Lords Sitting of 4 July 2003

Preamble
The House met at eleven of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Portsmouth.

Merchant Shipping and Fishing Vessels (Port Waste Reception Facilities) Regulations 2003
11.5 a.m.
Baroness Farrington of Ribbletonrose to move, That the draft regulations laid before the House on 19th June be approved [24th Report from the Joint Committee].
The noble Baroness said: My Lords, I beg to move the Motion standing in my name on the Order Paper. I am very pleased to introduce the Merchant Shipping and Fishing Vessels (Port Waste Reception Facilities) Regulations 2003, which will help to protect the marine environment. Ships generate waste—of various kinds—in the course of their voyages. They have to dispose of that waste. If ships cannot rely on being able to discharge their waste at a reception facility in port, they may resort to discharging their waste at sea. Therefore, one sure way of reducing pollution of seas and coasts is to make certain that waste reception facilities are available in ports, and that they are easy to use and cost effective.
This is not a new idea; it has been widely recognised within the international community of maritime states for some years. The provision of adequate waste reception facilities in ports is one of the requirements of the International Convention on the Prevention of Pollution by Ships (MARPOL 73/78).
The United Kingdom introduced its own legislation several years ago to put this principle into effect in the Merchant Shipping (Port Waste Reception Facilities) Regulations 1997 (SI 1997 No. 3018), which successfully govern the UK′s existing port waste management planning regime. The UK′s existing regulations apply to all United Kingdom ports, using the term "port" to apply to all ports, harbours, terminals, marinas, piers and jetties. The UK′s waste reception regime is based on plans that are based, in turn, on consultation.
Subsequently, a proposal for European Community legislation was also initiated. The UK played a very active role in developing the EC measure—Directive 2000/59/EC on port reception facilities for ship-generated waste and cargo residues—which was published in the official journal of the European Communities on 28th December 2000. These regulations transpose the EC directive. In addition, because the UK′s regime has worked well since its inception, the regulations are designed to retain most of the elements of the existing UK regime which are consistent with the directive.
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The directive introduces three significant new requirements in addition to those already in the UK′s regime. The first additional requirement is for ships to provide notification, prior to their entry into port., of the waste that they will discharge at that port, including information about types and quantities of waste. The second requirement is for ships to deliver their waste to port reception facilities before leaving port. There is, none the less, provision for ships to keep their waste on board and proceed to the next port of call if they have sufficient dedicated storage capacity for the waste which has been, and will be, accumulated during the voyage.
The third significant additional requirement is for a mandatory fee to be collected from ships in respect of the costs of port reception facilities for ship-generated waste, with a charging system that is designed so that it provides no incentive to ships to discharge their waste into the sea. The directive also makes other consequential or minor changes. I commend these regulations to the House.
Moved, That the draft regulations laid before the House on 19th June be approved [24th Report from the Joint Committee].—(Baroness Farrington of Ribbleton.)
11.9 p.m.
Baroness Byford: My Lords, I thank the Minister for introducing the new regulations on merchant shipping waste reception facilities, which obviously we support. We welcome any measure that reduces pollution at sea. I have a few questions for the noble Baroness. If, however, she would prefer to answer some of them in writing, that would be perfectly acceptable.
First, Regulation 4 refers to,
"ships normally using the harbour or terminal".
Is there any way in which "normal" is defined? Obviously, some ships will come in occasionally and some will come in on a regular basis. Is there any guidance on that?
Secondly, the Minister said that these were EU measures, which I accept; that is fine. Will they he implemented in a similar fashion? In other words, will each of the European ports have the same system and charge fees to enhance these new regulations, or is there discretion within each member state to decide to apply and finance the requirement in whatever way it considers relevant to its state?
Thirdly, can the Minister confirm that the "significant contribution" towards the cost of such facilities under Regulation 14 will be kept to a minimum? Further, will that contribution vary in each port within the UK? I understand from the regulation that that may depend on the amount of waste discharged, but will there be a sliding scale? How will that be achieved? Again, that is not defined in the regulation. These are small, but important points.
The regulations make it clear that the charges should be kept to a minimum since a modest charge would lessen the risk of dumping at sea. What form of risk assessment has been undertaken of that? Unfortunately any charge is likely to encourage dumping at sea, which is the last thing anyone wants.

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Regulation 14(2) states that the charge,
"may take into account the category, type and size of the ship".
I should be grateful for further clarification on that. Regulation 21(4) refers to the unreasonable detention of a ship if it has abused the regulations in any way. Again, is there any quantifiable language to cover the use of the word "unreasonable"? A definition would be of help to us.
I understand that the costs are to be small, but can the Minister say whether the costs charged to the harbour will go towards paying the Maritime and Coastguard Agency′s monitoring and enforcement unit, which I understand may incur additional costs of around £43,000, or will that sum be sponsored directly by the Government, so that the charges levied on ships entering the port will be relevant only to the facilities being provided by the individual port? Again, that point is not made clear in the regulations.
As I have said, these are only small points, but they are important. If the Minister is not able to respond to them all at this point, I shall be happy for her to write to me.
Baroness Harris of Richmond: My Lords, I rise simply to say that noble Lords on the Liberal Democrat Benches agree with the regulations.
Baroness Farrington of Ribbleton: My Lords, I shall seek to respond to all the questions put to me by the noble Baroness, Lady Byford, but I shall of course write to her on any points that I do not cover.
The compliance costs to industry seem likely to be small, assuming that the 154,000 arrivals into UK ports in 2001 may be taken as a guide for future years. The Department for Transport estimates that the costs of these processes may be in the order of £500,000 per annum; that is, representing a cost of £3 per arrival—around 0.1 per cent of the average costs to a ship.
The increased costs will be met from the fees charged and no additional taxpayers′ money will be spent. All EC ports will apply the directive, but there will be variations between states because these are allowed under the terms of the directive.
The noble Baroness asked about the "reasonable" or "unreasonable" detention of a vessel. That is a matter which ultimately would have to be addressed by the courts. The term "normal" is not defined; it is a term that is normally assessed against reasonable behaviour. However, I appreciate that it may need a little further clarification.
There will be administrative costs to the harbour authority and terminal operator. Nevertheless, all the indications suggest that the new provisions stemming from the directive will place only a small additional compliance cost on the UK ports industry. As regards the detailed point put to me by the noble Baroness about enforcement costs and the Coastguard Agency, I shall write to her.
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I thank both noble Baronesses. I commend the regulations to the House.
On Question, Motion agreed to.

Human Fertilisation and Embryology (Deceased Fathers) Bill
11.15 a.m.
Baroness Pitkeathley: My Lords, I beg to move that this Bill be now read a second time. I am very glad to be taking this Bill in your Lordships′ House. It is a small but very important piece of legislation for the families concerned. I am grateful to my honourable friend the Member for Birmingham Hall Green for introducing the Bill and for his successful stewardship of it through the other place. I read with interest the debates held there and was pleased to note the very broad cross-party support generated for the Bill. I hope that noble Lords will similarly feel able to support it.
It is a short Bill with simple intent. It is limited to a single objective which is largely compassionate in nature. Its purpose is to allow a man′s name to be entered as the child′s father on the birth register and on the birth certificate when a child has been born following fertility treatment after the man has died. In my view, this measure is long overdue. I hope your Lordships agree that it is not a controversial proposal.
That is not to say that there are no contentious issues underlying or associated with these matters. There are enormously important and difficult ethical and legal matters in this area. It could hardly be otherwise when we are talking about something so fundamental as human reproduction. The names of noble Lords on the speakers′ list for the debate remind us of that. However, the Bill is not deeply involved in those issues and debates. It seeks only to make a simple and straightforward change for the purposes of birth registration.
I accept that the deeper philosophical and ethical issues should be thoroughly debated—there is no doubt about that—and that they should be kept constantly under review, especially given the pace of technological advance in this area. That does not mean that consideration of the Bill is the appropriate place to resolve those issues, important and emotive though they are.
The law currently is that when a man dies during a pregnancy he may be treated as the father of the child with all the legal rights which follow from that. But under Section 28(6) of the Human Fertilisation and Embryology Act 1990, a man may not be treated as the father of a child for any purpose where his sperm or an embryo created using it was then used after his death. For example, it may be the case that a couple were undergoing fertility treatment, but the man died before that treatment was completed. Or it may be that a man′s sperm, or an embryo created using that sperm, was put into storage while he underwent treatment for a condition such as cancer, during which he tragically died, and the sperm or embryo was subsequently used

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in fertility treatment for his wife or partner. I am also aware, and I believe many noble Lords will know this, that many servicemen who served in the recent military action in the Middle East took the same precaution.
In these cases there is no doubt that the child was wanted by both parents, and no doubt about who is the father. Nevertheless, the current law prevents the man′s name being recorded as the father. The legislation was originally framed in this way to prevent difficulties in winding up a man′s estate. Because sperm can be stored for up to 39 years—although the statutory storage period is only 10 years—there is no doubt that if rights of inheritance or succession were to arise, this could be a substantial problem.
The aim of the Bill therefore is to give only a symbolic recognition in law to children who, as the law stands, have no legal father. I wish to make it very clear that its purpose is no more than that. The Bill is not concerned with matters of inheritance, nationality or any other legal status. It is deliberately limited to allow the name of the father to be put on a child′s birth certificate where currently the law insists there must be a blank space. I know your Lordships will understand that a blank space on a birth certificate is distressing for a child. It is an unfair situation which should never have arisen. We now have a chance to put matters right.
The Bill outlines four circumstances in which deceased men may be registered as fathers. The first relates to a situation where a couple were married before the man′s death and the woman uses his sperm, or an embryo created by using his sperm, to conceive a child after the man′s death. This is covered by proposed subsection (5A) within Clause 1. The second circumstance is where a couple were not married but were being treated together before the man′s death and the woman uses his sperm, or an embryo created by using his sperm, to conceive a child after the man′s death is listed. This is covered by proposed subsection (5B).
The third circumstance is where the couple were married and the embryo was created before the man′s death using donor sperm and the woman used the embryo after the man′s death to conceive. This is covered by proposed subsection (5C). The final circumstance is where the couple were not married but were being treated together and where an embryo was created using donor sperm which is used after the man′s death to conceive a child. This is covered by proposed subsection (5D).
I am sure that your Lordships will know of mothers and children who have found themselves in such circumstances and who have campaigned long and hard for a change in the law. I pay tribute to them for their determination. It is doubly unfair that they have had the tragic loss of their husband or partner compounded by this injustice to their child or children.
The Bill is retrospective in so far as its provisions deal not only with future cases but also with existing ones. I believe that it is right that it should do so. It applies to cases where the sperm or embryo was used on or after 1st August 1991, which is when the 1990
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Act came into force. I understand that there are between 30 and 40 children in this situation today and that the number will grow by perhaps 10 every year. So we are talking about very small numbers.
The Bill is of great importance to the mothers of these children. It will be of increasing importance to the children themselves as they grow up and begin asking questions about who they are and where they have come from. The Bill will give them a symbolic recognition of their legitimacy where they currently have none.
As your Lordships will know, it is unusual to make legislation retrospective. I would understand any Member of your Lordships′ House feeling uneasy at the prospect. However, I believe that in this case it is right to do so.
The Bill also makes very clear the need for proper consent. This is made explicit in the circumstances contained in proposed subsections (5A) to (5D), which I have outlined. Except in the case of men who died before the provisions of the Bill came into force, it is required that the man who is to be registered as the father must have consented in writing and not have withdrawn his consent. This means consent to the use of his sperm, or an embryo created by using his sperm, after his death by his wife or his partner. It also means consent to being regarded as the father of any resulting child on the birth certificate. Where donor sperm is used, the man must have consented in writing, and not have withdrawn his consent, to the placing in the woman of the embryo after his death. Again, he must also have consented to being regarded as the father of any resulting child on the birth certificate. This is a clear safeguard in the Bill in terms of consent.
In addition, the registrar will require proof of the treatment undertaken in the form of a certificate of a registered medical practitioner. The registrar may also require other documentary evidence if it is considered appropriate.
I have tried to give an outline of a tightly focused Bill which seeks to correct an injustice which I am sure all noble Lords recognise. I have referred to symbolic recognition. I do not under-estimate the importance of what is symbolised or signalled in the House. If the Bill becomes law, it will signal a proper recognition of the rights of children who are growing up today and provide a clear process for such cases in the future. While narrow in scope and consequence, as I have emphasised, the Bill will make a real difference to mothers and children who find themselves in a situation where, as the law stands, there is no legal father.
Your Lordships may be aware of a declaration of incompatibility of the law as it stands with human rights legislation. In my view, that provides an additional impetus to change the law. But, fundamentally, the Bill represents the right thing to do, the decent thing to do, for those mothers and their children who find themselves in these tragic circumstances. It represents an opportunity for Parliament to put right its earlier attempts to legislate in this area. It would be of great comfort to a child′s

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wider family, and to future generations of the family, that the truth should now be recorded. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Baroness Pitkeathley.)
11.26 a.m.
Baroness Warnock: My Lords, I rise warmly to support the Bill and to congratulate the noble Baroness, Lady Pitkeathley, on the clarity with which she has set out its provisions.
As she said, the main provision of the Bill is that a posthumous child, born as a result of using the frozen sperm of his dead father, may be registered as a child of that father, with the father′s name appearing on the birth certificate, without thereby the child being able to claim any legal rights or legal status in consequence. I am pleased that the legislation should be retrospective. That is absolutely fair. It will not cover a very large number of children; it will cover those born from 1991 onwards.
It seems such a simple and satisfactory provision that I can only wonder why the committee of inquiry, of which I was chairman and the report of which led to the Human Fertilisation and Embryology Act, did not think of it at the time. I believe that it is absolutely right that the name of a child′s biological father should, wherever possible, be part of the registration of the child′s birth.
The committee of inquiry was fairly strongly opposed to the use of assisted conception to bring about the birth of a posthumous child largely on the grounds of the possible psychological damage that might be caused if, for example, a widow who had remarried and had other children decided to use her first husband′s sperm and to have a child by that husband after all.
Looking back, it seems to me that the committee spent a great deal of time inventing these kinds of rather fanciful cases in order to protect its back and to prevent people bringing them up later. It was trying to forestall criticism. However, such objections seem to be rather fanciful now.
We were also alarmed by the thought that if a posthumous child were, so to speak, lying in wait to be born, it would be impossible to wind up the father′s estate or to settle the succession to a title or whatever else might be at issue. We therefore recommended that its paternity, if it was ever realised, should be disregarded altogether. That recommendation became part of the 1990 Act.
We never even thought of separating the registration of the biological father from the legal implications of his paternity. To make that separation now seems to me an admirable and simple solution, as it preserves the crucial aim of registration; namely, to record the historical truth.
However, I have reservations about one aspect of the Bill, contained in proposed new subsections (5C) and (5D) of the proposed amendment to the 1990 Act.
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Those provisions allow for the dead man′s name to appear on the register of births as the father, when the sperm used to produce the posthumous child was not his but that of a donor. That is when the embryo is a result of AID, the dead man having been himself infertile. I strongly believe that in any case of AID, the birth certificate of the child should bear the words, "by donor". However, I fully understand that the Bill is not concerned at all with the general moral considerations on which my objection to these clauses rests, but is far more narrowly focused—and properly so.
I have no doubt that when, later, the issue of the status of donors, whether of sperm or eggs, falls to be discussed, if Parliament were then to decide that the words "by donor" or "by donation" should appear on the birth certificate of a child born by donation, the present Bill could be suitably amended. My anxiety about those provisions is therefore in a way irrelevant to the present debate. I mention them only as a marker for an issue that may come up for debate in future, in the hope that the outcome will not seem to have been pre-empted by these clauses in this Bill. Meanwhile, I hope that the Bill has a swift passage.
11.32 a.m.
Baroness Hayman: My Lords, I shall speak very briefly on a Bill which, as the noble Baroness, Lady, Warnock, said, was introduced very ably and with great clarity by my noble friend Lady Pitkeathley. My noble friend made it clear to us that this was not an appropriate occasion to deal with the enormous underlying moral and ethical considerations involved in IVF and assisted conception. The noble Baroness, Lady Warnock, made the same observation. Like her, however, I shall put a marker down on one issue that is of concern to me.
At the beginning, however, I want to make it clear that it is absolutely appropriate that the Bill should deal with the anomaly in question. I fully support the introduction of the Bill. Unusually, for a legislator, I welcome the retrospective nature of it and am in some ways more comfortable with those retrospective provisions, as my concerns are for the future. Those children and families already exist; from all we have heard, there is undoubtedly a strong feeling among those families that the paternity of the children involved should be properly recognised. They want the compassionate cases in relation to human rights legislation to be recognised, and it is absolutely appropriate on this occasion that we should act retrospectively.
I wish to address the issue of consent, and to flag up that I was reassured that consent was dealt with so comprehensively in the Bill, as it was not in earlier versions of the legislation. I am concerned about consent because of the momentous nature of the decision involved in deliberately bringing into the world a posthumous child. I speak with great trepidation, because those of us who have not experienced the pain of infertility or bereavement, let alone the agony of the combination of the two, should tread very delicately when it comes to dictating to others what they should do. I would not want to do

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that in any way, but these are enormously difficult as well as momentous decisions. They have tremendous implications for the children who will be born and need to be considered in every aspect. Therefore, an assurance for the children who eventually ask about their origins—that the decision was taken not only by the widowed mother but by the potential father—is an important safeguard that should be in the Bill.
Equally, I would not wish there to be taken from what is an appropriate piece of legislation to ensure that we do not mistreat children in this situation an assumption that the healthy, normal and absolutely expected course of action were someone to be found in these terrible circumstances would be to go ahead. In the late 1980s, I served on the ethics committee of the Royal College of Obstetricians and Gynaecologists that was set up to examine the issues and prepare evidence for the committee on which the noble Baroness, Lady Warnock, served. In my own mind, I found that a helpful way in which to consider the issues was that the purpose of assisted conception treatment should be to enable people whose choices had been taken away from them to have the same choices as those whose fertility was normal. That always helps me with the issues relating to very late—post-menopausal, for example—pregnancies.
Exactly the same is true in this case. The choices should be available, but we have an overwhelming concern with the welfare with the child. We acknowledge that existing families come in all shapes and sizes and that spectacularly good parenting goes on in single-parent families. Equally, however, we have a concern that when society puts an imprimatur of ethical acceptance on a practice, the deepest consideration should be given. It is wrong to lecture people about how they would behave, because of course that very small number of people who are in this desperate situation will have that consideration. Equally, however, we know that in the first flush of bereavement and distress, people are always told not to make decisions, not to decide for 12 months where they are going to live or make major life changes.
We are talking about an enormous and major life change, not only for the widow but also for the child to come. I believe that the climate in which those decisions are made by individuals, by their clinicians, the HFEA and ultimately by us as legislators should be one in which we give the utmost scrutiny to individual decisions. For me, it is very important that the consent provisions in the Bill are so clearly laid out. On that basis, I welcome it.
11.39 a.m.
Lord Winston: My Lords, I shall speak very briefly following three very eloquent speeches in support of the Bill. First, I am grateful for the excellent appraisal given by the noble Baroness, Lady Pitkeathley, who introduced the Bill with clarity and eloquence. I also thank the noble Baroness, Lady Warnock, and my noble friend Lady Hayman for their support of the Bill.
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It is clear that currently there is discrimination between children born by artificial reproductive means and those conceived naturally. Clearly that is wrong and needs to be sorted by the Bill, as it will be. These are not common instances. In my own unit at Hammersmith, which is a major cancer centre, we possibly deal with more of these patients than anywhere else in the south-east of England. In one year we might see one or two cases at most in which, during the course of treatment or subsequently where there are embryos or sperm in store, a husband has died of a cancer partly because treatment has not fulfilled its entire purpose. Therefore, this Bill is to be greatly welcomed on their behalf.
Like my noble friend, I have no problem at all with the retrospective aspects of the legislation, dealt with in Clause 3(6)(a) to (c). That seems to me utterly sensible.
Perhaps my only criticism of the Bill is that it has taken so long for it to be presented to Parliament. Some of us recall that the issue really came to public attention in 1995 with the death of Stephen Blood, his wife′s valiant attempts to try to get fertility treatment, which clearly accorded with the wishes of her late husband, and the difficulties she went through. Apropos what the noble Baroness, Lady Hayman, says, in retrospect perhaps we could say that Diane Blood was dealt with in a very heavy-handed fashion. It might have been better had our regulatory authority paid more careful attention to what she was actually trying to tell it. However, that is now past history. I am very glad that this anomaly can be sorted out.
I wish to address one point raised by the noble Baroness, Lady Warnock. Although it is not part of this Bill, we should certainly debate the issue of donor insemination again in this Chamber. There is considerable disquiet about the nature of parenthood. It is a very complicated issue. However, with all due respect, I do not think that it is very easy simply to put on a birth certificate, "Father by donor". In fact, that might inhibit parents telling the truth to their children. Curiously, it could have exactly the opposite effect to that desired.
There is a real problem, I think, in openness. I agree with what the noble Baroness says about donor insemination. But many parents who undergo donor insemination are increasingly hesitant about telling their children the truth. Therefore, anything we can do to persuade people of the openness of the family relationship and the nature of conception must be in the child′s interest. Otherwise the child may find out by mistake, usually at puberty or when a marriage breaks up, that there is a problem. For that reason, it would be welcome if we could debate this issue in some detail. It teases out many important issues about parentage.
This Bill will be welcomed by all of my profession—by the Royal College of Obstetricians and Gynaecologists, which has no problem with it, but particularly by the practitioners who see these difficult cases every day. I very much hope that the Bill′s parliamentary passage will be concluded as speedily as possible.
11.43 a.m.
Lord Lester of Herne Hill: My Lords, like every other speaker I should like first to congratulate the noble Baroness, Lady Pitkeathley, on introducing the Bill so powerfully and clearly. For that matter, I should also like to congratulate the Government, through the Department of Health, who have clearly sponsored the Bill although it is in the form of a Private Member′s Bill.
I should begin by declaring an unusual professional interest. I was a legal midwife to two posthumous children of Diane Blood—I am glad that she is in the Gallery today—in the sense that I represented her in the original proceedings against the Human Fertilisation and Embryology Authority. I believe, as I shall now explain, that this Bill really should be known as the Diane Blood Bill. There is no question but that, without her efforts, this Bill would never have been introduced or, I hope, enacted.
The noble Lord, Lord Winston, has already referred to the somewhat heavy-handed approach of the Human Fertilisation and Embryology Authority in that case. Noble Lords may recall that what happened was that Diane Blood was prevented from proceeding as she wished because of the statute and the absence of written consent by her late husband Stephen. We brought legal proceedings which eventually ripened into a judgment by Lord Woolf of Barnes—one of those rare judges who makes both parties feel they have had a fair hearing, the loser as much as the winner. In a compassionate and humane judgment, Lord Woolf essentially said that European Community law would come to Diane Blood′s rescue, that she could go to Belgium in order to obtain the treatment denied to her under English law. She went to Belgium and as a result of that she was able to give birth to her two bonnie boys, Liam and Joel.
That must be one of the most creative enterprises that I as a lawyer have ever been involved with. For once I indirectly helped forensically to create human life. It is good to know that one sometimes can do that. The noble Lord, Lord Winston, as he will recall, was ready to give expert evidence in that case as well. So it was a kind of family occasion. Unfortunately the authority, having lost the case on that aspect, to my astonishment asked for legal costs against Diane Blood. That I thought at the time was a bleak judgment on the authority′s part. Her father had had to mortgage his house in order to pay for those proceedings.
The next phase of her heroic struggle was that she then sought to be able to register Stephen as the father on behalf of her children. That was refused. However, the Department of Health, entirely properly, eventually after the McLean report, introduced a Bill like this one which failed only because of lack of parliamentary time when the last general election was called. At that point Diane Blood′s lawyers—by this time I was not involved in the case; my colleague Tom de la Mare was involved—had to bring judicial review proceedings and proceedings threatened before the European Court of Human Rights in order to obtain the necessary decision by the Department of Health.
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What then happened was quite extraordinary. For two years the Department of Health fought the case tooth and nail, urged that no case be brought before the Strasbourg court, resisted the case in the English courts, and then at the last minute, no doubt instructed by competent counsel, realised that its position was quite hopeless. It was quite hopeless because the European Convention on Human Rights guarantees the rights of these children, to their private life and to non-discrimination. So, very late in the day, the Department of Health appeared with counsel for Diane Blood and also Mrs Tarbuck, the other applicant, and they agreed to a consent order.
The consent order consented to the fact that the statute is incompatible with the European Convention on Human Rights. It has to be retrospective simply because if it were not retrospective, then Diane Blood and Mrs Tarbuck would have to go to the European Court of Human Rights and the United Kingdom Government would inevitably face condemnation before that court. So there is no doubt that the retrospectivity in this case is not only desirable but absolutely necessary.
The Joint Select Committee on Human Rights, of which I am a member, reported on why it considered that there was no human rights issue that needed to be drawn to the attention of Parliament. For those who are interested in reading that report, it is the 8th Report of Session 2002–03, House of Lords Paper 90. I did not take part in those proceedings because I was professionally interested, as the report records.
I have to make two other mild criticisms. One is that, after all this agony and protracted legal proceedings, the question of costs arose. At that point the judge, Mr Justice Sullivan, ordered indemnity costs against the Department of Health. That is a very serious step to take because it means that in the view of the learned judge the department has behaved unreasonably in its pursuit of the legal proceedings.
The other mildly critical remark I need to make is about the Explanatory Notes. I know that this is a Private Member′s Bill and, therefore, no Minister had to sign a compatibility statement under the Human Rights Act that in her or his view it was compatible with the convention. As the Minister will know, however, it is now accepted practice for Ministers to ensure that the Explanatory Notes deal with any human rights convention issue so that parliamentarians can know what they are.
The Explanatory Notes are admirable in explaining the content and general objects of the Bill but they are completely silent about the convention issues. Although the noble Lord, Lord Winston, referred to the convention and the noble Baroness, Lady Pitkeathley, also referred to retrospectivity and to the declaration of incompatibility, I do think that as a matter of good administration some of what I said in this overlong speech should have appeared in the Explanatory Notes so that at least parliamentarians would know absolutely the full position. I in no way criticise the noble Baroness, Lady Pitkeathley, but it seems to me, if I may say so with great respect, that the department ought to have made that all clear.

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Noble Lords will now understand, I hope, first, why this is really the Diane Blood Bill and, secondly, why retrospective remedies had to be provided to avoid ultimate international humiliation before the European Court. So speaking as a legal midwife I support the Bill but from the Front Bench on behalf of the Liberal Democrats we welcome the Bill more generally.
11.52 a.m.
Baroness Noakes: My Lords, let me start by paying tribute to the noble Baroness, Lady Pitkeathley, for agreeing to shepherd this Bill through your Lordships′ House. Her commitment to the issues underlying the Bill was made very, very clear in her elegant and clear speech.
This is a Private Member′s Bill from another place and as such is fitted into the margins of your Lordships′ business, but it is a real mystery why this is a Private Member′s Bill at all. In all but name it appears to be a government Bill. For example, the Department of Health prepared the Explanatory Notes. Indeed, it should have been a government Bill.
The Bill does two things which are the Government′s responsibility. First, it implements some of the recommendations of the study by Professor McLean that came out in 1998. Those recommendations were accepted by the Government but not acted upon. Secondly, it responds to the declaration of the High Court on incompatibility with the European Convention on Human Rights, which the noble Lord, Lord Lester, just explained in some detail. The Government could have used the fast track procedure to amend the 1990 Act but chose to sit on the sidelines. It is getting to be something of a habit in the health sphere for the Government to use the private Member′s procedure as a way of supplementing their own programme—
Lord Lester of Herne Hill: My Lords, I am grateful to the noble Baroness for giving way. I just point out that the Government could not have used the fast track procedure, at least I do not think they could, because I do not believe that the Human Rights Act would have applied. But in any case, even if it had, certainly the Human Rights Committee would not have regarded this course by speedy Private Member′s Bill as in any way worse than using delegated legislation. So I do not think with respect that that criticism is well founded.
Baroness Noakes: My Lords, in such matters I, of course, bow to the immense knowledge of the noble Lord, Lord Lester. It was my understanding that the fast track procedure could have been used in this case, but if I am wrong, I certainly withdraw that. However, I still maintain my position that this is a matter that should have been dealt with by the Government in government time.
I was about to refer to the Government′s previous record in these matters, in particular in the health sphere. We had an example of the use of the private Member′s procedure last year when the noble Lord,
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Lord Clement-Jones, on the Liberal Democrat Benches did the Government′s job of implementing their policy on tobacco advertising. Now we have a further example with this Private Member′s Bill from another place. I hope that those outside Parliament will see where the Government place their priorities, for example, on attacking the traditions of our nation, whether it is the right to trial by jury or—dare I say it?—abolishing the right to control foxes by age-old methods. Whatever the Minister says today, it is clearly not the priority of the Government to deal with the issues in this Bill.
But let me now turn to the Bill. It affects only a small number of people, all of whose lives have been touched by tragedy. We cannot fail to feel compassion for the plight of the mothers involved and for their fatherless children. Those children are fatherless in their lives in fact and fatherless on paper. There is nothing that we in your Lordships′ House can do about those children being fatherless in fact in their lives, but the Bill does allow us to do something about the paperwork. In that sense, it is a very small measure of symbolic rather than substantive effect. It is hard to object to the Bill in those terms and noble Lords on these Benches do not do so.
I should like in particular to say how much we support the Bill′s reliance, at least so far as prospective cases are concerned, on consent—both the documented giving of consent and the absence of withdrawal of consent. The noble Baroness, Lady Hayman, underlined the importance of consent. If consent had not been at the heart of this Bill′s provisions, its contents would have been very hard to support.
I have one question for the noble Baroness, Lady Pitkeathley, and two areas of concern to raise. The first question is the detailed one of why 42 days are allowed for registration in England but only 21 days in Scotland. That seems to me to be an unnecessary distinction between what happens in Scotland and what happens in England. New Section (5E) to the 1990 Act refers to Scotland. Does it mean births in Scotland are affected or births to Scottish mothers? If an English mother happens to be in Scotland when she gives birth—which can happen—does she have 21 or 42 days? I could not work that out from the Bill. I hope that the noble Baroness, Lady Pitkeathley, can answer that question.
I turn to my two areas of concern. The first area of concern is the same as that raised by the noble Baroness, Lady Warnock; namely, that of allowing a mother to register the name of her deceased husband or partner where an embryo is created using donor sperm after the death of the husband or partner. In my opinion this tends to go into the realms of fantasy because we are not recording any real fact about the parentage of the child by using the man′s name who was not the genetic father. That does not seem to me to be right. I know that was discussed in another place but I have not heard any convincing public policy reason for it. But I fully accept, as the noble Baronesses, Lady Hayman and Lady Warnock, and, indeed, the noble Lord, Lord Winston, said, that these matters raise important issues of public policy that go

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much wider than the Bill. I do not object to the Bill on those grounds, but I wish to flag the fact that I believe that very serious issues are raised. It is a matter to which I hope your Lordships will be able to return on another occasion.
The second area of my concern is retrospection. The noble Baroness, Lady Pitkeathley, anticipated that at least one speaker would raise the issue. It is important that we at least raise this area of concern. In general in legislation retrospection is unattractive. It is particularly unattractive in this case because the retrospection is based on different principles from that of Clause 2. Clause 2 is based on consent, which is a very important element of the recording of the father on a birth certificate. But Clause 3 dispenses with any evidence of consent. I am aware of the publicity surrounding particular cases and I do not doubt the sincerity of the individuals involved in those cases for one moment. The noble Lord, Lord Lester, took us through the history of Mrs Blood. However, it is true that the Bill will apply to those mothers different rules from those that will apply to others going forward, in that consent will not be required. I, for one, find that very difficult to take. I remind noble Lords that hard cases sometimes make bad law.
Lord Lester of Herne Hill: My Lords, can the noble Baroness clear up my puzzlement about the position of those on the Conservative Front Bench? As I have explained, the court gave a declaration that the present law was incompatible with the human rights convention. As I have also explained, but for the retrospective provisions we would have faced humiliation and condemnation on the international plane before the European Court, with damages and costs awarded that the taxpayer would have to bear. In those circumstances, I do not understand why the Conservative Opposition should object to providing an effective remedy retrospectively to avoid that mischief.
Baroness Noakes: My Lords, as the noble Lord will find, I will not ultimately object to that; I am merely raising the issues of concern.
It is my understanding that the declaration of incompatibility, which required some retrospective change, could just as easily have been made using consent as one of the criteria for allowing the recognition. I may be wrong on that, but my understanding was that there was still an option as to which way retrospective effect could be given to the use of the registration of the father. That is why I drew the distinction between Clauses 2 and 3. Clause 2 uses consent, which is a very important concept, and Clause 3 dispenses with it in the case of retrospection. I understood that it was possible to comply with the European convention but to rest Clause 3 on consent as well, in effect. If I am wrong, I am happy to be corrected.
Lord Lester of Herne Hill: My Lords, the noble Baroness may not be well informed on the matter. The
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problem in the Blood case was not the absence of consent, but that the late husband had not filled in the necessary form. Therefore, there was an absence of written consent.
Baroness Noakes: My Lords, I beg the noble Lord′s pardon. I meant an absence of evidence to consent, rather than an absence of substantive consent. The evidence of consent is the important aspect of Clause 2; it requires written consent. I was drawing a distinction between that form of consent and any other form of evidence of consent.
I look forward to listening to the responses of the noble Baroness, Lady Pitkeathley, on those points. I should be clear: noble Lords on these Benches bear the Bill no ill will. As I have outlined, many aspects of the Bill are very welcome, but some aspects cause us concern. We are mindful of the limited impact of the Bill and, for that reason, we have no intention whatever of standing in its way.
12.3 p.m.
Baroness Andrews: My Lords, the Government strongly support and welcome the Bill introduced by my noble friend Lady Pitkeathley. Many midwives, metaphorical and otherwise, have spoken, but as the latest midwife she did a brilliant job in delivering this wonderful, bonny baby beautifully, elegantly and without harm. We are very grateful to her for that, and for speaking with such compassion as well as clarity and conviction about why the Bill is so important.
I am grateful that we have had such a very distinguished debate. Everyone who spoke brought a different sort of experience to bear. The noble Lord, Lord Lester, had unique experience of being part of facilitating the ability under the Bill to introduce new rights. The noble Baroness, Lady Hayman, and above all the noble Baroness, Lady Warnock, showed their experience of the history of the humane and improving way in which we treat ethical and medical issues on reproduction. The noble Lord, Lord Winston, is of course a unique asset to this House.
We have had an extraordinary welcome for the debate. I am very glad that the noble Baroness, Lady Noakes, welcomed the Bill. I am sorry that we disappointed her and it is not a government Bill, but at least we have the Bill. It has been long in gestation; we are delighted to support it. It was not fast-tracked because the procedure under the Human Rights Act can be adopted only where there has been a declaration of incompatibility. The Bill was introduced in the House of Commons before a declaration of incompatibility, so we were out of sequence. As the noble Lord, Lord Lester, explained, we have had to deal with it in this way.
I also take the point that markers have been put down around the House about the need for a debate on wider ethical issues to do with reproduction. I am sure that the Government would be intent on listening to what has been said. We shall see what we can do.
The Bill was thoroughly considered and, as a result of that scrutiny, improved in the other place. It is a short Bill, but one that the Government believe

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presents an opportunity to make a real difference to the lives of a small number of children and families who find themselves in uniquely tragic circumstances. The noble Baroness, Lady Hayman, spoke movingly of that unique combination of the pain of infertility compounded by the agony of bereavement. Because we are a government who put children very much at the heart of what we do, it is important that we look to all types and conditions of children, no matter how small the numbers are, so that we can, whenever possible, improve circumstances for them and their families.
As my noble friend said, one of the raisons d′être of the Bill is to put right what is inhumane and discriminatory in the present law. We are very glad to do that. In the cases with which we are concerned, there is no doubt about who the father is or that the child was wanted by both parents. It is unfair to deny children who are growing up today a recognition of that fact in law. The Bill would allow for the father′s name to be entered on the child′s birth certificate when the child has been born following fertility treatment after the man′s death.
The unfairness rests in part on inconsistency. As the law stands, if an embryo created through in-vitro fertilisation had been placed in the woman before the man′s death, or if the child had been conceived in the normal way, his name could go on the birth certificate. But if the man dies before the embryo could be placed in the woman, the birth certificate must not record him as the father. That means that the family has to come to terms with not only a tragic loss but with the additional distress caused by the rigidity of the law.
The families affected by that failure have campaigned long and hard on the issue, and I pay tribute to them and to those who have championed their cause, particularly the noble Lord, Lord Lester. As my noble friend emphasised, the Bill is of very narrow scope. It is symbolic recognition only, because to do otherwise would make it extremely difficult to wind up a man′s estate. Therefore, the Bill does not propose to allow the child any rights of succession or inheritance, or any other legal status.
Although symbolic, the recognition is very important. Putting the father′s name on the birth certificate will, I believe, be of considerable and lasting emotional value to the children themselves. As the noble Baroness, Lady Hayman, said to those of us who have been fortunate in not having to contemplate such circumstances, we can only guess at the significance of that to children as they grow up.
As noble Lords know, the Bill implements a recommendation by Professor McLean, a professor of law and ethics in medicine, in her report published in July 1998, Review of the Common Law Provisions Relating to the Removal of Gametes and of the Consent Provisions of the Human Fertilisation and Embryology Act 1990. As the title suggests, the report was primarily concerned with issues around consent, and rightly so.
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As the noble Baroness, Lady Noakes, said, consent is a critical issue. Professor McLean also recommended that children born in circumstances considered in the Bill should have a symbolic acknowledgement of their father on their birth certificates.
We accepted that recommendation and are very happy to support the initiative. However, the Bill goes further than the McLean review, for very sound reasons, as my noble friend emphasised. The Government believe that it would be wrong not to recognise the rights of children who are growing up now and their families, rather than merely children yet to be born. Therefore, the Bill will apply to existing as well as future cases. I am particularly grateful to noble Lords who have welcomed the retrospective elements of the Bill and the humane difference that that will make.
I understand some of the reservations spoken about by the noble Baroness, Lady Noakes. I believe that she was comprehensively answered by the noble Lord, Lord Lester. We have given the issue a great deal of consideration and we think that it is the right—the humane—thing to do. It prevents those young people being discriminated against in any way. It confers dignity and it will refer to a very small number of people. We are very careful in the House with issues of retrospection, but we believe that this is an honourable exception and I am very grateful to have the support of Members of the House. I also welcome the emphasis in the Bill on the importance of proper consent—written consent—in prospective cases. It sends an important signal and is an important safeguard.
The Bill will also remedy a declared incompatibility of the current law with the European Convention on Human Rights and sets out a clear process to be followed in future. I must say to the noble Lord, Lord Lester, that that is a fair cop; I am afraid that we are at fault. It would have helped to explain the context if not the content of the Bill. We will take careful note of this for future reference.
Lord Lester of Herne Hill: My Lords, I thank the Minister for that. It is generous. I am sure that it is good housekeeping to do so.
Baroness Andrews: My Lords, once reprimanded, in my experience, the Department of Health rarely fails to act.
While it is not possible to guarantee that future human rights challenges will not arise in this area, the Government believe that the Bill strikes the proper balance between the rights and interests of all the parties involved—father, mother and child. Above all, it is about the truth of relationships, which is extremely important.
I am happy to welcome and support my noble friend′s Bill. I congratulate her on the way she introduced it and on commanding the support and respect of the House in so doing. I very much hope that the Bill will receive cross-party support through its remaining stages.
12.12 p.m.
Baroness Pitkeathley: My Lords, I am enormously grateful to all noble Lords who have spoken this morning—they are distinguished in this field and made distinguished contributions. It was tremendously important that we were reminded of the history of this issue and given important perspectives—I refer to human fertility and reproduction, medicine and the law, and our view as legislators and midwives. It was also important to be reminded that although this is a very narrow measure, it sits in the context of much broader debates concerning public policy. I am sure that the Government and other noble Lords take note of the importance of debating and resolving some of those issues at a later stage.
I shall answer a couple of questions from the noble Baroness, Lady Noakes. It appears that it is the place of birth that determines the given period of time; where the baby is born is the point. In Scotland, the mother has 21 days because that reflects the time in which birth must be registered, according to current registration procedures.
There were very interesting contributions on the issue of retrospection, and I am grateful to noble Lords for accepting that this is a very unusual case for registration. In response to the noble Baroness′s question, I am not sure that I can help any more in that regard. However, she indicated that in this case she does not object to the principle, although she understands that it may have been done in a different way.
I do not want to keep noble Lords long or to comment on other contributions. Above all, I thank noble Lords for the compassion with which they approached this issue. That reminded us that families in this situation need the utmost support and that there should be the utmost scrutiny and safeguard of the law. When the Bill finally goes through your Lordships′ House, a small but important group of people will be very grateful.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Community Care Plans (Disapplication) (England) Order 2003
12.15 p.m.
Baroness Andrewsrose to move, That the draft order laid before the House on 12th June be approved [22nd Report from the Joint Committee].
The noble Baroness said: My Lords, the order being debated this afternoon is designed to disapply the requirement for councils in England to produce a community care plan under Section 46 of the National Health Service and Community Care Act 1990. Community care plans covered community care services for all client groups. Their primary purpose has been to ensure that councils have a robust planning process to manage their community care responsibilities and that they work with health bodies and housing and other agencies. The plans have also
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proved a useful means of conveying important public messages about the direction of community care policy.
Since April 2002, however, local authorities have not been legally required to submit community care plans. This forms part of a wider initiative between central and local government to rationalise and streamline planning processes and to promote more joint working by health and social services.
Directions were passed disapplying the requirement to produce a community care plan for each of the years 2002–03 and 2003–04. The order before us is aimed at making this change permanent. It also consequentially removes Section 46 from the list of social services functions, in relation to England, which is found in Schedule 1 to the Local Authority Social Services Act 1970.
Those changes were driven, first, by a determination to simplify planning processes, and, secondly, to ensure that national priorities were more effectively delivered at local level. Let me briefly explain the background. In 2001 the Government commissioned a review of the plans they required councils with social services responsibilities to submit for scrutiny. It was widely accepted across local and central government that the then planning requirements constituted a heavy burden on local authorities. Social services alone were contributing to at least 40 plans each year, equating to more than 6,000 plans nationwide. Furthermore, the plans did not constitute a coherent whole from a local perspective. They took a variety of forms on a variety of timescales and were required by a variety of sources. A recurring theme was that the current process failed to make clear what the national priorities were, with each planning requirement concentrating on its own set of priorities. It was an unsatisfactory position that we attempted to address.
For example, one of the arguments for the original introduction of community care plans in the 1990s was that integrated community care packages were not developing on a sufficient scale and that the whole process needed much greater impetus. The introduction of community care plans helped to achieve that. I should add that councils had also been given the option of incorporating the essential elements of community care plans into their joint investment plans and health improvement plans, or they could remain as stand-alone plans. We were looking for change and best practice.
The 2001 study acknowledged that local authorities were drowning in planning bureaucracy, and suggested that a new framework was needed to assure Ministers that national policy priorities were being successfully translated into local action. The department accepted the report′s recommendations and, as in many other areas of government policy, where joint working has been strenuously developed in recent years, the past two years have seen the introduction of more integrated and streamlined planning processes within both local authorities and NHS bodies.
Most significantly, a new planning framework for health and social services, which came into effect this April, now means that the majority of current planning requirements will be replaced by a single, integrated three-year local delivery plan for health and social care. Just as the community care plans helped to inform the joint investment and health improvement plans, so they have informed the development of the local delivery plans. All aspects of the community care plan have been incorporated into the new planning framework, which is linked to health, as appropriate. I am sure that noble Lords will applaud the fact that the plan also has the advantage of having fewer national requirements and fewer targets.
The focus and coherence of community care plans have provided a strong basis for what we consider to be a more responsive and rigorous planning structure. The functions and the profile of community care will, we anticipate, be enhanced as the partnerships gear up towards a new generation of planning and service delivery. But we are also looking to better community care planning in terms of both the national service frameworks—for example, in the National Service Framework for Older People and the National Service Framework for Mental Health—and the local community strategies themselves, which bring together all aspects of community development.
I want to make a few additional points. First, when the department embarked on a consultation process in August 2001, it sought the views of all chief executives of health authorities, directors of social services and selected voluntary groups on removing the legal requirement to produce the community care plans. We were very pleased with the response. Ninety per cent of respondents were supportive of the proposal because they argued, as we had, that in many cases community care plans had failed to reflect user views, they were considered to be time-consuming, much of the work was replicated within other planning documents, partnership working had progressed and, indeed, other options had been found for meeting the needs of diverse groups.
However, they raised two important concerns, which I want to conclude by addressing. The first was that the needs of users and carers should be reflected positively in the existing planning processes, and, secondly, that the needs of vulnerable groups should not be "lost" in the plethora of planning reports. The issue of inadequate information and confusion was raised repeatedly as being a barrier to the involvement and participation of service users. Frequent references were made, in particular, to the needs of minority ethnic groups, people with sensory and physical impairment and people with learning disabilities.
In the light of the comments received, the Department of Health issued a response which stressed the need for clear sign-posting for service users to ensure that minority groups′ needs were addressed. It also stressed that health and local authority partners needed to identify and address any gaps in provision and that local authorities and health partners needed to own as well as develop their joint plans.
Since then, many actions and developments have taken place. Local authorities have indicated that they are providing "sign-posts" for service users, demonstrating the range of plans, and, where there are gaps in addressing specific service requirements, the local authority, together with its health partners, will now have to address how best to reflect those in what they do. Many local authorities are also preparing an annual publication, which will provide an additional sign-post to plans, together with a co-ordinated statement for smaller groups of service users where the needs were not accounted for in the main plans. I hope that all that will be seen as a positive response to the problems which we picked up.
We have drastically reduced the number of plans required to be submitted to the department from 30 to two. We are convinced that, by replacing the community care plans with the local delivery plans, we shall strengthen the focus. We shall be addressing and identifying proper priorities for care, with all client groups involved, and the coherence which is needed will be enhanced. I should say that only the local delivery plans now have to be submitted to central government.
Therefore, the order addresses different kinds of realities. In particular, it addresses the fact that Section 46 of the National Health Service and Community Care Act 1990 still requires councils to produce community care plans, which is why we seek the disapplication. The proposed change was consulted on in autumn 2001 and was subsequently approved with the full involvement of Ministers. The proposal for the order has lain in the House of Commons and the House of Lords for the required 60 days without comment from either House. Therefore, I hope that suggests that we shall have the support of all parties. I commend the order to the House.
Moved, That the draft order laid before the House on 12th June be approved [22nd Report from the Joint Committee].—(Baroness Andrews.)
Baroness Noakes: My Lords, I start by thanking the Minister for introducing the order and for explaining it in her customary clear and comprehensive way. At first blush, the order looks completely straightforward but I have a few questions for the Minister.
First, perhaps I may deal with the timing of the order. Consultation took place between August and November 2001. Since then, there has been no action on the order other than the ad hoc removal of the obligation to produce annual community care plans. Can the Minister say what was the cause of the delay between November 2001 and July 2003?
Secondly, and related to the subject of timing, the consultation was completed 20 months ago. The Minister outlined some of the findings of that consultation. Are the Government clear that nothing has changed in the meantime? What procedures have the Government followed to ensure that the decision to abolish the annual community care plans remains valid?

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Thirdly, the abolition of annual community care plans is, of course, welcome if it relieves local authorities from a burden without loss of value to the community. When considering the burden on local authorities in this area, I looked for the subject of community care plans on the department′s website and discovered the following non-exhaustive list of plans and planning mechanisms that local authorities engage in with regard to the areas covered by the plans. It includes: local strategic partnerships; local health partnership and modernisation boards; health improvement and modernisation plans; joint investment plans; national service framework local action plans; better care higher standards; local community strategies; carers′ strategies; and best value plans.
As I said, I am told by the Department of Health′s website that that is a non-exhaustive list. "Frightening or what?" for local authorities, I say to that. I am tempted to say that the Department of Health has on its hands a far bigger task in relation to simplification than this modest measure before us today. The noble Baroness talked about reducing the number of plans submitted to the centre. But, if the Department of Health website is to be believed, significant burdens are still left on local authorities.
Perhaps I may ask the Minister two questions relating to this area. First, how can the Government be sure that, in moving away from annual community care plans to a plethora of planning mechanisms, usually on longer planning timescales, sight will not be lost of short-term developments? Three years can be a very long time on the ground in dealing with needs.
Secondly, how can the Government be sure that the needs of all groups—especially minority groups—are taken care of? That was a particular strength of the way that community care plans were developed and it was one of the strong messages received in the feedback from the consultation exercise carried out by the department.
The Minister talked about sign-posting and how some local authorities carry that out. I fully accept that. But can she say how the department ensures that local authorities make it clear how all groups—in particular, minority groups—can make their views heard and have them fed into the process? It is not enough simply to issue guidance about sign-posting; we must be sure that it is happening in practice in the way that it did happen to engage groups under community care plans. We do not oppose the order but we believe that these are serious questions that require answers.
12.30 p.m.
Baroness Barker: My Lords, I, too, thank the Minister for the way that she introduced this very welcome disapplication order. She did so in her customary thorough manner.
In this House, we do not have a habit of giving our speeches titles. But, if I had the opportunity to do that, I would like to steal the title from an event that I attended a couple of weeks ago. It was entitled "More
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than Sandwiches and Samosas". It reflected the experience of older people being involved in consultation on all these plans. I want to talk very much from the user point of view.
The order is welcome because it reflects the increase in joint planning and joint consultation which has been taking place over the past two years. The noble Baroness, Lady Noakes, questioned whether the department′s actions had, in fact, reflected reality. They have, and I say that as someone who is, from time to time, involved in helping users and stakeholders to become involved in this issue. There has been an explosion in consultation meetings and consultation mechanisms. That is a huge problem. If local authorities are drowning in the consultation requirements placed upon them, just think what it is like for small community organisations. The truth is that they cannot manage to keep up.
One concern is not addressed by the order, but it is a real one all the same. The requirement for consultation carries with it no resources. Small organisations are being required to take part in consultations but they do not have the time, money or staff to do so. I happen to work for a large and well-established voluntary organisation, one which is strong at local level. One of the people I worked with now works in the North West. She calculates that she works one week in four on consultation for statutory authorities. She is not paid for that, nor is her organisation. Frankly, small community organisations are not going to be able to undertake it.
One of the lessons that has been learnt from the process of community care planning is that the most beautiful of plans means nothing if that is the only involvement that stakeholders have in it. During the years social services have become good at producing plans which have some meaning. But the NHS, which is increasingly involved in joint implementation plans in health and patient care, has a long way to go in its ability to make the processes work, never mind the outcomes.
A couple of months ago, I was told about a consultation meeting for older people which took place somewhere in London. The consultation meeting was set up for nine o′clock on a Monday morning in a hospital site not on a public transport route and without transport laid on. The health authority was surprised when no users turned up. The authorities are beginning to improve, but only slightly.
The order will assist in one other aspect. People say they are burnt out by consultation. We have a race of super pensioners who have a great time. They are professional pensioners who go to consultation meeting after consultation meeting. But even they are having enough of the sandwiches and samosas. In Age Concern recently, we had an application from a bunch of pensioners who have become firm friends. They have been to so many consultation meetings that they have got to know each other. They applied to us for some money and they were most specific in their requirements. They wanted money to have outings and

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treats because they did not want to have to go to an event and sit and listen to yet another boring speech before they got the sandwiches.
A noble Lord: They would not do very well in here!
Baroness Barker: No, they would not do very well in here! The Minister is right. There are other mechanisms. Better governance for older people is an interesting one to look at. The better governance for older people programme has left a good legacy of involvement of older people, but sustaining it at local level now that the national funding has disappeared is proving to be difficult and much of the good work done under that programme is being dissipated.
The noble Baroness was right to talk about the importance of local development plans. They are important locally, as are health improvement plans. But they will only be as good as the data they produce. During the past 10 years or so of community care plans, a great deal of effort has gone into the process of writing the plans but I have yet to find anyone who has been able on a sustained basis across an area to say what has resulted from them.
One of my colleagues at Age Concern used to have the delightful job of going through every community care plan in London trying to find out what it said about older people. That was a job in itself. Now that she has retired, I am not sure that we have any better information about service planning. Therefore, in welcoming the rationalisation, I ask the Minister whether, when we are down to one or two planning mechanisms, they will have the resources to be real and where the data they generate can be found. It is hard enough finding the processes on the Department of Health′s website. Finding the results is even more difficult.
Baroness Andrews: My Lords, I am grateful for the welcome which the noble Baronesses, Lady Noakes and Lady Barker, have offered the order. I shall deal with a few of their questions in turn. Yes, it has taken us a little time to come forward with the order, but we introduced the disapplication directions which gave the clearest possible steer to people that we did not want them to duplicate effort. In the interim, the planning process has not changed.
However, it has been a period of considerable development. For the first time we have tried to be serious about the delivery of joint working on the ground in health and social care. It is a major challenge following the Health and Social Care Act 2001. We have put a great deal of effort into ensuring that what can work on the ground is what happens.
We are certainly not complacent, but during the past three years we have not had a hiatus in development or delivery. We have introduced local delivery plans which are better and integrated and address some of the issues that were ignored. I am not surprised that when the noble Baroness, Lady Barker, looked at the website she found so many examples. I am sure the
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search was not exhaustive, but it is a measure of how much has been devolved to local policy. So much integration and local strategy is being put in place. That is where we find the requirement to consult and to be serious and intent upon it.
There is an issue about the annual community care plans and their time-scale, but the local delivery plans are living documents. They are not set in stone for three years and they can be amended. Corrective action can be taken if delivery goes off course, or if there are new and urgent priorities or opportunities. Although I understand why the noble Baroness raised the question, we can have confidence that there will be flexibility.
On the seriousness about consultation, I shall address the issues which came from different parts of the House. I am delighted that we have had an incredibly proactive impact on the people concerned, whether they are the elderly, parents without work, or whatever. The idea of consultation overload is a little daunting and I hope that we do not inhibit people from coming forward. I believe that the challenge is to find ways of involving and identifying the people whose voices are never heard.
We have some opportunities in initiatives such as Neighbourhood Renewal for involving people. We are undertaking similar work in drug action development. My noble friend Lady Massey recently spoke about drug action teams talking to small groups of mothers in very deprived areas where there are big drug problems. They talk to small groups in order to get them involved as the voices of their community. There is no doubt that we have not been very successful and there are better ways of doing it. I take the warning she offered. It is the greatest disappointment to involve people at the early stage of a process and never to be able to show them how their words, influence and expertise made no difference to the outcome.
Section 11 of the Health and Social Care Act 2001 places a specific duty on local authorities to ensure that the service users and carers are involved in the planning process. The technical guidance that is issued on local delivery plans, which I would be happy to pass on to the noble Baronesses, Lady Barker and Lady Noakes, operates to a standard template. There is a lot of detail about what we expect to see. The guidance must summarise how key partner organisations have been engaged in the process, how supportive they are of service proposals and, indeed, how they will be affected. We are getting serious about the audit trail of involvement and outcome. I would be very happy to circulate the guidance. It is extremely important that we involve such organisations throughout the process. I take the point about resources for voluntary organisations. One encouraging aspect is the contact that has been set up between government and the voluntary sector, which may make a difference in some centres.
I hope I have been able to reassure noble Lords that we have addressed some of the issues which spring from the changes that we ask the House to support. I

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should be happy to reply further in writing to noble Lords. In the meantime I commend the order to the House.
On Question, Motion agreed to.

Fireworks Bill
12.41
Baroness Ramsay of Cartvale: My Lords, I beg to move that this Bill be now read a second time.
Before dealing in detail with this Bill, I should like to pay tribute to my honourable friend Bill Tynan and to staff and colleagues for the time and effort which was devoted to the wide-ranging consultations in the preparation of this Bill and to the indefatigable way he successfully steered the Bill through all its stages in another place.
The unusually large numbers of MPs from all parties who participated in the discussions and supported the Bill in another place bore witness to the enormous amount of public concern which has been presented to them both from their constituents and from involved organisations of all kinds. Hundreds of thousands of people have signed various petitions on this issue and a large number of newspapers throughout the country have campaigned for fireworks control.
A recent report from the Convention of Scottish Local Authorities (CoSLA) on the issue of fireworks is one of the most comprehensive of its kind and clearly exposed the inadequacy of the current system of controlling fireworks and laid out the main issues disturbing the public.
There is the issue of noise and nuisance. All over the UK there is the clear perception that fireworks have become louder and their use extended, both throughout the year and into the night hours. Fireworks are part of celebrations now for religious festivals as well as personal celebrations such as weddings and birthdays and there are no formal decibel limits. There is also a disturbing increase in what can be called anti-social and even criminal use to destroy property and to harm people and animals.
There is also the question of injuries. Statistics show that after a decrease following the 1997 regulations and fireworks safety campaign, the past five years show the figures rising rapidly towards their previous peak. Of course the figures are recorded only for the four weeks around 5th November and so do not include injuries in the ever-increasing periods of current fireworks use such as New Year.
The BMA has written to me stating that it supports the Bill to improve fireworks safety as a necessary public health measure and expresses the hope that the Bill′s provision will help to prevent the needless pain and misery of those suffering injury each year from the misuse of fireworks.
An upsetting aspect of the misuse of fireworks is the increase of injuries to both domestic and farm animals, some from deliberate attacks and others from the
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visual and aural effects of unexpected explosions of fireworks in their vicinity. The Guide Dogs for the Blind Association, which has been at the forefront of the active supporters of the Bill, and to which I am particularly grateful for all its help and support, reports that currently throughout the year it has to retire prematurely, retrain or sedate many guide dogs because of fireworks. Some four to six are retired every year. As many as 50 others need retraining and hundreds more have to be sedated to help them cope with the problem. In addition to the distress to the dogs and their owners, this entails a considerable financial cost to the charity since the lifetime cost of each dog is around £35,000.
The question of control of licensing and storage is highly unsatisfactory. On payment of about £13, an annual licence for the storage of fireworks can he obtained. The local authority or, in metropolitan areas, the fire authority, cannot refuse to grant a licence and has no powers to revoke it. Over 95 per cent of fireworks in the United Kingdom are imported. There are estimates that between 9 to 13 per cent of those imported do not pass to legally-licensed storage but are stored illegally or container loads are quickly and surreptitiously split up to circumvent the laws on storage.
The existing law on fireworks is based on a number of diverse pieces of legislation: the Explosives Act 1875; the Consumer Protection Act 1987, the Health and Safety at Work etc. Act 1974; the Noise Act 1996; the Protection of Animals Act 1911 and the Protection of Animals (Scotland) Act 1912. In other words, the current law is a mix of an archaic 125 year-old law and other pieces of legislation dealing with issues such as consumer protection and noise, which have been tangentially applied to the issue of fireworks misuse.
A voluntary code has existed between the DTI and representatives of the fireworks industry since 1975 but in addition to it being wholly voluntary, there are differing interpretations of what has been agreed in a number of key areas and mixed opinion about the code′s influence. In the light of all that, it is little wonder that the concern both of the general public and the directly involved organisations has led to an amazingly comprehensive and wide-ranging list of organisations which are in support of the Bill. Twelve leading animal charities and organisations have agreed a common position in support of the Bill. Most of your Lordships will have received information from some or all of them. They are: Blue Cross; Guide Dogs for the Blind Association; National Canine Defence League; Battersea Dogs Home; RSPCA; SSPCA; PRO Dogs; National Dog Wardens Association; Pet Care Trust; Wood Green Animal Shelter: Cats Protection League, and the Kennel Club.
In addition, the Bill is supported by the British Horse Society; the British Medical Association; the Trades Union Congress; the National Farmers Union; the Royal Society for the Prevention of Accidents, and the Convention of Scottish Local Authorities. Significantly, three groups representing the fireworks industry have stated their support for the Bill: namely, the British

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Fireworks Association; the British Pyrotechnics Association and the Explosive Industry Group of the Confederation of British Industry.
The Convention of Scottish Local Authorities reported from its inquiries that the Association of Chief Police Officers was of the opinion that fireworks misuse has escalated significantly, resulting in its becoming a serious community problem, which causes considerable annoyance to the general public and affects the quality of life in local communities.
The Chief and Assistant Chief Fire Officers′ Association expressed concern about the increasing misuse of fireworks and about the need to strengthen the current system. Indeed, it offered its support for the Bill. The Society of Chief Officers of Trading Standards voiced particular concerns about the problems of storage and supply. The SSPCA reported that 90 per cent of vets who responded to its survey had treated animals for injuries resulting from the misuse of fireworks.
I turn now to give a brief outline of the provisions of the Bill. Clause 1 establishes the definition of a firework. Scope for amendment of this definition is included to allow an adequate response to possible new products being developed.
Clause 2 grants the powers to enable fireworks regulations to he made and outlines the grounds on which they can be made. These include protection of humans, animals and property. A requirement to consult with interested and other relevant groups before making regulations is included, although there is scope for making emergency provisions.
Clause 3 allows for sales to minors to be banned. The intention is that the existing minimum age of 18 should he retained. Clause 4 allows for the times at which fireworks can he sold or used to be limited. Scope is included to allow exceptions such as post-11 p.m. use at New Year and so on. but the intention is that this clause will bring about a year-round 11 p.m. curfew on general firework use.
Clause 5 allows for the sale of certain categories of fireworks to be restricted to those trained, experienced and/or insured, as appropriate. Clause 6 allows for conditions such as training, insurance, consultation with those nearby and/or appropriate local authority permission to he applied to those intending to hold public firework displays. The intention is that those holding displays would be expected to take reasonable steps in their organisation to ensure that certain standards in respect of training and insurance are adhered to and that the impact of these displays on people or animals nearby is curtailed or minimised.
Clause 7 allows for the existing system of licensing suppliers to be strengthened. This of course will require careful consultation, but it has been argued, not least by my honourable friend Bill Tynan in another place, that a two-tier system should be introduced, with a lower tier allowing a retailer to sell fireworks for a limited period around 5th November, and a higher tier, with a higher cost and a stricter standard of training, record-keeping and so on, should be applied to those selling all the year round. These
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licences could be refused or revoked, and the higher tier would apply to those selling via the Internet or by mail order.
Clause 8 allows regulations to be made in respect of the information that must be provided about fireworks. The intention is that this would relate to packaging and information provided with both packs and individual fireworks. Clause 9 allows regulations to be made in respect of the importation and manufacture of fireworks. The intention is that information should be provided to confirm that fireworks entering the UK are being transported to legal storage and that. if not, action could more swiftly be taken.
Clause 10 allows for and defines the nature of training courses referenced under fireworks regulations. The intention is that, in consultation with the industry and other interested parties, appropriate training courses and standards would be established to cover those areas where training would be appropriate. Clause 11 makes it an offence to contravene a fireworks regulation with maximum penalties laid down.
Clause 12 outlines the powers of enforcement of those acting under fireworks regulations. The intention is that local trading standards officers, liaising with the police, health and safety executives and Customs and Excise, as appropriate, would be the prime enforcement mechanism. Clauses 13 to 19 are technical clauses relating to financial provisions, the means of firework regulations coming into law and a number of other minor aspects.
It should be noted that the Bill is an enabling measure. It grants a package of powers to make firework regulations which can be changed in response to changing circumstances. There is, however, a clear expectation of what, in the first instance, the powers granted under the Fireworks Bill would be used to achieve. Concerns have been raised in respect of these Henry VIII provisions, but it is expected that the reassurances given by the Government in 1998 to the House of Lords in respect of a similar Bill on fireworks will be repeated.
I should just say that in relation to Scotland, the Bill is a mixture of reserved and devolved matters. A Sewel Motion was passed in the Scottish Parliament on 26th June 2003 after a two-hour discussion in which not one MSP spoke against the Bill. We were all in favour of action which of course reflected the concerns expressed by their own constituents on this matter.
A Section 63 order is being prepared to give Scottish Ministers concurrent powers with UK Ministers in relation to Clause 4, which deals with the prohibition of supply, possession or use of fireworks in certain circumstances, and Clause 6 dealing with public fireworks displays.
I greatly appreciate the effort of all noble Lords who have put their names down to speak on the Bill, especially on a Friday in July. It is perhaps a significant omen that we are having the Second Reading on the anniversary of American Independence, a day on which there may well be fireworks parties, which we all

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hope will be safe and happy ones. This Bill should ensure that in future all such events surely will be. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Baroness Ramsay of Cartvale.)
12.56 p.m.
Lord Carter: My Lords, I begin by thanking my noble friend Lady Ramsay of Cartvale for introducing the Bill, which I am sure will receive widespread support. There have been a number of failed attempts in the past to get similar Bills on to the statute book. We must do our best in this House to ensure that that does not happen again. However, there is an important procedural point regarding the passage of the Bill on to the statute book, to which I shall return at the end of my speech.
We have all received a large amount of briefing from a number of organisations supporting the Bill. My noble friend pointed out that no fewer than 12 animal charities and a wide range of other organisations, including the BMA, have expressed support.
I wish to express my support for the Bill for very particular and personal reasons. Both our children were born with substantial handicaps of hearing and vision. As a result, they both went to a school for the blind. My daughter has been a guide dog owner for 17 years.
When I saw the Bill had been tabled, I remembered that some children at the school our children attended had been blinded by fireworks. I got in touch with the teacher who taught our children and asked him how many children he had known in that category. He said that in his time there—some 10 years—that he could remember five children who had been blinded by fireworks. That is just one school for the blind over a period of 10 years. How many more children and adults are there who have suffered serious eye damage as a result of fireworks? If the Bill becomes law, we must hope that such unnecessary handicap is brought to an end.
When I told my daughter that I intended to speak in this debate she expressed a trenchant view—as is her wont—that she would ban all fireworks except those used in properly controlled displays, and even then there would be the effect on animals to consider. Her last guide dog, Vita, was absolutely terrified of fireworks. It was painful to see her reaction every November and on other occasions when fireworks were exploding. In fact, at those times her condition was so bad that she had to be sedated with the canine equivalent of Valium, which meant that she was incapable of working as a guide dog for at least two days.
Your Lordships will have seen the excellent briefing prepared by the coalition of animal welfare groups and the figures quoted—448 dogs treated last year for firework injuries, 20,308 dogs with behavioural problems and 24,875 dogs which had to be given medication. Those are the global figures, but I remember a lovely, friendly golden Labrador turned into a cowering and trembling animal, who, however
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much we tried, could not be comforted and had to be sedated. As I say, sedation takes some time to wear off. Your Lordships will know that that is not an isolated incident; they have heard the figures from my noble friend; and a wide range of other animals have similar problems where fireworks are concerned.
Those are the two brief, but I hope powerful, points I wish to make regarding the effects of fireworks on blindness and on guide dogs in particular.
I shall conclude with an important procedural point. As I am sure your Lordships know, if the Bill is amended and must therefore return to the Commons, it will not become law. As I understand it, Commons procedure is such that next Friday, 11th July, is the last day in the Session allotted to Private Member′s Bills there. Clearly, the Bill will not be able to pass all its stages in this House by next Friday, so if it must return to the Commons, it will fall.
In passing, that is a general point that applies to all Private Member′s Bills in this House as we approach the Summer Recess. That point should be considered by the business managers and House authorities in both Houses. I tried and failed when I was Chief Whip; perhaps under the new found freedom of the back benches I shall try again to get the system changed whereby the Commons does not and will not consider any Private Member′s Bills after the Summer Recess.
The Bill has been thoroughly considered in the other place. I understand that all the necessary amendments were made there, so I urge your Lordships not to require the Bill to have a Committee stage, so the remaining stages can be dealt with formally during the overspill. We can then be sure that the Bill will become law this Session. If it does, it will be of great benefit to both people and animals. I am delighted to give the Bill my support.
1.1 p.m.
Baroness Seccombe: My Lords, I do not intend to detain the House for long, but I should like to take this opportunity to say a few words in support of the Bill. I very much hope that this will be the only time that we shall debate the matter, as delaying the Bill′s progress will, as the noble Lord, Lord Carter, explained, cause it to fall in this Session.
I am sure that most noble Lords will agree that, when organised well, fireworks are a magnificent spectacle and often the highlight of a celebration. A professional show can be a truly magical experience, with high quality fireworks set off with expert timing to music. Fireworks evoke wonder in adults and children alike with their splendid colour, light and sound that never fails to inspire awe.
It is for this reason that the Bill is before us today: to preserve the good bits; the pleasure fireworks bring and the fun and festivities with which they are associated. The fireworks industry recognised the importance of that when it took the initiative to introduce voluntary measures in the 1976 firework package deal that was endorsed by the Government. For alongside the good bits, fireworks are capable of causing considerable harm to those who mishandle

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them and to those people and animals in the vicinity who are disturbed by loud noises that continue late into the night. Existing legislation does not go far enough to protect them.
I am particularly concerned about the impact that fireworks can have on working dogs. It saddens me to see the effect that fireworks can have on any animal. I have a small dog that is petrified by fireworks and trembles all over when she hears the cracks and bangs, hiding her head in the cupboard to try to get away from the sound. But that must be so much worse in the case of working dogs which have been trained at great expense and are relied upon by a disabled person. Those dogs do such a marvellous job, bringing companionship and enabling the blind, deaf and wheelchair-bound to live as normal life as possible. It must be devastating for a dog owner to experience a loyal guide dog being badly affected by fireworks. I understand that the numbers involved are not huge, but even one is too many.
I see the Bill as a way to ensure that fireworks maintain their well-deserved good reputation—a Bill to facilitate regulation so that we can enjoy fireworks for many years to come. But let us also ensure that when people think of fireworks they think of spine-tingling excitement rather than sleepless nights, street vandalism and cowering animals. This is what the Bill seeks to achieve; I welcome it wholeheartedly.
1.4 p.m.
Lord Joffe: My Lords, in supporting the Bill so ably and eloquently introduced by the noble Baroness, Lady Ramsay, I must declare a rather personal interest. My wife′s birthday falls on 5th November. Instead of celebrating, she, her nervous cats and petrified dog tend to cower away together in the most sound-proof room of our house as fireworks explode in our village and a number of rockets end up on our lawn.
Although I would not wish unnecessarily to deprive our neighbours or anyone else of the pleasure they derive from fireworks displays which can be foreseen and against which precautions can be taken—such as on Guy Fawkes night—it is the weeks before and after which have the potential to cause the greatest shock and distress, as fireworks are launched haphazardly and unexpectedly. Indeed, that occurs not only during those weeks but also from time to time throughout the year for no accountable reason.
Having regard to the dangers to people—particularly children—to animals and to property, few would oppose the principle that careful regulation is necessary. But it would be wrong to take that to the extreme that fireworks should be completely banned. As the noble Baroness, Lady Seccombe, pointed out, they provide much pleasure to many on festive occasions and are sometimes a spectacular and even beautiful sight.
A balance clearly needs to be struck and that is exactly what the Bill achieves. Although the powers given to the Secretary of State are wide, they are restricted by the provisions of Clause 2(4) requiring that the Secretary of State, before making regulations,
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must issue a full regulatory impact assessment setting out details of their costs and benefits and their wider economic, social and environmental impact. Added to that are the requirements under Clause 16(2) for a draft of the statutory instrument containing them to be laid before Parliament and approved by a resolution of each House. As the noble Baroness, Lady Ramsay, pointed out, in addition certain commitments have already been given.
This is an excellent and balanced Bill that will he welcomed by the public, the medical profession, the animal welfare organisations and, I understand, the fireworks industry itself.
1.7 p.m.
Lord Hoyle: My Lords, in supporting and welcoming the Bill, perhaps I may first, like others, thank my noble friend Lady Ramsay of Cartvale for introducing it. It is an important measure. As has been said, at one time most of the emphasis was on injuries sustained by private firework displays, especially to young people. Attention has already been drawn to the injuries that they have suffered.
Fireworks used to be centred around 5th November, and one used to be able to safeguard one′s animals around that time, because it was only for a day or two before and after that one had to try to calm them or keep them in. Nowadays, that period has got longer and longer and fireworks take place at so many events—wedding anniversaries, birthdays and other celebrations of one kind or another—that that is increasingly difficult.
From my experience at home, it is more difficult to keep the cat in. Cats panic easily and have been known to desert their home and get lost. We also have two rather large dogs: a Rottweiler named Harold and a boxer named Herbie. They are normally fairly quiet and bark only when anyone comes near the property, but when neighbours have fireworks they bark continuously. No one would welcome two such large dogs making so much noise over such a long period—apart from the effect on the dogs.
Guide dogs and injury in relation to them have also been mentioned. There is also the cost to society. Fireworks also have an effect on farm animals. Some people throw them at horses and other animals causing them extreme distress. I am sorry to say that it sometimes occurs in the countryside where I live.
I welcome the introduction of this regulatory measure. It does not stop the use of fireworks altogether, but it looks at when they can be used, making them safer than ever and reducing animals′ suffering. The measure has public support. One need only consider the hundreds of thousands who have signed petitions, many of which have been sent to MPs, who have had a very heavy postbag. My son, the MP for Chorley, is not alone in having to deal with the issues. The Commons have certainly welcomed the Bill, and it has wide support in this House. I hope that no amendments are tabled that could thwart the passage of the Bill into law. We all agree that the

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measure is necessary. I wish the Bill well. I also wish my noble friend well in her pursuit of seeing the Bill enacted.
1.11 p.m.
Lord Brougham and Vaux: My Lords, as a vice-president of the Royal Society for the Prevention of Accidents, it is my great pleasure to give RoSPA′s wholehearted support to this enabling Bill. I also congratulate the noble Baroness, Lady Ramsay, and Mr Bill Tynan for bringing the Bill to Parliament. I thank the noble Baroness for her elucidation of the Bill and for giving me a background briefing.
Over the past four years, the total number of injuries in the four-week period of Guy Fawkes Night, 831 people were injured in 1998, 1056 in 1999, 972 in 2000, a staggering 1,362 in 2001 and 1017 last year. Action is long overdue. Those are the only statistics kept, so we cannot tell what happens at New Year′s Eve or at other times.
The society has long advocated many of the measures contained in the Bill, particularly those relating to licensing and training. It provides a good framework for future regulation of fireworks to enable a sensible balance to be achieved between the pleasure that fireworks can give and necessary safety.
RoSPA does not seek to ban all use of fireworks by the public, as they give great pleasure to many. We also have concerns about promoting an increase in the manufacture of fireworks by amateurs, which has led to serious injury in the past. RoSPA does not wish to spoil the public′s enjoyment of spectacular public displays. However, we wish to ensure that the public and organisers of displays are as safe as possible.
The Bill contains many useful provisions to allow for better controls. The clampdown on illegal sales, for example, is long overdue. I hope that the legislation and the consultation that follows it will promote a fundamental reappraisal of the use of fireworks, which will put an end to their irresponsible use while retaining most of their enjoyment value.
It must be remembered that most injuries inflicted by fireworks could be avoided with more care and thought. I support the Bill wholeheartedly. I also support the plea made by the noble Lord, Lord Carter, that the Bill should not be amended and should go in the statue book as quickly as possible.
1.14 p.m.
Lord Brooke of Alverthorpe: My Lords, I, too, support the Bill. Like others, I express my gratitude to the noble Baroness, Lady Ramsay of Cartvale, for speaking to it in such a comprehensive and admirable way. I also pay tribute to Bill Tynan of the other place for his persistence and determination to address the problems that we are discussing.
However, it is with considerable regret that I see the need for such a Bill. I am no kill-joy; I like fireworks and wish to continue to watch them and to witness their technical development. Fireworks become ever more spectacular as each year goes by. Like most
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people, I want to continue to get pleasure and entertainment from them. However, like an increasing number of people these days—I am glad to hear from the Minister′s statement that the Government have come to share the view—I believe that the misuse of fireworks, particularly their noise, has started to blight the lives of many people, especially the elderly, the blind, babies, very young children, pets and other animals. An increasing number are hurt by that growing anti-social behaviour.
I was surprised that the problem was not covered in the Government′s Anti-social Behaviour Bill. Perhaps the Minister might comment on that. In addition, I would welcome a view from him on what would be the Government′s intentions, if this Private Member′s Bill failed, to ensure that they addressed the issue.
As recently as 10 to 15 years ago, we would see and hear fireworks only on or around 5th November, possibly at New Year′s celebrations and on rare occasions at other times of the year. Now, because fireworks seem to be on sale all year around, they are set off every week of the year, often at unearthly hours. I live in Brighton, where, as recently as last weekend, my wife and I were disturbed by thunder crackers, first at 4 a.m. and later on Sunday afternoon. It is difficult to cope with, especially if you have young children or pets.
Thunder crackers are air bombs, which, I understand, have now been voluntarily banned by the industry. But will self-regulation be tough enough to ensure that the ban remains, when, as recently as last week, air bombs were set off? In any event, ordinary bangers are now much louder than previously. I share the view with many in the animal welfare industry that we are moving towards a point where the industry must introduce a limitation on the decibels of noise created by fireworks. Had we had the opportunity of so doing, I would have liked to suggest today that this House move an amendment to introduce a limitation on the decibels of noise—perhaps around 100 decibels. But, given that that would prejudice the Bill, it would he inappropriate to so do. We must make progress wherever we can.
However, during our deliberations we should send a strong signal to the industry that, if our steps to rectify the problem are inadequate, some of us will seek the introduction of a limitation. In any event, European legislation will require a limitation in due course, so it is important that the industry starts to address the matter now.
With those reservations, and looking to the industry to remedy the problem that I have identified, I repeat my support for the Bill. I also express my gratitude to those who have spoken today and everyone who, I hope, will support the Bill when it returns to the other House.
1.19 p.m.
Lord Lucas: My Lords, I should be quite happy to see the Bill, or one very like it, pass into law. But I am not prepared to let a Bill of such importance pass through this House unscrutinised, just because of the deficiencies in Commons procedures. This is a

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Commons Bill; if they had wanted to bring it through earlier they could have done. It received its Second Reading a long time ago, and the fact that it has reached this House only now is entirely down to them. I have very serious problems with the Bill as currently drafted.
First, to start off on a general point, those who support the interests of pets—and I own a dog and cat—should be more conscious of the inconvenience to which these animals put our fellow citizens. Anyone walking the streets of London constantly has to watch where they are treading because of what dogs have left behind. All of us, especially in the more built-up parts of London, are conscious of the absence of small birds due to the prevalence of cats. As owners of these animals, we have a very large impact on the enjoyment of life by our fellow citizens. We should be very conscious of demanding that we reduce their enjoyment merely because it has an impact on the pleasure that we and our pets get out of life.
I was also very disturbed by what the noble Baroness, Lady Ramsay of Cartvale, said today about the statistics from Guide Dogs for the Blind. The damage to animals has increased by a factor of 100 since the statistics given in the House of Commons at Second Reading. I wonder what has happened to produce that enormous increase in the figures provided by Guide Dogs for the Blind, and whether we can really rely on what that organisation says. Truth is a very important commodity and the RSPCA and Guide Dogs for the Blind should have more consideration for the statistics and stories that they are putting forward. They might command support of people who trip over the facility with which they change their stories, and try to conceal, in the case of the RSPCA, their real motives.
What the RSPCA wants to do is effectively ban all private use of fireworks. It wants to reduce the decibel limit to 95 decibels, which is roughly that of a horse farting. That would not exactly be most people′s idea of an enjoyable firework display. The RSPCA wants to remove the private use of fireworks and have them only at organised displays. This is an area in which we have to balance the interests of people who want to enjoy fireworks—
Lord Hoyle: My Lords, the noble Lord, Lord Lucas, may be posing conjectures about bad dog owners and other things, but this Bill is not about that. It is not about banning everything, so could we address the Bill as it is rather than pose conjecture about what might happen in the future?
Lord Lucas: My Lords, I will come onto that matter later because, of course, the Bill is not very much as it is. The Bill is largely conjecture about what the Government intend to bring forward by way of regulations. The principal point is to ensure that this Bill, in the form of the regulations which will come forward under it, provides a reasonable balance between the interests of citizens who wish to enjoy fireworks and the interests of those who are inconvenienced by their use. That will largely be a matter for the regulations under the Bill.
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I asked in the Printed Paper Office whether any draft regulations were available and I was told that there were not. If any are available, I would be delighted to see them, because some of the powers in clauses under this Bill are extremely wide. I would not be happy to see the Bill go through this House without having a very clear understanding of what the Government intend should be in the first set of regulations. The Government could either publish them or we could have a Committee stage, at which the Government could respond to amendments and set out on the Floor of the House what they intend to have in the regulations.
Secondly, I am very conscious that, with this Bill, we are regulating to try to deal with problems that stem from the misuse of fireworks, which is already illegal. I want to be very sure that the restrictions that we would place on ordinary citizens would actually have the effect of mitigating a nuisance rather than just depriving ordinary citizens of the enjoyment that they are currently getting out of using fireworks. My mind goes back to the handguns Bill, from which we have received no benefit whatever. Handgun use has gone up enormously since we passed the Bill. We have merely deprived a few thousand citizens of an innocent enjoyment, pastime and pleasure. We have received no benefit from the ban ourselves, although we did it with the best of intent.
I do not wish to see this Bill go down a similar route, because many of the ills—such as the use of fireworks directly on animals, in streets or at anti-social hours of the night—are matters that are already controlled under other legislation. I want to be certain that the powers that we are taking under this legislation will have an effect that is disproportionate to the deprivation of enjoyment that they will cause.
Most particularly, I have reservations about the meaning of Clause 2(1). As I read the clause, it amounts to a total ban on the individual use of fireworks—perhaps of any use of fireworks. There is no way in which a firework can ever not be dangerous; the thing is an explosive. Explosives are, by definition, dangerous and can cause injury, alarm, distress or anxiety, whenever and however they are used. There is no way in which a dog who is sensitive to fireworks will be calmed by the thought that the display has been licensed by the local authority or that the fireworks being used fall within certain acceptable limits. A dog who is frightened of such things and, presumably, also of thunder, is frightened, and distress will be caused to such a dog wherever and whenever fireworks are used.
I agree that there should be limits on the noise of fireworks. They have become too noisy. Anything that is to he considered an ordinary firework will distress some animals. A firework of any description will be dangerous. Clause 2(1)(a) refers to provisions,
"for securing that there is no risk that the use of fireworks will have the consequences specified in subsection (2)".
The only way of doing that is to ban all fireworks. There is no other way of achieving that objective. The clause also refers to provisions,
"for securing that the risk that the use of fireworks will have those consequences is the minimum that is compatible with their being used".

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The minimum compatible with their being used is having desktop crackers, such as one gets in crackers at Christmas. That is the limit to which fireworks will be reduced.
The RSPCA will use the clause to force the Government to abolish the ordinary use of fireworks. It has a great deal of money, and, as we have seen with fox hunting, it has the determination to pursue campaigns over a long time and with a great deal of support. We should not allow the Bill to go forward with the clause in it as it stands.
My basic position is that I wish to see a Committee stage, and I expect to vote. I understand the way that other noble Lords feel about the matter and that there was much support for the Bill. I will happily make available as much time as may be appropriate to the sponsor of the Bill and to the Minister, if he so wishes, to see whether my objections can be dealt with in meetings, rather than on the Floor of the House.
1.28 p.m.
Baroness Gale: My Lords, I am pleased to take part in this Second Reading debate. The measure is long overdue, and many of the proposals will be greatly welcomed.
The Bill contains many measures that I and others have been concerned about for a long time. The Bill will enhance the safety of those who use fireworks and of those who enjoy firework displays. It will reassure those who have no option other than to put up with the nuisance and noise that they must now endure.
Cutting down on the noise of fireworks and restricting sales will, I have no doubt, make life more tolerable for us all. As noble Lords have said, fireworks are used throughout the year. I hear complaints every week about the misuse of fireworks, which seem to be used for every occasion now, rather than, as was once the case, just on 5th November. I remember that, when my children were small, I always had the dilemma of whether to buy them fireworks so that they could be the same as other children, or not. I was always apprehensive and nervous about the dangers of fireworks. I resorted to giving them sparklers, which, I now understand, can be dangerous. I appreciate that fireworks are safer now than they were.
I wish to make a few points in support of the Bill. We are all aware of children and vulnerable people who are frightened by loud and sometimes deafening noises late at night when there is a celebration going on in the neighbourhood. Animals, too, are badly affected by the noise and bright lights of fireworks. Many animal charities support the Bill.
The RSPCA, in its excellence document, Quiet Please, gives a number of examples of how animals suffer. It states that it is seriously concerned about the number of animals that become distressed by the noise and are lost or injured as a result. The RSPCA is calling for the Government to set a maximum noise level of 95 decibels, which would allow the public to enjoy their own fireworks displays. That level of noise
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is likely to cause the minimum of distress to animals. I understand that 95 decibels is not very loud, although I do not think that I would resort to the description of a particular noise level described by the noble Lord, Lord Lucas.
Loud noise levels can also upset many children. Both children and animals would benefit from a lower noise level for fireworks. The RSPCA campaign to lower the maximum level of noise has much merit to it. Noble Lords have mentioned guide dogs and the Guide Dogs for the Blind Association, from which we have all received briefing. My noble friend Lord Carter gave a vivid description of how guide dogs and people using them can be affected by firework noise. As my noble friend Lady Ramsay said, as well as animal charities supporting this Bill it has received support from many other bodies too, demonstrating that the Bill is welcomed by a whole range of organisations.
During Second Reading in another place, many MPs repeatedly said that they welcomed the Bill because they receive a great deal of correspondence from their constituents expressing concern regarding fireworks—especially as regards noise, nuisance and the hooligan element who misuse fireworks. All who spoke in that debate were supportive of the Bill, which is a good illustration of its popularity. I repeat that I am very grateful to my noble friend for taking the Bill through the House. I think that the majority of noble Lords speaking today will welcome it on the statute book.
A noble Lord: My Lords, all except one.
1.33 p.m.
Lord Redesdale: My Lords, I, too, thank the noble Baroness, Lady Ramsay, for introducing this Bill, which had cross-party support in another place and is supported very widely. I did not plan to speak in this debate until last Wednesday, when at about 12.30 a.m. I was awoken by a private fireworks display. It went on from approximately 12.30 to 1 a.m.
I loathe fireworks. I am not one of these people who would stand up and say that I like them at all. I have always loathed fireworks. Perhaps that is not the best of criteria on which to speak about the Bill. On the other hand, my wife loves fireworks. However, I support the daughter of the noble Lord, Lord Carter, in her desire for a total prohibition on the use of fireworks. It may be all right to have a large display a long way away, but apart from that I am against them.
My view is not reflected in the provisions of the Bill. It is a proportionate Bill that deals with the reality of fireworks use; they are now more common and cheaper. Unfortunately, there are a large number of illegal fireworks which are dangerous and designed to cause a maximum amount of noise. That is a problem.
There are two problems. The first is the irresponsible use of fireworks. The noble Lord, Lord Brougham and Vaux, speaking in his RoSPA capacity, spoke about the horrific number of accidents that have to be dealt with. Of course, those are just figures for November. Anyone living in an urban area, especially near a park, will testify

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that fireworks are used at any time, day or night, all year round. Much has been made of the risk to animals, which should not be underestimated. The words of the noble Lord, Lord Lucas, were unfortunate, especially his aspersions as regards the RSPCA, which has to deal with the consequences of malicious fireworks use.
The second problem is—
Lord Lucas: My Lords, one should note that I said that these were already crimes. Whether a person uses a firework or a pickaxe to hit a dog, it is the same crime. It is not the crime of the firework existing that someone chooses to use it against the dog; it is the crime of the person wishing to harm the dog. That is the mistake we made as regards handguns. I do not wish us to make it again.
Lord Redesdale: My Lords, I find it rather strange that this Bill and handguns can be put into the same context. However, I think that many in this House were slightly surprised by the words of the noble Lord concerning many charitable organisations. I think that they, too, will be surprised. But that is a matter for the noble Lord and he is free to make those aspersions.
The second problem is inconsiderate use of fireworks. The ready availability of fireworks means that, unfortunately, they will be used in an inconsiderate manner by many people, although this could be a small proportion of the overall use of fireworks. That is why self-regulation, as has existed until now, is no longer realistic. The Bill is supported by the fireworks industry. It is a good Bill. The noble Lord, Lord Lucas, fulfilled the criterion that this House needs to fulfil in that this Bill perhaps should be scrutinised in this place.
I take on board the words of the noble Lord, Lord Carter—namely, that this Bill, if amended, would fall. This is a good Bill. It needs no amendment. On these Benches, we shall do everything to ensure that the Bill receives a swift passage.
1.37 p.m.
Baroness Miller of Hendon: My Lords, I, too, thank the noble Baroness, Lady Ramsay of Cartvale, for the extremely comprehensive way she introduced the Bill, and for her description of the great support she has received from various organisations around the country. That was very useful for noble Lords to know.
A cynic once said that Guy Fawkes was the only person who had ever entered Parliament with the right idea! Bonfire Night is about as politically an incorrect celebration as one could envisage—namely, the burning, in effigy, of a religious opponent, a misguided revolutionary who had been arrested, tortured and then hanged, drawn and quartered. It may surprise some of your Lordships to learn that the "thanksgiving service for the deliverance of November 5th" was not removed from the prayer book until 1854. Until modern times, the event was often marred by anti-Popery demonstrations.
These days, possibly as a by-product of the diminished teaching of history in our schools, a large part of the public have no idea of the origins of the
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event and its name has somehow changed from Guy Fawkes Night to Bonfire Night. Perhaps this is a reason for one of the nuisances caused by fireworks; that is, that the celebrations seem to extend for a week either side of 5th November, especially to the weekends either side of that date.
But 5th November is not the only date when fireworks are now used as part of a celebration. The festival of Diwali—the Hindu festival of light—now seems to attract a large, but usually well organised, fireworks display in October or November. In addition, private events seem to be used as the excuse for letting off fireworks throughout the year. At around 10 p.m. last Friday near my home, there was a startling 10-minute outburst of explosions, presumably to celebrate a birthday. I cannot imagine that it was to celebrate the centenary of the Central Line or the creation of the Japanese yen, which both happened on that same date in 1871.
To give your Lordships some idea of the noise pollution caused by fireworks, the British Fireworks Association admits that the removal by its members of single-tube air bombs, a kind of Roman candle with a small whistle-bang rocket, which came into effect on 1st January last, will result in a staggering 30 million fewer loud bangs every year. That is apart from the hundreds of casualties that these particular so-called "pocket money" devices cause every year.
According to the association, one third of all fireworks injuries are caused by the fireworks being "misused by hooligans". We look forward to seeing what improvement in the number of casualties there is this year as a result of this act of self-denial on the part of British Fireworks Association members.
I live in a high part of London on the Hampstead border from where I have splendid views to the north and west. On Bonfire Night and, as I have said, during the surrounding weekends, on looking out of my windows I see the sky lit by distant displays of fireworks that look like a battle scene. Fortunately, from inside my house I can watch those displays without having to listen to the noise.
According to the Department of Trade and Industry, consistently the highest number of casualties occur at family or private parties, followed by what is euphemistically called,
"casual incidents in the street or other public places",
which I take to mean injuries possibly caused to entirely innocent bystanders. The age groups most usually injured are the over 20 year-olds, followed closely by children aged under 13. I am not sure what happens to those aged between 13 and 20 years, but that is what is shown by the statistics.
Apart from the human casualties, animal welfare groups are concerned about the distressing effects of the noise of fireworks on household pets, especially on guide dogs, which of course are more than simply household pets. Noble Lords will have received a powerful, but mercifully succinct, briefing from a number of the groups supporting this Bill, with an especially cogent reminder from Guide Dogs for the Blind of the substantial amount it costs that charity

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each year to retrain, sedate or retire animals traumatised by fireworks explosions. I believe that the noble Baroness or another noble Lord mentioned the figure of £30 million, but I am not sure whether I can recall the exact amount.
Injuries, both severe and lesser, and even deaths, along with noise pollution and damage to property and the cost of the provision of extra public emergency and medical services are all reasons for the introduction of further measures over and above the voluntary code of practice of the British Fireworks Association, which distributes 95 per cent of all family fireworks in the United Kingdom. Apart from the apparent shortcomings of the voluntary code, that still leaves 5 per cent unregulated.
The provisions of the Environmental Protection Act 1990 and the Noise Act 1996 are ineffective, in my opinion, in dealing properly with the noise nuisance. There are not enough enforcement officials to police every back garden in the country, and by the time a complaint has been made to the local environmental enforcement office and someone has been sent out to investigate, usually the party is already over and the damage done. Anyone who has complained about a noisy party with deafening amplified music will know only too well how long it takes between lodging a complaint and someone able to come along to do something about it.
This Bill is another in a long series of attempts to deal with the perennial fireworks problem. This time it avoids any attempt to deal with the specific damage and ill effects caused by fireworks and approaches the issue solely from the aspect of the supply of fireworks. It was introduced as a Private Member′s Bill by the honourable Member for Hamilton South, who I see is standing below the Bar. I congratulate him on having secured the Bill′s passage through the other place after no doubt shrewd tactical negotiations with the Government.
The Bill has received cross-party support in the other place, including that of Members of the Opposition Front Bench. That is not to say that its provisions, as distinct from the principles that it seeks to establish, are not subject to certain small reservations on our part. Indeed, some of those reservations were met by constructive amendments proposed by my honourable friends the Members for Blaby and Christchurch. As a consequence, I am glad to see that the regulations to be made under this Bill will be subject to the affirmative procedure and that the Government must subject any proposed regulations to full regulatory impact assessment.
As the noble Baroness, Lady Ramsay of Cartvale, pointed out, this is an enabling Bill and, as is usual with such measures, its efficacy will depend entirely on the content of the resulting regulations, which we will have the opportunity to scrutinise at a later date.
I have only three points to make about those forthcoming regulations. First and foremost, in common with my honourable friend the shadow Secretary of State for Trade and Industry, I urge the
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Government to ensure that the enforcement provisions are adequate and workable. Secondly, the Bill is to establish training courses. I hope that those courses will be short, apposite and as "untechnical" as possible. It is important that they should be, above all else, practical and not off-putting to those obliged to take them.
Lastly, I turn to the timetable for the regulations. We are only four months away from what might be called the fireworks season. I would like to hope that, before then, the regulations will have been drafted, subjected to the regulatory assessment procedure and approved by both Houses, taking into account that the Summer Recess is almost upon us.
I am pleased to note that the Consumer Minister shares my view that,
"There is too much noise, with fireworks being let off too far into the night and lasting far too long beyond the traditional season".
I also accept the assurance she gave in the other place during the Committee stage that the Government would enforce the 120-decibel limit when implementing the Bill. She promised that the Bill would provide,
"a raft of new powers to control the misuse of fireworks".— [Official Report, Commons Standing Committee C. 30/4/03, col. 28.]
I want to say briefly to my noble friend that I certainly heard what he said and that of course it is entirely for him to decide on what he will or will not do. But I should like to point out to him that this Bill was well scrutinised in the other place. It was not simply pushed through. Although I understand the comment made by the noble Lord, Lord Redesdale, that we in this House like to believe that the only well-revised Bills are those which are scrutinised in this House, we know that sometimes our colleagues in another place do a splendid job.
We wish the Bill well and we shall do what we can to facilitate its progress through your Lordships′ House.
1.47 p.m.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, I thank my noble friend Lady Ramsay of Cartvale for bringing forward this important Bill and I was glad to note the general support expressed for it during its passage through the other place. Quite simply, the Government support the Bill. Moreover, the speeches we have heard in this House suggest that there is, with one exception, a consensus among noble Lords in support of the measure. I was particularly glad to hear the speech made by my noble friend Lord Carter. He talked about this issue from real personal experience, which I thought was very helpful.
The support expressed today in this House reflects the broad support given to the Bill by many interested parties and various organisations, many of which were mentioned during the debate. We heard about the Guide Dogs for the Blind charity, the RSPCA, Blue Cross, the TUC, the British Medical Association and, indeed, the fireworks industry as a whole as represented by the British Fireworks Association.

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Perhaps I may say to my noble friend Lord Brooke that if this Private Member′s Bill should fail, the Home Secretary has expressed a desire to see what parts of it could reasonably be incorporated into the Anti-social Behaviour Bill. However, I hope that we shall not have to take that course, although we shall seriously consider it if that proves to be necessary.
Many people have serious concerns about the issue of fireworks, although it should also be noted that they are products from which many derive a great deal of pleasure. Notwithstanding the latter, a significant number of letters regularly arrive in the post-bag at the Department of Trade and Industry complaining about the misuse of fireworks and the consequent noise and nuisance that they cause. Many in our communities, including families with young children, older people and pet owners, all too often suffer at the hands of the irresponsible few who spoil things for the majority. I believe that this Bill provides us with the opportunity to control the sale and use of fireworks, which will help to control not only the rogue elements who misuse fireworks, but also to create a better regulatory framework for the supply and use of fireworks.
I agree with the noble Baroness, Lady Seccombe, that we want people to associate fireworks with pleasure and wonder and not with vandalism, injury and shell-shocked animals. I greatly enjoy fireworks but 1 see no reason why Notting Hill should every so often he turned into a place where it sounds as though the Battle of the Somme is being fought between warring factions in London. It is not necessary for pleasure or enjoyment.
Let me explain to the noble Lord, Lord Lucas, why the Bill is necessary. It does not cover matters which are covered by other Bills. The existing primary legislation used by my department to control fireworks is the Consumer Protection Act 1987, which provides regulation-making powers to deal with the safety of goods intended for private use or consumption and the provision of information in relation to those goods. However, there are limitations to the ways in which the powers in the Act can be exercised. For example, they do not enable the safe use of goods to be regulated.
The current secondary legislation made under the 1987 Act, the Fireworks (Safety) Regulations 1997, regulates certain kinds of fireworks in the following way. They prohibit the supply to the public of aerial shells, aerial maroons, shells-in-mortar and maroons-in-mortar, mini-rockets and fireworks of erratic flight—for example, squibs, jumping crackers, helicopters—as well as bangers, including batteries containing bangers and Chinese crackers. Furthermore, the 1997 regulations require all fireworks intended for supply to the general public to meet the requirements of British Standard 7114, the current safety standard for fireworks supplied to the consumer. The regulations also increase the minimum age for the supply of fireworks from 16 to 18 years of age.
There are powers under the Explosives Act 1875 to deal with the rather anti-social activity of letting off fireworks in the street or any other public place, to ban the sale of fireworks in the street and to govern safe storage of fireworks through legislation and licensing requirements.
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The Health and Safety Act 1974 also has regulatory import with regard to fireworks, where employers are required to ensure the safety of persons at work, which would include fireworks displays where the operators are employees. But this does not cover public fireworks displays which are operated voluntarily, such as the Rotary Club or Scout and Guide displays.
The main purpose of the Bill is therefore to provide the Secretary of State with an enabling framework of powers to address, by way of regulations, a number of fireworks problems which cannot be addressed by the powers available to current Acts of Parliament; to fill the spaces between such pieces of legislation and, in certain instances, supersede them. The Bill would thereby confer on the Government the power to make regulations to control, among other things, the times of day when fireworks may be used, the maximum noise limits on fireworks sold to the public and the importation of fireworks. Regulations would also require suppliers of fireworks to be licensed and ensure that public fireworks display operators meet certain conditions before giving displays.
As ever, the noble Lord, Lord Lucas, was courageous in standing up to make his points. It is a characteristic we have seen on a number of occasions. However, he put forward a misguided view. We have been here before, in 1997–98, when a similar Bill was talked out on its last day by a number of Opposition Back Bench MPs making a wider point about the fullness and accountability of debates on Private Members′ Bills. I do not believe that we want to go down that route again.
There are no draft regulations. We shall produce them after consultation.
The reason I believe the noble Lord is misguided is because I can see nothing in the Bill which would reduce in any way the enjoyment that most citizens have in fireworks. All it would reduce is the pleasure of those people who enjoy frightening their fellow citizens or animals. We can all agree that that is a good objective and I can see nothing in the Bill which would reduce the enjoyment that the average member of the public has in fireworks.
The noble Lord′s interpretation of Clause 2(1)(a) was somewhat wild. The fact that any regulations have to be agreed by an affirmative order of both Houses should give him some comfort that the regulations will not ban totally the use of fireworks in this country.
We shall certainly take on board the three points made by the noble Baroness, Lady Miller—on enforcement procedures, training courses and the timetable for regulations—although consultation may take a little time and we would be doing extremely well to get them in for 5th November.
If the Bill becomes law the following benefits are envisaged. It will provide an ability to reduce noise nuisance, specifically by prohibiting fireworks use beyond a particular time at night and by the possible restriction of sales over certain periods of the year. To much the same end, it will enable the Government to apply restrictions on or prohibition of the supply of certain kinds of fireworks, particularly with a view to

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prohibit the use of fireworks on the grounds of their noise nuisance potential as opposed to the sole ground of product safety. It would enable the licensing of retailers; subject fireworks displays to certain conditions; and promote the training of fireworks operators, which would ensure that events are managed safely while establishing an industry-wide standard and the promotion of professionalism.
The Bill very properly complements the general move towards reducing anti-social behaviour in society, ranging from unintentional nuisance caused by excessive noise at unreasonable times to those whose intention is to misuse fireworks in a manner which endangers both the general public and themselves.
I say to the noble Lord, Lord Lucas, that those are admirable objectives. We believe that they are the right objectives. We would like to see the Bill enacted but if it will help to ensure the safe passage of the Bill, we in the DTI will be more than happy to have meetings with the noble Lord and to reassure him on any particular points.
Lord Lucas: My Lords, I have frequently made an idiot of myself in the House—doubtless I will do so again—and perhaps I am doing so on this occasion. I shall certainly take up the Minister′s kind invitation. With luck, that will result in me making no further nuisance of myself on the Bill. I shall certainly take him up on his offer.
Lord Sainsbury of Turville: My Lords, if it has that end we will all be extremely pleased.
Some people believe that we should go further than the Bill does and ban sales of fireworks to the public. But fireworks bring much pleasure to millions of people and it should be noted that by far the majority of those people enjoy fireworks through their sensible and responsible use. Injuries come through misuse, through failure to follow instructions, through carelessness and through deliberate mischief. Banning the retail sale of fireworks to the vast majority of people who derive safe and innocent amusement from them because of the irresponsibility of a few would be unfair. It should also be noted that an outright ban could lead to the development of a black market in fireworks and, because of such an unreasonable prohibition, encourage people to produce home-made devices.
It is on these bases, and including the desire of the Government to balance safety with individual liberties, that we believe that the case has not been made for the banning of the sale of fireworks to the general public and limiting the use of fireworks to organised public displays alone. I am very happy that the Bill reflects this position.
The Bill offers a very real scope to improve the control of fireworks, both further to enhance safety beyond the limitations of the Consumer Protection Act 1987 and to tackle the distress, annoyance and anxiety that people can experience from fireworks. As
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a number of people have made clear, we must always bear in mind the considerable injuries that can come from fireworks, although the main purpose of the Bill is not focused particularly in that area.
I hope your Lordships will agree that the Bill can considerably reinforce and strengthen existing controls on the sale and use of fireworks. I believe it will deliver a significant lessening of concerns which so many have expressed about fireworks. We do not want to over-react and do away with a popular form of celebration and family entertainment. Rather, our concern is to ensure that in enjoying fireworks people are safe and do not cause annoyance and distress to their neighbours and communities. We believe that the Bill strikes a good balance between protection and the freedom of the community to enjoy fireworks, and we support it.
1.59 p.m.
Baroness Ramsay of Cartvale: My Lords, I am profoundly grateful to all noble Lords who have taken part in the debate and for the overwhelming support for the Bill that has come from all sides of the House. I am also grateful to my noble friend the Minister for expressing the support of the Government.
My noble friend Lord Brooke of Alverthorpe raised the question of noise levels, as did the noble Lord, Lord Lucas. There will undoubtedly have to be very wide consultation. It was discussed in another place— at some great length, as the noble Baroness, Lady Miller of Hendon, made clear. Different views were expressed as to where a decibel level should be fixed. I am well aware of the views of the RSPCA and what was said in another place by the Minister and Bill Tynan. The noble Baroness, Lady Miller, made it very clear what those views are. No doubt the matter will be thrashed out in the consultation process before the regulations appear. I was pleased to hear my noble friend the Minister explaining to the noble Lord, Lord Lucas, that the regulations will only be available after consultation has taken place. Obviously, that is why regulations are not available now.
This is not the time or place for me to deal in any detail with the points raised by the noble Lord, Lord Lucas. He raised several points about the responsibilities of responsible pet owners, which were quite outside the scope of the Bill. It is important, however, that I go on record on one or two points. I do not agree with his interpretation of Clause 2 as meaning that there would be a complete ban, and I was pleased that my noble friend the Minister was also of that opinion. Everyone except the noble Lord has recognised that the enjoyment and magic of fireworks will be safeguarded and continued by the Bill, as the noble Baroness, Lady Seccombe, and many others, made clear in their interventions.
I did not understand the noble Lord′s point about statistics. I shall study Hansard, and perhaps he should do the same and read my comments. Then we could both read the Commons Hansard and see what the points are. I am frankly very suspicious of all statistics, but that is merely a personal hang-up. I have no

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grounds at all to doubt that the statistics provided to me by charity organisations were given in good faith and are as accurate as they could be.
We have had a selection of excellent contributions including some very moving personal experiences, and I am very grateful to everyone who participated and who allowed us to have an insight into some of their personal and family life scenes, which were very intriguing. They also reflect the many different dimensions and concerns on the issue, and the importance and—I would maintain—the need for the Bill. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Immigration (Provision of Physical Data) Regulations 2003
2.3 p.m.
Lord Evans of Temple Guitingrose to move, That the draft regulations laid before the House on 12th June be approved [23rd Report from the Joint Committee].
The noble Lord said: My Lords, this statutory instrument is made in exercise of the powers conferred on the Secretary of State by Section 126 of the Nationality, Immigration and Asylum Act 2002. Section 126 enables the Secretary of State, by the making of regulations, to require that an immigration application be accompanied by physical data of an external characteristic. The regulations require that those applying for entry clearance in Sri Lanka will have to provide a record of their fingerprints when making their application. That requirement will be underpinned in practice by the collection of fingerprint data at post in Sri Lanka.
It is right that we now examine the benefits that can he derived from the collection of physical data from individuals who apply for entry clearance. To do that we propose to run a pilot exercise in Colombo, Sri Lanka, during which all entry clearance applications must be accompanied by a record of the fingerprints of the person making the application. The requirement will be fulfilled by the applicant having their fingerprints taken by a member of staff at the British Mission in Colombo. Only fingerprints taken at the British Mission will be acceptable because otherwise it will be not be possible to verify that the fingerprints provided are those of the applicant. Once the fingerprints have been collected they will be given a unique serial number and this number will be inserted on the visa application form so as to form a record of the fingerprints on the application. This record will allow copies of the applicant′s fingerprints to be accessed easily at a later date if necessary. The pilot will initially run for six months during which time applicants applying for entry clearance, regardless of nationality, will be expected to provide the required fingerprint data.
In common with many other governments, we consider that physical data of this kind, including fingerprints, iris or facial recognition, provide the only
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certain way to confirm a person′s identity. The collection of fingerprints allows a person to be linked to an identity once their details have been registered. That will aid us in our efforts to prevent document and identity fraud in the immigration field. It is essential that we embrace that technology and utilise it to ensure that those who have an entitlement to enter this country can do so without hindrance, but those who seek to circumvent our controls are prevented from doing so.
We have built into the regulations safeguards, equivalent to those that apply when taking fingerprints in the UK, for any applicant who is under 16 years of age. In all cases where a person under 16 years seeks to make an application, they will only have their fingerprints taken in the presence of a responsible adult who is over 18 years and not employed by the government.
It is intended that the fingerprint records collected in Colombo will be added to the Immigration and Asylum Fingerprint System database. That will allow for the identification of any visa applicant who subsequently makes either an asylum or immigration application in a different identity. That in turn will help establish the nationality of those who no longer have a basis on which to remain in the UK, and so aid with securing their removal. In common with other fingerprints collected in respect of immigration and asylum applications, data will be shared with the police and other law enforcement agencies in the prevention or investigation of crime. All such exchanges will be in compliance with the relevant data protection provisions.
The regulation provides that any application not accompanied by the required data may be treated as invalid, without a right of appeal. It is anticipated that the majority of applications that are not accompanied by a record of fingerprints will be treated as invalid. However, there will inevitably be exceptions, including applicants who because of physical disability or injury cannot provide fingerprints. This system will be operated in a reasonable way to limit the impact on applicants.
We have selected Sri Lanka in which to base this pilot as Sri Lankan nationals continue to make significant numbers of unfounded asylum applications, and to use false identities in the process. From a practical perspective we also have a substantial visa issuing post in Colombo that was able to accommodate the not inconsiderable upheaval that this pilot will inevitably involve. Finally, but not least, we have excellent relations with the Sri Lankan Government who have been co-operative and supportive as we develop this imaginative initiative. I commend the regulations to the House.
Moved, That the draft regulations laid before the House on 12th June be approved [23rd Report from the Joint Committee].—(Lord Evans of Temple Guiting.)
Baroness Anelay of St Johns: My Lords. I thank the Minister for that explanation. I make it clear from the beginning that we support the making of the regulations. However, I have one or two questions. I

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should perhaps add that the Minister has already satisfied me on probably the most significant of those. It is right that we should take all reasonable measures to ensure that persons given permission to enter the United Kingdom are indeed who they say they are. I was therefore pleased to hear at the end of the Minister′s remarks an explanation of why the Government have lighted upon Sri Lanka. He said that there have been significant numbers of unfounded applications from that country. I am particularly pleased that the Government have received the co-operation of the Sri Lankan Government. That is the important aspect which we hope will make this pilot exercise work.
The Minister said that the pilot is expected to last six months. What will be the measure of the success of the pilot scheme at the end of the six months? On what basis will the Government decide that the scheme has been sufficiently successful to be rolled out elsewhere? Do the Government have in their eyesight any other areas which will be second, third and fourth on the list? If so, is the Minister able to give us any indication? I appreciate that that will depend on whether the Government have already begun speaking to other governments on these matters.
The Minister said that the fingerprints will be taken at the diplomatic mission and then transmitted to the United Kingdom. Will the fingerprints be taken by the new laser technology? One assumes so. If so, which electronic transmission system will be used and how secure will it be? The Minister will be aware that we have been discussing secure electronic communication systems in our consideration of other Home Office legislation such as the Crime (International Co-operation) Bill and the Extradition Bill and that it is a matter of some concern.
The Minister referred to Regulation 4 which provides safeguards in respect of the provision of a record of fingerprints. Paragraph (4) states:
"This regulation shall not apply if the authorised person reasonably believes that the applicant is aged sixteen or over".
I am interested by the phrase "reasonably believes" and in how the person is to come to that reasonable belief. What kind of guidance will be given on how the decision regarding reasonable belief should be made, and by whom will it be given? What documentation is likely to be acceptable? I am sure that the Minister will understand that my concerns result from the fact that, as we know, there is a significant worldwide problem with the trafficking of children. We should always have that at the forefront of our minds in these matters.
I turn finally to the matter of costs. We are told in the Explanatory Notes that the cost of the pilot will be met from existing funds, but we are not given an estimate of the sum which will be swallowed up within the existing budget. What is the projected cost for what we are told is to include the deployment of equipment, the reconfiguration of offices and the additional staff that will be required?
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Within the context of those questions I certainly support the regulations.
Lord Avebury: My Lords, we also have no objection in principle to the use of biometric data for the purpose of curbing the use of false identities to evade immigration controls. There are just a couple of questions that I should like to add to those that have been put to the Minister by the noble Baroness, Lady Anelay.
The Minister has already explained why Sri Lanka has been chosen for the pilot study; he told your Lordships that it was because of the number of unfounded applications that came from persons living in Sri Lanka. However, there are many other countries with a much larger number of unfounded applications. Just glancing through the list of initial decisions on applications made in the first quarter of 2003, I see that, for example, Zimbabwe, Somalia, Iraq and the Federal Republic of Yugoslavia accounted for larger numbers of refused applications than Sri Lanka. I take it that the second reason that he gave, the collaboration of the Sri Lankan authorities, is really the determining factor. In those other countries it might have been either physically difficult to arrange for fingerprinting—obviously you could not very well do it in Baghdad in current conditions—or simply more difficult to secure the collaboration of the authorities. Perhaps the Minister will clarify that in his concluding remarks.
Secondly, what is the estimated number of additional staff and the total cost in the six months that the pilot study will last? Thirdly, would not any person who makes an application and is fingerprinted realise that he could not then make another application using a different identity without being detected? I do not quite see how that works. The explanatory memorandum says that the identification of applicants who use a false identity is likely to enable the return to Sri Lanka of people who have no right to be in the United Kingdom. It would be useful if the Minister could give an example of how that would operate in practice. What is the scenario by which a person is detected? If a person applies in a second identity, presumably the attempted deception would be picked up in Colombo, not in the United Kingdom. So the authorities in Colombo would pinpoint the attempted deception and there would not be any increase in the number of people who would be removed from the United Kingdom as a result of false identities being detected in the country of origin.
The fingerprinting of Sri Lankans is said to be a pilot exercise. Can the Minister give an undertaking that before it is extended to other countries a full report is published on the number of fingerprints taken, how many are matched with those held at Croydon, how many applicants are caught using false identities and the cost of the whole exercise in practice as opposed to what is predicted?
Lord Evans of Temple Guiting: My Lords, I am very grateful to the noble Baroness, Lady Anelay, and to the noble Lord, Lord Avebury, for their questions which I shall attempt to answer. If I fail, I shall, of course, write to them.
The noble Baroness, Lady Anelay, mentioned the co-operation of the Sri Lankan Government. They were very co-operative. Noble Lords will note that I talked about Sri Lankans and all other nationals coming through Sri Lanka. If you are American and you apply in Colombo for a visa to come to Britain, you will have your fingerprints taken.
This is a pilot scheme. The future of identification lies with biometrics, whether it is iris, retina or fingerprint recognition. Many other countries are considering using this new technology as it develops.
This is simply a pilot scheme. Biometric data have great potential. We are exploring a variety of ways in which it can he realised. But the pilot in Colombo is just that—a pilot. We shall consider what benefits flow from the data, the practical aspects of its collection and the wider impact it has on the system once the pilot has finished. From that we shall determine what further use we can make of this new technology in the entrance clearing field.
I was asked about electronic transmission of data from Colombo to London. I can tell the noble Baroness that fingerprints will be gathered electronically. Data will be transferred electronically using the FCO′s secure communications system.
The noble Baroness asked how we determine the age of a child, particularly at a time when there is a great deal of trafficking of children. That is an extremely good question. I do not have an immediate answer but I shall write to the noble Baroness and give her as much information as I can.
Baroness Anelay of St Johns: My Lords, I am very grateful to the noble Lord for that offer because naturally we shall discuss trafficking of children in other contexts. I am sure that whatever he says in his letter will he most helpful.
Lord Evans of Temple Guiting: My Lords, finally, the budget for costs is £1 million but we expect them to be well under that figure once the pilot is completed.
The noble Lord, Lord Avebury, asked why Sri Lanka, when many other countries have many more illegal applicants seeking entry into Britain. First, the Sri Lankan Government have been very co-operative. Secondly, there is evidence that nationals other than Sri Lankans are using Colombo as a port of entry into the UK. The other very significant reason, which I mentioned in my opening remarks, is that Colombo has the staff and facilities to encompass the pilot scheme.
I am afraid that I am not in a position to give any undertaking about the results of the pilot scheme, and I explained to the noble Baroness, Lady Anelay, that it is just that. Once we have the results, we will obviously consider them with great care. The underlying matter that must be highlighted is that, in the area of illegal
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entry into this country and many other countries, it is likely that biometrics will play an absolutely vital and central role in future.
On Question, Motion agreed to.

Asylum (Designated States) (No. 2) Order 2003
2.21 p.m.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin)rose to move, That the draft order laid before the House on 17th June be approved [23rd Report from the Joint Committee].
The noble Lord said: My Lords, this is the second order laid under the powers in Section 94 of the Nationality, Immigration and Asylum Act 2002. That section makes provision for a list of countries from which asylum or human rights claims are to he certified as clearly unfounded unless the Secretary of State is satisfied that they are not clearly unfounded. The effect of such a certificate is that a person must leave the United Kingdom before appealing the decision to refuse their claim, while still having an out-of-country right of appeal.
The powers have proved effective in reducing the number of unfounded claims. For the 10 EU accession states, which have been subject to the powers for nearly eight months, there has been a reduction in intake of between 80 per cent and 90 per cent compared with October 2002. For the seven countries added on 1st April, there are already signs of a significant decrease in applications, of upwards of 25 per cent. In addition, those refused are being removed quickly.
When we last discussed the issues at the end of March, I spoke briefly about why that matters in terms of our overall commitment to granting asylum to those who needed it, while seeking to protect the integrity of our asylum system and stopping it from being swamped by people who undoubtedly use it at times as a means of economic migration. We spoke in the House on a number of occasions during the passage of the then Bill on the part that the non-suspensive appeal process plays in that system.
So far, the evidence is that the system is working well. However, clearly the powers are important, and it is important that they are used appropriately. In my address in March, I indicated how we had sought to implement the powers in the Act progressively and, if anything, cautiously to try to ensure that the measures worked well and we were successful in stopping people making unfounded applications for asylum, while not denying legitimate claims a right and proper hearing.
Our evidence so far is that the gains that we have achieved in significantly reducing the number of asylum applicants from such countries—for example, the 10 accession states—has not been at the expense of the quality of decision-making of people who have made asylum claims from those countries.
I want very briefly to remind the House of the process. There is a hearing and proper consideration of the applicant′s case. It is not as happens in some other EU member states, where people are sometimes sent away at the border. The applicant is entitled to legal advice and legal aid as part of the process. Their case is considered by a specially trained caseworker and they have a right of appeal against their decision, albeit from outside the country, with legal aid, if they so wish to exercise that right. To ensure as much as one can the integrity of the decision-making process, a second pair of eyes considers the decision of the original caseworker. While the applicant is still in the country, he has the right, if he wishes, to make a judicial review application.
A further relevant factor has been that as a result of this process, we have been able to effect the removal of people whose cases were established to be unfounded under the Act. As the House will know, it is important that one has a fair decision-making process and that at the end of the process, those who are not found to qualify for asylum can be removed; otherwise, a perverse incentive is built into the system—even if one does not succeed in one′s asylum case if one is not removed, one would still have been able to continue in the country.
As a consequence of what we believe is steady and impressive success of the non-suspensive appeal provisions, we have decided that this is a good time to make further additions to the list. As the House will know from a debate on the Bill and our previous discussion of the issue, for a country to be added the Secretary of State must be satisfied in two respects under the Act: first, that in general in that state there is no serious risk of persecution of persons entitled to reside in that state or part; and, secondly, that removal to that state or part of persons entitled to reside there will not in general contravene the United Kingdom′s obligations under the human rights convention.
In considering what states might be included in this second order, we have taken this legal test as the starting point. We have, as before, also taken account of other factors, such as the asylum grant rates, the outcome of appeals and the country information that we publish. We have not been looking to find a set of countries that have a common link, other than their suitability for inclusion in the order. On that basis, the seven states that we decided should be included in this draft order are Bangladesh, Bolivia, Brazil, Ecuador, South Africa, Sri Lanka and Ukraine. We are satisfied that those seven states are ones where there is in general no serious risk of persecution and to which removal would not in general breach the United Kingdom′s ECHR obligations. The statistical evidence bears that out. In the first quarter of 2003, asylum grants rates on initial decisions from those countries were less than 2 per cent in all cases except for Bolivia, which was 6 per cent, based on a small number of decisions.
As with the seven states added by the first order—and, indeed, with the initial 10 EU accession states in the Act—it is not the case that those countries are totally safe for everyone. That is a test which few if any
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states could claim to meet. Inclusion on the list reflects a general level of safety, not a total absence of any mistreatment. It is for that reason that we continue to give every asylum claim from a resident of a designated country full consideration on its individual merits. The claim would not be refused or certified as clearly unfounded unless we were satisfied, after individual consideration, that the claim fell to be refused and certified.
Your Lordships will also be aware of the role that we have said that the advisory panel on country information will have in relation to the addition of countries to the designated list. As is clear from the amendment tabled by the noble Lord, Lord Goodhart, and as was clear when I prepared for my presentation on this matter, we indicated, when we discussed additions to the order at the end of March, that we intended to move very rapidly or progressively within a month towards a process of setting up the advisory panel. We have done that. We have written to a number of organisations inviting them to submit nominations for the advisory panel and we have had a good response, but we have not finalised the exact list as yet because one or two organisations indicated that they thought that there might be a suspicion of a conflict of interest and that they would therefore not wish to take a position on the panel. We understand that and are therefore in the process of writing to further organisations. It is our intention to have the advisory panel up and running in September.
Having said that, I do not find it a particularly comfortable position to be before the House yet again explaining why the panel has not as yet come fully into operation. I repeat what I believe I said at the end of March: that although I am no longer in the department, I will do my best to try to ensure that we meet the timetable because it is important to do so for the credibility of the Government.
We have been making progress in establishing the panel since we debated the previous order. We have invited a number of individuals and organisations to become members and we hope to finalise the initial membership shortly.
We had hoped, if possible, to have the benefits of any advice from the panel on the country information produced by the Home Office before bringing forward this draft order. However, given the success of the non-suspensive appeals procedures thus far, we were very keen to lay this order before the Summer Recess as that would enable us to make an immediate impact on the applications from the countries concerned rather than delaying until the autumn. I commend the order to the House.
Moved, That the draft order laid before the House on 17th June be approved [23rd Report from the Joint Committee].—(Lord Filkin.)
2.30 p.m.
Lord Goodhartrose to move, as an amendment to the above Motion, at end insert "but this House regrets that the order has been introduced before the establishment

1201
of an Advisory Panel on Country Information under Section 142 of the Nationality, Immigration and Asylum Act 2002".
The noble Lord said: My Lords, as the noble Lord, Lord Filkin, pointed out, the purpose of the order is to add a further seven countries to the white list in Section 94(4) of the Nationality, Immigration and Asylum Act 2002. The white list is, of course, a list of states in relation to which there is a presumption that a resident′s claim to asylum is clearly unfounded. I accept that that presumption is rebuttable, but that is the presumption written into the Act.
Section 94(4) contains the names of the 10 candidate states which are due to join the European Union next year. In the debate on the Act, when it was a Bill in Parliament, we objected to the whole concept of the white list. But the white list is now law and we must accept that.
Under Section 94(5), the Home Secretary may, by order, add a state, or part of a state, to the white list if he is satisfied that in general there is in that state no serious risk of the persecution of residents and that the removal to that state of persons entitled to reside there will not in general contravene the United Kingdom′s obligations under the European Convention on Human Rights. Therefore, the test under Section 94(5) relates wholly to the conditions in the country from which the asylum seeker comes. It is no justification for adding a country to the list that the applicants include a significant number of people whose claims, when investigated, turn out to be unfounded.
As the Minister pointed out, Section 142, again, provides for the setting up of the Advisory Panel on Country Information, which will make recommendations based on country information, including, no doubt, issues of persecution and human rights.
By the previous order approved by your Lordships′ House on 31st March, the Government added seven states to the list. Those seven were Albania, Bulgaria, Serbia, Jamaica, Macedonia, Moldova and Romania. At that time, it certainly seemed doubtful to us whether some of those states satisfied the requirements of Section 94(5)—in particular, Albania, Serbia, Jamaica and Moldova. Therefore, my noble friend Lord Dholakia moved an amendment in the same terms as the one that I set down for today.
I recognise of course that the setting up of the panel and the consideration of recommendations from it are not legal conditions that must be satisfied for the exercise of powers under Section 94(5). However, it is plain that they would be useful guidance and, indeed, that they have some legal significance.
If the decision of the Home Secretary to add a particular country to the list were challenged by judicial review on the ground that his decision was irrational, then advice by the panel that the country was, in fact, suitable for addition to the list would obviously strengthen the Home Secretary′s hand. By contrast, if the panel said that the country was not suitable for inclusion in the list, then the Home Secretary would have difficulty in including that
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country and asylum seekers would be protected from what would be an unjustifiable presumption that their claims were unfounded.
Only three months later, we now have another list. In our view, that list is even worse than the previous one. What has happened in the past three months to convince the Home Secretary of the need to add those countries to the list without waiting for the advisory panel to be set up? If the panel is to be set up by September, why not wait until then?
In most cases, these countries are not appropriate countries for inclusion in the list. I need to look at them one by one. We are prepared to accept South Africa as suitable for inclusion on the list and, with a little hesitation, Bolivia. The others should not be there—or be there only in part. Many of these states have been subject to serious criticisms by Amnesty, or in the highly respected reports on human rights published by the US State Department.
Sri Lanka has undoubtedly shown considerable improvement during the past year and there have been peace talks between the government and the Tamil Tigers, and a cease-fire while those talks have taken place. But those talks are now stalled and while fighting has not yet resumed it plainly could at any time. Conditions are now acceptable in parts of Sri Lanka—those parts under the control of the government. However, I must refer to what the State Department said about the Tamil Tigers in its report on human rights in Sri Lanka for 2002. It stated:
"The LTTE continued to commit serious human rights abuses. The LTTE reportedly committed several unlawful killings, and was responsible for disappearances, torture, arbitrary arrest, detentions and extortion. Through a campaign of intimidation, the LTTE continued to undermine the work of elected local government bodies in Jaffna. On occasion the LTTE prevented political and governmental activities from occurring in the north and east. The LTTE continue to control large sections of the north and east of the country. The LTTE denied those under its control the right to change their government, did not provide for fair trials, infringed on privacy rights, somewhat restricted freedom of movement, used child soldiers, and discriminated against ethnic and religious minorities".
On that basis, if Sri Lanka is to be included in the list, that inclusion should extend only to those parts of the south, centre and west of the island which are effectively under government control, and should not extend to those parts under the control of the Tamil Tigers.
Let me turn to Amnesty′s comments on Brazil for 2002. It stated that,
"Thousands of people were killed in confrontations with the police. Police were responsible for many killings in circumstances suggesting extrajudicial executions. Torture and ill treatment as methods of extortion continued to be widespread and systematic in police stations, prisons and juvenile detention centres. Human rights defenders continued to be intimidated, threatened, attacked and killed. Land and environmental activists, as well as indigenous people fighting for land rights, were also threatened, attacked and killed by police or those acting with the assent of the authorities".
Can Brazil be suitable for inclusion on the white list?
The State Department, in reports on the other three countries in the list of seven—Bangladesh, Ecuador and Ukraine—stated that the respective governments′

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human rights records remained poor. In the case of Ecuador, the report referred to credible reports of killings by police, security forces and semi-official entities. It referred to torture and mistreatment of detainees; arbitrary arrest and prolonged detention; violence and pervasive discrimination against women, indigenous people and Afro-Ecuadorians; and mob violence and vigilante killings. Can Ecuador be considered suitable for inclusion in the list?
In the case of Ukraine, the report referred to the torture and beating of prisoners; police abuse and harassment of racial minorities; harsh and life-threatening prison conditions; political interference in the judicial process; intimidation of journalists with authorities issuing instructions about events to cover or not to cover; and restriction on freedom of association and assembly. Can the Ukraine be considered suitable for inclusion on the list?
Finally, I come to Bangladesh. Let me read some paragraphs from the State Department′s report on that country because they are very alarming indeed. I apologise for the fact that this may add a little length to my speech. but I think it must be done. The report states:
"The Home Affairs Ministry controlled the police and paramilitary forces, which had primary responsibility for internal security. Police were often reluctant to pursue investigations against persons affiliated with the ruling party, and the Government frequently used the police fix political purposes. There was widespread police corruption and lack of discipline. Security forces committed numerous serious human rights abuses and were rarely disciplined even for the most egregious actions … The Government′s human rights record remained poor and it continued to commit serious human rights abuses. Security forces committed a number of extrajudicial killings, and deaths in custody more than doubled from 2001. Both major political parties often employed violence, causing deaths and numerous injuries. According to press reports, vigilante justice resulted in numerous killings. Police routinely used torture, beatings and other forms of abuse while interrogating suspects and frequently beat demonstrators. The Government rarely punished persons responsible for torture or unlawful deaths. Prison conditions were extremely poor.
The Government continued to arrest and detain persons arbitrarily … The lower judiciary was subject to executive influence and suffered from corruption. A large judicial case backlog existed and lengthy pretrial detention was a problem. Police searched homes without warrants, and the Government forcibly relocated illegal squatter settlements. Virtually all journalists practised some self-censorship. Attacks on journalists and efforts to intimidate them by government officials, political party activists, and others increased. The Government limited freedom of assembly, particularly for political opponents, and on occasion, limited freedom of movement … Violence and discrimination against women remained serious problems. Abuse of children and child prostitution were problems. Societal discrimination against persons with disabilities, indigenous people, and religious minorities was a problem. The Government limited worker rights … and was ineffective in enforcing those workers′ rights in place. Some domestic servants, including many children, worked in conditions that resembled servitude and many suffered abuse. Child labor and abuse of child workers remained widespread and were serious problems. Trafficking in women and children for the purpose of prostitution and at times for forced labor remained serious problems".
By what conceivable standards can Bangladesh be considered suitable for inclusion in the white list?
The countries on this new list are not Slovenia, Estonia or Hungary; the kind of countries that were included in the list in Section 94(4) of the Act. The majority of countries on the new list are the countries where human rights are not respected; where governments use violence and intimidation and where organised abuse of women, children and minorities is rife.
This list is a disgrace and I believe that it brings shame on the Government to put it forward. I beg to move.
Moved, as an amendment to the Motion, at end insert "but this House regrets that the order has been introduced before the establishment of an Advisory Panel on Country Information under Section 142 of the Nationality, Immigration and Asylum Act 2002".—(Lord Goodhart.)
2.45 p.m.
Baroness Anelay of St Johns: My Lords, naturally I thank the Minister for his explanation of the Government′s position on this order within the wider context, as he rightly put it, of our debates on the Nationality, Immigration and Asylum Act last year and subsequently the first list.
The Minister will recall that during the passage of that Bill, we on these Benches supported the principle of a safe country list but registered several serious concerns about the processes by which it would be operated. We began from the position of supporting amendments that had been suggested to us by the Refugee Council that there should be an independent documentation centre—amendments that were supported by the noble Lords. Lord Goodhart and Lord Dholakia.
That was an argument that we took through almost to—I was about to say—the death of the Bill. However, after ping-pong it lived to another day but in slightly changed form. We did not press our amendments on the independent documentation on the basis that the Government came forward with a proposal for the advisory panel and we accepted their assurances that that panel would do a sufficiently respectable job. That enabled us to withdraw our objections.
Today we support the Motion put forward by the noble Lord, Lord Goodhart. We are now concerned about the delay in the setting up of the advisory panel. I think that the wording of the noble Lord′s Motion is both careful—as one would expect from such an able lawyer—and worded with some restraint.
We are told by the Minister that the advisory panel will, the Government hope, be up and running in September. Therefore, the noble Lord, Lord Goodhart, rightly asks the question: why not wait just that little bit longer? I do not think that the Minister has given a satisfactory response yet. I look forward to his answers to the detailed list of concerns expressed with regard to the individual countries by the noble Lord, Lord Goodhart. I have looked at some of—but by no

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means all—the information quoted by him and I am aware that outside organisations have concerns about various countries. For example, the Refugee Council briefing refers to Sri Lanka. It appends an analysis of the current human rights situation and says that,
"it is unreasonable to conclude that persecution and human rights breaches are rare in Sri Lanka".
I know the Minister has said that each individual case will be looked at on its own merit. We want the Minister in his response to give a more cogent reason than so far for our accepting his arguments.
I return to my concern about this particular list as exposed by the noble Lord, Lord Goodhart, and at this specific time. If I were a more suspicious person, as a politician I might reach the conclusion—one I will not today as I shall suspend my suspicion—that the Government wish to pass this particular list before an advisory panel gives them advice that it is indeed an inappropriate list. I hope the Minister will be able to dissuade anyone who is of a more disbelieving mind that that is certainly not the case. However, I believe that the noble Lord, Lord Goodhart, has made a very convincing case today.
Lord Avebury: My Lords, I do not think that the noble Baroness has underrated the suspicion that many people outside the House feel about the sequence of events concerning advisory panels and in particular, as she says, the list of countries that we are being asked to approve today.
The removal of UK appeal rights from the citizens of these states means that many individuals with valid claims will have to appeal from overseas, making it far more difficult for them to succeed whatever the Minister may say about the rights of appeal that they still enjoy.
In the first quarter of 2003, 17 per cent of applications by citizens of the countries on the list that we are being asked to approve were granted leave, and 10 per cent of the appeals from citizens of those countries were successful. So the risk of persecution on those figures was not negligible, yet the Secretary of State has concluded that there is in general no serious risk of persecution in any of those countries.
During the passage of the NIA Bill in this House, we expressed concern about the introduction of non-suspensive appeals, which seemed to us to undermine the principle that asylum applicants should be treated on their individual merits. We were assured, as we have been again today, that applicants from the designated countries receive exactly the same consideration as those from elsewhere. How can one expect officials who look at the applications from those countries not to be conditioned in their thinking by the knowledge that the boss does not think that those applicants should have an in-country right of appeal?
The Joint Select Committee on Human Rights in its 23rd report said about the original introduction of non-suspensory appeals that,
"we consider that a presumption of safety, even if rebuttable, would present a serious risk that human rights would be inadequately protected. We consider that the presumption of safety is unacceptable on human rights grounds".
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When the first addition to the list of designated states was agreed by your Lordships on 31st March, the noble Lord, Lord Filkin, was at pains to emphasise that there is still the right of appeal—he repeated that today—which is, according to him, almost as good as having the right of appeal on the premises. He stated:
"The fact that there is a non-suspensive appeal does not mean that there is no appeal. It is perfectly possible for people, who have a lawyer as part of this process, to signal to the British lawyer that they wish to mount an appeal even though it has to be a non-suspensive appeal. People have done so and there are a number of cases where such appeals are going through".—[Official Report, 31/3/03: col. 1126.]
But the question is whether they still have the same chance of obtaining asylum, other things being equal, on the same set of facts, as if they had presented the appeal in the United Kingdom. I suggest that the only way to assess that would be to consider the relative success rates of in- country appeals immediately before the order and appeals from abroad in an equivalent period after the order.
As Justice pointed out in its April 2003 inquiry into asylum and immigration appeals, as most appeals that are successful involve challenges to adverse findings of credibility by the first instance decision-maker and as the asylum seeker from a listed state has no opportunity to make such a challenge in person. his chances of success are bound to be lower.
Justice had misgivings about the countries added to the list in March and general concerns about the effect of non-suspensive appeals on the system as a whole, especially the possibility of increased reliance on judicial review. Has the Minister or his department responded in writing to Justice′s critique, and has he discussed those and other matters with it since it produced that report in April?
In March, the Minister said that the fact that all 25 JR applications and all 12 appeals from overseas by citizens of the 10 listed states had been dismissed spoke for itself. Assuming, as we must, that there has not been an abrupt change in the background of the people seeking asylum from the 10 states that were then listed, that appears to show that, on similar facts, it has been made far more difficult for a case to succeed. Presumably, that is what the Government intended. The outcome of adding more countries to the list will be the same.
In deciding whether someone has a well-founded fear of persecution for one of the convention reasons, there will always be circumstances where a reasonable person could take either view. The Government are shifting the burden of proof for people from listed states, so that, in the case of JR, they must show that the initial decision was manifestly unreasonable while, in the few cases in which they manage to appeal from abroad, they are deprived of the chance to establish their credibility.
The number of people to overcome those hurdles will be small, but there can have been no change in the merits of their cases. We certainly agree that it is less likely for people from those states to have a well-founded claim, with the reservations expressed by my noble friend about particular countries, but that does

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not mean that not a single one qualifies, as the small sample that we had by 31st March would imply. I noticed that the Minister did not give us an update on those figures this afternoon. I think that they would reinforce my point.
In March, the Minister was apologetic about the Government′s failure to establish the Advisory Panel on Country Information, which was provided for by Section 142 of the 2002 Act before that order was tabled. He has explained the reasons why it has not been possible to bring the panel into existence before this order was made. He said that the Government had written to all the organisations that might qualify for places on the advisory panel and that some of them had replied to say that they did not want to engage in the process because they felt that that would cut across their other obligations. Surely that has not taken three months.
The noble Lord′s explanation is not acceptable to the House. In fact, I would go so far as to say that the noble Lord has insulted the House by giving us a formal apology for not producing the advisory panel before March and then having the effrontery to propose an additional list of states this afternoon for our approval.
We very much wish to know what such a panel would have said about Sri Lanka, for example. The Refugee Council has expressed concern about the policy of initial decision-making on asylum seekers from Sri Lanka. It draws attention to the fact that, in 2001, 38 per cent of Sri Lanka appeals were successful. Admittedly, there were fewer successful applications and appeals in the past few months because, as my noble friend explained, there has been a ceasefire. However, the ceasefire is extremely fragile and there are still very serious human rights violations, particularly in the LTTE administrative area, about which my noble friend gave some details.
In the first quarter of 2003, 170 appeals by asylum seekers from Sri Lanka were upheld—10 per cent of the total determined. Also, 11 per cent of the first applications were granted. Those figures do not confirm the Secretary of State′s opinion that, in general, there is no serious risk of persecution in Sri Lanka. If the advisory panel had existed, it could have looked at the information on the country and given us independent advice. I think that the Minister is pleased that we do not have such advice before us because an advisory panel would almost certainly have rejected the inclusion of Sri Lanka on the list.
My noble friend mentioned Bangladesh. This morning, I received a notice from an organisation called Hindu Human Rights, which is concerned with the position of that minority in Bangladesh. It points out that the Hindu population has fallen from 30 per cent of the total in 1941 to 15 per cent in 1971 and just 7 per cent in 2002. Is the noble Lord telling us that Hindus do not suffer any persecution in Bangladesh, or that the other religious minorities do not have an equally hard time? Does he know anything about the position of the Chittagong Hill Tracts, on which I have had a lengthy, detailed correspondence with the Home
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Office over many years? Is he aware that, although an agreement was made with the people of the Chittagong Hill Tracts that would allow them to have internal self-governance, it has never been properly implemented by the government in Dacca, and the whole territory is occupied by the Bangladeshi military, which continues to perpetrate serious human rights violations there?
My noble friend said that he would have accepted the inclusion of South Africa on such a list. However, noble Lords may wish to know about one factor that deserves consideration. Since we imposed visa restrictions on Zimbabwe in December 2002, most asylum seekers from that country come here via South Africa. I have received an e-mail from a well-known organisation, Bail for Immigration Detainees, about two individuals who chose that route to leave Zimbabwe and ended up in Harmondsworth because they could not prove that they were Zimbabweans and not South Africans.
What will be the position for people escaping from Zimbabwe who obtain, as they must do, false documents in South Africa to come here? Will they have a proper opportunity to establish their identity as Zimbabweans? Will the Home Office always reject the opinion being given by MDC representatives in London that they are in fact members of the opposition? Will the Home Office always, as in this case, refuse to allow the MDC to obtain independent verification of those persons′ claim to membership of the party from original sources at home?
So many things are wrong with the lists before us that I had hoped that my noble friend would press his Motion to a Division. Anyone who has listened to this debate and who knows about the conditions in the countries of origin would say that the Minister was wrong to bring forward this list and that he should take it away and return with a reduced list, if necessary, after the panel has been appointed.
3 p.m.
Earl Russell: My Lords, I thank the Minister for the care and courtesy with which he introduced this Motion. He is, as always, impeccable on that point. I am particularly grateful to him for his concession that there is no such thing as a country in which all people are at all times safe. That is a truly vital point.
It follows from that point, however, that those who are genuinely subject to a well-founded fear of persecution, in a country in which such a thing is very unusual, are perhaps more at risk of having their cases mishandled and their danger mis-identified than almost anyone else. As an example of that, I cite a case that I have mentioned before; that of Mr Matthew Sheppard from the United States, a young homosexual who was found dead, nailed to a fence in Laramie, Wyoming. The noble Lord, Lord Monson, who I am happy to see in his place, said that he could have been perfectly safe living in San Francisco. On that occasion, I forgot to point out to the noble Lord that the first avowedly homosexual mayor of San Francisco was shot dead on his own balcony by a homophobic man, so it might not have been as effective as the noble Lord, Lord Monson, suggested.

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Presuming that there are certain countries that are safe is a bit like introducing a presumption of guilt instead of one of innocence into criminal trials. The Minister may wish to tell me that that resemblance is superficial. If he does, I will listen with very great care and an open mind to his reasons. The basic justification that the Government are offering, as outlined in the explanatory memorandum, is that the countries included in the order are safe because a very high proportion of the applications from those countries are found to be unfounded. With respect, I think this is to argue in a circle. It will remain arguing in a circle until we have a great deal more confidence than we do now in the standard of first decisions in asylum cases. For example, the Law Society points out that, in the period shortly before the power came in, a majority of the Czech cases in Oakington were found, on appeal, to be have been wrongly decided in the first instance. That related to a majority of cases, but it need not relate to a majority to be an injustice. That example illustrates that the risk of injustice is real.
It is also a manifest fact that, in several countries—most particularly in South America—conditions may change rapidly. We have seen, with Zimbabwe, how the Home Office is very slow to adjust to a change in conditions in a country from which refugees come. An order that might be justified at the moment of introduction may equally well be totally unjustified three months later. A good many people will probably have died unnecessarily before that is put right.
My noble friend Lord Goodhart drew attention to the prevalence of torture in some of the countries concerned, most notably Brazil. Right back to the 1996 Bill and probably before it, my noble friend Lady Williams of Crosby has persistently drawn the House′s attention to the difficulty of getting evidence of torture in cases in which there is only a very short time for a hearing. Attempts to get people to admit that they have been tortured, like attempts to get them to admit that they have been raped, create great resistance. There is a taboo on admitting it. Decisions in torture cases that are reached in a hurry are often wrong.
I remember one such case in which I had a very long correspondence with the noble and learned Lord, Lord Williams of Mostyn, who was then the responsible Minister. I am thankful to say that in the end he was persuaded by the justice of the case and did what was necessary. But it took an immense amount of time, energy and intelligence of a Minister of very great power which, in a different situation, could have been better deployed on more general issues of policy, which the noble and learned Lord has never lacked to bring his mind to.
The Minister appears to be extremely well satisfied about the non-suspensive appeal. On the other hand, the Refugee Legal Centre, which I suspect has probably more day-to-clay experience of defending people than the Home Office, which inevitably is on the other side, can possibly have, says that it has had very great difficulty with conducting appeals from
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abroad. When dealing with cases from the Home Office, one regularly finds that it is fairly difficult because the cases have a protean habit of changing.
I am dealing with one at the moment, which is not a particularly complicated case, concerning two unaccompanied minors from Kosovo. They have been here since 1999. They are comfortably settled into a family in Suffolk with foster parents who now wish to adopt them. They are entirely at ease at home and successful at school. The Home Office now wants them to return and was conducting two separate hearings—one in London and one in Nottingham. Clearly, that created a considerable problem of correspondence, telephoning and so forth. The case has changed shape three or four times in the course of two or three weeks; every time one has to drop everything one is doing to take it up and get straight on the telephone, probably before one is dressed.
It is not particularly easy dealing with a Home Office case if it is happening on one′s doorstep and one has expert advice to hand. The thought of doing this with a time difference; with the complexities of international telephone systems, not all of them as good as ours; with the difficulty of language; and with the difficulty of making contact with lawyers in the countries concerned really makes my mind boggle.
I must admit that one dreads taking on an asylum case because one knows that every business one has on hand, however important, will have to take second place until the case is finished. Conducting such a case from abroad will inevitably double and re-double anything like that. Like my noble friend Lord Goodhart, I do not understand what it is about this order which is quite so urgent that it is necessary for the Government not to wait until September before bringing it in. After all, the new arrangements for the sitting time of the House mean that the time until we sit again is not really that lengthy. Will it really be the end of the world if three or four people from these countries, some of whom perhaps genuinely ought not to have been here, actually get in? Is it worse, if that happens, than if a couple of dozen are sent back to face a well-founded fear of persecution?
I have never understood why the Home Office believes that this country is at quite so much risk from a small number of unjustified asylum seekers. It reminds me of what the English said on the union of the crowns between England and Scotland, which is something on which I happen to be working at the moment. There are not that many Scots compared with the English. In fact, in 1571, there were only 40 Scots resident in London. That is the verdict of an official survey conducted under the auspices of the Lord Chancellor. Nevertheless, in 1603, over and over again one finds rhetoric in this House and in the other place, saying that England was in imminent danger of being swamped by the influx of hungry Scots.
A noble Lord: And look at what has happened.
Earl Russell: Yes, I do look at what has happened: a number of Scots have attained positions of distinction, which they have then exercised with distinction. This country is much the richer for them.

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This country is far too ashamed of being anything other than an isolated rockpool into which the tide does not flow. But in isolated rockpools the water turns brackish, life dies and quality fades away. Like Jane Austen′s Mr Woodhouse, we cry to "live much out of the world". As a result we are often much surprised by what we find in it.
3.15 p.m.
Lord Filkin: My Lords, I thank noble Lords for their contributions to this important debate on the order. Let me start by saying a few words again to put in context why we think that this order is necessary, timely and proportionate.
The asylum system and the principles of the 1951 convention matter greatly. As a country and as a government we want to be able to continue to offer refuge to those who genuinely qualify under that convention. But, as we know, economic migration is a fact. Illegal economic migration is a problem and it has vastly increased in scale because of improvements in transportation, disparities in wealth around the world and criminal gangs which try to promote it.
Without going over the detail again, non-suspensive appeals play an important part in the process. They were a contentious element in our discussions on the Bill and, for that reason, a number of careful procedures were put in place to try to ensure that they were considered and neutralised safely and proportionately.
As is his wont, the noble Lord, Lord Goodhart, made a powerful speech concerning a number of the countries listed on the order before the House. The world is by no means perfect in all those countries. Indeed, there are very few countries about which one could say that there are no issues of concern, but of course that is not the test of the order. The test is that in general a country is safe for its citizens. The word "general" was put into the legislation for a purpose. It enabled the application of the practice of non-suspensive appeals to be triggered, but still left the responsibility to reach a decision on whether it would be safe specifically for the individual concerned. So it is not a process which states simply that because X country is safe all applicants from that country are therefore automatically not valid asylum claimants. All it does is bring in a difference of process, on which I shall speak in more detail later in my remarks.
For reasons of time and because I am not expert on all the issues raised by the noble Lord, Lord Goodhart, I shall do what I did on the last occasion and write to the noble Lord with specific governmental responses to all the questions raised and the points made on information about specific countries. By so doing I shall be able to set out the reasons for our responses and why we consider that the tests set within the statute are nevertheless met in the judgment taken by my right honourable friend the Home Secretary. That is not to duck the issue, but I can offer a better response if I follow the procedure of the last occasion and write to the noble Lord. Of course I shall copy the letter to Members of the Front Benches.
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That is not to dismiss or in any way belittle the importance of being thoughtful, proportionate, concerned and well informed when making judgments and decisions about designation. That is a proper challenge to the Government. All I would emphasise is that the Bill places the two tests before countries can be put on the list, and that those tests are applied generally rather than in all circumstances.
That then turns to a consideration of the circumstances of an individual person, without presumption. Because the country from which they came may in general be thought to be safe, that does not mean that their individual application should be considered to be unfounded, unsafe and inadequate. It is the challenge of the case workers to hold that test before them. That is why they have gone through a specific and specialist training process and why there is a second pair of eyes.
As to the question raised by the noble Baroness, Lady Anelay, and the noble Earl, Lord Russell, of why not wait, the reason we should not wait is that, essentially, we believe these countries now meet the test; and, secondly, there are a substantial number of applications from these seven countries. For example, there were 5,000 applications to the United Kingdom from these seven countries in 2002.
Let me give the most recent figures for the first quarter of 2003. I give these figures with some caution because there is a process of very careful checking of data. We believe the figures to be true. They may move up or down slightly but, nevertheless, they are broadly true. In the first quarter of 2003 we had 1,150 applications from these seven countries, of which 20 people were granted asylum as a result of their applications.
If we wait another three months or so it is likely that we will have another 1,000 or more applicants coming into the United Kingdom, of which, on the evidence we have to date, very few will meet the test to qualify under the Act and under the Geneva Convention. That would not matter so much were it not for the fact that—
Earl Russell: My Lords, I am grateful to the Minister. Can he tell the House, beyond these 20 who were successful on their initial application, how many were found to be genuine applicants on appeal?
Lord Filkin: My Lords, I cannot. I can, perhaps, extemporise from the figures that apply generally between initial applications and appeals. My recollection is that, in general, when one looks at the totality of applications—the comparison may not be exactly correct—between 9 and 10 per cent of applicants were granted asylum on initial application; and, again from my recollection of previous data, 6, 7 or 8 per cent were granted asylum on appeal.
So the figure of 20 could go up but, if I were being generous, it is unlikely to go up by much more than 10 or 15. It would still be a very low figure. That does

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not mean to say, of course, that all applicants in the future will be considered to have non-valid claims, nor does the process make that assumption.
I was seeking to address the question of why now; why not wait. As your Lordships know it is not simple to remove—in fact it is extremely difficult —and there are substantial burdens on the state in terms of supporting people through the process when they are not removed. I shall not go into detail on that.
I was challenged—courteously by some but less courteously by others—as to whether it was part of the Government′s intent to delay the setting up of the advisory panel to get these orders through. It is the first time my integrity has been directly challenged in the House. Nevertheless, I shall put that to one side because it seems to me that the issues that underpin these considerations of asylum and human rights are so profoundly important that we should concentrate on them rather than on trading insults about each other. So I shall let that pass.
As to my investigations in March when I discovered that I was to make an order in this respect and that the advisory panel was not in place, it was not a pleasant experience to find that the commitment I had given to the House that we would set up the advisory panel had not been implemented. I have had vigorous discussions in that respect. I am convinced that the delay was a result of pressure of work on officials, not of malice on their part. It was not a result of Ministers or officials seeking to take a position. It was something that was not done as quickly as we would have wished. As a consequence of 31st March. the process has moved forward rapidly and it is only a matter of time—I am told early September— before the panel is in place. It needs to be, because that is part of an informed process as to whether we are making fair judgments as a government on those countries and that process. I am not pleased that we do not have the advisory panel established—quite the reverse.
I turn to the question of whether it is possible to have an effective out-of-country appeal in this respect. It is an important issue, although it is clearly not what we are specifically debating today. We are debating the order, but the issue is germane to it.
The process allows the applicant in the country, whose claim has been rejected, to ask to make an appeal to a British lawyer as part of the consideration of the application, and the British lawyer to lodge the appeal as soon as the person has left the country. In fact, some 25 per cent of people who have been certified and removed have made appeals under that process and under the Act. One can argue that two ways. One could say that 100 per cent did not make appeals and that therefore there is some flaw in the process. On the other hand, one could take the view as we do that the fact that 25 per cent have done so shows that the system is effective, and that many have had a go at the system to get in and then not bothered to take it further.
Earl Russell: My Lords, is not the correct test the proportion of success in in-country appeals and
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suspensive out-of-country appeals? Are those not the two figures that we should compare, and are we yet in a position to make a comparison?
Lord Filkin: My Lords, I shall come to that point later and explain exactly why it is not the comparison that we should be making.
The nature of the out-of-country appeal and whether it is possible for an appellant in those circumstances to have justice was the thrust of a number of questions. The appeal in those circumstances is essentially against whether certification and designation of the country as meeting the tests in the legislation was reasonable. It was not about the circumstances of the individual person. It was not an appeal as to whether that person should have been granted asylum but whether or not the country should have been certified as a non-suspensive appeal country. For that, a British lawyer supported by other excellent non-governmental organisations is well able to bring a case before the courts without the individual person who has been the subject of that wider general decision present before them. Therefore, there is an effective possibility of making out-of-country appeals, because it is a focus on that issue rather than the circumstances of a person′s individual case.
The noble Lord, Lord Avebury, asked about the position of Zimbabweans pretending to be South African. There would definitely be an opportunity for a person on a false South African document to show us that they were in fact Zimbabweans. The noble Lord asked also about the potential successes of out-of-country appeals. I explained the nature of that appeal, and why it is different.
I should signal the position on appeals and judicial reviews. There have been 83 appeals so far from people who have been certified and removed as a consequence of the non-suspensive appeal process. Sixty of those have been heard and, of those 60, all have been dismissed. Forty-seven judicial reviews have been lodged for people in those circumstances, none of which has as yet been successful.
I turn to the query of the noble Lord, Lord Avebury, about the Justice report, which referred to the question of appeals being allowed on the basis of credibility. In non-suspensive appeal cases, certifications are not made on the basis of credibility. A claim is not certified as clearly unfounded simply because we do not believe what they say—in other words, because of doubt about credibility. A claim is certified as clearly unfounded only if objective information shows it clearly to be the case.
Lord Avebury: My Lords, I gave examples of cases in which someone claimed to be a member of the MDC. The immigration officer who dealt with the cases at first application said, "I don′t believe that you′re a member of the MDC—I think you′re a South African national pretending to be someone from the MDC". That was the substance of the two cases I mentioned, about which Bail for Immigration Detainees expressed some concern.
Lord Filkin: My Lords, that is an interesting and, in the circumstances, an important question which deserves an answer. However, I do not see its relevance today as we are not proposing to include Zimbabwe as one of the countries on the list.
I was seeking to respond to the question from the noble Earl, Lord Russell, on the presumption of guilt. Inclusion on the list is not the same as a presumption of safety, because the cases are considered individually on their facts. In January 2003, in its judgment on the case of ZL and UL v Secretary of State for the Home Department, the Court of Appeal stated that inclusion on the list did not establish a presumption that the case would be unfounded. In fact, it said that inclusion on the list did not replace individual consideration of the facts of the claim against the known background data. I think that that is germane.
The noble Earl also asked whether the high number of certificates overturned before the 2002 Act came into force had a bearing. Generally, we believe that the process by which non-suspensive appeal decisions are made is vastly stronger and more substantial—as it should be because it is a non-suspensive appeal. That is not for a second to say that the previous systems were hopeless. The whole process has sought to strengthen very considerably the care with which the initial decision is taken in non-suspensive appeal cases. I have already gone into some detail about how that has been done.
I have spoken at length, for which I apologise. However, I grant that these are important issues. I summarise by saying that I regret that we have not been able to put the advisory panel in place. However, it will very shortly be in place. I have also sought to explain to the House why we think it important that we continue and extend the use of the non-suspensive appeals process as we have done. While there may be a general presumption that a country is safe—and we believe that these seven countries meet that test—one knows when making a decision on an individual applicant that that individual may be the exception to the rule. That is the burden of responsibility which sits on the Government and the immigration officers when they are making such judgments.
The practice and the results of the system seem to us to be working well. This system continues the ability to give asylum to those who should have it while seeking to stanch the flow of economic migrants which risks threatening the integrity of our system.
Lord Goodhart: My Lords, I am grateful to the Minister for his reply, which was rightly a full reply. This has been a substantial debate which has lasted for almost an hour and a half. I shall therefore be brief.
I remain unconvinced by the Minister′s arguments to justify the inclusion of a number of the states included in the list or to justify bringing the list forward at all now rather than waiting until there has been an opportunity to receive advice. It is of course a longstanding
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convention of the House that although it has the power to reject orders moved by the Government, it does so only in wholly exceptional circumstances. The circumstances of this case fall below, but only just below, that level. It was for that reason that I put forward our amendment in a non-fatal form; that is, one that, even if passed, would not have led to the order falling. Therefore, I do not propose to press the amendment today or to vote against the order.
But having said that, we must make very clear our deep concerns that for a second time the Government have brought forward orders including some questionable states, and have done so before the committee has been set up and is able to report. If that were to happen on a third occasion, it cannot be assumed that we would take the same position as we have done today and on 31st March. I beg leave to withdraw the amendment.
Amendment to the Motion, by leave, withdrawn.
On Question, Motion agreed to.

Official Secrets Act 1989 (Prescription) (Amendment) Order 2003
3.30 p.m.
Lord Filkinrose to move, That the draft order laid before the House on 19th June be approved [23rd Report from the Joint Committee].
The noble Lord said: My Lords, this order is made under the Official Secrets Act 1989. Under that Act, it is an offence for a Crown servant to make damaging disclosure of any information which is in his possession by virtue of his position, unless he has lawful authority to do so. Persons who are not Crown servants can be treated as such by designating them in an order. The Act also allows us to designate by order those organisations which can give official authorisation for disclosure to those who would otherwise be committing an offence under the Act. The order before us does both of those things.
The order will designate as equivalent to Crown servants the board and employees of three new subsidiaries of the company Urenco Ltd; they are Enrichment Technology Company Ltd, Enrichment Technology UK Ltd and Urenco Enrichment Company Ltd. The board and staff of the parent company, Urenco Ltd, were designated in 1990 because of the sensitivity of the technology they deal with. They produce enriched uranium for nuclear reactors, and the technology they use is cutting edge. In 1993 a subsidiary company Urenco (Capenhurst) Ltd was also designated. These two companies will shortly be transferring some staff from their employment to these three new Urenco subsidiaries. As Urenco Ltd or Urenco (Capenhurst) Ltd staff, these employees are currently prescribed by earlier prescription orders. This order is needed to ensure that they remain prescribed after the transfer.
The draft order has a second purpose. It will designate the tribunal set up under the Regulation of Investigatory Powers Act 2000 as one which can

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authorise the disclosure of information for the purposes of the Official Secrets Act. The tribunal deals with complaints from those who are concerned that they may be affected by the activities of the intelligence services. It is an important avenue of redress for those who believe they may have been treated improperly by those services. It is possible that in order that their complaint can be properly heard certain complainants and witnesses to the tribunal may need to disclose to the tribunal information that is protected by the Official Secrets Act. For example, it would be an offence for a former member of the intelligence services to disclose information about those services to the tribunal. Similarly, any third party who has had information disclosed to them in contravention of the Official Secrets Act 1989 would themselves commit an offence if they disclosed that information to the tribunal. So the tribunal must be able to authorise such disclosures. It will authorise disclosure of information only to the extent necessary to investigate the complaint. This is needed so that complainants and witnesses are not exposed to the possibility of committing an offence by disclosing information to the tribunal.
The Investigatory Powers Tribunal replaced three tribunals set up for similar purposes under the Interception of Communications Act 1985, the Security Service Act 1989 and the Intelligence Services Act 1994. Those three tribunals were all previously designated as authorising organisations for the purposes of the Official Secrets Act for the reasons I have given. The draft order will replace references to the old tribunals with a reference to the new one.
As we can see, this order is needed to keep the references in the Official Secrets Act up to date, and as such I hope that it will be acceptable to the House. In our view it is entirely compatible with the ECHR convention rights. I beg to move.
Moved, That the draft order laid before the House on 19th June be approved [23rd report from the Joint Committee].—(Lord Filkin.)
Baroness Anelay of St Johns: My Lords, I simply thank the Minister for his explanation. We accept that it is absolutely right that references should be kept up to date within the terms of the Official Secrets Act. Given the nature of the sensitivity of the technology employed by the companies in uranium enrichment, we support the order.
Lord Goodhart: My Lords, the Minister may be glad to know that, on this occasion, we support the order, too. It is merely a matter of updating to take account of a changed corporate structure, so there is nothing in our view to make it inappropriate.
Lord Filkin: My Lords, it is a pleasure to continue to deal with Home Office legislation after I have left the department. It is even more of a pleasure when I find that such an order meets the approval of the House.
On Question, Motion agreed to.

Patients′ Protection Bill [H.L.]
3.36 p.m.
Report received.
Baroness Knight of Collingtree Baroness Knight of Collingtree moved Amendment No. 1:
After Clause I, insert the following new clause—
"EXCEPTIONS TO SECTION 1
(1) No offence will have been committed under section 1(1) if any of the requirements in subsections (2) and (3) below are met.
(2) The patient—

(a) requests the withdrawing or withholding of sustenance;

(b) does not give consent to the provision of sustenance; or

(c) does not give consent to the recommended intervention to provide sustenance.

(3) In the case of a patient who lacks capacity to consent, consultation by the doctor in charge with the next of kin or legally appointed representative has taken place, and the provision of sustenance—

(a) is likely to cause significant discomfort to the patient without improvement in his condition, or worsen his illness or debility; or

(b) is likely to result in no improvement in the illness or debility of a dying patient.

(4) For the purposes of subsection (3) a patient lacks capacity if he is unable to understand in broad terms the nature and effect of the decision to withdraw or withhold sustenance."
The noble Baroness said: My Lords, the amendment addresses a number of concerns raised during previous debates on the Bill. First, it makes clear that a patient who does not wish to be fed by a tube through his nose or a peg in his stomach need not be so fed. He has the right of refusal, although one assumes that he will always have been informed of the consequence. No patient should ever be given medical treatment to which he objects. That was never in doubt in my introduction of the Bill but, for those concerned that doctors might be forced to feed in that way, the amendment clarifies the matter. Secondly, if a patient is incapable of giving any view—if he is unconscious, in a coma or cannot understand the issue—the amendment lays down the procedure that must be followed.
The matters have been discussed at considerable length earlier in our debates, so I have no wish to go into every detail once again at this hour on a Friday. I would wish to spare the House that. However, if any noble Lords wish to ask further questions, I shall do my very best to answer them.
I am most grateful to all noble Lords who have contributed to our debates on the Bill, especially to the noble Baroness, Lady Finlay. It was said in previous speeches by other noble Lords that there was not a great deal of difference between us, especially on the imperative need always to give patients the best medical care and show concern for their comfort and well-being at every stage. I am sure that it is right to say that the noble Baroness, Lady Finlay, and I have never had any disagreements on that point. Those comments have been

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proved right. I am both happy and proud that she and I have worked together on the amendment and have signed it jointly. I beg to move.
Baroness Andrews: My Lords, I shall try to be as brief as the noble Baroness. Clearly, we have debated aspects of the amendment in different ways as we have debated the Bill. It seeks to avoid an offence being committed if a decision to withhold or withdraw sustenance were taken on the basis of the patient′s own request or their refusal to consent to the necessary processes and interventions in providing sustenance. The implication in subsection (2) is that the patient concerned has the capacity to request or withhold consent to the withholding or withdrawal of sustenance, although that is not made explicit.
Subsection (3) deals with patients lacking the capacity to consent. It appears to provide that where the doctor in charge has consulted with the patient′s next of kin or legally appointed representative and the provision of sustenance is unlikely to result in any benefit or improvement for the patient, whether dying or not, it may be withheld or withdrawn. As I said during our many hours of debate on the different stages of the Bill, the Government believe that those principles are important ones to maintain in considering any change in the law. We support the general legal and ethical principle that valid consent must be obtained before starting any treatment or intervention or providing personal care for a patient. That reflects the right of patients to determine what happens to their own bodies and is a fundamental part of good practice. Where patients lack the capacity to consent, the key principle governing their care and treatment is that of a person′s best interests. Those best interests are not confined, as we discussed, to best medical interests but will take into account a person′s psychological health, well being and quality of life.
I draw the noble Baroness′s attention to the definition of "capacity" as set out in subsection (4), which somewhat fails to do justice to all the requirements as commonly understood by the term. For a person to have capacity he or she must be able to comprehend and retain information that is material to the decision, especially as to the consequences of having or not having the intervention in question, and must be able to use and weigh that information in the decision-making process. That suggests a detailed understanding of and the ability to interpret the material facts and not just an understanding in broad terms. The amendment also does not specify who should determine whether the patient has the capacity to make those decisions.
Baroness Finlay of Llandaff: My Lords, I am most grateful to the Minister for having outlined the very important issue of competence that runs behind the amendment.
I want to clarify a couple of issues about the wording. First, a patient is assumed to be competent unless they are proved not to be competent; hence the amendment. Subsection (2) refers to "the patient" and subsection (3) to,
"a patient who lacks capacity".
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The other important point about capacity is that the capacity to refuse in a valid manner must be assessed in relation to the proposed intervention. The greater the import of the decision, the greater the capacity required to make it. Hence there is no fixed test for capacity; it depends on weighing up the specifics of the situation.
As the noble Baroness said and as has already been laid down by the courts, "capacity" refers to the fact that the adult patient must be able to understand and retain the information relevant to the decision, believe the information and weigh it in the balance to arrive at a choice. That choice must include understanding the consequences of not receiving a proposed treatment or intervention—in this case, of not receiving sustenance. The choice must also be voluntary and free from pressure. The whole decision-making process must be free from discrimination and it must respect privacy, confidentiality, the liberty of the individual and their dignity, and it must take into account views that the person may have expressed when he was deemed competent prior to being deemed incompetent. There are guidelines for good practice and the amendment seeks to ensure that good practice is built on by ensuring that there is consultation with relatives and/ or carers, as outlined, by next of kin or legally appointed representatives.
Patients are routinely asked on entry to hospital about next of kin. However, if the patient were not competent to state that, the people who would need to be considered are the patient′s partner, family, carer or, in Scotland, the tutor-dative, or a person with parental responsibility; the legally appointed representative currently applies only in Scotland—that status, so far as I understand it, is not valid in English law.
I seek the guidance of the House because shortly before I came into the Chamber it was drawn to my attention that one word was missing from the end of the first line of subsection (2)(a); there should be an "or" at the end of that line. It should read:
"The patient … requests the withdrawing or withholding of sustenance; or … does not give consent to the provision of sustenance; or".
I checked that against the draft that was submitted, and I apologise to the House for not spotting the typographical error in omitting the word "or". I am uncertain whether the word "or" can be carried over to the previous line and believe that that needs to be clarified.
3.45 p.m.
Lord Joffe: My Lords, before I express some concerns about the amendment, perhaps I may seek clarification from the noble Baroness, Lady Knight, on a single word. Is the word "dying", which appears before the word "patient" at the end of proposed new

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subsection (3), intended to include patients in a persistent vegetative state, such as Anthony Bland? If the answer is that it does include such patients, I would considerably shorten my speech.
Baroness Knight of Collingtree: My Lords, I understand from those whose business it is to give medical care—it is not my business—that the words as tabled in the amendment are absolutely clear to the medical profession. So far as concerns that profession, the concept of a "dying patient" carries with it no lack of clarity. But I am certain that the right person to answer this question may well be the noble Baroness, Lady Finlay.
Baroness Finlay of Llandaff: My Lords, perhaps I may speak briefly to clarify the matter. The Bill relates to sustenance. For a patient in a persistent vegetative state there may be other measures which it would be more appropriate to withhold or withdraw prior to considering the withdrawal or withholding of sustenance. To date, the courts have been involved in cases of PVS, and it would seem inappropriate to try to include that in a Bill which is confined to the issue of sustenance.
Lord Joffe: My Lords, perhaps I may then turn to a point which is extremely serious. On my understanding of the case, the courts have dealt specifically with the question of withholding sustenance and they touched upon it in very clear terms in the Bland case. In that case, the noble and learned Lord, Lord Hoffmann, stated on page 832 of his judgment that,
"the medical evidence"—
it is clear that he was referring to the Bland case—
"is that suitable sedation can prevent any untoward symptoms and that withdrawal of nourishment is the most gentle and controlled way in which to allow him to die".
Therefore, the issue was clearly faced up to in that case. If the amendment before the House seeks to change that position, then it runs counter to the decision of the House of Lords appeal court, the Court of Appeal and the presiding judge. Therefore, I believe that we are dealing with a very clinical point in relation to the amendment.
Baroness Knight of Collingtree: My Lords, with great respect, the noble Lord is not correct in his assumption. The Bland judgment did not say—I repeat, "not"; in fact, it was specific about people′s wishes—that henceforward it would be permissible to withhold food and liquid from a patient who was ill in hospital. It was made quite clear that the Bland case was a very special, very particular and, indeed, very bad case—as in "bad cases make bad laws", as, indeed, they do.
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The point also covered very clearly—particularly by the noble and learned Lord, Lord Mustill—was that henceforward the Bland case should not be used as an excuse to deny a patient food and liquid.
Baroness Farrington of Ribbleton: My Lords, I must remind noble Lords that on Report the mover of the amendment is the last person to speak and that other Peers may speak only once.
Lord Joffe: My Lords, I asked whether I could first ask the noble Baroness a question. Is the Minister saying that I am excluded from continuing with my speech?
Baroness Farrington of Ribbleton: My Lords, perhaps I can be helpful to the noble Lord. Any further questions put to the noble Baroness must be answered by her at the end.
Lord Joffe: My Lords, I have read the words of the Bland judgment to the House. It is clear that it talks specifically to exceptions to the rule and that in exceptional cases it is acceptable to deny patients who are suffering, provided that does not cause them unnecessary pain and suffering.
I move on to a point raised in Committee. The noble Baroness, Lady Knight, said that neither the BMA nor any doctors had raised concerns about the Bill. That is said twice in her speech. It is clear that she was not aware of the response of the chairman and the secretary of the Royal College of Physicians Committee on Ethics and Medicine. They produced a specific document in relation to the Bill, stating:
"As it is formulated, the Bill is extremely vague and will certainly be detrimental to humane care of patients. If it were passed, it could be a crude instrument to bludgeon doctors into behaving contrary to clinical judgement informed by a compassionate and sympathetic understanding of the needs of the patient".
It is a two-page document and I will not read further, but that indicates the spirit of the approach to the Bill of the Royal College of Physicians. But in fairness, it must be said that that response was given before the amendments were tabled and perhaps in the light of them it may be different.
I find myself in the position of, broadly speaking, supporting the amendments for the curious reason that although I do not support the Bill, which I accept is moved for reasons of compassion and concern about depriving patients of sustenance without their consent but I believe is unnecessary, I consider that they make a bad Bill rather less bad.
Lord Swinfen: My Lords, I am pleased that my noble friend Lady Knight of Collingtree and the noble Baroness, Lady Finlay of Llandaff, who in Committee appeared not to be singing from the same hymn sheets, are today singing to the same tune but using different words. They were both trying to reach the same point from different directions. I am pleased that they have come together on this amendment and I support it.

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I would have thought that the point raised by the noble Baroness, Lady Andrews, on subsection (4) could have been dealt with easily at Third Reading, if that provision needs improvement. As regards subsection (2)(a), the word "or" can easily be added at Third Reading as a tidying-up measure. There is no difficulty with that; that is, if it does not already come under an Act which we have for clarifying Bills and goes in automatically—I do not know, but the Clerks will be able to advise the noble Baroness.
As to the remarks of the noble Lord, Lord Joffe, on the Bland judgment, I think I am right in saying that the courts said that that judgment should not be taken as a precedent and therefore in some respect his remarks were unnecessary. But if there should be a similar case in future—we all hope that there will not, but unfortunately these things happen—it is always open to either the family or the doctors in treating that patient to ask the court for permission to stop feeding. With those few remarks, I support the amendment.
Lord Brennan: My Lords, in speaking to Amendment No. 1, the House should commend the noble Baronesses Lady Knight of Collingtree and Lady Finlay of Llandaff, on reaching agreement on the amendment to the original Clause 1. I commend the amendment because these are extremely serious matters that we are debating. They are designed to protect patients but they should not, in a desire to protect them, cause unnecessary interference with the proper exercise of medical judgment by those caring for the patients. There is a balance to be struck. The amendment before the House rationally seeks to draw that balance in a reasonable way.
I should like to raise several points for further consideration, if not today at Third Reading. The first is that in paragraph (4) of the amendment there is an attempted definition of "capacity". It is put in the negative, but it is a definition of "capacity". At present, your Lordships face consideration of this Bill, the Bill advanced by the noble Lord, Lord Joffe—the Patient (Assisted Dying) Bill—which also involves capacity, and a Bill which is about to be introduced called the Mental Incapacity Bill.
These matters require significant intellectual rigour to be applied to them. It would be most unfortunate if, in the course of debating each of these three Bills, we approach the question as to capacity with different terminology when they all affect the same area of personal capacity and we should be looking for consistency. That is my first suggestion that the noble Baroness, Lady Knight, should consider at Third Reading; that is, what those other two Bills state and the terms of paragraph (4) of the amendment.
The second point I want to make is that in putting her name to the amendment as a Member of this House, as I understand it, the noble Baroness, Lady Finlay, is also expressing her medical opinion about what is appropriate in terms of patient protection in this particular area. The comments made by professional medical organisations to which the
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noble Lord, Lord Joffe, referred, as he pointed out, were made before these amendments. I suspect that following the amendments the objections will not be pursued, but when we consider the position of the medical profession I invite the House to exercise that intellectual rigour I mentioned a moment ago.
It would be unfortunate if, in considering this Bill, we ask the House to take into account medical opinion if it is against the Bill and yet, when the Bill of the noble Lord, Lord Joffe, comes before the House it is said, "Don′t take into account medical opinion if it objects to the Bill; there are more important considerations". Putting it generously, that is intellectually unattractive. So we need to have a consistent view about the medical position.
My last point is about subsection (3). First, the Bland case did not create a generally applicable principle of law. A reading of the speeches in the House of Lords makes that abundantly clear. I must point out to the noble Lord, Lord Joffe, that what he read out was part of the speech in the Court of Appeal of Lord Justice Hoffmann, as he then was; it was not part of one of the speeches from the House of Lords.
I raise that point because the House was exceptionally careful to limit precisely the effect of its judgment by pointing out that in its view these matters required further and particular consideration by Parliament. This is an occasion for such consideration.
As I read subsection (3)(a), it appears to refer to a class of patient who is not dying, but on the terms used would include a patient in a persistent vegetative state. If not, I should like clarification at Third Reading as to which class of patient that is intended to refer. At the moment it appears to refer to any condition and it would not matter even if the patient was only mildly ill. It would seem extraordinary if in those circumstances a patient could say, "Don′t feed me. I intend to die even though I have only a minor condition". I am being strictly legal about this issue, but it is an important matter. In contrast, subsection (3)(b) appears to refer to the dying patient and requires no more than common sense to interpret what it means. So we need clarification with regard to those matters.
I close my remarks on the amendment by repeating what I said at the beginning: it is to be welcomed and I would commend to the House—if your Lordships can forgive the third repetition of it—on this occasion, and when we come to the other two matters that I have mentioned, the need to use throughout objective argument and intellectual rigour.
4 p.m.
Baroness Knight of Collingtree: My Lords, first, I make clear to your Lordships that I have received notification from the Table that it will be possible to deal with the important point raised by the noble Baroness, Lady Finlay, that the word "or" can be treated as a printing error. I am grateful for that advice.
There is no need for me to comment on what the noble Lord, Lord Joffe, said. In some ways I find it difficult to understand where the noble Lord is coming from, because, as your Lordships are well aware, he is

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very much in favour of people being allowed to be "done to death" when they wish that to happen. The Bill is not about that at all; it is about protecting people from being "done to death" when they do not wish to die. Having said those words, I shall leave the matter.
The noble Lord, Lord Brennan, made an important point on the question of capacity. That could not be considered briefly and without careful thought. I am quite sure that colleagues who support this Bill will take that on board, as we all will, and consider most carefully whether changes in the wording are needed or advisable.
With regard to medical opinion and the need for the House to have a consistent view on it, it has often struck me with astonishment that it is extremely difficult to get a consistent view from the BMA. That is natural because doctors are personalities, as are we all. Conflicting views have frequently been expressed to me on medical issues that have come before not only this House but my former place of work, the other place. One doctor will say one thing and another will give quite the reverse as his opinion. So it is sometimes difficult to discern what is the majority view of the BMA. We all have a duty to listen to experts in the fields in which we deal, carefully weigh up what is said and then make up our own minds on the matter. Any other course of action will be problematic.
On the question of what the wording of subsection (3)(a) means, again, I think it better not to detain the House at this time but to assure the noble Lord, Lord Brennan, that that will be considered. With those words, I commend the amendment to the House.
On Question, amendment agreed to.
Baroness Finlay of Llandaff Baroness Finlay of Llandaff moved Amendment No. 2:
After Clause 1, insert the following new clause—
"DUTY OF CARE
There shall be a general duty on all those providing nursing care for a patient to offer appropriate sustenance to the patient."
The noble Baroness said: My Lords, the amendment addresses the duty of care. Nursing care is riot confined to those with a nursing qualification; it consists of the care of those patients who are vulnerable and unable to provide their own nutrition because of debility. That does not mean that sustenance must be offered by registered nurses only. Indeed, in the modern NHS. the role is often fulfilled by care assistants and other non-professional carers.
Neither does it exclude other professions, such as dieticians, pharmacists and others, from an obligation to support that caring process. It is negligent on behalf of anyone entrusted to provide care to fail to discharge his duty to offer the competent—and, indeed, the incompetent—person sustenance. However, in previous debates, there was great concern that patients are at present frightened of going into hospital, and the amendment should allay those fears.
It is negligent to fail to provide such basic care to a person at home—again, the amendment restates that. It does not require someone who helps a debilitated person to shop then also to prepare the meals, but it
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ensures that vulnerable people will be offered sustenance if they are unable to prepare it for themselves. It does not remove the duty of best interest in decision-making for the incompetent patient. I beg to move.
Baroness Knight of Collingtree: My Lords, in giving brief support to the amendment, I point out that earlier the noble Baroness, Lady Finlay, spoke of the distress caused in hospitals when—this has been reported many times—the food that a patient needed was placed too far for him or her to reach to eat it. Then the nurse would return later and say, "Oh, you′re not hungry then, Mr Jones", and take it away. That is why many of us have received letters. Examples by the score have come to many noble Lords who are involved in the issue of health care. I hope and trust that the amendment will relieve that dreadful occurrence.
Baroness Andrews: My Lords, the noble Baroness′s amendment is similar to one that we discussed in Committee last week, but the scope has been changed. She seeks to impose on all those providing nursing care for a patient a general duty to offer appropriate sustenance to that patient.
I shall reinforce briefly some points that I have made as the Bill has been debated in your Lordships′ House. I cannot restate strongly enough that poor and neglectful care of patients should not happen. Failing to provide nutrition and/or hydration that is appropriate to a patient′s clinical condition and nutritional needs is contrary to established acceptable practice, and, if amounting to gross neglect, would be a criminal offence.
The amendment seems to restate established good practice but is now selectively addressed to those providing nursing care. It is not addressed to all healthcare professionals, including doctors, who would be involved in initiating invasive methods of nutrition and hydration, and pharmacists and dieticians, who would be involved in providing and monitoring intravenous and intra-gastric nutrition. The clause could, however, encompass lay carers and thus impose new and possibly onerous duties on those close to a patient who may be nursing a relative at home.
The Bill already provides a definition of "sustenance":
"the provision of nutrition and hydration, however so delivered".
However, it does not define what is appropriate. That is difficult enough for professional carers to decide but will often be impossible for lay carers. It is unclear what that means for a nursing or lay carer who may not be qualified to initiate, or possibly to administer, the more invasive methods of providing sustenance.
The word "offer" is not defined here or in the rest of the Bill, but the use of the word suggests that the amendment is about patients who are in a position to refuse. Where a person is not in a position to consent to treatment, or to refuse an offer, the normal rules apply and those caring for them must act in the person′s best interests. If, as the end of life is reached,

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it is not appropriate to offer increasingly invasive methods of delivering sustenance, those caring for the patient do not have to make the offer.
I conclude by restating an observation that I think I made at Second Reading—it now seems a very long time ago. The discussions that noble Lords have had over many hours have reinforced how difficult it is satisfactorily and comprehensively to encapsulate subtle healthcare concepts, which require compassion and discretion in delivery in robust, unambiguous and defensible legal English. I recognise the noble Baroness′s concerns in introducing the Bill. However, it would be worth while if we all reflected on whether there is a need for legislation in such a sensitive area. One could argue that the area is more amenable to the detail and subtlety that professional guidance and good practice can deliver, and where safeguards against transgression already exist in law.
The Bill has allowed many related issues to be aired in this House. It has been very valuable in that sense. However, at times, there has been a muddling of the Bill′s intentions with general concerns about the quality of care available to elderly patients and patents who are dying under NHS care.
The Government believe profoundly in the fundamental principles underlying the inception and continuation of the NHS as it provides for elderly people—high quality care available to all who need it and free at the point of delivery. We have invested a great deal in that commitment. As we conclude this stage of the Bill, it is important to bear in mind the importance that we attach to the quality of care for elderly people, no matter what their circumstances.
Lord Joffe: My Lords, I support the intention of the amendment, but, like the Minister, I am concerned about the wording. Perhaps I may take the opportunity to explain to the noble Baroness, Lady Knight, that I do not seek to ensure that patients get "done in". I seek to assist patients who wish to die to do so with dignity. I refer the
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noble Baroness to the judgment of the noble and learned Lord, Lord Hoffmann, from which I quoted and in which he dealt at some length with the use of emotive language in discussions of such seriousness.
4.15 p.m.
Lord Brennan: My Lords, I rise briefly to raise a point advanced by my noble friend the Minister, which is to stress how careful we must be in dealing with matters of this sensitivity. That is not a reason why the House should decline to deal with matters of public interest, because in the House of Lords case of Bland, all the Law Lords said that it was a matter for Parliament, and at least one, the noble and learned Lord, Lord Mustill, said that the matter was of such importance for Parliament that it could not properly be left to the exercise of judgment by the medical profession. That was not an expression of a lack of confidence in that profession, but an expression of the belief that matters of this gravity must be determined by the legislature and not individual professions alone.
It would be unfortunate if our senior court recommends this House to consider these matters and we finish up referring it back to the very medical profession that brought the Bland case to the House of Lords in the first place. That would be a long circular journey since Bland.
Baroness Finlay of Llandaff: My Lords, I am most grateful to all noble Lords who have spoken. I am particularly grateful to the Minister for clarifying potential complications that may arise in the wording of the amendment. When I spoke previously, I had hoped to clarify that nursing was to be used in the broadest sense, not simply a narrow sense. It therefore leaves me with somewhat of a dilemma in terms of the wording of this amendment. However, I feel at this stage, given the possibility of tidying up the wording at Third Reading, I will press this amendment now.
On Question, amendment agreed to.
House adjourned at seventeen minutes past four o′clock.