Lords Sitting of 19 June 2003

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

Licensing Bill [H.L.]
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, I have it in command from His Royal Highness the Prince of Wales to acquaint the House that he, having been informed of the purport of the Licensing Bill, has consented to place his prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament, for the purposes of the Bill.
I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered. —(Lord McIntosh of Haringey.)
On Question, Motion agreed to.

Licensing Bill [H.L.]
  COMMONS AMENDMENTS
  [The page and line references are to Bill 73 as first printed for the Commons.]

  COMMONS AMENDMENT
  1 Clause 1, page 1, line 13, leave out "for consumption on the premises where the supply takes place"
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1. I speak also to Amendments Nos. 24 to 31, 33, 34, 85 and 86.
  I must begin by making it clear to the House that, although we are debating the principle of off-sales from clubs, noble Lords will note that Amendments Nos. 27, 29, 33, 34, 85 and 86 contain references to the mandatory conditions relating to the showing of films, the principle of which we will debate in a later group.
  On Report in this House, my noble friend Lord Evans of Parkside moved an amendment designed to remove the Bill's prohibition on the supply of alcohol by or on behalf of a club to or to the order of a member of the club for consumption off the premises. The Government resisted that amendment, but we agreed to meet my noble friend to discuss the issue further, and he graciously agreed to withdraw the amendment.
  Following our meeting and further consultation with the clubs movement, we moved these amendments in Committee in another place. The Bill now, therefore, allows clubs to make off-sales to their members, though not to their members' guests. Registered members' clubs under existing law, which will become qualifying clubs under the Bill, include political clubs—Labour, Liberal Democrat and
  904
  Conservative—working men's clubs, ex-services clubs and the Royal British Legion, clubs for certain professions and activities, miners' institutes and many sports clubs. Such clubs enjoy a different status to premises that operate under justices' licences and will, under the Bill, operate under premises licences, because they have a particular role to play as meeting-places in the community. The clubs are, however, limited in their activities. Alcohol can be supplied only to members and guests and not to the general public.
  Registered clubs are permitted by current law to supply alcohol to their members for consumption off the premises. It is likely that that was included for clarification purposes, as the provision by a club of its own alcohol to its members for their personal purposes outside the club would not be a licensable activity. The Bill, as originally drafted, made no provision for the supply of alcohol to members for consumption off the premises because it was decided that such supplies had little to do with clubs' traditional role as a meeting-place in the community. However, following further consultation with the Committee of Registered Clubs Association, we have taken the view that, as members of clubs already own the alcohol stock between them, it would be churlish to deny them the right to take alcohol home. Allowing them to do so poses no significant risk to the achievement of the licensing objectives.
  The House will note that Amendment No. 31 sets certain conditions relating to club premises certificates authorising off-sales from qualifying clubs. A club premises certificate may not authorise the supply of alcohol for consumption off the premises, unless it also authorises supply to members for consumption on those premises and that a club premises certificate authorising the supply of alcohol for consumption off the premises must include three conditions. The conditions are: first, the supply must be made at a time when the premises are open for the purpose of supplying alcohol, in accordance with the club premises certificate, to members of the club for consumption on the premises; secondly, any alcohol supplied for consumption off the premises must be in a sealed container; and, thirdly, any supply of alcohol for consumption off the premises must be made to a member of the club in person.
  I hope that the House will agree that, with those conditions in place, there is no good reason to prevent qualifying clubs supplying alcohol to their members for consumption off the premises.
  Moved, That the House do agree with the Commons in their Amendment No. 1.—(Lord McIntosh of Haringey.)
  Lord Evans of Parkside: My Lords, I thank my noble friend for accepting the spirit of the amendment that I moved on Report. I also thank Ministers for their courtesy in meeting me and representatives of the various club organisations. We are grateful for what my noble friend has done on behalf of all the club organisations in Great Britain.
  Baroness Buscombe: My Lords, we support the amendments, and we are grateful for them.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  2 Clause 3, page 2, line 41, at end insert "or"
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2. I speak also to Amendments Nos. 3, 4, 46, 47, 48 and 49. It is appropriate that I speak first, before the noble Lord, Lord Redesdale, moves Amendment No. 2A.
  I assure those on the Benches opposite that their handiwork in pressing amendments on this topic prompted the Government and their key partners, including the industry, the local authorities and the police, to accelerate their work to honour the White Paper commitment to set up a national database for personal licences. Before I make progress, I shall clarify for the benefit of the House the difference between a national database and a central licensing authority, which is what was proposed in the amendments that were carried during the passage of the Bill through the House. The distinction is absolutely critical although it is somewhat technical.
  It is important to understand that a national database is not the same as setting up a whole new statutory body—the central licensing authority—which is the effect of the amendments made here. It refers to the development of an electronic system to allow the police, other responsible authorities and licensing authorities to exchange information easily and freely, and for licensees to apply online and facilitate the update of their details—for example, a change of address—thereby reducing bureaucracy. It is very firmly a database and not a new body corporate entrusted with statutory functions.
  Once we understand this important distinction, the argument in favour of a central licensing authority tends to evaporate. There are no advantages to be gained in having such an authority to administer personal licences over the scheme provided in the Bill as introduced to this House. All matters pertaining to an individual applicant or licence holder will be with one authority where records are maintained and required to be accessible. The simple fact is that no one—not the industry, nor the police, nor the local authorities—actually wants a central licensing authority or would benefit from one.
  It would add bureaucracy, cost and delay for no advantage. Who wants or needs another arm of government to carry out this relatively simple administrative process? The costs of setting up a new arm of government in this way—I understand that the sponsors of this amendment are talking about a body like the DVLA or the Security Industry Authority; I do not accuse them of wanting to set up another Criminal Records Bureau or Child Support Agency—will cost millions and take years to set up. In the mean time, the vast majority of the responsible public will be asking just why they are waiting.
  906
  Having said that, there is a great deal of merit in a national database. That is why the Bill provides the framework within which it can be developed. The Government are totally committed to working with partners to set up such a system. We have already met key stakeholders on a number of occasions with a view to producing an initial specification. We shall drive the work forward in parallel with the Bill to ensure that a system is available at the earliest opportunity. We have also facilitated meetings and seminars with the Office of the e-Envoy, and work on a business requirements document—the first step in the process—is well advanced. The business requirements document is being drafted in consultation with all key stakeholders.
  We are also taking forward a supporting project with the aim of ensuring that local authorities have the advice and support necessary to enable them to record information in a mutually consistent format. That will in turn facilitate the interchange of information when the central database is up and running.
  None of us should be under any misapprehension about the complexity or magnitude of the work involved when we consider that it would need to join up the licensing functions of around 410 authorities. There is still no extant example of a joined-up system of any significance which covers every local authority in England and Wales, although progress is being made across a number of fronts.
  Work has started on the central database. We are building on the experience of others in this sector—for example, the local government planning portal and the project to integrate local land and property gazetteers. It is true that the national database will not be up and running before the beginning of the transitional period. That is why we have identified a separate project on data standards that we shall be driving forward in the run up to the first appointed day. The aim of this project will be to ensure that all licensing authorities record the same information in the same way to facilitate migration of data to the new system when it has been put in place. In doing so, we shall be encouraging the full adoption of existing government interoperability and metadata standards.
  We have received wholehearted support for this approach. In the mean time, the Bill provides a simple, accessible system that can be up and running from Royal Assent. I am confident that the local system will work well up to the point where the national database can be up and running.
  Moved, That the House do agree with the Commons in their Amendment No. 2.—(Lord McIntosh of Haringey.)
  2A Lord Redesdale rose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 2, leave out "agree" and insert "disagree".
  The noble Lord said: My Lords, I received information this morning regarding what appears to be a rather complicated system. I apologise if I get it wrong at any point. I should like to begin by welcoming the noble Lord, Lord McIntosh, in his new role. So often in these debates we have talked about the multiple hatting of the noble Lord—depending on the

  907
  day of the week and the department that he is representing. It is most welcome news that he has now taken on this role. As I have not had a previous opportunity to do so, I should also like to say how much we valued the work of the noble Baroness, Lady Blackstone, in that role up until this time.
  The central licensing authority is an issue that has caused a degree of concern. The Minister has been extremely erudite in arguing his case and in arguing the case for a database. It was telling that he said that it was the work on this side of the House that has made the database a reality in the short term. That is very helpful. However, we have a number of concerns about the way in which the system is being set up. The amendment also reflects the concerns of the Local Government Association, with which I know the Minister has been working. However, it is perhaps on the back of those concerns—because, obviously, local authorities will run the system—that we shall be considering pressing this group of amendments.
  The arguments have been expressed at all stages of this Bill. Personal licences lasting up to 10 years will be granted on an individual basis and will have a degree of portability. That is why we hope to set up a system with a degree of conformity as regards everyone who applies for a licence. There could be a degree of difference from authority to authority, especially as the system has not been set up as yet, and is being set up over the medium term. Indeed, to a degree, it will not be in place when the Bill becomes law.
  One of our major concerns is cost. This is a deregulating Bill where we believe that the costs will be neutral. The Minister said that it will cost in the region of £10 million to set up a central database. That seems a very large amount of money, although it is a set-up cost and a one-off cost and could be funded from the fees charged for each of the licensees to run the system.
  The LGA wishes the system that we propose to be implemented. It may be an expensive system, and we should ask where the costs will fall if they do not fall on the central licensing system. It appears that the costs will fall on the local authorities. The Minister will say that those costs will already be borne to a degree by the local authorities, because people will have to register their interests with local authorities. However, disproportionate cost may fall on some local authorities if a brewery chain is based in one area and wants all its licensees to be registered with a particular authority that it feels that it can work with, for example.
  On that basis, and on the advice of the LGA, I beg to move.
  Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 2, leave out "agree" and insert "disagree". —(Lord Redesdale.)
  Baroness Buscombe: My Lords, I support the amendment proposed by the noble Lord, Lord Redesdale. I begin by expressing my appreciation for the time that the Secretary of State and the Minister have given to the noble Lord, Lord
  908
  Redesdale, and myself in their efforts to agree on as much as possible with regard to the Bill. Those opportunities have been greatly appreciated.
  However, we are disturbed by the response in another place to our amendment, which we achieved in this House with regard to the need for a central licensing authority. It was made clear in another place and again today by the Minister that the Government are honouring a commitment to set up a national database. However, it remains unclear what that actually means, and who will pay, implement and manage that system. It is clear that everyone involved is now deeply concerned about that.
  The noble Lord, Lord Redesdale, made clear the reality, which is the huge cost exercise involved in setting up the system. Central government want to shift the licensing system on to local authorities from the magistrates, who, many continue to believe, were carrying out their duties perfectly adequately. Someone has to pay for that shift. Local authorities say that they will not be able to afford the necessary system, and industry is rightly worried that local authorities will look for ways in which to deflect costs on to it.
  We are deeply concerned about the importance of filtering applications for personal licences, to assist licensing authorities and the police in ensuring that only legitimate applicants apply for licences and renew their licences wherever they live in the country and no matter how many times they may have moved in a 10-year period in this very flexible and often transient industry.
  The Minister made it clear that setting up the database will cost millions of pounds, and that key stakeholders are already involved. I assume that "key stakeholders" means local authorities. There is clearly a lack of trust here, as local authorities are coming to us and saying, "Please press the Government for a central authority". They 1,A, ant something akin to the DVLA or the Security Industry Authority.
  We feel that the matter is sufficiently important to hope that the noble Lord, Lord Redesdale, will press his amendment.
  Lord McIntosh of Haringey: My Lords, I have heard what the noble Baroness, Lady Buscombe, and the noble Lord, Lord Redesdale, have said about the amendment. I should say straightaway that I appreciate the concerns of local authorities. After all, all the functions have been performed by licensing justices in the past, and it is a very considerable shift for local authorities to be given the responsibility for licensing.
  However, that does not mean that one particular element—the organisation of personal licences—should be taken away from local authorities and given to a central licensing authority. All other aspects of the licensing regime set out in the Bill, including the registration, control and administration of premises licences, are to be the responsibility of local authorities. It seems strange that this one particular element is now being queried and that it is proposed to take it away from local authorities.

  909
  I understand the concerns of local authorities about entering into new territory and about money. The noble Lord, Lord Redesdale, queried the cost of a database. I cannot give a precise figure for the cost of the database. A central licensing authority would have its own staff and would be a non-departmental public body or something of that kind—exactly what it would be is not spelt out in the amendments that were passed here. I can give an assurance that the cost of such an authority would be substantially more than the cost of a database.
  The supporters of the amendment are asking for an authority performing statutory functions. I can give an idea of the likely cost of such an authority, by analogy. The new Gambling Commission costs, which will be subject to parliamentary scrutiny over the next year, are expected to be from £10 million to £13 million pounds a year. The Security Industry Authority, which was mentioned when the proposals were made earlier this year in this House, incurred £6 million in set-up costs alone last year.
  The cost of a central licensing authority, as will the cost of a database, would eventually be passed on to the consumer. I must point out to the noble Lord, Lord Redesdale, that it is no answer to say that the cost of a central database can be recovered from a licensee, since licensees will put up their prices if their costs increase and the consumer will pay in the end. It really does not matter how the intermediate arrangements are made.
  I have already said, in response to the noble Lord, Lord Redesdale, that there will be a consistency of format in the way in which the personal licence system is set up from the very beginning, so that it can be "migrated"—that is the technical term—to the central database in due course.
  The Government are not in the business of setting up new government organisations that are not necessary. We have a provision for a collaborative effort that will do the job perfectly effectively. We have no need to spend that extra money and involve ourselves in the extra bureaucracy. I hope that the House resists the amendment.
  Lord Redesdale: My Lords, I thank the Minister for his erudite reply. We have gone over the issue of costs on a number of occasions. I was somewhat concerned when the Minister said that the measures would lead to a rise in costs to the licensee and then to the consumer. That implies that the Bill, which is supposed to be cost-neutral, has some in-built problems that will have to be reassessed later.
  Lord McIntosh of Haringey: My Lords, I used the word "cost-neutral" because there are already substantial costs in the licensing regime through licensing justices. We are saying that a licensing regime through licensing authorities will be cheaper because less complex and bureaucratic than the licensing
  910
  justices system. However, within that cost will be additional costs that would have to be passed on for a central licensing authority.
  Lord Redesdale: My Lords, there has been a fundamental disagreement about how those costs will be met and how onerous they would be. We believe that the amendment would benefit licensees throughout the country and make the Bill work more cogently and coherently. Therefore, I beg leave to test the opinion of the House.
  The Chairman of Committees (Lord Brabazon of Tara): My Lords, the original Question was that this House do agree with the Commons in their Amendment No. 2 since when an amendment has been moved to leave out "agree" and insert "disagree". The Question is that this amendment be agreed to.
  11.29 a.m.
  On Question, Whether the said amendment (No. 2A) shall be agreed to?
  *Their Lordships divided: Contents, 115; Not-Contents, 117.

  Division No. 1

  CONTENTS

  Aberdare, L.

  Henley, L.

  Ackner, L.

  Higgins, L.

  Addington, L.

  Hodgson of Astley Abbotts, L.

  Ampthill, L.

  Howe of Aberavon, L.

  Anelay of St Johns, B.

  Hunt of Wirral, L.

  Astor, V.

  Inge, L.

  Astor of Hever, L.

  James of Holland Park, B.

  Avebury, L.

  Jellicoe, E.

  Beaumont of Whitley, L.

  Jenkin of Roding, L.

  Biffen, L.

  Jopling, L.

  Blatch, B.

  Kimball, L.

  Bradshaw, L.

  Laing of Dunphail, L.

  Brittan of Spennithorne, L.

  Livsey of Talgarth, L.

  Brooke of Sutton Mandeville, L.

  Lucas, L.

  Buscombe, B.

  Luke, L.

  Campbell of Alloway, L.

  McColl of Dulwich, L.

  Carlile of Berriew, L.

  MacGregor of Pulham Market, L

  Carlisle of Bucklow, L.

  Carnegy of Lour, B.

  Maclennan of Rogart, L.

  Chalker of Wallasey, B.

  McNally, L.

  Cockfield, L.

  Maddock, B.

  Coe, L.

  Mar and Kellie, E.

  Cope of Berkeley, L.

  Miller of Chilthorne Domer, B.

  Crathorne, L.

  Miller of Hendon, B.

  Crickhowell, L.

  Monro of Langholm, L.

  Denham, L.

  Mowbray and Stourton, L.

  Dholakia, L.

  Moynihan, L.

  Dixon-Smith, L.

  Murton of Lindisfarne, L.

  Dundee, E.

  Newby, L.

  Eccles of Moulton, B.

  Northesk, E.

  Elles, B.

  Northover, B.

  Falkland, V.

  O'Cathain, B.

  Fookes, B.

  Oppenheim-Barnes, B.

  Fowler, L.

  Park of Monmouth, B.

  Gardner of Parkes, B.

  Perry of Southwark, B.

  Geddes, L.

  Peyton of Yeovil, L.

  Glentoran, L.

  Phillips of Sudbury, L.

  Goodhart, L.

  Pilkington of Oxenford, L.

  Griffiths of Fforestfach, L.

  Razzall, L.

  Harris of Richmond, B.

  Rennard, L.

  911

  Roberts of Conwy, L.

  Swinfen, L.

  Roper, L. [Teller]

  Thomas of Gwydir, L.

  Saatchi, L.

  Thomas of Walliswood, B.

  Saltoun of Abernethy, Ly.

  Thomson of Monifieth, L.

  Seccombe, B.

  Tope, L.

  Selsdon, L.

  Trefgarne, L.

  Sharp of Guildford, B.

  Trumpington, B.

  Sharples, B.

  Ullswater, V.

  Shaw of Northstead, L.

  Vivian, L.

  Wakeham, L.

  Shrewsbury, E.

  Walmsley, B

  Shutt of Greetland, L. [Teller]

  Warnock, B.

  Skelmersdale, L.

  Wigoder, L.

  Smith of Clifton, L.

  Williams of Crosby, B.

  Stewartby, L.

  Williamson of Horton, L.

  Strange, B.

  Willoughby de Broke, L.

  Strathclyde, L.

  Windlesham, L.

  NOT-CONTENTS

  Acton, L.

  Irvine of Lairg, L.

  Ahmed, L.

  Jones, L.

  Alli, L.

  Kilclooney, L.

  Andrews, B.

  King of West Bromwich, L.

  Archer of Sandwell, L.

  Kirkhill, L.

  Ashton of Upholland, B.

  Laming, L.

  Bach, L.

  Lea of Crondall, L.

  Bassam of Brighton, L.

  Lipsey, L.

  Berkeley, L.

  Lockwood, B.

  Bernstein of Craigweil, L.

  Lofthouse of Pontefract, L.

  Billingham, B.

  McCarthy, L.

  Blackburn, Bp.

  Macdonald of Tradeston, L.

  Blackstone, B.

  McIntosh of Haringey, L.

  Borrie, L.

  McIntosh of Hudnall, B.

  Bragg, L.

  Mackenzie of Framwellgate, L.

  Brooke of Alverthorpe, L.

  Mar, C.

  Brookman, L.

  Marsh, L.

  Campbell-Savours, L.

  Masham of Ilton, B.

  Carter, L.

  Mason of Barnsley, L.

  Christopher, L.

  Merlyn-Rees, L.

  Clark of Windermere, L.

  Milner of Leeds, L.

  Clarke of Hampstead, L.

  Morgan, L.

  Clinton-Davis, L.

  Morgan of Huyton, B.

  Corbett of Castle Vale, L.

  Morris of Aberavon, L.

  Crawley, B. [Teller]

  Morris of Manchester, L.

  David, B.

  Murray of Epping Forest, L.

  Davies of Oldham, L. [Teller]

  Nicol, B.

  Desai, L.

  Orme, L.

  Dixon, L.

  Ouseley, L.

  Dubs, L.

  Patel of Blackburn, L.

  Elder, L.

  Peterborough, Bp.

  Evans of Parkside, L.

  Pitkeathley, B.

  Evans of Temple Guiting, L.

  Prys-Davies, L.

  Farrington of Ribbleton, B.

  Puttnam, L.

  Faulkner of Worcester, L.

  Radice, L.

  Gale, B.

  Ramsay of Cartvale, B.

  Gavron, L.

  Richard, L.

  Gibson of Market Rasen, B.

  Rooker, L.

  Gordon of Strathblane, L.

  Sainsbury of Turville, L.

  Goudie, B.

  Sandwich, E.

  Gould of Potternewton, B.

  Scotland of Asthal, B.

  Graham of Edmonton, L.

  Sewel, L.

  Grocott, L.

  Sheldon, L.

  Hardy of Wath, L.

  Simon, V.

  Harris of Haringey, L.

  Stone of Blackheath, L.

  Harrison, L.

  Strabolgi, L.

  Haskel, L.

  Symons of Vernham Dean, B.

  Hilton of Eggardon, B.

  Taylor of Blackburn, L.

  Hogg of Cumbernauld, L.

  Temple-Morris, L.

  Hollis of Heigham, B.

  Thornton, B.

  Howarth of Breckland, B.

  Turner of Camden, B.

  Howe of Idlicote, B.

  Uddin, B.

  Hoyle, L.

  Walpole, L.

  Hughes of Woodside, L.

  Warner, L.

  Hunt of Kings Heath, L.

  Weatherill, L.

  Hylton, L.

  Whitaker, B.

  912

  Whitty, L.

  Williams of Mostyn, L. (Lord President of the Council)

  Wilkins, B.

  Williams of Elvel, L.

  Woolmer of Leeds, L.

  [*See col. 922]
  Resolved in the negative, and amendment disagreed to accordingly.
  On Question, Motion agreed to.
  11.39 a.m.

  COMMONS AMENDMENT
  3 Page 3, line 1, leave out from "Scilly" to end of line 2
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3.
  Moved, That the House do agree with the Commons in their Amendment No. 3.—(Lord McIntosh of Haringey.)
  [Amendment No. 3A not moved.]
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  4 Leave out Clause 4
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 4.
  Moved, That the House do agree with the Commons in their Amendment No. 4.—(Lord McIntosh of Haringey.)
  [Amendment No. 4A not moved.]
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  5 Clause 5, page 3, line 28, leave out from first "of" to "; and" in line 31 and insert "public nuisance"
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 5.
  The licensing objectives and their promotion must be capable of being translated into conditions that have to be complied with by licensees as well as representing the overarching criteria against which the licensing authority must discharge its functions in the public interest.
  Amendment No. 5 restored to the Bill the four licensing objectives that it originally contained. Those are the prevention of crime and disorder; public safety; the prevention of public nuisance; and the protection of children from harm. The House removed the prevention of public nuisance by an amendment in another place. Amendment No. 5 therefore reversed that decision and deleted the reference to public amenity, which this House had put in its place.
  We believe that replacing "public nuisance" with "amenity" significantly weakened the Bill, in particular in terms of the protection that it affords local residents in relation to the carrying on of

  913
  licensable activities. I recognise that that was clearly not the intention, but it was the effect. In our debates at that time, an impression was given that public nuisance was a narrow concept that would not cover some of the problems that might be caused to residents living near licensed premises. That was because the House was directed by contributors to the debate to the narrow definition of "nuisance" used in the Environmental Protection Act 1990. That definition is misleading in the context of the Bill.
  The Bill does not define "public nuisance". It retains the wider meaning that it has under common law; not that in the 1990 Act or in any other statutory definition. "Public nuisance" therefore retains the breadth and flexibility to take in all the concerns likely to arise from the operation of any premises conducting licensable activities in terms of the impact of nuisance on people living or doing business nearby.
  On the other hand, "public amenity" is a narrower term derived from planning law and refers to the aesthetic and visual qualities of an area. It would not cover the problems of noise and many aspects of anti-social behaviour that we acknowledge, to which the operation of some premises could give rise. Planning law already provides local planning authorities with the tools that they need to address public amenity concerns at any premises, not only at licensed premises. It would therefore be repetitious to include them in the Bill. It is essential that the prevention of public nuisance remains one of the key licensing objectives of the Bill.
  I can assure the House that in the guidance to be issued by the Secretary of State we shall make direct reference to public amenity issues that might properly give rise to conditions attached to licences under the objective of preventing public nuisance. I remind the House that we shall have an opportunity to fully debate the statutory guidance before it is issued. I hope that that will go some way towards persuading the House not to oppose the changes made when the Bill was in another place.
  Moved, That the House do agree with the Commons in their Amendment No. 5.—(Lord McIntosh of Haringey.)
  5A Baroness Buscombe rose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 5, leave out "agree" and insert "disagree".
  The noble Baroness said: My Lords, we now return to an amendment that enjoyed much cross-party support when we moved it in your Lordships' House. The issue goes to the heart of the Bill. It concerns the impact of a licensed premises on everyone in the vicinity of those premises.
  When we debated the matter at length in your Lordships' House, we asked—and we now ask again—the Government to recognise the need for licensing authorities, when carrying out their functions under the Act, to consider both the quality of life for all those living and working in the vicinity of a licensed premises and the interests of local businesses, local enterprise and their customers' enjoyment of the premises' facilities.
  914
  A fair balance needs to be struck. The licensing objectives set out in the Bill as originally drafted fail to address that need. Although one of the four licensing objectives was the prevention of public nuisance, it was and remains our contention that simply referring to public nuisance fails to address that need. The term "public nuisance"—here I strongly disagree with the Minister—is open to broad interpretation, which would make it incredibly difficult for licensing authorities to be sure that they were promoting the licensing objectives in a fair and proportionate way.
  Noble Lords may remember that in Committee I took time to highlight the case law on the subject of public nuisance to show that the definition of "public nuisance" is open to different interpretations. What we now need is clarity for the benefit of licensing authorities when promoting the licensing objectives. Our amendment clarified the situation and was fair and in the interests of industry and local residents. I am amazed that Members in another place saw fit to overturn what made sense for all their constituents.
  Let me remind your Lordships of the wording that we used. When we refer to amenity. we mean the prevention of unreasonable diminution of the living and working amenity and environment of interested parties in the vicinity of the premises, balancing those matters against the benefits to be derived from the leisure amenity of such premises. We believe that this amendment is entirely proportionate, fair and sensible. We therefore ask the Government to reconsider the matter. It is a crucially important issue that can surely do no harm to the legislation. In the interests of enterprise and residents alike, it would do a great deal of good. I beg to move.
  Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 5, leave out "agree" and insert "disagree".—(Baroness Buscombe.)
  Lord Phillips of Sudbury: My Lords, like the noble Baroness, Lady Buscombe, I, too, am unhappy and not persuaded by what the Minister has said. Incidentally, I congratulate him on his most recent attainment.
  The truth of the matter is that guidance is no more than guidance. It has no statutory bite, and in any event it can be interpreted only within the ambit of the statute. If the statute, as proposed, refers only to public nuisance and not to the much wider and more balanced test to which the noble Baroness, Lady Buscombe, referred, which seeks to balance the amenity of local residents with entertainment and business factors, then it is not a matter of opinion but a matter of fact that the guidance can be construed only in accordance with that public nuisance objective.
  As has been said many times on Report, in Committee and again today, "public nuisance" is a very high hurdle indeed. A publican ambitious to extend his or her trade is encouraged by the existing draft guidance to apply for and obtain a 24-hour licence; there is a strong predisposition in the guidance to 24-hour licences. It would therefore be idle to

  915
  pretend that normal behaviour at abnormal hours, such as the regular coming and going to a village pub at three, four or five o'clock in the morning, would not create a great despoliation of individual amenity—noise, light, traffic.
  It is also idle to pretend that the conduct of a single person going lawfully and peaceably to a village pub at four o'clock in the morning, getting out of his or her car, slamming the door, turning off the engine, going into the pub, coming out sober, getting back into the car, starting the engine, slamming the door and moving off, could constitute a nuisance. It would not come remotely within the definition of nuisance. The Government should not therefore pretend that "public nuisance", the third of the four objectives, would be of any use at all to counter that amenity loss.
  In conclusion, leaving the statute as it is—regardless, frankly, of what is put in the guidance—is to disenfranchise local people even from being able to make objection to the grant of a licence. One can make objection only on the grounds that one of the four general objectives is likely to be breached. If one cannot therefore establish public nuisance—and one will not be able to—one cannot even go before the licensing authority and say one's piece. That is a most extraordinary state of affairs in a so-called free country. Although there are other aspects to the Bill, the centrality of its key objectives will disallow ordinary residents from having any remedy at all. I therefore remain deeply unhappy about the position; I believe that I also speak for my colleagues.
  The Lord Bishop of Peterborough: My Lords, from these Benches I express my sympathy with the amendment. Every bishop in the land who lives in a town or city centre is aware of how the quality of life there has decreased. The clergy are often among the few residents who are still living in town and city centres. The increase in licensing hours and entertainment provision, and the opening of public houses, make it difficult to maintain quality of life in those places. I personally have had to move a clergyman who with his family found it impossible to continue to live where they were simply because the licensing authorities did not make allowance for his and his family's amenity in living near a city-centre pub in extending the provisions. From these Benches, I have considerable support for the amendment.
  Lord Hylton: My Lords, will the Minister say whether loud music from pubs in the early hours of the morning will be adequately covered by the expression "public nuisance"? Or should we rely on the expression "living amenity"? The noble Lord the Minister said that "amenity" was imported from town planning legislation, but is it substantially modified by adding the word "living", which I imagine would include residents sleeping in close proximity to noisy pubs?
  Baroness Oppenheim-Barnes: My Lords, I agree with everything that has been said so far by my noble friend Lady Buscombe and others on this amendment. To try and narrow it down to the action that someone
  916
  might take is insufficient. The occasional opening and closing of a door at four o'clock in the morning would not probably constitute a public nuisance, nor would the continuous revving up of motorcycles, because if local residents were to report that to a noise officer, he would say, "This is an intermittent noise. There is nothing I can do about it, because if I put my machinery in, it will not be consistent. Therefore, I have no powers to act and I can make no recommendations". It is important that the Minister takes account of that point as well.
  Lord Peyton of Yeovil: My Lords, I strongly support my noble friend on the Front Bench and the noble Lord, Lord Phillips. The Government seem to be taking a rather cavalier attitude to all the offences covered by the simple phrase "public nuisance". People always assume that they understand the public, but many do so wrongly. There is an unusual volume of evidence showing that the public simply do not understand that cavalier attitude to the offence of public nuisance. I understand the difficulties of enforcing it, but I hope that the Government will understand that and that they will not think that "guidance" is a simple alternative to forbidding an offensive practice. The world is littered with guidance. The roads are paved with guidance and people walk all over them. I hope that the Government will have second thoughts.
  Lord Avebury: My Lords, along with my noble friends, I congratulate the Minister. I also appreciate everything that the noble Baroness, Lady Blackstone, has done and the assiduity with which she attends to questions put to her in writing—offline, as it were—which have a bearing on the matters that we are discussing on the Floor of the House.
  I ask the Minister to respond to one of those matters; that is, the assurances that were given on the final day on Report, on 4th March, by the noble Baroness, Lady Blackstone. She said,
  "I recognise the genuine concern that because of the exploitation of the current A3 use class, 'superpubs' have been allowed to spring up by the back door".—[Official Report, 4/3/03; col. 779.]
  She went on to describe the statement in another place by the Minister, Mr Tony McNulty, about the changes to the use classes order which would put pubs and bars into a separate class.
  As the superpub is the source of a great deal of the public nuisance with which we are concerned in this amendment, will the Minister tell us what has happened in the three months since that assurance was given in this House? I am extremely concerned that if that change does not come into effect until after the Bill has reached the statute book, there will an incentive for the owners of premises to rush through changes while the loophole still exists. They will be able to do that, because they will be free of the restraints on opening hours and undertakings that are provided in the existing licensing regime. Will the Minister explain how that matter will be addressed under the licensing objectives that he proposes, and

  917
  what interim arrangements will be put in place to prevent users taking advantage of the loophole that will exist between the date on which the Bill comes into force and that on which the A3 use class is split into two categories?
  Lord McIntosh of Haringey: My Lords, I do not know whether it is fully appreciated, but the provision for public nuisance as opposed to public amenity is being criticised from two completely opposite sides. On the one side, the noble Baroness, Lady Buscombe, criticised the broadness of the definition of public nuisance. I have already made it clear in introducing the amendment that we are using the common law definition of public nuisance. The noble Baroness thought that a broad definition was not a good idea. I suggest that the broadness of the definition is actually helpful, because it enables licensing authorities to respond to individual circumstances. If we were to narrow it to amenity—and I repeat how narrow is "amenity" for the purpose of protecting the public—we would be losing something very significant.
  From the opposite direction, the noble Lord, Lord Phillips of Sudbury, described public nuisance as a very high hurdle. In the flexible way in which it can be interpreted for the purposes of the Bill—in other words, in the common law sense rather than in the sense of the 1990 Act, which he did not refer to again, but which was the basis of his argument when the Bill was in this House— "public nuisance" provides all the protection that noble Lords could wish for.
  The noble Lord, Lord Hylton, asked me about loud music in the early hours of the morning. That certainly is public nuisance. As the noble Lord, Lord Phillips, pointed out, car doors slamming and people coming and going is of course a public nuisance. It does not involve public amenity. Public amenity is a narrower term that is derived from planning law.
  Lord Carlisle of Bucklow: My Lords, I accept the Minister's comments about the question of continuous loud noise. That would undoubtedly qualify as "public nuisance" that would be taken into account. Surely the matters that the noble Lord, Lord Phillips, mentioned do not amount to public nuisance, but they still affect the lives of those people living in the area. So, at the one stage it is a broad definition of public nuisance, but I cannot see that people going about their normal, legitimate lives, going to a public house at 2 or 3 a.m., inevitably causing noise while doing so, can be said to be causing a public nuisance. Whereas, the interests of those people living in the area may very much need to be taken into account in deciding whether it is appropriate to have a licence in that area at all.
  Noon
  Lord Phillips of Sudbury: My Lords, I am also grateful to the Minister for giving way, and for the intervention by the noble Lord, Lord Carlisle. Is the Minister seriously telling the House, and if so is it on the authority of those who advise him on legal matters, that a person—or indeed many people—coming and
  918
  going to a village pub at 3 a.m. in a perfectly normal way will in respect of any of them constitute a private or public nuisance? I can assure him, not merely from long practice as a lawyer who has dealt with these matters, but as someone who has looked at eight of the standard textbooks, that that use, that behaviour, does not remotely constitute on the part of any of those individuals a public or a private nuisance.
  Lord McIntosh of Haringey: My Lords, there are two answers to that point. I thought I had made both of them in my original speech. The first—which the noble Lord, Lord Phillips, does not give any credit to, and I understand his position, when he says that guidance is not strong enough to protect the public in this case—is that we are talking about statutory guidance that has the authority of Parliament and has to be approved by Parliament. I have given the undertaking that the statutory guidance which will follow the passage of the Bill will cover the points made in the original amendment in this House. The noble Baroness, Lady Buscombe, read out the wording of Clause 5(2)(c). I cannot give her an absolute guarantee that that precise wording will be introduced into the statutory guidance, because the wording is always a matter—the noble Baroness is a lawyer and I am not—for parliamentary counsel, and departmental lawyers will undoubtedly wish to pick that wording to pieces. However, I can give her the absolute assurance that the wording that will appear in the statutory guidance will reflect the spirit of the amendment that was carried in this House.
  Baroness Oppenheim-Barnes: My Lords, on that point, can the Minister tell the House how Mr and Mrs Bloggs, living in a house and suffering from intimate noise—either by cars or loud music—from time to time are going to find a lawyer, legal aid or a means of pursuing their case? Someone will say that this is new legislation, that the statutory guidance is not very clear and that they cannot therefore recommend legal aid or whatever. Has the Minister taken into account that factor—the way that the individual will be faced with the problem and an undermined amenity as a result?
  Lord McIntosh of Haringey: My Lords, these are intractable matters and are much wider than the issues presented by the Bill. There are difficulties. What does one do about a district nurse, for example, who returns from a night call and who has to slam her car door? These are not matters for licensing legislation. If there are faults with the wider legislation, then let us address those issues. However,—
  Lord Phillips of Sudbury: My Lords,—
  Lord McIntosh of Haringey: My Lords, I am not even allowed to finish a sentence in this House.
  Lord Phillips of Sudbury: My Lords, I apologise for interrupting the Minister's sentence and again I am grateful to him for giving way. He really is, if I may say

  919
  so, in danger of misleading the House when he correlates a district nurse making a visit at 3 a.m. with the predictable and invited attendance of members of the public to a pub at 3, 4 and 5 a.m. It is not being fair to the House to present that as any sort of parallel. I repeat my question. I indicated earlier that as a matter of law the Government were arguing that a person arriving at a pub at 3 a.m.—normal behaviour, normal use of car—and coming out again is a public nuisance, although there is no anti-social behaviour, nothing that one could complain about, except the fact that it is 3 a.m. and that starting and stopping motor cars and opening and closing their doors causes a great deal of noise and light. Is the Minister seriously telling the House that that could conceivably constitute private nuisance, let alone public nuisance?
  Lord McIntosh of Haringey: My Lords, I did not say that. I am saying that the provisions of the Bill, as we provide for it, with the combination of "public nuisance"—for the kind of examples that the noble Lord, Lord Hylton, gave—and the statutory guidance, which will cover the issues raised in the House of Lords amendment, cover the point, not only adequately, hut very significantly better than changing the words "public nuisance" to "public amenity". "Public amenity" is a narrower concept.
  Lord Phillips of Sudbury: My Lords,—
  Lord McIntosh of Haringey: My Lords, I have to be allowed to pursue my argument. "Public amenity" derives from planning law and relates to the aesthetic and visual qualities of the area. It does not cover the problems of noise and aspects of anti-social behaviour that we agree can happen from licensing legislation. By the way, I say to the noble Baroness, Lady Oppenheim-Barnes, that there is no question of legal aid. These are matters for representations to the licensing authority. I give way again.
  Lord Phillips of Sudbury: My Lords, I am most grateful. The Minister is again, I am sorry to say, not using the language of the amendment that is sought to be overthrown. It does not talk about "public amenity", which I agree is a planning term. It talks about "living and working amenity". That is quite different and wholly unrelated to planning law concepts. The Minister claimed earlier that there was a remedy in respect of people who were ordinarily arriving and departing from pubs at 3, 4 or 5 a.m. I ask him again: is it the Government's position that there is a remedy under "public nuisance" for such a normal use of a car park, of a pub at 3 a.m.?
  Lord McIntosh of Haringey: My Lords, I did not say that it was "public nuisance". Legitimate activities pursued at illegitimate times are matters for licensing authorities. They will be concerned with them because they will be covered in statutory guidance. I do not even know what the words "living amenity" mean. The regime that we propose in the Bill, a combination of a broad public nuisance criterion—which applies
  920
  throughout the Bill—together with explicit statutory guidance covering the points raised by noble Lords when they passed the amendment in the House, is a better regime than importing from planning law a much more limited and ill-defined concept, which is the aim of the noble Lord, Lord Phillips.
  Lord Phillips of Sudbury: My Lords, I promise that this will he my last intervention, but it is important. The Minister is again inadvertently misleading the House. The issue is not one of planning law at all. When the Minister says that the licensing authorities will be able to have regard to the guidance, the fact is that if "public nuisance" is the only objective dealing with amenity, local residents will not be able to make their case to the licensing authority. That is the point, because they will not be pursuing one of the four objectives in the Bill. If we claim—and I am certain that we are right—that there is no public nuisance in the normal use of a local village pub at 3, 4 or 5 a.m., then one is not even within the realms of being able to make representations. That is the point. Finally, regarding the Minister's concentration on guidance, Clause 5(3) says that the licensing authority only has to have "regard" to guidance. The Minister has not answered the point that if "public nuisance" is restored to the Bill, the guidance will not be able to reintroduce the words of our amendment that is being thrown out. The guidance must be within the context and contours of the Bill. We cannot have guidance that extends the scope of the Bill.
  Lord McIntosh of Haringey: My Lords, I wish that the noble Lord would set out his arguments in his first speech instead of letting them out in dribs and drabs in this way. He has not raised the issue of what can be complained about before, which is a different point. I shall try to recapitulate on the various points that he made and to emphasise how much they are at variance with the views of the noble Baroness, Lady Buscombe, who actually tabled the amendment. She is saying something quite different.
  I have agreed that intermittent ordinary behaviour is not public nuisance and that it has to be covered by statutory guidance. However, the combination of many people in the vicinity of premises and the noise generated would change the nature of ordinary behaviour so that it could become—I cannot say in any specific circumstances—a matter of public nuisance to those in the vicinity of the premises. That is a question of fact that has to be determined on individual cases. It cannot be done entirely by law.
  Can appeals be made to the licensing authority? Of course the licensing authority, having followed the statutory guidance, is under an obligation to see that the conditions that it applies are adhered to. Therefore, there is a reference to the licensing authority. I was asked about the views of the industry. A recent article in The Publican Newspaper was concerned that the Government had overturned the public amenity test because they viewed it as a less onerous criterion—less onerous not for the people in

  921
  the vicinity, but for the licensees. Are we on the side of the people in the vicinity or on the side of the licensees when there is a conflict?
  The noble Baroness, Lady Buscombe, very reasonably and understandably, wants us to reflect the spirit of the amendment that was agreed to, and that is what we shall do. On the other hand, the noble Lord, Lord Phillips, is pursuing a point of view directly opposite to what she is saying. His view is actually confirmed by the industry as favouring licensees rather than the public.
  We fundamentally disagree with the limitation of the powers of the licensing authority that would be reintroduced by the amendment overturning the Commons amendment. We now have a combination of effective statutory guidance and a strong but not particularly high hurdle of public nuisance under the common law that will meet the requirements of the licensing authorities, the licensed trade and, above all, local people. I ask the House to resist Amendment No. 5A.
  Lord Avebury: My Lords, is the Minister not going to deal with my argument?
  Lord McIntosh of Haringey: My Lords, I beg the noble Lord's pardon. Of course, his question about the A3 use class is nothing to do with the amendment, but the Office of the Deputy Prime Minister has confirmed that pubs will be placed in a separate use class so that planning permission will be required to convert to a superpub. The Bill will not have any effect on that until at least 2005.
  12.15 p.m.
  Baroness Buscombe: I thank the Minister for his response. I also want to thank the noble Lords, Lord Phillips of Sudbury and Lord Hylton, my noble friends Lady Oppenheim-Barnes and Lord Peyton of Yeovil, and the right reverend Prelate the Bishop of Peterborough for their invaluable contributions to this important and worthwhile debate. The Minister clearly feels that the noble Lord, Lord Phillips of Sudbury, and I are coming from different quarters. I actually said that "public nuisance" is open to differing interpretations, as our debate makes absolutely clear. What we need now is clarity.
  To some extent, I am assured. I would have much preferred to see our amendment remain in the Bill rather than go into statutory guidance. I hear and accept much of what was said by the noble Lord, Lord Phillips of Sudbury. However, I want to trust the Minister—if I may put it that way—on the basis that the words for which we ask will appear in the statutory guidance, at least in terms of the spirit of what we are really looking for, which is a fair and proportionate balance between the lives of people who live in the vicinity of the premises and enterprise and local business.
  The many examples raised today are helpful in terms of what we are trying to achieve. I hope that the Government have very much taken on board the
  922
  concerns that clearly continue to exist in the House and beyond. I am grateful to the Minister for agreeing to ensure sufficient wording to meet our needs in the statutory guidance and for saying that "public nuisance" will include the definition of, we hope, something akin to "living and working amenity". On that basis, I beg leave to withdraw the amendment.
  Amendment No. 5A, as an amendment to the Motion, by leave, withdrawn.
  On Question, Motion agreed to.
  The Deputy Speaker (Baroness Ramsay of Cartvale): My Lords, I have to announce that there was an inaccuracy in the figures given for the previous Division, although the result remains the same. There voted "Contents", 113*, "Not-Contents", 117, so the "Not-Contents" still have it.
  [*The Tellers for the Contents reported 113 votes. The Clerks recorded 112 names.]

  COMMONS AMENDMENT
  6 Clause 9, page 5, line 41, leave out paragraph (d)
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 6. I must open debate on the amendment by indicating clearly that the Government do not intend to oppose the amendments tabled by the noble Lord, Lord Redesdale, that the House does not agree with the Commons in its Amendments Nos. 6, 15, 16, 20 and 21.
  In Committee in another place, we overturned amendments made in this House adding references on registered interests, restoring the Bill to its original position. The amendments altered the balance of control over a premises licence too far away from the licence holder and too far towards the interests in question. Since then, however, we have had extensive consultation with the industry, and I believe that we have reached an accommodation. I undertake that the Government will give effect to that accommodation when the Bill returns to another place.
  Moved, That the House do agree with the Commons in their Amendment No. 6.—(Lord McIntosh of Haringey.)
  6A Lord Redesdale rose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 6, leave out "agree" and insert "disagree".
  The noble Lord said: My Lords, on that very generous assurance given by the Minister, I beg to move.
  Moved, That,as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 6, leave out "agree" and insert "disagree".—(Lord Redesdale.)
  Baroness Buscombe: My Lords, I thank the Minister for taking the time to discuss with the industry what we believe to be an entirely sensible position in relation to registered interests. I gave early warning to his officials that I would like to use the opportunity, with the leave of the House—I do so because we are talking about

  923
  those involved perhaps as owners of premises and licensed premises—to ask him to confirm, with regard to provisional statements, that it will be open to any operator who is able to submit an operating schedule in accordance with the Bill to apply for a premises licence, even where a premises is under construction or yet to be built.
  Lord Williamson of Horton: My Lords, the point made by the noble Baroness is important. There should be proper planning and use of resources in a way that is reasonable for the construction of new premises. I would like to have that assurance also.
  Lord Hodgson of Astley Abbotts: My Lords, I rise to support my noble friend. I declare an interest of which the Minister is aware; I am a director of a regional brewery that operates 1,500 public houses. It is to give some certainty. The phraseology used on Report in another place was not clear. I wrote to the Minister about the issue. I hope that he can reassure us on that point. It will also be important for his officials to review paragraphs 6.50 and 6.51 of the draft guidance issued on the 13th February, because it does not fit in with the agreement that he has reached with my noble friend. His officials might also review paragraph 82 of the Explanatory Notes to the Bill.
  We would be comforted by that assurance and by the further assurance that the guidance notes and Explanatory Notes will be revised to reflect what I hope he will say.
  Lord McIntosh of Haringey: My Lords, I am happy to give the assurance asked for. If a building is under construction or has not been started, provided that the plans are clear enough to justify an application for an operating licence, if a licensing authority is satisfied—as it would have been if the building had been completed—an operating licence can be granted. There is therefore no risk of double jeopardy.
  Baroness Buscombe: My Lords, I am grateful to the Minister for that assurance.
  On Question, amendment agreed to.
  On Question, Motion, as amended, agreed to.

  COMMONS AMENDMENT
  7 Clause 14, page 9, line 1, leave out paragraph (e)
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 7.
  Under Part 3 of the Bill, interested parties—local residents and businesses and their representatives—may make representations about applications for premises licences and may also apply to the relevant licensing authority for reviews of premises licences. The amendments in another place removed the extension of the ability to make representations on their behalf, inserted in this House, to MPs, MEPs and local ward councillors in relation to any premises within their constituency or ward.
  924
  The Government believe firmly that local residents and businesses should be given the opportunity to have their say about the licensing of premises in their vicinity. That is why these groups are included in the list of interested parties. Of course, any local business or local resident living in the vicinity of the premises may use any representative to put their case. This could be a solicitor, a friend, a relative, a Member of Parliament, a ward councillor, an MEP—although that is slightly unlikely—or a Member of the National Assembly for Wales, or a body representing the amenity interests in the area.
  However, there is no reason why any of these individuals should have a say in their own right when local residents do not wish to put representations forward on the application. If no local residents or businesses in the vicinity wish to exercise their right to make representations or apply for a review, possibly because residents are pleased to see a new licensed premises opening nearby, whom would the ward councillor, for example, be representing?
  The inclusion in the Bill of councillors, MPs and European representatives is not appropriate. These representatives are available if a local resident should wish to use their services, but views should not be expressed on a resident's behalf when she or he has not asked for them to be made. The rights we are giving to make representations are to protect those directly affected by activities to be carried on at the premises concerned. It is not for others to tell residents that they know better. I beg to move.
  Moved, That the House do agree with the Commons in their Amendment No. 7.—(Lord McIntosh of' Haringey.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  8 Page 9, line 14, leave out "for the area in which the premises are situated" and insert "by which statutory functions are exercisable in any area in which the premises are situated in relation to minimising or preventing the risk of pollution of the environment or of harm to human health"
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 8. I shall speak also to Amendment No. 10.
  Within the definitions of responsible authorities in the Bill, Amendments Nos. 8 and 10 restored the position prior to amendments accepted in this House. When the Bill left this House for consideration in another place, the responsible authorities it described were several. They included the police; the fire authority; the enforcing authority for health arid safety law; the local authority for the area in which the premises are situated; any licensing authority in whose area part of the premises are situated, including the one considering the application; various bodies concerned with applications involving vessels; and other persons prescribed by the Secretary of State.
  A responsible authority is essentially an expert body to be notified when an application is made, which can make representations about the licensing objectives.

  925
  For example, the police will consider carefully the applicant's proposals for preventing crime and disorder on his premises. If they are adequate, the police will not need to intervene; if the police are dissatisfied with the proposals, they have the right to make representations to the licensing authority.
  When this House amended the Bill, it removed the description in the original text of environmental health officers. It is vital that they be consulted, because they have technical expertise in areas such as noise nuisance. They need to scrutinise the steps an applicant intends to take to prevent nuisance.
  Amendment No. 8 restored them to the list. The amendments in this House also replaced environmental health officers with a description of,
  "the local authority in which the premises are situated".
  The local authority is the licensing authority. The effect was to allow the licensing authority to make representations to itself.
  It may be helpful if I remind the House that amendments were moved in another place by the Official Opposition that would have removed the local authority as a responsible authority, but would not have restored the important status of the environmental health authority, which was the added effect of the government amendments. The government amendments were therefore preferred. In the House of Commons, both sides of the House were in relative harmony on this matter.
  While the Bill was being considered here, a further amendment by this House also duplicated part of the changes by including in the list of responsible authorities all licensing authorities in whose area part of the premises are situated. The list originally included only those licensing authorities—other than the one in receipt of the application—in whose areas part of the premises are situated; namely, where premises straddle local authority boundaries. Amendment No. 10 restored this arrangement.
  The amendments raise two important issues for the Bill. The first is fairness. The local authority is given the functions of a licensing authority. If it can make representations to itself and by that means generate a hearing to consider those representations, the licensing authority through its licensing committee would be prosecution, witness, jury, judge and executioner in the same court. That cannot be proper, and it would trigger a number of human rights issues. Let us not be technical about it; it simply would not be right or fair. I hope that the House will agree.
  We are not hamstringing the licensing authority; where local authorities have particular statutory responsibility for expert matters that directly impact on the licensing objectives, they are responsible authorities. The environmental health authority is the local authority. The enforcing agency for health and safety is normally the local authority. The planning authority is the local authority. These are all responsible authorities for the purposes of the Bill. In
  926
  these expert capacities, the local authority can already make representations, and can be heard fairly and properly by the licensing committee.
  The second important issue is deregulation. One way in which we are deregulating in this case is by reducing significantly the number of routine hearings to which licensing currently gives rise. Almost everything in the six existing licensing regimes generates regular and routine hearings. The aim of the Bill is to ensure that only matters of proper and relevant dispute give rise to hearings.
  Under the Bill, a hearing will be necessary only if one of the expert and professional bodies, or a local resident, residents' association or local business is dissatisfied with the proposals in the operating schedule. If everyone is content, the application will be granted and the operating schedule will come into force. But if a licensing authority can generate hearings whether or not the expert bodies and local residents are content, we have opened the door back to the old bureaucracy and red tape, which could in some areas—I do not say all areas—reduce the deregulation effects of the Bill. So, we are focusing here on problem premises. We are targeting resources there and on an effective operating schedule.
  For those reasons—fairness and the desire to reduce red tape—I hope that the House will welcome the changes made to the Bill in another place.
  Moved, That the House do agree with the Commons in their Amendment No. 8. —(Lord McIntosh of Haringey.)
  On Question, Motion agreed to.
  12.30 p.m.

  COMMONS AMENDMENT
  9 Page 9, line 14, at end insert—
  "( ) a body which—

  (i) represents those who, in relation to any such area, are responsible for, or interested in, matters relating to the protection of children from harm, and

  (ii) is recognised by the licensing authority for that area for the purposes of this section as being competent to advise it on such matters."

  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 9. I shall speak also to Commons Amendments Nos. 23, 50 and 52. Indeed, I shall speak in favour of Amendment No. 50A to my own Amendment No. 50.
  The protection of children from harm is one of the four licensing objectives of the Bill. No one here would want to deny children access to the village shop, which also happens to be the off-licence. No one here would want to deny children access to a supermarket, Pizza Hut, the cinema or the theatre, even though all are licensed premises.
  None of us would want to see children in lap dancing clubs, gaming clubs or seedy bars that are associated with drug dealing or under-age drinking. But between those two there are many shades of grey, where, in given circumstances, we would anticipate that children

  927
  should be given access to licensed premises. We moved two amendments in another place to remove Clauses 143 and 151 on the grounds that they were undesirably restrictive. A number of children's representatives with whom the Secretary of State consulted agreed with that position.
  Among other things, Clause 143 raised a raft of issues over the definition of licensed premises in subsection (2), and Clause 151 raises issues of practicality. It would effectively require under-14s to be accompanied in supermarkets and corner shops. I hope that the House can agree to the removal of these clauses on that basis.
  Having said that, we have listened carefully to the many powerful arguments put to us over the past few months. In its place, I shall later move Amendment No. 50A, which proposes that the House agrees with the Commons in their amendments and agrees to a further amendment in lieu to the Bill to the effect that it will be an offence to admit children under 16 to certain categories of premises where they are not accompanied by an adult. Those premises are as follows: those exclusively or primarily used for the supply of alcohol for consumption on the premises; and those open for the purposes of being used for the supply of alcohol for consumption on the premises by virtue of Part 5—permitted temporary activities—which, at the time the temporary event notice has effect, are exclusively or primarily used for such supplies.
  So, a garden fete, for example, which has a temporary event notice, is not being used exclusively for that supply, and, therefore, unaccompanied children can properly be allowed in. It will also be an offence to allow an unaccompanied child to be on relevant premises at a time between the hours of midnight and 5 a.m. when the premises are open for the purposes of being used for the supply of alcohol for consumption there. The scheme is designed to put in place a statutory barrier to the unaccompanied access of children essentially to pubs and night-clubs, but to allow access to restaurants, cafés, cinemas and theatres.
  The Secretary of State and I have been keen throughout the development of the Bill to take into account the views of organisations with an interest in the protection of children from harm and to consider how they can be reflected in legislation. We have consulted a range of bodies including the NSPCC, the Children's Society, the Methodist Church, the Salvation Army, Turning Point, Alcohol Concern, the Association of Directors of Social Services and the Association of Chief Police Officers. We have developed a balanced package, which will ensure access, where appropriate, to children in a family-friendly environment, while providing them with protection.
  The protection of children from harm is a key licensing objective, and we need to ensure that licensing decisions have expert input on that objective. Amendments made in another place added the local
  928
  area child protection committees, or their successor bodies, to the list of responsible authorities that can make representations on licensing applications, new or variations, and raise issues of concern relating to any of the licensing objectives through the review provisions.
  I have already indicated what is on the face of the Bill. In statutory guidance we will cover factors which indicate a licensed premises' suitability for access by children, from those where it is felt that the risks to children, whether supervised or unsupervised, are too great; for example, premises where there is the possibility of children being exposed to drug taking or dealing, gambling, adult or sexual entertainment or illegal selling of alcohol to minors, through to premises to which unsupervised children under 16 should be permitted access. We will also emphasise that where any access for children is permitted, the licensee will still have to demonstrate clearly the steps that it is proposed to take to promote the protection of children from harm in the operating schedule. My officials will continue to work with the child protection organisations and take their views into account in preparing the final version of the guidance.
  I believe that this balanced package offers the best way forward on this issue.
  Moved, That the House do agree with the Commons in their Amendment No. 9. —(Lord McIntosh of Haringey.)
  Lord Williamson of Horton: My Lords, when I intervened earlier I should have declared an interest as a non-executive director of Whitbread. However, I have done it so many times in the course of the Bill that it is probably well known.
  On this particular point I intervene to thank the Minister for Amendment No. 50A and for the other point that he raised, which was one that I raised earlier. I believe that we now have provisions that give adequate protection for unaccompanied children. That is a real improvement in the Bill. The Government have responded satisfactorily to our concerns.
  Baroness Buscombe: My Lords, it will not surprise noble Lords to hear me say how enormously grateful I am to the Minister for the amendments. I believe that the amendments are here today because of the pressure that was put on the Government by noble Lords when this matter was debated at length in your Lordships' House. I pay particular tribute to the right reverend Prelate the Bishop of London, and others, who supported me through the discussions on those amendments.
  This is a tremendously important subject. We are grateful that the Government, as a result of pressure from your Lordships, have now consulted widely and will continue to consult on the matter. Perhaps our amendments were unduly restrictive, but the Government took on board the spirit of what we were trying to achieve. I am grateful to them for that. The Bill as originally drafted did not protect the interests of

  929
  children. I believe that now, with these amendments, the Bill will protect the interests of children and help parents to cope. I am grateful to the Minister.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  10 Page 9, line 15, leave out ", including the relevant licensing authority," and insert "(other than the relevant licensing authority)"
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 10.
  Moved, That the House do agree with the Commons in their Amendment No. 10. —(Lord McIntosh of Haringey.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  11 Clause 17, page 10, line 15, leave out paragraph (h)
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 11. I shall speak also to Commons Amendment No. 56.
  On Report in another place, the Government tabled an amendment that was accepted, the effect of which was to add to Clause 172 premises which, at the time the activity that would otherwise be a licensable activity is carried out, are permanently or temporarily occupied for the purposes of the Armed Forces of the Crown to the list of locations at which activities would not be licensable. Therefore, the amendment has the effect of exempting messes, canteens and other service facilities from the Bill's provisions.
  I can go into more detail if necessary, but I do not think that the amendment is controversial.
  Moved, That the House do agree with the Commons in their Amendment No. 11.—(Lord McIntosh of Haringey.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  12 Clause 19, page 12, line 11 , after "20" insert ", (Mandatory condition in licences: exhibition of films)"
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 12. I shall speak also to Commons Amendments Nos.13, 14, 17, 22, 32, 55, 82 and 83. Those amendments are about the admission of children to film exhibitions. Amendments Nos. 27, 29, 33, 34, 85 and 86, which were debated in the context of off sales from qualifying clubs are, in part, consequential on the principle of the amendments relating to this group.
  The protection of children from harm is one of the central objectives of the Bill. To reinforce our commitment to protecting children from harm and to emphasise that under the Bill children would not be free to see age-restricted films classified by the British Board of Film Classification or by licensing
  930
  authorities themselves, the Government tabled amendments at Report stage, which were accepted, providing that a mandatory condition should be imposed by licensing authorities on premises licences and club premises certificates authorising the exhibition of films to the effect that the premises must comply with age restriction classifications given to films either by a body designated under Section 4 of the Video Recordings Act 1984—at present that is the British Board of Film Classification—or by the licensing authority itself, which would preserve the rarely exercised current power of local authorities to classify films themselves, including in relation to individual films.
  Moved, That the House do agree with the Commons in their Amendment No. 12.—(Lord McIntosh of Haringey.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  13 Page 12, line 25, after "20" insert ", (Mandatory condition in licences: exhibition of films)"
  14 After Clause 20, insert the following new clause—
  "Mandatory condition in licences: exhibition of films

  (1) Where a premises licence authorises the exhibition of films, the licence must include a condition requiring the admission of children to the exhibition of any film to be restricted in accordance with this section.

  (2) Where the film classification body is specified in the licence, unless subsection (3)(b) applies, admission of children must be restricted in accordance with any recommendation made by that body.

  (3) Where—

  (a) the film classification body is not specified in the licence, or

  (b) the relevant licensing authority has notified the holder of the licence that this subsection applies to the film in question,admission of children must be restricted in accordance with any recommendation made by that licensing authority.

  (4) In this section—

  "children" means persons aged under 18; and
  "film classification body" means the person or persons designated as the authority under section 4 of the Video Recordings Act 1984 (c. 39) (authority to determine suitability of video works for classification)."
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 13 and 14.
  Moved, That the House do agree with the Commons in their Amendments Nos. 13 and 14.—(Lord McIntosh of Haringey.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  15 Clause 28, page 16, line 17, leave out from "he" to end of line 21 and insert "may give the relevant licensing authority a notice to that effect"
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 15.

  931
  Moved, That the House do agree with the Commons in their Amendment No. 15. —(Lord McIntosh of Haringey.)
  15A Lord Redesdale rose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 15, leave out "agree" and insert "disagree".
  The noble Lord said: My Lords, I beg to move.
  Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 15. leave out "agree" and insert "disagree".—(Lord Redesdale.)
  On Question, amendment agreed to.
  On Question, Motion, as amended, agreed to.

  COMMONS AMENDMENT
  16 Clause 33, page 19, line 22, leave out subsections (6) and (7)
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 16.
  Moved, That the House do agree with the Commons in their Amendment No. 16.—(Lord McIntosh of Haringey.)
  16A Lord Redesdale rose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 16, leave out "agree" and insert "disagree".
  The noble Lord said: My Lords, I beg to move.
  Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 16, leave out "agree" and insert "disagree"—(Lord Redesdale.)
  On Question, amendment agreed to.
  On Question, Motion, as amended agreed to.

  COMMONS AMENDMENT
  17 Clause 35, page 20, line 43, after "20" insert ", (Mandatory, condition in licences: exhibition of films)"
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 17.
  Moved, that the House do agree with the Commons in their Amendment No. 17.—(Lord McIntosh of Haringey.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  18 Clause 37, page 21, line 40, leave out "which authorises the supply of alcohol may" and insert "may—

  (a) if the licence authorises the supply of alcohol, or

  (b) if he has applied under section 33 to vary the licence so that it authorises such supplies,"

  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 18 and speak also to Amendments Nos. 19, 51, 53, 54, 68 to 81 and 84. This is a group of minor technical amendments made at Report stage in another place. Government Amendments Nos. 18 and 19 are minor amendments perfecting the drafting of the Bill in relation to
  932
  applications to vary the individual specified in a premises licence as the designated premises supervisor. It is only for premises licences authorising the supply of alcohol that a designated premises supervisor is required, because of the particular issues that arise from the supply and consumption of alcohol, and the responsibilities which go with that. The centrality of the concept of the designated premises supervisor has been discussed at great length in both Houses.
  Clause 37 provides that the holder of a premises licence may apply to vary the licence to specify a new premises supervisor. Government Amendment No. 18 will ensure that where premises licence holders have applied to vary a premises licence under Clause 34 to add the licensable activity of the supply of alcohol to other licensable activities, they may apply to vary the licence to specify premises supervisors, and this right is not restricted to just those who already hold licences authorising the supply of alcohol.
  Government Amendment No. 19 makes it clear that any applications under Clause 37 which may be given immediate effect for an interim period under Clause 38 must be applications in respect of premises licences which already authorise the supply of alcohol.
  Government Amendments Nos. 51 and 53 are technical amendments to improve the drafting in Clauses 149 and 152. Amendment No. 54 perfects the drafting of the Bill by changing "disturbance" at the end of subsection (3) to "nuisance". That will ensure consistency and avoid any confusion about what the police must have regard to.
  Government Amendment No. 70 adds part of the schedule to the Common Informers Act 1951, which refers to two other pieces of legislation, to the list of existing legislation to be repealed by the Bill. Both pieces of legislation, the Universities (Wine Licences) Act 1743 and the Sunday Observance Act 1780, are themselves repealed by the Bill as they no longer include provisions which can have effect. I am rather pleased to be involved in repealing the Sunday Observance Act 1780. The repeal of the latter fulfils a commitment given by the Government to include it in the Bill.
  Amendment No. 72 adds a section of the Licensing (Scotland) Act 1976 to be repealed. Government Amendments Nos. 81 and 84 correct minor drafting errors.
  Moved, That the House do agree with the Commons in their Amendment No. 18.—(Lord McIntosh of Haringey.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  19 Clause 38, page 22, line 21, at end insert "in respect of a premises licence which authorises the supply of alcohol"
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 19.
  Moved, That the House do agree with the Commons in their Amendment No. 19. —(Lord McIntosh of Haringey.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  20 Clause 47, page 27, line 31, at end insert "or"
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 20.
  Moved, That the House do agree with the Commons in their Amendment No. 20. —(Lord McIntosh of Haringey.)
  20A Lord Redesdale rose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 20, leave out "agree" and insert "disagree".
  The noble Lord said: My Lords, I beg to move.
  Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 20, leave out "agree" and insert "disagree".
  On Question, amendment agreed to.
  On Question, Motion, as amended, agreed to.

  COMMONS AMENDMENT
  21 Page 27, line 33, leave out from "practitioner" to end of line 35
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 21.
  Moved, that the House do agree with the Commons in their Amendment No. 21. —(Lord McIntosh of Haringey.)
  21A Lord Redesdale rose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 21, leave out "agree" and insert "disagree".
  The noble Lord said: My Lords, I beg to move.
  Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 21, leave out "agree" and insert "disagree".
  On Question, amendment agreed to.
  On Question, Motion, as amended, agreed to.

  COMMONS AMENDMENTS
  22 Clause 52, page 31, line 44, after "20" insert ", (Mandatory condition in licences: exhibition of films)"
  23 Clause 69, page 40, line 36, at end insert—
  "( ) a body which—

  (1) represents those who, in relation to any such area, are responsible for, or interested in, matters relating to the protection of children from harm, and

  (ii) is recognised by the licensing authority for that area for the purposes of this section as being competent to advise it on such matters,"

  24 Clause 70, page 41, line 9, leave out "for consumption on the premises where the supply takes place"
  25 Clause 71, page 41, line 36, at end insert—
  "( ) where the relevant qualifying club activities include the supply of alcohol, whether the supplies are proposed to be for consumption on the premises or both on and off the premises,"
  26 Clause 72, page 42, line 17, after "to" insert—
  "(a)"
  27 Page 42, line 18, after "application" insert ", and
  (b) any conditions which must under section (Certificate authorising supply of alcohol for consumption off the premises)(2) to (5) or (Mandatory condition in certificates: exhibition of films) be included in the certificate"
  28 Page 42, line 27, after second "to", insert—
  "(i)"
  29 Page 42, line 29, after "objectives" insert ", and
  (ii) any conditions which must under section (Certificate authorising supply of alcohol for consumption off the premises)(2) to (5) or (Mandatory condition in certificates: exhibition of films) be included in the certificate"
  30 Page 42, line 32, at end insert—
  "( ) Subsections (2) and (3)(b) are subject to section (Certificate authorising supply of alcohol for consumption off the premises)(1) (certificate may authorise off-supplies only if it authorises on-supplies)."
  31 After Clause 72, insert the following new clause—
  "Certificate authorising supply of alcohol for consumption off the premises

  (1) A club premises certificate may not authorise the supply of alcohol for consumption off the premises unless it also authorises the supply of alcohol to a member of the club for consumption on those premises.

  (2) A club premises certificate which authorises the supply of alcohol for consumption off the premises must include the following conditions.

  (3) The first condition is that the supply must be made at a time when the premises are open for the purposes of supplying alcohol, in accordance with the club premises certificate, to members of the club for consumption on the premises.

  (4) The second condition is that any alcohol supplied for consumption off the premises must be in a sealed container.

  (5) The third condition is that any supply of alcohol for consumption off the premises must be made to a member of the club in person."

  32 After Clause 72, insert the following new clause—
  "Mandatory condition in certificates: exhibition of films

  (1) Where a club premises certificate authorises the exhibition of films, the certificate must include a condition requiring the admission of children to the exhibition of any film to be restricted in accordance with this section.

  (2) Where the film classification body is specified in the certificate, unless subsection (3)(b) applies, admission of children must be restricted in accordance with any recommendation made by that body.

  (3) Where—

  (a) the film classification body is not specified in the certificate, or

  (b) the relevant licensing authority has notified the club which holds the certificate that this subsection applies to the film in question,admission of children must be restricted in accordance with any recommendation made by that licensing authority.

  (4) In this section—

  "children" means persons aged under 18; and
  "film classification body" means the person or persons designated as the authority under section 4 of the Video Recordings Act 1984 (c. 39) (authority to determine suitability of video works for classification)."
  33 Clause 83, page 47, line 28, at end insert—
  "( ) Subsections (2) and (3) are subject to sections (Certificate authorising supply of alcohol for consumption off the premises) and (Mandatory condition in certificates: exhibition of films) (mandatory conditions relating to supply of alcohol for consumption off the premises and to exhibitions of films)."
  34 Clause 86, page 49, line 42, at end insert—
  "( ) Subsection (3) is subject to sections (Certificate authorising supply of alcohol for consumption off the premises) and (Mandatory condition in certificates: exhibition of films) (mandatory conditions relating to supply of alcohol for consumption off the premises and to exhibitions of films)."
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 22 to 34 en bloc.
  Moved, That the House do agree with the Commons in their Amendments Nos. 22 to 34 en bloc.—(Lord McIntosh of Haringey.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  35 Clause 98, page 55, line 15, leave out "72" and insert "96"
  Lord McIntosh of Haringey: My Lords, in moving that the House do agree with the Commons in their Amendment No. 35 I shall speak also to Amendments Nos. 36 to 45, 57 and 58. The system of temporary event notices set out in the Bill is very light touch, designed to avoid the need to involve ordinary people in administrative procedures, hearings and the like. When the limits are complied with there can be no representations except from the police, and even then only on grounds of crime prevention. Local residents have no input at all, which is why in order to ensure the necessary balance there must be limits on the length, frequency and numbers attending temporary events to ensure that they are adequately protected.
  The system set out in the Bill as originally drafted provided that a non-personal licence holder may give up to five temporary event notices in any one year and a personal licence holder may give 50 but it limited the number of notices which could be given in respect of any particular premises in one year to 12. It also set a limit of 72 hours for each event. In practice, that meant that there was a maximum of 15 days every year—five events each three days long or more frequent shorter events.
  Following debates in Committee and representations from a large number of people concerned, the Government agreed to look again at the matter to ensure that the Bill would not have the unintended effect of discouraging those who wish to organise ad hoc events for clubs, including sports clubs, village and community halls, voluntary and charitable groups and so on, from carrying on such events.
  At the same time, it is sensible to ensure that local residents are not worse off in terms of the safeguards which go along with any liberalisation. We have tabled amendments that would have the effect of increasing the number of temporary event notices that could be given in any calendar year in respect of the same premises from five to 12—sensibly once a month —setting an overall maximum of 15 days in any calendar year (the same maximum implied in the Bill as originally drafted) and increasing the length of time permissible for any single temporary event from 72 hours to 96 hours, for example, for a long bank holiday weekend. A power is provided for the Secretary of State to amend
  936
  these limits, as well as the maximum number of event notices that an individual may give in a calendar year and the limit on the number of people who may attend an event—at present a maximum is 499—by order, subject to the affirmative resolution procedure.
  As well as meeting the concerns of the groups that the limits in the Bill would not allow to hold the types of events that they now hold under the current regime, these measures also ensure that the residents' concerns are fully protected. The power to make changes to the limits will allow the Secretary of State to respond to the experience of the new regime. I beg to move.
  Moved, That the House do agree with the Commons in their Amendments Nos. 35.—(Lord McIntosh of Haringey.)
  Lord Crickhowell: My Lords, I warmly congratulate the Government on a helpful series of amendments. I ask for a small point of clarification. I find the inter-relationship of the various amendments over several clauses a little complicated. I have just returned from a Dorset music festival a week or so ago. I can cite examples of the country houses where such events are held.
  I refer to the amendment to Clause 105, which deals with counter notices. Subsection (3) is not amended in terms of the number of temporary event notices held. That subsection applies,
  "if the relevant premises user"—
  that is, a person who has given notice under Clause 98—
  "does not hold a personal licence";
  in other words, a person authorised to supply alcohol under Clause 109.
  As I understand it, the house owner can only hold, or apply for, five events The next subsection means that anyone else, such as a charity or some other organisation, can apply for the same premises. Therefore, a house owner could have, say, five events for which he or his family had applied, and others could apply for the remainder. This means that one could hold 12 events in the premises during the year.
  However, I am not quite sure that I have got it right. If one has a country house and holds two or three concerts as part of a music festival, as well as making the house available to other charities, I want to satisfy myself that it is possible to have up to 12 events. It seems to me that perhaps the applications have to come from different persons. I may have got it wrong. I should be grateful if the Minister could clarify the matter. If I am right in thinking that up to 12 events can be held during a year, that would be extremely helpful. It is a satisfactory way out of the problems that a number of us identified at an earlier stage.
  Lord McIntosh of Haringey: My Lords, it was the interventions of the noble Lord, Lord Crickhowell, on behalf of music festivals that led us to think again about the matter. The answer to the question is that the country house owner cart apply 12 times. We have increased the limit from 5 to 12, so there is no reason—no, I am sorry, I am wrong. The owner may have to go

  937
  via a round-about route. However, I believe that the noble Lord has accepted that it is not too much of a pain. In any case, we have given the Secretary of State power to change it if necessary.
  The two points are as follows: first, yes, there can be 12 events of one day, but not more than 15 such events in respect of one house. Secondly, the protection for the neighbours of the maximum of 15 days is maintained.
  Lord Crickhowell: My Lords, I am grateful for that clarification. I am glad that my interpretation of the complex wording was right. It will have to be made clear to owners that applications may have to be made by separate bodies because the actual owner of the house or his family are limited in that respect. Others can make application to hold events in the same house as long as the total number is not exceeded. I believe that that is perfectly workable. I am very grateful to the Government for having made the changes.
  Baroness Buscombe: My Lords, we are also grateful to the Government for the changes that have been made.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  36 Clause 98, page 55, line 29, leave out "72" and insert "96"
  37 Clause 98, page 56, line 5, at end insert—
  "(7A) The Secretary of State may, by order—

  (a) amend subsections (1) and (5)(b) so as to substitute any period for the period for the time being specified there;

  (b) amend subsection (5)(d) so as to substitute any number for the number for the time being specified there."

  38 Clause 105, page 59, line 23, leave out "or (4)" and insert ", (4) or (4A)"
  39 Clause 105, page 59, line 35, leave out "five" and insert "12"
  40 Clause 105, page 59, leave out lines 37 and 38 and insert—
  "(a) are in respect of the same premises as notice A, and"
  41 Clause 105, page 59, line 40, at end insert—
  "(4A) This subsection applies if, in any year in which the event period specified in notice A (or any part of it) falls, more than 15 days are days on which one or more of the following fall—

  (a) that event period or any part of it,

  (b) an event period specified in a temporary event notice already given in respect of the same premises as notice A or any part of such a period,"

  42 Clause 105, page 60, line 3, leave out "or (4)" and insert ", (4) or (4A)"
  43 Clause 105, page 60, line 20, at end insert—
  "(10A) The Secretary of State may, by order, amend subsection (2)(b), (3)(b), (4) or (4A) so as to substitute any number for the number for the time being specified there."
  44 Clause 105, page 60, line 21, at end insert—
  "( ) a temporary event notice is in respect of the same premises as notice A if it is in respect of the whole or any part of the relevant premises or premises which include the whole or any part of those premises;"
  45 Clause 105, page 60, line 22, after "year;" insert—
  "( ) "day" means a period of 24 hours beginning at midnight;"
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 36 to 45.
  Moved, That the House do agree with the Commons in their Amendments Nos. 36 to 45. —(Lord McIntosh of Haringey.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  46 Clause 110, page 62, line 28, leave out "Central Licensing Authority" and insert "licensing authority which granted the licence"
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 46.
  Moved, That the House do agree with the Commons in their Amendment No. 46. —(Lord McIntosh of Haringey.)
  [Amendment No. 46A not moved.]
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  47 Clause 115, page 63, line 34, leave out from "licence" to end of line 35 and insert—

  "(a) must, if the applicant is ordinarily resident in the area of a licensing authority, be made to that authority, and

  (b) may, in any other case, be made to any licensing authority"

  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 47.
  Moved, That the House do agree with the Commons in their Amendment No. 47. —(Lord McIntosh of Haringey.)
  [Amendment No. 47A not moved.]
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  48 Clause 116, page 64, line 12, leave out "Central Licensing Authority" and insert "licensing authority to which it was made or has been withdrawn"
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 48.
  Moved, That the House do agree with the Commons in their Amendment No. 48. —(Lord McIntosh of Haringey.)
  [Amendment No. 48A not moved.]
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  49 Clause 121, page 66, line 38, leave out "Central Licensing Authority" and insert "authority to which the application is made"
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 49.
  Moved, That the House do agree with the Commons in their Amendment No. 49.—(Lord McIntosh of Haringey.)
  [Amendment No. 49A not moved.]
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  50 Leave out Clause 143
  50A Lord McIntosh of Haringey rose to move, that this House do agree with the Commons in their Amendment No. 50 and do propose the following amendment in lieu of the words so left out of the Bill—
  Insert the following new Clause—
  "Unaccompanied children prohibited from certain premises

  (1) A person to whom subsection (3) applies commits an offence if—

  (a) knowing that relevant premises are within subsection (4), he allows an unaccompanied child to be on the premises at a time when they are open for the purposes of being used for the supply of alcohol for consumption there, or

  (b) he allows an unaccompanied child to be on relevant premises at a time between the hours of midnight and 5 a.m. when the premises are open for the purposes of being used for the supply of alcohol for consumption there.

  (2) For the purposes of this section—

  (a) "child" means an individual aged under 16,

  (b) a child is unaccompanied if he is not in the company of an individual aged 18 or over.

  (3) This subsection applies—

  (a) to any person who works at the premises in a capacity, whether paid or unpaid, which authorises him to request the unaccompanied child to leave the premises,

  (b) in the case of licensed premises, to—

  (i) the holder of a premises licence in respect of the premises, and

  (ii) the designated premises supervisor (if any) under such a licence,

  (c) in the case of premises in respect of which a club premises certificate has effect, to any member or officer of the club which holds the certificate who is present on the premises in a capacity which enables him to make such a request, and

  (d) in the case of premises which may be used for a permitted temporary activity by virtue of Part 5, to the premises user in relation to the temporary event notice in question.

  940

  (4) Relevant premises are within this subsection if—

  (a) they are exclusively or primarily used for the supply of alcohol for consumption on the premises, or

  (b) they are open for the purposes of being used for the supply of alcohol for consumption on the premises by virtue of Part 5 (permitted temporary activities) and, at the time the temporary event notice in question has effect, they are exclusively or primarily used for such supplies.

  (5) No offence is committed under this section if the unaccompanied child is on the premises solely for the purpose of passing to or from some other place to or from which there is no other convenient means of access or egress.

  (6) Where a person is charged with an offence under this section by reason of his own conduct it is a defence that—

  (a) he believed that the unaccompanied child was aged 16 or over or that an individual accompanying him was aged 18 or over, and

  (b) either—

  (i) he had taken all reasonable steps to establish the individual's age, or

  (ii) nobody could reasonably have suspected from the individual's appearance that he was aged under 16 or, as the case may be, under 18.

  (7) For the purposes of subsection (6), a person is treated as having taken all reasonable steps to establish an individual's age if—

  (a) he asked the individual for evidence of his age, and

  (b) the evidence would have convinced a reasonable person.

  (8) Where a person ("the accused") is charged with an offence under this section by reason of the act or default of some other person, it is a defence that the accused exercised all due diligence to avoid committing it.

  (9) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

  (10) In this section "supply of alcohol" means—

  (a) the sale by retail of alcohol, or

  (b) the supply of alcohol by or on behalf of a club to, or to the order of, a member of the club."

  The noble Lord said: My Lords, I referred earlier to these amendments. I beg to move.
  Moved, That the House do agree with the Commons in their Amendment No. 50 and do propose Amendment No. 50A in lieu of the words so left out of the Bill.—(Lord McIntosh of Haringey.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  51 Clause 149, page 81, line 36, leave out "sale" and insert "supply"."
  52 Leave out Clause 151
  53 Clause 152, page 83, leave out lines 16 to 19 and insert—

  "(i) the holder of a premises licence in respect of the premises,

  (ii) the designated premises supervisor (if any) under such a licence, or

  (iii) any individual aged 18 or over who is authorised for the purposes of this section by such a holder or supervisor,"

  54 Clause 160, page 87, line 11, leave out "disturbance" and insert "nuisance"
  55 Clause 166, page 90, line 44, after "20" insert ", (Mandatory condition in licences: exhibition of films)"
  56 Clause 172, page 95, line 8, at end insert—

  941
  "( ) at premises which, at the time when the activity is carried on. are permanently or temporarily occupied for the purposes of the armed forces of the Crown,"
  57 Clause 194, page 107, line 34, at end insert—

  "(aa) an order under section 98(7A)(alteration of maximum temporary event period),

  (ab) an order under section 105(10A) (alteration of limit on number of temporary event notices),"

  58 Page 108, line 3, leave out "(3)(b)" and insert "(3)(aa), (ab), (b)"
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 51 to 58.
  Moved, That the House do agree with the Commons in their Amendments Nos. 51 to 58.—(Lord McIntosh of Haringey.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  59 Clause 198, page 108, line 33, leave out subsection (6)
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 59. This is the privilege amendment.
  Moved, That the House do agree with the Commons in their Amendment No. 59.—(Lord McIntosh of Haringey.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  60 Schedule 1. page 111, line 23, leave out "playing of" and insert "performance of live music or the playing of recorded"
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 60. I shall speak also to Amendment No. 61.
  The Government have considered very carefully the amendments made to the Bill in this House. Some of those defeats were overturned during Committee in another place; some of them we have compromised on, bringing forward significant concessions. Indeed, some we have accepted wholeheartedly, subject to necessary technical modification. The issue of incidental live music, which is the subject of these amendments, falls into the third category.
  I hope that the House will allow me to make one matter clear. Regardless of all the myths and misinformation surrounding the Licensing Bill in relation to regulated entertainment, the Government are firmly committed, and have always been so, to improving the range and diversity of cultural provision available to the public, and preserving those important musical traditions that help define the character of the country. That is why the Bill was designed to make it much easier and cheaper for venues to get a licence to put on entertainment, and why it removes the perverse disincentive of the two-in-a-bar rule.
  942
  Having said that, we accept that there was more that could be done in the Bill to further that aim, which is why we have come forward with a range of concessions since the Bill was introduced. We have exempted places of public religious worship; we have amended the Bill to make it clear that entertainers who perform at unlicensed venues and do no more, will not be committing an offence. We have announced that we will exempt church halls, village halls and other community buildings from fees for entertainment. We shall use the statutory guidance to ensure that only necessary and proportionate conditions are attached to licences.
  As part of that package of concessions, we have accepted in entirety the broader of the two amendments made in this House, which would exempt incidental live music as well as incidental recorded music, subject to technical modification to ensure that the effect of the amendment is perfected.
  Government Amendment No. 61 removes an anomaly that arose as a result of amendments made in this House. The spirit of the amendment to paragraph 7 of Part 2 of Schedule I was to exempt all incidental live music as well as incidental recorded music. Paragraph 11 of Part 2 of Schedule 1 provides an exemption for unamplified incidental live music. As the Government have accepted the principle that all incidental live music should be exempt from the requirement to obtain a licence, whether amplified or not, that further exemption is unnecessary and has been removed from the Bill. We have accepted the broader of the two amendments made in this House. The effect of the amendment that the Government overturned in the Commons is subsumed entirely within the one that we accepted. I beg to move.
  Moved, That the House do agree with the Commons in their Amendment No. 60.—(Lord McIntosh of Haringey.)
  1 p.m.
  Lord Redesdale: My Lords, we thank the Government for accepting this amendment. We support the amendments that they have put forward.
  Baroness Buscombe: My Lords, we also thank the Government and support Amendment Nos. 60 and 61.
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  61 Page 112, line 13, leave out paragraph 11
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 61.
  Moved, That the House do agree with the Commons in their Amendment No. 61.—(Lord McIntosh of Haringey.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  62 Page 112, line 31, leave out paragraph 12
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 62.
  The amendment made in another place reverses an extremely damaging amendment made by this House. That amendment, which was called—misleadingly, in my view—"Exemption for small premises", exposes the public, particularly children, to great safety and harm risks, leaves residents without a voice to protest against nuisance and strips away the powers of the police to control crime and disorder at vast swathes of venues across the country, many of which may be totally unsuitable for the provision of regulated entertainment.
  I received a letter today from Councillor Simon Milton, the leader of Westminster City Council, who says that if our amendment were not made, 62 per cent of the licensed premises in Westminster would no longer be subject to licensing. He says, in particular, that since virtually all strip clubs are for fewer than 250 people—I am sure that that applies to all of them— there would be no licensing of such clubs. Imagine what that means.
  I understand the sentiments behind the amendment and the deregulatory intention.
  Lord Monson: My Lords—
  Lord McIntosh of Haringey: My Lords, I suggest to the noble Lord, Lord Monson, that it might be better if I made my speech before he has an opportunity to intervene, after which I can respond to him.
  The intention was to exempt a kind of genteel, low-level and perhaps traditional music made in small premises from the perceived burdens of the new licensing regime. I stress the word "perceived" because the Licensing Bill strips away most of the burdens and costs associated with the existing licensing system. I agree with those sentiments, but the amendment is seriously misguided. It is unfortunate that the world does not consist solely of sophisticated jazz trios playing to well-behaved and civilised audiences. However, I used to go to a jazz club in Paris where the sensitivity of neighbours was so great that the audience was not allowed to applaud; instead they simply click-click-clicked their fingers to show appreciation. Perhaps that system could be introduced in this country also. The amendment would have destroyed all the protection, including the kind that I have been describing.
  I hope that it does not come as too much of a shock when I say that the world is not like that. The most popular forms of live music in this country consist of loud and sometimes quite aggressive rock and pop music that provoke audience reaction. Many forms of entertainment give rise to serious issues of crime and disorder, public safety, public nuisance and the protection of children from harm. It should come as no surprise that both the Association of Chief Police Officers and the Local Government Association are vehemently opposed to an exemption of this nature.
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  The Bill sets out a simple, flexible and proportionate system designed to address those issues while sweeping away unnecessary barriers that stop performers entertaining the public.
  The amendment made in this House would exempt any entertainment from the provisions of the Bill provided the audience does not exceed 250 at any one time and the entertainment finishes by 11.30 p.m. Entertainment, in the Bill, includes the playing of recorded music and performing live music, dancing, performing plays, exhibiting films, indoor sports entertainment and other entertainment of a similar description. All those types of entertainment would be covered by the exemption.
  I reiterate that the description "exemption for small premises" is misleading. The exemption relates to the size of the audience, not the premises. The exemption would cover, for example, Fatboy Slim or Marilyn Manson playing music at full blast in the middle of a residential area so long as there were fewer than 250 people present at any one time. It would even exempt the Albert Hall if there were fewer than 250 people in the audience. Why should an audience of Fewer than 250 be denied the expert consideration of their protection, and why should local residents be denied a voice?
  I know that the musicians' lobby argues that existing health and safety and nuisance legislation should be enough to protect the public on those counts. However, I note that the Musicians' Union publishes a code of good practice relating to the health and safety of performers that goes beyond what health and safety law requires—good luck to it. However, the Government disagree fundamentally with that view for several reasons.
  Fire safety law is often enforced through conditions attached to licences under the existing regimes. Exempting vast swathes of entertainment from licensing removes the opportunity to ensure public protection from fire risks through preventative measures.
  Existing health and safety legislation is reactive. Licensing offers the opportunity to prevent problems before they have an opportunity to arise. Health and safety legislation relies on an individual operator knowing what they need to do to protect the public at an entertainment event and actually doing it. One of the key aims of licensing is to ensure that that happens. For example, if I were to put on a live band at my local community venue, I would not have the first idea about what I needed to do to ensure that the public and performers were protected from hazards arising from staging, lighting and electrical cabling. But the experts who would have the opportunity to comment on my licence application would certainty know what is needed.
  If we left the small premises amendment in the Bill, it would take public protection out of the hands of the experts and give it, in many cases, to amateurs. That is not right, and I do not think it melodramatic to say that it would put lives at risk. However, if we put to one side our differences on the issue of public safety and public nuisance, the exemption made in this House has

  945
  very serious consequences for the two other licensing objectives in the Bill—the prevention of crime and disorder and the protection of children from harm.
  The potential effects of the exemption in those areas are wide-ranging. For example, in the case of a small cinema holding up to 250 people—there are quite a number of those—a child of any age would be free to enter and watch a film classified for 18 year-olds. That is because the recommendations of the British Board of Film Classification have no standing in law. They are currently enforced through conditions attached by the local authority to cinema licences under the Cinemas Act 1985. The Bill will eventually replace that Act in England and Wales. It is intended that similar conditions will be attached to premises licences held for cinemas or other premises exhibiting films. But, without those conditions, the BBFC classifications would be wholly undermined. There would be no way in which a licensing authority for a particular area could seek to have a say in the classification of films exhibited in its area.
  The effect of the amendment is to give young children unrestricted access to sex and violent films in cinemas. There was outrage when I said that in the House earlier. I say it again because it is true. We have received representations in strong terms from the BBFC on the issue. I understand that other noble Lords have been on the receiving end of those representations.
  The amendment also has a serious effect on the crime prevention objective. The effect is wide-ranging, but I shall illustrate it by way of example. The exemption would allow an individual involved in the sale of drugs to organise entertainment, perhaps a disco, for 250 teenagers with a view to selling his target audience drugs. As the event would not require the authority of a licence or even a temporary event notice, the police would not be informed and they would lose their right to intervene on crime prevention grounds and have the event stopped. They could intervene only after the event if some nuisance or tragedy had occurred.
  Is that the type of licensing system that we want? We want a licensing system that aims to facilitate the provision of diversity of entertainment in a responsible way, subject only to those controls that are absolutely necessary. Are we prepared to put that at risk? I do not believe that that could possibly have been the intention of noble Lords opposite when they carried this amendment. They have an opportunity to put things right by supporting the amendment made in another place. I beg to move.
  Moved, That the House do agree with the Commons in their Amendment No. 62.—(Lord McIntosh of Haringey.)
  62A Baroness Buscombe rose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 62, leave out the words from "that" to the end and insert "the House do disagree with the Commons in their amendment but do propose the following amendment in lieu thereof"—
  Page 112, line 30, at end insert—
  946
  "Small events: live music

  (1) The provision of entertainment consisting of the performance of live music is not to be regarded as the provision of regulated entertainment for the purposes of this Act where—

  (a) the number of listeners or spectators present does not exceed 200 at any one time, and

  (b) the entertainment ceases no later than 11.30pm.

  (2) The provision of entertainment facilities solely for the purposes of entertainment described in sub-paragraph (1) is not to be regarded as the provision of regulated entertainment for the purposes of this Act.(2) Nothing in this paragraph shall be read as rendering invalid or otherwise affecting any provision of, or any regulation made under, any other legislation that applies to the entertainment, the entertainment facilities or the premises on which the entertainment is to take place."

  The noble Baroness said: My Lords, I speak to Amendment No. 62A, and to respond to, and substantially disagree with, several issues raised by the Minister this morning. He knows that we are sticking to what we have said in repeated debates in your Lordships' House and on behalf of Her Majesty's Opposition in another place.
  We understand that the Government's concern is particularly with regard to health and safety. I will seek, as briefly as I am able, to deflect some of the Government's arguments. We contend that there is more than adequate existing legislation to meet the objectives of the Bill, making superfluous the imposition of specific conditions on a licence. We support the view that a small premises exemption is a feasible option within the proposed regime. On health and safety, there is a duty under the Health and Safety at Work etc. Act 1974 for employers to ensure the safety of their employees and others who may be affected by what they do. Thus, publicans, event organisers and others already have a duty with which they must comply. They must ensure that their premises are safe for the use to which they are put, and that any equipment used on the premises is safe, not only for the user, but for all those in the vicinity.
  When there is no employer, a similar duty is imposed on the person with control of the premises to ensure that the premises are safe for those using any plant or substances provided for them, which could include promoters or event organisers when premises are let to them to use. Breach of those sections is a criminal offence, with a maximum fine of £20,000 in a magistrates' court and an unlimited fine in a Crown Court. Publicans already have to comply with those provisions.
  The enforcement agencies are also able to serve improvement and prohibition notices—the former requiring steps to be taken before an event can take place, and the latter preventing the event from occurring. Breach of those notices is an imprisonable offence.
  The Government have suggested that existing health and safety legislation does not provide a sufficient safeguard because it is reliant on the duty holder complying with it, understanding it and taking steps to ensure the safety of patrons before the event. In other words, it is reactive legislation and imposes no site-specific requirements as licensed conditions would do. That is true, to a degree. However, such a statement fails

  947
  to recognise two important issues: although conditions may be proactive in that they are placed on a licence prior to an event taking place, those imposing non-physical requirements—such as occupancy levels, the checking of fire doors and so forth—are still reliant on the licence holder complying with them.
  There is already an existing obligation on every employer and self-employed person—which could include performers—to undertake an assessment of the risks to the health and safety of their employees, themselves and others who may be affected by their conduct under the Management of Health and Safety at Work Regulations 1999. Not only must a publican have already carried out a risk assessment of his premises, if he has a band, comedian or some other form of entertainment, he must undertake a new assessment considering the risks posed by the new activity. He may consider restricting the occupancy levels, ensuring that any staging is safe and so forth.
  On fire safety, the risk assessment must also include consideration of any risk from fire. As from 2004, when the proposed Regulatory Reform (Fire Safety) Order becomes effective, a specific duty will be placed on an employer or the person responsible for the activity being undertaken to undertake an assessment of the risk posed by fire.
  I could go on. Noise nuisance is a concern. Concerns have been expressed about the inability of existing legislation to deal proactively with the potential noise nuisance arising from unlicensed premises. It is accepted that local authorities, when exercising their powers under the Environmental Protection Act 1990 to serve noise abatement notices, tend to be reactive, and act following complaints. However, the officers have the power to serve such notices and must do when they are satisfied that a noise nuisance is likely to occur. Thus, when a premises is known to be a problem, a notice can be served requiring steps to be taken or works to be undertaken to prevent noise nuisance.
  On anti-social behaviour, it would be wrong not to mention the Bill currently under scrutiny in Committee. The Bill provides councils with powers to deal with noise nuisance—among other issues—and creates a closure order that councils can serve upon premises holding a premises licence or a temporary event notice, closing them down immediately for 24 hours.
  Although we accept that the safety of the public is a major consideration, there is a strong argument that the licensing regime for entertainment is overly restrictive and unnecessary due to existing controls, and potentially falls foul of the European Convention. If the requirement for a licensing regime is accepted based on the objectives stated in the Bill, we must decide whether a distinction can and should be made between events based on capacity and timing—namely, whether there should be a small premises or, preferably, a small event exemption. That is what we are putting before your Lordships today. By allowing events to take place and limiting the audience to 200 people, as in our amendment, and to a terminal hour
  948
  of 11.30 p.m., the Government would surely be seen to be recognising a cultural need and desire, while ensuring that the local amenity is not unduly affected.
  The health and safety implications of such an exemption would be no different from those affecting a public house showing live football to potentially many hundreds of patrons or a popular comedian entertaining an audience of hundreds in a like premises, both of which fall outside the definition of entertainment.
  There is extraordinary inconsistency in the Bill. A limited amount of entertainment that is not broadcast will be unduly restricted, but a large plasma screen pouring out very loud music or the sounds of a football match to hundreds of people will be outside the remit of the Bill. Whatever the entertainment, each would have to be risk assessed for both general and fire risks, and each would be subject to noise control, not to mention the powers of the police. There is justification for such events to be treated differently.
  I heard what the noble Lord, Lord McIntosh said, but we feel very strongly about the issue. Unless I hear some new and overwhelming argument, I intend to press the amendment. I beg to move.
  Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 62, leave out the words from "that" to the end and insert "the House do disagree with the Commons in their amendment but do propose an amendment in lieu thereof.—(Baroness Buscombe.)
  1.15 p.m.
  Lord Redesdale: My Lords, I strongly support the noble Baroness, Lady Buscombe. She has covered the health and safety grounds for our amendment, so it is not appropriate for me to cover them again today. We have returned to the amendment on several occasions.
  The amendment has been changed to take account of some of the concerns expressed at earlier stages of the Bill. However, one fundamental principle that should not be overlooked is that, although the Minister used some scare stories—even embellishing some of them—about drug pushers organising discos, we should not overlook the fact that drug pushers could get a temporary events notice, but they would still be undertaking a criminal act.
  Lord McIntosh of Haringey: My Lords, I am sorry, but the only criterion for a temporary events notice is that the police have the opportunity to object for the purposes of crime prevention. It is not true that such people could get a temporary events notice.
  Lord Redesdale: My Lords, I am sure that anyone who was intending to undertake criminal activity would not put it in the temporary event notice. I also foresee a problem for the police in dealing with tens of thousands of temporary event notices, although I am sure that they will be notified and are extremely professional. We must examine whether all forms of criminality will he stamped out simply by achieving a temporary events notice. Perhaps that is a side issue, however. We have to remember what the purpose of

  949
  this Bill is. We support this Bill. We support deregulation. The Government have attempted, rightly, to provide conditions which would expand the number of venues available for music. However, we also have to come back to the fact that, although this is a deregulation Bill, it would add a vast amount of regulation. This is one of the issues raised by the Joint Committee on Human Rights in their Twelfth Report of Session 2002–3. On Page 17 they said:
  "The Bill leaves a patchwork of different licensing requirements without a coherent rationale, calling in question the existence of a pressing social need for the restriction on freedom of expression for a licensing regime for public entertainment, and so undermining the Government's claim that such a licensing regime is a justifiable interference with the right to freedom of expression under ECHR Article 10/".
  The Government have raised the issue of health and safety. We understand those issues and believe they have been addressed. They raised the issue of the police being informed and I know the police are concerned over this. However, we also have to be concerned about introducing legislation that will restrict and curtail the right to expression, available up until now. On that basis I shall support the amendment.
  I gave the Minister notice earlier of a particular question about the provision of folk dance. I know that it falls outside this amendment. However, I have had a large number of representations from the folk dance world. Kim Howells, his right honourable friend in another place has definite views on folk dance. However, I would be very grateful if the Minister could give some indication over how temporary event notices will work in relation to Morris men so that they may he reassured in carrying on their activities.
  Lord Monson: My Lords, I rise solely on the narrow question of strip clubs. The Minister tried to chill our blood by claiming that nearly all such clubs would be totally unregulated if the amendment of the noble Baroness were accepted. I am not a great expert on such places but I would guess that virtually no strip club closes as early as 11:30 p.m. and that none nowadays employ live music as opposed to recorded or taped music.
  Lord Brooke of Sutton Mandeville: My Lords, I have been silent today as I was probably unnecessarily loquacious when the Bill was last in your Lordships' House. I shall be very brief now. I have had some passages of arms with the Minister on amendments to this and other Bills. I owe it to him, in his new capacity, to seek to repair my reputation for consistency. I wish to put on record that I have seen the letter from the leader of Westminster City Council to him and also the letter from the noble Lord, Lord Clarke of Hampstead along similar lines. The Minister knows what they said in relation to central London. Indeed, he has quoted from them this morning.
  I did not speak when the original amendment was carried in your Lordships' House because we were anxious to make progress. I shall not rehearse the arguments in the letters now when we are again
  950
  anxious to make progress. However, I support the present position of the Government, particularly given the implications for central London.
  Lord Colwyn: My Lords, I found the Minister almost very persuasive on this argument. However this is not what the amendment is about. As far as I am concerned, this amendment is about trying to find premises to encourage young musicians. Throughout the passage of this Bill, the Musicians' Union, of which I have been a member for many years, Jazz Services and the English Folk Dance & Song Society have all agreed that further rejection of this amendment would be a disaster for the performing arts. The Government are going against their policy of trying to encourage young musicians, singers and actors. As my noble friend Lady Buscombe said, the Bill allows big-screen broadcasts and pre-recorded amplified music. It allows a play, musical performance, disco or dance at a garden fete or a church. But it insists on a licence when exactly the same event takes place at a school, pub or restaurant.
  My noble friend has covered the noise and the public safety aspects. The Minister in another place, Dr Howells, has said that live music has been distorted for years by the two-in-a-bar rule and that jazz has suffered especially. The two-in-a-bar rule is currently the only form of limited exemption for live music. Both Ministers have said, in this and another place, that to take up a public entertainment licence it is just a matter of placing a tick in the appropriate box. It is not that simple. There is a worry that local authorities will become more involved. They will inspect premises and come up with alterations that must be made—a new fire door here, an exit there. The licensees are unlikely to want to take that risk. The two-in-a-bar rule becomes the none-in-a-bar rule.
  I read carefully the debate on this amendment in another place. There, members of the Labour Party supported this amendment, yet when it came to the vote, they voted the opposite way. I have been co-chairman of the Parliamentary Jazz Club for many years. There are many members of your Lordships' House, unfortunately not in their places, who have lobbied for many years to get rid of this two-in-a-bar rule to encourage the provision of premises for young musicians. I hope they are outside and will vote for us. This amendment is about encouraging young musicians. Even if it is rejected, I hope the Minister will come up with some ideas as to how we might achieve this.
  Lord Williamson of Horton: My Lords, I have just two points for the Minister. The first is that the Minister said in his first intervention that village halls were already exempted. If that is true, I should like to know where that is in the Bill. Secondly, I find it extremely difficult to believe that strip clubs and film shows would be covered by this exemption. I find it impossible to believe that a strip show or a film show

  951
  would fall within the definition of entertainment consisting of the performance of live music. The points raised by the Minister are largely irrelevant.
  Lord McIntosh of Haringey: My Lords, I am taken aback by the persistence of noble Lords. The Front Benches, in particular, have not even started to address or challenge the points I made in my opening speech. Our concerns are not just about individual parts of the licensing regime, but the whole of it. Amendment No. 62A would strip out huge chunks of all licensing legislation. The Government are concerned with public safety and the prevention of crime and disorder. We are concerned with the protection of public nuisance and with the protection of children from harm. When the noble Baroness, Lady Buscombe, talks about fire safety regulations, does she not realise that almost all fire safety regulations affecting cinemas are contained in regulations made under licensing law? The 1955 Cinematograph Regulations are part of licensing law, not of fire safety law. They would disappear if this amendment were carried.
  When the noble Baroness says in her amendment that the entertainment should cease no later than 11:30 p.m., does she not realise that under her amendment it could start again at 11:31 p.m. and carry on for 23 hours 59 minutes? There is no protection against late night noise and nuisance or anything else in the Opposition amendment. Does she not realise that the difference between 2(X) and 250 is nugatory? This is not the issue at all. Is she more concerned with the safety of 8,000 people in the Albert Hall than with 199 or 201 young people in a basement club in Soho? Regulation under licensing law to protect these people in terms of public nuisance, fire and health and safety would be wiped out by this amendment.
  The noble Baroness referred to noise nuisances. If the premises are outside the scope of the Bill because of an exemption, how are the local authority environmental health officers to know that a form of entertainment will take place that is likely to create a noise nuisance for the purposes of the 1990 Act? The noble Baroness, Lady Oppenheim-Barnes, was eloquent on this subject on an earlier amendment. She said that the local environmental health officers cannot do anything, because the noise is intermittent. Someone complains under the Environmental Protection Act—they cannot do it under licensing law—the environmental health officers come along, and, by that time—or perhaps because of a tip-off—the premise has been closed down, and it simply starts again after the visit.
  That is not adequate. Health and safety conditions imposed on the licence will be based on experts' concerns specific to the premises in question. That is much better protection than that which is provided in more general health and safety law. That is not to say that health and safety law is wrong, but it is generalised. When one is talking about alcohol and entertainment, it is better to have an operating licence that ensures in advance that the protection is there. The operating licence will make it clear what a particular applicant for a licence must do to gain a
  952
  licence. In health and safety legislation, duties are expressed in general terms only. The only power for authorities to intervene is if something goes wrong.
  I can say something nice to the noble Lord, Lord Redesdale, about: morris dancing. He will have heard, as I have, the moral law that only two things are absolutely forbidde—incest and morris dancing. I want to make it clear that when morris dancers arrive at a pub unannounced—for example, on the way back from another event—and have a pint in a pub garden, and start dancing, there is no need for an authorisation of this kind. They would not be providing entertainment that fell within the definition of the provision of regulated entertainment. No genuinely spontaneous activity—I say this to the noble Lord, Lord Colwyn, as well—whether it is singing, dancing, or playing a musical instrument, will be caught by the Bill.
  I heard what the noble Lord said about the Joint Committee on Human Rights. Unfortunately, it looks as if the Joint Committee did not consider the department's reply of 10th April to its seventh report. Its officials have apologised for that. The context in which the quotation that he read out is made is the distinction made in the Bill, under pressure, after amendment, that there is a difference between churches and places of worship and other places. That is the context in which it makes that point.
  Nothing that I said in my opening speech on this amendment has been adequately answered by this amendment. I put it to your Lordships that to allow this amendment through would be allowing huge risks of danger, physical danger, moral danger, and licence in the other sense—the lack of any reasonable and regular controls in this Bill.
  They would take away protections that are essential, not only in central London—the noble Lord, Lord Brooke of Sutton Mandeville, is right about that—but all over the country. Those are essential protections for the people of this country. I urge the House not to approve Amendment No. 62A.
  Baroness Buscombe: My Lords, I thank the Minister for his response, although it was somewhat predictable. I am sorry that the Minister did not accept any of the arguments put forward, I felt quite cogently, regarding the many regulations that already exist. Employers complain daily that they must put up with those regulations—on risk assessments, health and safety and so on—to carry out their daily business.
  I am grateful to all noble Lords who have taken part in the debate. The Government know that our interests are for those people who have been lobbying, including the 110,000 musicians and friends of music and entertainment who signed a petition that was delivered to Number 10 this week regarding the future of entertainment and live music in small premises We care passionately about the future enjoyment of all those who go to pubs in this country. Unless this amendment is made, that future enjoyment for all of us, as well as the livelihoods of musicians and entertainers, will be put at great risk.

  953
  We are not satisfied. We know that the Government are listening to us on one level, but they have simply failed to even try to come up with a workable solution that is acceptable to us. Today, we are providing a workable solution. I wish to test the opinion of the House.
  1.35 p.m.
  On Question, Whether the said amendment (No. 62A) shall be agreed to?
  Their Lordships divided: Contents, 128; Not-Contents, 113.

  Division No. 2

  CONTENTS

  Aberdare, L.

  James of Holland Park, B.

  Addington, L.

  Jenkin of Roding, L.

  Alexander of Weedon, L.

  Jopling, L.

  Anelay of St Johns, B.

  Laing of Dunphail L.

  Astor.V.

  Livsey of Talgarth, L.

  Astor of Hever, L.

  Luke, L.

  Beaumont of Whitley, L.

  Lyell, L.

  Biffen, L.

  McColl of Dulwich, L.

  Blatch, B.

  McNally, L.

  Bradshaw, L.

  Maddock, B.

  Bridgeman, V.

  Mancroft, L.

  Brougham and Vaux, L.

  Mar and Kellie, E.

  Burnham, L.

  Masham of Ilton, B.

  Buscombe, B.

  Mayhew of Twysden, L.

  Carey of Clifton, L.

  Miller of Chilthorne Domer, B.

  Carlile of Berriew, L.

  Miller of Hendon, B.

  Carlisle of Bucklow, L.

  Molyneaux of Killead, L.

  Carnegy of Lour, B.

  Monson, L.

  Chalfont, L.

  Mowbray and Stourton, L.

  Chalker of Wallasey, B.

  Murton of Lindisfarne, L.

  Clement-Jones, L.

  Noakes, B.

  Coe, L.

  Northbrook, L.

  Colville of Culross, V.

  Northesk, E.

  Colwyn, L.

  Northover, B.

  Cope of Berkeley, L. [Teller]

  Oakeshott of Seagrove Bay, L.

  Craigavon, V.

  O'Cathain, B.

  Crathorne, L.

  Park of Monmouth, B.

  Cumberlege, B.

  Perry of Southwark, B.

  Dholakia, L.

  Pilkington of Oxenford, L.

  Dixon-Smith, L.

  Plummer of St. Marylebone, L.

  Dundee, E.

  Quirk, L.

  Eccles of Moulton, B.

  Rawlings, B.

  Elton, L.

  Razzall, L.

  Erroll, E.

  Reay, L.

  Ezra, L.

  Redesdale, L.

  Falkland, V.

  Rees, L.

  Fookes, B.

  Rennard, L.

  Fowler, L.

  Renton, L.

  Gardner of Parkes, B.

  Rodgers of Quarry Bank, L.

  Geddes, L.

  Roper, L.

  Glentoran, L.

  Russell, E.

  Goodhart, L.

  Saatchi, L.

  Greaves, L.

  St John of Bletso, L.

  Harris of Richmond, B.

  Saltoun of Abernethy, Ly.

  Hayhoe, L.

  Sandberg, L.

  Henley, L.

  Sandwich, E.

  Higgins, L.

  Seccombe, B. [Teller]

  Hodgson of Astley Abbotts, L.

  Selsdon, L.

  Hooper, B.

  Sharp of Guildford, B.

  Howe, E.

  Shaw of Northstead, L.

  Howe of Aberavon, L.

  Shutt of Greetland, L.

  Howe of Idlicote, B.

  Skelmersdale, L.

  Hunt of Wirral, L.

  Smith of Clifton, L.

  954

  Soulsby of Swaffham Prior, L.

  Ullswater, V.

  Strange, B.

  Vivian, L.

  Strathclyde, L.

  Wakeham, L.

  Swinfen, L.

  Walmsley, B.

  Taverne, L.

  Walpole, L.

  Thomas of Gwydir, L.

  Warnock, B.

  Thomas of Walliswood, B.

  Watson of Richmond, L.

  Thomson of Monifieth, L.

  Williams of Crosby, B.

  Tope, L.

  Williamson of Horton, L.

  Trefgarne, L.

  Willoughby de Broke, L.

  Trumpington, B.

  Windlesham, L.

  NOT-CONTENTS

  Acton, L.

  Jordan, L.

  Ahmed, L.

  Kilclooney, L.

  Amos, B.

  King of West Bromwich, L.

  Andrews, B.

  Lea of Crondall, L.

  Archer of Sandwell, L.

  Lipsey, L.

  Ashley of Stoke, L.

  Lockwood, B.

  Ashton of Upholland, B.

  Lofthouse of Pontefract, L.

  Avebury, L.

  McCarthy, L.

  Bach, L.

  Macdonald of Tradeston, L.

  Bassam of Brighton, L.

  McIntosh of Haringey, L.

  Berkeley, L.

  McIntosh of Hudnall, B.

  Bernstein of Craigweil, L.

  MacKenzie of Culkein, L.

  Billingham, B.

  Mackenzie of Framwellgate, L.

  Blackstone, B.

  Marsh, L.

  Brooke of Alverthorpe, L.

  Mason of Barnsley, L.

  Brooke of Sutton Mandeville, L.

  Massey of Darwen, B.

  Brookman, L.

  Merlyn-Rees, L.

  Brooks of Tremorfa, L.

  Mitchell, L.

  Bruce of Donington, L.

  Morgan, L.

  Campbell-Savours, L.

  Morgan of Huyton, B.

  Carter, L.

  Morris of Manchester, L.

  Chorley, L.

  Murray of Epping Forest, L.

  Christopher, L.

  Nicol, B.

  Clark of Windermere, L.

  O'Neill of Bengarve, B.

  Clarke of Hampstead, L.

  Orme, L.

  Clinton-Davis, L.

  Patel of Blackburn, L.

  Corbett of Castle Vale, L.

  Pitkeathley, B.

  Crawley, B.

  Plant of Highfield.L.

  David, B.

  Ponsonby of Shulbrede, L.

  Davies of Oldham, L. [Teller]

  Prys-Davies, L.

  Desai, L.

  Puttnam, L.

  Dixon, L.

  Radice, L.

  Dormand of Easington, L.

  Ramsay of Cartvale, B.

  Dubs, L.

  Rendell of Babergh, B.

  Elder, L.

  Richard, L.

  Evans of Parkside, L.

  Rogers of Riverside, L.

  Evans of Temple Guiting, L.

  Rooker, L.

  Farrington of Ribbleton, B.

  Sainsbury of Turville, L.

  Faulkner of Worcester, L.

  Scotland of Asthal, B.

  Filkin, L.

  Sewel, L.

  Gale, B.

  Sheldon, L.

  Gibson of Market Rasen, B.

  Simon, V.

  Gordon of Strathblane, L.

  Stone of Blackheath, L.

  Goudie, B.

  Strabolgi, L.

  Gould of Potternewton, B.

  Symons of Vernham Dean, B.

  Graham of Edmonton, L.

  Temple-Morris, L.

  Grocott, L. [Teller]

  Thornton, B.

  Hardy of Wath, L.

  Turner of Camden, B.

  Harrison, L.

  Uddin, B.

  Haskel, L.

  Warner, L.

  Hayman, B.

  Wedderburn of Charlton, L.

  Hollis of Heigham, B.

  Whitaker, B.

  Howarth of Breckland, B.

  Whitty, L.

  Hoyle, L.

  Wilkins, B.

  Hunt of Kings Heath, L.

  Williams of Mostyn, L. (Lord President of the Council)

  Hylton, L.

  Jones, L.

  Woolmer of Leeds, L.

  Resolved in the affirmative, and amendment agreed to accordingly.
  1.46 p.m.
  Baroness Crawley: My Lords, I beg to move that further consideration of Commons amendments be adjourned.
  Moved accordingly, and, on Question, Motion agreed to.
  Baroness Crawley: My Lords, I beg to move that the House do now adjourn during pleasure.
  Moved accordingly, and, on Question, Motion agreed to.
  [The Sitting was suspended from 1.46 to 2 p.m. for Judicial Business and to 3 p.m. for Public Business.]

The Lord Chancellor: Leave of Absence
The Lord Chancellor (Lord Falconer of Thoroton): My Lords, may I take the opportunity to inform the House that I will be undertaking a ministerial visit to Leeds on Friday, 20th June? Accordingly, I trust that the House will grant me leave of absence.

Light Pollution
Lord Oakeshott of Seagrove Bayasked Her Majesty's Government:
What is their policy on light pollution caused by sky glow obscuring the night sky and wasting energy.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): My Lords, the Government's policy on light pollution is that such issues are most appropriately dealt with by raising awareness of the consequences of badly installed lighting; by providing guidance on how those problems might be mitigated; and by encouraging more effective use of existing planning powers. We are doing all those things. Since 2002–03, local authorities have been required to benchmark their energy use in street lighting. Local improvement targets will be set from 2003–04.
Lord Oakeshott of Seagrove Bay: My Lords, I thank the Minister for that reply. Has he seen the striking satellite photographs in the recent CPRE report on "Night Blight", showing how light pollution has grown dramatically over the past seven years, particularly in the South East? Much of south-east England is a nasty orange glow, with just a patch of dark sky over the Isle of Wight. I press the Minister particularly on the need for new powers for local authorities to control nuisance lighting and deal with what the Government's consultation paper last year called the detrimental effects of light pollution.
Lord Rooker: My Lords, the answer to the noble Lord's question is "Yes". The photographs are striking. There has been an increase in light pollution: there is no question about that. The issue is what we do about it.
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The Select Committee in another place is carrying out a study at the moment. We wholly support it and look forward to the recommendations. In 1997, as I said, we issued a good practice guide for lighting in the countryside. In 1998, in the transport White Paper, it was made clear that, if lighting is essential, it should be done in a way that minimises nuisance.
Needless to say, accidents are reduced by a third because of good street lighting, but we must be intelligent about how we organise lighting. Some £300 million of private finance credits have been made available this financial year for improved street lighting. Last October, Living Places—Power, Rights and Responsibilities dealt with nuisance lighting and requested views on updating the country code. Given the normal lethargy of governments, we have moved with the speed of light on the issue. Before anybody asks a supplementary, I can tell the House that that is, as I recall from my rote days at school, 186,000 miles a second.
Lord Tanlaw: My Lords, I declare an interest as chairman of the All-Party Astronomy and Space Environment Group. Will we be allowed to discuss the Government's report on dark skies, which will, I believe, come out in the autumn? Will the Minister say—he did not say it in his reply—that there will be what I call "no-glow" areas on the outskirts of towns for amateur astronomers?
Any amateur astronomer who has seen, as I have, the moons of Jupiter, the rings of Saturn or the nearest nebula of Andromeda has a sense of wonder. That is being denied to young children and all amateur astronomers throughout the country. Towns such as Swindon have an undeflected incandescent glow of sodium that can be seen far out in outer space, outer space that people cannot see from ground level as a result.
Lord Rooker: My Lords, I suspect that the only reason why Swindon has that glow is that all those traffic islands have to be lit.
The noble Lord is right. I am not in a position to promise debates, but there is a lot going on. The Government are consulting on some of the issues that I mentioned. We will announce the results of the consultation. Nevertheless, as I said, the Select Committee in another place is carrying out an inquiry to which my department and others will give evidence. I have no doubt that it will be debated.
We need positive solutions to the issue. As far as I am aware, only one country has legislation on light pollution—the Czech Republic. There is a lot to do, as the recent satellite photographs show. There is no question about that.
Lord Marlesford: My Lords, I declare an interest as a vice-president and former chairman of the CPRE. I strongly support the two noble Lords who have spoken so far.
Does the Minister agree that, in order to light the ground, one need not light the sky, in general? Will the noble Lord ensure that, if representations are made

957
about undue sky lighting in areas for which the Government have direct responsibility, such as motorways and trunk roads, he takes up any complaint and deals with it speedily?
Lord Rooker: My Lords, the answer is "Yes". I agree with the noble Lord. Although the light itself is not a planning issue, the siting of the installations sometimes is. We covered the issue in PPG 12, 23 and 17, planning policy guidance that local authorities are, by and large, required to follow on development plans, on planning and pollution control and on planning for open space sport and recreation.
The noble Lord is right: in order to light the ground, we do not have to light the sky. That applies to sports facilities, town centres or other spaces. At the same time, people want roads that are lit well enough to cut down accidents and places lit well enough to deter crime. We do not have to light the sky in order to do that.
Lord Dixon-Smith: My Lords, is the Minister aware that there was a time when the price of the electricity for lighting streets at night fell virtually to zero? There was a need to do something with the electricity generated at night, because the generating capacity was not sufficiently flexible and could not be shut down. Can the Minister assure the House that the Government are taking that issue into account in their consideration of the lighting problem? If electricity is generated, it must go somewhere, and it would be better if it went into something more useful than lighting the night sky.
Lord Rooker: My Lords, the issue that the noble Lord raises is not a problem today. As I said, the Government have made available £300 million in PFI credits to local authorities for this financial year to deal with street lighting, so that they can use more modern street lighting. That is over and above their revenue support money. There is a further £85 million for London street lighting.
When I was first elected to another place, a long time ago, the street lights and the television went off at ten o'clock at night. However, that was the result of a contentious industrial dispute, rather than an attempt to save energy.

Judiciary/Home Office Relations
3.8 p.m.
Lord Ackner Lord Ackner asked Her Majesty's Government:
What action they propose to take to achieve the cooperative relationship required between the judiciary and the Home Office which the Lord Chief Justice, Lord Woolf, informed the House on 21st May was missing (Official Report, col. 882).
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, the Home Office is
958
committed to ensuring that consultation and co-operation with the judiciary plays an important part in the development of policy. We recognise that, in order to deliver vital improvements to the criminal justice system, it is necessary to work together closely. The Government are committed to constructive dialogue about areas of shared concern, and we will seek to maintain and strengthen regular contact between the Home Office and the judiciary.
Lord Ackner: My Lords, I am grateful to the noble Baroness for her Answer. Has she had the opportunity to consider in detail the devastating criticism made by the Lord Chief Justice and the Lords Justices who preside in the Court of Appeal Criminal Division, which is contained in a 22-page, 71-paragraph memo deposited in the Library, following the Lord Chief Justice's speech at Second Reading of the Criminal Justice Bill on Monday? Does she appreciate that it covers not only what has been known as the ministerial decrees in sentencing—the Blunkett revenge on the Convention on Human Rights—but a whole variety of other matters, such as disclosure, expert evidence, bad character, hearsay evidence and trial without jury. Will the noble Baroness confirm that the Government will answer the points in that memorandum paragraph by paragraph and put the Government's response in the Library before the Committee stage in a week's time?
Baroness Scotland of Asthal: My Lords, I had the advantage of hearing the noble and learned Lord the Lord Chief Justice during the Second Reading and had the privilege of responding to him. Secondly, the department has fully taken into account the issues contained in the memorandum to which the noble and learned Lord refers. Thirdly, all those points, made as part of the Second Reading speech of the Lord Chief Justice will be taken into account when we make our individual responses on the Bill clause by clause.
Lord Renton: My Lords, as the Government consider the future of the judiciary, will they ensure that the judiciary continues to make a major contribution to our debates on legal matters? That is an essential part of our democracy, and has been for generations. It must continue.
Baroness Scotland of Asthal: My Lords, of course I hear what the noble Lord says, but the original Question related to the relationship. I am no longer a Minister in the Lord Chancellor's Department, now renamed, so I no longer have primary responsibility in that regard. However, the future of the judiciary is certainly of enormous importance. I am sure that it will be quite safe in the hands of the Government.
Lord Goodhart: My Lords, is not the best solution to get responsibility for the criminal law out of the Home Office and into the Department for Constitutional

959
Affairs and turn it into a proper Ministry of Justice? Is not that the logical conclusion of the process started last Thursday?
Baroness Scotland of Asthal: My Lords, we are starting a debate that I am sure we shall have for quite some time in this House. Some will say "Yea" and some will say "Nay", but in due course your Lordships and Members in another place will decide.
Lord Mayhew of Twysden: My Lords, on the subject of a co-operative relationship between the judiciary and the Home Secretary, did we not valuably learn on Second Reading from the Lord Chief Justice that there is a drastic and, in the opinion of the judges, dangerous disparity between some of the sentencing provisions in the Bill and the practice direction that the Lord Chief Justice published only in May last year? Was not that practice direction submitted in draft by him to the Home Secretary and published with the Home Secretary's concurrence? Before the provisions were introduced at a late stage in another place, what "constructive dialogue"—to use the noble Baroness's expression—took place between the Government and the judiciary?
Baroness Scotland of Asthal: My Lords, the judiciary and the department have had an opportunity to speak on several occasions. The last discussion between our department and the Lord Chief Justice was when the Lord Chief Justice met my right honourable friend the Home Secretary on 11th June. I am pleased to say that I noted when the Lord Chief Justice gave his speech that he acknowledged that he and the Government begged to differ. This House, together with another place, will have to determine the framework that is proper to be contained in the Bill. It is a matter for Parliament to decide, and Parliament will do so.
Lord Forsyth of Drumlean: My Lords, on the subject of the independence of the judiciary, can the Minister help me? Who speaks for the Government on that matter? Is it the Prime Minister, who tells us that the Government's policy is to enhance the independence of the judiciary, or is it the Home Secretary who tells us that the judiciary needs to be made more accountable and is highly critical of some of its recent judgments?
Baroness Scotland of Asthal: My Lords, the Government's view is absolutely firm. Both my right honourable friend the Home Secretary and the Prime Minister have said robustly that they wish to protect the independence of the judiciary. They give way to no one on that.
Earl Russell: My Lords, the Minister may be aware that last week, in its 21st report, the Joint Committee on Statutory Instruments expressed a significant doubt whether one of the instruments before the House was intra vires. The Government thought otherwise. Will the Minister give us an undertaking
960
that, in the not impossible event of the judges agreeing with the Joint Committee, the Government will not accuse the judges of rewriting the law? Will they further accept that if they were a little less certain that they were right, they would suffer less pain when occasionally they are found to be wrong?
Baroness Scotland of Asthal: My Lords, I reassure noble Lords that the Government enjoy greatly the benefit of the democracy we have. We know that it is the joy of those who sit on the Benches opposite—and, indeed, sometimes of those who sit on the Benches behind me—to tell the Government in an unequivocal way when they believe that the Government are wrong.
Lord Ackner: My Lords, one criticism made by the Lord Chief Justice in his speech on Second Reading which has not been the subject matter of any comment is that the sentences that the Home Secretary has laid down in Schedule 17 will increase the prison population enormously. If those principles, as they must, reflect on all serious offences, the prison population will become so vast that it cannot be contained.
Baroness Scotland of Asthal: My Lords, my right honourable friend the Home Secretary has said very clearly that he feels—and this is the Government's view—that prison is a course of last resort. Noble Lords will know that in the Criminal Justice Bill we have produced a menu of different sentences—a mixture of community sentences together with prison sentences—which the whole House very much welcomed. It is not the Government's view that the proposals contained in the Criminal Justice Bill should increase the prison population enormously, as the noble and learned Lord seeks to assert.

Hallmarking
3.17 p.m.
Lord Henley Lord Henley asked Her Majesty's Government:
Whether they have any plans to change the current system of hallmarking of precious metals.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, the Government have no plans to change the current system of hallmarking precious metals. The Consumer Minister, Melanie Johnson, announced on 12th June that the Government do not support plans to revive the draft EU directive on the marking of precious metals which, if implemented, would alter the system of hallmarking in the UK.
Lord Henley: My Lords, I thank the Minister for that partially helpful Answer. Would he agree that the current hallmarking system is one of the most effective and efficient systems of consumer protection available in this country? I should add that it is not modern, which the Government will no doubt hold against it.

961
Will the Minister go further when referring to proposed directives from the European Union and give an assurance that Her Majesty's Government will do all they can to prevent any such directive coming into effect? I hope that the Government will ensure that we preserve our current system of hallmarking.
Lord Sainsbury of Turville: My Lords, we believe that the current system is very effective and efficient, and we will oppose the directive. I am sure that the House will be relieved to hear that this is a 700 year-old institution that we believe has worked very well for 700 years and will continue to support.
Lord Corbett of Castle Vale: My Lords, is the Minister aware that his reply to the noble Lord's question will be greeted with joy and relief in the city of Birmingham where, around 1780, that inventive industrial genius Matthew Bolton and others got together to found the Birmingham Assay Office and to give it its anchor assay mark, taking the name from the pub wherein they met? I urge the Minister to be absolutely resolute with those in Brussels who want to interfere with a system that is a guarantee of high-quality manufactured goods in Birmingham and elsewhere.
Lord Sainsbury of Turville: My Lords, I am very glad if any of my announcements are greeted with joy and relief and I do not care on what basis that occurs.
Lord Razzall: My Lords, does the Minister recognise that he has the unanimous support of all sides in your Lordships' House and of all parties in another place on this issue? Is he prepared to go further than his Answer to the noble Lord, Lord Henley, and confirm that there is no chance whatever of the directive taking effect in a form that we would not wish to see?
Lord Sainsbury of Turville: My Lords, the chances of success for the directive do not look promising but we should be realistic in recognising that the position in Europe has changed since 1996. Fewer countries now operate mandatory third party marking regimes. We shall, however, oppose the directive being introduced.
Baroness Miller of Hendon: My Lords, the Minister said initially that the Government had no plans regarding the directive. Subsequently he said that the Government would not support it and then that they would vigorously oppose it. In view of the question that has just been asked and given that this is a matter of majority voting and that our hallmark indicates that our products are better than those produced anywhere else—and we want to keep it that way—will the Government not only vigorously oppose the directive but also make it their business to try to get all the other countries in Europe to vote our way to prevent our being defeated on this very serious matter?
Lord Sainsbury of Turville: My Lords, we were part of the blocking minority when the directive was last
962
discussed in 1996. We intend to try to do the same on the next occasion it is discussed. I simply pointed out to the House that the position had changed since 1996 and that it might be more difficult to try to block the measure. But as a whole our view is still that the directive's chances of success are very small.
Baroness Gardner of Parkes: My Lords, I declare an interest as my husband is a liveryman of the Goldsmiths' Company. Is the Minister aware that tens of thousands of substandard articles have to be destroyed every year by assay offices here and that UK hallmarking offers great protection to members of the public, many of whom are totally unaware of the fact?
Lord Sainsbury of Turville: My Lords, as I said, the present system works well and instils great confidence in consumers. Our objection to the proposed directive is that we do not consider that it would instil that confidence in consumers which is so important in this market.
Lord Marlesford: My Lords, surely this is a perfect example of where subsidiarity should prevent such attempts by Brussels?
Lord Sainsbury of Turville: My Lords, that may be the noble Lord's view but it is not the constitutional view on the matter.

Scottish and Welsh Affairs: Ministerial Responsibility
3.22 p.m.
Lord Roberts of Conwy Lord Roberts of Conwy asked Her Majesty's Government:
Which United Kingdom ministerial office holder will have overall responsibility for Scottish and Welsh affairs.
The Lord Chancellor: My Lords, as my right honourable friend the Prime Minister made clear in his Statement in another place yesterday, the Secretaries of State for Scotland and Wales continue to represent Scottish and Welsh issues in Cabinet and account on them to the House of Commons. They are assisted by the Scotland and Wales Offices which continue as distinct entities in my department.
I am responsible for the overall devolution settlements and overall government policy on devolution previously with the Deputy Prime Minister, including the Memorandum of Understanding, the Joint Ministerial Committee and the British-Irish Council.
The team of officials responsible for co-ordinating devolution issues has moved from the ODPM to my department, reporting to me.
Lord Roberts of Conwy: My Lords, I congratulate the noble and learned Lord on his novel office of Secretary of State for Constitutional Affairs which has, as he indicated, now absorbed the Wales and

963
Scotland Offices. Can he confirm that he has the ultimate authority to decide policy directions in Scotland and Wales and that he can override the part-time territorial Secretaries of State if needs be?
The Lord Chancellor: My Lords, I thank the noble Lord for his kind congratulations. He is wrong; I do not have the ability to override the Secretaries of State for Wales and Scotland. Not one part of their powers has been transferred to my department. All that has happened is that their officials have moved there because they share an office with another department. If another Secretary of State took over who had a different department, it would be sensible for the officials to have a home in which they stayed.
Baroness Carnegy of Lour: My Lords, the noble and learned Lord will be aware that one of the happenings which underpin the establishment of the Church of Scotland is that the Moderator of the Church of Scotland comes every year on, as it were, a state visit to London. He visits Parliament and he preaches in the crypt. He also attends an event at Dover House, the Scotland Office, for Scottish parliamentarians. Will the noble and learned Lord tell the House when that next happens who will receive him and where—above all, where?
The Lord Chancellor: My Lords, that is entirely a matter for the Secretary of State for Scotland.
Lord Carlile of Berriew: My Lords, in joining in the congratulations to the noble and learned Lord may I express the hope that he will soon visit Wales so that he will understand the more readily what the constitutional desires and aspirations of the people of Wales are? Will he confirm that the person who answered the telephone in the Wales Office on Monday and said that it was business as usual was absolutely right? If so, will the noble and learned Lord also confirm that his department will not take upon itself the power to reduce the number of Members of another place who represent Wales but will leave that firmly as a matter for the Boundary Commission for Wales?
The Lord Chancellor: My Lords, I am grateful to the noble Lord for his kind invitation to Wales. I can confirm that the man in the Wales Office who answered the telephone and said that it was business as usual so far as the Secretary of State was concerned was absolutely correct. As regards the devolution settlement, we have no plans to change it.
Lord Elis-Thomas: My Lords, I join in congratulating the final Lord Chancellor on his appointment. I remind him of the good times we had together in this House during the passage of the Government of Wales Act. Can the noble and learned Lord confirm without shadow of doubt that the Leader of the House of Commons will be granted leave of absence to attend the National Assembly for Wales in order to carry out his statutory duties under that Act?
The Lord Chancellor: My Lords, I well remember the good times we had together and thank the noble
964
Lord for reminding the House of them. I also thank him for his congratulations. Of course, the Secretary of State for Wales will attend to all his statutory duties in the National Assembly.
Baroness Gale: My Lords, does my noble and learned friend agree that the devolution settlement for Wales has bedded down well and that in the second term it was inevitable that some changes would be made? Does my noble and learned friend further agree that one of the great successes of the Welsh Assembly, following the elections on 2nd May, was the election of 50 per cent women to it? It is the only legislature in the world that has a majority of women in the Cabinet. It is an excellent model which should be copied in Westminster and in all the legislatures of the world.
The Lord Chancellor: My Lords, I entirely agree with my noble friend as regards how well devolution has worked in Wales. I perhaps would not go quite so far as she did in saying that every single legislature in the world should copy the Welsh Assembly hut I entirely agree with her as regards the success of devolution in Wales. One of the consequences of that devolution is that much more is done in Cardiff than was previously done in London. It was necessary to recognise that in the sensible arrangements made by my right honourable friend the Prime Minister last Thursday.
Lord Forsyth of Drumlean: My Lords, will the Secretary of State for Constitutional Affairs take this opportunity to clear up some confusion? Will he confirm whether or not the First Minister in Scotland was consulted about these arrangements, and whether he agreed to them? Will he also confirm that the first proposal that was put to the First Minister was that the Secretary of State for Scotland should reside in him and not in the Secretary of State for Transport?
The Lord Chancellor: My Lords, the proposals were discussed with the First Minister and he is perfectly happy with the arrangements.
Lord Thomson of Monifieth: My Lords, can the noble and learned Lord the Lord Chancellor help me in my puzzlement? Are the civil servants that remain in the Scotland Office and the civil servants that remain in the Wales Office directly responsible to the respective Secretaries of State and are they not responsible to the noble and learned Lord? Can he tell me what arrangements the Government have made if the Secretary of State for Transport, for instance, and the First Minister in Scotland have opposing points of view about an important matter of public policy? How will those matters be resolved?
The Lord Chancellor: My Lords, the civil servants in the Wales Office and Scotland Office report directly to their respective Secretaries of State for Scotland and Wales. Any issue between the First Minister for Scotland and the Secretary of State for Transport will be dealt with in the ordinary way.
Lord Davies of Coity: My Lords, can my noble and learned friend advise me of the prime purpose and the

965
major advantages of merging the two offices with his, in view of the fact that he does not have overall responsibility?
The Lord Chancellor: My Lords, the two offices have not been merged with mine. The Secretary of State for Wales continues to exist and the Secretary of State for Scotland continues to exist. All that has happened is that officials have been placed in the Constitutional Affairs Department because that is a sensible administrative arrangement, recognising that the Secretaries of State for Wales and Scotland will in the future have other departmental responsibilities.
Lord Renton: My Lords, will the noble and learned Lord now kindly answer the question put to him by my noble friend Lord Forsyth of Drumlean?
The Lord Chancellor: My Lords, I believe that I have already answered that question.

Licensing Bill [H.L.]
3.31 p.m.
Lord McIntosh of Haringey: My Lords, I beg to move that the Commons amendments be now further considered.
Moved, That the Commons amendments be now further considered.—(Lord McIntosh of Haringey.)
On Question, Motion agreed to.

Licensing Bill [H.L.]

  COMMONS AMENDMENT
  63 Schedule 1, page 113, line 3, leave out paragraph 14
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 63. By this amendment the Commons deleted paragraph 14 in Part 2 of Schedule 1 which had been accepted by this House and which would have exempted,
  "any entertainment or entertainment facilities in the premises of an educational establishment for the purposes directly connected to the activities of the establishment".
  The Government were not without some sympathy for the noble Lords who originally proposed this exemption. The focus of their argument, expressed in this House, was to ensure that our schools are not burdened with the administrative requirements of the Bill and the associated costs. But I am afraid that the Government foresaw problems with the exemption, both in its scope and in relation to some points of principle.
  On the scope of the exemption, paragraph 14 used the expression "educational establishment" without offering any more detailed definition. The term "educational institution" is more commonly found in statute, is used in the current draft of the Bill and is defined in Clause 17(3). "Educational institution" is defined in the Bill as,
  966
  "a school or an institution within the further or higher education sector, within the meaning of Section 4 of the Education Act 1996"
  Or,
  "a college (including any institution in the nature of a college), school, hall or other institution of a university, in circumstances where the university receives financial support under Section 65 of the Further and Higher Education Act 1992".
  That gives us a better understanding of what would have been exempted in Schedule 1 to the Bill had paragraph 14 been retained. The exemption relates not only to school plays and concerts and other similar activities; it would also encompass dances, raves, rock concerts and major festivals held by universities. colleges and places of further education for their students and others. It can also be argued that it may go so far as to include students' unions. Students' unions commonly run and control night-clubs as serious and major businesses. Their premises give rise to as many anxieties about alcohol consumption, disorder, noise, nuisance and drugs as any similar commercial venture in our town and city centres. It would be reckless in the extreme to exempt such premises from the provisions of the Bill. For that reason alone, the House should not allow this exemption to stand in the Bill.
  On points of principle, entertainment is regulated under the Bill in order to achieve the licensing objectives, not least that concerning public safety. The establishments that would be at least partially exempted by this amendment host a number of occasions that the public are able to attend. Schools stage commercial concerts and plays. The fact that those events take place at schools does not mean that the public attending them should not be protected or expect to be protected. As many of those attending may be children, it is even more important that they should be properly protected. I should point out that the necessary expertise in safety matters associated with that kind of entertainment may be more limited than in professional venues. Licensing admits professional opinion and advice.
  Perhaps I may also remind the House that the reforms contained in the Bill are designed to establish a level playing field for charitable and community bodies with a light-touch, non-bureaucratic system. To exclude some premises entirely from that, while including others, would not achieve that aim.
  As I said in opening, the Government were not wholly out of sympathy with those who originally proposed this exemption. At Second Reading of the Bill, the Secretary of State announced the Government's intention to place schools and sixth form colleges on an equal footing with church halls, village halls and community venues by waiving the fees in relation to the provision by them of regulated entertainment. That would protect schools and sixth form colleges from the costs associated with the system while preserving the safety, crime and disorder, protection of children from harm and nuisance controls that would protect the public and local residents.

  967
  Let me remind the House of the current regulatory framework and remove some of the myths that were prevalent when the Bill was previously before it. Under the existing legislation, school concerts are licensable activities, although outside London a reduction or waiver of fees can be granted by a local authority if it considers that the entertainment is of educational value. There is therefore no current exemption from the requirement for licensing.
  First, the Bill proposes that the teaching of music, including the performance of musical pieces in school by teachers and pupils for other teachers, is not a licensable activity. Those are private activities to which the public are not admitted. They are not undertaken for a charge or with a view to profit, nor on several fronts do they qualify as regulated entertainment.
  Secondly, school concerts or plays for teachers, pupils, parents, guests and invited friends are not licensable activities unless a charge is made that is intended to generate profit. If the charge is intended to do no more than cover the school's costs for the provision of the entertainment, no profit would be intended. Again the qualifying conditions would not be met.
  Thirdly, if a school concert or play of that kind is staged for those whom I have just mentioned and they are invited to make a donation to the school but are not obliged to do so, the event would not be licensable. If only voluntary donations are sought, no charge is being made.
  Therefore, many school activities of the kind that we have been debating already fall outside the scope of regulated entertainment. Under the Bill, the key is that either the entertainment is intended to be provided for the public—in other words, anyone, whether or not connected with the school, can attend—or a charge is made and profit is the aim of the performance.
  We license commercial activities because the profit motive may override immediate concerns for public safety and public nuisance, but also those relating to the other licensing objectives, and to ensure a proper, professional approach to those important issues. We license places open to the public because every citizen should know that his or her interests will be safeguarded whether the building is a school, community hall or major commercial concert hall.
  If a school wants to go down the route of staging public concerts or activities that generate income, the licensing system is not too burdensome. If other amendments made in another place are accepted by your Lordships, temporary event notices, which have been accepted, would cover events lasting up to four days for fewer than 500 people. Twelve events—not five as originally proposed—could be staged each year on the same premises, provided that the premises were not used for that kind of activity for more than a total of 15 days in any year. If a school is more ambitious than that and plans larger or more regular events, it would need to obtain a premises licence, but central government would absorb the fees and charges.
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  I can give an undertaking that we shall also consider developing the guidance for licensing authorities to emphasise that over-burdensome and disproportionate conditions should not be imposed on schools beyond those absolutely necessary to ensure the safety of performers and audiences alike and to address the other licensing objectives. We want to ensure that music and other cultural activities thrive in our schools and sixth form colleges, and nothing in the Bill would deny that intention.
  Moved, That the House do agree with the Commons in their Amendment No. 63.—(Lord McIntosh of Haringey.)
  63A Baroness Buscombe rose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 63, leave out "agree" and insert "disagree".
  The noble Baroness said: My Lords, it is important to move this amendment to set the record straight. The Bill is supposed to be deregulatory and light touch. We believe that our amendment, as originally drafted—it received great cross-party support in your Lordships' House but, sadly, was defeated in another place—presented a great opportunity to show that the Bill would in practice be deregulatory. We believe that schools are already saddled with so much bureaucracy, and this was an opportunity to remove just one small part of it.
  A number of arguments, some of them mentioned by the Minister, have been used against the amendment. "Educational establishment" or "educational institution" means a school or institution in the further or higher education sector within the meaning of the Education Act 1996, or a college, school, hall or other institution of a university. Therefore it is not just about school plays but also dances, raves, rock concerts and major festivals that are held by universities, colleges and places of further education for their students.
  There has also been anxiety about alcohol consumption, disorder and noise nuisance. We have been assured that,
  "school concerts or plays for teachers, pupils, parents, guests and invited friends are not licensable activities unless a charge is made that is intended to generate profit".—[0flicial Report, 24/2/03; col. 41.]
  That may be the case but it creates huge confusion.
  In the Commons it was also suggested that there was a possibility that the category would fall into the "no fee" category. We appreciate that. However, I want to put the record straight. Public safety is already highly regulated in any educational establishment to protect and provide for the well-being of the students or children themselves. All school buildings or university buildings need to be health and safety checked.
  As to public nuisance, legislation already allows for complaints to be made on the grounds of excessive noise. The essence of our argument is that we are not talking about alcohol consumption and it is misleading for anyone to interpret the amendment in that light. Our amendment talks about the provision of entertainment or entertainment facilities in the premises of an educational establishment for the purposes directly

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  connected to the activities of the establishment. That is not about raves, major rock festivals or dances, which would, in a student establishment, involve by their very nature the consumption of alcohol. In that case, yes, it is right that it should be a licensable activity. We are concerned in this regard with, for example, plays, small musical concerts for the general public or a band playing in the school grounds at an open day. Why are the Government so against this? These are not activities that need excessive regulation.
  Educational establishments are run by responsible authorities: in the case of schools, by school governors and head teachers, and, in the case of universities, by rectors, proctors and governing bodies. They are unlikely to abuse the freedom which exemption from licensing would give them. Would they permit an unregulated "rave" with loud music that was likely to cause a public nuisance and to involve people who were drunk, disorderly, using drugs and potentially a danger to themselves and others? I think that the answer to that is clearly "No". If that is what the Government are afraid of and if this is why they reject our amendment I believe that their fears are unfounded, misguided and unrealistic. I beg to move.
  Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 63, leave out "agree" and insert "disagree".—(Baroness Buscombe.)
  Lord Redesdale: My Lords, we on these Benches welcome the moves that the Government have made to remove these provisions from such events. We have only one question, which we hope the Minister will answer. How much time and effort will be required by teaching staff at schools to meet their obligations, and will that be reviewed at some time? The Minister says that the approach is not intended to be overly burdensome in financial terms and with regard to teachers' time. Health and safety must be of paramount importance. It would be helpful if the Minister said whether the Secretary of State will review any burden in relation to agreeing to the licences. Many teachers may find that to be such a burden that they do not undertake school plays, which are so important to educational life.
  Lord McIntosh of Haringey: My Lords, I can say without any hesitation to the noble Lord, Lord Redesdale, that the burden on teachers will be minimal. A premises licence involves a one-off process and once it has been granted, it will stay in force unless there are any relevant changes to the circumstances in the school. I suppose that if the school burnt down and was rebuilt differently, there would need to be a new premises licence. However, apart from that, a one-off occasion is involved. If there were any problems, I am sure that the Secretary of State for Education and Skills and the Secretary of State for Culture, Media and Sport would put their heads together and see whether there were any burdens that could be removed. There need be no problem in that regard.
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  The noble Baroness, Lady Buscombe, appears to think that this is a new burden on schools. In Greater London, licensing is obligatory and in outer London it is required by local authorities unless they waive it. Of course I understand what she says about schools and sixth-form colleges, which is why we waived the fees. However, her amendment simply disagreeing with the Commons amendment would not answer any of the problems that I raised with regard to, for example, universities, higher education institutions and students' unions.
  Baroness Buscombe: My Lords, I thank the Minister for his response. I was suggesting not that this would be a new burden but that it was a grand opportunity for the Government to be seen to be deregulatory by removing the burden from schools, which are already highly regulated. They can barely breathe without coming across bureaucracy. I am sorry that the Minister will not accept that I am concentrating on the provision of entertainment facilities alone. I very much wanted to have the opportunity to put the record straight. This is not Her Majesty's Opposition asking for raves, major rock festivals, dances and the students' union bar to be regarded as activities that are not licensable; quite the opposite. The purpose of our amendment throughout our scrutiny of the Bill has always been to concentrate on simple school activities where alcohol is not consumed.
  I am grateful to the Minister for his undertaking to ensure that local authorities will not be able to apply too burdensome conditions beyond those that are absolutely necessary to ensure safety. As I said when I moved the amendment, we are grateful that the Government have seen fit, thanks to pressure in your Lordships' House, to ensure that the licence condition will be "nil fee" based.
  Finally, notwithstanding the fact that I remain delighted that churches have been exempted from the need to have a licence, I continue to question the Bill's consistency; it is questionable why educational establishments and other similar bodies should not also be exempt. I know that the Government expressed the argument that it brings churches in Greater London into line with the situation outside London in that churches outside London were originally exempted from licences. In a sense, that still remains an inconsistency in the Bill. The Select Committee on Human Rights recently referred to that inconsistency and the fact that one type of secular activity is treated in a different way to a religious activity. I am grateful to the Minister for his undertaking. Our concern is to keep burdens to a minimum for our schools. I beg leave to withdraw the amendment.
  Amendment No. 63A, by leave, withdrawn.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  64 Schedule 4, page 118, line 2, at end insert—
  " An offence under section 1 of the Trade Descriptions Act 1968 (c. 29) (false trade description of goods) in circumstances where the goods in question are or include alcohol."
  65 Page 119, line 7, at end insert—
  "( ) section 107(3) (infringement of copyright by public performance of work etc.);"
  66 Page 119, line 19, at end insert—
  " An offence under either of the following provisions of the Food Safety Act 1990 (c. 16) in circumstances where the food in question is or includes alcohol—

  (a) section 14 (selling food or drink not of the nature, substance or quality demanded);

  (b) section 15 (falsely describing or presenting food or drink)."

  67 Page 119, line 19, at end insert—
  " An offence under section 92(1) or (2) of the Trade Marks Act 1994 (c. 26) (unauthorised use of trade mark. etc. in relation to goods) in circumstances where the goods in question are or include alcohol."
  Lord McIntosh of Haringey: My Lords, I beg to move that this House do agree with the Commons in their Amendments Nos. 64 to 67. Under the Bill, applicants for personal licences will be required to reveal whether they have been convicted of any relevant offences. Relevant offences are those listed in Schedule 4 to the Bill and include offences under the Bill itself. I have a list of the offences, but I shall spare the House the list, since it is in the Bill.
  Under Clause 118, if an applicant has been convicted of one of these relevant offences then the licensing authority will be required to notify the chief officer of police and, if he is satisfied that the granting of the licence would undermine the crime prevention objective, he must issue an objection notice. This would lead to a hearing, unless all parties agreed that a hearing was unnecessary, at which the licensing authority could decide to grant the application, or reject it if it believed that this was necessary to promote the crime prevention objective. Applicants for personal licences will only be required to reveal unspent convictions. When any personal licence holder is convicted of a relevant offence by a court in England and Wales, it will be open to the court to order the forfeiture of the licence or its suspension for up to six months. In deciding whether to order such a forfeiture or suspension. the court will be able to take account of any previous conviction of the licence holder for a relevant offence.
  Amendments Nos. 64, 66 and 67 would make the substitution of alternative brands of alcohol, including spirits, one of the relevant offences listed in Schedule 4 to the Bill. "Spirits substitution" as it is commonly known in the industry covers such acts as "tipping" by licensees of alternative cheaper, sometimes bootlegged spirits into branded spirits bottles for resale to the consumer in on-licensed premises. The arguments in support of adding these offences include the fact that it probably costs consumers £20 million a year; that it costs the Exchequer £1 million to £5 million a year; and public health because counterfeit spirits could give rise to serious risks to health. Substitution and counterfeit legislation is enforced by trading standards and environmental health authorities and is prosecuted without apparent consistency under the Food Safety Act 1990, the Trade Descriptions Act 1968 and the Trade Marks Act 1994.
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  The penalty imposed on successful conviction is usually a fine of between £50 and £1,000. Currently a conviction has no impact on the justices' licence to sell alcohol that is held by the offender. There is no official communication between the prosecuting court and the licensing justices. By including these offences as relevant offences the court will now be able to order the forfeiture or suspension for up to six months of the personal licence and will be required to notify the licensing authority.
  Amendment No. 65 would make the public performance of a work, knowing that it will infringe copyright, a relevant offence in the list of offences in Schedule 4. During Report stage in this House and in response to concerns, the Government tabled amendments to the Bill which were accepted, and now make certain offences under the Copyright, Designs and Patents Act 1988 relevant offences for the purpose of the Bill. The offences that were included were chosen to deal with the particular concerns which industry had expressed. However, following further representations from the music industry, the Government believe that the list of copyright offences omits one important provision; namely, Section 107(3) of the Copyright, Designs and Patents Act 1988, which provides that:
  "Where copyright is infringed (otherwise than by reception of a broadcast or cable programme)—(a) by the public performance of a literary, dramatic or musical work. or lb) by the playing or showing in public of a sound recording or a film, any person who caused the work to be so performed, played or shown is guilty of an offence if he knew or had reason to believe that copyright would be infringed".
  This is sometimes considered as a possible cause of action by trading standards officers and the Performing Rights Society—for example, against a pub operator who is knowingly using a juke box supplied and filled with counterfeit CDs. It would help the film industry in actions against pub operators showing pirate films. This would make it clear to the offenders that premises licensed for the provision of regulated entertainment or the supply of alcohol are not easy targets for activities that infringe copyright or performer's rights.
  The Government have listened to the industry. Amendment No. 65 underlines how seriously we take the issue of copyright infringement. It will ensure that those who wish to be personal licence holders under the new regime will be subject to scrutiny as a result of committing these offences and should ensure that they are deterred from doing so.
  Moved, That the House do agree with the Commons in their Amendments Nos. 64 to 67.—(Lord McIntosh of Haringey.)
  Baroness Buscombe: My Lords, I rise to support the amendments, particularly those relating to copyright.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  68 Schedule 6, page 140, line 14, leave out "to 133" and insert
  "and 132"
  69 Page 140, line 14, at end insert—
  "In section 133 (miscellaneous provision about new towns), in subsection (1), omit the following definitions—

  (a) "development corporation",

  (b) "the 1964 Act".

  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 68 and 69.
  Moved, That the House do agree with the Commons in their Amendments Nos. 68 and 69.—(Lord McIntosh of Haringey.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  70 Schedule 7, page 150, line 25, at end insert—

  "Common Informers

  In the Schedule—

  Act 1951 (c. 39)

  the entry relating to section 11 of the Universities (Wine Licences) Act 1743, and the entry relating to the Sunday Observance Act 1780."

  71 Page 150, leave out line 41 and insert—

  "in subsection (1), the words "; and accordingly as from that date—" and paragraphs (c) and (e), and"

  72 Page 151, line 45, at end insert—

  "Licensing (Scotland) Act 1976 (c. 66)

  In Schedule 7, paragraphs 9(a), (b), (d) and (f), 10, 11 and 12."

  73 Page 152, line 28, leave out "to 133" and insert "and 132"
  74 Page 152, line 28, at end insert—

  "In section 133(1), the definitions of "development corporation" and "the 1964 Act"."

  75 Page 152, line 37, leave out "29" and insert "29(a)(i)"
  76 Page 153, line 9, at beginning of second column, insert—

  "Section 3(1A)."

  77 Page 153, line 9, at end insert—

  "Sections 17 and 18."

  78 Page 153, line 12, leave out "paragraph 15" and insert
  "paragraphs 2, 3, 6, 7, 8, 14, 15 and 16(a) and the word "and" immediately following it."
  79 Page 153, line 15, leave out ", paragraphs 1(1) and 2 to 5" and insert—

  "paragraph 1(1), in paragraph 1(3), the words following paragraph (c), and paragraphs 2 to 5."

  80 Page 155, leave out line 6
  Lord McIntosh of Haringey: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 70 to 80.
  Moved, That the House do agree with the Commons in their Amendments Nos. 70 to 80.—(Lord McIntosh of Haringey.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  81 Schedule 8, page 158, line 6, leave out ", and to comply with the requirements of sub-paragraph (7),"
  82 Page 160, line 13, after "20" insert ", (Mandatory condition in licences: exhibition of films)"
  83 Page 160, line 19, after "20" insert ", (Mandatory condition in licences: exhibition of films)"
  84 Page 164, line 25, leave out ", and to comply with the
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  requirements of sub-paragraph (6),"
  85 Page 166, line 9, leave out "section 73 (prohibited conditions in club premises certificates) applies" and insert "sections (Certificate authorising supply of alcohol for consumption off the premises), (Mandatory condition in certificates: exhibition of films) and 73 apply"
  86 Page 166, line 14, leave out "section" and insert "sections (Certificate authorising supply of alcohol for consumption off the premises), (Mandatory condition in certificates: exhibition of films) and"
  Lord McIntosh of Haringey: My Lord, I beg to move that the House do agree with the Commons in their Amendments Nos. 81 to 86.
  Moved, That the House do agree with the Commons in their Amendments Nos. 81 to 86.—(Lord McIntosh of Haringey.)
  On Question, Motion agreed to.

Railways and Transport Safety Bill
3.56 p.m.
Report received.
Clause 1 [Meaning of "railway" and "railway property"]:
Lord Faulkner of Worcester Lord Faulkner of Worcester moved Amendment No. 1:
Page 1, leave out lines 6 and 7 and insert—
""railway" means a system of transport employing parallel rails which—

(a) provide support and guidance of vehicles carried on flanged wheels, and

(b) form a track which either is of a gauge of at least 350 millimetres or crosses a carriageway (whether or not on the same level),

but does not include a tramway;
"street" means any, or any combination, of the following—

(a) a highway within the meaning of section 328 of the Highways Act 1980 (c. 66) (interpretation),

(b) a bridleway, carriageway, cycle track, footpath or footway as respectively defined in section 329(1) of that Act (further provisions as to interpretation),

(c) land on the verge of a carriageway or between two carriageways,

(d) land laid out as a way whether it is for the time being formed as a way or not, and

(e) any other place to which the public has access (including access only on making payment);

"tramway" means a system of transport used wholly or mainly for the carriage of passengers employing rails which provide support and guidance for vehicles carried on flanged wheels and in respect of which—

(a) the rails are laid wholly or partly along a street, and

(b) over the whole or part of the system the permitted speed of vehicles operating on it is limited to that which enables the driver of any such vehicle to stop it within the distance he can see to be clear ahead;"

The noble Lord said: My Lords, I apologise for starting what must appear to be a technical and complicated amendment. However, it is important because it deals with the definition of a tramway-which is contained in Clause 1.

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As the Explanatory Notes to the Bill makes clear, for the purposes of Part 1, the definitions of both "railway" and "tramway" adopt those contained in Section 67 of the Transport and Works Act 1992. Unfortunately, the definition in that Act is flawed, and has remained flawed since it went through Parliament in a hurry at the end of the Parliament when the election was called. The flaws were exposed in a working party established by the Chartered Institute of Transport. The Health and Safety Executive was likewise unhappy with the definition and has put forward its own alternative.
What is the problem with the present definition of "tramway"? As I have explained, Section 67 of the Transport and Works Act defines both "railway" and "tramway". It does so in a way which stipulates that if a rail transport system is not a tramway, then it must be a railway. So the definition of a tramway also has implications for the definition of railway. The definition of "tramway" in the 1992 Act is as follows:
"'tramway' means a system of transport used wholly or mainly for the carriage of passengers and employing parallel rails which…provide support and guidance for vehicles carried on flanged wheels, and…are laid wholly or mainly along a street or in any other place to which the public has access only on making a payment".
Your Lordships should note that this definition contains the phrase,
"wholly or mainly along a street".
Not only does this allow vehicles of the same type, and operated in the same manner, to be classed as either a railway vehicle or a tramway vehicle, depending on the proportion of street-running that a particular system may possess, it can also mean that a system which at one stage may fall within the definition of tramway may later, if extended, fall within the definition of railway, or vice versa, according to whether the extended system changes the balance of the proportion of street running. As railways and tramways have different legal regimes, the regime governing a particular system may therefore change overnight, perhaps with the possibility of further fluctuations at a later date. This is surely bizarre and needs to be corrected.
If the decision is not taken to correct the definition in the current Bill, the present flawed definition will become even more deeply embedded in legislation, leading to ever-increasing problems. The Bill gives some examples. Graphic illustrations can be found in Clauses 14(2) and 76(2), which provide that the application to tramways of Parts 1 and 3—they respectively deal with the setting-up of the rail accident investigation branch and reconstituting the British Transport Police—are to be disregarded in relation to Scotland. There is therefore the possibility that the territorial application of the Bill in respect of railways and tramways may hover back and forth between England and Scotland. That is surely a unique and unacceptable state of affairs.
When the Bill was debated in another place, the Minister there suggested that the issue did not arise, as in Scotland there are no tramways. However, well-developed proposals are afoot for tramways in both Edinburgh and Glasgow. so the issue is a real one.
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It is for those reasons that the Confederation of Passenger Transport, with the support of the Passenger Transport Executive Group and Her Majesty's Railway Inspectorate, has drawn up the revised definition that I have tabled. That definition would take account of two essential features that every tramway must possess: elements of street running and of line-of-sight operation. That latter characteristic was emphasised in Committee by the noble Earl, Lord Mar and Kellie. But the important change would be that the definition would no longer depend for its application on the proportion of street running involved, so overcoming the problems which I have outlined associated with the current definition.
The definition of "railway" in my amendment offers no change from the definition in the Transport and Works Act. It has been incorporated here simply because the removal of the existing wording would otherwise leave the Bill with no definition of a railway. A definition of "street" has been introduced simply because that term is integral to the concept of tramway as defined in the amendment. I beg to move.
4 p.m.
Viscount Astor: My Lords, my Amendment No. 3 is grouped with the amendment. Noble Lords owe a debt of gratitude to the noble Lord, Lord Faulkner, for tabling the amendment, because it certainly clears up some of the difficulties that we discussed at an earlier stage. My particular concern relating to tramways was about the rail accident investigation branch. I asked the Minister at a previous stage whether it would investigate tramways, because under the Bill as it stands it seemed to me that that would not be the case. He said that if there were no rail implications the inspector would not do so, and that if the tram were running on the road, as it were, it might be a matter for the police.
That response seemed somewhat unacceptable, as a tram runs on the road for most of the time—that is the definition of it; it also runs on rails. If it did not, it would be a powered bus. For a short part of a journey, a tram might run through areas where cars do not go, but that is not so for 99 per cent of the time. It seems important that the RAIB should be able to investigate any incident or accident.
The Minister was kind enough to write to me and say that, under Clause 7(1)(b), the RAIB can,
"decide on a case by case basis whether or not to investigate any accident, serious or non-serious, or incident on a tramway"—
he then added:
"The police and the RAIB will work closely to ensure that the appropriate body investigates".
We all know that sometimes government bodies work closely together, and sometimes they tend to work rather far apart. My concern is that there should be adequate provision for ensuring that there is always an investigation and a mechanism for deciding who should make that decision. That is why I tabled my amendment.

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The Government could help me in one way; namely, if there were a system of automatic notification to the RAIB in the event of an incident or accident. In those circumstances, the RAIB would at least be aware of the facts and it could decide whether it was an appropriate matter for the branch or the police to investigate. What worries me is the thought of an accident involving a tram—perhaps if it hit a car or a bicycle—where a policeman comes along, scratching his head and wondering whether it is for him, or the RAIB, to investigate.
There needs to be some clear mechanism, because, as I have said before, there are a number of overlapping bodies in the Bill. There are also areas where something might slip between the two organisations. That is what I am anxious to avoid. I hope that the Minister can help me. I certainly support the principle of the amendment tabled by the noble Lord, Lord Faulkner of Worcester.
Lord Berkeley: My Lords, I would like very much to support the amendment. My noble friend Lord Faulkner of Worcester has achieved a great success with it and all the work that has gone into it. I congratulate him. There are certain railways where trams and heavy rail, be it passenger or freight, run on the same line. I imagine that that is well covered by the amendment. His concept of what would happen if a tramway were built across the frontier between England and Scotland—in Carlisle or on the east coast—is interesting. It also demonstrates, if we need any further evidence, that the transport responsibilities in Scotland and the lack of a transport and works Act probably need to be looked at in the future.
Lord McIntosh of Haringey: My Lords, I congratulate my noble friend Lord Faulkner on the diligence with which he has drafted a wholly new definition of "tramway". The amendment would define tramways in a different way from the existing legislation; namely, the Transport and Works Act 1992. I am certainly prepared to talk with him about his definition before Third Reading, but I have huge problems with accepting it now.
The major problem is that "tramway" occurs in dozens of pieces of primary and secondary legislation. If we were to amend it here, we would have different definitions of tramway on the statute book. That would be confusing, or even dangerous. We would not consider changing the definition of tramway without giving proper thought to the desirability of the change and the consequences to other pieces of legislation. We certainly could not do it at this stage of the Bill.
It is by no means clear what the effect of the change would be and, if there were an effect, how significant it would be. We are not aware of any practical difficulties arising in the 11 years that the definition has been in use. I have said that I am willing to talk to my noble friend Lord Faulkner about it. I hope that he will be prepared to tell me what the effect of the change would
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be—we cannot work it out—and whether there is likely to be any practical effect. We do not cover Scotland because there are no tramways in Scotland.
I am grateful to the noble Viscount, Lord Astor, for the way in which he spoke to Amendment No. 3. He wanted a particular assurance that all tramway accidents would be notified to the RAIB. I can give him that assurance; we will do that in regulation.
Lord Faulkner of Worcester: My Lords, I am most grateful for the support expressed by the noble Viscount and by my noble friend Lord Berkeley for my amendment. I should have said earlier that I have a great deal of sympathy with what the noble Viscount seeks to do in Amendment No. 3.
I appreciate what my noble friend said in response. I look forward to having a discussion with him. I shall bring in people cleverer than myself who will help him and his officials to sort out the implications of redefining a tramway. Of course, Clause 1(2) gives the Secretary of State the power to make regulations to amend the clause. Rather than attempt to add a prescriptive amendment on "tramway" to the Bill, the Secretary of State might be prepared to use that power. On the basis that we are going to continue our discussions, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 [Investigations]:
Viscount Astormoved Amendment No. 2:
Page 3, line 12, at end insert—
"(1A) The Rail Accident Investigation Branch may investigate any railway situation which it judges to have the potential to cause an accident."
The noble Viscount said: My Lords. in Committee, my noble friend Lord Dixon-Smith commented that my amendment was too widely drawn and suggested that he would have supported my amendment if it had referred to the potential to cause an accident rather than the potential for fatality or injury. Indeed, the noble Lord, Lord Bradshaw, said at that stage that the amendment was too broad in its scope. We subsequently took it away, and redrafted it to say:
"The Rail Accident Investigation Branch may investigate any railway situation which it judges to have the potential to cause an accident".
Therefore, there does not have to be an actual incident or accident for the RAIB to decide that something could cause danger. That is important, because while the rail accident investigation branch is responsible for investigating incidents, it is also, as the Minister said at Second Reading, responsible for safety overall. We do want to make sure that it has the power to investigate in the areas concerned. The Minister may tell me that it does, and that it is covered by another clause of the Bill. If he can give me that assurance, I should be happy to withdraw the amendment. I beg to move.
Lord McIntosh of Haringey: My Lords, I can certainly give that assurance. Clause 2(4) says that regulations under subsection (2) making provision about what is to be treated as an incident may in particular include an event or omission which does not

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cause damage or loss, but which might do so in different circumstances. That is the precise purpose of the amendment, and it is therefore unnecessary.
Viscount Astor: My Lords, I am grateful to the Minister. That means that the rail accident investigation branch has the power and jurisdiction. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 3 not moved.]
Lord Bradshawmoved Amendment No, 4:
Page 3, line 18, at end insert "not later than twelve months following an accident"
The noble Lord said: My Lords, this amendment and several like it touch on the subject of whether the chief inspector of rail accidents is independent. We remain extremely concerned about that. That is not because the Government have any intention to make this person subservient to anyone else, but it is a fact that various legal processes can be used to delay the publication of a report on an accident. These are often employed at the instigation of insurance companies which are pursuing civil or criminal actions and believe that the information contained in the report may prejudice their case.
There is an overwhelming desire in the country to move, following any accident, to know its cause and to take remedial action straight away. If an airliner comes down and the Air Accident Investigation Branch finds metal fatigue or that something has gone wrong with the engine, a report is made within weeks and all airliners arc checked for that fault. I know that the report on the "Solway Harvester" ship was delayed, after investigations had ended, at the behest of both British and foreign lawyers who are behind insurance companies.
The purpose of the 13ill will be vitiated unless we insert a clause to say that a report will be published in a given period. My amendment specifies 12 months. I have been involved with many railway accidents, and the real cause was known in almost every one. All sorts of recommendations may be made afterwards—to modify signalling, change sightlines, improve training, and so on—but those are supplementary to the accident.
I ask the Minister to respond firmly on the issue of reports that are delayed again and again at the behest of some lawyer or other. I beg to move.
4.15 p.m.
Lord Berkeley: My Lords, I support the amendment. I too have had several discussions with investigation boards and confidential reporters from marine industries. The noble Lord, Lord Bradshaw, is correct: the fear of legal action often causes significant delays to the publication of these reports, which after all are there to find the causes of accidents in the public interest and to recommend means of preventing their reoccurrence.
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A statutory duty on the inspector to publish his report within, say, 12 months, would provide tremendous strength with which to resist legal challenges. It is in the public interest that such a period should be stated. We can debate whether 12 months is right, but the principle is important. The noble Lord, Lord Bradshaw, cited three-and-a-half years for the publication of the report on the "Solway Harvester"; accident reports must be published much more quickly, and the amendment is a good way of doing it.
Lord McIntosh of Haringey: My Lords, all of the amendments on the railway accident investigation branch are helpful; they are intended to strengthen the powers of the branch, and to make sure that it does the work that the Government intend more effectively. I treat them all as friendly amendments. That is true of Amendments Nos. 6 and 7 on control of the premises, and of Amendment No. 5 on the protection of witnesses. I will not say it again.
Clause 7(4) contains an obligation on the branch to report to the Secretary of State on the completion of an investigation—not 12 months after. The amendment would impose a condition of 12 months after the accident or incident; we cannot handle that. It may be an extremely complex event; scientific tests may have to be carried out which take more than 12 months, and so on. It is better to get a full and detailed report after 14 months than a hurried and incomplete one before the year is up.
The obligation to produce a report on completion of an investigation is a sufficiently clear signal to the rail accident investigation branch that it must get a move on.
Lord Berkeley: My Lords, before my noble friend sits down, will he clarify one thing? I accept his point that Clause 7(4) requires the branch to report to the Secretary of State on completion of the investigation. Does that mean that the Secretary of State will publish the report immediately? The amendment is really about the publication of the report rather than its submission to the Secretary of State.
Lord McIntosh of Haringey: My Lords, the Secretary of State will certainly publish it; whether he or she will wish to respond to the report before publishing it is another matter which does not need to be laid down in legislation.
As regards the 12-month point, we do propose to make regulations under Clause 9(2)(g) to specify that this should normally be within 12 months.
Lord Bradshaw: My Lords, I thank the Minister for that reply. In my experience, the cause of even the most complicated accidents, such as those at Southall and Ladbroke Grove, is known within two or three days.
Lord McIntosh of Haringey: My Lords, an interim report can be published.
Lord Bradshaw: My Lords, with respect, that is precisely my point. We can discuss this again before Third Reading. However, I am most anxious that if

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possible we can do away with the legal impediments which mean that the work is completed, the investigation is done but some lawyer finds some method of getting it locked up either in this rail accident investigation branch cupboard or the Secretary of State's cupboard, whichever it is, thus preventing the public, who need to know, from learning what is happening because it happens to suit the claim of one insurance company as opposed to another that the facts are kept from us.
I am adamantly opposed to the convenience of insurance companies being put before the needs of the general public. That is the burden of what I say. I press the Minister at least to think hard about the matter if I do not press the amendment.
Lord McIntosh of Haringey: My Lords, I am not in a position to say more. I have said that we shall publish regulations to say that the period should normally be 12 months but we do not want to tie ourselves down in cases that we cannot yet anticipate. We have already given a firm commitment that these reports will be published.
Lord Bradshaw: My Lords, I have listened to the Minister's comments. I shall think about what is said but I shall take advice on whether the issue should be pressed at Third Reading. It is a matter of grave concern to us. I hope that the Minister realises that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 [Investigator's powers]:
Lord Bradshawmoved Amendment No. 5:
Page 4, line 26, at end insert—
"( ) None of the information obtained under this section shall be divulged to any other party.
( ) On completion of any report by the Chief Inspector, all information used in its preparation shall be destroyed."
The noble Lord said: My Lords, Amendment No. 5 is similar to the previous one and, again, is meant to be helpful. I am sorry to say that this again affects our friends in the legal profession. The basis of reporting to the rail accident investigation branch is that it will interview people without the evidence that people give being on the record from the point of view of a prosecution; that is, people may speak freely to the rail accident investigation branch. They are not under caution. Nothing they say can be produced in evidence in a court of law. I believe that that is more or less the basis on which the confidential reporting systems work.
However, I am concerned that again, subsequently, the names and addresses of people who have given evidence will get into the public domain through the legal processes and that people will not feel they are speaking in confidence to the chief inspector and therefore the system will fail.
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The purpose of the two amendments is to strengthen the fact that the information is given in confidence and that the chief inspector may after completion of the report destroy the information that he or she has received. I beg to move.
Lord Berkeley: My Lords, again I support the amendment. As the noble Lord, Lord Bradshaw, and my noble friend Lord McIntosh of Haringey said, it is designed to ensure that the accident investigation people have the best possible opportunity of coming up with a solution quickly. Having talked to people in the marine and air industries and in the same business, it is clear that the best information is obtained from meeting people who have been involved or seen anything very soon after an accident and who are confident that any information given will be in total confidence. By so doing, it is easier to get to the root cause of any accident or incident. Obviously, that is preferable before any other authority such as the police starts running around cautioning people.
I believe that the only way such confidence will be encouraged in the rail industry is if all the people in the industry know that anything they say will not be divulged to third parties and, as the noble Lord, Lord Bradshaw said, not even their names and addresses are divulged. That is the purpose of the amendment.
For the record, this does not apply to material things such as bolts because after the accident and investigation people have carried out an inspection, it may well be that in certain circumstances the police or the Health and Safety Executive might want to inspect them, which would be reasonable.
The way in which the RAIB will work effectively is by listening to what people say in confidence about their first impressions. If other authorities such as the police and the HSE feel they need to interview people they can do so in the usual way completely separately under caution with lawyers, or whatever.
This is an important principle. No doubt my noble friend the Minister will tell the House whether the wording is correct. This is a difficult subject, but the amendment is an attempt to surround the RAIB with as much access to confidential information as possible without it leaking out.
Viscount Astor: My Lords, I am sympathetic to part of the amendment tabled by the noble Lord. Lord Bradshaw, but I have some questions for the Minister. Following an accident which the RAIB investigates, for example, there could then be some form of prosecution. At that stage, not unreasonably, the prosecuting authorities should perhaps know who had given evidence. My question is: what has happened in the past in terms of aircraft, for example, and the Civil Aviation Authority in such situations?
I support the noble Lords, Lord Bradshaw and Lord Berkeley, in the principle that a person giving evidence needs to be free to do so without constraint; otherwise we would not get to the bottom of such matters. That is important. I am not sure about the

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names remaining merely confidential; perhaps they should be destroyed. If there is some form of ongoing prosecution, such information could be very important to the prosecution or to the defence. I pose that question to the Minister, but I believe that the noble Lord, Lord Bradshaw, raises an important point.
The Earl of Mar and Kellie: My Lords, too, support the amendment. It proposes a twin-track approach but I think it would be valuable for railway staff to be able to speak in confidence to the rail investigator and subsequently speak on another occasion to either the British Transport Police or to the Health and Safety Executive.
Lord McIntosh of Haringey: My Lords, I sympathise with the concerns which give rise to the amendments. The noble Lord, Lord Berkeley, is right that there are two kinds of evidence. There is technical and hard evidence, such as the condition of bolts, or brake readings and suchlike. There is no reason why that should not be shared with the police and the Health and Safety Executive or anyone else who has a legitimate concern. The second kind of evidence consists of witness statements. It is enormously important that witness statements should be made freely on the express assurance that they will not he shared.
The purpose of all that is to prevent rail accidents and to learn safety lessons. Witnesses must know that they can speak freely and frankly to RAIB inspectors, even in the stressful circumstances in the immediate aftermath of a crash without having to worry that something they say may be used against them. Witness statements given to the RAIB will not be disclosed to any other person by the RAIB—here comes the catch— unless it is ordered to do so by the court. That is an issue that we simply cannot move on because we are not in control of the courts. If the courts decide, for whatever reason—if there is any query about whether the reason is good that could be the subject of an appeal— that the source must be disclosed, then it must be disclosed. We cannot prohibit that by passing legislation.
However, the court will take into account—I believe this is the assurance that the noble Lord, Lord Bradshaw, seeks—the general public interest in disclosure, against that of the RAIB regime and the Human Rights Act. But in deciding whether to order disclosure the court will consider the adverse consequences that an order to disclose would have on people's confidence in the confidentiality of the RAIB regime. We cannot accept the amendment in the form in which it is proposed.
Similarly I do not believe that it is appropriate that the RAIB should be required to destroy information given to it or used in preparing its reports. At the very least, investigations may need to be re-opened under the provisions of Clause 7(8)
As to the comparisons with the Air Accidents Investigation Branch and the Marine Accident Investigation Branch, my understanding is that the RAIB is not required to disclose names, but in practice
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I believe that it does. I hope that answers the points made. For the purposes of the regime we are determined to maintain as much confidentiality as possible, but there is a point beyond which we cannot go.
4.30 p.m.
Viscount Astor: My Lords, before the Minister sits down and before the noble Lord, Lord Bradshaw, responds, I apologise to the noble Lord, Lord McIntosh, as I forgot to ask him one question. In the event of a public inquiry, which we have had into rail accidents, does the issue of the evidence being disclosed at such an inquiry have to go before a court? Does the noble Lord know how the matter would work in that situation?
Lord McIntosh of Haringey: My Lords, there are different kinds of public inquiries under different remits and some of them involve subpoenas to witnesses and some do not. I shall have to write to the noble Viscount on that point.
Lord Bradshaw: My Lords, I thank the Minister for his reply. I assume that if this matter comes to court, the department will fight the public interest case with all vigour, including the precedential point that would be set if something is disclosed, as people will consider that future accidents will result in disclosure. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 9 [Regulations]:
Lord Bradshawmoved Amendment No. 6:
Page 5. line 47, at end insert—
"( ) The Secretary of State shall make regulations concerning the management of a site being investigated to ensure that the Chief Inspector has overall management control of the site while his investigations are in progress."
The noble Lord said: My Lords, this amendment seeks to provide that the regulations are made with the consent of chief police officers, the British Transport Police and the Health and Safety Executive and that the regulations will make it very clear to everyone that, in the investigation of an accident, the RAIB will have precedence. When investigating rail accidents—I imagine that I am the only person here who has done so—it is extremely important that one arrives at the site very quickly so that one is able to take the brake pressure in the cylinders before it has been destroyed, which will happen within half an hour or a couple of hours. If one does not arrive at the site quickly the evidence starts to leak away. Rust marks and matters of that kind are extremely important, but a shower of rain will take them away. If such places are declared scenes of crimes or if the precedence lies with a health and safety inspector who keeps people away for several hours, useful evidence can so easily be destroyed.

985
In moving the amendment I seek to ensure that protocols are agreed with the people concerned, clearing the way for rail accident inspectors to arrive as quickly as possible at the scene of the accident—not at the perimeter of the site—although they cannot be everywhere. I beg to move.
Lord Berkeley: My Lords, in supporting Amendment No. 6 I shall speak also to Amendment No. 7 standing in my name and that of my noble friend Lord Faulkner. Both amendments seek to achieve the same point. Amendment No. 7 is designed to cover the same matter as Amendment No. 6 but in cases where the chief inspector has decided not to become involved in an accident.
As we have discussed at previous stages of the Bill, it is likely when there is an incident or an accident that the local police force will arrive first. The amendments are designed to encourage the local police to put a fence around the accident, if that is appropriate, to protect the site and as I believe they are required to do for air accidents. The instruction is to rope off the site and to wait. They should rope it off and not fiddle with the evidence inside. If the RAIB is to be involved its inspectors will be there and, as the noble Lord, Lord Bradshaw, said, they will have the expertise to deal with it. If it is not to be involved, the British Transport Police have an enormous amount of expertise in such matters, and they would say, "Right, we can start the trains running again; it is not a problem", or they would look at the situation with their particular railway experience.
The worst example of which I am aware is that a year or two ago a Virgin train in Scotland was diverted onto a branch line where it was moving at about five miles per hour when it derailed because the track collapsed underneath it. No one was hurt, but of course the train could not move. Virgin was very quick to get buses to take the passengers away, but unfortunately the local police took about five hours to interview every passenger on the train in case a crime had been committed. That is probably the worst example, from which I believe we have all learned. It is important that those who are not specialists should confine their activities at the scene of an incident or an accident to putting a fence around the site, protecting it and waiting for the specialists.
Lord Faulkner of Worcester: My Lords, I support the two amendments and as my noble friend Lord Berkeley said, I have put my name to Amendment No. 7. He has shared with your Lordships a story about an incident in Scotland. Another incident in Scotland also makes the point. It was a minor case—sadly not minor for the one individual concerned—but it proves why it is important that there is a proper hierarchy of who is responsible when something happens on the railways.
On 29th April this year, sadly there was a suicide on the line at Dunbar. The deputy chief constable of the British Transport Police happened to be travelling on the train from Edinburgh to London when the train struck
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the unfortunate person. The emergency brakes were applied, the train came to a halt, and the driver confirmed to the deputy chief constable, Mr Tony Lake, that it was indeed a suicide. There was no suggestion that the person had been tied to the track or was in any way the victim of a crime.
However, as the matter was being sorted out on the spot, two officers from the Lothian and Borders police turned up and declared it a scene of crime and were proposing to bring in SOC officers. The implications of that, as my noble friend Lord Berkeley said, would have been a very serious delay. Happily, because Mr Lake insisted on taking control of the occasion, he said that he was in charge. He put a tarpaulin over the body, moved it 300 yards and told the driver to move the train. That avoided a delay that could easily have lasted many hours, which in today's penalty regime on the railways would have incurred huge costs for a number of people .
The purpose of the story is that when an incident takes place on the railways, particularly if it does not involve the RAIB, it is important that the BTP, with all their expertise, should be given primacy. That is the purpose of the amendment.
Lord McIntosh of Haringey: My Lords. I entirely agree that it is essential that the RAIB should have control of the accident or incident site, which is exactly what the Bill provides.
Clause 8(5)states:
"Subsection (6) applies where—

"(a) the Rail Accident Investigation Branch is conducting an investigation by virtue of section 7 in respect of an accident or incident, and

(b) a question arises as to the desirability of action which any other person proposes to take for the purpose of investigating the accident or incident".

Subsection (6) then applies that the question of the desirability of action by any other person,
"may be determined by—

(a) the Chief Inspector of Rail Accidents, or

(b) an inspector of rail accidents acting on behalf of the Chief Inspector".

We have exactly the provision when it is an issue of whether to move a train, fence things off or to do anything which anyone else may wish to do for other reasons. Any question which arises as to the desirability of action is determined not by anybody else, but by the rail accident investigation branch.
I do not believe that that meets the case of the deputy chief constable of the British Transport Police because I presume that in the case to which the noble Lord, Lord Faulkner, referred the RAIB had not actually reached the scene by that time. However, it meets the thrust behind these two amendments.
Lord Berkeley: My Lords, my noble friend has given a very lucid explanation of subsections (5) and (6) It could happen that if the chief inspector or a representative takes an hour or two to get to the scene, the local police will not only have placed a barrier around the site but will also have started poking

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around. Are any instructions to be given in regulations, or by some other means, to the local police forces around the country not to do that?
Lord McIntosh of Haringey: My Lords, there will be a protocol between the chief inspector and the Association of Chief Police Officers. The chief inspector is due to meet ACPO shortly to discuss these practical issues which will arise during an investigation.
Lord Bradshaw: My Lords, I thank the Minister for what he has said. It goes a long way to meet the concerns which I have expressed. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 10 [Requirement to investigate]:
[Amendment No.7 not moved.]
Clause 21 [Chief Constable]:
Lord Bradshawmoved Amendment No.8:
Page 9, line 32, at end insert—
"( ) Regulations under subsection (4) shall not come into effect before 31st December 2004."
The noble Lord said: My Lords, this amendment is meant to be helpful and touches on the fact that there is quite a lot of work to do both in the recruitment and training of railway accident inspectors and on the agreement of the various protocols which will surround their work.
I am very mindful of the fact that once a chief inspector is appointed, many people, including the press, will expect a kind of all-singing, all dancing organisation to be there the day after. We all know that it takes quite a long time for an effective organisation to be built up. My purpose in moving this amendment is to allow sufficient time for the protocols and people necessary to be put in place. I do not want a case next week of a bad railway accident and the Daily Mail screaming "Where is the rail accident investigation branch?" As far as I can tell at the moment, it consists of one person who is designate and no protocols, staff or training. I realise that this is probably a point for discussion. I beg to move.
4.45 p.m.
Lord Berkeley: My Lords, I support this amendment. In discussions with the Marine Accident Investigation Branch we were told that that organisation came into being two days before the "Bowbelle" disaster on the Thames. There was great expectation that it would be able to look into that accident. There have been suggestions that the RAIB might come into effect, if that is the right word, on 1st April next year. I hope that the Government will give the chief inspector the necessary time to get the protocols and everything else into line, as the noble Lord, Lord Bradshaw, said. It is desperately important that the RAIB starts off on a high note with maximum
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credibility, a properly trained staff, and the capability to do this work. In the meantime there has to be some interim arrangement in which I am sure that everyone will co-operate to ensure that everything goes well. It is desperately important that the organisation starts off in the right way.
Lord McIntosh of Haringey: My Lords, 1 am at a loss. This amendment says that the regulations for the suspension of the chief constable of the British Transport Police shall not come into force until 31st December 2004. That cannot be what the noble Lord, Lord Bradshaw, meant. I do not believe that he meant it to be in Clause 21. Perhaps the noble Lord would like to table the amendment at Third Reading in the right place and we can talk about it there.
Lord Bradshaw: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 27 [Civilian employees]:
Lord Bradshawmoved Amendment No. 9:
Page 12, line 32, at end insert—
"( ) For the purpose of employing community support officers under section 38 of the Police Reform Act 2002 (c. 30) (police powers for police authority employees)—

(a) the Authority shall be considered a police authority;

(b) the Police Force shall be considered a police force: and

(c) the Chief Constable shall he considered a chief officer of police."

The noble Lord said: My Lords, we turn now to the Police Reform Act. There are other amendments grouped with this in the name of the Minister and they may touch on what I have to say.
We are very anxious that the British Transport Police should enjoy the same powers as other police forces in terms of their ability to employ community support officers, civilian employees and special constables, if that is the wish of the police authority, so that the British Transport Police are not treated as some kind of poor relation and a force apart, but as one of the police forces of this country and empowered to do their job with all the tools which we can put at their disposal. I beg to move.
Lord McIntosh of Haringey: My Lords, without curtailing debate, I shall speak to Amendment No. 10 because it does exactly what Amendment No. 9 is intended to do, only better. Our amendment will allow the British Transport Police to deploy community support officers and investigation, detention and escort officers as they want to. It brings the British Transport Police fully into line with Home Office police forces as regards these kinds of civilian officers.
Viscount Astor: My Lords, from this side of the House we are grateful to the Minister for bringing forward his amendment, which I believe will satisfy the noble Lord, Lord Bradshaw, and perhaps also the noble Lord, Lord Faulkner of Worcester.
Lord Faulkner of Worcester: My Lords, it certainly does. Indeed, it goes further than I dared hope that the

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government amendment would. I was delighted to hear what my noble friend said. I am sure that the British Transport Police will be grateful that they are being treated exactly on all fours with the 43 Home Office forces.
Lord Bradshaw: My Lords, I thank the Minister for what he has said and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 10:
After Clause 27, insert the following new clause—
EXERCISE OF POWERS BY CIVILIANS

(1) The following provisions of the Police Reform Act 2002 (c. 30) shall apply in relation to the Police Force as they apply in relation to other police forces—

(a) section 38 (police powers for police authority employees),

(b) section 39 (police powers for contracted-out staff),

(c) section 42 (supplementary),

(d) section 45 (code of practice),

(e) section 46 (offences),

(f) section 47 (interpretation), and

(g) Schedule 4 (powers exercisable by civilians).

(2) For the purpose of subsection ( 1 ) the provisions specified in that subsection shall have effect with any necessary modifications and, in particular—

(a) the provisions shall have effect as if a reference to a police force were a reference to the Police Force,

(b) the provisions shall have effect as if a reference to the chief officer of police of a police force were a reference to the Chief Constable,

(c) the provisions shall have effect as if a reference to a police authority were a reference to the Authority,

(d) the provisions shall have effect as if a reference to a constable were a reference to a constable of the Police Force,

(e) section 45 shall have effect, except in relation to a code which is expressed to apply for the purposes of that section in its application both by virtue of this section and otherwise, as if for subsection (3) there were substituted a requirement to consult the Authority and the Chief Constable, and

(f) Schedule 4 shall have effect as if a reference to the relevant police area or a police area were a reference to—

(i) any place in England or Wales where a constable of the Police Force has powers by virtue of section 30(1)(a) to (f) of this Act, and

(ii) for a purpose connected to a railway or to anything occurring on or in relation to a railway, any place in England and Wales."

On Question, amendment agreed to.
Clause 73 [Regulations and orders]:
Lord McIntosh of Haringeymoved Amendment No. 11:
Page 30, line 40, leave out subsection (4).
The noble Lord said: My Lords, this amendment and Amendment No. 20 are in response to recommendations made by the Delegated Powers and Regulatory Reform
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Committee. Amendment No. 11 would ensure that any order brought forward by the Secretary of State to vary the upper and lower limits on the number of people on the proposed British Transport Police Authority would be subject to the negative procedure in Parliament.
Amendment No. 20 would require the Health and Safety Executive levy to be subject to the affirmative resolution procedure the first time it is implemented before reverting to the negative procedure thereafter. As the Bill is currently drafted, the levy would be subject to the negative procedure on every occasion including the first. We are in this way complying with the wishes of the committee. I beg to move.
On Question, amendment agreed to.
Clause 76 [Extent]:
Lord McIntosh of Haringeymoved Amendment No. 12:
Page 32, line 24, at end insert—
"( ) The powers exercisable by virtue of section (Exercise of powers by civilians) shall not be exercisable in relation to Scotland."
On Question, amendment agreed to.
Clause 77 [Professional staff on duty]:
Viscount Astormoved Amendment No. 13:
Page 32, line 32, at end insert ", and
(d) a professional harbour master acting in accordance with his duties."
The noble Viscount said: My Lords, when I moved this amendment in Committee, the Minister accused me of widening the scope of the Bill to cover harbour masters, which is the purpose of my amendment. I have since done some homework. The situation is that harbour masters quite often spend large parts of their time acting as a pilot on a ship, where they are covered by Clause 77(1). But they also spend quite a large part of their time in an office, giving instructions to ships of various sizes—for example, very large tankers—on where they should go and how they should enter harbours and restricted shipping lanes. This is an important area in view of the Marine Safety Bill which had its Second Reading last Friday.
In aviation, the Government have gone much wider by including pilots, navigators, engineers, and even cabin crew and air traffic controllers. My amendment does not seem to widen the scope of the Bill to an enormous extent. The Minister said, quite rightly, that harbour masters operate on a two-dimensional basis rather than a three-dimensional one. But they still carry out an important role. They work both in offices and onshore. They should be covered by the provisions, as they give instructions that affect safety. The point is that they instruct shipping. I have had conversations with harbour masters and am assured that they wish to remain sober in the workplace. Should the amendment be agreed, I will be able to visit the harbour without getting chucked over the nearest jetty. I beg to move.
Lord McIntosh of Haringey: My Lords, I said in Committee that the amendment would widen the scope of the Bill beyond the recommendations made by

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Lord Justice Clarke. The amendment would bring the Bill into areas on which there has been no consultation and where there has been no demonstrated need for legislation.
We make the distinction that various people, not just harbour masters, but harbour authority staff, British Waterways officials, Broads Authority officials and all sorts of other staff, have an auxiliary onshore role in controlling navigation but do not have the same role as people on a ship, who are in control of immediate decisions that the ship takes, or air traffic controllers, who virtually take over the controls of aircraft on a minute-to-minute, second-by-second basis, in the analogy that the noble Viscount, Lord Astor, uses. We are talking about a distinction between 80 mg and 20 mg of alcohol—nothing more dramatic. It is the distinction between staff who are in instant, second-by-second control and those who are not. If we extended the provision to harbour masters, we would have to extend it to many others.
All those people, including harbour masters, must be subject to company policies designed to combat alcohol and drug misuse among the workforce. We expect the Marine and Coastguard Agency to do that. That appears to be adequate protection. I have heard of no-one who has suggested that there is any difficulty with that at present. We are tightening up an area where there may well be difficulty. I do not think that the amendment is necessary. I would not wish to see it in the Bill.
Viscount Astor: My Lords, I am grateful to the Minister for his response. I apologise for not saying earlier that I will not be moving Amendment No. 14, which is grouped with this amendment. I am sorry that I failed to convince the Minister. I do not think that he is right in saying that, if the provisions are extended to harbour masters, they must be extended to a whole group of people. The people I seek to include are those who carry out the role of giving instructions. That is a very different job. In the same way as air traffic controllers give instructions to aircraft, harbour masters give instructions to shipping. They should come under the same rules.
4.55 p.m.
On Question, Whether the said amendment (No. 13) shall be agreed to?
Their Lordships divided: Contents, 42; Not-Contents, 100.

Division No. 3

CONTENTS

Ampthill, L.

Colwyn, L.

Anelay of St Johns, B.

Cope of Berkeley, L. [Teller]

Astor, V.

Craig of Radley, L.

Blatch, B.

Craigavon, V.

Bridgeman, V.

Cumberlege, B.

Brougham and Vaux, L.

Dixon-Smith, L.

Burnham, L.

Gardner of Parkes, B.

Buscombe, B.

Geddes, L.

Campbell of Alloway, L.

Henley, L.

Carlisle of Bucklow, L.

Hodgson of Astley Abbotts, L

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Howe, E.

Parkinson, L.

Hylton, L.

Plummer of St. Marylebone, L.

Laird, L.

Rees, L.

Luke, L.

Roberts of Conwy, L.

McColl of Dulwich, L.

Seccombe, B.[Teller]

Maginnis of Drumglass, L.

Selborne, E.

Marlesford, L.

Selsdon, L.

Mayhew of Twysden, L.

Skelmersdale, L.

Noakes, B.

Taylor of Warwick, L.

Northesk, E.

Vivian, L.

Park of Monmouth, B.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Hoyle, L.

Ahmed, L.

Kennedy of The Shaws, B.

Allenby of Megiddo, V.

Lea of Crondall, L.

Alli, L.

Levy, L.

Amos, B.

Lipsey, L.

Andrews, B.

McCarthy, L.

Archer of Sandwell, L.

Macdonald of Tradeston, L.

Ashton of Upholland, B.

McIntosh of Haringey, L.

Bassam of Brighton, L.

McIntosh of Hudnall, B.

Berkeley, L.

MacKenzie of Culkein, L.

Bernstein of Craigweil, L.

Mackenzie of Framwellgate, L.

Blackstone, B.

Mason of Barnsley, L.

Borrie, L.

Massey of Darwen, B.

Brooke of Alverthorpe, L.

Merlyn-Rees, L.

Brookman, L.

Milner of Leeds, L.

Carter, L.

Mitchell, L.

Christopher, L.

Morgan, L.

Clarke of Hampstead, L.

Morris of Manchester, L.

Clinton-Davis, L.

Parekh, L.

Cohen of Pimlico, B.

Pitkeathley.B.

Corbett of Castle Vale, L.

Plant of Highfield, L.

Crawley, B.

Prys-Davies, L.

Darcy de Knayth,B.

Ramsay of Cartvale, B.

Davies of Oldham, L. [Teller]

Rea, L.

Dean of Thornton-le-Fylde, B.

Rendell of Babergh, B.

Desai, L.

Rodgers of Quarry Bank, L.

Dholakia, L.

Rogers of Riverside, L.

Dormand of Easington, L.

Roll of Ipsden, L.

Erroll, E.

Rooker, L.

Evans of Parkside, L.

Sawyer, L.

Evans of Temple Guiting, L.

Scotland of Asthal, B.

Evans of Watford, L.

Sewel, L.

Farrington of Ribbleton, B.

Sheldon, L.

Faulkner of Worcester, L.

Simon, V.

Filkin, L.

Slim, V.

Gale, B.

Stallard, L.

Gavron, L.

Symons of Vernham Dean, B.

Gibson of Market Rasen, B.

Temple-Morris, L.

Gordon of Strathblane, L.

Thornton, B.

Gould of Potternewton, B.

Turner of Camden, B.

Graham of Edmonton, L.

Uddin, B.

Grocott, L.[Teller]

Walker of Doncaster, L.

Hamwee, B.

Warner, L.

Harris of Haringey, L.

Weatherill, L.

Harrison, L.

Wedderburn of Charlton, L.

Haskel, L.

Whitaker, B.

Hayman, B.

Whitty, L.

Hilton of Eggardon, B.

Wilkins, B.

Hollis of Heigham, B.

Williams of Elvel, L.

Howells of St. Davids, B.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.6 p.m.
[Amendments Nos. 14 and 15 not moved.]
Viscount Astormoved Amendment No. 16:
Page 33, line 7, after "vessel" insert "or on a vessel with a crew of three or less".

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The noble Viscount said: My Lords, at Committee stage we debated Clause 77(5) where fishing vessels have a defence because sometimes they have a small crew. They are at sea for a long time. It may be necessary for someone to take a drug for medicinal purposes to enable them to get home, thereby not endangering the rest of the crew and any passengers. We debated this concept and I understand why the fishing vessel exemption was included. However, there are similar occasions where fishermen, due to the sad decline of fishing stocks around our shores, do a lot of other things. Sometimes they act as fishermen and sometimes not. They may take people on trips round islands. They may take people sightseeing or mackerel fishing, even diving. They do a variety of things. Sometimes the distances are just as long as when they were fishing. Some boats have a crew of three, two or even one. A licensed operator can run a charter boat with a DTI licence to carry up to a dozen people with a crew of one. If the captain needs to take a drug on medical advice he should be able to do so and have the same defence as those in the fishing industry.
This is not about large ships. They have large crews and there would be someone else to take over the responsibility. The defence was originally put in to protect crews of small fishing vessels. There has been an explosion round our shores of small vessels plying various trades. They should have a similar defence. What we do not want is for the skipper of a charter boat with eight or 10 passengers on a 12-hour trip being reluctant to take along medicine in case it would be an offence. But by not doing so he could endanger the lives of his passengers.
The Minister has been kind enough to discuss these issues with us between Committee and Report stage. I am not sure whether this amendment is the right one but it is an important issue. I look forward to the response of the Minister. I beg to move.
Lord McIntosh of Haringey: My Lords, I am relieved that the noble Viscount, Lord Astor, did not move Amendment No. 15, because I have a long speaking note about fishing vessels. Amendment No. 16 is defective. The number "three" is arbitrary. In our opinion, simply stating a maximum crew size does not cover the various cases. There are issues of time spent at sea and the availability of other crew members to take over duties.
The fishing exemption covers small vessels, with small crew, undertaking long voyages. There may be circumstances in which it is better for crew members to take their medication—even where there is a warning of drowsiness and against operating machinery or driving—rather than not taking medicine and risk being in a worse state.
If one is in charge of the kind of vessel that the noble Viscount, Lord Astor, is talking about—a single person going out with someone else, a customer fishing, diving or whatever, or carrying a passenger from one place to another, that person will make a judgement about whether they are better off taking a
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drug. I cannot imagine that if a single sailor comes back on a small ship and has taken a drug, he will be tested for drugs and accused of breaking the law.
We do not want to define circumstances to allow this medical defence on certain commercial ships. If we had to do so, we would have to describe the circumstances in which such a ship could be operated safely in all foreseeable situations under normal operating conditions but at a manning level that was so low that the seafarer who was under the influence of a medicinal drug had to remain on duty in order to maintain a safe ship.
It is not a problem for commercial ships over 500 gross tonnes, because the marine and coastguard agencies apply the merchant shipping hours of work regulations. They state that the minimum safe manning levels are those required for all foreseeable circumstances and working conditions to permit the safe operation of the ship under normal operational conditions.
Commercial ships under 500 gross tonnes that operate with small crews are likely to be operated on shorter voyages in coastal waters close to a port. In those circumstances, our advice would be to wait until they go ashore before taking medicine that would impair their performance. On that basis, I invite the noble Viscount, Lord Astor, not to press the amendment.
Viscount Astor: My Lords, if one follows the logic of the Minister's answer, it shows that subsection (5) is unnecessary. The noble Lord says that one should not prescribe; one should not need to; someone will take a sensible decision; no one is going to prosecute someone coming back in these situations. If that is the case, why is the exemption for fishing vessels needed? It seems that that is the same analogy. Why do fishing vessels need this exemption? Will people be standing on the pier waiting to jump on fishermen coming back, any more than they are going to jump on anyone else?
I do not see the justification for the Minister's arguments. I am sorry to say that he has missed the point. I accepted, in moving the amendment, that whatever one chooses—say, a crew of three—is arbitrary. The definition of fishing is probably arbitrary too. The Minister has not persuaded me, and I do not regard his answer as satisfactory. I shall come back at Third Reading. One solution would be to have some form of tonnage, or some combination to make it work.
Lord McIntosh of Haringey: My Lords, I have attacked the limit of three. Let us talk between now and Third Reading about whether anything can be done. I still think that it is difficult to define the circumstances in which the medical defence should be allowed on some commercial ships and not others. I do not wish to see the medical defence extended unless we absolutely have to. I am certainly willing to talk about it.
Viscount Astor: My Lords, I am grateful to the Minister. He has been enormously helpful throughout

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the Bill. I understand where he is coming from, but of course, as 1 said, if you follow the logic of his argument, the exemption for fishing vessels is perhaps not needed. I am grateful for his helpful reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 84 [Arrest without warrant]:
[Amendment No. 17 not moved.]
Clause 95 [Specimens, &c.]:
Lord Berkeleymoved Amendment No. 18:
Page 41, line 28, column 3, at end of paragraph (b) insert—
"(c) an accident occurs owing to the presence of an aircraft in a public place and a constable reasonably suspects that the person was at the time of the accident a person to whom section (93)(1)(a) applied."
The noble Lord said: My Lords, in moving the amendment, 1 thank the Minister for meeting me and specialists from the police and the Parliamentary Advisory Council for Transport Safety. The key to this argument is that with the very low level of alcohol limit proposed for air crew it is difficult for police officers to form a suspicion that alcohol may have been a factor in an accident before taking a breath specimen. The limit is much lower than the current level for road alcohol. That is the reason for the amendment. I beg to move.
Lord McIntosh of Haringey: My Lords, the Bill already provides the police with the power to test suspected offenders provided they have reasonable cause. An accident might be a factor taken into account when the officer considers whether he has such cause.
The amendment, as drafted, creates a number of practical difficulties, principally in the reference to the presence of an aircraft in a public place. That would exclude a number of places where aviation accidents could take place, notably runways. I accept that the principle behind the amendment has some force. I cannot make any guarantees. We shall consider further whether we can put down a suitable amendment at Third Reading.
Lord Berkeley: My Lords, I am grateful to my noble friend and I look forward to meeting him before Third Reading. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 104 [Railways safety levy]:
Lord Berkeleymoved Amendment No. 19:
Page 46, line 27, at end insert—
"( ) Regulations under subsection (1) shall take into account the licence fee arrangements operated by the Rail Regulator."
The noble Lord said: My Lords, having clearly lost the battle for the Health and Safety Executive to be funded by the railway industry, this is my second attempt. If there must be changes in the way the Health and Safety Executive charges the railway industry, there are one or two principles that I hope that my
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noble friend will consider. The executive should not charge more money than at present and should not increase the scope of what it charges for.
The proposals from the rail regulator as to how he should fund his operations, payable by the industry, seem to me a good model on which future regulations might be based. Network Rail should pay 50 per cent of the costs, and the rest should be spread across the licence holders based on the historic turnover for the previous financial year; that is passenger and non-passenger stations and light maintenance depot licence holders.
That means that new entrants would be exempt. It is important to encourage new entrants to the industry. My noble friend says that heritage railways would be exempt. This is a probing amendment. I look forward to my noble friend's comments. I beg to move.
Lord McIntosh of Haringey: My Lords, I accept the principle that the Health and Safety Executive should talk to the Office of the Rail Regulator when developing proposals to give effect to the railway lobby. It is already doing so and will continue to do so. That is not a problem.
The problem with the amendment is that it gives primacy to those consultations. That means that it would be more difficult for the Health and Safety Executive to speak with the same force to other industry bodies such as the Strategic Rail Authority or other industries with a similar levy regime.
I understand that the Health and Safety Commission and the Health and Safety Executive have a policy to use rail-related turnover in the previous financial year as the best proxy for determining the individual amounts to be paid under a levy. As my noble friend Lord Berkeley said, that lets off new entrants. I understand that that is similar to the arrangements operated by the Office of the Rail Regulator, but final arrangements will be subject to consultation.
The Health and Safety Executive should retain the ability to consider any other schemes it likes and talk to anybody it likes in developing regulations. On the basis that that is already being done and that it is following the ORR's regime, I hope that the amendment will not be pressed.
Lord Berkeley: My Lords, I am grateful to my noble friend. Notwithstanding the fact that it may have been done, it is good to have his remarks on the record. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringeymoved Amendment No. 20:
Page 47, line 4, at end insert—
"( ) In section 82 of that Act (general provisions)—

(a) in subsection (3)(b) after "which" insert "(unless subsection (4) applies)", and

(b) after subsection (3) insert—

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"(4) The first regulations under section 43A(l) shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament.""
On Question, amendment agreed to.
Clause 107 [Seat belts: delivery drivers]:
Viscount Astormoved Amendment No. 21:
Leave out Clause 107.
The noble Viscount said: My Lords, this is the seat belt clause. I am grateful to the Minister, who wrote to me explaining the Government's thinking on the issue. He explained that the words that appear in the Road Traffic Act 1988 are not well understood. The Act refers to local rounds, deliveries or collections. In effect, what has happened is that a large number of people delivering over long and short distances feel that they need not wear a seat belt.
Department for Transport surveys show that only 65 per cent of van drivers and 55 per cent of their passengers wear seat belts. If those seat belts were worn at rates something like those for cars—90 per cent-plus—it would save up to 20 lives and 240 serious casualties annually. It is an important matter. We have a greater understanding of the clause since receiving the Minister' letter.
The Minister said that there was an obligation to consult representative organisations, including the Freight Transport Association and the relevant trade unions and operators, on how the system should work and what the maximum distance should be. However, it would be helpful if we heard from the Government on timing. When do they intend to start the consultation? How long do they intend it to go on for? When do they expect to bring forward regulations?
It took a long time to get the wearing of seat belts in the front of cars accepted by everybody in this country, and I suspect that the wearing of seat belts in the back seat of cars—brought in by a Conservative government—has less general acceptance and is not often done. What is the Government's thinking? Do they intend, for example, that those driving large trucks should wear seat belts unless they are doing short-distance deliveries? What about taxi drivers? I understand that they do not wear seat belts. Taxi drivers might do short journeys, but they do not often get out of their taxi. Does the department have any evidence that road safety would improve if taxi drivers wore seat belts? I do not know, so I would be interested to hear.
The general principle is that, now that people in this country wear seat belts, it would not be a great burden to require them to put on a seat belt, even for a very short journey. I was particularly surprised to find that, under current regulations, passengers need not wear a seat belt for a short journey. If a driver and a passenger are making a delivery, there is enough time, while the driver starts the car or the van and puts it into gear, for the passenger to put a seat belt on. Often, delivery vans have no airbags or anything like that. Will the Government consider not giving exemption to passengers? There may be a case for giving it to drivers for short deliveries but not to passengers.
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It would be helpful if the Minister could be more explicit about the Government's thinking. They intend to bring forward regulations that we support in principle, but we need to know more about their thinking. I beg to move.
Lord McIntosh of Haringey: My Lords, I notice that the noble Viscount, Lord Astor, chose not to defend the amendment but to use the occasion to ask questions. I do not resent that.
First, the noble Viscount asked me about the timing of consultation. We shall start as soon as is practicable after the Bill receives Royal Assent. We cannot do so until there is some statutory basis for it. He asked about the position of heavy goods vehicle drivers and taxi drivers. At the moment, HGV drivers are required to wear seat belts. The amendment is about vans. Taxi drivers are exempt when they are carrying passengers. In other words, when they are plying for hire they are supposed to wear seat belts. There will be a negligible prize for the first person who sees a taxi driver wearing a seat belt when he is plying for hire.
The basic issue is the effect of Clause 107. Why do we want it? If we deleted the clause, it would not mean that delivery drivers needed to wear seat belts; it would mean that the exemption that they have would continue. Section 14 of the Road Traffic Act 1988 means that those making frequent stops, such as for household rubbish collection or doorstep deliveries need not wear a seat belt. That is not understood.
The Act refers to,
"the users of vehicles constructed or adapted for the delivery of goods or mail to consumers or addressees, as the case may he. while engaged in making local rounds or deliveries".
What is not clear—we want to make it clear by regulation—is what is meant by "local rounds or deliveries". We shall define local rounds or deliveries by the distance between stops. In that way, we hope to achieve an increase in the rates of seat belt wearing, to which the noble Viscount referred, and a reduction in accidents, to which he also referred.
Any change would not alter the existing legislation governing the way in which children are carried in goods vehicles. It will increase understanding of the exemption legitimately provided for local rounds with short distances between stops, without taking away any protection. On that basis, I hope that Clause 107 will be allowed to stand. My understanding is that it had cross-party support in the House of Commons.
Viscount Astor: My Lords, I thank the Minister for his reply. The other place did not have the time to debate the clause, as so often happens. We have a clearer understanding of the Government's thinking. The Minister said that there would be consultation, and, in his letter, he said that it would be with other interested parties. I hope that he will be able to include

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in that consultation noble Lords who took part in debates on the Bill as interested parties. I am sure that he will.
Lord McIntosh of Haringey: Of course.
Viscount Astor: I am grateful for that assurance, and sI beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.30 p.m.
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 22:
After Clause 107, insert the following new clause—
"DRIVING A MOTOR VEHICLE WHILE DRIVING ABILITY IS IMPAIRED DUE TO THE INFLUENCE OF DRUGS
(1)—In the Road Traffic Act 1988 (c. 52) after section 40A (using a vehicle in dangerous condition etc.) there is inserted—
"408 DRIVING A MOTOR VEHICLE WHILE DRIVING ABILITY IS IMPAIRED DUE TO THE INFLUENCE OF DRUGS

(1) A person commits an aggravated offence if he drives a motor vehicle on a road while his ability to drive is impaired by drugs.

(2) A person guilty of an offence under this Part shall be liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding two years, or to a fine, or to both.

(b) on summary conviction, to a fine not exceeding the statutory maximum.

(3) Where a person is charged with an offence under this section in respect of the effect of a drug on his ability to drive, it is a defence for him to show that—

(a) he took the drug for a medicinal purpose on, and in accordance with, medical advice, or

(b) he look the drug for a medicinal purpose and had no reason to believe that it would impair his ability to drive.

40C FIELD IMPAIRMENT TEST AND BLOOD OR OTHER SAMPLES

(1) A constable shall have the right to require any driver whom he reasonably suspects of committing a moving traffic offence while under the influence of drugs to take a field impairment test, or require a blood or other bodily sample for analysis, or both, for the purpose of establishing whether or not that driver is under the influence of any drug.

(2) Where a constable requires a field impairment test or a blood or other bodily sample to be taken, it shall be an offence to refuse.

(3) Where a sample is required, a constable shall convey the person suspected of the offence to a police station for the taking of the sample by a properly qualified person.

(4) A person guilty of refusing a field impairment test or a sample shall be liable to a fine not exceeding level 5 on the standard scale.

(5) The Secretary of State may by regulation establish maximum limits for the presence of drugs in the body of a person for the purpose of determining impairment of ability to drive.

(6) Regulations under this Part shall require the approval of both Houses of Parliament."

(2) It shall be the duty of each coroner to publish each year a report containing a list of all accidents which led to fatalities in which any of the drivers involved tested positive for any drug.
(3) It shall be the duty of each police force to include each year in its annual report a report containing—
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(a) a list of all motor accidents which led to fatalities in which any of the drivers involved tested positive for any drug, and

(b) a list of all motor accidents causing injury in which any of the drivers involved tested positive for any drug."

The noble Lord said: My Lords, Amendment No. 22 seeks to modernise a significant part of the law in relation to drugs and driving on the basis of existing evidence. Drug taking is an increasing problem. Evidence indicates that there is an increasing chance that drivers will be driving under the influence of drugs. I am most grateful to the noble Lords. Lord Faulkner of Worcester and Lord Bradshaw, for adding their names to the amendment.
It would be superfluous to go over all the background to this amendment which has been well discussed in Grand Committee, at Second Reading and indeed at Second Reading of my Private Member's Bill. Since Grand Committee, still more information has come forward. I have received papers from the British Medical Association and the All-Party Parliamentary Drugs Misuse Group. These continue the trend of acknowledging that there is a problem and the complexity of the problem. No one is absolutely certain of how to deal with it but there seems to be a general concurrence that something needs to be done.
I draw the attention of the House to a paper that I have received from the National Council of Women of Great Britain, which undertook a survey specifically directed at drugs and driving in the Tees Valley region—receiving 1,024 replies. I shall not go into all the details of the survey, except to report question 4 which asked: "Should there be a legal limit for drugs (including medicines) and driving as there is for alcohol?". It is very interesting that 74 per cent of respondents answered in the affirmative. There is a clear view from the public about the need to do something on this problem. It is superfluous for me to say any more at this stage. This amendment is well directed. It may not be perfectly drafted but it was the best I could do. I beg to move.
Lord Bradshaw: My Lords, I know that this is an extremely difficult problem. I am sure that the Minister will say that it is very difficult. I want the matter kept before the Government and responsible authorities and something done as soon as reasonably practicable.
Lord Faulkner of Worcester: My Lords, I was pleased to support the noble Lord, Lord Dixon-Smith, when he proposed this measure in a Private Member's Bill. I congratulate him on his perseverance and on his ingenuity for getting it debated in the context of the Bill. I support him.
Lord McIntosh of Haringey: My Lords, I join those who congratulate the noble Lord, Lord Dixon-Smith, on his perseverance. We debated this in his Private Member's Bill and he continues to seek to improve the amendments he puts forward. I acknowledge that. However, there are two lines of attack. The first is the

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long and difficult haul towards statutory limits for drugs. The position is better than it was but it is still extraordinarily complicated. Different statutory limits would apply for different drugs and different drugs have different effects on different people. We are nowhere near having a usable test which could be used like the blood levels of alcohol test for drink driving. When we have such a test, the Road Traffic Act 1988, which includes drink or drugs, will allow us to implement it, but it may be some years away.
There is a second approach which we take very seriously—that is, impairment testing at the roadside. I said in response to the Private Member's Bill—I think I said again in Committee—that we are stepping up the number of police qualified to conduct impairment testing. That is rather like what used to happen as regards alcohol before blood or breath sample tests were imposed. There is a possibility that we can make progress in this area. We are considering whether it is possible to propose measures to provide additional police powers against driving under the influence of drugs. If that were possible—I cannot give any firm commitment—we could lay an appropriate government amendment at Third Reading.
Lord Dixon-Smith: My Lords, I am grateful to the Minister for his positive reply. I had expected it because he has been positive on this issue ever since I started pushing on it. I appreciate what the Minister said about additional police powers and the possibility of a government amendment. That is certainly enough to persuade me that I need take the matter no further today, but I may need to put this amendment down as a marker in order to ensure that the government amendment comes forward at Third Reading. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Faulkner of Worcester Lord Faulkner of Worcester moved Amendment No. 23:
After Clause 107, insert the following new clause—
"DRIVING WHILE USING MOBILE TELEPHONE ETC.

(1) The Road Vehicles (Construction and Use) Regulations 1986 (S.I. 1986/1078) are amended as follows.

(2) After Regulation 109 there is inserted—

"MOBILE TELEPHONES
110 No person shall drive, or cause or permit to be driven, a motor vehicle on a road, if the driver is using a hand-held mobile telephone or similar device.""
The noble Lord said: My Lords, I tabled Amendment No. 23 in Grand Committee but did not move because we ran out of time. I have therefore brought it forward today. The amendment seeks to ban the use of hand-held mobile phones by drivers. Mobile phones are an essential part of life for many people. They enable us to maintain contact with family, friends and work colleagues and, very importantly, to summon help if we are in trouble. However, they have also created a significant risk because enormous numbers of drivers use mobile
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phones when driving. Surveys consistently show that around one-third of drivers admit to using a phone while driving. Those drivers with the highest accident risk are the ones most likely to do so, increasing their risk even further. Three-quarters of company car drivers and one-half of young drivers use mobiles while driving. Observation studies found that at any one time an astonishing one in 50 drivers is using a mobile phone.
Last year, the Royal Society for the Prevention of Accidents—I declare an unremunerated interest as its president—published The Risk of Using a Mobile Phone While Driving survey which showed that a substantial body of research conducted in the UK and many other countries concluded that using a handheld or hands-free mobile phone when driving is a significant distraction causing multiple problems for drivers. These include the fact that they become mentally divorced from what is happening on the road around them; they are unable to maintain proper lane position and a predictable steady speed; they are more likely to tailgate the vehicle in front and their reaction times are much slower; and they are more likely to enter unsafe gaps that are too small. The end result is that drivers who use a mobile phone when driving are up to four times more likely to crash, injuring or killing themselves or other people.
The United Kingdom's accident data do not record whether mobile phones are being used at the time of an accident, but RoSPA has collected press reports of 23 fatal road accidents in the UK where courts have cited the use of a mobile phone. The descriptions make tragic reading. A driver, listening to a message, crossed to the wrong side of the road and hit a van head-on. killing its driver. A driver ran over and killed a child pedestrian while using his phone. A truck driver, distracted when his phone rang, hit and killed a cyclist. A driver, talking on the phone to his boss. hit a parked truck and died in the resulting fire. A driver composing a text message veered into a lay-by and killed a man standing by his car.
What can be done? Regulation 104 of the Road Vehicles (Construction and Use) Regulations 1986 states that the driver must be in proper control of the vehicle. That can be used against drivers who use mobiles, but it is ineffective, as drivers do not understand that they are not in proper control when using a mobile phone. The Highway Code advises drivers that they must not use a hand-held mobile phone when driving. The Government have conducted national publicity campaigns. Police forces have tried to conduct enforcement campaigns, but the message is not getting across to motorists, who persist in vast numbers to use their mobiles on a regular basis when driving.
A specific ban, which the amendment proposes, has massive support in public opinion surveys and in my view is the only answer. The issue was taken up by my distinguished predecessor as the President of RoSPA, whom I am delighted to see in his place as the new Government Deputy Chief Whip. RoSPA has taken the cause on board for many years, and I am delighted to be able to take it on board again. I hope very much

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that the Minister will be able to say that the consultation process that the Government have undertaken has led them irrevocably to the conclusion that a ban on the use of mobile phones by drivers is necessary. I hope that, if they do not accept the amendment today, they will announce a ban very shortly.
Viscount Astor: My Lords, I cannot support the amendment, whatever the principles are that lie behind it, because it raises an issue that the Government have to come forward on themselves rather than relying on the noble Lord, Lord Faulkner of Worcester—however well intended he is. There are a number of issues that the Government have to consider.
My understanding is that the use of mobile phones is legal, and that the police stop people who are driving around with a mobile phone clamped to their ear. I shall be grateful if the Minister will tell us whether that is correct. More evidence is required to show whether every form of hands-free device carries the same danger, as the noble Lord, Lord Faulkner, claims they do. I am not convinced by that, because if one follows that analogy—
Lord Faulkner of Worcester: My Lords, if the noble Viscount, Lord Astor, reads the terms of my amendment, he will see that it does not refer to hands-free mobiles. There is evidence that drivers are distracted when using hands-free as well as the handheld variety, but the police have advised us that enforcing the hands-free ban is too difficult. The modest proposal contained in the amendment is, therefore, just for the hand-held type.
Viscount Astor: My Lords, I am grateful to the noble Lord, as he has answered the question that I was just about to ask. I am not sure that there is any evidence, and I am not sure that his amendment, which says,
"hand-held mobile telephone or similar device",
necessarily excludes hands-free phones as it is drafted.
There is a debate about whether hands-free telephones are distracting, and there may be circumstances in which they are, just as people may be distracted by changing the radio station for the music that they are listening to in the car. There is also the difficulty over whether we should allow minicab drivers to speak on their radios, for example. Taxis have digital display screens, which drivers need to look at; sometimes they do that when they are stationary, but they may have a quick glance at them as they are going along. Is that something that should happen? Then there are the emergency services, which use radios that are certainly not hands-free.
The issue is important, and we look forward to seeing the government consultation when it is finished. The Government need to take account of all the issues. However well-intentioned the amendment is, it is not for this Bill or for today.
Lord Berkeley: My Lords, I support the amendment. I should have added my name to it but I did not. That was an oversight on my part.
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As a cyclist and pedestrian who has been on the receiving end of the behaviour of many drivers using hand-held mobile phones, I have witnessed first hand the situations that my noble friend described. It is impossible to drive a car, hold a phone, change gear and concentrate on what you are doing. I can give many examples of people who have been hurt and killed as a result of drivers' loss of concentration when using hand-held mobile phones. I hope that my noble friend the Minister will either accept the amendment or agree to bring forward similar amendments very soon.
5.45 p.m.
Viscount Simon: My Lords, the noble Viscount, Lord Astor, raised the hoary question of drivers changing radio station while driving although he did not mention drivers eating sandwiches while driving. However, drivers can choose when to take those actions. One cannot choose the time when one receives a call on a mobile phone, be it hand-held or hands-free. The person on the other end of the phone is not aware of the traffic conditions that the driver faces. Nevertheless the driver's attention is diverted from driving.
Research in Canada and Japan indicates that a driver's attention can be diverted from what is happening around him or her for up to 10 minutes after the conversation is completed. My noble friend Lord Faulkner said that in that situation a driver can be mentally divorced from what is happening around him.
Some time ago I was on traffic patrol with others in a marked police vehicle. I was travelling somewhat slowly round a roundabout. Someone joined the roundabout in front of me, forcing us to slow down. That person was speaking into a mobile phone and had no conception that we were there. We stopped the driver and she admitted that she had no idea that we were there. That is a perfect example of what happens in such situations.
Lord McIntosh of Haringey: My Lords, I believe that everyone who has taken part in this short debate is aware that the Government are very seized of this issue. We issued a consultation document last summer seeking views on a proposal to prohibit the use of hand-held—not hands-free—mobile phones. We have had over 1,000 responses. We are now considering the responses that we have been given. I hope that we shall be able to make an announcement very shortly.
However, there is one difficulty with the amendment and one reason why it is not absolutely essential. The difficulty with the amendment is that when we give our response to the consultation I am sure, for the reasons given by a number of noble Lords, that it will be much more complicated than the wording of the amendment. The phrase,
"drive, or cause or permit to be driven"
is a very interesting phrase. I refer also to the phrase,
"a motor vehicle on a road".

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Does that apply to carparks or to private roads? As regards the phrase,
"if the driver is using a hand-held mobile telephone",
what is the definition of a "hand-held mobile telephone"?
Should there be exemptions for emergency services? All kinds of issues will have to be referred to in our response. That is the rather profound difficulty with the amendment. But, if it is any consolation, we do not need primary legislation to implement whatever we decide to do. It can be done by—as the amendment suggests—an addition to the construction and use regulations. We have power under Section 41 of the Road Traffic Act 1988, as amended, to make regulations about the conditions under which motor vehicles may be used on roads. If any announcement is made which commits us to change, it will not be lost because it is made after the passage of this Bill.
Lord Faulkner of Worcester: My Lords, I think that I am able to decode the message which my noble friend gave me in that reply. I am encouraged by it. I believe that an announcement is not too far away. In that expectation, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bradshaw Lord Bradshaw moved Amendment No. 24:
After Clause 107, insert the following new clause—
"THE NATIONAL TRAILS

(1) In the interest of public health and safety, the following shall have effect.

(2) The Secretary of State shall within one year from the coming into force of this enactment make a permanent traffic regulation order to prohibit the use of non-essential mechanically propelled vehicles on the National Trails.

(3) Non-essential mechanically propelled vehicles shall mean all such vehicles but shall not include those driven by individuals with an estate or interest in land adjoining the Trails or their lawful visitors or emergency vehicles.

(4) A traffic regulation order shall mean an order as defined in the Road Traffic Regulation Act 1984 (c. 27) and as subsequently amended."

The noble Lord said: My Lords, the amendment addresses a matter of great concern. Since we previously discussed it in Grand Committee, I notice that the Countryside Agency has published a report in which it describes the situation on the national trails as a national disgrace.
There is no purpose in local authorities seeking to publish bits of traffic orders for bits of the national trails as they are very expensive to produce, take a long time to produce and are almost unenforceable once passed. What is needed to protect the national trails—we desperately need something to protect them—is a blanket traffic order which applies to all national trails everywhere and prohibits the use of any mechanically propelled vehicle other than that which has legitimate reason to be there. That would obviously include motor bikes and various quad bikes.
I know before he responds to the amendment that the Minister is sympathetic to what I am saying although he is concerned about the means of achieving
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what I propose. Should he wish, I am very willing to defer to Third Reading consideration of the amendment if between now and then I can meet with someone, for example, a Minister in another place, who is charged with getting something done about the matter.
I do not want to lose the opportunity to move a simple amendment that requires the Secretary of State to do something within a period of time after the Bill has passed; it does not compel him to do something immediately it has passed. However, I should like the Minister in his reply to advise me what I may best do to achieve an end result which, if put to a free vote of the House, would be passed overwhelmingly. I believe that that is what most of us would like to achieve. I beg to move.
Lord McIntosh of Haringey: My Lords, this issue is a nightmare. The noble Lord, Lord Bradshaw, has shown me the photographs of the Ridgeway, and I entirely accept that the places he has shown me are in an intolerable state. They are seas of mud or water and are in many ways impassable for pedestrians or cyclists. I therefore recognise the noble Lord's valid point. However, I do not have a simple answer, nor do I believe has he.
The noble Lord asked me what progress we can make. Invitations have been issued to him—I hope that by now he has received his—and the noble Baroness, Lady Scott of Needham Market, to attend a meeting to be held next week by Alun Michael, the Minister for Rural Affairs. It will be one of a number of meetings involving MPs, local highway authorities and the Countryside Agency to assess the progress made by the Ridgeway Management Group in implementing a comprehensive management plan, which includes the use of TROs. I now realise that I should have ensured that the noble Viscount, Lord Astor, was also invited, in view of the fact that he lives close to the Ridgeway. I will remedy that omission. It seems that the noble Lord, Lord Bradshaw, has not received the invitation. It will be sent again as soon as possible. It is now up to the noble Lord, Lord Bradshaw, and his colleagues to persuade Alun Michael that something should be done.
However, if the noble Lord's concern relates to the difficulty of local authorities to implement their powers to lay TROs, I can reassure the noble Lord that Section 22 of the Road Traffic Regulation Act 1984 already enables traffic regulation orders to be made in relation to special areas of the countryside. That section of the Act applies to, among other areas, long distance routes such as the Ridgeway.
The Act enables the Countryside Agency to make submissions to the Secretary of State about the desirability of a traffic regulation order being made in relation to a national trail. Where the traffic authorities responsible for a trail notify him that they do not intend to make an order imposing the proposed restrictions, the Secretary of State may himself promote an order as if he were the traffic authority. Of course, it will be the subject of the same procedures for

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objections, and if necessary a public inquiry, but I suggest that the noble Lord, Lord Bradshaw, should urge that course on the Minister for Rural Affairs.
Lord Bradshaw: My Lords, I thank the Minister for his reply. I will take advantage of attending the meeting, if I can. I do not believe that I have received the invitation. Unfortunately, my noble friend Lady Scott is in Hamburg, or somewhere a little more exotic than here. We will try to persuade Alun Michael to table proposals at Third Reading, because this is a rare parliamentary opportunity to do anything. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bradshawmoved Amendment No. 25:
After Clause 107, insert the following new clause—
"Operating centres
In section 13(5) of the Goods Vehicles (Licensing of Operators) Act 1995 (c. 23), after paragraph (d) there is inserted—
"( ) in permitting goods vehicles operators to establish an operating centre, the traffic commissioner is satisfied that the centre is available, suitable and of sufficient capacity and must take into account the suitability of the local road network for the establishment of such a centre;"."
The noble Lord said: My Lords, I hope that we shall receive a positive response from the Minister to this amendment. This issue is a running sore in the countryside, particularly with farm buildings coming on to the market. In considering the suitability of an operating centre, the traffic commissioners would be enabled to look at the building, the road and the splay on to the road, but would be precluded from deciding whether the roads in the vicinity were suitable for heavy traffic.
It is all very well to say that the local authority may object to the planning consent. In fact, the planning consent for the buildings and the access to it may be in order. What is not in order is the highway, often leading for many miles around the operating centre. All that the amendment would do—and I hope that it is a simple amendment—is allow the traffic commissioner to have a little more power than he has now, but to take account of the impact that vehicle operation will have on the villages or small settlements around the operating centre. It is a minor amendment, but I am sure that there are many parts of the country where it would effective. It is no good to say that local authorities are experts on goods vehicles, even if the traffic commissioner had power to take into account what they say. Frankly, local authorities are not experts on goods vehicles and many of them know very little about them. I beg to move.
Lord Berkeley: My Lords, is the noble Lord going speak to Amendment No. 26?
Lord Bradshaw: My Lords, I beg your pardon. I did not realise that it had been called.
We have come across a somewhat anomalous situation in the regulations. As I understand it, it was the Government's intention under the Transport Act 2000 to
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make sure that a vehicle which did not have an operator's licence could impounded by the Vehicle Inspectorate. As a result of a case which has recently been held by the Transport Tribunal, it appears that a company which hires out vehicles has no obligation to make sure that the person to whom it has hired them does indeed have the operator's licence. It can therefore claim back the vehicle from the impounder. That has the effect of circumnavigating the Government's legislation. Bearing in mind that the vehicles to which any value is attached are usually the ones which are hired out, it could mean that as many as 80 or 90 per cent of vehicles on hire may not have an operator licence. 1 am not saying that they do not, because most of them do, but the ones that do not can then be claimed back by the holder of the master lease, because he can say that he has no duty to ensure that there is an operator's licence.
Lord Berkeley: My Lords, I support the amendments. I will not make a long speech about them. Amendment No. 25 has been discussed in your Lordships' House many times. It really is time that this matter was resolved, because the traffic commissioners have a unique role to play, if they are allowed to play it. It is ridiculous that if there is legislation which allows vehicles to be impounded for doing something wrong, one can get round that by leasing them rather than owning them. That makes a mockery of the law. I fully support the amendments.
6 p.m.
Lord McIntosh of Haringey: My Lords, we have had the opportunity to discuss this issue between Committee and Report. There did seem to be a conflict of evidence—perhaps I should put it that way—so I shall therefore read word for word the speaking note that I have been given.
Local authorities and planning authorities have a statutory right to object to goods operator licence applications. They are sent details of all applications in their area. They can object to a proposed operating centre on the environmental factors that result from the use of the land or the general suitability of the centre in terms of its size, parking arrangements and ingress/ egress on to the public highway. They also have a right of appeal to the Transport Tribunal against a traffic commissioner's decision. The traffic commissioners would like local authorities to take a more proactive role in the licensing process.
Traffic commissioners' powers are limited, when deciding on licence applications, to considering the operating centre itself, any private road leading to a nearby public road and the point of ingress and egress on to the public highway. If objections are received that are based on factors outside this scope, for example traffic problems on the wider road network, then the traffic commissioner is unable to consider them. So far, the noble Lord, Lord Bradshaw, and I are in agreement.
Although the traffic commissioners cannot consider the wider road network, the local authorities themselves have wide powers under the Road Traffic Regulation Act 1984 to regulate traffic by means of

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traffic regulation orders. These can be used to prohibit, restrict or regulate the use of goods vehicles. In exercising these powers it is for the local authority to consider the needs of local residents, emergency services, local businesses and those who work in or visit the area. They can use these powers to balance the supply and demand for road space in the light of local needs and circumstances.
Local authorities can, and should, also use their planning powers to stop the opening of a new operating centre if the road network cannot take it. It is right that these powers should rest with local authorities rather than with traffic commissioners. Traffic commissioners are unlikely to have enough detailed knowledge of road traffic conditions to make decisions on the suitability of additional vehicles on the local road network. Pressure on the local road network can be caused by many other factors than an operating centre, and local authorities have the local knowledge to allow them to take these factors into account. We therefore see no reason to extend the traffic commissioners' powers in this way. I have details of the traffic commissioners' Annual Report for 2001–02 which I shall happily send to the noble Lord, Lord Bradshaw.
Regarding Amendment No. 26, the owner of the vehicle detained by the Vehicle and Operator Services Agency can apply to a traffic commissioner for the return of the vehicle on the grounds that he or she did not know that the vehicle was being operated illegally. It is the matter of when a leasing company is to be taken to "know" that is at the heart of the matter. I have looked into the two cases which were mentioned, where impounded vehicles were apparently handed back to the leasing company owners. I am sorry to say that they were not straightforward.
One case involved three separate hearings. A leasing company leased a vehicle to an operator on the basis of a statement from that operator that he would operate the vehicle in accordance with the law. They made a number of efforts to find out if the operator held a licence. The matter had not been solved when the vehicle was impounded. At the first hearing a traffic commissioner refused the application for the return of the vehicle. The Transport Tribunal on appeal sent the case back for re-hearing. Another traffic commissioner then decided, in the light of the tribunal's guidance, and after reviewing the evidence, that the owners did not know that the vehicle was being operated illegally, and directed that the vehicle should be returned. However, she noted that the company had since become aware that licences could readily be checked on the department's electronic database of operators—the existence of the database is now widely known throughout the industry.
On the basis of the guidance given by the tribunal in this case, it seems fairly clear that turning a blind eye or not persisting in making normal inquiries will amount to knowledge for the purposes of the current legislation, and the vehicles of a hiring company that was to turn a blind eye would therefore be at risk. Furthermore, although it is ultimately a matter for the
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courts to decide, it does seem now that the existence of the database is becoming more widely known, and any company failing to make that one simple inquiry would have much explaining to do.
Perhaps I do not need to describe the second case, but I think that the conclusion is clear. The hiring and leasing industry has been very diligent in informing customers about operator licensing requirements and in carrying out voluntary checks of licences. If one hires a car, the hiring company invariably requires to see one's driving licence, though it has no obligation to do so. Since it is now well known that it is possible for the hiring company to check on the database, there is no reason why self-regulation, as we have at present, should not work. Therefore, the amendment should not be pressed.
Lord Bradshaw: My Lords, I thank the Minister for that reply. However, I find that his reply to Amendment No. 25 is not valid. When planning permission is given for an operating centre, it is not necessary to specify the type of vehicle that will use it. Someone applies for planning permission for vehicles to use an operating centre, but it is often not apparent the sort of vehicles that will use it. Specifying whether one will get a I 7-tonne fixed-wheel vehicle or a 32, 38 or 44-tonne artic is unnecessary.
The imposition by local authorities of traffic orders is lengthy and extremely difficult, and their enforcement by the police is almost non-existent. It must come almost at the bottom of the list of priorities for any police force. However, the traffic commissioners are available and know about local traffic conditions—that is why they are there. They certainly know a lot that local authority employers do not; for example, they know about the records of people who apply, what they have done before, who their managers are, and all sorts of relevant matters.
I will withdraw the amendment but I shall ask the Minister, before Third Reading, to explain why the very simple addition to traffic commissioners' responsibilities cannot be made. I have a feeling that it is more to do with the obduracy of certain officials in the department than with whether it can be done. Occasionally, we on these Benches say something sensible.
I accept what the Minister said about Amendment No. 26 if we now assume that the existence of the database is widely known among leasing companies. The ability to make a check is therefore available to anyone, and anyone who fails to make it deserves to have his vehicle impounded. I hope that the Transport Tribunal, if no one else, reads what the Minister and I have said in Hansard, and that in future the vehicles will not be returned. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 26 not moved.]
Clause 108 [Highways: snow and ice]:
Lord Berkeleymoved Amendment No. 27:
Page 48, leave out lines 35 to 37 and insert—

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""(1A) In particular, a highway authority is under a duty to ensure, so far as is reasonably practicable, that—

(a) safe passage along a highway is not endangered by snow and ice; and

(b) where the highway is in the vicinity of a railway, otherwise than where the railways crosses the highway on the same level, they take steps to constrain vehicles which use that section of highway from being able to depart from it so as to cause a hazard to the safe operation of the railway.

For the purposes of this subsection, 'railway' means a railway within the meaning given by section I l9A (12).""
The noble Lord said: My Lords, the amendment is a second attempt. I suggest that it is an elegant way of extending the snow-plough clause, which, after all, was I believe responsible for changing the name of the Bill from the railways safety Bill to the Railways and Transport Safety Bill. I am sure that my noble friend will correct me if I am wrong.
The amendment is nothing to do with snow ploughs. It revisits why the railways should have to pay to keep cars on the road rather than on the railway. We debated that in Grand Committee, when the noble Baroness, Lady Scott, said that it was not fair that local authorities that were short of money should have to protect their roads that were next to railways to prevent cars and lorries from jumping on the railway lines. That argument is to do with ability to pay. Given the railways' financial situation, it could equally well be applied to them.
At the moment, we have a nice cosy arrangement of sharing the cost, set out in the lovely document, Managing the accidental obstruction of the railway by road vehicles. That cost is not insignificant at about £60 million in total. It seems unfair that the railways should have to pay half of that. One could argue that, leaving aside level crossings, if road vehicles land on the railways that is the fault of the road vehicles and the highways on which they run. It is up to the highways and the authorities, be they local authorities, the Highways Agency or anyone in between, to take steps to prevent such occurrences. That is why I tabled the amendment as an addition to the snow-plough clause. I beg to move.
Lord Dixon-Smith: My Lords, my intervention will be brief. I have a lot of sympathy for the principles that the noble Lord, Lord Berkeley, advocates. It would be right for any new form of regulation that is set in place to acknowledge the difficult position in which the newly agreed practice would put the heritage railways if it were applied to them.
Highways authorities and the railways receive enormous sums—both are largely funded by public money. Heritage railways receive no such support. Whatever does happen, heritage railways should be exempt from any pay arrangements that might involve them in "secondary consequences"; namely, something that someone does on a highway.
Lord Faulkner of Worcester: My Lords, very briefly, I was about to make exactly the same point as the noble Lord, Lord Dixon-Smith. Whatever regime is established for "commercial railway", it would be
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monstrous if the heritage railways had to pay for the repair and construction of road-bridges which happened to go over their railways. They do not receive any public subsidy; they struggle hard enough as it is, and they are an important part of the tourist industry. I hope that they can be exempted from whatever regime is established.
Lord McIntosh of Haringey: My Lords, we have already exempted heritage railways—one example of low-speed railways—from several provisions of the Bill. I hear what the noble Lords, Lord Dixon-Smith and Lord Faulkner, say about bridges and low-speed railways; I will write to them on that subject.
However, I have difficulty with the amendment. It seems to presume that accidents can be prevented by the imposition of a duty on a highways authority or rail track operator. Duties do not prevent accidents. If a railway is responsible for a bridge, the fact that it has a duty to prevent trains coming off bridges onto roads does not mean that accidents are prevented.
Accidents are prevented by proper standards, by proper analysis of the risks at road/rail interfaces, and by taking action at the sites at which risks are high. That applies to highways authorities and to the railway infrastructure authorities. The agreement that has been reached between the highways authorities and the infrastructure authorities is that they will split the cost of safety measures 50:50.
Accidents can happen when approved safety barriers are in place. Traffic harriers were in place at the site of the Selby crash in February 2001; relevant standards were complied with, but the driver got his vehicle onto the line because he went on driving his vehicle after it left the road, to try to prevent it from toppling over.
A case like that cannot be dealt with by the duties provided in this amendment. No traffic measures that a local authority could take would prevent all incursions. We will continue to see that the standards for barriers and bridges and so on are as high as possible, but we cannot guarantee that we will avoid accidents and incidents when drivers behave irresponsibly. The amendment does not add anything; in fact, it goes some way to confusing the issue as between road and rail.
Lord Berkeley: My Lords, I am very grateful to my noble friend Lord McIntosh for that answer, especially for the heritage railway point. It is quite reasonable that train drivers should have a responsibility to keep the train on the track, but the Minister seems to suggest that they should also be responsible for keeping cars on the road next to the track. If the train drivers can keep the trains on track, as they usually do, the fact that many more cars land on railways than trains land on roads indicates that a 50:50 split is unfair. Nevertheless, I shall read carefully what my noble friend said and perhaps seek to have a meeting with him before Third Reading. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Berkeley Lord Berkeley moved Amendment No. 28:
After Clause 108. insert the following new clause—
"INDEPENDENT CROSS-MODAL TRANSPORT SAFETY BODY
The Secretary of State shall, within a year of the date on which this Act receives Royal Assent, publish proposals for the setting up of an independent cross-modal transport safety body."
The noble Lord said: My Lords, this amendment follows on from our discussions in Grand Committee about whether the Health and Safety Executive should or does have responsibility for roads. My noble friend argued that the Health and Safety Executive should not have responsibility for roads because it was not qualified to take such responsibility. He took us round the Caucasian Chalk Circle, quoting,
"everything shall be with those who are good for it".—[Official Report, 5/6/03; col. GC 276.]
I have not had a chance to look up Brecht's full works but I wonder what would be achieved if that quote applied to all legislation.
I understand that transport safety has grown in a slightly haphazard manner over the years. However, I believe that we need to consider the problem of transport safety one last time and the statistics of death rates per billion passenger kilometres. For air, the figure is zero; rail, 0.1; water, 0.5; bus and coach, 0.2; car, 2.9; cycle, 35; pedestrian, 47 and motor cycle and moped, 123. In 2001, 3,450 died in road accidents in Great Britain compared with five in plane accidents; four in accidents involving UK-registered merchant vessels and two in public transport flights subject to a UK air transport licence.
I believe that the Health and Safety Executive has a duty here to consider road accidents. I understand that the HSE believes that if enough people are at work on the road—let us face it, all those driving lorries and white vans are at work as are quite a few car drivers—it should be concerned as to whether it is fulfilling its duty under Clause 1 of the 1974 Act to secure,
"the health, safety and welfare of persons at work",
and,
"protecting persons other than persons at work against risks to health or safety arising out of or in connection with the activities of persons at work".
At present, what the Health and Safety Executive does and does not do has little logic. It goes back to a letter from the then Secretary of State for Employment, Mr Michael Foot, to Bill Simpson of the Health and Safety Commission dated 1975. I can go at some length into whether it covers building regulations but not safety of buildings; and as to ports, bridges at ports going under ships; or bridges between structures—we had an example in Ramsgate a few years ago—or dangerous goods by road, and a few other such things.
I shall not quote from the letter because it is four pages long. Yesterday, a Written Answer to Mr Chope from Mr Jamieson in another place (at col. 224W of Hansard) referred to the provision relating to fatigue for all safety critical workers including drivers. If the Health and Safety Executive is looking into the
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question of fatigue of train drivers, I suggest they should do the same for road drivers to try to prevent some of the 3,000 or so road deaths.
In December 1998 the Department for Transport issued a consultation document on transport safety asking for views. In June 2000 it issued a review of the issues raised. In reading that I believe the responses can best be described as, "Yes, there should be change but please leave us alone because it is too difficult". It concerns grouping safety standards and adding other modes of transport to the Health and Safety Commission/Executive responsibilities; accident investigation, standard setting and enforcement.
Accident investigation is covered fully in the Bill. It is very good to hear that in addition to what is proposed for railways, the chief inspectors of marine, air and railways meet regularly and will do so on a formal basis. That is to be welcomed but there are many other things besides that. For that reason I propose this amendment suggesting that the Government may bring forward, as part of the 10 year plan review, proposals for bringing together investigations, regulations, common enforcement policies, even manslaughter rules, but in particular cross modes. Let us not forget that in Sweden they have started something called "vision zero" policies towards zero road deaths. We have 3,450 fewer deaths to achieve. I urge the Government to take this problem out of the "too difficult" box and progress what they started five years ago through a White Paper or similar document. I beg to move.
Viscount Astor: My Lords, I am rather perplexed by this amendment and by the speech of the noble Lord, Lord Berkeley. He made a perfectly valid proposal on why the Health and Safety Commission should have responsibilities with regard to roads. However, the amendment says nothing of the kind. It seeks to bring in an,
"independent cross-modal transport safety body".
What an awful combination of words. No doubt one would then have a committee which would require funding and staff and would ask for powers. It would go off to EU conferences and probably go round the world attending intercontinental cross-modal transport safety conferences. I am afraid that this is utter rubbish. I am sure that the noble Lord, Lord Berkeley, would make a wonderful chairman of it if it ever came into being.
We have the Department for Transport, the Secretary of State and the various Ministers responsible and answerable to Parliament. I do not believe that this body would add anything, although the noble Lord made one valid point about the responsibility of the Health and Safety Commission, but that has nothing to do with the amendment.
Lord McIntosh of Haringey: My Lords, the rest of the quotation from the coda of the Caucasian Chalk Circle, which I failed to give, says that everything shall go to those who are good for it, thus the cart to the good driver that it is well driven. I hope that Hansard will correct me if I have remembered that defectively.

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The noble Lord, Lord Berkeley, recognised that we have established arrangements to permit closer coordination between the chief inspectors for air and marine accidents and the newly appointed chief inspector for rail accidents. The recently formed Board of Transport Accident Investigators will further assist in the promotion and sharing of best practice among cross-modal transport safety investigators. That seems to me a very proper answer to the issue raised by my noble friend Lord Berkeley.
However, he wants to go further. He wants an independent cross-modal transport safety body. From his speech it sounds as though he wants it to replace the existing transport safety bodies for individual modes of transport. If he is to justify that, he has to convince the House that there is a common element to transport safety regulation that outweighs the need for specific skills. I very much doubt it. Even if there were any significant elements that would require them to be merged into a single body, any change could be hugely disruptive. I do not think somehow we are going to accept the amendment.
Lord Berkeley: My Lords, I am grateful to my noble friend for that reply and for the comments from the noble Viscount, Lord Astor, which were most interesting. It is a challenge and a matter that will need some study. It will not happen tomorrow. However, I still believe that it would be interesting for the Government to take forward their transport safety consultation. That will probably take much longer than the time available before Third Reading, but on that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

Fire Services Bill
6.24 p.m.
Lord Rooker: My Lords, I beg to move that this Bill be now read a second time.
The Bill would confer powers for Ministers to fix or modify the conditions of service, including pay, of fire brigade members, and give directions to fire authorities on the use or disposal of property or facilities. However, before I describe the general principles behind the Bill, I hope it will be helpful to your Lordships if I first say a few words about the current position on the long-running pay dispute between the Fire Brigades Union and their employers.
Noble Lords will be aware that on 12th June the Fire Brigades Union recall conference voted to accept the employers' offer of a 16 per cent pay rise over two-and-a-half years, linked to modernisation of the fire service. This is a very positive development following over 12 months of negotiations between the parties, during which the public have had to endure 15 days of national strikes, with emergency fire cover being provided by the Armed Forces.
I am sure that noble Lords from all sides of the House will wish to join me in welcoming the decision of the Fire Brigades Union. It has always been the
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Government's preference for the two sides to reach a negotiated settlement. This is so that they can move forward in partnership to help deliver a modern fire service, which can present fires from starting in the first place and save more lives when responding to fires that occur.
In the light of the decision taken by Fire Brigades Union, noble Lords may ask why the Government intend to proceed with this Bill. It is a fair question and I shall set out our reasons.
First, the Government's preference is not to have to use the powers that the Bill would confer. The F BU's decision last Thursday makes it much less likely that we would need to use them. But I draw the attention of noble Lords to the fact that the pay offer to which the FBU has signed up is dependent on negotiations and consultations on a number of key issues being completed and, where necessary, ratified by the appropriate bodies over the next few months.
These issues include the agreement of a new pay structure by 31st October 2003; a new pay formula for 2005 and 2006 to be agreed by 31st July 2003; evaluation of the relative job weights of fire-fighters and control room staff to be completed by 31st July 2003; revisions to the so-called "Grey Book", the document setting out detailed conditions of service, to be agreed by 31st October 2003; a review of the current procedure for settling disputes to be completed by 31st October 2003; and proposals for the revision of the National Joint Council's constitution to he made and ratified before the end of this year.
The pay increases for stage two, which is November 2003, and stage three, which is July 2004, are subject to the completion of all the negotiations and consultations referred to in the agreement and, where appropriate, ratification by the fire service national employers, the Fire Brigades Union and the Government, and verification by the Audit Commission that the intended benefits, including the savings and the various national changes, are being derived locally.
This is quite a list of work to do over the next few months, with specific target dates to be achieved. Many of the things which I have referred to have changed little over the past 25 years. While the decision of the Fire Brigades Union is to be welcomed, and while we very much hope that negotiations on the outstanding issues can be satisfactorily completed, I believe that noble Lords will agree that we must consider the possibility—however remote—that implementation of the reforms contained in the deal could be delayed or put at risk. There have been other occasions during this dispute where agreement has seemed likely, only for hopes to be dashed at the last moment.
Against that background, we want to be prepared for all eventualities so that, if necessary, we still have the ability to draw a line under this dispute and, most importantly, ensure that the public is properly protected. That is why we propose to proceed with the Bill.

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For the avoidance of doubt the stage one increase, which is from last November 2002, should be paid by the end of July—next month. The Bill is a time-limited long stop. We do not want to use the powers in the Bill—we hope that we do not need to—but, in the light of experience, it is prudent to have them available. If further problems arise during the forthcoming negotiations and those dates are not met, the public will rightly claim that we should have known better and been prepared. They will say to us, "You could see this coming, yet you did nothing about it". We have done something: we have brought forward the Bill, which, I might add, has been approved by the elected House of Parliament.
Before discussing the details, I wish to refer to the human rights issues contained in the 12th report of the Joint Committee on Human Rights. It states that the Bill,
"as it stands at present gives rise to a significant risk of a violation of Article 6 of the European Social Charter and of Article 8 of the ILO Convention No. 151".
Article 6 of the European Social Charter requires states to take certain steps to ensure the effectiveness of the right to bargain collectively. Article 8 of the ILO Convention No. 151 states that settlement,
"shall be sought … through negotiation between the parties".
The Joint Committee's report acknowledges that both provisions are subject to various exemptions where there is a public emergency or where collective bargaining has broken down.
I can assure the House that the Government would exercise the powers that the Bill would confer in respect of conditions of services only if we considered it necessary to do so in order to maintain or enhance public safety; and if negotiations had failed to produce an agreement. For example, if the detailed negotiations that I mentioned previously failed to produce agreement, we think that it would be appropriate to consider using the powers. It has take more than 12 months to get this far. We could not stand by if there were further breakdowns that either threatened to lead to a resumption of industrial action or delayed the changes to the Fire Service that we believe will deliver improved community safety. As I said earlier, we hope that those circumstances will not arise.
Again, I draw noble Lords' attention to the fact that the powers in the Bill are time limited to two years so the issue will not be around for ever. If the powers in the Bill are not activated after two years, they fall. They cannot be resurrected by order or any such mechanism; a new Act of Parliament would be needed. That is what the sunset clause means. In that respect, I hope that the concerns of the Joint Committee on Human Rights can be satisfactorily addressed.
I hope that it will help noble Lords if briefly I set out the Government's general strategy and vision for the Fire Service. The reform of public services, including the Fire Service, is one of the Government's key priorities. We have already introduced some elements of modernisation. We hope to repeal Section 19 of the
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1947 Act, which would remove the need for the Secretary of State to be involved in changes in numbers of fire stations and appliances—the minutiae. That change is contained in the Local Government Bill, which is before your Lordships' House. There will of course be consultation on integrated risk management plans.
The Bill is a temporary measure designed to deal with the dispute and its immediate aftermath, not the long term. The long-term vision for the Fire Service will be set out in our White Paper, to be published shortly—I mean shortly, but I cannot be more precise. The White Paper will set out comprehensive and coherent proposals for a new framework for the Fire Service that we believe will give it a new sense of purpose and prevent the kind of stalemate that has prolonged this industrial dispute. The White Paper will articulate the Government's vision for the Fire Service. It will set out the reforms that we have in mind to ensure that the service is modern, well-managed and efficient, serving the needs of the community and able to respond to the challenges of the 21st century. We intend setting out the legal, institutional and managerial changes required to deliver that vision.
I shall now discuss the powers in the Bill, which simply confers two powers. First, the Secretary of State would be able to make orders to fix or modify conditions of service, including pay. The powers would be similar to those in the Fire Services Act 1947 as originally enacted. Those powers could include some elements of modernisation.
The Secretary of State is required to consult the negotiating body—currently the National Joint Council—on his proposals and consider its comments before making any such order. The Deputy Prime Minister has also said that he will consult his statutory advisors, the Central Fire Brigades Advisory Council. Orders would be subject to the negative resolution procedure of Parliament.
The second area of the Bill's powers gives the Secretary of State the ability to give directions to fire authorities about the use or disposal of property and equipment. This is primarily aimed at ensuring fire authority assets—stations and fire appliances paid for by the public—are available to those providing emergency fire cover in the event of a strike. But the powers could be used for some modernisation; for example, to provide joint control rooms, or require that resources are distributed on a risk assessment basis.
The Secretary of State is required to consult those who might be affected by his direction, or their representatives, as he thinks fit. The sunset clause means that the powers of the Bill are time limited to two years. This was agreed in another place as an addition to the Bill. This demonstrates that the Bill deals with the current dispute which we hope is over. Longer-term strategy will be set out in the White Paper, and we will seek legislation to implement it at the earliest opportunity.
As I have said, this Bill has been sent from the elected House of Parliament. I have detailed the dates in the agreement to which I have already referred.

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There is more than one date of the 31st of July on more than one subject and more than one on the 31st October. Following my opening speech, we have an amendment that would delay the Bill for six months. The juxtaposition of that amendment with the dates I have mentioned, effectively means this amendment completely negates the Bill. It wrecks the Bill and it would be misleading to claim this amendment as a technical delay.
I will be very interested to hear what my noble friend will offer as the alternative if problems arise and the Bill is not on the statute book. We need to hear a decent reason for effectively refusing to consider a Bill sent by the elected House to your Lordships' House. We are a revising Chamber, not a wrecking Chamber. In this House, unlike another place, there are no less than three stages during which to amend a Bill. I still cannot get used to the idea of amendments on Third Reading, although I admit that the Government make use of this occasionally. Do we decline to give a Second Reading to a Bill from another place when it can be amended at Committee stage, on Report and Third Reading? If we do, I say to my noble friend that that is outrageous. We would have a huge task explaining it to another place if we carried this amendment. If my noble friend wants to sign the death knell to the current arrangements in your Lordships' House, this is the way to go about it.
Knocking the Bill on its head for six months when we have agreed deadlines and dates with the trade union, and providing the Government with no long stop if things go wrong, is not very professional in industrial relations terms. If my former tutor, Alan Flanders and my former professor Hugh Clegg were about now, they would be taking my side and not that of my noble friend.
In conclusion, 1 would stress that we value the work of the Fire Service. There is much that is good about it, and we want to build on those strengths. It does need to change, so that it can be more effective and so that firelighters can have the opportunity to have more rewarding and flexible careers—and, most importantly, so that it can save even more lives. By accepting the employers' offer, the Fire Brigades Union has taken the first step along the road to change. We commend the union for that, and we will play our part by showing the leadership that the Fire Service deserves when we set out our vision for the future in the forthcoming White Paper.
While it is prudent to proceed with the Bill for the reasons that I gave earlier, it is a backstop. We hope that we will never have to see it, handle it, or use it. It is not our intention to use it. In light of that, I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Rooker.)
6.41 p.m.
Lord McCarthyrose to move, as an amendment to the Motion that the Bill be now read a second time, to leave out "now" and at end insert "this day six months".
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The noble Lord said: My Lords, I am not concerned, and no one who supports the amendments is concerned with traipsing over the settlement, saying who is right, who is wrong, why it took 12 months, and so on. It is much more important to move on. I am the last person who would want to traipse over the settlement, because it is arguable that it is my fault.
Some 25 years ago, I was responsible for the formula that settled the last Fire Service dispute; the Upper Quartile of the Manual Workers (Male) Index. Although it gave us peace for 25 years, it blew up at the end. It is possible to argue that those of us who were concerned with that should have foreseen that it would last only for 25 years, and we should have said that we wanted it to be periodically reviewed. We did not do that, and in a sense I feel a little guilty about that. I do not want to traipse over the settlement; everyone makes mistakes. I want to talk about the process.
I am asked why we are doing this by amendment. The true, real and substantive reasons will emerge as I proceed. The quick answer is that what we want to do with this Bill cannot be done by amendment. We want the Government to go away and think again about the imposition of what is not arbitration. It pretends to be arbitration; it is not arbitration; it is an imposed settlement. The Government should pause to consider the purpose.
Some might question what happens if it all goes wrong in six months' time. Well, if it all goes wrong in six months' time, the Bill will come in. That would be a wonderful reason to introduce an imposition. I will come back to that later on, but in general terms, those are the two reasons.
Finally, for my preliminary chat, I want to declare an interest; not a financial interest, but an interest that the whole House should share. We all have an interest in clarity; this is not clear at all; we all have an interest in equity; this Bill is not fair; and we all have an interest in common sense. The Bill at this stage is an insane Bill. It is a botch-up. We have seen quite a few botch-ups; this is another one. It is halfway between a cock-up and a conspiracy.
It would be much better, and easier for industry, and the attitude of the unions, the Fire Brigades Union and the employers, if the Government buried this altogether. It would be better if they took it away and thought about it, and came back after a pause of six months with a Bill, the broad outlines of which I will come to now.
Why do I say that it is not transparent? The Minister and the Secretary of State have repeatedly said, and the Secretary of State said three times on 8th May, that the legislation was based on the 1947 Act, which provided for arbitration. No, it is not. He said that it,
"provided for arbitration largely because everyone recognised the importance of fire and other emergency services".—[Official Report, Commons, 8/5/03; col. 860.]
No, they did not. The 1947 Act had nothing to do with that. No, no, no.
If we read the introduction to the 1947 Bill by the late Chuter Ede, we find something common in those days that the Government have forgotten about.

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People wanted to extend the ambit of collective bargaining. They were afraid that, once we had nationalised the Fire Service for the period of the war, as we had to do in 1941, changing it from a part-time service run by 366 local authorities, those local authorities would not deal with it properly, if we gave it back to them. In particular, they could not be trusted to carry out national agreements on terms and conditions in all parts of the Fire Service. That was made clear by the Home Secretary at the time. It was made clear that we had to have a reserve power.
Those of us who go back that far will remember that reserve powers were very common in those days. I am sure that Flanders and Clegg knew that; that was what they lectured on. The industrial disputes tribunal was one; the issues procedure was another; the wages councils, which we extended in 1945, were another one; and the fair wages clauses were another. In those days, people believed that collective bargaining was a good thing and that, if workers negotiated an agreement and could not be sure that the employers would carry out that agreement, the state should come in and enforce the negotiated agreement. That was generally accepted.
It was accepted by the Conservative Party. When they abolished this thing, they told the Labour Party, then in opposition, "We don't think that the employers will act like this. We think that they have learnt their lesson. They will carry out the results of national bargaining, whether or not there is legal enforcement". The Labour Party said, "Yes. Probably, the employers have learnt now. We don't this any more". That is what is was about. Nobody said that it was about independent arbitration, because it was not. We were imposing settlements on employers. That is not arbitration.
The Oxford English Dictionary says that arbitration is a situation in which the parties agree that the settlement of an issue shall be done by one who, the parties agree, shall, in fact, try the case and decide it. The parties decide to refer their claim to the third party that they have selected, and they define the terms of reference. That is independent arbitration. That is what ACAS does. It is not what the Bill does. The Bill gives the Secretary of State as many bites of the cherry as he wants. He can interfere, as he has already has, in the negotiation process. If I understood what I read in the papers, he twice prevented a settlement. He was active among the employers, and then he bobbed in and created a separate mediation theme. I say nothing against the Bain commission, but the chairman was not chosen by the parties and no terms of reference were agreed. Finally, the Secretary of State says that he wants to enact something that will enable him to enforce by law the same settlement that he would not allow the parties to divert from in the first place. He has three bites at the cherry. In 1947, no one would have thought that that was anything but a farce.
It is not easy to be a negotiator on the government side in public sector industrial relations. There are two phrases that I use to describe the situation. The first is the problem of the ghost at the bargaining table. There
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is always a ghost at the bargaining table. On the union side, it is the members. They are outside the room, but they are making demands. On the employers' side, it is the Government. They are outside the room, and they may be on the phone, but they are making demands. It is difficult for the negotiators, who are not really in charge—it is not their money. They must settle with their members and be as co-operative as they can, because of the ghosts at the bargaining table. It is particularly difficult for the Government because the public expect them to do three different things. And that is the second phrase sometimes used—the Pooh-Bah dilemma of the three-hat syndrome.
It comes to this. The Government, with the Treasury watching, have to keep the settlement down. But the Government, with the public watching, have to avoid industrial action—because the public do not want that. However, one the whole, the public are rather fond of many of the people involved in the dispute. They rather like nurses, paramedics, policemen and firemen; they do not want them pushed down. They want them to get a fair crack of the whip. So here is the poor old Government with their three different hats. What are they to do? Should they be on the Treasury side and be in favour of industrial peace? They could not say, like an employer, "Go out and have a strike" because the public would say, "What about the graveyards?" or whatever. The Government have to try to give justice—or some kind of justice—to the workers.
We have found one way only of doing it; we have found one way only through the wood. We must have a form of independent arbitration. It could be a pay review; it could be ex parte arbitration; it could be just mediation, followed by arbitration—or perhaps not. But there must be some independent person or persons able to say what they think is fair. One can wander around the world or read books—for example, Alan Flanders—and it is said over and over again: there must be some independent assessment. Otherwise, in the long run the Government are in an impossible position, especially if the workers are well thought of and especially if the service is totally funded and there is no room for self-financing productivity deals. And if the Government think that they have one of those they are even more simple than I thought they were!
Therefore, there must be some form of independent arbitration. One can go through this Bill and not find anything which remotely resembles independent arbitration. What happens is that the Secretary of State appears and has a ghost at the bargaining table in the first place. If there is to be any overall assessment of the issues, the pattern is that he sets up his own inquiry. If he does not like the results, he takes action under this Bill and forces through any settlement he likes. I call that a reactionary system of industrial relations.
I do not believe that any student of industrial relations would say that it was anything else. It goes against all collective wisdom that we have had in the settlement of public sector disputes. We are told—the Minister mentioned this—that it is probably contrary

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to international law. At least, that could be the opinion of the relevant committee. Most importantly, it could act as a precedent.
In my opinion, the Government were so happy to use the 1947 Act—I do not believe those responsible had ever read the Act, although I could not say precisely what they did—because it seemed to provide a precedent. It did not really provide a precedent, but it seemed to. Once an actual Bill is on the statute book, one has one's precedent.
The doctors rumble away, but if the doctors were to say that they rejected every settlement offer put forward by the Minister, what is different about them? I do not say that the Government will do this; I say let them tell me the difference. Why should there not be something like this for the doctors or nurses or paramedics or any other fully-funded service that no one wants to see using industrial action? Of course, people would say that we do not have this problem with the police. But the police have got what I should like to see these people have—or some form of it. They have got pay review.
What we are asking the Government—it cannot be done by a series of amendments—is to allow a short period when the Bill sits on the shelf. The Government can then go out and consult and determine what form of independent third-party intervention they would most like to see. Thai is sensible. That is the way through the wood. The Government shut the road through the wood many years ago. Weather and rain have undone it again. One would never know that there was once a way through the wood. The old lost road through the wood must be found again. I beg to move.
Moved, as an amendment to the Motion that the Bill be now read a second time, to leave out "now" and at end insert "this day six months".—(Lord McCarthy.)
6.55 p.m.
Baroness Hamwee: My Lords, we on these Benches do not welcome the Bill; indeed, we deplore it. Were it not for the obvious reluctance to refuse a Second Reading to a Bill passed by the elected House, we would wish it to be halted in its tracks tonight. We have taken the matter seriously, and we did not need the strictures of the Minister to do so. We realise the seriousness of opposing at this stage a Bill that has come from another place.
Instead, we have tabled an amendment to the Motion for Second Reading. I would have described the Bill as a sledgehammer, and my first version of the amendment regretted the use of the sledgehammer of legislation applied to a collective bargaining procedure. I was told, inevitably, that that was not how things are done here, so my amendment is in more measured language.
I appreciate that I cannot move my amendment at this point, but I have tabled an amendment to add to the Second Reading Motion that,
"this House regrets that Her Majesty's Government have decided to take the extreme step of introducing legislation as an alternative to collective bargaining procedures in the fire service".
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We were encouraged by the Minister to deal with the Bill at the three forthcoming stages by way of amendment. However, the Bill seems close to unamendable—I say "close to" because I do not want to preclude the possibility of tabling amendments myself, and I am sure that if I said that it was wholly unamendable, I would be teased about that in a week's time.
I cannot begin to imagine the frustration that Ministers have experienced during the current—almost the past—firefighters' dispute. But then again, I cannot begin to imagine the frustration of the employers, who are not actually free to reach a settlement on their own. Their every move is supervised and they are not holding the purse strings, which must have been more than a little restricting. It has occurred to me that this dispute has been the political-industrial relations version of "three in a marriage". We are of course in the middle of proceedings of a Bill designed to "free up local government". Since irony does not always work well on the printed page, for the benefit of Hansard I shall point out that that is ironical.
We deplore the overriding of free bargaining and the centralising nature of the Bill. That is not to say that we support the way in which the FBU has acted—but that is not the point of the Bill tonight. Like the Minister, we welcome the union's decision and the likelihood of a settlement and, like the Minister, we very much admire the work that firefighters do and will he faced with in future.
However, it must be a bad principle to rely on legislation to deal with a specific dispute, and a bad principle for central government to intervene in negotiations, and in so heavy-handed a way. As a matter of psychology, how does the Bill play with those who support the settlement? My suspicion and fear is that it will lead to further polarisation. If it does that, it will play directly into the hands of those who are already at the opposite pole. I wonder, too. how it will play in future negotiations in other sectors. Will it not be said, "Well, the Government haven't produced legislation, so they're not really serious"? I make that as a serious point.
We on these Benches have supported the modernisation of the Fire Service as recommended by Bain, whose executive summary stated:
"We therefore conclude that a fresh approach is required. This must start with a lead from the Government".
Some lead. I am sure that someone would say, "Some lead, some government".
It is not as if the alternatives have been exhausted. What about a secret postal ballot of all FBU members? What about independent arbitration? What about compulsory independent arbitration? I am mindful of what the noble Lord, Lord McCarthy, said in that regard—that there must be scope for arbitration.
We do not support the Bill but we have some questions for the Government. How will the Bill, when enacted, affect the right to strike, if at all? What is its relationship with the Local Government Bill, which is set to repeal most of Section 19 of the Fire Services Act

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1947, which concerns the Secretary of State's functions, and part of the 1959 Act, which concerns the Secretary of State's powers? What happens if the Local Government Bill is not passed until after this Bill is enacted, or is not passed at all? Is it all irrelevant?
The Explanatory Notes state at paragraph 5:
"The Bill has no effect on the powers of the National Assembly for Wales and no other particular effect in Wales".
Will the Minister translate that in view of Clause 2(7), which states that the Bill extends to Wales? It may be that what is being said is that the National Assembly had no powers in the first place so the measure does not have any effect. When the Explanatory Notes refer to the Bill having no particular effect in Wales, they may mean no different effect in Wales, but it is a bit puzzling.
I am aware that there are pressures on time tonight so I may return to those questions without receiving oral answers at this stage. However, I have two particular questions to which I should be glad to receive answers tonight. The first concerns the sunset clause, of which the Minister made great play. It was accepted by the Government, having come from a Back-Bench Labour Member in another place, and provides that no order can be made more than two years after commencement. But it does not seem to mean that an order, once made, ceases to have effect after two years. So is it truly a sunset clause?
Lord Rooker: My Lords, it is a sunset clause; there is no argument about that. It is a general principle in English law that action taken before the repeal of legislation authorising that action is not affected by the repeal of the legislation. If an order were made, it would not fall under the terms of the sunset clause. The point about the sunset clause is that if an order is not made within two years there will be no power to make one as the relevant Act will no longer exist. The Act will be off the statute book.
Baroness Hamwee: My Lords, that was precisely my point. The order cannot be made after the two-year period but if the order is made before then it stays. It hovers on the horizon. The effect of the order will remain after the end of the two-year period. The Minister has confirmed that.
Lord Rooker: My Lords, I refer to the part of the Bill that gives the power to rescind the order after the two-year period, if one has been made. We do not know what circumstances will arise. If the order has been made, and the Act has been invoked—which is what we do not want to do—clearly there has been an incident and the Secretary of State has had to take certain action. We cannot say that at the end of the two-year period that action will stop because we do not know the relevant circumstances. However, one would need the power to rescind the order at some time after the end of the two-year period.
Baroness Hamwee: My Lords, I do not think that the Minister and I disagree about the matter. Of course,
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there is a power to rescind an order. It is a power not a requirement. I cannot immediately think how one could phrase a requirement in the circumstances. I thank the Minister for that immediate response. I did not expect to receive a response for about another hour.
My other question concerns the report of the Joint Committee on Human Rights. The Minister mentioned its reference to Article 6 of the European Social Charter and to Article 8 of the ILO Convention 151 and said that the Government regarded the Bill as compatible with both articles. As I understood it, the Minister said that the application of the Bill, when enacted, will meet the exemptions. The National Joint Council asked whether the Bill itself met the exemptions. In a sense, that is a similar point. The Government are saying, "Trust us. The way we deal with it will meet the issue".
The Library research paper introduces the Bill by saying that it would,
"allow an imposed solution to the continuing fire dispute".
In football parlance, it may be a result, but I question whether it is a solution. We on these Benches do not believe that an imposed solution is a real solution.
7.5 p.m.
Baroness Turner of Camden: My Lords, I urge the Government not to proceed with the Bill. I wonder why it should now be thought necessary. I was not impressed by the reasons given by the Minister.
The union has reached a settlement. I have seen a copy of the agreement. It provides for not only the staged pay deal, which will bring the members' earnings up to £25,000 per year in three stages—not an enormous amount of money for a job that demands skill and involves hazards—but also a pay formula for the future. There is a section dealing with integrated risk management plans, which fire authorities are required to produce, and a section on duty systems. Moreover, both sides of the National Joint Council recognise that fire fighters are now placed in the associate, professional and technical occupational classification in the Government's new earnings survey, which I understand means a great deal to the fire fighters.
We know that the recent delegate conference of the union voted three to one in favour of the agreement on the recommendation of the leadership. However, it is clear from press reports that it was not an easy win for the leadership. Resentment and dissatisfaction had been growing within the service and not all sections were happy to go along with the leadership's recommendation. I believe that that was particularly true in London, but it may also have applied to other areas.
The dispute was long and for much of the time attracted a high level of public support. Furthermore, the members on strike behaved reasonably and responsibly. In the event of the possibility of fire threatening lives, they left their picket lines. There was no question of their putting lives at risk on account of the dispute. Why, therefore, do the Government want

1027
this Bill, which gives them power to impose settlements? Admittedly, the Bill contains a clause that limits its life—the sunset clause. But why introduce the Bill now when most of the issues have been resolved and the Government apparently have a settlement with which they can live?
The union has asked that the Bill should not pass. I have received a letter from the FBU, which states:
"We believe that the resolution to the pay dispute now means that the Government's Fire Services Bill, which would allow the imposition of a pay settlement on the Fire Service, is even more unnecessary and unjustified. I therefore hope that the Government will decide not to continue with this piece of erroneous legislation".
It is signed by Andy Gilchrist.
Although it may not be the Government's intention, the Bill seems to represent an attempt to humiliate the union. That is how it will appear to the sections of the membership who were unhappy with the agreement, which could make matters more difficult for the union leadership in future discussions to be held within the scope of the agreement.
I am surprised by the Minister's comments, since I know that he has been an active trade unionist and knows how much the trade unions value free collective bargaining. The Bill seeks to undermine free collective bargaining, the NJC and the union leadership, and allows the Minister to dictate terms and conditions at a time when the co-operation of the workforce is necessary to put into operation the procedures outlined in the Bill, particularly the consultative procedures.
The Bill will undermine the leadership and make co-operation much more difficult. That really will not do. I understand the point that the Bill has been passed by the elected House. It is surely still open to us to urge the Government to think again about the Bill and to say, "Please do not go ahead with it. We think that it will be harmful and not at all to the benefit of good industrial relations in the future".
7.10 p.m.
Lord Campbell of Alloway: My Lords, I am the third Member on the Back Benches in this House—this makes all three—who is wholly unable to support the Bill. The convention being that on Second Reading we do not turn down a Government Bill, save in wholly exceptional circumstances, I ride by convention, but I want the noble Lord, Lord Rooker, to understand that I merely defer to convention and that I am totally opposed to the Bill. What is a sunset clause, for a start? It is a sword of Damocles to dangle over those workmen, so that if they do not toe the Government line—the imposed resolution of the Government—the sword drops.
That to me is anathema. To put workmen in that position when there is no national emergency is anathema. I do not believe that any government of any party should ever do it unless there is an emergency. I suspect that the noble Lord, Lord Rooker, probably feels much the same at heart, because he asked the noble Lord, "Well, what are we to do?".
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What are we to do now that we have got these changes? We have got an accommodation at the moment. Towards the end of July, it should work. Then there are the other stages—I shall not go through them all—but the assumption is that with the good offices of the TUC, and it has given its good offices, and of ACAS, which has also given its good offices, industrial relations shall virtually settle down. If they do not, any government at any time, at the drop of a hat, can invoke Order in Council legislation. It was done in the war; it was done in emergency situations. The noble Lord, Lord Rooker, shakes his head, but when we came back after the war, we found three large green books full of emergency legislation, which governed practically everything. That is the last thing in the world that one wants, but in our flexible society, it is a sensible way to deal with what truly is an emergency situation. There is no reason at all why, if, for example, there were a terrorist attack and the firemen were on strike and remained on strike, the substance of a Bill such as this should not be dealt with by Order in Council.
Again, I think that this is such an insult to the firemen. Let us suppose that there were a terrorist attack—we are probably going to get one; it is no use pretending that we will not. Can you imagine that those firemen will not do their duty by their country? I do not. I believe that they will all turn up irrespective of politics or union considerations. I reckon that they would all turn out. The attitude of the Government to assume that they would not is desperately insulting. I understand why the Bill had to be introduced on 21st March, in the light of the Statement the day before in another place, when the sense of the House then was, "for heaven's sake, yes, but let us see whether we cannot resolve the matter without resort to government-imposed terms and conditions".
In those wholly exceptional circumstances—and they were; there is no need to go through them all, including the Armed Forces and the Scots Guards not being able go and having to do fire duty—the Government were entitled at that time to think in terms of this sort of legislation. However, it is apparent, from the comments of my right honourable friend Mr David Davis and the Deputy Prime Minister in that debate, that they did not wish to use the legislation. They hoped that it would not be necessary.
The matter that astounds me is, now that we have reached the state of affairs that the Minister has explained, including various stages and so on, why is there a need to bring the Bill before this House in order that it may be approved and passed into statute? Why do they not leave the matter alone? The Bill is wholly directed against the fire services and their members—whether they are union members or not, although they all are. Is there any government policy on how to deal with strikes in the general public sector? Has any thought been given to the matter—by any party? I do not know. As yet, I know of no such policy of any party. But it is the Government who matter and who are in the driving seat. We have this problem of strikes in the public sector. It is a problem of general

1029
application that causes substantial damage, discomfort and misery to the country—and there is the threat of more to come.
This type of imposed Government decree, ad hoc, against a single service—the fire service—in circumstances where there is no emergency, is wholly unacceptable. I agree with the noble Lord, Lord McCarthy—I do not usually agree with much that he says—that there must be some form of independent arbitration to deal with this situation. One cannot proceed—no government should proceed, and if the Conservatives were in power I would say the same—by a form of ad hoc, imposed decree to resolve terms and conditions of employment disputes. The country cannot run in that way. There is truly no excuse for the Government wanting to hold the power in reserve.
I agree with the noble Baroness, Lady Hamwee, and share her regret; I really feel that the matter is one for regret. I share her reservations. That is about all that one may do on this occasion.
The real problem about the Bill is that it is going to be a monumental waste of time and resources, because the Long Title specifies fire services. There is no way in which the Long Title can be extended to include all public services or designated public services. If it is not possible to amend the Bill to deal with the general concept that there must be some form of mandatory arbitral procedure, independent of government, that binds the Government and the parties, what is the object of the Bill? We cannot amend it in that way.
I want to mention one point that is relevant to my objection. It is no time for repetition. The relevant history, problems, devastation and misery occasioned by disproportionate action in our public services, at the behest of the trade unions in those services, has already received consideration on both occasions in the passage of the Public Services (Disruption) Bill, approved on the last occasion on which it went through this House. Fire brigade services were only included as an amendment on that second occasion.
The discussions that we had are relevant to the concept that I advance—it has already been advanced by the noble Lord, Lord McCarthy—that the only way to deal with the problem is for the Government, as a matter of policy, to agree to set up some independent, mandatory arbitral arrangement, such as the CAC, whose awards should be binding on government. Until that is done, this ad hoc disposal by complex provisions, albeit with sunset clauses, hardly mitigates the insult to the working people involved and the ineptitude as a means of resolving trade disputes.
7.25 p.m.
Lord Wedderburn of Charlton: My Lords, I submit to those noble Lords who have done the Fire Service the honour of attending this debate three main submissions for supporting the amendment moved by my noble friend Lord McCarthy to pause for six months.
The amendment finds precedents in the past twenty-five years; I shall not list them. I preface my comments by saying that no one can pretend that the Bill is
1030
receiving the legislative attention it deserves. True, it was passed through the procedures of the elected House, for which I have the greatest respect. But the Government guillotined it into a few hours, and there were protests. The Bill is time limited, in the sense of a sunset clause for two years, but orders made under the Bill in those two years are revoked only if the Government choose in their discretion to do so. There is no case for this legislation to be rushed through in the interim period before the White Paper and the big Bill.
I am not arguing for the employers; I am not arguing for the union; I am arguing for the integrity and the safety of the settlement dated 13th June.
The first of my three submissions is that the Bill provides the Government with powers use of which will lead them inevitably to a breach of international law by which the United Kingdom is bound on workers' and trade union rights. The instruments are Convention 151 of the International Labour Organisation, an agency of the United Nations, and articles 5 and 6 of the Council of Europe's European Social Charter. The Minister gave his own account of those sources—he will want to look again at Hansard to see how he put it.
In the words of the leading authority, Professor Valticos, articles 7 and 8 of ILO Convention 151 prescribe,
"the procedures for determining terms and conditions of service of public employees",
as follows:
"They comprise negotiation between the public authorities and public employees' organisations or 'other methods' which allow public employees to participate in such determination. The settlement of disputes should take place through negotiation between the parties or through independent and impartial machinery such as mediation, conciliation and arbitration".
What my noble friend Lord McCarthy has said about such third-party intervention as essential for the stability of the settlement is quite clear.
The Joint Committee on Human Rights considered the convention in its 8th Report on 11th April. The committee answered the Government's main argument that the Government had been seeking to get a solution by collective negotiation in its letter to the Deputy Prime Minister in this way:
"However, the Bill would not restrict the use of the power to make orders to circumstances in which collective bargaining has been attempted and has failed to produce a satisfactory result after a reasonable time. It therefore seems possible that an order could be made in circumstances which would give rise to a violation of Article 8 of ILO Convention No. 151".
In this case, collective bargaining has not failed. We have a settlement. The case under the European Social Charter is even clearer: the states parties agree to promote the settlement of terms and conditions by means of collective agreements and to promote the use of appropriate machinery for the conciliation and voluntary arbitration for settlement of disputes. The Government's reply to that is that the charter permits restrictions in the case of emergency, public interest, public health or morals. However, in its letter to my

1031
right honourable friend the Deputy Prime Minister, Mr Prescott, the Joint Committee on Human Rights wrote:
"The Committee accepts that orders made under the Bill might be justifiable on the ground of public interest and public health. However, the Bill would not restrict the use of the power to make orders to circumstances in which there is a public emergency or collective bargaining has failed to produce a satisfactory result. It is therefore possible that an order could be made in circumstances which would not be justifiable under Article 6 of the European Social Charter".
Everything that we have heard tonight shows that it may be possible—indeed, it is probable—that any orders made would be in that category. I know of no informed observer on these international instruments who does not envisage that the Bill opens the door for flagrant contravention and no Pepper v Hart assurances from the Front Bench can in any way undercut that.
My second and third submissions can be easily stated and they are independent of the first. The Minister, Mr Raynsford, adverted to the second when he said that the Bill gives the Secretary of State the power, if necessary, in the absence of an agreed settlement to the dispute, to impose a settlement. In the letter he wrote to your Lordships' Joint Committee on Human Rights, my right honourable friend the Deputy Prime Minister wrote:
"As to the ILO Convention No 151, Article 8 says that settlement 'shall be sought through negotiation between the parties'. For over a year now, that is what has been sought but without resolution. I am seeking the powers in the Bill because settlement cannot be achieved through negotiation".
That is why it was widely and reasonably thought that if there was a settlement, the Government would not proceed with this Bill. That was the wide expectation of working people, employers and of a large number of other reasonably-minded people.
But the Government foresaw that—they are not lacking in foresight—and quietly invested in another argument that at the time went rather unnoticed. My right honourable friend Mr Raynsford, the Minister, put it in this way when he said that even if there was a settlement, the terms of the employers' offer means that there would still have to be detailed negotiations over the next few months and that it is important that we enact the powers of the Bill so that we are able to intervene if any such negotiations break down.
My noble friend Lord Rooker finally sent me a special letter on Monday to explain that point. He wrote:
"Under the terms of the deal agreed there remain a number of key issues to be resolved by further negotiations over the coming months".
He went on to say:
"If the negotiations were to falter, and the dispute flared up again as a result the Government would want to intervene decisively to resolve matters".
His argument tonight was along the same lines. What kind of argument is that? Any and every collective agreement ever made needs negotiation and agreement between the parties in its interpretation and application on the ground.
1032
The lines of negotiation for the application of the agreement are set out in the clauses of the 13th June agreement, including disputes procedures. It is a rather first-year element of industrial relations that you do have disputes procedures and negotiations for the interpretation and application of collective agreements.
What the Government are really saying is, "We wanted a negotiated settlement", and for all their mistakes I believe that they did, "but we want this Bill now with its powers to oppose our interpretation of any issues we choose on pay, on hours, and on organisation of the fire service in case the parties don't apply it how we say they should". That authoritarian proposition is quite unjustified and strikes further fear of what is to come into many employers and certainly into the trade union movement; a fear which the nation heard well expressed on Sunday on the BBC by the General Secretary of Unison when he said:
"We will not be treated as the fire-fighters have".
We now have a settlement for this extremely difficult dispute which the parties have not only made but are pledged through their own procedures to effectuate. It was not easily won. The firefighters supported it by a vote of three to one and commentators tell us that at least a third of union members, perhaps more, still feel angry and disappointed. For Heaven's sake give us a period of six months before unsettling the deal with provocations.
The final point that I make to the 15 or 16 noble Lords who have done the service the honour of attending this debate is that, in the spirit of common interest and in the light of what was said in another place, Conservative policy envisages new limits on the right to strike or even to be members of the union, a view which I manifestly do not share. The Conservatives also said that there should he some kind of arbitration. That general policy will certainly not he supported and furthered by rushing this Bill into law in the next two months.
The Liberal Democrat view—I say this with the greatest respect to the noble Baroness, Lady Hamwee, who spoke from their Front Bench—is that the Bill is not the right way to resolve the dispute, that it sets a dangerous precedent for the future and that the Liberal Democrats favour independent arbitration. With the greatest respect, I say that that approach provides nothing in relation to the Bill being held up for a few months so that cool heads can look at it again. Frankly, if the matter goes to a Division, the question for them is whether they have the spine to line up with their colleagues in the Commons.
To my friends on the Labour Benches I say that in their hearts they know very well that they did not come to this House to support a Bill of this kind. They know that it will be seen as an affront to trade union rights and to collective bargaining. Today is the time to stop singing the sad anthem of the dispirited that has been so common among us in private, that great number of the 1960s, "It's my party and I'll cry if I want to". It is time to sing a different song and do something honourable for the party of which I have been a proud

1033
member for 56 years. Join in sending back this Bill whence it came. Give us a few months. Give the Government pause in their pell-mell rush over the edge of a terrible precipice.
7.37 p.m.
Lord Lea of Crondall: My Lords, I thank all noble Lords for allowing me to speak in the gap. My reason for doing so arises from a number of noble Lords drawing attention to an unanswered question—the distinction between a Bill that somehow is not amendable and a Bill that is amendable. Different formulations were touched on by my noble friend Lord McCarthy, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Campbell of Alloway. It is interesting to list, to identify and maybe to add to the different permutations on this matter. They centre on the proposition about arbitration: compulsory arbitration, arbitration at the request of one party, joint agreement on the selection of the arbitrator, whether ACAS or the Central Arbitration Committee, and so on.
Given the long history, to which reference has been made by my noble friend Lord McCarthy, and now that my mind has been jogged, I remember that the two famous orders, during the war and after the war—1305 and 1376—were different formulas on exactly this kind of matter. Of course, other discussions are taking place as we have this debate. The noble Lord, Lord Campbell of Alloway, raised the issue of whether it would be reasonable to do something aimed at the Fire Service asking where, after a strike has lasted so many weeks—the issue of strikes lasting more than eight weeks is being debated—arbitration fits in to all those matters. That would he a matter to be dealt with across the economy, not particularly affecting the public service.
Does my noble friend accept that these matters can be considered as amendments? Otherwise the case made by my noble friend Lord McCarthy is that the procedure he adopted this afternoon is necessary because the Bill is not amendable although that may overstate the point.
7.40 p.m.
Baroness Maddock: My Lords, we should thank the Minister for the time that he took to summarise the situation in which we find ourselves today as regards the Fire Service, which is a little different from when the Bill was introduced.
The Government both here and in another place have made it clear that they are introducing this Bill reluctantly, but, nevertheless, as has been observed during the debate, what they are introducing is an imposed settlement from the centre. Most people find it very hard to come to terms with that issue. People have a great deal of sympathy with the situation in which the Government find themselves. People wish to reach an agreement, but there is almost no support for the method that the Government are using to reach that settlement. Indeed, in this House no one has
1034
spoken in favour of what the Minister has said today. At Second Reading in another place only one Member of the Government supported the Minister.
My noble friend Lady Hamwee and I have spent quite a number of hours with the noble Lord, Lord Rooker, as regards various Bills. He has a habit of saying, "I'm not threatening", but his language and his body language are very threatening. Indeed, that was the case today concerning the position of the House of Lords.
When I agreed to come to the House in 1997, I expected to vote properly to reform it by 2003 and perhaps not have a job at all. But the House is still here. Whether the elected Chamber has passed the legislation, the system applied means that it goes through both Houses. Whether the Minister likes it or not, we have the right to express our views and do our very best by all methods to try to reach the settlement that we want.
We believe that the Government's strategy was right, but their tactics wrong. That is clearly true for many other people. My noble friend has already said that we have a great deal of sympathy with the Government's situation. We may be reaching a settlement without a Bill, which is a very desirable situation. I believe that the noble Baroness, Lady Turner of Camden, said rather more on that issue.
The noble Lord, Lord McCarthy, gave us a very good exposition of the history of the matter. I did not know of his role in these issues at an earlier date. It was a very interesting part of the debate. The main point of what the noble Lord said was that many of us believe that independent arbitration, not only in this country, is the correct way to try to settle disputes.
The Minister made much play of the "sunset" clause. It was not introduced by the Government; it was reluctantly accepted as an amendment from a Back-Bench Member of the Labour Party. We have heard from others who are much better versed in the law than I on the problems with that clause. The Minister made it sound as though everything was all right because of the sunset clause, but it is not quite as simple as that. My noble friend Lady Hamwee said so, as did the noble Lord, Lord Campbell of Alloway.
Given that we have a sunset clause, it would be very helpful if the Minister were to give us an indication of when we are to receive the White Paper. I believe that that was alluded to by the noble Lord, Lord Wedderburn of Charlton. In view of the proposals that the Government intend to introduce, and if there is to be a permanent settlement and a modernisation of the fire service, we need to know when that document will be available. I hope that one of the big issues that will be addressed in it will be pensions. I hope that the Minister can throw some light on the matter when he responds to the debate.
My noble friend Lady Hamwee asked the Government how the Bill interplays with the rights given to local government in the Local Government Bill, which is still passing through this House. I remind the Government of that question, as we are

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approaching the end of the debate. The noble Lord, Lord Wedderburn of Charlton, made a very full speech about the problems of complying with international and European law. Again, my noble friend Lady Hamwee referred to that matter.
We have always held the view that a negotiated settlement would be easier without the Bill. Other noble Lords made that point also. We tried to amend the Bill in another place to include independent arbitration in the settlement. Perhaps we were wrong; it might not be possible to amend it. As my noble friend Lady Hamwee said, we tried to ensure that there was a secret postal ballot, as we believed that that would aid the process.
A subject that was not touched on in the debate is the very difficult time that many retained firefighters have experienced. Their financial settlements have been held up because of the long dispute. It has been a very difficult time for those in areas where fire services have already been modernised. South Shropshire, the area of my honourable friend in another place, is definitely ahead of the game. In Northumberland, where I live, the whole service is run by retained fire-fighters. If the Government are going to enact the Bill, we would like to know precisely how they will deal with that situation. What happens where some areas have modernised and others have not?
The whole sorry saga emphasises one of the Government's problems—their inability to put what they say into practice, particularly on decentralisation. The regions Bill would decentralise, but the Government are not giving away enough power. They say that in the Local Government Bill they are giving away powers. Indeed they are, but the powers are all hedged around bureaucracy, detail and a little bit of clawing back all the time.
The Bill involves a centralised settlement. Employers in local government managed to reach a settlement. However, they could not continue with it: when the Government decentralise and give away power, they are very reluctant ever to give away the financial power that goes with it. If the employers had been able to have the financial power, as they wished, we would not be in the current situation. That highlights the Government's problem.
We have said before, both in another place and in this House, that we think this is the right strategy but the wrong tactics. We certainly agree, as my noble friend said, that pay and modernisation must be linked. We agreed that we needed to set up a review, and we agree with the Bain review.
However, there are problems. When the various settlements have been discussed, obviously there has not been very good communication between the various people listening to what the settlement might be. Clarity of information for members making decisions about offers is very important.
If the Government were to implement the Bill, the practicalities would be quite difficult, particularly as some areas have modernised and others have not. But, above all, it would involve a centralisation of power. Local authorities have not been able to achieve the settlements that they wanted.
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We were challenged as to whether we had the spine to support the amendment. As my noble friend Lady Hamwee made very clear, much as that might be our desire it is not what is normally done in this place. The noble Lord, Lord Campbell of Alloway, agrees with us. Nobody, other than the Government, seems to support the Bill—that applies across all sides of both Houses of Parliament. The noble Baroness, Lady Turner of Camden, said that the Government really should think again. This debate has shown them that that is the view across this House and another place.
7.50 p.m.
Lord Dixon-Smith: My Lords, in his introduction the Minister very nearly provoked me. I have always been a radical on the reform of your Lordships' House and it is very tempting to persuade him to get his colleagues in another place to do something drastic. However, I must not let my personal position intervene.
I am bound to say that I read this Bill with very mixed feelings—a combination of amazement, horror, despair and regret. In the late 1970s/early 1980s, I was chairman of the Association of County Councils' Fire and Civil Defence Committee. I was also a member of the National Joint Committee. The reason for my mixed emotions is the fact that in the fire service nothing has changed. The noble Lord, Lord McCarthy, made this point. The settlement in the 1970s which created a mathematical formula for the settlement of pay differences in the Fire Service killed the ability of the NJC to negotiate. As a result, the Fire Service has ossified and the same problems that were there in my time are still there today. The impossibility of changing things is a matter of serious regret.
There is another problem. There is a Jekyll and Hyde characteristic to members of the fire brigades service. When they are attending an emergency, we see their Jekyll characteristic at its best. Unfortunately, when they act collectively—this has been the fact over many years—we see the Mr Hyde characteristic. There has been a build-up which led to the crisis earlier this year. The union embarked on a series of brief national stoppages which eventually coincided with the build-up of the Iraq war. We then began to see pictures in newspapers of soldiers waiting for something to happen and dealing with it competently when it did. Those soldiers should have been somewhere else. Those images did great damage to the Fire Service. People began to question whether the high reputation that they had previously enjoyed was still so thoroughly deserved. I regret that.
There is a sense in which this Bill is equitable. It hits both the employers' and the employees' side on the National Joint Council. The employers are hit because the Bill gives the Minister power over the property which they presently control. It hits the employees because it gives the Minister power to fix and modify conditions of service. To the extent that the NJC must have a share in the responsibility for the present situation, that division is a fair one. But it takes two to reach an agreement.

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Even when there have been attempts to move the Fire Service out of its ossified mode, it has been difficult to do so. I would, and could easily, go into the problems that arise from conditions of service issues. The Fire Service agreements with employees are extraordinary. There are a number of what I would describe as "old Chinese practices" that have no place in this modern age. They must be dealt with.
Like everyone else in the debate, I find the presence of the Bill regrettable. The Government are embarking on a slippery slope. The Liberal Democrats have rightly made much of its being in complete conflict with the principle of devolution that the Government have preached since they came to power, particularly relating to local government.
Looking under the surface at the detail of any such legislation, one finds that devolution has written into it a much greater degree of central control. Here is a Bill that brings that central control slam bang to the Floor. There is nothing hidden or covert about this.
This Bill is here, and it must be dealt with. My noble friend Lord Campbell of Alloway has rightly said that we do not oppose government Bills as a matter of practice on Second Reading in this House, and we will maintain that principle. However, that does not make the Bill right. We must ask the Government where they go from here.
Suppose some other aspect of the public service gets under the Government's skin in future negotiations. Suppose some sector of other public service employees decide that they do not like their settlement, which may well have gone through agreed procedures, and decide to take action against it. We have a deep and fundamental problem. The route that the Government have gone along cannot be sustained in a reasonable society.
It is true that matters in the Fire Service must change. I sometimes feel that I understand why the Government feel that they must have this bludgeon in their hands, but that is what it is. We must recognise it as such. If that is what we are coming to, the Government are heading into fields of unforeseeable difficulty, and they are beginning to sow the seeds of their own destruction.
7.58 p.m.
Lord Evans of Temple Guiting: My Lords, we have had a wide-ranging debate. Perhaps my noble friend Lord Rooker and I feel lonely, but so be it. A number of important points have been raised. I shall try to answer most of them, but since we are at the early stages of this process some matters must he left for the Committee stage.
I must deal with the Government's reasons for proceeding with the Bill. First, let me reiterate the points made by my noble friend Lord Rooker. As he said, we welcome very much the FBU's acceptance last week of the employers' pay and modernisation proposals. Our preference has always been for the employers and the FBU to reach a negotiated settlement. We are greatly encouraged by the process
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so far and the progress that has been made since the introduction of the Bill. With the headline agreement now in place, we hope that the two sides can move forward in partnership with the Government to deliver a modern, more effective fire service.
As my noble friend Lord Rooker made clear, there is still much to negotiate. Many noble Lords argued that we have a settlement. We have a conditional settlement. In the agreement, the pay increases in stages 2 and 3 are subject to the completion of all the negotiations and consultations referred to in the agreement and, where appropriate, their ratification by the Fire Service national employers, the Fire Brigades Union and the Government. There must also be verification by the Audit Commission. We have made enormous progress, but we do not yet have a final settlement.
There is still much to do. We must negotiate a new pay structure, revised conditions of service, a new pay formula, and so on. We hope that those negotiations will proceed smoothly, but noble Lords will be aware—several have said so today—that the history of the dispute has been characterised by false dawns, with hopes raised only to be dashed at the last moment. We must be certain that history will not repeat itself a little further down the line.
It is therefore right that we should proceed with the Bill so that, if those detailed negotiations falter, we can take action to get things back on track. I am sure that noble Lords will not welcome having to revisit the issues if the detailed negotiations that will follow the main agreement fail to make progress and we find ourselves back at square one.
Lord Wedderburn of Charlton: My Lords, I am much obliged to my noble friend. Can he tell me of any major agreement—especially in the public sector—in the past 30 years in which the parties have not had to negotiate serious and central issues in the course of applying that agreement? What would be the difference between this agreement and those agreements, given the Government's case that they must have power to apply their own interpretation of the agreement in its application?
Lord Evans of Temple Guiting: My Lords, I defer to the noble Lord's knowledge of trade union law. I am not in a position to give him an example. I can say that this is a vital public service. We have had an extraordinarily difficult year of negotiation. This is the Government's way of putting in place a framework that will mean that the public are protected if things get difficult again.
I return to the points I was making. The Bill is a stopgap; it is a long stop. We realise that it would be appalling to define the future of the Fire Service in the aftermath of the dispute with this Bill. As my noble friend Lord Rooker said, the Bill is a temporary measure, designed for a specific task. Our long-term strategy for the service will be set out in our forthcoming White Paper, to be published shortly—I

1039
can say no more than that—and we will seek legislation to implement the White Paper proposals at the earliest opportunity.
The powers in the Bill will, to all intents and purposes, lapse after two years, by which time we hope that the process of modernisation—with its expected benefits both in terms of public safety and in giving fire fighters even more rewarding careers than they have now—will be well under way.
I should like to—
Lord Campbell of Alloway: My Lords, I have a point for clarification. Is the noble Lord saying that there will be a White Paper, after which there will be another Bill? Did I mishear him? We would be going slightly mad if every collective agreement had to be ratified by a form of legislation. I may have got it wrong.
Lord Evans of Temple Guiting: My Lords, I think that my noble friend Lord Rooker, in his opening remarks, said that the Bill will be about the new Fire Service, not about the dispute. I should like briefly to dwell on a few points made by noble Lords. My noble friend Lord McCarthy, in introducing his amendment, twice said that he did not want to traipse over the settlement. I hope that I have explained that this is not a settlement; it must be described as a conditional settlement. He also talked about it being imposed, but it was interesting—
Lord McCarthy: My Lords, I thank the noble Lord for giving way. I do not want to tread over the ground raised by my noble friend Lord Wedderburn but I do not see that this agreement is any more conditional than thousands and thousands of agreements agreed every day. In a sense, the only simple unconditional settlement is one that just depends on giving the boys and girls the money—4 per cent. Once one gets to conditions, all agreements are the same.
Lord Evans of Temple Guiting: My Lords, in the view of the Government the Bill is prudent. My noble friend Lord McCarthy and I will have to agree to disagree on this point. It was interesting that the FBU agreed to the conditional settlement knowing that the Bill was in the House of Commons. I believe that the noble Baroness, Lady Hamwee, raised the point about the attitude of the FBU to the agreement. My noble friend Lord McCarthy also talked about arbitration, as did the noble Lord, Lord Campbell of Alloway, and my noble friend Lord Lea of Crondall. My noble friend Lord Lea also argued, as did the noble Baroness, Lady Hamwee, that the Bill was not amendable. We disagree. We think that the Bill is amendable. If amendments must be tabled for Committee, we shall look forward to debating them.
Lord Campbell of Alloway: My Lords, no, this is quite serious. This is a specific one-object Bill which cannot be amended in the way that I wish to amend it.
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That is what I was saying. It can be amended within its object but not to meet the McCarthy point or my point or the Liberal point.
Lord Evans of Temple Guiting: My Lords, this Bill is about one dispute. It is not about the whole public sector. We do not believe that the arbitration road is the one to take. It is right that the democratically elected Secretary of State with overall responsibility for the Fire Service is the appropriate person to settle disputes if the two parties cannot agree. The major causes of disagreement in the recent dispute have been issues which are not capable of being arbitrated—for example, how the service should move from nationally prescribed standards of fire cover to a locally determined risk-based approach to fire cover.
The Bill requires the Secretary of State to consult negotiating bodies on his proposals for fixing or modifying conditions of service. This means that he can take their views into account before making his final decision. The noble Baroness, Lady Hamwee, asked some very interesting questions. She said that there were two matters on which she would like answers today—that is, the sunset clause and the Joint Committee on Human Rights. My noble friend Lord Rooker leapt to his feet and gave her an answer on the sunset clause—a matter also raised by other noble Lords—to which we shall have to return at a later date.
I can answer some of the questions that the noble Baroness asked. The Bill has no effect on the ability of fire brigade members to take strike action. In the view of the Government, employees' ability to take lawful strike action should be withdrawn only in exceptional circumstances. We have no plans to do so at present in relation to fire fighters.
Baroness Hamwee: My Lords, if the Bill, as I understood was the case, does not affect the right to strike, is it correct to present it in terms of its inevitably creating a settlement of the dispute? It is possible for the fire fighters to strike against the Secretary of State's attempts to impose conditions.
Lord Evans of Temple Guiting: My Lords, the Bill does not in any way prevent strike action. That is an unambiguous and simple statement. The noble Baroness asked about its relationship to the Local Government Bill, and asked what would happen if that Bill were not passed. In fact, that would have no particular impact on the Fire Services Bill. She also asked about the note in paragraph 5 of the Explanatory Notes relating to Wales. That simply means that the Bill will apply to Wales as it applies to England—that is, it contains no specific provision for dealing with fire fighters or fire authorities in Wales.
The noble Baroness raised the matter of the Joint Committee on Human Rights. I can only repeat—although I shall not do so in full—the statement made at the beginning of the debate by my noble friend Lord Rooker. We do not believe that we are violating any convention, national or international. I am sure that we will return to these matters at a later stage.

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I was grateful to the noble Lord, Lord Campbell of Alloway, for his adherence to convention. Many of his comments were supportive of the Government in that he said that one should never introduce a Bill like this in case of emergency. Exactly. Those are the only circumstances in which the Government would plan to introduce this Bill.
The noble Lord, Lord Wedderburn, made a number of extremely interesting points, to which I am sure that we will return. We do not agree with him, but I am sure that we shall discuss the matter at a later time.
I have dealt with the point made by the noble Lord, Lord Lea, about amendments. Of course, amendments can be tabled.
Lord Lea of Crondall: My Lords, I am very grateful to my noble friend the Minister for giving way. He may be aware that some of us are considering exactly this question of tabling an amendment. Until we get to the debate about the amendment at Committee stage, about variations on arbitration, all I was saying was that the rationale behind the inability to vote down a Bill at this stage was to leave open the possibility of amending it. That was the only point I was making. Will the Minister indicate that he understands that that is our position?
Lord Evans of Temple Guiting: My Lords, I fully understand, and I am most grateful to my noble friend Lord Lea for clarifying the matter.
The noble Baroness, Lady Maddock, raised a number of interesting points. She mentioned the sunset clause. She also asked about the White Paper, which should be coming shortly. The whole question of firemen's pensions will be discussed in the White Paper.
The noble Lord, Lord Dixon-Smith, hates the Bill but seems extraordinarily supportive of the need for change. He referred to Jekyll and Hyde and described the fire service as ossified.
In conclusion, we really do hope that we will not have to use the powers that the Bill will confer. Recent events are very encouraging, but while we hope that the circumstances in which the Government would have to use the powers will not arise, it is right that we take the powers so that we can intervene decisively if the implementation of the agreement between the FBU and the employers is blocked or unduly delayed.
I again stress that the Bill is intended for a specific short-term task—to allow us to deal with the dispute and its immediate aftermath. Our long-term vision for the Fire Service will be set out in our White Paper with legislation to implement its proposals being brought forward as soon as possible thereafter. That is why we have agreed that the Bill, if enacted, should have only a limited life. I commend it to the House.
8.15 p.m.
Lord McCarthy: My Lords, like the noble Lord,
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Lord Wedderburn, I should like to thank all those who participated in the debate. It has been an excellent debate.
I should like to start by dealing with the arguments of those in favour of the Bill, which will not take me very long because that amounted to the Ministers. Their best argument was that the Commons had already decided the issue. That is a very strong argument and I am a great believer in the supremacy of the House of Commons. It was the best argument they had. But the trouble with it is that, as other speakers said, the Commons did not take very long to decide the matter. They could not find more than one Back-Bencher who had a good word to say for the Bill. The rest of them just stayed mum and voted. Although I am a great admirer of the House of Commons, we all know that that is one of the things you have to get used to in the Commons. That is the way they carry on. But they do not necessarily vote in a heartfelt way. Indeed, I do not think that the Ministers commended the Bill to the House in a heartfelt way.
I tried hard to find out precisely what the Secretary of State said about the Bill. That was difficult. I believe—I have marked this at col. 861 of Commons Hansard—that he hoped that the Bill would go away. That was before the settlement. He seemed to say that if only the Bill would go away there might be a settlement, and that if there was a settlement, the Bill could go away. I believe that most of us thought that it would go away. But all of a sudden it is here with us and the Government must explain why it is with us. The more they explain why it is with us, the worse it gets. They say that it is with us so that if anything goes wrong, we can thump the union with it, we can enforce the contract and we can go on doing it so long as we do not get rid of the orders. That does not help them get support, it just makes people feel that it is rather a shoddy affair.
That is why I have had—the Government ought to think about this—such widespread support this evening. I can say with confidence that I have won the argument because no one has defended the Bill, not even the Ministers other than to say that the matter was decided in the Commons. We were told by speakers on all sides of the House that the Bill will be resented by the fire-fighters. Of course it will. We were told that it could lead to precedents. Of course it could, because otherwise why are the Government enacting it now? They are thinking of the future, and not only the future as regards the Fire Service. The trouble with the 1947 Act was that it served as a precedent. But if this Bill is put on the statute book as it stands at present it will be a real precedent. It can serve as a precedent to be applied to doctors, nurses or others if the Government consider that they are being as awkward as the firemen. That was said not by me but by noble Lords on the other side of the House.
Most importantly, I believe that everyone who spoke, apart from the Ministers, told us that the great weakness of the Bill is that it does not allow the trade union side to have a fair hearing. It addresses only employers. It does not even provide for mediation or inquiry. It certainly does not provide for arbitration.

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All you get is the voice of the employers or the ghost in the bargaining table behind the employers, and there is no independence at all. I leave the Government with that thought.
It is not true that we cannot amend the Bill. I never said that we could not amend it. I will give your Lordships a tremendously important example of why that is so. We do not believe that it can be said that the Bill as it presently stands will not affect the right to strike. This is not the time to deal with the matter. This amendment is worth having. We could ask the Government to make it absolutely clear, in a modern version of the terms in the Trade Disputes Act 1906, that as a result of this Bill no court shall entertain an action that detracts from the present protection of industrial action. We could and will find an important amendment, and I hope that everyone who has expressed views about the strong weakness of the Bill will help us to pass it.
We could therefore find an amendment, but we cannot get to the heart of the Bill. We cannot provide the alternative. We do not have the cheek. The Prime Minister and the Cabinet must do it. The Government must decide that they do not want to continue marching down this defile in which more and more workers have no independent assessment of the justice of their cause. That is not possible. They must think of that. I am not going to suggest which particular variation of "independent is most appropriate. I agree with the noble Lord, Lord Campbell of Alloway, that it should be a general one, not a particular one. I believe that that is what is being said all round the House.
Let me add two final points. First, I was misrepresented. I never said that nothing had happened in the 25 years since the formula was provided for. The Bain report states that much happened and that many changes were made. The central problem—I say this because I was misrepresented—is that no one has dealt with the basic problem of the varying level of labour demand for the Fire Service. It is an organisation that deals with crises. In the bad old days before the war, the Fire Service was run with part-time workers, such as agricultural workers and dustmen, who attended every time the bell rang, just as they do today. But during the war we put them all on the payroll and gave them decent wages, and we have not since solved the problem.
The management has encouraged the firemen to get second, third and fourth jobs. It is not for this House to complain about second, third and fourth jobs. The present problem, which the Government do not appreciate, is that if we are to get rid of the culture of the firemen having two, three or four jobs, we shall need to provide them with much more to do, and they will have to be paid for it; and that would create a wonderful service throughout the country. Of course, we would not make any money from it. There is no such thing as a self-financed productivity deal in a fully-funded social service that does not charge for its product. The provision of better hospitals and police
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stations costs more money. It may be that better police stations help to catch more criminals, but it is not a self-financing productivity task.
In conclusion, I want to speak to my friends about two points. First, I have sat in this House since 1976 and, although I have abstained, I have voted against my party only once. Therefore, if I voted against my party on this occasion, I would not do so lightly. Secondly, I do not see voting against the period of a Bill, putting it on the top shelf, as the same as voting against the Bill. I see it as the only possible way of dealing with the problem. Therefore, with the degree of support that I have had in the House today, I am left with no alternative but to beg leave to press the amendment to a vote.
8.25 p.m.
On Question, Whether Lord McCarthy's amendment shall be agreed to?
Their Lordships divided: Contents, 4; Not-Contents, 61.

Division No. 4

CONTENTS

Clarke of Hampstead, L.

Turner of Camden, B. [Teller]

McCarthy, L. [Teller]

Wedderburn of Charlton, L.

NOT-CONTENTS

Acton, L.

Graham of Edmonton, L.

Alli, L.

Grenfell, L.

Amos, B.

Grocott, L, [Teller]

Andrews, B.

Harris of Haringey, L.

Archer of Sandwell, L.

Harrison, L.

Ashton of Upholland, B.

Haskel, L.

Bach, L.

Hayman, B.

Bassam of Brighton, L.

Hilton of Eggardon, B.

Bernstein of Craigweil, L.

Hollis of Heigham, B.

Brooke of Alverthorpe, L.

Listowel, E.

Burlison, L.

Macdonald of Tradeston, L.

Carter, L.

McIntosh of Haringey, L.

Chandos, V.

McIntosh of Hudnall, B.

Clinton-Davis, L.

MacKenzie of Culkein, L.

Cohen of Pimlico, B.

Massey of Darwen, B.

Corbett of Castle Vale, L.

Milner of Leeds, L.

Crawley, B.

Mitchell, L.

Davies of Oldham, L, [Teller]

Morgan, L.

Desai, L.

Parekh, L.

Donoughue, L.

Pitkeathley, B.

Evans of Parkside, L.

Ramsay of Cartvale, B.

Evans of Temple Guiting, L.

Rendell of Babergh,B.

Farrington of Ribbleton, B.

Rooker, L.

Faulkner of Worcester, L.

Scotland of Asthal, B.

Filkin, L.

Simon, V.

Gale, B.

Symons of Vernham Dean, B.

Gibson of Market Rasen, B.

Thornton, B.

Golding, B.

Warner, L.

Warwick of Undercliffe, B.

Gordon of Strathblane, L.

Whitaker, B.

Gould of Potternewton, B.

Whitty, L.

Resolved in the negative, and amendment disagreed to accordingly.
On Question, Bill read a second time, and committed to a Grand Committee.

Children
8.36 p.m.
Lord Carlile of Berriewrose to ask Her Majesty's Government what alternatives to custody they are considering for children who commit offences.
The noble Lord said: My Lords, when the Minister from the Home Office takes her place, I shall have some pleasure in welcoming her there in her new role. Perhaps I shall get on with some other points while we await her arrival. I am sure that she will be with us very shortly.
Lord Haskel: My Lords, perhaps I may suggest that the House adjourns during pleasure for five minutes.
Noble Lords: She is here!
Lord Carlile of Berriew: My Lords, in the presence of the Minister I should declare my interest as the outgoing chairman of NACRO's committee on children and crime, which has produced a number of reports on issues related to the Question that I raise tonight. I should like to repeat in her presence my welcome to her in her new role. As a key Minister, it is a most challenging role in the Home Office. I am sure that her somewhat late arrival for the debate was because she was poring over the many papers that she has already in her Red Boxes.
I would like to start with a question on a more or less mechanical issue, a question about procedure and the way in which youth justice will be dealt with in future. When the Minister responds to the debate, I should be grateful if she could say a little about the future of the Youth Justice Board. There has been speculation in the press that, for all I know, may be totally ill-informed. However, it would be useful to be told by the Government whether the Youth Justice Board will continue. If it does, will it do so subject to any major reforms? Its chair has taken a promotion in status although, we are told by the newspapers, a small cut in salary to become a Minister. Therefore, it would be interesting to know what steps the Government have taken to find very rapidly a new chair. I would certainly regard the Youth Justice Board as a key body.
I welcome the fact that the Minister in particular is answering the debate. In what I might call real life—the sort of life that she used to live before she became a Minister—she had valuable experience as a barrister dealing with cases involving troubled children. For example, her experience as counsel included part of the North Wales child abuse inquiry—the Waterhouse inquiry. A number of us in the House tonight have experience of dealing with very serious cases involving troubled children who have been victims of child abuse. We know that the witnesses who give evidence as adults to criminal courts, or to inquiries such as Waterhouse, have had troubled, abused and criminal childhoods, often involving long periods in custody. Their history as children is in part what has made them into adult criminals. That troubles me as an individual
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and moves me to ask this Question. The evidence available to researchers—it has emerged in the work of NACRO—attests that children in serious trouble show, albeit sometimes in an antisocial and florid way, exactly the same characteristics as do children in need who do not commit serious offences. The problem therefore is plainly the same; the answer we give is often quite different. I would ask whether we are justified in being quite as brutal as we are as a society with some children by incarcerating them for long periods when in reality we are dealing with children who have been socially exclused.
I should like to look at the typical characteristics of these children. Whether they commit serious crime, or are simply socially excluded, these children have typically lived in poverty and been deprived of comfort. Visiting young offender institutions, I have noticed that they perpetuate the complete lack of comfort in children's lives, brutalising them. Although I welcome internal sanitation in prisons, in some young offender institutions, young people are locked in cells for a very long time every day, and it can be justified because they do not even have to slop out any more. They can live their whole lives in the cage, their cell.
Many have been deprived of conversation. No one bothers to talk to them, and their parents have never had the art of conversation. At best, they listen to conversation on the television. Most have had a depressingly poor education—the numeracy and literacy rates of many young offenders are appalling before they come before the courts. They have often had bad housing; family tension has been almost inevitable; often, one—or both—of their parents has committed crimes; and there has been substance misuse in the family. I refer not only to drugs misuse but to serious alcohol misuse in many of their homes. A higher than average incidence of mental ill health arises from these factors.
That is the profile of the people we are incarcerating—in great number—while they are still children. We and the Government must ask ourselves whether we cannot do better. In our sophisticated society, committed to giving resources to these issues—the Government will pay for prisons—one is entitled to expect not only convenient practice, but empirical best practice.
Therefore, it is disappointing and sad to find that on the two occasions it has reported since the United Kingdom ratified the United Nations Convention on the Rights of the Child 12 years ago, the relevant UN committee has been critical of us. Most recently, in 2002, the UN Committee on the Rights of the Child was especially critical of the youth justice system in England and Wales.
The starting point of much of the criticism is the age of criminal responsibility. Once a child can be convicted of a crime—and there is no real difference between the phrases "a finding of guilt" applied to youngsters and "conviction" applied to adults—they have reached the age of stigma: age 10 in this country. It is the lowest in Europe. I have tried very hard to find

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a reason why Britain should have the lowest age of criminal responsibility in Europe. It is even lower than in Turkey, which has a poor record in criminal justice issues on any objective investigation. In the Netherlands the age of criminal responsibility is 12; in France it is 13; Germany, 14; Denmark, 15; and in Belgium it is 16. Those are just examples.
I visited all of those countries, some on several occasions, and I have not observed wild criminal children marauding the streets to any greater extent than one finds in Wickham, Welshpool or any other average town or city of this country. Those countries manage the issue without including children in the often bemusing and sometimes plainly inappropriate court structure. All those countries avoid convicting children under the age of criminal responsibility. It is not that they do not do anything; of course they do something. They have to deal with the social exclusion problems that those children present, but they do it without involving the court structure. It seems to me that it is self-evident that if in other civilised countries a higher age of criminal responsibility works and produces a lower rate of adult conviction as it appears to, it should be able to work here and I would ask the Government to consider that.
Nor do we shrink from locking up large numbers of children. The United Nations committee suggested in 2002 that the United Kingdom may be in breach of its international treaty obligation, which is to use custody for children as a last resort and for the shortest possible time. Proportionally—I am afraid I find these statistics breathtaking—we send four times as many under-18s to custody as France; 10 times as many as Spain and 100 times as many as Finland. Finland may be a particularly peaceful country, so let us take Spain as our parameter.
Custodial sentences for children under 15 have increased by 800 per cent in 10 years, with black children five times more likely than white children to be locked up. That tells us that there is a malaise in the way in which we deal with children who commit crime because there is certainly no evidence that it works.
The evidence is clear. We are not using custody as a last resort and the category of grave crimes leading to longer sentences is far too wide. I would hope that a Government who have the courage to abolish the ministerial role of the Lord Chancellor after 1,000 or 1,300 years, however many it is, should have the courage to be radical on an issue which affects the future of real children in our society.
What is more, I say to the noble Baroness that that would work on value-for-money grounds. Six months of an intensive supervision and surveillance programme out of gaol costs £6,000. That sounds like a lot of money, but keeping the same child in custody for six months costs £21,000. That is the price of a place at Eton for half a year in a young offender institution. That sounds like pretty rotten value to me. Indeed, we would probably do better with them if we sent them to Eton than to young offender institutions. What a ridiculous situation that is.
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Furthermore, the recidivism rate is frighteningly high after incarceration. There is a reconviction rate of 80 per cent within 20 years for 14 to 17 year-olds. The detention and training order has been introduced into custodial institutions but there is absolutely no sign of that having a lower recidivism rate so far. The Youth Justice Board gave an undertaking fairly recently that it would remove girls from custody and put them into local authority care but it has not. So, plainly, the figures went down and then went up again. Unless the Minister can produce some new and more recent figures, that is a failure of the system too.
There is much evidence that leads one to the conclusion that taking children out of custody, save in those rare cases where society really has to be protected, is a much better option. Education is better outside the detention estate; medical provision is better outside the detention estate; and they learn to live real life with real people, particularly if they have the support of the Probation Service, for which I have the highest praise for what it does with young people.
I invite the Government to consider that it is time to shift from a punitive agenda to restorative justice for children who commit serious crime, to look at the proposals that come from organisations like NACRO and to seek to give the country value for money in terms of youth justice outcomes.
8.50 p.m.
The Earl of Listowel: My Lords, I thank the noble Lord, Lord Carlile, for the opportunity to debate this important issue. I apologise for not being in my place for the first three minutes of his speech. I shall study carefully what he said tomorrow.
I seek assurance from the noble Baroness that Her Majesty's Government recognise the chronic emotional needs of many of the children we are discussing and that responses to their offending behaviour should include consideration of those emotional needs. As the noble Lord, Lord Carlile, said, many such children fit into the welfare provision rather than the penal provision.
A large number of the children are either in care or care leavers and they are in that position as a consequence of family dysfunction. Often their parents—those who should have cared for them most—have been either neglectful or deliberately destructive towards them. Often the parents have been emotionally maimed by experience of their own parents.
Such children are often unable to blame their own parents. For a child to admit that his parents have not valued him is normally difficult. It would be akin perhaps to the shock of a devout Christian finding that God thought that man had no importance. All the young person's rage at his rejection is either directed at himself or at other adults in the wider society.
Yesterday I attended a meeting of the All Party Parliamentary Group for Children and Young People in Care and care leavers. A young man told us that he had experienced 15 placements, 15 different homes, while he had been in care. There was a sense of outrage

1049
in the room because Her Majesty's Government had decided that they would no longer fund the programme supporting advocacy for care leavers by care leavers. What truly enraged the young people was that there was to be a succeeding meeting to which only adults were invited and no care leavers had been invited.
There was such distrust among those young people of the adult world. Yes, that was in part because they had experienced a care system in which we have chosen not to invest over many years. I add in parenthesis that I very much welcome Her Majesty's Government's recent attempts to rectify the situation. They also manifested the distrust and animosity towards adults natural to those who had been let down by their parents.
Were custody arranged on humane lines, were it to address the emotional and other needs of these children, there might be a place for it within the range of appropriate responses. However, we have generally failed to invest in high quality secure accommodation. Children, who are the most difficult inmates to manage, have not been cared for by appropriately trained, supported and supervised staff. The custodial environment has not evolved to meet their needs. Nor have there been the essential arrangements to ensure a smooth transition from community to custody and from custody to community.
The noble Lord, Lord Carlile of Berriew, described some hopeful alternatives to custody. I observe that those providing supervision and surveillance of children need to be well trained and well supported in what they do. Often the children they manage will be thoroughly provocative for the reasons I have described. They may attack their supervisor in different ways as a representative of the adult world. It will be necessary for the supervisor to respond with firmness but to avoid being pushed into the overly punitive or neglectful behaviour of the child's parents. He may need the self-possession of a saint. He will require enough of an understanding of child development to see where the child is coming from and not to take the child's aggressive behaviour personally. He may need to see colleagues and to experience supervision regularly to enable him to cope. If he can avoid being "destroyed", as it were, by the child, or being provoked into an over-harsh response, if he can maintain a consistent, caring, firm response, it may be that child's first experience of a decent adult carer. That could be of incomparable value in moving the child into a better relationship with adults and the adult world, and consequently away from offending.
At the same time we have to respect the depth of damage that has been done to many young people. Those who provide supervision, surveillance, mentoring or intensive fostering need to know how to refer a child to child and adolescent mental health services. Mental health professionals have to be available to meet that need. It is often important to separate the role of an adult who takes a continuing, caring interest in a child from the adult who helps the child to come to terms with the demons raging within.
1050
An illustration comes to my mind of a child who so provoked his school mates that he was shunned by all of them. The boy was only three years-old. Many of the children of whom we speak have much of a three year-old still in them. The boy's mother ran a small business and had to leave her infant on his own for much of the day. He had nothing to do, no adult available to him, and only saw his mother when she came to tell him off for crying or for being a nuisance.
He began to receive help from a child psychotherapist. At the same time the head of the small school which he attended was consistently firm with him, not overly punitive as his mother had been, but she would prevent him from harming other children or disrupting their activities.
After two years he was still testing boundaries. In the school group the head needed to hold his hand if he were to concentrate on an activity. But he had made such progress that he had become the most popular child among his nursery mates. One parent wrote to the head saying how her daughter had most particularly wanted the boy to come to her birthday party.
I conclude that many of these children will provoke their immediate carers. They will provoke us, the adult world. If they succeed in provoking in us an overly punitive and harsh response, we will confirm to them what they already know—that the adult world is uncaring and that they are worthless. Their consequent rage will either be spent on ourselves or on themselves. If we can provide them with a firm, but fair response, we may begin to assist them in making peace with the adult world.
I join with the noble Lord, Lord Carlile, in calling for more government investment in alternatives to custody. Can the Minister say when intensive surveillance and supervision provision will be available nationally?
8.59 p.m.
Lord Thomas of Gresford: My Lords, in a debate held not very long ago, I said that in my view the only real achievement of the Government in the criminal justice field was the Youth Justice Board. I am distraught to hear that it is under question at present. I was very much impressed by the leadership that the noble Lord, Lord Warner. had given to that board.
I quote from Sir David Ramsbotham's report of 1997 in which he said,
"The vast majority of young people in custody need individual attention given to the problems which produce their criminal behaviour. If all they get is akin to being stored in a warehouse, then the chances of their re-offending, creating yet more victims, are very great indeed."
Since that time, the Youth Justice Board has introduced some positive initiatives. That gave us hope that things would be done, but, as the noble Lord said, not much has happened.

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I shall explain the importance of the issue. My noble friend Lord Carlile and I are very familiar with the histories and psychiatric reports that we read—no doubt the Minister is, too. I know of a case involving a man in his 60s who is said to have grown up in a home atmosphere that was mixed up as a result of his father's violent streak. He ran away at the age of 12 after being physically abused by his father. That is typical causation of criminal conduct—the man's offending began at age 12 and he is now in his 60s. So much starts at that age. My noble friend Lord Carlile referred to several matters, to which we could add sexual abuse in the home, drug abuse and personality disorders, which have been identified as causing offending behaviour.
In a report published in 2002 by the Children's Society, Vulnerable Inside: children in secure and penal settings by Barry Goldson, a survey showed that 48 per cent of 15 and 16 year-old boys on remand in Prison Service custody had been living apart from any member of their family immediately prior to remand and 12 per cent were living rough. While most said that they wanted to talk to somebody, only 68 per cent considered that, throughout their period of' growing up, there was nobody to whom they could turn. Forty-eight per cent had been permanently excluded from school and a further 36 per cent reported that they simply did not go to school at all. Twenty-eight per cent were suffering physical ill health and 28 per cent reported a history of mental ill health.
That is an unacceptable way of dealing with children. On previous occasions, I have urged this Government to take account of the children's panel system in Scotland. Under that system, the reporter receives referrals—mainly from the police but sometimes from other agencies—and can refer a child suffering from difficulties for a hearing. Those children's hearings are founded on several fundamental principles. The key principle is that it is to promote the welfare and best interests of the children. The second is that the cases should be heard by lay tribunals comprising representatives of local communities in a non-adversarial and relatively informal setting. A further key principle, which we have heard about from our Scottish friends, is that there should be an opportunity for children and their parents to participate in discussion on the nature of the difficulties they faced and framing proposed solutions. A fourth principle is that there should be a separation of responsibility for deciding on disposals from the determination of the facts, including guilt or innocence. If it is suggested that a crime has been committed, the sheriff may deal with the criminal aspect but disposal is referred to the children's panel so those procedures can be effective. The procedures are far better than the offence-based approach in England and Wales.
The basic problem of dealing with children in England and Wales is that, from age 10 onwards, they are faced with crimes that they are supposed to have committed, and the whole system is geared to a hearing. That is an unsatisfactory way of proceeding. I hope that noble Lords will forgive me for running slightly over the allotted time. My noble friend Lady
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Walmsley is absent after her exhaustive efforts with the Sexual Offences Bill. It is very important that the Government should take account of practice in Scotland and on the continent and put the interests of children first.
9.05 p.m.
Lord Skelmersdale: My Lords, last time I spoke in a debate with the noble Baroness, Lady Scotland, she commented that I was being succinct. My noble friend on the Front Bench whispered to me sotto voce the word "creep". Be that as it may, among all the other problems currently facing the Government today, thanks to the eloquently introduced debate by the noble Lord, Lord Carlile, we are to consider the plight of offending children.
New mechanisms were introduced on the back of the Crime and Disorder Act 1998, including final warning schemes, reparation orders, action plan orders, child safety orders and parenting orders. In these subsequent intensive supervision and surveillance programmes, too many children continue to be held in prison on remand or under sentence. They are held either on a detention and training order for the 12 to 17 year olds or under Sections 90 and 91 of the Powers of Criminal Courts (Sentencing) Act 2000. This covers children aged 10 to 17 convicted of a grave offence.
It is a worrying fact that the latest statistics that I managed to find show that in 2001 receptions of 15 to 20 year olds were 19,699 males and 1,270 females. The figures in 1997 were 19,890 and 853 respectively. That is an overall increase of 5 per cent, but a much more worrying increase among young girls. The noble Lord, Lord Carlile is absolutely right to be concerned. I recently read a report on a visit to Holloway conducted between 8th and 12th July last year by the Chief Inspector of Prisons. The report was published on 18th February this year. I was shocked to read that in that time 13 girls under 18 were held in Holloway and that three were pregnant. I was even more shocked to discover that they only managed to achieve two total bodily washings a week. They are not supposed to be there at all. The chief inspector described this ongoing situation as both inexcusable and depressing and appealed to the Home Office to do something about it fast.
I was then somewhat surprised when the Director-General of the Prison Service responded by blaming the Youth Justice Board. This may have something do with the comments referred to on the Liberal Benches about possible changes to that board. The accusation was that they were not providing places elsewhere. Why? Do they not have the money? Do they not have the function? Do they not have the policy? We all agree that prison is the wrong place for these children.
I pay tribute to her and the work that she is doing, and also to her predecessor, with whom I played bridge only this week. I also pay tribute to the Howard League for Penal Reform, for bringing a case to judicial review in November 2002. This resulted in a High Court judgement that safeguarding the welfare

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of children in custody was the responsibility of the local authority. Commenting on the case, Mr Justice Munby said:
"There are things being done to children by the state—by all of us—in circumstances where the state appears to be failing and in some cases failing very badly, in its duties to vulnerable and damaged children."
I do not like youth custody. But, alas, it will always be necessary in very rare cases.
I therefore believe that custody for young people should be a last resort, once other options have failed. However, there should also be a provision to impose custody earlier if it is clear that the young person is out of control and is a danger not only to himself, but also to the community.
It can be universally agreed that custody, used appropriately, can have a highly constructive role to play in reducing offending and promoting rehabilitation. It is difficult to turn around the behaviour of young people who have reached the point of being sentenced to detention in young offenders' institutions. Many have been convicted on dozens of occasions; are dependent on drugs; suffer from mental illness and have poor levels of achievement, as the noble Lord, Lord Goodhart, said, in reading and numeracy. This is a difficult group to rehabilitate. At present, more than 80 per cent of 14 to 17 year-olds are reconvicted within two years of release from custody. But there are custodial approaches that appear to be working better than that.
I come from the West Country, and I was pleased to note that the Centre for Adolescent Rehabilitation in Devon is a charity that offers a one-stop shop for resettling and rehabilitating 18 to 24 year-old persistent offenders, following their release from prison. This starts with an 11 week-long intensive residential programme in open custody, focusing on personal development and basic skills for 14 hours a day, seven days a week. This period of open custody is followed by nine months of intensive mentoring and support while finding the young men housing and employment. Not all the young men complete what is a tough and demanding programme on their first occasion—but many go on to succeed after two or three welcomes back to the programme. Many participants have Home Office predicted reconviction rates of 90 per cent and more. Yet this charity's participants achieve reconviction rates significantly lower than the norm.
The level of structured support and discipline that the programme gives, particularly in the transition period following release from custody, is a crucial factor in the success of the scheme. It is important, when discussing the use of custody for young people, to recognise the importance of structuring both the period of custody and the period of release from custody, if it is to be constructive and rehabilitative.
I am sure that the Government would agree that the best alternatives to youth custody are those that get young people off the conveyor belt to crime much earlier in their lives. This means tackling the problem
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of children progressing from disruptive homes to problems in school and petty crime, through to serious crime and repeat convictions.
My right honourable friend the shadow Home Secretary has talked about his desire to extend the availability of programmes through voluntary organisations that can help parents and address early troubled behaviour. He has also proposed that we should actively identify young people who are on heroin and cocaine—to say nothing of glue sniffing and general solvent abuse—to present them with a choice: treatment or the criminal justice system. Measures such as these can tackle offending behaviour effectively and early, offering a way to reduce the need for custody later down the track.
Au fond, I agree with the noble Lord, Lord Carlile of Berriew, that this is a social and not a criminal problem. I believe that the way to tackle it is from the beginning. Children are not born bad; they become bad because of poverty. I pay tribute to the Government for their more generous financial support to families with children than that which we were able to provide.
These children also become bad because of poor housing, poor health, bad teaching and, perhaps worst of all, bad parenting skills. I am delighted to see that lessons in parenting skills are beginning to be introduced in schools. Perhaps I may give noble Lords an example. I saw a young girl this morning who was a model student at school, but a totally disruptive force at home. My desire will obviously take some time to work through, changing human behaviour being as difficult as it is. However, that is no excuse for the Government, and, indeed, all of us, not to try.
9.15 p.m.
Baroness Scotland of Asthal: My Lords, I thank all noble Lords who have spoken and I thank particularly the noble Lord, Lord Carlile of Berriew, for calling for the debate. Although we are few in number, it is an important debate, and I express my pleasure at being able to respond to it. I also thank the noble Lord for his kind compliments. I take the opportunity to acknowledge the valuable contribution made by the noble Lord, Lord Carlile of Berriew, to the work of NACRO in looking at ways to reduce child imprisonment. The issue demands our attention and our time.
As each noble Lord said, we know that young people under the age of 18 are responsible for a disproportionate amount of difficulty and crime. We know that the reasons why they commit those crimes are disparate. The noble Lords, Lord Carlile of Berriew and Lord Thomas of Gresford, alighted on some of them, as did the noble Earl, Lord Listowel. It is right to say that we must address those issues with vigour.
In London, for example, something like a quarter of burglaries are committed by 10 to 16 year-olds, as are a third of car thefts. The priority must be to prevent offending in the first place. If a child or young person commits an offence, the priority must be to deal with

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them as constructively as possible in the community. The Government believe that custodial sentences should be the last resort for juvenile offenders. It is for that reason that there is now a wide range of community-based penalties and interventions within them that are targeted at young people who would otherwise face custody.
I know that the noble Lord, Lord Carlile of Berriew, will ask, "Can't we do better?". In the past five or six years, we have done better, and we are trying to do better still. I hope that I can reassure noble Lords that the future of the Youth Justice Board is secure. The Government have no plans to disband it. We shall, of course, have to consider carefully a suitable replacement for the outgoing chairman of the board, the noble Lord, Lord Warner, because of his new position, and we shall put in place arrangements to seek suitable candidates. I do not hesitate to tell your Lordships that we feel that the noble Lord, Lord Warner, will be a hard act to follow, but there are skilled and dedicated people available in the country. We hope that we will find a candidate of sufficient weight and expertise to do justice to the job started so powerfully by the noble Lord.
I can also reassure the noble Lord, Lord Skelmersdale, that the figures are falling. The figures that he quoted from the report are now out of date. I turn to the issue of girls in custody. On 18th February, the board announced its intention to remove all under-17 year-old girls from Prison Service accommodation during 2003 and place them instead in secure training centres and local authority secure children's homes. As of 12th May, there were no 15 year-old girls in Prison Service accommodation, and the number of 16 year-olds was 16. That is in line with the commitment given by my right honourable friend Jack Straw in March 1999, when he said that he intended to use the greater flexibility provided by detention and training orders to place sentenced 15 and 16 year-old girls in available non-Prison Service accommodation.
I shall take the opportunity to apologise for being a minute or two late at the start; I hope that noble Lords will think that I was well employed. I was discussing the issue with the noble Lord, Lord Warner. He was able to assure me that the reason why girls were kept in Holloway—the noble Lord, Lord Skelmersdale, referred to the report—was that, at one stage, the only mother-and-baby unit available for under-18 year-olds was in Holloway. It has the best drug detox service for young women where some remanded young women were able to go with their children. It was better to keep them near their homes than to move them a long way away. So they were kept there on recommendation for a short time.
The noble Lord also made the point that 17 year-olds can be a very difficult age group with which to deal because they do not like to be housed with the 12 and 14 year-olds and very much resent that. They present us with some more complex difficulties, but I assure noble Lords that we are of the same mind as to the best place to house these very difficult young people.
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The noble Lord, Lord Carlile, stressed the importance of early intervention. I agree with him. We believe that the earlier we can intervene to interfere with the aberrant behaviour demonstrated by some of the dysfunctional children, the better, because the more successful that intervention may be. We are keen to ensure that children of a young age are not prosecuted whenever an alternative can be found. We are also looking at other alternatives. The Youth Justice Board is piloting youth inclusion and support panels which are targeting eight to 13 year-olds.
Any agency working with children in that age group which sees them displaying severely disruptive behaviour will be able to refer them to the panel on a voluntary basis. It provides an opportunity to address the anti-social behaviour by referring them to the voluntary panel which will bring together all the key agencies in a position to help. They can be referred on to the mainstream services which can steer them away from future problems, including crime and anti-social behaviour.
I am sure that the experience of the noble Lord, Lord Carlile, is similar to mine. In dealing with these very difficult cases, a holistic approach is needed with all agencies targeting the needs of these children so that they have a realistic prospect of rehabilitation—often before they commit any serious offence. The noble Lord talked about being radical. The Government are quite prepared to be radical and intend so to do.
We are soon to publish the Green Paper on children at risk which will also look at the long-term development of initiatives for children at risk of offending. The paper will identify radical options to improve services for children. It will focus on the identification and tracking of children at risk, including the provision of mainstream and specialist services to them. It will cover all services working with children and young people, including social services and youth justice, as well as the role of schools, families and communities. Of course, I would not say that anything the Scots can do we can do better—particularly not when one has a name such as my own. We certainly intend to be very productive in the work that we are undertaking.
The Government's youth justice policy emphasises, in particular, stopping early offending behaviour patterns and reinforcing young offenders' own sense of personal responsibility for what they have done. We need to understand reasons for crime and do something about them. But not to excuse them. Previously, the prosecution had to prove not only whether a 10 to 13 year-old committed the act, but also that he or she knew that it was not just naughty but seriously wrong to do it. That delayed and interrupted the approaches for justice, including the interventions to tackle offending behaviour.
We made the judgment that children of 10 and above normally know what is wrong—certainly in the area of crime—and that it is in everyone's interest, including that of the young person, to reach a finding and a sentence as soon as possible so that steps can be taken to stop further offending. But it is important for

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us to look at the panoply of orders that are now available and the types of interventions that can be used before a child comes to court. We now have an opportunity for those who prosecute, having been able to speak to the child and the family, to issue a reprimand.
There is provision, too, for a final warning with an intervention or without an intervention—although 90 per cent are with an intervention—about a voluntary programme. The programme involves identifying the child's needs and the source of the difficulty and putting in place a programme that will address them. If there are court proceedings, a far wider range or orders is now available.
There can be a referral order, which is an ability to design an intervention programme and draw up a contract for the young offender. That could include reparation, whether to the victim or the community. It could include an agreement to attend school properly, family group therapy and other issues. If the child does not plead guilty but is found guilty by the court, a reparation order can be made in relation to the offending.
There is the action plan order, the fostering requirement, the supervision order, the curfew order and the ISSP, to which three noble Lords referred. The parenting orders are proving very creative and successful. Even some of those who resist a parenting order initially find it beneficial. I understand that some even invite their friends who are having difficulties to do it on a voluntary basis before an intervention. Those are very good things. At the end of the menu come the detention and training orders, when all else has failed. As noble Lords know, they are part custody and part community orders, for up to two years, so that a year could be spent in custody if necessary and a year could be spent in the community, or any period in between. Those are very creative improvements.
The noble Lords, Lord Thomas of Gresford, and Lord Carlile, will remember the days when such an array of opportunity was not available to the courts. We had very blunt instruments: conditional discharges, absolute discharges, supervision orders, care orders or detention in prison. That was it. We could not target the difficulties that those children had in an effective and productive way that brought about change. We have thankfully been able to make enormous improvements.
I was asked about the intensive treatment provided by the intensive supervision and surveillance programme. That started in July 2001. I agree with noble Lords who say that it has been very successful. Each year it targets 3 per cent of the most serious and persistent young offenders, estimated to be responsible for 25 per cent of these crimes. It is the most rigorous non-custodial intervention available for young offenders, providing the courts with a credible alternative to custody. It combines unprecedented levels of supervision, including electronic monitoring, with programmes designed to tackle the underlying causes of the offending behaviour. Local youth offending teams identify the young people to be
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included and provide an intensive and highly structured programme, which will run up to 24 hours a day, seven days a week.
At present, 70 per cent of the country is covered. We will bring on stream further funding in January 2004 so that we can take the programme nationwide. We have managed to secure £26.5 million per annum for the programme from 2004 onwards. Noble Lords will know that we have already spent £36.5 million setting it up; this year we have spent £24 million on the programme. The programme will be evaluated by Oxford University. That evaluation is due to be completed in 2004. We are going forward, and it gives me great pleasure to be able to reassure noble Lords that we are very much aware of the benefit of taking advantage of this opportunity so as to avoid unnecessary numbers of young people going into custody.
We also accept, as the noble Lord, Lord Skelmersdale, said, that for some children, particularly those who have gone through the whole menu, there is no other choice than to consider custody. In those circumstances we want to make sure that the best interventions are made during the period when the children are in the custody of the authorities. Why is that? It is because often, particularly when there have been difficulties at school and other difficulties, that may be the first opportunity the children have to address their learning difficulties and their offending. That is of extreme importance and we are determined to address that need.
Much has been done but I do not hesitate to tell your Lordships that we believe that there is still much to do. What is heartening, however, is that we genuinely feel that we are on the road to recovery as regards many of these children. That progress has occurred as a result of the efforts made by many agencies coming together to try to tackle the matter. The Government regard tackling children's and young people's offending behaviour as one of their top priorities. As one of our first tasks we overhauled the youth justice system and put in place the reforms that were first set out in the Crime and Disorder Act 1998. I thank the noble Lord, Lord Skelmersdale, for his compliments in relation to what the Government have sought to do in this area. I also thank the noble Lord, Lord Thomas of Gresford, for his warm words.
The overarching goal of the youth justice system was clearly set out in legislation for the first time in the Crime and Disorder Act 1998; that is, to prevent offending by children and young persons. In doing so the Government have signalled their clear determination to tackle the problem constructively and proactively. It is a big challenge and, as I say, there is still much to do, but we have made a start. The ultimate goal for society must be to guide children and young people towards law-abiding behaviour, to keep them out of custodial establishments and to help them to become valuable members of their communities.
House adjourned at twenty-seven minutes before ten o'clock.