and we are no further forward. I shall not press the point further at this stage.
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I do not think that that would be fair to the noble Baroness, who perhaps cannot give an answer today. However, it is one of the most crucial points.
Ironically, when we took the Countryside and Rights of Way Bill through this House I was lobbied heavily by a wildlife group, which stated, "You don't want this. You don't understand. We need to have greater protection". Yet, one of the first groups to write to me when it realised the implications of the Bill was one such group. The point has been raised, not just by us but by the groups which realise there will be difficulties. I suggest that the noble Baroness takes the matter away and comes back later with a reply.
Baroness Farrington of Ribbleton: My Lords, I am aware that the concern was raised. I was present in your Lordships' House and there was a conflict of interest. It was debated at some length as to whether there should be strictly and narrowly defined access points or whether they should be less strictly controlled. Decisions were taken in the passage of that legislation. My response to the noble Earl, Lord Peel, was that where by-laws are being produced to protect SSSI sites, among other places, the issue of how to publicise them in order to protect and inform the public is one that I think should be taken into account. We are consulting on that.
On Question, Motion agreed to.

Code of Recommendations for the Welfare of Livestock: Cattle
12.6 p.m.
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton rose to move, That the draft code of recommendations laid before the House on 26th February be approved [12th Report from the Joint Committee].
The noble Baroness said: My Lords, on 6th February we considered this code in some detail alongside the Welfare of Farmed Animals (England) (Amendment) Regulations 2003 and the code of recommendations for the welfare of pigs. We withdrew the cattle code because it contained two drafting errors.
The errors in paragraphs 23 and 40 of the code, where the word "pigs" needed to be replaced with "cattle", have now been rectified. In addition to some minor punctuation and formatting alterations, the only other substantive change is an amendment to paragraph 137. Following an exchange in the other place on 4th February an undertaking was given that the paragraph would be amended to make it clearer. The wording now used in the first sentence makes it clear that dairy cows should be given more forage than they would be expected to eat each day. That is to ensure that there is always sufficient forage available to satisfy the needs of all the cows in the herd and to minimise competition. The advice in the second sentence of the paragraph that farmers should remove surplus food every day has now been deleted on

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practical grounds. But, to ensure good food hygiene, we still stress that old or stale food should not be offered to cows.
Welfare codes are a positive force for improving the welfare of farmed animals and thus are an important part of the Government's animal welfare strategy. I beg to move.
Moved, That the draft code of recommendations laid before the House on 26th February be approved. [12th Report from the Joint Committee]. —(Baroness Farrington of Ribbleton.)
Baroness Byford: My Lords, I thank the Minister for bringing the code before the House today. Indeed, we had an opportunity to consider this matter but did not go into it in great detail because there was a fault with the code at the time.
Baroness Farrington of Ribbleton: My Lords, I thank the noble Baroness for giving way. My recollection is that it was agreed in debate whether it was proper to agree a code with wrong wording. From memory, I believe it was the noble Lord, Lord Skelmersdale, who pointed out that we had had a full debate on the issues but that it would he improper to press the code for acceptance.
Baroness Byford: My Lords, I hear the Minister's comments, but the code is now before the House today and we are debating it. The Minister will know that we support the code. As I said previously, UK farmers have set and observe high standards of animal welfare, which I think the noble Baroness would be happy to support. It is in their own interests that cattle are well looked after. I am grateful to the noble Baroness for having corrected the feeding issue which was raised in debate.
We all believe in the five freedoms. They are freedom from hunger and thirst; from discomfort; from pain, injury or disease; an ability to express normal behaviour; and freedom from fears and distress. We all totally accept those. Stock skillmanship is the key to ensuring the well-being of farm animals. Having been in the poultry industry myself—rearing day-old chicks through to parent stock, producing their own chicks for Thornbers—I sometimes question why nowadays we need so many rules and regulations. I suspect that that is a sign of the times.
Biosecurity is also mentioned in the code. It is of huge importance. It is helpful in order to reduce the spread of disease. Paragraph 28 of section 1 of the code refers to,
"farm units being more secure from the introduction of new infectious disease".
That is a matter about which we have spoken in the House. The Minister will therefore not be surprised that I again urge the Government—indeed, I was glad to receive a copy of their recent suggestions on import controls—about the need to tighten up and dramatically reduce the illegal imports of meats into this country.
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Page 14 of the code refers to the disposal of fallen stock. The noble Baroness may say that I am perhaps out of order, but I would refer her to paragraph 48 because today we shall he approving a code which states that—if she looks to the fourth point down—
"in certain circumstances, burial in such a way that carnivorous animals cannot gain access to carcass, or burning",
will actually be ruled out of order totally in four weeks' time. It is under those circumstances that I raise the very difficult issue of fallen stock. We have fewer than four weeks to get the matter put right.
I believe that we have a problem. From 1st May 2003 farmers will not be permitted to bury fallen stock. The regulation has been known about for a long time. The NFU first met the Government on the issue back on 7th December 2001. What disturbs me— I think it would also disturb the Minister—is that there seems to be an impasse and only four weeks to put mattters right. The industry does not have the freedom that we have, as Members of your Lordships' House, to raise these issues directly with the Government. It can do so only by going to the department. So I find the comments made by Ministers "unfortunate"—if I may put the matter that way—when they suggest that the industry is dragging its feet.
The list supplied by the National Farmers Union shows that 17 meetings have been held since that first meeting on 7th December 2001. There was also one on 17th December. The following year there were meetings on 3rd April, 14th May, 8th and 17th July, 22nd and 28th August, 18th September and 3rd and 19th December. I move to this year. This year meetings have been held on 20th January, 19th, 26th and 28th February, and 7th, 17th and 27th March.
I shall not repeat what the meetings were about and who attended which, but they all concerned the question of fallen stock and how we are going to move forward on the matter. My real concern is that we have only four weeks in which to put things right. For the Government to be blaming the industry is very unhelpful, to put it mildly.
I hope that by having the opportunity formally to raise the issue today within the code—because the code refers in particular to the burial—it might encourage the Government to move forward with the industry in order to address the situation as it stands.
I have also asked what happens with regard to fallen stock in member states. The Government say that there is no way they will bear the full costs. I do not think that the industry is asking for that. I gather that in Austria, for example, the Länder pays the collection costs; in Belgium the Flemish Government covers costs for small farms but larger farms have a subscription service; in Finland farmers contribute 25 per cent of the costs; and in Ireland fallen stock may be collected by licensed collectors or buried under licence. Disposal costs are shared between state and farmer, but the cost of the disposal for the carcass is met by the Exchequer. In Germany, fallen stock must be rendered. Local authorities are responsible for enforcing that. Their costs and responsibility vary from Land to Land. In most Länder the cost is shared

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between government and the farmer. That is carried out by an animal disease fund, a compulsory fixed levy that meets expenses for each livestock species.
In Spain, two-thirds of the costs for removal and disposal of fallen stock are subsidised by public funds. The rest is paid for by the farmer. In the Netherlands, from 2002 the farmer will pay full cost. In Luxembourg, stock is destroyed and incinerated. There is a national collection service which is subsidised by the government. In Portugal, proposals are being put to Ministers with regard to a national collection service. Currently, there are no controls whatever and most fallen stock is buried.
Your Lordships will realise from that list that a multiplicity of systems are used in other national states. My real concern is that we need to move the matter forward. We have a problem, which I do not think has been addressed sufficiently. When the issue was discussed in the Commons on 17th March, Mr Morley said that it is not unreasonable that the industry should contribute to dealing with one of its by-products. The Government are prepared to make a contribution. They currently contribute about £30 million to the over 30-month scheme collections and to fallen stock collections to monitor bovine BSE in animals over 20 months.
I have a question for the Minister. I understand that the cost of implementing this new animal by-product regulation will be £50 million. It is not included in the £30 million. So there is £20 million that must be found. Perhaps the Minister can clarify where the impasse arises between what the Government have offered or what the industry has agreed to. At the moment it is not clear.
I have also received briefing from the National Pig Association. The noble Baroness may say that we are considering cattle, but I hope that this is a helpful suggestion. In its discussions with DEFRA on the same topic it said that,
"Defra add that, 'the basic principle is that burial and burning should only be permitted where the carcass is more than 100 km away from the collection centre and the stocking density is very low'. The Regulation allows Member States to permit the burial of pet animals. Defra has not responded to NPA pressure that small-scale producers should also be exempt".
If there is a suggestion that a derogation can be made in respect of pigs, my question is: has one been made as regards cattle? As we are so close to the imposition of this new regulation, has any derogation been asked for in order to give us longer to try and sort out this very great problem with which we shall have to cope in four weeks' time?
I should like to raise many other issues, but I do not want to take any more time. In outlining my concerns, I have been trying to be helpful by suggesting that the Government need urgently to address that impasse and by putting on record that the industry is trying to meet the Government's concerns. As I said, Mr Morley has had various meetings at which those issues have been raised.
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I should like to touch on two other issues. I understand that the knackering—what a dreadful expression to use in your Lordships' House—and rendering industry has suggested that it has capacity to cope with the need once fallen stock cannot be buried. But is there a comprehensive geographical spread? That is obviously hugely important. Secondly, will any transitional measures be made in the form of a derogation to allow the new regulations to be coped with? If not, what will happen in the meantime? Will farmers still be allowed to bury? We need greater clarification of the position.
I apologise to the House for taking 15 minutes, but this is a huge, complex and important situation in which we are running out of time.
Baroness Miller of Chilthorne Domer: My Lords, we are under the impression that we debated the code the last time it was raised in the House. For that reason, I shall not repeat the remarks that I made then. If I do not comment on the issue of fallen stock, that is not because we on these Benches do not believe that it is extremely important. Indeed, my honourable friends Andrew George and Roger Williams have pursued it with great vigour in another place, but I shall not take up the House's time with that now.
Lord Elliott of Morpeth: My Lords, I intervene not to deal with the matter of fallen stock—with which my noble friend Lady Byford dealt well, and about which I have a great deal of sympathy as a countryman—but to thank the Minister for introducing the code and express a full appreciation of it.
A long time ago, in another place, I was chairman of the Select Committee on Agriculture. In that capacity, I presided over a full inquiry into intensive methods of food production. That is not a pleasant memory. I still remember certain parts of that inquiry with dismay. Some of my noble friends have today suggested that some of the interim legislation may have been unnecessary. I disagree. We have come a long way since that distressing experience. I warmly welcome the code of recommendations.
I shall comment on only two aspects. The code includes suggestions on handling of cattle—on tolerance, patience, pressure and noise. I can fully recall the terror of animals born and reared in the peace of the countryside suddenly knowing the turmoil of a cattle market.
A long time ago, as an officer of a National Farmers Union county branch, I was partly responsible for an attempt to introduce a fatstock marketing board. That would have meant animals for slaughter going straight from farm to slaughter point. Unfortunately, commercial arguments defeated that idea, but I welcome paragraph 14 on page seven, on handling. I also welcome recommendations on accommodation made on pages 17 to 19.
Having felt deeply about animal welfare ever since I presided over that inquiry years ago, I hope that the recommendations in the code will be fully appreciated by the industry. I hope that they will also be fully noted and implemented. I warmly welcome the code.
Lord Plumb: My Lords, I fully support the comments of my noble friend Lady Byford and the questions that she posed. She need make no apology for taking 15 minutes to pose those questions and make those points, because they are all extremely relevant to the situation as seen by stock owners throughout the country.
As your Lordships may know, I have spent a major part of my life concerned with the welfare of farmers and farming families. I was born into a family of stock keepers—dairymen, beef keepers, pig keepers and keepers of sheep and poultry. I was therefore brought up fully accepting the five freedoms listed in the preface to the code of recommendations, but no stock man in this country worth his or her salt needs telling in 150 paragraphs that without good management and appropriate welfare, stock will suffer and so will the business.
Stock owners could add a sixth freedom to the five listed: freedom from inspectors who may arrive at feeding or milking time, causing mental suffering to both stock and stock men. I have experience of such occasions and of appalling ignorance by some inspectors who call at certain times, interfering with the general management of the stock.
I am of course aware that, as my noble friend said, consultation on the code has taken place over a considerable time—certainly for more than a year. It is difficult to believe that anyone feels that he must necessarily approve all the recommendations or to understand why we are being asked to rubber-stamp them now, when change takes place at all times. Their enforcement is inconceivable and reprehensible.
However, in parts, the report is so elementary that, frankly, a 10 year-old could have written it. It does not bring us up to date with modern techniques and modern farming. It repeats some codes to which we have become accustomed. I am sure that other noble Lords will mention the issue of fallen stock. I make no apology for raising it or returning to various points.
What scientific basis is there for accepting a change in the rules for disposing of fallen stock? The way in which fallen stock is disposed of has been in place since time immemorial. In the 1960s I served on the foot and mouth inquiry. We made it absolutely clear from scientific evidence that we had then—I see no reason to change—that burial was far safer than burning. Therefore, in practical terms, why change? If there is some science behind that recommendation, can we be assured that it has been reviewed by other scientists with knowledge equal to or better than some of the scientists involved in recommending such drastic and costly change—change, incidentally that is bound to impinge on the cost of living for every man, woman and child who is a consumer?
Assuming that there is some scientific support for the recommendations, has a full risk assessment been made of the potential of the present system to spread disease, either directly from the disposal chamber or
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from the associated ground water? If there were reported problems from that route, were any steps taken to correct the matter? If so, what were they?
In the unfortunate event of the proposed rules being enacted, what steps will be taken to prevent fluid, possibly from diseased carcasses that are already in a collection vehicle, contaminating country lanes and main highways? More particularly, what steps will be taken to prevent disease from carcasses contaminating farm premises when a collection vehicle has arrived and is parked on the farmyard or must cross land, perhaps SSSI land, to collect a carcass? Milk collection has been a factor in the possible spread of disease. Yet lorries picking up fallen stock will have to pass to collect carcasses. I remind the Government that we supported them when they talked of the need for vigilance and heightened awareness of bio-security.
As I understand it, it is proposed that all fallen stock on the farm will be subject to the change, and a consequence of that law is that it will include even sheep. We are dealing with cattle now, but let us not forget that any sick animal will crawl away as far as it can across the holding, common or wherever it is to die. That is one of the problems affecting the collection of animals.
Mercifully, BSE did not reach anything like the epidemic proportions that some forecast. There was concern that it might even spread to sheep. The level of BSE in the population is already declining to an extremely low figure, presumably as a consequence of action already taken. So, given the seriously flawed prediction and the sharply declining incidence, what logic is there in taking those wildly expensive and disruptive steps to further curtail a condition that by all available yardsticks already appears well under control?
Many of the recommendations, therefore, are contrary to the restriction of the spread of disease. Quite rightly, we still have rules in place for foot and mouth disease and many others. I am not opposed to recommendations that ensure stock are kept healthy and so on. But some proposals, particularly on fallen stock, are unworkable and contrary to the Animal Health Act.
Lord MacGregor of Pulham Market: My Lords, I, too, wish to discuss the issue that my noble friends Lord Plumb and Lady Byford raised about fallen stock. I am grateful to her for putting forward the views and asking the questions that she did. I think it right to do so, because the matter is now of very urgent concern to farmers. So far as I can see, from farmers' point of view, there has been no progress since the code was last debated in this House. Norfolk farmers, including former constituents, have expressed to me concerns about the matter. I know that we are talking about cattle, but the issue was discussed at a very recent large meeting of pig farmers. There was great concern, not to say desperation, among farmers about what they could do in the next four weeks. The points that they raised are also relevant to other stock. I wish to raise three of them.

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The first relates to renderers and knackers. Margaret Beckett in another place and others repeated the point that there is sufficient national capacity, but that is not the issue for many farmers. What matters to them is the capacity available to them within a reasonable distance. In Norfolk, certainly, there is now very little capacity for renderers and knackers. The point that my noble friend Lord Plumb makes about bio-security is highly relevant. For example, pig farmers are very concerned that, unless they can be assured that vehicles coming on farm are absolutely OK as regards cleanliness and bio-security, there will be a resurgence of classical swine fever, which did such harm to the pig industry not long ago, foot and mouth disease and so on. Pig farmers have not been reassured about that concern.
Incineration is an available option. Farmers who had incineration facilities before December last year have until December 2004 to continue with that process. But the problem is that the many, many farmers who do not have it on their farms and who have buried do not know what to do about incineration. In another place, Elliott Morley promised detailed guidance within two weeks of the end of February. Yesterday, in another place, when Margaret Beckett was asked when the detailed guidance was coming, she replied:
"it was my impression that is going out—".
At that point, David Lidington intervened to ask whether that would happen within two weeks, and she replied:
"The hon. Gentleman says within two weeks, but it was certainly my impression that it is going out in the next few days or week".—[Official Report, Commons, 3/4/03; col. 1060.]
So Margaret Beckett was not clear when the guidance that had been promised for some time would reach farmers. They cannot make decisions about incineration unless they know what that detailed guidance says.
Worse still, earlier in another place yesterday, on information and guidance about on-farm incineration, she said:
"I believe that some information and guidance is already on the DEFRA website".
Well, not everyone has the Internet available, and, anyway, it is not the detailed guidance. She continued:
"We are certainly mindful of the fact that … there is substantial availability of such incineration capacity, but it has to meet the required standards"—
this is the relevant point,
"and we will work with the industry to ensure that that is the case during the next few months".—[Official Report, Commons, 3/4/ 03; col. 1059.]
Yet all farmers must take decisions by the end of this month. That seems entirely unreasonable.
The third point relates to funding. The Government said that some of the £30 million available under the BSE schemes and the TSE surveillance scheme would be made available to help with incineration. But, at present, farmers do not know what the implications of
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that will be. Certainly, farmers whose stock is not covered by the schemes are extremely unclear whether or not there is any funding.
I make those brief points because they seem to add up to a situation in which it is completely unreasonable to ask farmers to make decisions in the next three weeks without knowing on what basis they are making them. Farmers want to abide by the law; they certainly do not want to break it, and they are very concerned about the possibility of doing so at the end of this month. That is why I believe that the Government should be pressing within the Commission for a temporary suspension until those issues can be sorted out. I plead that, on practical grounds, the Government consider the matter very seriously.
Lord Monro of Langholm: My Lords, my colleagues have put the case so well that little need be added. I wish to raise a problem that was not discussed in great detail, bearing in mind my support for most of the recommendations in full—even if most are very obvious practices that we have been carrying out for generations, as my noble friend Lord Plumb said.
My concern relates to paragraph 18 on ear-tagging. I do not know whether the noble Baroness has had the opportunity to be on a farm when inspectors call and wish to see every ear tag—two per beast. To bring 500 cattle in from a hill, say, where they have not been confined for some time, is quite a performance, particularly given that farms now run on the absolute minimum of staff. The department is asking a great deal of farmers by expecting them to get all the beasts in to be looked at by inspectors before it will consider giving them any production grants. We must have endless contact with the BCMS at Workington, which looks after all ear tag numbers. It is an extremely complicated and time-consuming operation.
I want to support my noble friend Lady Byford on the issue of fallen stock, which was raised also by my noble friends Lord Plumb and Lord MacGregor of Pulham Market. Article 5 cannot be allowed to stand. It should not be allowed to go out to the general public. Burial, even in certain circumstances, will be out, and we are gravely concerned about the knacker's yards. Yesterday, I listened to the Secretary of State, and I read in Hansard what she said. She said that there was adequate capacity. Like the noble Lord. Lord MacGregor of Pulham Market, I ask where that capacity is. I am sure that many farms are a hundred miles or more from a knacker. Could the noble Baroness publish a list of knackers, giving their location? That would be of some benefit to farmers, who are in a desperate position.
There are particular problems with incineration. There is great difficulty in knowing the exact legal position. Farmers may club together and buy an incinerator—at £10,000 or more, they are expensive— but they cannot take dead stock from one farm to another. The Minister should have produced some derogation that would make that possible. Farmers cannot share an incinerator, because the law says that they cannot take a dead animal from one farm to another. That is the sort of problem that we face.

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I must press DEFRA to go for a derogation for six months or more. It is all very well to say that there has been consultation, but, as my noble friend Lady Byford explained, there have been 17 or so meetings but no positive result. We can meet for ever, but, unless we get a solution, we will achieve no satisfactory result. There are only three weeks or so to go, and there is so much up in the air. The NFU is pressing as hard as it can on behalf of farmers. It is the Government's duty to go to Europe and get a derogation for at least six months to resolve a problem that the Government created for farmers by their failure to achieve proper negotiations in Europe. If they had done that, we would not be in the situation that we are in now.
Lord Higgins: My Lords, I intervene briefly and with considerable diffidence. I apologise to the House for not being here right at the beginning of the debate.
I speak with some diffidence, as there is probably no Member of your Lordships' House less qualified than I to speak on agriculture and so on. I imagine that several former colleagues from another place will be surprised to see me rise on this occasion. That may be understandable, as my former constituency, Worthing, had no agriculture whatsoever. However, people there were passionately concerned about the export of live animals for slaughter. They were desperately concerned that the conditions for transport in this country were not the same as those in other European Union states.
At the time, we were told that, because of European Union rules, it was impossible to ban such exports. I cannot help noting that, the moment there were health problems such as BSE or foot and mouth disease, it was miraculously possible to impose such a ban. Given that the code includes reference to transport off farms, I would be grateful for some assurances from the Government with regard to whether the same conditions are likely to exist, once an animal is exported. It is a matter of considerable concern.
I will make a final point. I was shocked to discover recently that there is a considerable trade in horses exported for slaughter. I am not sure whether that comes into the category of cattle, in this context, but the horses are used for meat, once they have been exported and killed. That kind of export trade ought not to exist at all, but we should, at least, have some assurances about the conditions in which such animals are kept, once they are exported. We should be concerned at the prospect of aged horses being exported live into conditions in respect of which regulations may not be as tightly enforced as they are for cattle generally. I would be grateful if the Minister could give me some assurance on those points.
12.45 p.m.
Baroness Farrington of Ribbleton: My Lords, I am sure that all noble Lords who took part in the debate will have noted that there is a Question on this matter on the Order Paper for 8th April, so there will be an opportunity for a further discussion. I also refer to a letter to individual farmers that is due to be sent out. I
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will happily ensure that a copy of the letter goes to the Library and is sent to all noble Lords who spoke today.
The regulations have not come out of the blue. As the noble Baroness said, we have discussed them for over a year. The Government began with a stakeholder meeting on 18th September 2002, at which the industry presented a joint proposal for a national fallen stock disposal scheme. The farming unions also presented a paper on funding and argued for 100 per cent funding, at least for the first years. The Government cannot agree to that. The answer to the questions raised is that it would not be allowed.
The situation regarding government funding in other member states is complicated. On the basis of data provided by each member state, the European Commission issued a paper on 20th November 2001, showing that the level of government support varied throughout the Community, with farmers in some countries paying the full cost of disposal, while, in other countries, the government or the local authorities provided support. In some cases, government recoups the cost. In France, for example, a tax is levied on retail sales of meat. New Community guidelines for state aid allow member states to fund 100 per cent of collection and disposal costs only if the aid is fully recovered from the meat sector—for example, by a levy. Otherwise, member states may—I stress "may"—grant state aid of up to 100 per cent of the cost of collection and 75 per cent of the cost of destruction.
The industry estimated that, with full utilisation of its scheme, the collection costs could be 40 per cent lower than is currently the case for adult bovines and 60 per cent lower for ovines. We estimate that there are approximately 200,000 livestock holdings in the UK. A registration fee set at £100 per annum per holding would raise an additional £20 million. The current cost to individual farmers of disposing of sheep and cows is thought to range from £5 to £15 for sheep and from £50 to £80 a cow.
The noble Baroness, Lady Byford, asked about statutory obligations. Although the testing of all fallen cattle aged over 24 months for BSE is required by the EU TSE regulation, the regulation does not require member states to pay for the collection or disposal of the carcasses. DEFRA decided to provide Exchequer funding to ensure that all the required carcasses would be tested.
I thank the noble Lord, Lord Elliott of Morpeth, for his welcome for the measures on the welfare of animals. He was slightly out of kilter with the noble Lord, Lord Plumb, although I am sure that they both have experience of the best of farming practice and good husbandry. I think that neither would deny that just occasionally people fall below the required standards in any profession or industry.
I understand the point made by the noble Lord, Lord Monro, about ear-tagging. But, surely, of all counties, Cumbria will welcome anything that can be done to remove the lack of knowledge of, and

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movement around of, stock when that movement contributed to the rapid spread of the disastrous foot and mouth disease.
I shall write to the noble Lord, Lord Higgins, on the subject of exported animals. I am not prepared to comment on whether cattle can be read as including horses in this order. That subject has an awful feeling of déjà vu. The position is clear. We should prefer a trade in meat, but we cannot ban the transport of animals.
As I said, there have been detailed discussions for more than a year. The Government are writing to individual farmers. We accept that there are some regional variations in the provision of disposal facilities. We are aware that people are making applications to establish those facilities within regions. I commend the animal welfare code to your Lordships.
On Question, Motion agreed to.

Farm Waste Grant (Nitrate Vulnerable Zones) (England) Scheme 2003
12.51 p.m.
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton rose to move, That the scheme laid before the House on 10th March be approved [14th Report from the Joint Committee].
The noble Baroness said: My Lords, I beg to move that the House approves the extension of the Farm Waste Grant Scheme (Nitrate Vulnerable Zones) (England) Regulations 2003. Noble Lords will be aware of the Government's longstanding and ongoing commitment to farmers demonstrated in their Strategy for Agriculture: Action Plan for Farming in March 2000, which included the commitment that the Government would do,
"everything it can, consistent with its legal responsibilities, to minimise the extra burdens of new Nitrate Vulnerable Zone designations on farmers".
Extending the Farm Waste Grant Scheme beyond April 2003 is entirely consistent with this commitment. Under the EC Nitrates Directive, farmers in nitrate vulnerable zones are restricted in the type, amount and frequency at which manures and slurries can be applied to the land. This can cause difficulties for farmers who have little or no storage capacity for manures.
Extension of nitrate vulnerable zones following implementation of the Nitrate Vulnerable Zones (Additional Designations) (England) Regulations 2002 to approximately 55 per cent of the land area in England will require many farmers to upgrade their existing manure storage facilities or install new ones. In recognition of this mandatory capital investment, the scheme focuses assistance on a range of storage and fixed handling facilities.
Since its introduction in 1996, uptake under the scheme has been relatively low. There were only 58 claims between 1996 and 2002. This has been due to a number of factors, including low farm incomes, the swine vesicular disease and foot and mouth outbreaks
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and the ability to "export" manure to farms outside of the NVZs. The extension of NVZs in England will make it more difficult for farmers to continue to export manure as the number of farmers subjected to the restrictions increases.
It is proposed that the Farm Waste Grant Scheme, which provides a grant of 40 per cent on eligible projects, should be extended in England until October 2005. As this is a demand-led grant scheme, it is not possible to forecast accurately the total number of annual claims. A sum of £3.8 million has been profiled for each of the next three years, commencing on 17th April 2003. Based on previous claims, it has been calculated that this will be sufficient to cover the newly designated NVZs and new claims from farms in the original zones that are no longer able to "export" their manures. However, the regulation contains a provision to close the scheme in the event of funds being exhausted before the closing date.
The scheme restricts grants to,
"fixed disposal facilities for slurry and silage effluent".
It has been suggested that the Government should extend the scheme to support the adoption of specialised application machinery—for example, band spreaders and shallow injectors. Storage is a specific action programme measure which stems directly from the directive. Improved application equipment would not provide a direct solution to the restrictions in the action programme.
Spreading is frequently undertaken by contractors rather than individual farmers. The Farm Practice Survey 2001 indicated that 38 per cent of farmers that had manure or slurry on their farms, including arable farms that had imported manures, used contractors. The need for more specialised machinery could increase this trend which suggests that extending the FWGS to cover individual purchasing of machinery by farmers is unnecessary. While there are environmental benefits, such equipment is more expensive than conventional tackle and cannot be accommodated within the budget.
This scheme represents real assistance to farmers in NVZs and demonstrates the Government's commitment to balancing the needs of an efficient agricultural industry with the need to protect water sources from pollution. I commend it to the House.
Moved, That the scheme laid before the House on 10th March be approved [14th Report from the Joint Committee].—(Baroness Farrington of Ribbleton.)
Baroness Byford: My Lords, I thank the Minister for presenting this order today. Obviously, in principle, we support this scheme. As the Minister rightly explained, the scheme will be available to more farmers than so far—until last year, there was an uptake of only 58. Certainly the problem of slurry storage is becoming acute with the new regulations coming in.
I am grateful to the Minister for explaining that grants will be available—up to a total of £3 million. On reading yesterday's debate in another place, understand that the average likely grant would be about £7,000. That is what was anticipated. The issue

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has also been raised as to whether any additional funds would be made available in case more people applied than money available. Again, I understand that yesterday the clarity was that that would not be the case.
The Minister referred to the question of the new machinery available. Obviously, she and many Members here today have been dealing with the Water Bill this week. So, in fact, it is very dear to our hearts. I should have thought that the Government would welcome the development of new technology which it is to be hoped will reduce the risk of pollution into our rivers. But perhaps I may return that.
I understand from the order that the proposals are first come, first served. Presumably those who have already got their applications in will continue to be dealt with. New ones will be on a first-come first-served basis.
The Minister explained that 40 per cent of eligible costs will be permitted. Obviously, that means that the industry must find 60 per cent. Therefore, she will not be too surprised that I caution that for some farmers, who have been going through a very difficult time, even 60 per cent of these costs is quite an additional burden for them to carry. Farm incomes have been dire. The fact that the Government are willing to give 40 per cent towards the cost is helpful, but that still leaves 60 per cent outstanding.
The Minister referred to the use of contractors. Indeed, more contractors are being used. When she said that, I was reflecting on my days at agricultural college when so many farms were mixed farms— everything happened on one farm. Obviously, that is not so today. But we shall need to ensure that there are enough available contractors to do the work at the time that it needs to be done. It may be that certain farmers decide to invest in machinery of their own.
I hope that the Government will look to the new technology known as "trailing hose", "trailing shoe" and "shallow injection" as being of greater environmental benefit than the collection of slurry in slurry pits, and its spreading. That could be reduced if some of the new technology were used.
I welcome the order and thank the Minister for bringing it forward. I wish that we could be more successful in persuading the Government of the advantages as regards the eligible costs, the trailing shoe and shallow injection issues. Perhaps more farmers need to take up the grants—500 to 600 of them may do so. I think that the Minister will be thankful that the debate on this order has been shorter than that on the previous order.
1 p.m.
Baroness Miller of Chilthorne Domer: My Lords, we welcome the order. It is no surprise that there has been such a low take-up; farmers' lack of income has meant that they cannot afford to invest. Therefore, I accept that the level the Government have set is probably adequate.
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I want to question two issues. First, the grant is available for facilities, other than roofing, for the separation of clean or dirty water. I wonder why that is. On any farm where slurry is being stored, the effect of heavy rain falling on it will produce a great deal more dirty water. As was said during debates on the Water Bill, that rain, if caught on a roof, can be recycled and used elsewhere on the farm. Therefore, the exclusion of roofing seems to be curious.
Secondly, machinery cannot be funded by the scheme. I can understand why the provisions of machinery to individual farmers may not be funded—perhaps that would take up too much of the scheme's money—but the Curry commission, whose findings are now being implemented, suggested that farmers would increase co-operation and establish machinery rings. I would have thought that in nitrate vulnerable zones, where this is an issue, machinery shared on a cooperative basis would be suitable for funding from the scheme. I would welcome the Minister's comments on that.
Baroness Farrington of Ribbleton: My Lords, I thank both noble Baronesses. In case I was not clear about the matter, perhaps I may make it absolutely clear that the sum is £3.8 million for three years.
The noble Baronesses, Lady Byford and Lady Miller, raised issues relating to grant availability for machinery. It simply cannot be accommodated within the budget. The prime aim of the scheme is to assist farmers wishing to upgrade manure storage facilities in order to cope with restrictions on manure applications. Improved application equipment, while capable of providing environmental benefits, does not provide a solution to the restrictions in the action programme.
I note the point raised by the noble Baroness, Lady Miller. We grant-aid new farmstead draining to separate clean roof water from dirty water. Roofing over yard areas is excluded. She may want to come back to me on that, but I am afraid that I cannot offer more information at present. It would be wise if I were to write to her with the details on that issue, because no doubt farming friends will ask her exactly what is available. At the same time, I could deal with the question of whether co-operative rings were available. I commend the order to the House.
On Question, Motion agreed to.

Electricity and Gas (Energy Efficiency Obligations) (Amendment) Order 2003
1.5 p.m.
Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton rose to move, That the draft order laid before the House on 13th March be approved [14th Report from the Joint Committee].
The noble Baroness said: My Lords, the order will amend the Electricity and Gas (Energy Efficiency Obligations) Order 2001, which placed an obligation

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on electricity and gas suppliers to achieve targets for the promotion of improvements in domestic energy efficiency.
The 2001 order requires each electricity and gas supplier to direct at least 50 per cent of energy savings to those in receipt of at least one of the benefits or tax credits described in Schedule 2 to the order—a priority group of low-income consumers. From 6th April 2003, we are introducing two new tax credits—child tax credit and working tax credit— which will replace working families' tax credit, disabled person's tax credit and children's tax credit. In October 2003, we are introducing pension credit, which will replace the minimum income guarantee. The draft order gives effect to these changes by adding child tax credit, working tax credit and pension credit to the list of benefits in the 2001 order.
In the case of child tax credit and working tax credit, there will be an income cut-off of £14,200. Families in receipt of those credits who earn less than £14,200 a year will be included in the priority group. We have chosen an income level of £14,200 because that is an uprating of the low-income cut-off used for tax credits now, of around £11,470. That level is generally recognised as being an indicator of low income.
In conclusion, this order reflects the forthcoming changes to the tax credits system and the introduction of pension credit. We have sought to do this in a way that will maintain the focus of the priority group on low-income consumers. With that in mind, I hope that the House will approve this necessary order. I beg to move.
Moved, That the draft order laid before the House on 13th March be approved [14th Report from the Joint Committee]. —(Baroness Farrington of Ribbleton.)
Baroness Byford: My Lords, I thank the noble Baroness, Lady Farrington, for presenting the order. We support it. I want to make a couple of comments.
First, the Explanatory Notes indicate that one requirement of the 2001 order is for each supplier to direct at least 50 per cent of energy savings to those in receipt of at least one of the benefits or tax credits described in Schedule 2 to the order—the priority group of low-income consumers. If the noble Baroness cannot answer my question, I am happy for her to write to me. Can she tell the House how many people that will affect and how the companies anticipate targeting them?
Secondly, I turn to the tax credits system. The Minister will not be surprised to know that there is widespread concern about the take-up of these new measures. The Conservative Party has highlighted that on many occasions, as have many other organisations such as Help the Aged, Age Concern and the Child Poverty Action Group. The success of the new measures depends on a decent take-up rate, but the omens so far have not been good. Take-up of existing tax credits is very low—just 17 per cent for the baby tax credit and 64 per cent for the working families' tax credit, including just 51 per cent of eligible couples.
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And the new tax credits are even more complicated than the existing ones, which is why the 12-page application form comes with 47 pages of instruction. That may be a good reason why there has not been much take-up of some of the good schemes that are being introduced.
When asked about using tax credits in the education formulae of the local government grant, the Minister, Nick Raynsford, recently admitted that:
"Ministers are aware of the difficulties caused by the different take-up rates and that, as a new scheme, working families tax credit might be particularly affected.—[Official Report, Commons, 31/1/03; col. 1082W.]
New figures published last week show that up to 6,700 eligible pensioners are losing out on £820 million per year because they do not receive the minimum income guarantee, the precursor to the pensions credit. Since 1998–99 take-up of all the main means-tested benefits—income support, housing benefit, council tax benefit and income-based jobseeker's allowance—has fallen.
These are real concerns. While I am sure that they are not the direct responsibility of the noble Baroness, she is in the Chamber to answer on behalf of the Government. I am happy for her not to respond in detail today, but I wish to put on the record the point that, while some of these new schemes—the energy efficiency order is a good example—are good ideas and could benefit many people, because the system is so complex, many people are not taking advantage of the opportunities being offered to them. Having said that, I support the order.
Baroness Miller of Chilthorne Domer: My Lords, so far as it goes, we certainly welcome the order. The Minister will know from the hard work of my noble friend Lady Maddock both in this House and in another place that there are much wider ways in which energy efficiency could be addressed, were the Government to choose to pursue them. We welcome the order as perhaps an interim measure before the Government choose to address the issue in the comprehensive way often suggested with great eloquence by my noble friend Lady Maddock.
Baroness Farrington of Ribbleton: My Lords, I am well aware of the advocacy in this area of the noble Baroness, Lady Maddock, the noble friend and colleague of the noble Baroness, Lady Miller of Chilthorne Domer.
All noble Lords accept that, with every benefit, it is difficult to ensure a 100 per cent take-up. Equally, all recognise the particular difficulty in creating the detailed paperwork required to cover eligibility as simple as possible. From a sedentary position the noble Baroness, Lady Byford, said the word "smaller", but as I grow older I hope that the print will become larger while the number of questions to be answered will become fewer.
Suppliers are expected to target eligible groups through, for example, partnership schemes with local authorities. Advertising by suppliers of their schemes under the energy efficiency commitment will

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be encouraged. The size of the priority group will be increased by the amendments contained in the order. Currently the group numbers around 7.7 million people. The figure of 8.8 million mentioned in the consultation document was based on earlier figures which have since been revised. The addition of those on pension credit and new tax credit is likely to increase the priority group by a little over a further 1 million people.
I welcome the support that has been expressed for the order and note the comments that have been made. I commend the order.
On Question, Motion agreed to.

Misuse of Drugs Act 1971 (Modification) Order 2003
1.14 p.m.
Lord Davies of Oldham Lord Davies of Oldham rose to move, That the draft order laid before the House on 12th March be approved [15th Report from the Joint Committee].
The noble Lord said: My Lords, the purpose of the order is to bring under the control of the Misuse of Drugs Act 1971 eight previously uncontrolled substances. As is required by provisions set out in Section 1 of the Act, the Advisory Council on the Misuse of Drugs has been consulted and agrees with these proposals.
The order is needed to enable the United Kingdom to comply with a decision by the United Nations Commission on Narcotic Drugs to bring four of the substances under the control of the 1971 United Nations convention on psychotropic substances. The remaining four are anabolic steroids and are banned by the International Olympic Committee.
The order proposes that dihydroetorphine and remifentanil be added to the list of controlled drugs specified as Class A drugs in Schedule 2 to the 1971 Act: and that 4-hydroxy-n-butyric acid and Zolpidem be added to the list of substances specified as Class C drugs. 4-hydroxy-n-butyric acid is commonly known as GHB and is a widely recognised drug as a result of media reports about its possible use as a rape drug.
Four other substances are to be controlled, all of which are anabolic steroids: 4-androstene-3,17-dione, 19-nor-4-adrostene-3,17-dione, 5-androstene-3,17- diol and 19-nor-5-androstene-3,17. These are to be controlled as Class C drugs. All four have recently been added to the International Olympic Committee's list of prohibited substances.
The Advisory Council on the Misuse of Drugs has considered the misuse potential of all eight substances and has recommended that they should be brought under the controls of the Misuse of Drugs Act 1971 and its associated regulations. If the order is approved, we shall lay before the House an amendment to the Misuse of Drugs Regulations 2001 which will bring all eight drugs within their scope. The amendment regulations will impose a regime of controls for the legitimate medical and research use of the drugs.
In accordance with usual practice, we have consulted the organisations which represent the medical professions and the pharmaceutical industry about the changes. No objections were raised to the proposals.
If the order is approved, we aim to bring it into effect, together with the relevant amendment regulations, on 1st July. The order, together with the amended regulations, will make it an offence to supply or possess these eight substances, except for legitimate medical or research purposes. I commend the order to the House.
Moved, That the draft order laid before the House on 12th March be approved [15th Report from the Joint Committee]. —(Lord Davies of Oldham.)
Baroness Anelay of St Johns: My Lords, I thank the Minister for his explanation of the purposes of the order. Of course it is right that we should add to the list of banned substances in both Classes A and C those new chemicals that come on to the market so that we may prevent their misuse. As the Minister made clear, there would be no problem if the drugs were being used only for medical or research purposes.
The Minister mentioned GHB—I am glad that. I do not have to emulate his expert pronunciation of the full names of the chemicals—which has become a serious matter because it has been used as a date rape drug. In the past we have agreed to other substances such as Rohypnol being added to the list of prohibited drugs.
It is important for the Government to keep such legislation up to date and we fully support the order.
Baroness Walmsley: My Lords, noble Lords on these Benches believe this order to be entirely proper, but before it is approved, I have one or two questions to put to the noble Lord, Lord Davies of Oldham. First, however, it is clear that the noble Lord has been practising his pronunciation of pharmaceutical terms. I have no intention of trying to compete with him on that.
It is clear that these are dangerous substances and we would not want to do anything other than vigorously to discourage their use. Furthermore, it is right that whenever the relevant advisory body makes a recommendation for legislative change, it ought to be considered seriously. As the old saying goes, do not have a dog and bark yourself.
Given the current state of our obligations under UN conventions, we would not argue against the order. However, I want to ask about the consultation process. I see that it went to 100 trade organisations as well as to professional medical bodies, the police, government departments and agencies. I wonder why it was not also sent to athletics and body building organisations in the case of the anabolic steroids, and drug advisory groups and those who run night clubs in the case of the drugs that are sometimes used for leisure purposes. Such consultation could have gathered information about the extent of the problem of the misuse of these drugs. Perhaps the Minister could tell us whether such bodies were approached.

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I was interested to read Annex B of the consultation letter. Section 3 concerns options. It states:
Only one feasible option has been identified—the introduction of misuse of drugs controls on the substances".
It continues:
The UK is a party to the two Conventions and is obliged to control the substances under UK drugs law … Failure to implement the controls would result in the UK breaching its UN treaty obligations".
Section 4 identifies the benefits. It states:
The eight substances are currently subject to the provisions of the medicines legislation but are not currently subject to specific controls to combat their misuse. The misuse of drugs legislation will provide additional controls on the production, supply, possession, import and export of the eight substances in view of their potential for misuse. The measures should help to reduce the availability of these drugs on the illicit drugs market in the United Kingdom. This should in turn reduce the scope for their misuse. The consequent benefits are a reduction in the risks for individual misusers' health and also for public health".
I am tempted to say, "Oh really? A reduction in the same way as we have a reduction in the availability of heroin and cocaine on the streets, perhaps?" Everyone knows that simple prohibition is not working.
I am not suggesting for one moment that we break international law. However, we could go to the negotiations in Vienna, which are to be held later this month on the UN drugs conventions, with an open mind and a willingness to look at more than one option and to persuade others that the need for effective harm minimisation requires a change in the conventions.
Holland and Portugal have been forced to bend the rules almost to breaking point in their efforts to be much more creative and effective in reducing the use of illegal drugs. That is not the British way. But we are renowned for our diplomatic and negotiating skills. Why will the Government not learn from other countries that have opened their minds to alternatives to prohibition and work with them to amend the UN treaties so that they give countries more flexibility and options for working within their own communities to reduce the misuse of drugs?
If we are to succeed in cutting down drugs use we need to do much more than simply approve orders to add more to the banned list. For example, what education and information is to be made available to body-builders' organisations and club goers about the two groups of substances to which the order refers? Do the Government have any research information about how widely they are used?
The Government have said in another place that it is necessary to have a custodial sentence of 14 years available for possession of Class C drugs—not for individual users, but to catch the traffickers. What evidence is there that these eight drugs are trafficked?
I do not oppose the order but I do hope that the Minister will be able to answer some of the questions I have asked.
Lord Davies of Oldham: My Lords, I am grateful for the support for the order given by both noble Baronesses. I stayed up all night to learn these
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technical terms and I am slightly critical of the fact that the noble Baronesses have not followed me in doing such important homework. I recognise, of course, that there are other demands upon their time. I am grateful that I do not have to refer to any drugs other than GHB in my response to the points that have been raised.
As to the point made by the noble Baroness, Lady Walmsley, about consultation, the document was put on the Home Office website. We are talking about drugs which have been banned by the International Olympic Committee, and no respectable sports organisation of the kind to which the noble Baroness referred will be unaware of the implications of using the additional restricted drugs. Any work such organisations undertook in preparing, training and helping their athletes would be null and void—and indeed, shameful—if drug tests were failed. We expect such organisations to act responsibly and to be aware of the prohibited list.
Baroness Walmsley: My Lords, I accept what the Minister has said. But it would have been a useful exercise to gather information about the extent of the problem and for appropriate educational information to be passed down through such organisations once these substances are put on the banned list.
Lord Davies of Oldham: My Lords, I shall deal with that point when I discuss the more general issues raised by the noble Baroness.
The point in regard to the International Olympic Committee is obvious; we do not need to carry out research on the uses to which substances are being put. If the International Olympic Committee is firmly of the view that these are performance-enhancing drugs which would give a competitor an unfair advantage and, perhaps even more important, threaten the long-term health of the competitor, that is good enough for us and we shall take steps to ensure that the drugs are probibited.
The noble Baroness raised a more general point of how we address the issue of drug use. This is a modest order on which to engage in such a debate—I am probably one of the least qualified members of the Government to participate in such a debate—but I recognise the point she makes.
Prohibition is not the only answer, but, when they have clear evidence in regard to these eight substances, the Government would be remiss if they did not take steps to make clear that they are to be prohibited and will be subject to the full force of the law.
I have considerable sympathy with the noble Baroness's point that we need to pay a great deal more attention to the need for education and information to make people aware of the consequences of using recreational and performance-enhancing drugs. That goes without saying. The noble Baroness indicated that one or two other countries—she referred directly to the Netherlands—have followed a different range of
drug strategies in recent years. We have watched the situation in such countries very carefully indeed. We

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are eager to learn from the developments in regard to the control of drug abuse in a number of countries. However, the messages from the Netherlands about the effectiveness of its strategies are not ones of unalloyed joy. But there are points to be noted. I agree with the noble Baroness that where international forums—such as those in the Netherlands and Portugal—put forward different perspectives, we should keep an open mind and support strategies where we see fit.
In a month's time or so we shall have an opportunity to discuss the Criminal Justice Bill when the significance of a reduction in the classification of cannabis can be debated within its framework. There will be many opportunities to discuss the issues raised by the noble Baroness, and a recognition by the Government of the validity of some of the points she has made. But mere prohibition and the imposition of the harsh nature and full rigour of the law does not always produce the desired effects in society.
As the noble Baroness said, these eight drugs, particularly GHB, have often been associated with highly illegal activity. However, the media often emphasise and dramatise small incidents associated with the use of a particular drug. I do not say that the issue revolves around a particular use of GHB but, nevertheless, these are substances which, both at international level and in terms of our judgement, need to come within the restrictions proposed in the order. I commend the order to the House.
On Question, Motion agreed to.

Prevention of Driving under the Influence of Drugs Bill [H.L.]
1.30 p.m.
Lord Dixon-Smith: My Lords, I beg to move that this Bill be now read a second time.
I should like to give my thanks to and acknowledge briefings from the Automobile Association, the British Medical Association and the Parliamentary Advisory Council for Transport Safety. I also caused an Internet search to be done which produced relevant information from so many sources that I think I had better not list them. I simply comment that some of my reading encouraged me in my decision to assist with this Bill before the House.
I should also say that I am very much a proxy for my noble friend Lord Attlee. He is serving somewhere in the Gulf but, I am quite sure, had he been available, he would have been doing this job. I am sure we all wish him good fortune and a speedy return. I say that because during the passage through this House of the Police Reform Act 2002, when I was on the Front Bench, my noble friend brought forward a specific amendment to create the offence of driving under the influence of drugs. At that time he was proposing the use of saliva testing. There were question marks over the technology, and, in the end, that amendment was not proceeded with. But it is indicative of his specific interest in all matters related to transport and in this subject.
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Since that time, right honourable and honourable friends in another place have continued to study the problem. The result is this Bill. It was introduced to another place and given an unopposed First Reading on 12th March by the honourable Member Mr Nick Hawkins. This Bill overcomes the problems of my noble friend's earlier attempt and merits most favourable consideration.
One might assume from a cursory examination of the situation vis-à-vis driving while under the influence of drugs that the problem was already covered. Section 4 of the Road Traffic Act 1988 states:
"A person who, when driving or attempting to drive a motor vehicle on a road or other public place, is unfit to drive through drink or drugs is guilty of an offence".
I simply note two things: first, one has to prove unfitness to drive. Secondly, it is generally not appreciated by most of the public that under that Act and in law, no distinction is made between alcohol and drugs. Neither is any distinction made between controlled drugs, which are banned, and prescribed drugs, which are, of course, approved. That is one of the reasons why, with the exception of alcohol, whose use is easily detected, that section has largely not been taken into account and implemented by the police in general, although of course there have been specific cases.
I hope we can agree that we should leave prescribed drugs out of this discussion. We certainly left it out of the Bill. That is not to say that there could not be a problem, but it is a separate issue. This little Bill affects only controlled drugs.
The reason we have brought the Bill forward is very simple: we live in an age of the increasing use of so-called recreational drugs among the younger generation. In recent surveys, almost half of all 16 to 24-year-olds had used cannabis at least once. While the Government's attitude to cannabis may be somewhat equivocal, to say the least, as long as it is on the controlled drugs list, it must be included. In any event, it has the capacity to incapacitate a driver to a greater or lesser degree. Some 39 per cent of people in that age group had tried hallucinogens. Other hard drugs were somewhat less of a problem. That is one measure indicating an increasing background problem.
There is some rather awkward anecdotal evidence that seems to indicate a general belief that recreational drugs do not cause loss of driving ability. Because they are not so easily detected, they are believed by some to be less risky to drivers than alcohol. That may be an attitude, but it is an attitude which is prevalent.
There is a worse attitude which I have picked up from one of my Internet reports. There is some evidence that serious drug users will use alcohol if they are going to drive so that if they get stopped they will be liable to be investigated and examined only for driving under the influence of alcohol. They will then be subject to the much less rigorous but, in some ways, more precise investigation that takes place where alcohol is concerned but not the sort that would take place if it was known that they were taking drugs.

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What, then, if we can measure it, is the precise scale of the problem? We are uncertain because there is no requirement for coroners to keep relevant statistics on drug use in post-mortem examinations for road fatalities. An important part of the Bill is to ensure that proper statistics are kept, so that we know precisely what is going on. We feel that the coroner should produce an annual report for his area on fatal accidents involving drivers who have tested positive for controlled drugs. We think that the police should do the same for injury accidents as well.
What do we know? The best indication of the scale of the problem comes from two surveys by the Transport Research Laboratory testing for alcohol and controlled drugs in people involved in fatal accidents in a specific part of the country. It took two periods—1985 to 1987 and 1996 to 1999. Over the two periods surveyed, the detection of cannabis went from 3 per cent to 12 per cent, while the detection of other controlled drugs went from 3 per cent to 18 per cent. That is now a historic examination, but it is a clear indication of trend, certainly the only one we have. If that trend has continued since that time, we should all be concerned.
We come now to the meat of the Bill. Clause 1(1) creates a new offence:
"A person is guilty of an aggravated offence if he drives a motor vehicle on a road while under the influence of any controlled drug in Class A, Class B or Class C of the Misuse of Drugs Act 1971".
That removes the impediment in the Road Traffic Act 1988 that makes the Bill so difficult to enforce. Driving with drugs in the system will be an offence and impairment will not have to be proved.
Your Lordships will of course have noted that the Bill later calls for a field impairment test and blood sample. The recent field impairment test is not to prove that drugs are present or that the driver is unfit; it is to prove that the driver might be under the influence of drugs. The blood test is where the proof will come from. That is a valid system, which will mean that a driver under the influence of drugs who is stopped can be properly tested for the presence of drugs in his system. That will be the offence. These are rigorous, identifiable and enforceable criteria.
Last year's National Drugs Conference of the Association of Chief Police Officers recommended more research into the extent of the problem, drug recognition training for officers and a simple, cheap but effective roadside screening test. One benefit of my Internet search was that I discovered that that would be available in the reasonably near future. The conference also recommended a removal of the requirement to prove impairment and a zero limit for drug driving. The Bill goes a considerable way in meeting the recommendations. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Dixon-Smith.)
1.41 p.m.
Lord Faulkner of Worcester: My Lords, I congratulate the noble Lord, Lord Dixon-Smith, for introducing this interesting and worthwhile Bill. I am grateful to the Royal Society for the Prevention of Accidents for kindly providing me with some briefing on it. I should declare an unremunerated interest as RoSPA's current president. The noble Lord, Lord Brougham and Vaux, a previous president of RoSPA, asked me to say that he agrees with the support that I am giving to the Bill.
As the noble Lord, Lord Dixon-Smith, said in his eloquent opening speech, the evidence suggests that the use of illegal drugs while driving is a growing problem. He referred to the tests carried out by the Transport Research Laboratory over two decades. Despite the clear increase in the use of cannabis and other controlled drugs that was shown by those tests, it remains unclear what proportion of accidents, deaths and injuries are caused, or partly caused, by drugs impairing the ability and judgment of the road users involved. Not least, that is because alcohol was also present in many of these cases, as the noble Lord said. That obviously has an even greater effect on people's ability to drive than does the drug itself.
Cannabis constitutes two thirds of the illegal drugs detected, and certainly affects driving behaviour for a period after its consumption, resulting in impaired coordination, visual perception, tracking and vigilance. Cannabis can stay in the body for up to 28 days, but obviously does not impair driver performance for anything like that amount of time. Roadside detection devices are being developed, although the diversity of the drugs being used makes it difficult to produce a single breathalyser-type test.
People generally accept that they should not drink and drive but probably are unaware of the effects of drugs, both illegal and prescribed, on their driving ability. Millions of people regularly take drugs such as anti-depressants, painkillers, antihistamines and cough mixtures, all of which can have a sedative effect, and yet most of those people probably believe that it is totally safe for them to drive after taking them.
A retired police officer, to whom I spoke earlier today about the noble Lord's Bill, told me that it was not uncommon early in the morning to see drivers nod off at the wheel while waiting for traffic lights to change. He told me that that was a consequence of perfectly legal drugs being taken the night before, such as a sleeping pill, or an antihistamine for a hayfever sufferer. Once drivers relax at the lights, when their concentration can be reduced, the drug's soporific effect kicks in. Clearly, people should be advised not to drive after taking drugs that cause drowsiness. However, that is not an easy message to communicate, especially not in the context of this Bill, which is aimed at people who drive after taking controlled drugs.
The new sentencing guidelines for causing death by dangerous driving, or by careless driving while under the influence of drink or drugs, published by the Lord

1621
Chief Justice yesterday, are particularly relevant here. The noble and learned Lord, Lord Woolf, is quoted as saying that,
"normally the only appropriate sentence for an offender found guilty of these offences is a custodial sentence".
Many police forces are training their officers in field impairment testing and drug recognition training to help them to recognise the physical signs of drugs use, which would provide sufficient evidence to arrest a suspected drug user and take them to the police station for further tests. These developments should be supported, and are contained in the noble Lord's Bill. The drivers most likely to be drug users are also those with the highest accident risk—young drivers who are inexperienced, who arc most likely to take risks and have poor driving attitudes. That is a particular worry.
As the noble Lord said, there is a need for much more research into the whole area of drugs and driving. We need to know much more about which drugs and medicines are being used by drivers and the effect of them on drivers' performance and accident risk. I, too, did some research on the Internet, and I discovered a Department of Transport paper, which states:
"Research in this area has been impeded by methodological, legal and ethical problems. Specifically, there is no standard experimental paradigm, no consistency in reporting format, dose administration or detection method. In short, the research strategy to evaluate the effect of cannabis has been piecemeal. Consequently, firm and reliable conclusions cannot be drawn".
The introduction of an education and publicity campaign to make people—especially groups who are most likely to use controlled drugs—more aware of the dangers of driving while under the influence of them, would also be most desirable. The truth is that the role of both legal and illegal drugs in road accidents is complex and, at the moment, largely unknown. If that ignorance is remedied and research is carried out as a result of the noble Lord introducing his Bill, it will have been worthwhile. I am happy to support it.
1.47 p.m.
Viscount Simon: My Lords, I am delighted that the noble Lord, Lord Dixon-Smith, has introduced this Bill. Hearing his introduction has made me much more convinced of its necessity.
I should, perhaps, declare, as I always do, that I am the holder of a police class 1 driving certificate; that I trained and tested advanced motorists in Australia; I am a member of the IAM; I am a council member of the Guild of Experienced Motorists; and I regularly go out on traffic patrol with various constabularies.
Both noble Lords who have spoken referred to the Transport Research Laboratory report 495, which is important and highly relevant to the future of this Bill and to future Bills. Legislation already exists to prevent drivers from driving under the influence of drink and drugs. Initial trials conducted by the six police forces that undertook special training concluded that the drug influence recognition training—DIRT—is useful, and the field impairment test—FIT—can be put in place to assess the impairment levels of drug users.
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At this stage, I should mention that the daughter of friends of mine, who was 16, was killed by a driver while she was walking along the pavement. The police wanted to test this 16-year-old for drugs. There she was—dead—and they wanted to test her for drugs. I hope that the Bill will rectify that anomaly, because the police said that they could not test the driver for drugs, as it could be construed as harassment. That is appalling.
Of course, some prescription drugs can enhance people's ability to drive in the short term but will, in time, reduce and adversely affect that ability. Notwithstanding this, we must not lose sight of the fact that there are many more drivers involved in collisions who are over the drink-drive limit.
Some police surgeons are frequently placed in a difficult position when called to see a prisoner. They have to determine whether that person has driven a motor vehicle while under the influence of drink or drugs. There can be a very fine line when conducting tests as to whether the word "influence" is appropriate or whether it should be substituted with the word "impaired". The majority of drivers who drink alcoholic refreshments—if I can put it that way—have been told that they may take a certain number of units before there is a likelihood of being over the limit. I suggest that that should be put the other way round: any alcohol impairs the ability to drive, and there is a finite limit which should not be exceeded.
Similarly, that has to be the primary course taken with drugs be they prescribed or illicit. More and more people are taking recreational drugs without taking into account the possible effect that those drugs might have on driving a motor vehicle. They should be warned of the consequences of drug driving. In reality, however, will they take any notice of such warnings? I very much doubt it.
Now that I have got that off my chest, I shall return, albeit briefly, to the Bill. The insertion after Section 40A of the Road Traffic Act 1988 requires a driver suspected of committing a moving traffic offence to take a field impairment test or have a blood sample for analysis or both in order to establish whether or not that driver's ability to drive is impaired due to taking a drug. However, without any sanction, should the suspected person refuse "without good cause", the provision would be fraught with problems—and therefore, at the moment, of little relevance.
It seems to me that, as the noble Lord, Lord Dixon-Smith, said, the purpose of the Bill is more concerned with the gathering of information and funding than anything else. However, if that leads to other, more specific legislation sometime in the future, it has my full support.
1.52 p.m.
Baroness Walmsley: My Lords, from these Benches we welcome the Bill and congratulate the noble Lord, Lord Dixon-Smith, on his initiative in bringing it before the House.
About a year ago, my party published its policy paper on drugs. I was the chairman of the working party that put the policy together. An important

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chapter in that paper laid down as our party policy pretty much what is in this short but important Bill. However, it also included, in a way that the Bill does not, reference to the impairment of driving after using legally prescribed drugs. It recommended that the police should undertake roadside tests to detect whether the driver has any impairment that prevents him or her from driving safely. It recommended also that further research should be done and evidence gathered. Most importantly, however, it recommended that the public should be made aware of the dangers of driving when their judgement could be impaired by any drugs, either prescribed by a doctor or used recreationally or even illegally.
I hope that the House will forgive me if I briefly repeat some of the points made by the noble Lord, Lord Faulkner of Worcester. I do so only to underline how much I agree with him on many of the points that he made.
Unfortunately, there is such a wide range of drugs used in this country that, even if quick roadside test kits were available, they would fill up the whole boot of a police car and the officer would never know which one to use. So the sensible thing is to look at the effect rather than the cause. That is what the Bill describes as a field impairment test.
Despite the fact that more research needs to be done and more information gathered, it is pretty obvious that we have a major problem with drug-affected driving. A recent survey of club goers in Scotland found that 85 per cent of them had taken drugs and then got in a car to drive home. Almost one person in every five who dies in road accidents has some sort of drug in their system.
Knowingly or unknowingly, many people are driving under the influence of drugs which have very serious effects. Cannabis extends the perception of time and amphetamines shorten it. Both can affect response times. Amphetamines can make a person more confident and aggressive—an unfortunate attitude when you are behind a wheel. Prescribed sedatives such as Valium and Temazepam slow a person down, as does alcohol. Sleeping pills, some antihistamines, some flu cures and mental illness medications can affect the ability to drive safely. As the noble Lord, Lord Dixon-Smith, said, research by the Transport Research Laboratory has shown an increase in prescription and over the counter drugs in the bloodstream of accident victims. And yet the general level of awareness among the public about this danger is very low.
However, the field impairment tests can really work and the training for officers is very effective. Fifteen officers in the Thames Valley Police, for example, have been trained to do the tests, which include checking the eye pupil size, testing the perception of 30 seconds, ability to walk a straight line, stand on one leg and touch their nose with their fingertips with their eyes closed—but not all at once, I trust. Some of us might feel that we could not do that even when stone-cold sober. However, those simple tests are very effective as an indicator of impaired ability to drive safely. It is
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also important for officers to be able to detect whether a suspect has been using particular types of drugs. Some officers have undergone the drug influence recognition training and a study at the Transport Research Laboratory in Crowthorne has supported the value of that, saying that it has a very high success rate.
However, following the field impairment test, it is important that further tests are done to ensure that a driver has genuinely taken a drug that impairs his judgement. There are unfortunately, as has been mentioned, some problems with blood tests. Drugs such as GHB—the so-called date rape drug to which we referred in the earlier debate—disappear from the bloodstream in 12 hours, making it very difficult for the police to prove that it has been administered to a rape victim. However, as the noble Lord, Lord Faulkner of Worcester, said, cannabis can give a positive blood test many days after it was taken and can be detected long after its real effects on judgement have gone away. Those tests therefore need to be very carefully interpreted.
I welcome the part of the Bill that asks for the reporting of fatalities by coroners and police. However, it must be remembered that fatalities are only the tip of the iceberg, because cars are much safer these days, protecting the driver with airbags and anti-crumple body frames. Also, the better trained paramedics with good quality equipment can often save a life if they get there quickly, thank goodness. We need more information than just fatalities, which is why I welcome Clause 2(2)(b).
The Government are clearly aware of the problem, since one of the questions that drug action teams have to answer is,
"Please detail how you propose to address drug use by road users?"
However, in addition to the Bill, what is clearly needed is a big public education programme and clearer warnings on the labels of medicinal drugs about their potential to affect driving. Many organisations, such as the fire service and the British Standards Agency, have also shown their desire for more information and help to deal with this problem. I know that because they are two of the many agencies that have approached Councillor Diana Buckley Carpenter, from Wokingham, an enthusiastic and effective campaigner on this subject following a bad accident that her daughter suffered. I am grateful to her for the very helpful information she has provided to me over the past several years. Hard working though she is, however, we cannot just go on relying on the good will, commitment and knowledge of people like her to provide agencies with the information they need on this important subject.
Perhaps the Minister can tell us what resources the Government plan to make available for education programmes in this subject. I hope that he will give an encouraging welcome to the Bill and I look forward to his reply.
1.59 p.m.
Baroness Anelay of St Johns: My Lords, I also congratulate my noble friend Lord Dixon-Smith on introducing the Bill and on putting the case so convincingly. When my honourable friend Mr Nick Hawkins introduced it last month as a 10-minute rule Bill in another place, he made it clear that he had the run support of the Conservative Front Benches in both Houses. He also pointed out that the work he is doing is supported by the AA, the RAC Foundation and the BMA. I was glad to hear from the noble Lord, Lord Faulkner of Worcester, that the work is supported also by RoSPA.
As my noble friend Lord Dixon-Smith has made clear, we have had the benefit of debating these issues on a previous occasion, led by my noble friend Lord Attlee when he moved an amendment to the Police Reform Bill last year. The amendments he put forward then are as relevant today and have been elucidated carefully by other noble Lords.
After all, society now generally takes a dim view of drink-driving. There is no sympathy for a motorist convicted of drink-driving. However, as noble Lords pointed out, many motorists are very much unaware of the potential effects of drug-driving on their driving ability. They lack knowledge of the legal position in relation to drug-driving. Indeed, it is a serious offence. Section 4 of the Road Traffic Act 1988 covers drug-driving. It covers,
"A person who, when driving or attempting to drive a motor vehicle on a road or other public place, is unfit to drive through drink or drugs is guilty of an offence".
Some may ask why we should go further—I noted a quizzical look on the face of the noble Lord, Lord McIntosh of Haringey—as the law already covers this issue in relation to all drugs, irrespective of whether they are controlled drugs prescribed by doctors, that may have an impact upon a person's ability to drive. The law currently makes no distinction between illegal and prescribed drugs. It does not state a limit for drugs levels as it does for alcohol. That is partly understandable given that there are so many drugs around but only one chemical type of alcohol, although there are many flavours of it. However, I hope that no one would use that factor as an argument against making an extra effort with regard to diminishing drug-driving.
The noble Baroness, Lady Walmsley, rightly and very properly referred to the problems of people driving with prescribed drugs in their system. I take anti-histamines at certain times of the year on a fairly regular basis. Indeed, about 30 years ago when I started taking them I was told that one day I would grow out of the condition that requires me to take them. I am still waiting but I live in hope. I do not take as many as I did then but certainly when I started taking anti-histamines before the 1988 legislation was in place and before I learnt to drive, there is absolutely no doubt that I would have been unfit to drive. The drugs then had not been developed to the extent that they are now. I certainly would have had to change the drugs I took in order to be able to drive safely. But that level of awareness is simply not present in the public
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mind with regard to something as simple as antihistamines or something far more complex such as sleeping pills that may be prescribed.
Just because that problem exists does not mean to say that we cannot tackle the problem of those who take illegal drugs. My noble friend is right to bring forward the Bill to target—as a Private Member's Bill should—a specific issue that can be readily identified and in relation to which there is a gap in legislation.
Noble Lords referred in some detail to research and statistics and therefore it would be improper of me to repeat that. They made their point forcefully. The Bill provides a practical way of dealing with the consequences of drug-driving where controlled drugs are being taken. It makes using a motor vehicle while under the influence of a controlled drug an aggravated offence. It gives a policeman the power to carry out a field impairment test or require a blood test if he reasonably suspects that a driver is under the influence of controlled drugs. It makes provision for the keeping of records that would help us to track the seriousness of the problem. The noble Viscount, Lord Simon, and the noble Lord, Lord Faulkner of Worcester, made the important point that that part of the Bill would give us the vital impetus to carry out further research which would be of value across the board in trying to reduce accidents on the road.
This is a valuable Private Member's Bill. I support it and I hope that the Minister will welcome it.
2.4 p.m.
Lord McIntosh of Haringey: My Lords, I am grateful to the noble Lord, Lord Dixon-Smith, and to all who have taken part in the debate. They have drawn attention to a problem which is recognised. It is clear from research that it is increasing in the sense that misuse of controlled drugs is increasing. Clearly, these are issues with which we must be concerned in road safety terms.
I want to show, first, that the Government are very much seized of the problem which the Bill addresses; secondly, that we have done rather a lot about it; and, thirdly, that there are more things which we can, and should be, doing. The evidence that we are seized of the problem is clear from the Department for Transport's Road Safety Strategy. Without going into detail, the strategy recognises the need for further research, for support for the police in enforcing existing legislation, improved police powers and targeted publicity and education. I shall say more about all of those points.
There are three strands in this argument: first, the extent of the problem; secondly, the effects of drugs on driving; and, thirdly, enforcement issues. On the extent of the problem, noble Lords mentioned the research done by the Transport Research Laboratory. It is certainly the case that of victims of fatal road accidents and, indeed, driver victims—oddly enough, the statistics are about the same—research shows that 18 per cent show signs of illicit drugs, mainly cannabis—I shall come back to that—and 6 per cent show signs of medicinal drugs. I shall not use the term "prescribed drugs" as some of them are drugs that are available over the counter.

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Clearly, there is some evidence on that point. But the difficulty about the statistics that the Bill calls for is that there is no statutory limit which covers the whole range of drugs which can affect driving. It is not that we are unwilling to make a statutory limit or that there is a resource problem, but that there are scientific problems in defining a statutory limit. In other words, where the Bill states that there should be blood tests and uses the phrase "tested positive", which is what is used for alcohol, that simply does not work across the wide range of drugs, both controlled and medicinal. Both my noble friend Lord Faulkner and the noble Baroness, Lady Walmsley, recognised that point. It is not that we are dragging our feet about statistics, but that there are genuine problems. Other than stopping people at random when they are driving and forcing them to take impairment tests and various kinds of physical tests, there would be very great difficulty in extending the research beyond what has been done so far.
The trouble with the research that we have, and any research that we could do, on the effect of drugs on driving is that it does not give evidence of causation. We have to look at impairment of driving rather than the presence of drugs that might or might not impair driving. Again, the noble Baroness, Lady Walmsley, gave the example of cannabis, which stays in the bloodstream for up to 28 days, long after there could be any impairment effect on driving. The area is hugely difficult, and I am afraid that it is not adequately addressed by the analogy in the Bill between alcohol and drugs in terms of testing and impairment.
As has been said, 26 police forces are already engaged in programmes of training on enforcement. They are difficult programmes that take a couple of days, and are of two kinds. The first is on drug recognition—the outward signs of the presence of drugs—and recognition of which kinds of drugs cause which behavioural or physical effects. The second is on the use of field impairment testing. I do not need to go into that as the noble Baroness, Lady Walmsley, kindly did so for me, but there are seven alternative tests. We recognise the problem that, at the moment, there is no compulsion at the roadside on a driver to undergo impairment testing. We recognise that new legislation will be necessary to enhance the police powers for screening, so that we can screen suspect drivers for drugs.
There are hopeful signs. I am glad to say that the police have been able to issue a specification to manufacturers who could produce roadside testing devices. They would not necessarily take blood samples, but could use other intimate samples, of which the most obvious is saliva. The problem will always be that any testing device will test one drug or a range of drugs, but different testing devices will test different drugs and different ranges of drugs. It is really quite difficult to find something manageable, portable and useable at the roadside.
That leads us to have to rely on the judgment of the police as to whether it is appropriate to take a driver in for more elaborate testing for drugs, with the intention
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of prosecution in order to reduce road accidents. What is important is reaching a judgment. If the police have available field impairment tests and, as we can develop them, physical tests, they can increase their confidence in reaching a judgment on when a driver may be impaired, on when it might be due to drugs, and on being able to make arrests in the end. That is the scope of the problem.
There are problems with the Bill, all of which have been recognised in the debate. Indeed, the noble Lord, Lord Dixon-Smith, recognised some of them. The Bill states that there should be an offence of driving "under the influence" of a controlled drug. Section 4(1) of the Road Traffic Act 1988 contains the offence of being unfit to drive through drink or drugs. Section 4(5) defines what unfit means as,
"for the time being impaired".
We think that there is a better test and offence in that Act than in the Bill because "under the influence" is not really measurable.
I understand what the noble Baroness, Lady Anelay, says about a Private Member's Bill being restricted, but there is no rational justification for the Bill's including controlled drugs but not medicinal ones that can impair driving.
A third problem is that, as my noble friend Lord Faulkner recognised, the Bill imposes lower penalties than those for offences under Schedule 4 to the Road Traffic Act. As we were reminded, the noble and learned Lord, Lord Woolf, spoke only yesterday in favour of heavier sentences for driving dangerously when impaired. Therefore, there are difficulties there.
I have problems with the implication in new Section 40C that there can be a level or statutory limit which would allow the phrase "tested positive" to be effective. That really is a difficulty in relation to the Bill. In addition, the Bill provides for more resources for research. We all entirely agree with that, but it is not resources that are restricting researching at present.
In conclusion, we believe that there is a need not to have a new offence, but to make the offence work. We believe that means that there will have to be powers to enforce roadside impairment testing and roadside drug screening, both of which are referred to in the Bill. I recognise and welcome that. I can never promise what will be in future legislation or when future legislation will be dealt with, but we intend to address both those issues in future legislation as soon as possible. Meanwhile, although I cannot offer support for the Bill, I welcome it as a serious contribution to debate on an important subject.
2.15 p.m.
Lord Dixon-Smith: My Lords, I am most grateful to all who have taken part in this small debate at what is now becoming a somewhat late hour on a Friday afternoon. It has been an extremely good debate. I do not intend to try to answer every point raised in the names of individual Members, although I shall mention one or two. But common themes have run through the remarks.

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The first is the lack of research carried out in this field and the need to have more knowledge and information. The second theme is the general lack of public information or, indeed, of public concern about the issue of driving under the influence of drugs. There is the specific and huge problem of prescription drugs, which is specifically left out of this small Bill. We touched on the issue of police training, and it is very gratifying to hear what has been done.
I am particularly grateful for the response of the noble Lord, Lord McIntosh, because it has given us a very detailed picture of the work that the Government are doing. I certainly did not bring forward the Bill with any view that the Government were not doing as they should. That was certainly not my intention. The purpose of introducing the Bill was to give everything even greater impetus.
One or two questions were raised both by the noble Lord, Lord McIntosh, and the noble Viscount, Lord Simon, about the problems of enforceability of the requirement to test. It seems to me that we might perfectly well be able to deal with that during the passage of the Bill, assuming of course that it makes progress. We could deal with those matters, as perhaps we could with the question of sentencing, if that is not appropriate in a Private Member's Bill. But sentencing is already dealt with in the Bill and the scales could be adjusted to match what is required under the Road Traffic Acts.
The purpose of the Bill is serious: it is to deal with the issue of driving under the influence of controlled drugs. It makes driving an offence if a person has any of those drugs in his system. I have heard nothing that convinces me that we should not treat the Bill with a confident hope that it will make progress.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Equality Bill [H.L.]
2.19 p.m
Report received.
Schedule 2 [Protected areas of activity]
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 1:
Page 89, line 27, at end insert—

"(ab) is so structured, and conducts its affairs in such manner, that members of the club do not constitute a section of the public; and"

The noble Lord said: My Lords, Amendment No. 1 deals with a matter which needs to be put beyond doubt. It is really a technical amendment which should engage no controversy. Clubs are bodies that may he liable for discrimination in various guises. One way is where a club is not a properly run club, which screens members on the basis of personal selection but essentially allows any member of the public to become a member. It has always been clear under the Sex Discrimination Act and the Race Relations Act that a club of that character, which does not have a proper screening process is a person concerned with providing
1630
goods, services and facilities for the public or a section of the public and is therefore liable if it discriminates in that capacity.
On looking again at the Bill it seemed that it was possible to argue that we had not maintained that distinction to ensure that there was liability in that kind of situation. Amendment No. 1 makes it clear on page 89, line 27, by adding words to the end of paragraph 41 that deal with that situation. As I say, it does not really raise any new point; it simply makes clear that which I think was already inherent in the Bill. I beg to move.
On Question, amendment agreed to.
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 2:
Page 89, line 38. leave out paragraph 42 and insert—.
"Exclusion for members clubs limited to persons who are members of particular groups
42 (1) There is excluded from the protected area of activity specified in section 6(1)(f) the management of any members club that is carried on otherwise than for profit. if the principal purpose of the club is to enable the benefits of membership of the club to be enjoyed by persons who arc members of any one or more of the following groups—

(a) any group of persons identified by reference to a particular age group into which they fall;

(b) any group of persons identified by reference to their race, nationality or ethnic or national origins;

(c) any group of persons identified by reference to a particular disability they have or have had;

(d) any group of persons identified by reference to their family status;

(e) persons generally who have undergone a gender reassignment;

(f) any group of persons identified by reference to their marital status;

(g) pregnant women generally;

(h) any group of persons identified by reference to their religion or belief; and

(i) any group of persons identified by reference to their sexual orientation.

(2) But the exclusion in sub-paragraph (1) does not apply—

(a) in relation to any members club if its principal purpose is to enable the benefits of membership of the club to be enjoyed by persons who are members of any group defined by reference to colour; or

(b) to exclude anything done for a reason or reasons relating to any prohibited ground that falls outside the scope of such restrictions as are reasonably necessary to give effect to the principal purpose of the club.

(3) In determining the principal purpose of a members club, regard is to be had to—

(a) the extent to which the affairs of the club are conducted in such a way that the persons primarily enjoying the benefits of membership are persons of the particular group concerned;

(b) the essential character of the club; and

(c) any other relevant circumstances."

The noble Lord said: My Lords, Amendment No. 2 deals with a matter which was raised by the noble Lord, Lord Borrie, in Committee. I am grateful to him for having raised this issue. Again, I do not think it is controversial, but it has been our approach in relation to this Bill whenever any defect or improvement has

1631
been raised by any Member of the House to seek to give effect to what has been suggested where possible. Noble Lords will know that we have done that, for example, with amendments to deal with disability discrimination in a more satisfactory way.
The point raised by the noble Lord, Lord Borrie— what he described as his first concern—in Committee, relates to paragraph 42 on page 89, which, in deference to respect for personal privacy and private life, excluded members' clubs from liability if they were clubs for racial and religious groups. The noble Lord, Lord Borrie, asked why that should not apply also to other vulnerable groups, for example, the young, the elderly, gay and lesbian groups, and so forth. We thought that we had dealt with that, in a slightly indirect and complex way, elsewhere in the Bill. But, having thought about it, it seemed to us better to replace paragraph 42 with the words in the amendment which, as your Lordships will see, spell out each of the excluded clubs where the group of persons for whom they are providing benefits are defined by reference to age, race, family status, gender reassignment, marital status, pregnancy, religion or belief, or sexual orientation. We have still maintained, as in the Race Relations Act 1976, liability if a club imposes a colour bar. I very much hope that the concern of the noble Lord, Lord Borrie, has been met in the way that I have described. I beg to move.
Lord Borrie: My Lords, in Committee the noble Lord, Lord Henley, and I proposed an amendment to remove from the Bill all provisions relating to members' clubs. I was glad of the exemptions from anti-discrimination laws that the Bill, as originally drafted. provided for single-sex clubs, single ethnic and single religious group clubs. But I asked why the same should not apply to clubs confined to specific age groups or people of particular sexual orientation—for example, pensioners' lunch clubs, youth clubs or gay clubs.
The noble Lord, Lord Lester, has now provided exemptions for all those groups and the amendment before us seems to be appropriately comprehensive. I am glad of that because, as your Lordships' know, I have taken the view with regard to the Bill—and indeed the earlier Bill presented by my noble friend Lord Faulkner of Worcester—that it is wrong in law for the law to involve itself and to intervene in how people choose to associate with others in their private social lives.
I believe that it is quite natural for people—at any rate sometimes and on some occasions—to seek out the company of their own kind in terms of their own age group, sex or whatever. It is quite wrong for the law to intervene and prevent it.
I would still prefer the Bill to have no application at all to members' clubs because the definition used to provide exemption for certain clubs—now admittedly more extensive if the amendment is passed—which is dependent on locating the "principal purpose" of the club, may sometimes be difficult to apply.
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I continue to be concerned because the noble Lord's amendments do not cover another point I made in Committee: for example, if a male club allows women to take up any form of membership, such as associate membership, it must grant them precisely the same rights and facilities. In such circumstances the possibility of a men-only bar in a club will be prohibited unless at the very least there is an equivalent women-only bar. I am not sure whether that would be sufficient.
My advice to working men's clubs that have in recent years, perhaps tentatively, opened their doors to women on a basis other than full membership—and that applies apparently to the majority of them—is that they will need to consider shutting their doors once again to any form of female membership if the Bill becomes law. I have other continuing concerns. If the Bill becomes law, if any kind of club offers, for example, a lower subscription to those under 30 in order to attract less well-off, it is assumed, younger members, that may contravene the Bill because it discriminates on grounds of age against those over 30.
Of course today I shall not pursue the matter further, but I hope that the sponsors of the Bill will not boast about the unanimous and apparently unquestioning Front Bench support for the Bill. The Liberal Democrats are amazingly free of any Front Bench presence at this moment. However, as with any government Bill of comparable length and complexity to this, each of the Front Benches would have displayed their customary diligence and probing. I happen to have an interest in a Bill that is being considered in Grand Committee. It is the Water Bill. It attracts no more than perhaps a dozen interested persons. None the less, both Front Benches have done an incredibly probing job in examining the Bill word for word, clause for clause, as they normally do. A glance at the Marshalled List of amendments to the Water Bill will reveal that.
It is a shame that on this occasion the Front Benches have failed to subject the Bill to any real scrutiny. That may say something about the expectation of whether the Bill will make further progress. but just because we deal with the Bill on quiet Fridays, because few people are sufficiently interested to take part and few amendments have been tabled at any stage, I hope that the noble Lord, Lord Lester of Herne Hill, will not hereafter imply that he has mass support for his Bill.
2.30 p.m.
Lord Cope of Berkeley: My Lords, I tiptoe carefully into this debate, following in the footsteps of my noble friend Lady Buscombe, who cannot be here today and sends her apologies to the House and to the noble Lord, Lord Lester. However, as the Front Benches have been mentioned, I thought that I should speak at least briefly to make one or two points.
First, perhaps I should declare an interest as a member of a variety of associations of 25 persons or more for various purposes that would fall into many of the relevant categories. The noble Lord, Lord Lester, is making a valuable contribution in helping us all to

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struggle through the tangled legal undergrowth that is essential to a Bill of this character. Amendment No. 2 takes us all a stage further.
The noble Lord, Lord Borrie, started by describing the amendment as perfectly comprehensive, but then seemed to think that it was not as comprehensive in its coverage as he would want. I noticed that in new paragraph 42(1)(b), there is an exclusion for clubs the members of which are identified by reference to their race, nationality and so on.
I happen to be a vice-president of the Royal Society of St George. We exist to boost England, if I may put it that way—I do not want to set out all the objects of the society in full—but the society is not restricted to persons who are English. Anyone who supports the objects of the society may join. We would therefore not have the protection otherwise provided by new paragraph 42(1)(b). We do not need that protection because, as far as I am aware, there is nothing in the rules of the society that would fall under the Bill. However, that demonstrates one difficulty of trying to define membership in such a way and of being so precise.
New paragraph 42(1)(i) provides protection for a group of persons identified by reference to their sexual orientation. I understand from reading the debate in Committee, and so on, that that is intended to allow gay clubs, for example, to function. But it seems to me that that might also permit a club that would otherwise fall under the Bill to put up a notice saying, "No gays". That would be discrimination of a kind that might allow it through the terms of the Bill. As your Lordships well know, I am not a lawyer, but someone who knows more about the law than I should consider that.
My final point relates to new paragraph 42(2)(b). Its wording is extraordinarily complicated. If I can interpolate from the amendment, it states that:
"the exclusion in sub-paragraph (1) does not apply … to exclude anything done for a reason … outside the scope".
The number of negatives in that make it extremely difficult to understand. I suggest to the noble Lord, Lord Lester, that he try that sub-paragraph out on the Plain English Campaign to see whether it could assist in achieving clearer drafting. I think that I know what it is intended to do. As it comes from the noble Lord, Lord Lester, I suppose that it will achieve its purpose in legal terms—I know of his legal distinction. But it is a little more difficult for ordinary mortals such as me to follow it through.
I hope that those slightly detailed points will reassure the noble Lord, Lord Borrie, that Her Majesty's Opposition are willing to look at some of the detail sometimes. Clearly, if the Bill were to come back as a government Bill in this or a similar form, we would do our best to draw attention to some detailed points while agreeing in principle with the objective of this amendment, for example.
Baroness Thomas of Walliswood: My Lords, I had not intended to speak today and I refrained from doing so in Committee, because I am aware that my
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noble friend Lord Lester is more than capable of defending himself under any circumstance whatever. But since I was challenged by the noble Lord, Lord Borrie, to show Front-Bench support for my noble friend's Bill, I stand here to say just that: we support the Bill. As the Liberal Democrat spokesperson on women, I certainly feel no obligation to challenge the wording of my noble friend's Bill.
Lord McIntosh of Haringey: My Lords, I expressed the Government's view of this Bill in a rather lengthy speech at Second Reading and I do not propose to add anything. But the noble Lord, Lord Borrie, should not draw any conclusions, favourable or unfavourable, from my silence.
Lord Lester of Herne Hill: My Lords, I am very grateful to everyone who has spoken. Briefly, I shall deal with some of the points. First, in defence of the Government, I fully understand the position that they have taken, as I am sure the House does. The position has been expressed by the noble Lord, Lord McIntosh, and by the other Minister who spoke at an earlier stage. I shall summarise it as follows: the Government take the Bill very seriously. They are not in favour, at this stage of their policy development, of having a single equality Bill. They are instead busily working on the regulations that will come before Parliament in May, as I understand it, to give effect to the EU equality directives that cover some of the ground dealt with more widely in this Bill. I am sure that the civil servants dealing with the matter will look at the Bill and think about some of the ways in which it approaches problems to see whether they believe those provisions to be sensible or otherwise.
So I am in no way discouraged by the fact that neither the Government nor the main Opposition have tabled a series of amendments. Indeed, in a previous debate, the noble Baroness, Lady Buscombe, was kind enough to indicate very clearly, as did the noble Lord, Lord Cope, today, that the Conservative Party is favourable to simplifying the law, producing coherence and greater accessibility, and therefore approves of the Bill's aims without necessarily subscribing to every part of it.
Secondly, I am glad that the noble Lord, Lord Borrie, believes that I have hit the target as regards his first concern—not about sex discrimination in clubs, which I shall come to in a moment. As I understand it, he is favourable to Amendment No. 2 as it stands.
I shall explain some matters that the noble Lord, Lord Cope, raised about the amendment. It applies only if the principal purpose of the club is to enable the benefits of membership to be enjoyed by persons who are members of any one or more of the groups listed. For example, it would apply to a gay club or a heterosexual club—a club of a particular sexual orientation—only if its principal purpose were to give benefits to straight members or gay members. If it did that, it might be offensive, but it could put up a notice excluding those of a different sexual orientation. That is how it works.

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There was also criticism of the un-plain English in paragraph 42(2)(b). I take full responsibility for that, even though it was drafted by a highly skilled former parliamentary counsel. The purpose of the subparagraph is plain enough. It is to stop discrimination leaking unnecessarily into places that it should not, as a result of an over-broad interpretation of the exception. I shall look again to see whether even plainer English could be used to deal with that.
The only other point is the familiar one raised repeatedly and always forcefully by the noble Lord, Lord Borrie, about sex discrimination in clubs. As noble Lords know, paragraph 43 excludes from the scope of the Bill single-sex clubs, run for profit or otherwise, but keeps within the scope of this Bill what was in the Bill introduced by the noble Lord, Lord Faulkner of Worcester. That Bill was supported by the Government and by those of us on these Benches and the Conservative Benches. I hope that the noble Lord, Lord Borrie, will not mind my describing him as being a bit like Captain Ahab with Moby Dick in pursuing the issue again and again. We all understand well what his position really is.
What we are doing is not coercive; we are saying that, if a club, as a matter of the free choice of its members, allows women as well as men to become members or associate members, it must treat them equally. Its constitution and its workings must focus on the fact that that will be the principal object. If that is the principal object, the club will be liable. If the club's main object is to give benefit to women or to men, it will be beyond the scope of the Bill.
The noble Lord, Lord Borrie, does not like the drafting of the purpose test in paragraph 43(3) and made that clear on the last occasion, although he has not tabled an amendment and nor have I. I have not tabled an amendment to introduce a different test because, during the debates on the Bill introduced by the noble Lord, Lord Faulkner of Worcester—I read them after our previous debate in Committee—the noble Baroness, Lady Scotland of Asthal, commended the form of words in that Bill as being fit for the purpose. Having read the debate again, I decided, on reflection, that what was in this Bill and in the noble Lord's Bill represented the right approach.
Strictly speaking, I am out of order even to mention all that, as no amendment that deals with that subject has been tabled. However, I thought that, out of courtesy to the noble Lord, Lord Borrie, I should explain why I have dealt with the first of his concerns but will never be able to deal with the second of his concerns. My position, like that of those on both Front Benches, is that a club that allows both halves of the human race to be members should treat those members equally—in the same bar, in two separate bars or whatever. That is not an invasion of personal privacy. In that situation, equality trumps personal privacy and personal choice.
On Question, amendment agreed to.

General and Specialist Medical Practice (Education, Training and Qualifications) Order 2003
2.44 p.m.
Baroness Andrews Baroness Andrews rose to move, That the draft order laid before the House on 3rd March be approved [13th Report from the Joint Committee]
The noble Baroness said: My Lords, I beg to move that the draft order laid before the House on 3rd March be approved.
The order has already been considered and passed by the Scottish Parliament, on 20th March. That was required because some of the matters covered are devolved. The devolved administrations are, for the first time, given the power to appoint members to the UK body that supervises postgraduate medical education. The order has also completed its stages in another place, and it now falls to this House to consider it. In my view the draft order is compatible with the convention rights.
I turn first to what the order will achieve. Noble Lords may not all be aware of just how complex postgraduate medical education actually is. Many organisations are involved at different stages. At present, there is a lot of potential for confusion. I hope to clear some of that confusion away.
Noble Lords may, however, be aware that the Joint Committee on Postgraduate Training for General Practice has formally supervised general practice training since 1981. Since 1995, the Specialist Training Authority of the medical Royal Colleges has been responsible for supervising specialist training. My noble friend Lord Turnberg and the noble Lord, Lord Patel, have served with great distinction as chairmen of the STA. Both bodies have made a significant contribution to the development of medical education and training. They have done as much as they could within the current limits of the regulatory system. I want to place on record my appreciation of their work over the years.
This order represents the fruit of three years hard work and close consultation at every stage between the Government and the medical profession. It establishes a new body which will reform the way in which we train and educate the doctors of the future so that they are better able to meet the needs of both patients and the NHS. This body will act independently of government. It will be a professional and authoritative body, fully in keeping with the principle of professional self-regulation. Government will have a limited role in the formative process. They will ensure that the board is set up and appointed, then step back to allow the board to get on with its work.
There are default provisions, but I stress that they can only be used should the board ever fail to perform a function. Default powers exist in the current legislation. They have never been used and we do not anticipate having to make use of them in any ordinary

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circumstances. We confidently hope and expect that this will be the case with the default powers in this order.
Perhaps I may also illustrate the limits to the Secretary of State's power. At various times it has been asked whether the Secretary of State for Health could compel the board to include or remove specific training requirements if he so wished. The Secretary of State would, and is required by ordinary administrative law principles, exercise his powers reasonably. Any decision that the board had failed to perform a function that it should have performed would have to satisfy this principle. It would not therefore be open to the Secretary of State to exercise his default powers where the board had considered and with good reasons decided on specific training requirements.
The reforms will introduce a more flexible system for regulating the education and training of doctors, in which the medical Royal Colleges will play a leading role. The new body will ensure that standards are maintained and developed for training doctors for independent medical practice in NHS primary and secondary care. However, a major change, in keeping with the changing public emphases, is that for the first time the NHS and the public will be well represented.
Other significant changes achieved by this order will be that arrangements for training general practitioners and specialists will be brought together in one organisation; that there will be a new GP register to sit alongside the specialist register; and that faster, fairer and more effective processes will be introduced, which will assess doctors on the practical demonstration of their competencies, in addition to their medical knowledge and their qualifications.
I emphasise what that last important change will mean. For the first time, these assessment processes will address properly the needs of specialist doctors who are not European Economic Area nationals and have qualified or trained outside the EEA. This will benefit thousands of doctors already working in the NHS—many of whom are in the staff and service grades—and are prevented front progressing in their careers because the current system does not allow their experience to be taken into account, together with their training and qualifications, in determining whether a particular doctor has met the required standard.
Doctors are very well aware already of the benefits that this new legislation will bring. As a recent national conference of staff and service grade doctors demonstrated, we have received many supportive responses to our consultations from individual doctors—the majority of whom have undertaken specialist training or have been awarded specialist qualifications outside the EEA. All are already working in the NHS in the staff and service grades. All are currently restricted in developing their careers because the current system does not allow their experience to be taken into account. This will change under the order.
We will have a fairer and a more transparent system. It will ensure that our already high standards in medical education are maintained and developed. And, finally, the order itself is a more flexible and adaptable piece of legislation which will make it easier to make any future improvement to the system of postgraduate medical education and training in the UK. Any such changes will of course be a matter for the board itself to determine.
Why do we need these changes? Let me briefly set out the background. Our medical training system is rightly admired across the world, but this order recognises that it is now right to develop it further to ensure that our future doctors are able to deliver quality services in the ways that they and their patients want. This must be done in partnership with other members of the healthcare team. Furthermore, the medical education and training system must be flexible and adaptable, and capable of responding quickly to changes in the NHS and to developments in education—for example, in improvements to methods of assessment and training.
I mentioned earlier that the system is already very complex. Let me try to pick out the key elements of the new system—one which will be less confusing. The new board will set standards and formally supervise the entire system—ensuring that the doctors it certifies have been trained to the standards it has set. But it will not be responsible for managing, funding or organising the training. That job is, and will continue to be, handled largely by the postgraduate deans in the NHS. Indeed, the system would not work without their invaluable contribution. But the board is the standard-setter, and it will rely heavily in this respect on the work of the Royal Colleges. It will be for the board, based on the advice received, to grant or withdraw approval from training programmes, and to award certificates to individual doctors. That will bring together both general practice training and specialist training. There will be one certificate for both types of doctor.
This is not change for change's sake. We recognise that we must not lose the many excellent features of our current training system. The order will ensure that this does not happen. For example, it clearly recognises the established role and expertise of the Royal Colleges. It ensures that the board and the GMC will co-operate closely with each other. But we should change those aspects of the present arrangements which do not work as well; for example, the current separation of general practice from the rest of medical training and the way that colleges sometimes work almost in isolation from each other.
Reforms of the magnitude in this order need to rest on the broadest possible support. We have had that support from the profession itself as well as the patients and the wider public. We have consulted twice on these reforms. It has been a three-year process. The issues raised in the responses received—there have been more than 300 in total—have helped to shape the details of our policy. As a result of these two consultation exercises, we have probably made well over 100 changes in total. Involving colleges and other

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stakeholders in our working groups has been designed to achieve this consensus and has informed those changes.
The response to consultation showed a clear consensus that change was needed. We have, I believe, met the concerns which were initially expressed by the medical Royal Colleges and others. This is clearly demonstrated in the recent memorandum of understanding agreed between the Department of Health and the Academy of the Medical Royal Colleges in January. It marks a significant step forward in this direction. The colleges agree that there is no need for each and every one of them, and their faculties, to be represented on the board itself. They know that they will be strongly represented on the committees and sub-committees which the board will set up to tackle the detailed work in relation to each medical specialty.
We are profoundly appreciative of the hard work and of the support of the professional and academic medical leaders. Professor Peter Hutton, chairman of the academy, is a firm supporter of these proposals. He recently said that,
"sensible negotiation has resulted in a very practical piece of legislation … the way in which this exercise has progressed forms a good model for future working between the Department of Health and the Colleges".
His view is backed by the other college presidents, six of whom are on departmental working groups helping to do some of the preliminary work to implement the order.
Let us look at what has been said by the colleges and the medical profession. The Academy of the Medical Royal Colleges, which represents all the colleges in the UK, states that it,
"strongly supports the philosophy",
behind these changes and confirms that,
"all the colleges, without dissent, are in agreement".
The colleges in Scotland have put on record,
"that the Order offers a framework for continued constructive collaboration to maintain, and improve, the standard of health care in the UK … there are now opportunities for us to develop Scottish initiatives contributing to an overall UK framework".
The GMC has said that:
"We support the Government's commitment to reform postgraduate medical education and training. The creation of PMETB offers an opportunity for significant progress towards ensuring that both the training and service needs are met".
The Royal College of General Practitioners has said:
"We believe that the PMETB offers real opportunities and benefits for the development of medical training".
The order is now clearly recognised and accepted as an important step forward in the system of medical education and training in the UK and will build on a great deal of developmental work which has already been taken forward by the profession—for example, on examinations and assessments—and on better ways of quality assuring training. It is in the wider public interest that this close working relationship is further developed and strengthened as the board is established. We will do all we can to ensure that this happens.
One of the key features of these reforms is that, in future, patients and the NHS will have a greater contribution in determining the standards of education and training for doctors. That wider representation will also be reflected in the board's committees where the detailed work will be done. This will ensure that the broader competencies required of modern doctors, such as team working and communication skills, are also included in training curricula alongside the detailed clinical knowledge which they clearly need. In this important respect, the order will help to support all our efforts to improve the quality of care in the National Health Service.
The provisions before your Lordships' House will contribute to the implementation of the major programme of reform we have announced to modernise medical careers, bringing more structure and coherence to the early stages of postgraduate training. We need to ensure that doctors in training grades and in service posts are well supported, and able to plan and develop their careers in the NHS. The board will be crucial to the success of these wider reforms to medical careers.
In addition to making improvements to the system, we are also making a number of other changes that are particularly important to career prospects within the profession itself.
I mentioned earlier how individual doctors in the NHS have welcomed the proposals because they will help them to develop their careers. Questions have been raised in another place about whether these proposals will actually help doctors who are already contributing to the NHS in the staff and service grades, but who want to advance further in their careers. I want to say very clearly today that we have set out to assist these doctors, and that is what the order does. In particular, the order will help many doctors currently working in the NHS with qualifications obtained outside the European Economic Area. They cannot progress to consultant positions in their careers because the current legislative system does not take all factors into account.
The fact that they may have completed additional training, or have years of senior experience in the United Kingdom, makes no difference. If the qualification is not determined to be equivalent to the UK specialist qualification, that is the end of the matter and the individual cannot have his or her name included in the specialist register. Many therefore have no chance of ever becoming a consultant and the NHS is deprived of the benefit that the full contribution of these doctors could make. This cannot he allowed to continue.
The order therefore provides for all training, experience and qualifications—wherever obtained—to be taken into account by the board when assessing the eligibility of applications to go on to the specialist register. If a doctor does not meet the required standard at the first application, that is no longer the end of the story. Doctors will be able to top up their training to meet the requirements. They cannot do this at present.
Training must no longer be seen as a one-off opportunity which ends at a certain point in a doctor's career. The whole point of medical education and professional development is that it needs to be a well-managed continuum throughout a doctor's professional life. That is why, in parallel with the regulatory reforms, we are modernising medical careers, taking forward the proposals set out in the Chief Medical Officer's consultation paper Unfinished Business to develop a more structured system of education early in a junior doctor's career, immediately following registration with the GMC.
Our proposals will deliver a new foundation programme, which will be followed by well-managed and structured programmes, supervised by the board, for all trainees, whether they become consultants or general practitioners. This will include programmes designed for doctors moving back into training from a staff or service grade post. We are taking an all-embracing approach which will include competency-based assessment and encourage that to thrive. This will see all doctors in training working against clear, agreed goals.
Both of these new developments demonstrate the importance of the current competence of a doctor to deliver quality services to NHS patients. The new system will ensure that all doctors will have a fair chance of demonstrating how they meet the high standards that we rightly require of our doctors. I should make one point very clear. This is not about lowering standards but about providing a fairer opportunity to doctors to show how they meet our existing standards.
Secondly, we are creating a new GP register. In future, all GPs will need to be on this register. General practice is strongly supportive of this initiative—it has been for some time—and it is supported by the medical profession as a whole. No one currently eligible to work in general practice in the NHS will be excluded; there is no threat to anyone's livelihood. We believe that the GP register will make a big difference to patients and employers. For example, they will easily be able to check a doctor's registration online. Doctors' standards will be visible and accessible to patients.
Finally, the new system is designed to work more efficiently. The board and the GMC will be required in future to give decisions about eligibility for registration of both GPs and specialists within three months of receiving a full application. At present, doctors—particularly those applying from outside the EEA—must often wait for considerable lengths of time for a decision.
Let me quickly go through the order itself. The order creates the board and two statutory committees—the training committee and the assessment committee (Article 3). The board will be responsible for supervising the system of postgraduate medical education and training in the UK, setting standards and ensuring that these standards are applied (Articles 4, 5 and 6). The statutory committees will report to the board and be accountable to it. The board will be able
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to set up sub-committees to deal with levels of detail. Royal Colleges will be appropriately represented on these committees and sub-committees.
Much of the detail of how the new education system will operate is intentionally not included in the legislation. Let me use this opportunity to again reinforce the independence of the board. The board will draw up its own rules and it will be able to change them to respond to changing training needs. While the board will be able to delegate work and decisions to its committees, it will not be permitted to delegate any of its rule-making powers. This is entirely consistent with the principles of independence and autonomy which have been the hallmarks of our system of postgraduate education and training. These principles are carried forward in the order.
There will be 25 board members, with a medical majority. The chair may be either medically qualified or a lay person. Appointments to the board will formally be made by the Secretary of State for Health and by Ministers in each of the devolved administrations. Each of the devolved administrations will make two appointments—one medical, one lay— and the Secretary of State will make the remainder.
At least six of the medical appointments will be drawn from a list supplied by a body representing the medical Royal Colleges in the UK. At present this is the Academy of Medical Royal Colleges. At least one appointment—lay or medical—will be made from a list supplied by the GMC. This ensures the essential professional input as well as proper representation of patients and employers.
I have gone into some detail because it is a complicated order which has taken a long time to prepare and it is important to get the details right. It has taken us almost three years' hard work to reach this point. The order has been designed in consultation with stakeholders to be flexible and adaptable. It will permit improvements to be made to the system of postgraduate medical education and training.
We are very glad that our proposals have the support of medical organisations and of individual doctors. We believe that they will be of direct benefit to the NHS and to patients because they will help us to produce not only more doctors but better-trained doctors. I commend the order to the House.
Moved, That the draft order laid before the House on 3rd March be approved [13th Report from the Joint Committee].—(Baroness Andrews.)
3 p.m.
Earl Howe: My Lords, I thank the noble Baroness for introducing this important order and for the clear way in which she did so. I wish to be entirely constructive in my approach to these proposals. I am the first to acknowledge that the Government have not only consulted widely on them but have taken account of many of the concerns raised by those who responded, not least the medical Royal Colleges and the GMC. What we have here, nevertheless, is a piece of major reform, and it is right that we should spend a few minutes in examining its implications.

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I think we can probably all agree on several positive features. First, the order greatly simplifies what many would regard as a baffling array of regulations currently governing postgraduate medical training and, in so doing, it makes the underlying legal framework a lot less opaque. It also brings together under one statutory umbrella both specialist and GP training, a change which is, I believe, very welcome, as is the creation of a new GP register.
The other main change to be applauded is the way in which medical training is assessed. It is no longer a question of how long a person has trained in a particular discipline, but whether he or she is competent in that skill. Assessing someone's competency carries important implications for who will be able to apply to join the specialist register. As the Minister has just explained, Article 14 contains a provision which will allow for doctors who have gained qualifications outside the European economic area to be assessed here, on the basis of their competency and experience and, if found to meet the prescribed standards, admitted to the specialist register. I welcome that change. Quite a number of doctors practising in the UK cannot currently make this career progression. Both they and the NHS are the worse for that.
As I read it, we will ultimately have a much more flexible system than we do at the moment, but it will require appropriate mechanisms to be put in place to ensure that people's qualifications, training and experience can be properly assessed. The criteria used must be very clear and very tight. That task has to be put in hand. In fact, the practical aspects of these reforms have excited some comment and it would be helpful if the Minister could say something in her reply about a few of them. For example, there will be doctors in the SAS grades who are assessed but are then found to require further training. How exactly is it intended to provide this top-up training, and how will those doctors access the established training programmes? To what extent will an assessor be held responsible for the subsequent professional performance of the person who is assessed?
The other practical issue I want to raise relates to the interaction between the new board, the GMC and the medical Royal Colleges. In the report on the consultation published in February, there is a specific reference in paragraph 28 to the need for all three bodies to work together closely if the new system is to work effectively and well, particularly as regards processing applications for doctors' certification and registration. I agree with that, of course, but it is also self-evident that to have the highest and best standards of medicine in this country, the medical Royal Colleges have to be closely involved in determining the standards of postgraduate medical training.
Equally, doctors who qualify and are admitted to either of the registers will have to submit themselves to revalidation during the course of their career. Revalidating doctors is a responsibility of the GMC. If the standards of attainment in both training and revalidation are to correspond and cohere, clearly the
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GMC, alongside the Royal Colleges, has a locus in helping to oversee and shape the work of the new board. It is pleasing, therefore, to see that the board membership will include nominees of both the GMC and the medical Royal Colleges, and that this provision is now written into the order.
I have to ask the Minister, however, about paragraph 1(14) of Schedule 2. It says:
"On a proposal from the Board or otherwise, the Secretary of State may by order vary the size or composition of the Board".
The only provisos to the exercise of the power are that the medical majority on the board has to be preserved and the appointment rights of the three regional departments are safeguarded. In other words, the nomination rights of the GMC and medical Royal Colleges, to which both bodies attach great significance, are not set in stone.
The words "or otherwise" concern me, however. In what circumstances might the Secretary of State be minded to say that nominees of the professional bodies should no longer sit as members of the board? Even the theoretical prospect of that happening fills me with some alarm. I say that especially in the broader context of the Secretary of State's wider powers, which I shall talk about in a moment. Now that the Government have agreed to include the nomination rights in the order, why is that get-out provision there at all?
The Minister will know that the BMA is disappointed that it is not represented on the board. I have considerable sympathy with its view that practising doctors should sit as members to represent the key groups of hospital and general practice, as well as training and career grades. There is no guarantee that the nominees of the GMC or the medical Royal Colleges will be practising doctors with direct experience of workforce planning, assessment and appraisal and implementing working hours agreements. The BMA Junior Doctors Committee is particularly ideally placed to provide that sort of knowledge.
There is also a strong case for GP representation on the board, given the fact that an increasing quantity of service and education is undertaken in primary care settings. Alongside GPs, the BMA has emphasised to me the particular significance of the staff and associate specialist group of doctors, whose needs are very individual and will undoubtedly have to be taken into account by the board. There is a good argument that a doctor from that group should be included in the board membership.
The underlying issue is that doctors must be fit for purpose. That point has been recognised by the fact of enabling the Secretary of State to ensure that NHS interest is represented on the board. I, for one, do not have a problem with that idea. However, I have a problem with the extent to which politicians, especially the Secretary of State, have influence over the composition and actions of the board. We all recognise the importance of professional self-regulation, and I am the first to recognise that the medical majority on the board preserves the essence of that principle. Yet the fact is that the appointments process is largely in the hands of politicians.

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Why does the Minister believe that that is necessary? There should be some political appointees—yes; but should they all be? I am uncomfortable with that. Surely, politicians do not need to appoint all the members to achieve parliamentary accountability for the work of the board or for public money spent.
I have a similar concern in relation to the powers granted to the Secretary of State in paragraph 26 of the order. I understand completely that they are billed as "default powers", to be exercised only if the board has, in the opinion of the Secretary of State, failed to perform any of its functions. In that situation, the Secretary of State may issue directions to the board; if the board fails to comply, the Secretary of State may himself give effect to his direction. That means, in practice, that he will step into the board's shoes.
That is an extraordinary provision, and it is slightly difficult to imagine what the process would involve. We are all used to default powers in other contexts—usually in situations where it is essential for a matter to be expedited for the public good. I would not have thought that the work of a board responsible for postgraduate medical education and training fell into that category. If, by some awful contingency, the board were to fall seriously short in the performance of its functions, the remedy surely does not lie in the Secretary of State taking over in the form of direct rule. Surely, he should consult members of the profession—the GMC, the Royal Colleges, and other interested bodies—and propose arrangements that would serve to upgrade or replace the PMETB and remedy its failings. The role of the Secretary of State should be essentially as a facilitator, not as a protagonist. But that is not what the order provides for.
One then has to wonder what kind of circumstances might lead to the Secretary of State's default powers. That exercise depends, as I said, on his being satisfied that the board is failing to perform any of its functions. The board's functions are set out clearly in Article 3. However, paragraph (11) of that article allows the Secretary of State,
"On a proposal from the Board or otherwise"—
note "or otherwise"—to,
"create a new statutory committee and confer functions on it; or … vary the functions of the statutory committees".
I have to ask the Minister what exactly that entitles the Secretary of State to do. What we cannot have under any circumstances is the remit of the board, and therefore the standards governing postgraduate medical education, becoming the subject of a political agenda. I hope that she can reassure me that there is no means of that being permitted to happen via the backdoor with the order as it is worded.
I note what the Minister said about reasonableness. It might he thought reasonable for the Secretary of State in the interests of the NHS to influence, and indeed amend, the nature and scope of the board's functions and the bodies with which it is required to co-operate. However, such amendments might not necessarily advance the central objective of postgraduate medical education and training, which is
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to make doctors fit for purpose and to instil in them the highest standards of practice. I hope that she can reassure me on that.
I end with a question about the timetable for the establishment of the board. Should the House approve the order, I understand that it is likely to be made by the Privy Council at its meeting in mid-May. Advertising for the board members would take place in that event immediately afterwards. If so, the first board meeting is expected sometime in the autumn. However, there will have to be a transitional period during which the specialist training authority will continue its decision-making process about access to the specialist register. Can the Minister tell me when it is expected that the new decision-making process will formally pass to the PMETB?
Once again I thank the Minister for her explanation of the order, and I look forward to her reply.
3.15 p.m.
Lord Clement-Jones: My Lords, I join the noble Earl, Lord Howe, in thanking the Minister for her very comprehensive introduction which I think answered in advance many of the questions that we on these Benches would have liked to ask. We also give a broad welcome to the new board which I think is eagerly anticipated by the medical profession generally. It is the result of some extremely comprehensive consultations which we also welcome. The consultation certainly gave rise to a large pile of documentation which many of us have been reading through in the past few days. The outcome, which I very much welcome, is a series of quite carefully constructed compromises. The board itself will be a competent authority for the purposes of the EU directive on the free movement of doctors. Consequently, we have no great desire to disturb any of the quite carefully constructed architecture in the order itself.
Several changes were made by Ministers as a result of the consultation. For example, initially the chairman was going to be appointed solely by the Secretary of State and not by the board. Now, at least after the initial period, the board will have the right to appoint. We welcome that, although we have some questions about whether five years is the right period.
There have obviously been changes as regards the use of default powers and the duty to co-operate with a body that appears,
"representative of the medical royal colleges".
That co-operation by the board with the medical colleges enshrined in the order is wholly positive.
Generally the move to competency-based assessments away from the time served basis is greatly to be welcomed. The medical profession and those in the SAS grades mentioned by the noble Earl, Lord Howe, will welcome that. Medical experience will be recognised.
We welcome the new GP register alongside the specialist register and the more flexible admission to the specialist register. However, I refer to the

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question—the Minister went some way to answering it by way of an assurance, but chapter and verse is needed—of whether it is only academic or research knowledge and experience that make a doctor in the grades that we are discussing eligible for consideration. That point was raised by my honourable friend Dr Harris in Standing Committee in another place. I think that due to lack of time the Minister, Mr Hutton, said that he would write to my honourable friend. However, it would be useful to be given further clarification. On the face of it—perhaps I have not read every jot and tittle of the order—it seems that academic research rather than practical skills confers eligibility. It would be useful to hear more detail on that matter from the Minister.
We very much welcome—this has resulted from the way in which the board was set up—the apparent streamlining of the system of hospital visits by the Royal Colleges. It has long been a grouse of mine that over 28 bodies are now entitled to visit, inspect and audit acute hospitals. The more we can boil down the number of visits that are made, the better. It would be useful if the Minister could shed a little light on how that process will operate. Clearly, the board itself, as the regulator in these circumstances, will carry out that process on behalf of the Royal Colleges, but what residual responsibility will the Royal Colleges feel that they have in that regard? How will the process work out in practice? After all, the Royal Colleges will have some delegated responsibilities. They will have membership of some of the committees. Will they feel obliged to carry out inspections as well?
The noble Earl, Lord Howe, described the measure as a radical set of proposals. Perhaps my perspective is rather different. I believe that the setting up of the board is a significant step but I do not see it as a very radical move in many respects because the responsibilities of the NHS, the universities and the postgraduate deans for implementing training and performing to standards remain largely undisturbed. Accountabilities for different aspects of training seem, certainly to the uninformed onlooker, rather confusing.
The Minister told us that the funding and implementation of the training would be carried out by the postgraduate deans. There is the whole new "unfinished business" agenda announced by the health Minister which will be implemented not by the board, as that is the regulator, but essentially by the postgraduate deans and the NHS itself, as I understand it. Accountabilities will be extremely important in judging whether that extremely hefty agenda is successful and whether there is sufficient clarity of responsibility. Will the board have the ability to influence how "unfinished business" is put into practice? Certainly, the borders are unclear at the moment.
How do the responsibilities of the board fit in with workforce planning by the NHS? We have seen great improvements in that regard but it is crucial to delivery within the NHS. Also important is that perennial old chestnut, training numbers. The NHS has grappled
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with that over a number of years, and it is still a huge issue. In passing, I wonder whether the department is trying to do too much in the current circumstances. The agenda is massive, grappling not only with the implications of the working time directive, but changing the whole system of training junior doctors, instituting the board and so on. That is biting off a huge amount of reform in one go.
Having said all that, I have doubts on some individual areas, but the Minister can satisfy them in her reply. The noble Earl, Lord Howe, raised a large number of them and I certainly do not intend to repeat them all. The independence of the board is absolutely crucial, as is self-regulation, the principle that the Minister enunciated. I very much welcome the fact that there will be a majority of doctors on the board. The model of the GMC, which is responsible to the Privy Council, could however have been adopted in the case of the board, and I would very much like to hear the Minister explain why that model was not followed.
The noble Earl went into the use of the Secretary of State's default powers in great detail and very effectively. They are extremely important. The Minister more or less gave us the kind of judicial review test, saying that the Secretary of State will be reasonable in the actions that he takes in exercising his powers under article 26 and other default powers. Some examples of where in practice the Secretary of State would exercise his powers would be extremely useful, because they are very wide. The legislation states,
"has failed to perform any function".
That is fairly draconian. Some assurances on the record to the effect that they will not be used lightly would be very helpful.
The question of nomination of board members is very important. As we know, for "special health authority" in the order, one needs to read "NHS Appointments Commission". I assume that that is the regular way in which nominations will be made. The Minister's assurance on that point would be extremely welcome.
The noble Earl talked about GP representation on the board. We place great emphasis and importance on having practising doctors on the board, whether they are indeed official representatives of the BMA or not. We also believe that junior doctors should be represented. A range of practising doctors should be represented, to ensure that they can give a proper perspective to the type of training that they are responsible for regulating. We share the noble Earl's concerns on the timing of the establishment of the boards.
My final point is on the issue of delegation to the Royal Colleges. It would be useful for the Minister to explain what will happen in practice, as well as explaining the relationship with the GMC, which the noble Earl mentioned. I welcome the fact that the GMC and the board are joined at the hip, so to speak.

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A little clarification about how that relationship will work is extremely important, and I look forward to the Minister's reply.
Lord Turnberg: My Lords, in welcoming the order, I have to express an interest as a past president of the Royal College of Physicians and past chairman of the Specialist Training Authority. May I also say how much I appreciate the way in which my noble friend and her officials have explained the detail of the order to me, and how the department and its officials have consulted all and sundry in reaching what I believe is a very satisfactory order.
I particularly welcome the bringing together of the Specialist Training Authority and the authority that regulates general practitioner training. I welcome the facility to take on board experience as part of the ability to assess individual doctors, and the encouragement to look at overseas doctors, who have sometimes had a difficult job getting into the system. Of course, the increase in lay and NHS representation is to the good. I believe all those things are very valuable.
As my noble friend said, concerns have been raised about the powers of the Secretary of State. I think that I am reassured by the suggestion that he or she will have to demonstrate reasonableness in bringing the board to order. I was particularly concerned at one point about medical Royal College representation on the board. I am moderately reassured and I believe that the colleges are moderately reassured.
I want to comment briefly on why it is important that the colleges are adequately represented. The colleges are, and have been for very many years, responsible for developing all the various curricula for all the various specialties, as well as general practitioner training. They set up the training programmes and have a number of specialist training courses.
One has only to visit the Royal College of Surgeons or the Royal College of Obstetricians and Gynaecologists and to see the special training methods they have adopted, which allow young surgeons to practise on inanimate models before being let loose on the public, to recognise how valuable all that is. They ensure that trainees go through all the programmes; they set the exams; they run the examination process; and they assess all the competences.
Incidentally, the colleges are already assessing competences. That will not be new for them; it will be a continuation overseen by the board. Therefore, it is not absolutely new. The colleges visit all the establishments concerned with training—all the hospitals and so on—and ensure that they are up to standard.
The colleges will also welcome the ability to assess experience. The Specialist Training Authority was very constrained by the European directive in its ability to assess experience. It seems that this new order will help to get round that problem. In all that, the colleges work very hard. My own old college, the
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Royal College of Physicians, ran 28 different specialty training programmes: cardiology, gastroenterology, neurology and all the "ologies" were involved.
All that vital experience should not he lost and should be used in the new board. It is helpful that six places will be available to the colleges. I hope that my noble friend will be able to reassure us that that is a minimum figure and that at least that number will be representatives.
I want to raise another point concerning the responsibilities of the board with regard to the supervision of training. It is hard to imagine how that responsibility will be fulfilled without the board being able to delegate it to colleges and to postgraduate deans. I make a similar point in relation to visiting. I cannot imagine that the board will visit establishments where training takes place. It will have to delegate that responsibility. Therefore, I would welcome a reassurance from the Minister about the ability to delegate responsibilities.
3.30 p.m.
Lord Patel: My Lords, I, too, welcome the order that brings postgraduate medical education in general practice and specialties under one statutory organisation. Like my noble friend, in a true sense, Lord Turnberg, I also declare an interest. I am the immediate past chairman of the Specialist Training Authority—a body that will be replaced by the new board. I have also been president of the Royal College of Obstetricians and Gynaecologists and chairman of both the Scottish and United Kingdom Academies of Medical Royal Colleges and faculties. All those organisations are concerned primarily with promoting and establishing medical education.
The order creates an opportunity to bring some fresh thinking to the way doctors are trained to meet the needs of the health service and to change the way that medical care is delivered in this country from much of care today, particularly emergency care, being delivered by doctors in training to care being provided by doctors who are fully competent to provide it, and who have gone through a structured competency-based training and assessment.
To be able to bring about the changes proposed in the order, the board must be independent of government and organisations primarily concerned with devising and delivering programmes of medical education. At the same time, the board must work closely with and support organisations such as the Royal Colleges which are, in the main, as all noble Lords have said, responsible for postgraduate medical education.
While there have been anxieties about appropriate Royal College representation on the board—that has been mentioned several times—several of the college presidents who have spoken to me recently are content with the proposed arrangements and are looking forward to the establishment of the board. Yes, they have concerns that appropriate representation will also be maintained, and significantly so in the various committees. I, too, support the comments of the noble

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Lord, Lord Turnberg, that the colleges are important and we should ensure that they are well represented on the committee.
It is right that the board and its committees should have significant lay representation. That is lacking on the current board of the STA, which has representatives from all the medical Royal Colleges, two representatives from the GMC, two lay representatives and one postgraduate dean. On many occasions during my chairmanship of the STA, the dominance of the Royal College representation on the board slowed the progress towards reforming curricula, introducing competency-based curricula, competency-based assessments, further training of doctors in non-consultant career grades and reform of so-called hospital visiting. My hair has turned grey trying to bring uniformity to hospital visiting processes that could be adopted by all the colleges. I exclude here the Royal College of General Practitioners, which has a very good system.
I do not criticise colleges for that; I merely give an example of how the board, working in a co-ordinated way, could bring about changes that would benefit medical education and training. The independence of the board should help to strengthen its role in those areas. The board should also be independent of the Government. The Minister's assurance on that would be comforting to the colleges.
Having said that, I believe it to be right that the Secretary of State has reserve and default powers to be used if the board is not discharging its function. I hope that those powers could be used only following a comprehensive external review of the board's work. The board has to be accountable.
Two other areas need clarification and reassurance. I hope the Minister will be able to give that. The current arrangements for recognising training undertaken outside the United Kingdom and EEA countries are not satisfactory. That has also been mentioned by all noble Lords. Thousands of doctors working at staff grade and associate specialist grade providing excellent care fail to get on to the specialist register and are disheartened, demoralised and feel discriminated against. At the initiation of the STA, over 3,500 doctors applied for entry to try to have their training and qualifications recognised. Over 50 per cent failed to do so.
The proposals in the order that include recognition of medical experience along with qualification and training and considering doctors' eligibility to be put on specialist registers, together with the proposals relating to top up training in the United Kingdom, will allow for many of those excellent doctors to get on to a specialist register and obtain consultant positions. I do not think it is beyond the wit of man to find a way to provide this type of training in a proper institution where training is possible.
The board must make sure that that happens; otherwise it will fail in its duty. I hope that this will be one of several outputs by which the board will be judged in the review. While the order proposes that a
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review should be carried out after five years—and I agree with that—I hope that there will be some way to monitor the board's work on a more regular basis.
The recognition of qualification, training and experience should also make it possible for overseas doctors to come here and continue their training in order to get on to a specialist register. I agree with the noble Lord, Lord Clement-Jones, that that should not just apply to those in academic and research positions but to others in service positions.
The final area on which I want to comment relates to the board's responsibility for setting up an appeals panel. During my chairmanship of the Specialist Training Authority, on occasions the independence of the present appeals system was challenged. While none of the formal appeals succeeded, I hope that the Minister can give a reassurance that the proposed appeals panel system will provide for the establishment of an open and independent appeals system which can also demonstrate a clear separation of the appeals panel from the board.
Perhaps I may also comment on the subject mentioned by the Minister about a proposed new careers structure being developed—Unfinished Business. I look forward to it eagerly. I hope that I shall have a lot to say about the matter. The career structure for doctors, in particular in training, needs to be revisited. I hope that that will be simplified and not made more complicated.
In conclusion, apart from those areas that I have mentioned which require some further work by the board, I support the order and look forward to the establishment of the Post-graduate Medical Education and Training Board. I shall follow its work with great interest.
Baroness Andrews: My Lords, I hope that noble Lords will bear with me while I arrange my papers so that I can answer at least some of the questions raised this afternoon. First, perhaps I may say how grateful I am for the very warm welcome that the order has received. All credit should go to those who have worked so hard and with such great thought and conviction regarding the need for change in this respect.
Many detailed questions have been raised. I hope to answer as many as possible. Primarily, they appear to be grouped around issues. For example, there are issues regarding the independence of the board and the powers of the Secretary of State; and issues which deal with the representation of doctors and the needed assurances that there will be a medical majority with doctors being represented appropriately.
A number of issues were addressed by the noble Lords, Lord Patel and Lord Clement-Jones, and the noble Earl, Lord Howe, including the range of experience regarding the notion of competence and the necessary mechanisms in relation to it. There are issues that deal with the workforce and how what we are trying to do in order to expand and change the workforce of the NHS will reflect, impact on and be, as it were, regulated by the board itself. That brings in

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issues regarding visiting panels and so on and the delegation that the noble Lord, Lord Turnberg, talked about in relation to the power. The noble Earl, Lord Howe, raised the issue of the timetable. The noble Lord, Lord Patel, raised the issue of the appeals mechanism.
I shall try my best to give assurances on most if not all of those matters. I start with the issue of the board's independence and the assurances that noble Lords seek on the powers of the Secretary of State. We can give with total conviction the assurance that it will be an independent board. The Secretary of State will have the power to nominate the chair in the first instance. The nomination of other members of the board will be as has been agreed and which has come forward in a variety of ways.
There will be at least six places—there may be more—from the medical Royal Colleges, and at least one place from the General Medical Council. There will be six places via the devolved administrations; 19 appointments will therefore notionally be made by the Secretary of State but, in fact, they will be generated by the expert and devolved bodies in the field.
The process of advertisement and selection will be delegated to the NHS Appointments Commission. The reason why the Secretary of State has that role in the first instance is the need to ensure that the first board has balance and authority and is robust and representative.
I was asked why the board does not approximate more closely to, say, the GMC. In fact, that is a slight misreading of the powers of the GMC, because the Department of Health is not as much an arm's length body as it would appear from the fact that powers are located in the Privy Council. The Department of Health has a close link with the GMC through the Privy Council, so the GMC does not provide an appropriate model in this case.
On the question of powers held by the Secretary of State, it is important to reflect that his default powers are not new. They have been held in another form under the STA, which could give direction about administration. The powers in the order approximate to those held under the Medical Acts. So essentially, we have not invented anything in the order. The default powers are important because, should there be such exceptional circumstances as a failure of function—we have no examples to offer noble Lords, because such powers have never been used—or systems failure, we need those powers to rescue the board. We fervently hope that they would never be needed.
The noble Earl asked why the Secretary of State had power under Article 3(11) to create a new statutory committee. That article entitles the Secretary of State to vary the functions of the training or assessment committee or to create a new statutory committee, simply because the power must be exercised by statutory instrument, which is obviously subject to the negative parliamentary procedure. During consultation, many respondents felt that the functions of the statutory committees needed to be capable of
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being altered. So that is a safeguarding mechanism to allow change to be made without having to go through more elaborate or Draconian measures. In fact, it was the doctors' representatives who asked us to include such a power to avoid arbitrary or artificial limits on the committees' functions. The power allows us flexibility for the evolution of function.
The noble Earl also asked why there is power to vary the size and composition of the board. Again, we need the flexibility to do so. As he said, there will always be a medical majority and a requirement that the devolved administrations appoint one medical and one lay member. But we want to build flexibility into the procedures, so that if the board concludes that change is needed we do not have to make amendments via a Section 60 order of the primary Act. That has been agreed with the Royal Colleges and others in negotiation.
I hope that those reassurances reinforce the board's intention to operate independently and the Government's intention to ensure that it does.
A related aspect of independence is the composition of the board—why, for example, the British Medical Association will not be on it and whether there will be sufficient GPs. Essentially, the board's composition will be driven by the applicants. At least six people will be nominated through the Royal College, and at least one through the GMC. We will be extremely interested to see the range of specialities and health service representation that comes forward when we advertise the posts. We are confident that we will get the representation of doctors and of many of the groups that we wish to see. But much will be in the hands of the Academy of Medical Royal Colleges and the GMC in terms of nominations.
There is no reason why there could not be a specialist committee of the board simply for general practitioners. General practitioners and, indeed, many more members of the Royal Colleges will be represented on the sub-committees on training and assessment and any other committee that the board chooses to appoint.
The noble Lord, Lord Clement-Jones, asked about the links between the GMC and the Academy of Medical Royal Colleges. The order provides that there is a duty on the board to co-operate with the GMC and the Academy of Medical Royal Colleges as the representative body. There could not be a more explicit demonstration of the intention to work closely with the medical profession than including in the order that duty in what I hope are explicit and reassuring terms.
On the timetable, we hope that the Privy Council will pass the order at its next meeting. It will come into effect in October, when the board is set up. Advertisement and appointment will occupy the time between now and October. The board will run in parallel with the STA and the General Practitioners Training Committee for a year. We expect the full transfer of powers to take place some time at the end of next year. We know that the process is complex. We do not want it to be rushed or compromised, which is

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why additional resources have been put into making it as robust and effective as possible. The functions of the STA and the other training committee will continue in parallel, so there will be no discontinuity.
The noble Lord, Lord Clement-Jones, asked about workforce issues. As he said, it is a matter of agenda. Part of the order's function and significance is, not least, expanding the number of people who will be able to join the specialist register through an emphasis on competence. We will expand the number of people who can serve the health service in that way. But, as the noble Lord said, Unfinished Business on modernising medical careers looks to reforming the postgraduate medical curriculum in different ways, with a new foundation year, for example. But it also looks to building into it curriculum assessment and competencies. So we have two parallel processes in which the board will be closely involved as the regulator and the standard-setter. It will have a major job to do in regulating the process as it evolves over the next few years. That is a major, coherent change in medical education and training.
The noble Lord, Lord Clement-Jones, also asked about visiting panels. We are conscious of the great seriousness—I hesitate to use the word "burden"—of the process of visiting panels. But it is a very important process, which will continue and be reviewed. I am sure that the Royal Colleges and the board will discuss how best to manage that in future. A review is taking place at present.
The noble Lord, Lord Turnberg, asked whether the board would supervise training. He also asked about its delegation powers. The board is legally responsible for training. It may delegate activities and decisions to its committees or sub-committees, which may be Royal College-based, as I suggested. However, the requirement for designated competent authorities to supervise training emanates from EC Directive 93/16/ EEC. The board is the competent authority under that requirement for specialist training. The directive requires that the competent authority supervise specialist training. It is identical to the wording of the requirement in the European Specialist Medical Qualifications Order 1995.
We envisage that the board will fulfil its duty to supervise training by virtue of its standard-setting functions, its approval functions and its ability to organise visiting panels in respect of postgraduate medical education and training. It has the power to appoint persons to visiting panels and to make rules as to the composition of visiting panels.
The noble Lord, Lord Patel, asked a specific question about appeals. I can give the noble Lord the assurance that he seeks. The appeals panel will have to be independent. Doctors need an independent panel to handle appeals, and they must have confidence in
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that independence. No member of the board or its committees or sub-committees will be able to sit on an appeal panel. That is the guarantee of independence that the noble Lord seeks.
A major issue was raised about the opportunities presented for training. We are convinced that the order will make a major difference. To the noble Lord, Lord Clement-Jones, I say that, by "training", we mean practical training, not just academic training. All experience, wherever obtained, can and will be taken into account, together with qualifications and training. We are creating a level playing field for doctors with different sorts of experience.
As I understand it, doctors who are, at the moment, excluded from the specialist register because they do not have additional training or experience will be able to apply to the board and demonstrate how they reach the standards set in the new ways. The board will be able to assess doctors in terms of the standards that they have reached. Assessing experience is a particular skill that must be developed over many years. We look to the board to develop its rules on the basis of common sense. If the doctor is assessed as needing top-up training, he will be able to apply through the postgraduate deaneries for a suitable training programme. Those programmes will be different from traditional programmes. They must be designed to respond to the needs of the doctors who will come through different routes with different qualifications and experiences. We will look to the deaneries and the board to manage the process.
If I have neglected to answer any questions, I will be happy to write to noble Lords. In conclusion, I must say that doctors already understand the advantages of the new system. We have had the first application to the new board, even before the legislation has been passed and the board set up. That application came from a specialist doctor from the Indian sub-continent seeking entry to the specialist register. In his country of origin, he is an associate professor in his speciality. He has previous NHS experience and holds a fellowship from a medical Royal College in the UK. That is precisely the sort of benefit and bonus that we want to see for the NHS. We cannot and should not pre-judge board assessments of individual doctors, but we believe that there are many more in a similar position.
We have had overwhelming endorsement. Because it is one of several initiatives in postgraduate medical training, the board will set the standard for all postgraduate medical education, as we have described it. In that way, we hope to give the NHS doctor of the future a clear career path, to the benefit of all the things that we are trying to do to modernise and improve the NHS and to the particular benefit of patients. I am grateful to noble Lords.
On Question, Motion agreed to.
House adjourned at four o'clock.