Lords Sitting of 17 March 2003

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

NHS Continuing Care: Guidance
Baroness Barker: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as an employee of Age Concern England.
The Question was as follows:
To ask Her Majesty's Government whether they intend to accept the recommendation of the Health Service Ombudsman in the report NHS Funding for Long Term Care that national guidance on eligibility for continuing National Health Service healthcare should be reviewed.
The Parliamentary Under-Secretary of State, 'Department of Health (Lord Hunt of Kings Heath): My Lords, the Government will carefully consider the recommendation of the ombudsman regarding departmental guidance. I said in the House last week that we will carefully review the guidance. Once the process is complete, we will consider whether any further action is indicated.
Baroness Barker: My Lords, I thank the Minister for that Answer. Will the Department of Health also revise the NHS nursing-care guidance to ensure that both it and the guidance on continuing care are compliant with the Coughlan judgment and that older people are not subject to what the ombudsman repeatedly and unequivocally called "injustice"?
Lord Hunt of Kings Heath: My Lords, guidance on NHS-funded nursing care has consistently maintained
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a distinction between NHS-funded nursing care and continuing NHS care. We will be issuing guidance on NHS-funded nursing care in which we will make the same point as I have intimated to the House.
Baroness Greengross: My Lords, I take into account what the Minister has said. Does he agree that, because of the impact the Community Care (Delayed Discharges etc.) Bill and the ombudsman's findings, there could be a greater role for the NHS in arranging and funding the care of people who have left acute hospitals?
Lord Hunt of Kings Heath: My Lords, I am not sure that I follow that argument. As I have indicated, we will review the guidance, but that which has consistently been given to the health service is, in ray view, clear about eligibility criteria for continuing care. The issue raised by the ombudsman is whether some NHS authorities have acted in accordance with that guidance. It is therefore far too early to say that the NHS might in future fund more continuing care cases. However, the ombudsman's report makes clear that the whole assessment and delayed discharge procedure needs to be sharpened up, and that is what the delayed discharges Bill is all about.
Earl Howe: My Lords, but does the Minister not agree that, until there is clarity on continuing NHS care and a patient's eligibility for it, it will be impossible to implement the provisions of the Community Care (Delayed Discharges etc.) Bill with the level of effectiveness for which the Government are clearly hoping?
Lord Hunt of Kings Heath: My Lords, I do not agree because I believe that the issue which arises from the ombudsman's report is not so much about the guidance that has been given to the health service, which follows from the Coughlan judgment, as about the way in which certain NHS bodies have implemented that guidance.

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Annex C of the current 2001 guidance clearly sets out the considerations which NHS authorities need to take into account. Of course we shall look again at the guidance in the light of the ombudsman's report, but it does not follow that there ought to be a major problem in the way in which it operates at local level if NHS authorities follow the guidance that has been set down.
Baroness Chalker of Wallasey: My Lords, will the Minister agree to look carefully at the interface of social services, which I pointed out to him last week, when under the guidance it is not found possible to continue NHS care but when someone continues to need nursing care outside the NHS? I believe that that interface in the guidance is still wrong and I hope that the Minister will take it into account in formulating the eventual legislation.
Lord Hunt of Kings Heath: My Lords, as I said in our debate last week, it is most important to ensure that people do not fall between any gap in the responsibilities of the NHS and of local authorities. I believe that the delayed discharges Bill, by encouraging both the NHS and local government to improve their assessment and delayed discharge procedures, alongside improvements in intermediate care, will tackle the issue raised by the noble Baroness.

Brighton West Pier
2.42 p.m.
Lord Lloyd of Berwick: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as a trustee of the West Pier Trust.
The Question was as follows:
To ask Her Majesty's Government when they expect to reach a decision on the application for a harbours revision order under the Harbours Act 1964 in respect of the West Pier Brighton, submitted on 3rd July 2001.
Lord McIntosh of Haringey: My Lords, there is one outstanding objection to the application and the Harbours Act 1964 requires that when that is the case an inquiry must be held. The Office of the Deputy Prime Minister has decided not to call in the planning application and if the applicants apply for an inquiry now, a decision on the harbour revision order could be made within five to six months. The noble and learned Lord, Lord Lloyd, will wish to know that the Government have expressed support for the Harbours Bill introduced by my noble friend Lord Berkeley to streamline harbour order procedures.
Lord Lloyd of Berwick: My Lords, in thanking the Minister for that Answer, I must express a certain degree of disappointment. The Minister will, I am sure, confirm that the restoration of the West Pier is a matter of some
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little concern, as it is our only grade 1 listed pier. Is he aware that since full planning permission has been granted, there is no longer any valid objection to the making of an order under the Harbours Act and therefore no need for a public inquiry? In those circumstances, an order could be made very much sooner than five to six months.
Lord McIntosh of Haringey: My Lords, the noble Lord says there is no valid objection. Unfortunately, the Harbours Act 1964, which is a very outdated piece of legislation, says that an inquiry must be held unless the objection is trivial or frivolous. It does not use the word "vexatious", which we use nowadays. There are those who think that the objection is vexatious, but I do not think it could be said to be trivial or frivolous. So we are stuck with the Harbours Act until something can be done to replace it.
Lord Dholakia: My Lords, I spent many of my student days in Brighton, and the piers were a great attraction. When I write my autobiography, it will be called "From Pier to Peer". With the West Pier falling to pieces and Palace Pier having recently caught fire, the structures have a very nostalgic value. Can the Government do anything to assist in preserving something which is so precious to our seaside?
Lord McIntosh of Haringey: My Lords, I agree entirely with the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Dholakia. We very much want both piers to be in full working order. For that reason, the Heritage Lottery Fund has already paid out £1.7 million for emergency work on the West Pier, and £14 million or more is set aside for restoration work once all the procedures have gone through. But we are, as I said, stuck with an outdated piece of legislation—the Harbours Act 1964—which says that there must be a public inquiry if there is any objection, unless that objection is trivial or frivolous, and we do not think it is. There are two other routes: first, the Bill of my noble friend Lord Berkeley would bring the Harbours Act up to date. Secondly, there is the possibility of a regulatory reform order, which would depend on a marine consents review that my noble friend Lord Rooker is undertaking. If that can he brought forward, the situation will improve. But neither would be retrospective—they could not apply to Brighton West Pier.
Lord Lloyd of Berwick: My Lords, does the Minister realise that while all this is going on, the pier is collapsing, and that unless something is done very soon, there will be nothing to restore? It is obviously for the Minister to decide, but it can be done on the basis that the only objection was based on a planning point, which has now gone. Therefore, the remaining objection, in so far as there is one, is trivial or vexatious, or any other word you care to use.
Lord McIntosh of Haringey: My Lords, I do not think lawyers should say "any other word you care to use". I should have thought they would have to be

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much more precise. I have pointed out that the term "trivial or frivolous" is a much stronger criterion than "vexatious", which we would use today. There are those who think that the objection that remains is vexatious. If the West Pier Trust wants to take a case against the objector on that, I suppose it could, but it is not a matter for the Government to override statute law. That is what we are bound by.
Lord Carter: My Lords, I declare an interest as someone who was brought up in Brighton—or Hove, actually.
Noble Lords: Oh!
Lord Carter: My Lords, will the Minister explain why Brighton needs two piers when it has managed perfectly well with one for years?
Lord McIntosh of Haringey: My Lords, this is a heterodox point of view. Many people think that piers are good things in themselves. Brighton West Pier is grade I listed; it has been closed since 1975. I should have thought that having two piers is a real distinction for Brighton and that they would boost each other's commercial viability.

Mental Health Services
2.48 p.m.
Lord Astor of Heverasked Her Majesty's Government:
What progress they have made to ensure that service users have 24-hour access to mental health services.
Lord Hunt of Kings Heath: My Lords, work to develop mental health services that will allow access for users 24 hours a day, seven days a week, is progressing in accordance with our national service framework and NHS plan.
Lord Astor of Hever: But, my Lords, despite pledges given in the NHS plan, according to the mental health mapping project, which was commissioned by the Department of Health, less than half the crisis resolution teams have met the requirement that all people in contact with mental health services would have access at any time. Can the Minister now assure the House that every team will offer a 24-hour service by the end of the this year?
Lord Hunt of Kings Heath: My Lords, the introduction of crisis resolution teams is very important. My understanding is that 62 teams were in place on 31st October 2002. It is a challenging target and we are working hard to endeavour to ensure that the target is met but I do not want to underestimate either the challenge or the work that has already been undertaken by the NHS in this area.
Lord Clement-Jones: My Lords, there is concern about whether the money allocated for implementing
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the national service framework for mental health services is reaching the areas it should reach When there was concern about cancer services, the Government sensibly undertook to arrange for an audit by the Department of Health. Will they do the same as regards mental health services?
Lord Hunt of Kings Heath: My Lords, I understand the point the noble Lord raises and I understand the concern as regards whether earmarked resources are reaching the new services development. We shall monitor the position. We are also discussing the matter with strategic health authorities.
The Earl of Listowel: My Lords, can the Minister comment specifically on the progress towards better access to mental health services for children and adolescents? Will he permit me, on behalf of the charity Young Minds, to thank him and his department for their recent verbal assurance that they will fund Young Minds' parent information service for an amount of, I believe, £140,000 for the forthcoming year? Is he aware that that service provides timely information of good quality to parents who are concerned about their children's mental health?
Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Earl for his remarks. I agree that child and adolescent mental health services are very important. I am glad that the noble Earl acknowledges the progress that we have made.

Asylum Seekers
2.51 p.m.
Lord Campbell of Croyasked Her Majesty's Government:
Whether they intend to withdraw from parts of the European Convention on Human Rights in view of the number of asylum seekers arriving in the United Kingdom.
The Parliamentary Under-Secretary of State, Home Office (Lord Filkin): My Lords, we expect that our current measures to tackle asylum will he effective. We are also working with UNHCR and others to make the international protection system work more effectively. Should the measures we are taking not work as expected we would not shrink from reviewing our relevant international obligations but we have no current plans to renegotiate our ECHR obligations.
Lord Campbell of Croy: My Lords, I thank the noble Lord for his reply. Are the Government still in a position to offer and provide accommodation and facilities, as expected by the provisions of the convention, to all the refugees now arriving in this country?
Lord Filkin: My Lords, the short answer is yes. We are meeting our current obligations under the Geneva Convention. We have the encouragement of a

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vigorous legal system were we in any doubt of that. We are also optimistic that we may be moving towards some progress in this respect.
Lord Lester of Herne Hill: My Lords, is the Minister aware that his Answer gives great satisfaction to these Benches? Does he agree that to do what the Official Opposition have suggested from time to time—that is, denounce the European Convention on Human Rights and then attempt some kind of reservation to Article 3 of the convention—would not only stain the reputation of this country but would also be counter-productive as it could not work, the reservation being incompatible with the object and purpose of the convention? Would it not show that this country—one of the great protagonists of the convention—had flouted international law?
Lord Filkin: My Lords, I am well aware of the position of the Liberal Democrat Benches on this issue. I am also aware that Article 3 is non-derogable. We had a good discussion on these issues last week when debating the renewal of measures under the antiterrorism Act. It was pointed out that the ECHR was not as inflexible as is sometimes assumed.
Lord Corbett of Castle Vale: My Lords, does my noble friend agree that it is not so much a matter of withdrawing, or considering withdrawing, from the European Convention on Human Rights but withdrawing the need for people wishing to claim asylum in this country to have to put themselves into the expensive, poisonous hands of people smugglers to be trafficked half-way across the globe? Can my noble friend say what specific progress has been made in discussions with the UNHCR to provide facilities for people wishing to seek asylum in the United Kingdom to do so in areas near to the countries from which they come?
Lord Filkin: My Lords, my noble friend, as so often, puts his finger on the point. I have sigalled in the House before that the issue concerns not so much the letter of the legislation but how it is operated in practice. I have signalled that our concern about the 1951 convention is not in any sense related to its aims but rather to how it works in practice as those who probably most need refugee protection do not get it while many who clearly are using it as a route for economic migration clog up the system. Currently we are having positive discussions with UNHCR on these matters. I hope to be able to say more about that before long.
Lord Avebury: My Lords, does the Minister recall stating to me recently in a Written Answer that it was not possible to make any estimate of the number of additional asylum seekers who might come here as a result of the forthcoming hostilities in Iraq? Since then, has he noted the report of the United Nations High Commissioner for Refugees which estimates that as
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many as 1.9 million people might be displaced by the war in Iraq? How many of those does he now estimate will arrive in the United Kingdom?
Lord Filkin: My Lords, I wish I could answer yes to the first question but it is such a privilege writing so many letters to the noble Lord that I do not recollect the content of all of them post facto. Having said that, I am well aware of the UNHCR's position on this matter. We are positive about the situation while keeping up our guard, first, because of our positive measures in terms of relationships with the border control in northern France and, secondly, and more fundamentally, because the UNHCR has already had positive discussions with Iraq's neighbouring countries in the event that it is unavoidably necessary to go to war as the only means of getting a solution. In particular, Turkey, Iran and Syria have made clear that they would give support as regards the matter we are discussing in the short term.
Baroness Anelay of St Johns: My Lords, I return to the Minister's comment to the noble Lord, Lord Lester of Herne Hill, that the European Convention on Human Rights is not as inflexible as some on the Liberal Democrat Benches believe. In the tense times that the country faces with regard to national security at the moment, are the Government reconsidering their refusal to derogate from some part of Article 3 so that we could if necessary remove from these shores people who pose a national threat and who masquerade as asylum seekers? It is asylum seekers who need help, not those who are masquerading as asylum seekers.
Lord Filkin: My Lords, I believe that I quoted the Liberal Democrats themselves who signalled that the ECHR was not quite as inflexible as one has sometimes been led to believe. The position as regards Article 3 as a matter of law is clear. It is non-derogable and therefore one cannot sidestep it.

Water Bill [H.L.]
2.57p.m.
Baroness Farrington of Ribbleton: My Lords, I beg to move the Motion standing in the name of my noble friend Lord Whitty on the Order Paper.
Moved, That it be an instruction to the Grand Committee to which the Water Bill [HL] has been committed that they consider the Bill in the following order:

Clauses 1 to 33,

Schedule 1,

Clause 34,

Schedule 2,

Clause 35,

Schedule 3,

Clauses 36 to 54,

Schedule 4,

Schedule 8,

Clauses 55 to 78,

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Schedules 5 and 6,

Clauses 79 to 93,

Schedule 7,

Schedule 9,

Clauses 94 to 97. —(Baroness Farrington of Ribbleton.)

On Question, Motion agreed to.

Consolidated Fund (No. 2) Bill
Lord McIntosh of Haringey: My Lords, I beg to move that this Bill be now read a second time.
Moved, That the Bill be now read a second time.—(Lord McIntosh of Haringey.)
On Question, Bill read a second time; Committee negatived.
Then, Standing Order 47 having been suspended (pursuant to Resolution of 13th March), Bill read a third time and passed.

Community Care (Delayed Discharges etc.) Bill
2.59 p.m.
Read a third time.
Clause 1 [Meaning of "NHS body" and "qualifying hospital patient"]:
Baroness Finlay of Llandaff Baroness Finlay of Llandaff moved Amendment No 1:
Page 2, line 2, at end insert—
"( ) The term "independent hospital" includes any hospice registered as an independent hospital (hospice acute category)."
The noble Baroness said: My Lords, I do not wish to delay discussion by revisiting the debate that we had at previous stages about whether or not hospices are included in the Bill. The Minister previously stated that he believed that they were not included. I am grateful to the Minister for having met me and Dr Andrew Hoy, chairman of the Association for Palliative Medicine. We had a fruitful discussion. At that time, we were able to provide the Minister with additional evidence to support our view that hospices should be included in the Bill. For the sake of the House, I shall run through that view very briefly.
The registration documents for in-patient units, which are specialist palliative care units, state that they are registered in the independent hospital service category (h)(a), which means "hospice acute". The National Care Standards Commission took over registration of such units, and at the time the designation of hospices was considered to be as independent hospitals providing acute care. Units with such a registration are in the process of establishing or have already established service-level agreements specifically for the care of NHS patients in their buildings.
A simple example is that 160 beds were available in Marie Curie for England and Wales in January. There were 207 admissions, with a 48 per cent discharge rate.
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More than 50 per cent of those patients needed social services packages to be discharged, and none will continue in care. Marie Curie has the largest number of hospice beds of any independent provider in England and Wales, and those figures are reflected in other hospices that have smaller numbers of beds.
Because there are service level agreements and carefully drawn contracts that specify what will or will not be done, it would appear that we are talking about acute patients in the hospice pursuant to NHS arrangements. Therefore, I hope that the Minister will be able to accept the amendment. I beg to move.
Lord Hunt of Kings Heath: My Lords, I am very grateful to the noble Baroness for the discussions that we have had on the issue of hospices and the extent to which patients treated by them are covered by the Bill.
The amendment is not necessary, because the term "independent hospital" in the Bill already includes hospices. That is the same definition as that in the Care Standards Act 2000. Section 2, which is in Part I of that Act, states:
"A hospital which is not a health service hospital is an independent hospital".
In the sense of the Bill, "hospital" means,
"an establishment … the main purpose of which is to provide medical or psychiatric treatment for illness or mental disorder or palliative care".
I understand that the noble Baroness has used her amendment as a way of eliciting from me further information about the important matters that she raises. Very helpfully, she let me see a number of copies of what are best described as service level agreements between individual hospices and NHS authorities. From an initial perusal of them, it is at least arguable that patients treated under those agreements are indeed treated pursuant to NHS arrangements and therefore could well fall under the Bill. There needs to be further discussion between my department and the representatives of hospices on that matter, but the noble Baroness has done a great service in bringing it to our attention and clarifying our understanding of the point.
Not all patients in hospices would be so covered, because not all patients will be treated pursuant to NHS arrangements. I also accept that there is a more general point about wishing to ensure a good relationship between hospices and individual local authorities, particularly when it comes to the support that might be required from a local authority for patients who have left a hospice and gone back into their own homes. I have asked my department to institute discussions with representatives of the hospice movement and local authorities, so that we can discuss such matters in great detail.
I hope that the noble Baroness will accept that I have found her intervention in the area extremely helpful. We take it very seriously and we will pursue those discussions in the future.
Baroness Finlay of Llandaff: My Lords, I thank the Minister for his reply. If I may return the compliment,

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I would like to thank him for having been so helpful and open to discussion. I feel that the integrated service that hospices have been trying to establish with the NHS is being preserved and built on by the action. There was a lot of concern that, if there was no ability for any hospice beds to be included, some of that work might fall by the wayside.
I am grateful to the Minister for his reassurance that the amendment is not necessary, and that hospices with patients pursuant to NHS arrangements with a formal contract are included. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 2:
Page 2, line 4, at end insert—
"(3) An NHS body may make arrangements with any person connected with the management of an independent hospital in the United Kingdom for that person (or any employee of his) to do, on behalf of the NHS body and in accordance with the arrangements, anything which is required or authorised to be done by the NHS body by or under this Part in relation to qualifying hospital patients accommodated in that hospital.
(4) Anything done or omitted to be done by or in relation to the authorised person (or any employee of his) in pursuance of such arrangements is to be treated as done or omitted to be done by or in relation to the NHS body.
(5) Nothing in subsection (3) or (4) prevents anything being done by or in relation to the NHS body."
The noble Lord said: My Lords, we have been clear that we want NHS patients treated in independent hospitals to be treated under the Bill in exactly the same way as NHS patients in an NHS hospital would be. We believe therefore that a private provider treating an NHS patient should, where appropriate, be able to issue the notice of a patient's potential need for community care services under Clause 2 and to consult the local authority about follow-up services, on behalf of the NHS body that commissioned the care. I believe that that is logical in order to prevent the patient's discharge being delayed and to prevent unnecessary bureaucracy.
As the Bill is drafted, however, a private provider would not be able to carry out those duties on behalf of the NHS. That is because although Section 23 of the National Health Service Act 1977 allows NHS bodies to make arrangements for others to provide services under that Act on their behalf, the powers and duties conferred on NHS bodies under the Bill are not services under the 1977 Act.
The amendment will therefore introduce a power for private providers to undertake duties under the Bill on behalf of the NHS body, in pursuance of arrangements made between the private provider and the NHS body. The NHS body will of course retain ultimate responsibility for the functions carried out on its behalf and the services provided. I beg to move.
Lord Clement-Jones: My Lords, I would like to interrogate the Minister slightly further on that. I assume that the amendment relates to the letter that he
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had the courtesy to send to Front-Bench spokesmen on the subject. In Committee and on Report, he said that the PCT would actually levy any charge made. I hesitate to remind him, but I drew the example of a fictitious German hospital that would levy a charge. Is he now saying that a no-longer fictitious but real German hospital would actually levy the charges under the provisions that he stated?
Lord Hunt of Kings Heath: My Lords, that is a good question. However, if the noble Lord looks at the amendment he will note that proposed new subsection (3) states:
"An NHS body may make arrangements with any person connected with the management of an independent hospital in the United Kingdom".
I can set his mind at rest. The scenario of a German hospital imposing a penalty on an NHS local authority would not operate, so far as the position of the PCT is concerned. For instance, the noble Lord might ask me whether independent acute hospitals that treated NHS patients would have the right to issue both the notice and the penalty charge. That would depend on arrangements reached locally by the primary care trust. The Bill allows it to happen but the primary care trust will come to a view on how the arrangements might operate in practice.
Baroness Barker: My Lords, before the Minister sits down, I want to leap forward quickly to the next amendment. Can he clarify where responsibility for carrying out NHS continuing care assessments lies?
Lord Hunt of Kings Heath: My Lords, I believe we shall debate that matter when we come to the next amendment. However, clearly the direction that we shall issue, which will ensure that the continuing care assessment takes place before a Section 2 notice is issued, will be directed to a National Health Service body. It is clearly for that NHS body to ensure that the direction is carried out.
Baroness Barker: My Lords, again before the Minister sits down—
Lord Hunt of Kings Heath: My Lords, I believe we are out of order here. Perhaps I may suggest that we discuss that matter when we come to the amendment which deals with continuing care.
On Question, amendment agreed to.
Clause 2 [Notice of patient's likely need for community care services]:
Baroness Barker Baroness Barker moved Amendment No. 3:
Page 2, line 22, at end insert "; and

"(c) a decision has been made that the patient will not require continuing NHS health care other than services provided by the NHS under section 5(2), a record has been made of why the patient is considered not to meet each of the criteria for such care, and the patient has been informed of his right of review of this decision."

The noble Baroness said: My Lords, as has been said, we are returning to one of the key elements in our debate thus far—that is, the subject of NHS continuing care.

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During an earlier stage of the Bill, we talked at some length about the ombudsman's report into continuing care. I believe that a key part of that report bears repetition at this point. The ombudsman said:
"The long awaited guidance in June 2001 gives no clearer definition than previously of when continuing NHS health care should be provided; if anything it is weaker, since it simply lists 'factors authorities should bear in mind' and 'details to which they should pay attention' without saying how they should be taken into account. I have criticised some authorities for having criteria which were out of line with previous guidance: except in extreme cases I fear I would find it even harder now to judge whether criteria were out of line wit h the current guidance. Such an opaque system cannot be fair".
The amendment deals with the lack of clarity in the guidance both nationally and in relation to its implementation locally. It seeks to ensure not only that an assessment for NHS continuing care is carried out before a Section 2 notice is issued but that such an assessment is written down, that the person concerned knows the basis on which he has been refused continuing care and that there is a record of that.
The health ombudsman strongly recommends that there should be documentation and that it should be available not only to patients but to successor bodies. We believe that the criteria should be clear; they should be consistently applied; and there should be records stating whether that has or has not happened. That is the purpose of the amendment. I beg to move.
Earl Howe: My Lords, I support the noble Baroness and can add little to what she has so ably said. We debate this Bill against the background of the ombudsman's recent report. If hospital staff are to take informed and correct decisions in implementing the provisions of the Bill, it seems to me self-evident that they must first take informed and fair decisions about whether or not patients are eligible for NHS continuing care. The ombudsman found not only that the department's guidance on continuing care was unclear but also that it was being interpreted and implemented differently in different hospitals and often wrongly.
In 2000, the Royal College of Nursing carried out a review of the eligibility criteria being applied in about a quarter of health authorities in England and Wales. They found that up to 90 per cent of health authorities were acting unlawfully in the way that they assessed people for long-term care funding. There is no evidence that the situation has improved.
In that context, I believe it is right to include in the Bill an explicit requirement for a continuing care assessment to be carried out for every patient and for there to be a record of the reasons for the decision one way or the other. We know that that is what the Government agree should happen. If it is an uncontentious requirement, there can be no reason for omitting it from the Bill, bearing in mind not only its critical importance for patients but also its importance for the smooth operation of the Bill.
3.15p.m.
Baroness Finlay of Llandaff: My Lords, I, too, support the amendment for all the reasons that have been laid out so eloquently by the noble Baroness, Lady Barker, and the noble Earl, Lord Howe. The importance of recording a decision cannot be understated, particularly if there is ever to be an appeal against the way that the patient's discharge has been handled.
With explicit criteria for continuing care, which one hopes will be in place everywhere, it should not be too difficult for those who arrange the discharge to detect immediately whether the patient is or is not potentially eligible. Simply recording that step in the process will complete the way that all the data are collected. For patients where assessment must be carried out, it is important to document the date and the pathway of the assessment process. This is an important amendment for reasons of completeness, in order to protect patients from potentially unnecessary over-assessment, and to save social services the time involved in making arrangements for a patient who may then turn out to be eligible for continuing care.
Lord Hunt of Kings Heath: My Lords, I have some sympathy with the substance of the points raised, although I do not believe that it is necessary to accept the amendment. However, I want to respond to the points mentioned by the noble Earl, Lord Howe, and the noble Baroness, Lady Barker, in relation to the departmental guidance issued in 2001. As I said during the Starred Question earlier today, we shall consider the guidance in the light of the review currently being undertaken by strategic health authorities, which have been asked to report back to the department by the end of March. We shall consider those matters and study the ombudsman's report carefully.
Equally, I do not deny that, when it comes to individual decisions about whether or not a particular patient is eligible for continuing care, hard decisions must be taken by practitioners at local level. But I believe that the departmental guidance issued in 2001 and, in particular, Annex C of that guidance, gives a great deal of assistance to NHS authorities on the issues that they should be discussing with local authorities when establishing their eligibility criteria.
I shall not go through the seven points listed in the guidance but I believe that they set out helpfully the type of issues that need to be discussed and decided. While individual cases will always involve difficult decisions and there will always be borderline areas, I question whether the fundamental principles contained in the current guidance are as far off the point as has been suggested. However, we shall consider that matter carefully.
However, from my own reading of the conclusions of the ombudsman's report, which has been, and will be, very helpful in thinking through what we need to do in the future, I believe that much of the problem stemmed from the failure of NHS bodies locally to develop eligibility criteria in accordance with the guidance that had already been established and set out.

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That is another matter that we shall have to consider closely before deciding whether to make any changes to the guidance.
Having said that, as I said on Report, I have a great deal of sympathy for the intent behind the amendment. We have made clear throughout our debates on the Bill that the first decision in the assessment process has to be whether someone needs continuing care. We have also made clear that that should be done by the relevant NHS body before issuing a Section 2 notice. My colleague in another place, Jacqui Smith, emphasised that on Report when she said that the first decision that should be made in the assessment process is whether patients are eligible and entitled to NHS continuing care.
The ombudsman's report highlighted that trusts are not always sufficiently well informed of the assessment process and eligibility criteria. That is why I responded last week with a commitment to issue regulations and, following from that, directions to make clear to the NHS what is required. The approximate form of words that we intend to use for the regulations in respect of a Section 2 notice is, "confirmation that an assessment for continuing care has been carried out in accordance with the directions issued to NHS bodies at some time during 2003".
The legally binding requirement will be placed in directions to the NHS. We shall consult on those directions and issue them at the same time as regulations come into force. The directions will require NHS bodies to carry out an assessment for continuing care for any qualifying patient before a Section 2 notice is issued. The direction will meet the points that I believe have been raised in our debates. It will specify that the assessment for continuing care is to be carried out, that a record is to be made of that assessment, and that the patient was informed of the right to ask that that decision be reviewed, and of the outcome of the review.
That shows our seriousness of purpose in that area. I believe that the combination of the regulation and the strength of the direction to be issued to the NHS shows that we have listened and that we have met the concerns. In the spirit of our debates in this House I believe that noble Lords will recognise when a point has been accepted, that the Government, indeed, are keen to ensure that this matter is dealt with effectively by the NHS and that everyone will be assured that the assessment in relation to continuing care will be carried out before a Section 2 notice is issued.
Baroness Barker: My Lords, I thank the Minister for that forceful reply. I believe that this is perhaps one of the most important aspects of the Bill, which will affect the outcome of services for older people. It has been worth raising the issue again, not least because whatever the Minister says—earlier today in Starred Questions I listened carefully to his interpretation of the ombudsman's report, which is very different from mine—the record of the NHS so far on this matter has been extremely poor. We cannot emphasise that enough. If one considers the history, not just of the
16
cases in this episode but of previous ombudsman reports, it is clear that new nursing staff come into the NHS and are not made aware of existing guidance.
None the less, I listened carefully to the Minister's reply. I believe that the guidance will be a step forward. He has helpfully put on record the need for written judgments. On that basis I shall not press the amendment today. However, the Minister should be in no doubt that this is one area of performance of the Bill that will be watched and scrutinised perhaps more than any other. I thank the Minister for his reply. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Andrews Baroness Andrews moved Amendment No. 4:
Page 2, line 38, after first "the" insert "responsible NHS"
The noble Baroness said: My Lords, in moving Amendment No. 4 I shall speak also to Amendments Nos. 5, 7, 9, 11, 12, 14 and 15.
The Government wish to make a number of very small tidying amendments to the Bill, which in the opinion of the parliamentary draftsman are necessary to improve the internal consistency of the Bill, to correct minor ambiguities and occasionally to put more felicitous expression.
The amendment to Clause 10 is a final amendment to ensure that services to carers are referred to in all the appropriate subsections. I beg to move.
On Question, amendment agreed to.
Clause 4 [Duties of responsible authority following notice under section 2]:
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 5:
Page 3, line 33, leave out from "case" to end of line 34 and insert "under section 2 has been given"
On Question, amendment agreed to.
3.30p.m.
Lord Morris of Manchester Lord Morris of Manchester moved Amendment No. 6:
Page 3, line 45, at end insert—
"( ) Where the responsible authority does not carry out its duty under section 4(2)(a) within the minimum interval prescribed under section 5(6)(b), the responsible NHS body must carry out the assessment of the patient's needs on its behalf."
The noble Lord said: My Lords, the purpose of this amendment is to allow the House briefly to revisit an issue of the first importance to many thousands of the most vulnerable people in Britain today: one that was not resolved by the vote in Committee on 17th February to delay the implementation of this legislation for a year.
My amendment was prompted by representations from people now unnecessarily detained in hospital by failure to assess and meet their needs for care in the community. They put it to me that, where a local council and NHS trust cannot work together to facilitate that care and the council fails even to assess need, then the NHS trust both in its own and the public interest should be empowered to act alone in doing so. They insist that patients must not—their words not

17
mine—"be left to rot in hospital" in acute beds, urgently needed by others, when they could be better cared for elsewhere.
I move the amendment as a serial legislator in this policy area for over 33 years now, both as a Back-Bench parliamentarian and a Minister, having first entered the fray with my Private Member's Bill that became the Chronically Sick and Disabled Persons Act 1970. And it was 27 years ago that I announced, as the then Minister for Disabled People, the first-ever joint funding by the NHS and local social services authorities of care in the community for people leaving hospital in need of continuing care. At the same time I promoted the legislation that introduced the severe disablement allowance, the mobility allowance, the invalid care allowance and the disabled housewife's allowance.
That experience and much else in a long involvement in working to achieve the right help, in the right place, at the right time for chronically ill and disabled people leaves me extremely unhappy with the Bill as it now stands.
The Government have provided local social services authorities with much increased funding to fulfil their responsibilities, including £1 billion earmarked for older people's services. But as amended this Bill delays for a year hard-won resources to facilitate more appropriate care for them. That delay will prolong pain and suffering among thousands of people now languishing on hospital waiting lists. Arguably the delay could endanger the lives of some of them—since it is for acute beds that they will have to go on waiting—and it will compound the distress of people now perversely described as "bed blockers" for being detained in hospital in denial of their rights to community care.
Again the Bill does nothing in its present form to acknowledge or reward the local councils, in many parts of the country, that already work so successfully in partnership with NHS trusts to achieve an integrated approach—case by complex case—to the making of humane provision for continuing care of needful people who no longer require a hospital bed.
I have no wish to question the stance taken by anyone on either side of the debate on 17th February. My purpose is not to recriminate about what happened in Committee, but to look forward to what can still be done to protect the benefits the Bill offers. Nor do I question the right of those outside Parliament who have made us aware of their concerns, least of all those of the Local Government Association (LGA) and Help the Aged. On the contrary I hold both of those organisations in high regard and read their submissions with care. In turn they for their part will, I know, understand the depth of my concern about the prospect of leaving the issue of deferred discharges in limbo for a whole year as we are in danger of doing now.
The LGA is concerned, in particular, that the £100 million per full year the Government have made available for assessing need is limited to three years and falls short of their estimate of £133 million a year. While
18
this rightly concerns them, is it not a matter for continuing dialogue and negotiation, rather than justification for blocking an attempt to deliver the right care in the right setting? The LGA is rightly concerned too—like Help the Aged—to ensure "person centred" care for older people and to prevent them being treated as "commodities". But that is how many of them—wrongly and avoidably denied the dignity of living in their own homes—feel they are being treated now. As my noble friend Lord Hunt frankly stated on 17th February:
"Poor-quality practice in many health services and in local government has led to a disastrous position for older people. They are stuck inappropriately in acute NHS beds and risk the dangers of infection, of becoming institutionalised and of losing their independence. As a result, it becomes much more difficult for them to return either to their own homes or to appropriate community care".—[Official Report, 17/2/03; col. 952–953.]
Sadly that is how they will go on being treated if this Bill remains as now drafted and it should not be beyond the wit of parliamentarians, working together, to make it an effective instrument for the achievement of objectives we can all support.
The problems of delayed discharges from hospital are not new. Nor are the debates on the provisions of this Bill the first attempt to solve them. What is new is that substantial extra money has now been found and the Government deserve credit for having accepted this as a prerequisite of meaningful progress towards a solution.
I am much reminded today of Michael Barry, an elderly and severely disabled man, whose case was brought to this House in February/March 1997 on appeal by Gloucestershire County Council and the then Secretary of State for Health (R v Gloucestershire County Council and Another ex parte Barry). They sought to reverse a judgment in Mr Barry's favour given by the Court of Appeal on 27th June 1996.
Following a stroke Michael Barry had been taken into hospital. He had previously had several heart attacks and could not see well. After being discharged from hospital he lived alone and got around with the aid of a Zimmer frame, having fractured his hip some years earlier. Without reassessing his needs, Gloucestershire County Council withdrew the cleaning and laundry services he had been receiving under Section 2 of the Chronically Sick and Disabled Persons Act on the grounds that:
"Central government has reduced by £2.5 million the money allocated to us for services for disabled people",
and that the council was left with,
"nowhere near enough money to meet demand".
When he heard this Michael Barry could have been excused for thinking that perhaps even some commodities were treated with more care than him. For Gloucestershire County Council and the Secretary of State for Health the issue was,
"keeping the lid on public spending".
For Michael Barry, then 82, it was about personal survival.
No one was more unquestionably vulnerable and acquainted with grief than him; and few of those officially involved in his case can look hack with any pride on the way he was treated. But happily one

19
person who can is here this afternoon: the noble and learned Lord, Lord Lloyd of Berwick, who spoke so perceptively in giving this House his opinion about the case of Michael Barry. He clearly saw through the old Spanish customs used to deprive the 1970 Act's beneficiaries of their rights to services. He saw that assessment and reassessment of need were often delayed and avoided because, once need has been assessed, it is the duty of the local authority to meet it by providing services under the Act; and that thus the way to cut expenditure was to delay or avoid assessment or reassessment.
The noble and learned Lord also saw more clearly than legal colleagues, first, that help under the Act depended not on where the disabled person lived but strictly on the extent of individual need; and secondly, that local authorities were not entitled to say that assessment of need must have regard to their overall resources. The solution he said lay with central government:
"Having willed the end, Parliament must be asked to provide the means".
He was eminently correct as well to say categorically that:
"Parliament never intended there should be different standards for measuring the needs of disabled people in Bermondsey and Belgrave Square"
The noble and learned Lord described the Chronically Sick and Disabled Persons Act 1970 as one of "noble" purpose. My response is to say that he enhanced its nobility. His humanity shone through every sentence of his statement here in March 1997 on the case of Michael Barry.
That different standards still exist today, dependent on where a disabled person lives, demeans Parliament and must not be perpetuated by new legislation. The benefits of this Bill are urgently needed and I believe it is not too late to avoid delaying their delivery. I hope profoundly that this can be achieved without party animus and after full consideration by the Government of all matters of legitimate concern, irrespective of by whom they have been raised. There is still time for consensus to be reached on this Bill and those it seeks to help deserve no less. I beg to move.
Baroness Masham of Ilton: My Lords, I support the noble Lord, Lord Morris of Manchester. He has an immense amount of experience in relation to disabilities of all kinds. If the Government want beds to be unblocked in acute hospitals, it is important to speed up assessments without which patients cannot get the help that they need. I hope that the Government will accept the amendment.
Lord Hunt of Kings Heath: My Lords, it is tempting to accept my noble friend's amendment because he speaks with great authority, but I shall ask him to withdraw it. He was being unduly modest when he described himself as a serial legislator. I have always seen him as the architect, author and promoter of the
20
Chronically Sick and Disabled Persons Act 1970 which has had a profound impact on society. I always listen to him with great care.
Importantly, he dealt with the issue of commodity. Noble Lords will know that I objected forcefully when, in Committee, it was suggested from the Bishops' Bench that the Bill aimed to treat a patient as a commodity. At the moment we have a major problem in that every day thousands of people are inappropriately stuck in NHS acute beds. The longer they stay there the greater their lack of independence, the more institutionalised they become and the harder it is for them to be discharged back into the community and to their homes. That is why we need to ensure that the health service and local government get their act together and sort out a proper assessment process and as quick a discharge process as is possible.
Certain patients will have complex care needs which it will not be possible to deal with in a short time. However, such people can be transferred to more appropriate care than is provided in an acute hospital. I share the concern of my noble friend and of the noble Baroness, Lady Masham, that in this House we have voted to delay the implementation of the Bill by a whole year. It is a pity, as I believe that the Government have taken a constructive approach. We have tried to meet the concerns that have been expressed. We have met concerns over the issue of consultation on hospices. We have just discussed the issue of decisions on eligibility for continuing care, before a Clause 2 notice is issued. In the spirit of trying to make this Bill work in the House of Lords, we intimated that we would be prepared to see a delay in its introduction by six months. However, that was not to be, and I regret it.
I know that there are concerns about the ability of the health service and local government to make the Bill work effectively. All I will do is repeat what I have said previously. We know from the experience of a number of local authorities that when people are determined to make delayed discharge procedures work well, they can be made to do so. Why should we be denying to members of the public the benefit that this Bill will bring? That was the point my noble friend Lord Morris put so forcefully.
My other point relates to the matter raised previously by the noble Baroness, Lady Barker. She talked about the problem of new staff not being updated with current guidance—whether relating to continuing care eligibility, or good discharge procedures. I agree with her. That must be the conclusion that should be arrived at by reading the Climbié report by the noble Lord. Lord Laming. It pointed to a lack of attention to detail, a lack of procedure, a lack of ability to follow those procedures, a lack of supervision, and above all a seemingly chronic inability among some professional staff to write things down. She knows that I am as critical of the NHS as I am of social services or the police. All of those points are very well taken. However, I contend that this Bill will put in place much more robust procedures—both in the health service and local government. That is why I believe that the Bill is an advance on current arrangements.

21
Although I have immense sympathy with the comments of my noble friend Lord Morris, I cannot support the exact wording of his amendment. However, he has made some very important points.
Baroness Masham of Ilton: My Lords, will not this amendment speed things up, especially as there has been a delay of a year?
Lord Hunt of Kings Heath: My Lords, I think the problem is that the way the amendment is worded would mean that if the local authority failed to carry out an assessment, the NHS could do so on its behalf. There must be some question about whether the NHS would have that ability. Apart from anything else, the assessment under Clause 4(2)(a) is to be treated as a Section 47 assessment. I am afraid that under Section 47, only a local authority social services department can carry that out. So there is a practical issue. There is always an issue about the wording of the amendment, but the point my noble friend Lord Morris is making—which will no doubt be considered very carefully in another place—is whether it is right to delay the introduction of this Bill for six months. The only people who will suffer are the very people we are trying to help. They are the 5,000 people prevented every day from being discharged effectively. I say "only" in parenthesis. It is important that we do not focus on the problems of bureaucratic statutory authorities. We have heard much about the problems of health services and local government. I think we should focus on those individuals. That is the point my noble friend has raised.
Lord Morris of Manchester: My Lords, I am grateful for the support of my good and noble friend, Lady Masham. Like my good friend, the noble Baroness, Lady Darcy de Knayth, she made her maiden speech in 1970 on my Chronically Sick and Disabled Persons Bill. No one knows more fully than they do how true to the parliamentary record the assessment of the Bill by the noble and learned Lord, Lord Lloyd of Berwick, was when he gave his opinion on the Michael Barry case in 1997. I understand why the Minister asks me not to press the amendment. He was very responsive to the case I made, and I trust the amendment may still have the effect I sought as the Bill proceeds. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Andrews Baroness Andrews moved Amendment No. 7:
Page 4, line 38, leave out "him" and insert "the patient"
On Question, amendment agreed to.
3.45p.m.
Lord Rix Lord Rix moved Amendment No. 8:
Page 5, line 15, at end insert—
"(12A) In the case of any person having a learning disability, irrespective of the age of the person and of whether or not that person has other disabilities, the NHS body and the responsible authority shall take account of that person's learning disability in ensuring the person's supported return to their previous home or, where this is impossible, their support in an alternative placement."
The noble Lord said: My Lords, according to St. Matthew, Chapter 20, the would-be grape-pickers who presented themselves at the eleventh hour received rather a good deal. My eleventh hour amendment which is designed to protect the position of people with learning disabilities, who are being discharged from hospital, is tabled in hope of similar treatment.
Helpful conversations have taken place with the Minister. There has been an exchange of correspondence, and I have seen the Department of Health's excellent new guidance on hospital discharges. So I live in hopeful expectation of a favourable response—although not necessarily an acceptance of the amendment as it stands. I beg to move.
Lord Hunt of Kings Heath: My Lords, it is always good to welcome the noble Lord, Lord Rix to our debates, even though it is indeed the eleventh hour. However I suspect that this Bill has a little more time to run. He has raised a very important issue. His amendment seeks to place a requirement for local authorities and the NHS to take account of the needs of an individual's learning disability, when arranging their discharge. Of course I agree that is essential, but I believe that it will be achieved without the need for it to be explicit in the Bill.
I understand his concerns about people with learning disabilities who are admitted to hospital for acute treatment. They can then find themselves unable to return to the home from which they came, and then perhaps placed in inappropriate care. I believe that the strength of the assessment systems put in place by this Bill, combined with the revised good practice guidance, will ensure that people with learning disabilities can receive the package of care that most meets their needs upon discharge from hospital. This could mean return to their original home, or a placement somewhere else more appropriate.
The hospital discharge workbook contains good practice that will ensure that an individual's learning disabilities will be taken fully into account when assessing the patient's often complex needs and putting services in place. Appendices 5.6 and 5.7 of the workbook in particular set out good practice and guidelines when dealing with someone with a learning disability. I am confident that this practice will he followed well in the field. It is essential that an individual's learning disability is taken into account. To do otherwise would be negligence by the statutory agencies, as it would be highly unlikely that the individual's discharge would be successful, or that appropriate care would be provided.
The duties that the Bill places on the NHS and social services to work together, in carrying out those assessments, will ensure that there are no gaps in the package of services that are put together. With that assurance I hope that the noble Lord, Lord Rix, will feel that the position of people with learning disabilities is well catered for, and will not press this amendment.
Lord Rix: My Lords, in the world of farce, which I once inhabited, you soon find out that the feed line is

23
as important as the laugh line which follows. Without an audible and well-delivered feed, the audience will sit in glum silence, totally unaware of why they are supposed to be rolling about with laughter. I am glad to say that the Minister has heard my feed line—Amendment No. 8—and has delivered his punch line with warm-hearted clarity. He therefore receives an equally warm-hearted response from me.
In addition to his statement from the Dispatch Box, only this morning I received a letter from the noble Lord, Lord Hunt, which underlined his every spoken word. Again looking back to the world of farce, belts and braces are highly desirable if you are in danger of losing your nether garments. The Minister has ensured that my long-practised art form will not happen here today. I am grateful for his support and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 [Duties of responsible NHS body following notice under section 2]:
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 9:
Page 5, line 39, leave out "was" and insert "is"
On Question, amendment agreed to.
Lord Clement-Jones Lord Clement-Jones moved Amendment No. 10:
Page 5, line 44, at end insert "excluding Saturdays, Sundays and public holidays"
The noble Lord said: My Lords, we have extensively discussed notice periods under what is now Clause 5 but I make absolutely no excuse for returning to the subject, simply because of the lack of concrete undertakings given by the Minister in Committee and on Report, and the lack of any movement towards the compromise suggested by the noble Baroness, Lady Greengross, on Report.
Both in Committee and on Report the Minister made much of the benefits for the patient of a minimum period of three days. The motives on these Benches—and, I am sure, on the Conservative Benches—are to benefit patients by these amendments. The noble Baroness, Lady Greengross, said that older people will not want to be left in acute hospitals for any longer than necessary. We say "Amen" to that. But, as I said on Report, the evidence shows that week-end discharges are three times more likely to lead to readmission than discharges earlier in the week. Would patients wish to be discharged where there is that kind of risk? I suggest not.
The Minister admitted on Report that the medical part of the discharge decision is unlikely to be made at the week-end. Why, therefore, should the care decision have to be made at the week-end when key staff may not be available, pharmacies may not be open, and so on? On Report, the Minister seemed to have the horrors of a resulting minimum five, six or seven-day period. Why? In Committee, the noble Lord, Lord Turnberg, expressed his understanding of how difficult it might be for local government to run the necessary rotas over week-ends and bank holidays.
The Government's motive appears to be simply to free up hospital beds in the shortest possible time. In Committee, the noble Earl, Lord Howe, referred to "passing the parcel", and throughout the passage of the Bill we have referred to patients being treated as commodities. The minimum period without allowance for bank holidays and week-ends is all of a piece with that approach. To date, the Minister has not refuted the example put in Committee by the noble Earl, Lord Howe, that notification could take place at 4.30 p.m. on Good Friday for a discharge no later than 11 a.m. on Easter Monday.
Throughout the Bill, the Government appear to be motivated by a punitive approach towards local government. The Minister believes that statutory agencies will make "excuse after excuse" to walk away from what the Bill is intended to achieve. This clearly reveals the coercive nature of the Bill. The amendment seeks to redress the balance and, at the same time, to make the procedures safer. I beg to move.
Earl Howe: My Lords, I support the noble Lord, Lord Clement-Jones, in all that he has said. In Committee, the Minister was heard to utter the words that have become so familiar to us in our debates on successive pieces of health legislation down the years—"getting the balance right". I agree with the objective. What we have to decide, in the absence of direct experience, is where exactly the balance lies.
It is worth saying that the amendment and the case advanced by the noble Lord, Lord Clement-Jones, represent a compromise between the proponents of a much longer minimum period—say five or seven days—and the position set out in the Bill. The argument for settling on three working days as opposed to three calendar days can be stated simply: it is better for patients and fairer on local authorities. It is better for patients because to be discharged at a week-end or on a bank holiday when community services and home care may not be available is, to put it mildly, less than optimal. For a local authority to be told on a Thursday that a particular patient must be discharged on the following Sunday when the patient requires long-term care is a recipe for stop-gap solutions for that patient. If we believe in patient consultation and, wherever possible, patient choice, we should not permit the system to operate on a basis that encourages rushed or superficial discharge planning. As it is, the Bill is likely to place many patients in temporary care settings pending a permanent placement, but the disregard of week-ends and bank holidays accentuates that likelihood unnecessarily and we should remove it.
If the Minister believes that the case is being over-stated, I humbly suggest that he should note the result of the recent survey by the Nursing Standard and Community Care magazines. The principal concern among respondents to that survey was that the system of financial penalties being introduced through the Bill will result in higher numbers of older people being placed in residential care rather than their own homes as care packages can take longer to set up.

25
Three working days is also fairer for local authorities. Every noble Lord who spoke in Committee made the point that to ignore the patterns of the normal working week will place enormous pressures on local authorities—pressures of staff and pressures of finance. A large number of local authorities are already experiencing substantial budgetary difficulties in social services, way beyond their SSAs. To compound that, the commitments that the Bill would force upon them for week-end and holiday working are unfunded. We all know that the Bill deliberately sets out to place burdens on local authorities, but I do not think that a requirement to have fully staffed social services departments for 365 days a year is in any sense reasonable or fair.
This is an important issue. On Report, the Minister was good enough to say that he would take away the points that had been made and reflect upon them. I look forward to hearing what he has to say.
Baroness Greengross: My Lords, I have some difficulty in speaking on this issue because I am a vice-president of the Local Government Association and of Age Concern. I believe that the amendment is put forward with the best interests of older people at heart but it is too inflexible.
Neither the health service nor the local authority should be surprised when a person leaves hospital. I was involved with someone who was in hospital for two and a half weeks over the Christmas period and who could not be discharged because social services were not fully functioning. To put this requirement on the face of the Bill would not help the people I am most passionate about—that is, those who remain in hospital and who are not discharged.
It would be absolutely unreasonable for the NHS to issue a Clause 2 notice if it is impossible for the social services to comply. At the moment, social services do not work at week-ends but the NHS does. It would not be beyond imagination that in the future some people from social services—those who work with the acute hospitals to get people discharged and who organise the services they will need—may have to alter their ways of working to ensure that health and social services really do work together. Keeping people in hospital, for whatever reason, for longer than is absolutely necessary is not acceptable in this day and age.
On the other side of the argument, the Minister will have to be very careful when drawing up the regulations so that this cannot be seen as an attack on social services, but as legislation to ensure the rapid discharge of patients who ought to be out of an acute hospital—and who have been thrown backwards and forwards for too many years for me to remember without extreme distaste and anxiety.
4 p.m.
Lord Hunt of Kings Heath: My Lords, I have given the matter a great deal of consideration because I recognise that the point raised by noble Lords opposite is a genuine concern about the practicalities that rest
26
on social services departments. Having given it a great deal of consideration, and for the reasons put forward by the noble Baroness, Lady Greengross, who put the matter so very well, I remain firm in my belief that the minimum period on the face of the Bill is correct.
I say to the noble Earl, Lord Howe, that I do not believe the Government are taking a putative approach to local government. Of course we want to see a marked improvement in the performance of local authorities, which builds on what is seen as good practice in a number of local authorities up and down the country. But that will not work unless the NHS also improves its performance.
I return to a point raised by the noble Baroness, Lady Barker, earlier. She talked about the problem of new nurses arriving on a ward not being apprised either of continuing care criteria guidance or of delayed discharge guidance. I agree with her. I think that that is a problem. But that will have to be tackled, as will the defects of local government performance. It is very wrong to think of this Bill as simply being aimed at local government. It will not work unless the health service and local authorities get their acts together.
I turn to the issue of social services departments— the fact that they do not work seven days a week and that therefore it would be impossible for them to respond to the timetable. Whether it is a weekend or a bank holiday does not mean that the older person delayed in acute hospital simply disappears or is any less vulnerable to the consequences of a delay. Although a couple of days may not sound a great deal, we know that institutionalisation can set in rapidly. I do not see why older people should suffer simply because social services do not work at weekends.
Surely, we need to move away from the perception that social services should be provided only between the hours of nine to five on a weekday. We need a more flexible approach to working hours so that the needs of individuals can be met more effectively. I think that that too was the message of the Climbié report. To exclude Saturdays, Sundays and bank holidays on the face of the Bill would, I contend, send entirely the wrong message about what is acceptable and what we expect for older people.
The other point worth making is that, where a minimum number of days is set before the charging element is triggered, delays will always tend to drift up towards that minimum. So if we set the minimum number of days as three, then, where the minimum period falls over a week-end, the patient will usually end up waiting for at least five days. For someone who is ready to go home sooner, five days is an unacceptably long time to wait.
I have already made clear that since the majority of patients who become "delayed discharges" are in hospital for a longer period than three days, there will be a longer period to plan and put services into place. The vast majority of cases where the patient is ready to go home within the minimum compliance period are likely to be simple cases where it should not be unduly challenging to carry out an assessment and put services in place. Where a patient with particularly complex

27
needs is ready for discharge before the local authority has had time to carry out a full assessment or put services in place, then we believe it would be appropriate for them to move to a step-down or interim care facility while their care planning is completed.
I have made this point already: an acute hospital bed is the worst place for a vulnerable older person to be when they can no longer benefit from acute care. They are at risk of losing their independence and at the unfortunate risk of picking up hospital acquired infections. We should aim for them to be moved to a more appropriate environment where they can benefit from some rehabilitative input as soon as possible. The minimum compliance period should accept that.
I have given the matter a great deal of consideration but I do not believe that it would be right to support the amendment. We must give a clear indication to the NHS and to local government of what we expect. I believe that in the interests of the individual concerned we should keep the minimum number of days as presently set out.
Lord Clement-Jones: I thank the Minister for giving us the benefit of his thoughts and considerations during the past few days. Clearly his opinion, and that of the department, has hardened against the amendment. I say to the noble Baroness, Lady Greengross, and to the Minister that no one in the House has a monopoly of compassion for the individual patient. We clearly have a difference of opinion as to how the Bill will operate in respect of particular patients and whether by coercing local government into certain actions that will be to the benefit of the patient. It is a fundamental difference of opinion and I propose to seek the opinion of the House.
4.7 p.m.
On Question, Whether the said amendment (No. 10) shall be agreed to?
Their Lordships divided: Contents, 134; Not-Contents, 119.

Division No. 1

CONTENTS

Aberdare, L.

Caithness, E.

Addington, L.

Campbell of Alloway, L.

Ampthill, L.

Carnegy of Lour, B.

Anelay of St Johns, B.

Cavendish of Furness, L.

Astor, V.

Chadlington, L.

Astor of Hever, L. [Teller]

Clement-Jones, L. [Teller]

Avebury, L.

Coe, L.

Baker of Dorking, L.

Colwyn, L.

Barker, B.

Craig of Radley, L.

Beaumont of Whitley, L.

Crickhowell, L.

Biffen, L.

Dean of Harptree, L.

Blaker.L.

Dholakia, L.

Blatch,B.

Dixon-Smith, L.

Bowness, L.

Eden of Winton, L.

Bradshaw, L.

Elis-Thomas, L.

Brooke of Sutton Mandeville, L.

Elles, B.

Brougham and Vaux, L.

Elliott of Morpeth, L.

Burnham, L.

Ezra, L.

Buscombe, B.

Falkland, V.

28

Fearn, L.

Patten, L.

Fookes, B.

Perry of Southwark, B.

Fowler, L.

Perry of Walton, L.

Gardner of Parkes, B,

Peyton of Yeovil, L.

Gilmour of Craigmillar, L.

Phillips of Sudbury, L.

Glentoran, L.

Plumb, L.

Gloucester, Bp.

Plummer of St. Marylebone, L.

Goodhart, L.

Rawlings, B.

Gray of Contin, L.

Razzall, L.

Hamwee, B.

Reay, L.

Hanningfield, L.

Redesdale, L.

Harris of Richmond, B.

Rennard, L.

Henley, L.

Renton, L.

Hodgson of Astley Abbotts, L.

Roberts of Conwy, L.

Hogg, B.

Rodgers of Quarry Bank, L.

Howe, E.

Roper, L.

Howe of Aberavon, L.

St John of Fawsley, L.

Howell of Guildford, L.

Sandberg, L.

Hunt of Wirral, L.

Sanderson of Bowden, L.

Hurd of Westwell, L.

Scott of Needham Market, B.

James of Holland Park, B.

Sharp of Guildford, B.

Jenkin of Roding, L.

Sharples, B.

Kimball, L.

Shaw of Northstead, L.

Laing of Dunphail, L.

Shutt of Greetland, L.

Lawson of Blaby, L.

Smith of Clifton, L.

Lester of Herne Hill, L.

Soulsby of Swaffham Prior, L.

Livsey of Talgarth, L.

Steel of Aikwood, L.

Lucas, L.

Stevens of Ludgate, L.

Lyell, L.

Strange, B.

McColl of Dulwich, L.

Strathclyde, L.

MacGregor of Pulham Market,

Swinfen, L.

L.

Taverne, L.

Mackie of Benshie, L.

Thatcher, B.

McNally, L.

Thomas of Gresford, L.

Maddock, B.

Thomas of Walliswood, B.

Marlesford, L.

Thomson of Monifieth, L.

Mayhew of Twysden, L.

Tordoff, L.

Miller of Hendon, B.

Tugendhat, L.

Monro of Langholm, L.

Vivian. L.

Mowbray and Stourton, L.

Waddington, L.

Moynihan, L.

Wallace of Saltaire, L.

Murton of Lindisfarne, L.

Walmsley, B.

Noakes, B.

Warnock, B.

Northesk, E.

Wigoder, L.

Northover, B.

Wilcox, B.

O'Cathain, B.

Williams of Crosby, B.

Onslow, E.

Windlesham, L.

Park of Monmouth, B.

Wolfson, L.

NOT-CONTENTS

Acton, L.

Clark of Windermere, L.

Ahmed, L.

Clarke of Hampstead, L.

Amos, B.

Clinton-Davis, L.

Andrews, B.

Cohen of Pimlico, B.

Archer of Sandwell. L.

Corbett of Castle Vale, L.

Ashley of Stoke, L.

Crawley, B.

Ashton of Upholland, B.

David, B.

Bach, L.

Davies of Coity, L.

Barnett, L.

Davies of Oldham, L.

Bassam of Brighton, L.

Dean of Thornton-le-Fylde, B.

Bernstein of Craigweil, L.

Desai, L.

Bhatia, L.

Dixon, L.

Blackstone, B.

Dormand of Easington, L.

Boothroyd, B.

Dubs, L.

Borrie, L.

Elder, L.

Bragg, L.

Evans of Parkside, L.

Brooke of Alverthorpe, L.

Evans of Temple Guiting, L.

Brookeborough, V.

Falconer of Thoroton, L.

Brookman, L.

Falkender, B.

Bruce of Donington, L.

Farrington of Ribbleton, B.

Campbell-Savours, L.

[Teller]

Carter, L.

Faulkner of Worcester, L.

Chorley, L.

Filkin, L.

Christopher, L.

Fitt, L.

29

Fyfe of Fairfield, L.

Masham of Ilton, B.

Gale, B.

Mason of Barnsley, L.

Gibson of Market Rasen, B.

Merlyn-Rees, L.

Gladwin of Clee, L.

Milner of Leeds, L.

Golding, B.

Mishcon, L.

Goudie, B.

Mitchell, L.

Gould of Potternewton, B.

Morgan, L.

Grabiner, L.

Morris of Manchester, L.

Graham of Edmonton, L.

Orme, L.

Greengross, B.

Parekh, L.

Gregson, L.

Pendry, L.

Hardy of Wath, L.

Peston, L.

Harrison, L.

Pitkeathley, B.

Haskel, L.

Ponsonby of Shulbrede, L.

Hayman, B.

Puttnam, L.

Hilton of Eggardon, B.

Ramsay of Cartvale, B.

Hogg of Cumbernauld, L.

Rendell of Babergh, B.

Hollis of Heigham, B.

Richard, L.

Howells of St. Davids, B.

Rix, L.

Howie of Troon, L.

Sainsbury of Turville, L.

Hoyle, L.

St. John of Bletso, L.

Hughes of Woodside, L.

Sheldon, L.

Hunt of Chesterton, L.

Simon, V.

Slim, V.

Hunt of Kings Heath, L.

Smith of Gilmorehill, B.

Jeger, B.

Strabolgi, L.

Jones, L.

Symons of Vernham Dean, B.

Jordan, L.

Taylor of Blackburn, L.

King of West Bromwich, L.

Thornton, B.

Lea of Crondall, L.

Turner of Camden, B.

Lipsey, L.

Uddin, B.

Lofthouse of Pontefract, L.

Warwick of Undercliffe, B.

McCarthy, L.

Weatherill, L.

Macdonald of Tradeston, L.

Whitaker, B.

McIntosh of Haringey, L.

Wilkins, B.

[Teller]

Williams of Elvel, L.

MacKenzie of Culkein, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
4.17p.m.
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 11:
Page 6, line 4, leave out "new" and insert "fresh"
On Question, amendment agreed to.
Clause 6 [Liability to make delayed discharge payments]:
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 12:
Page 6, line 25, at beginning insert "the patient has not been discharged and"
On Question, amendment agreed to.
Clause 7 [Delayed discharge payments: supplementary]:
Baroness Noakes Baroness Noakes moved Amendment No. 13:
Page 7, line 31, at end insert—
"( ) Section 6 shall not come into force until 30 days after the Secretary of State has determined that the systems of incentives within NHS bodies operate to discourage NHS bodies from discharging patients inappropriately."
The noble Baroness said: My Lords, we come to a crucial amendment in ensuring that the Bill is balanced when it leaves your Lordships' House. When the Bill arrived here from another place, it was not a balanced Bill. Your Lordships have rectified some of that imbalance. In particular, patients and carers who were marginalised by the Bill in the form that it arrived here will now get a better deal.
We now need to address the imbalance between the NHS and local government. The Minister may seek to deny that the Bill is heavily weighted against local government but denial of the Bill's consequences has been a consistent theme from Ministers throughout our deliberations. They blame local government for causing delays in discharging patients—especially the elderly—from hospital. The Government have rightly encouraged local authorities and the NHS to work in partnership to solve the problems, which is exactly what has been happening. Not all parts of the country have been as effective as the best. Some local authorities are still struggling to overcome the decimation of the care home sector that is the result of government policies—but real progress has been made. However, the Government have always acted as if Rome could indeed be built in a day and, before the new partnership agreements have had a chance to prove themselves, they have changed tack again and decided that a system of lines would sharpen the mind of local government.
Your Lordships will know that financial penalties indeed concentrate the mind; but also that unless penalties are carefully designed, they are likely to overwhelm other system drivers. In this case, they are likely to result in a complete failure of the partnerships that have so carefully been built up. Revealingly, the Minister spoke during our debate on the previous amendment of local authorities taking the maximum time to arrange discharges allowed under the Bill. It is clear from his comments that the Government now assume that partnership working will be killed by the Bill.
Putting that to one side, the system of fines is not even neutral for the NHS. The fines become a revenue stream for a hard-pressed NHS. Do not be fooled by government claims of large amounts of money going to the NHS. Most of the NHS is struggling to balance its books and is achieving precious little extra activity from the money. The fines will be a real financial incentive to the NHS to discharge patients as soon as possible.
So what is the problem with that? There is a major risk that discharges from hospitals will be premature and patients will end up as emergency readmissions. That is a thoroughly miserable prospect for elderly people. We may hear from the Minister another denial of the linkage between early discharge and emergency readmission, but he cannot deny that, following the Government's various initiatives to date on delayed discharge, readmission levels are at record levels and that rates are now as high as they have been since the Government came to power. We fear that the fines will lead to a rocketing readmission rate. That is simply not good enough for patients.
That is why the amendment mentions a system of incentives to prevent the NHS discharging patients inappropriately. At present, the Bill creates an adverse incentive. We need a positive incentive scheme in the NHS to encourage it to do the right thing, not the wrong thing. We need incentives not just to prevent

31
premature discharge but the NHS avoiding its long-term obligation to provide NHS care by rushing to discharge patients into the responsibility of local government.
At various stages of the Bill's passage, the Minister has given us several versions of incentives that may or may not operate in the NHS. He began by relying on some technical financial flows incentives, possibly starting from 2005–06. But those have been unmasked as potentially illusory and certainly have no immediacy. He has also prayed in aid the system of star ratings, the performance management apparatus, the periodic reviews by the Commission for Health Improvement and even the £100 million promised for the Bill that has still not been handed out to local government. I doubt that any noble Lord who took part in earlier debate on the Bill was impressed by any of that.
Amendment No. 13 is simple. The fining aspect of the Bill— although, I stress, no other—would be delayed until the Secretary of State had determined that a system of incentives within NHS bodies operated to discourage them from inappropriately discharging patients.
I hope that, even at this late hour, the Government will understand that this is a reasonable, balancing measure, I beg to move.
Baroness Barker: My Lords, I support the amendment tabled by the noble Baroness, Lady Noakes. Anyone who has followed our debates on the Bill during recent weeks will be in no doubt that, as my noble friend Lord Clement-Jones, said, there is no monopoly on concern for the patient. However, we greatly fear that the lack of reciprocity on the NHS in the Bill is a fundamental flaw.
I shall make only three observations. First, readmissions to hospital of older people who have been sufficiently ill to be in acute care are damaging. According to the research from Leicester to which I have referred throughout the passage of the Bill, readmission is often such a disruption that there is an increased mortality rate among older people who are readmitted. That is probably one of the most serious statistics. That is why we want a penalty imposed on the NHS for inappropriate discharge. I reiterate: that is what the Government said they were going to do in the NHS Plan, but they have not.
Secondly, we should do well not to forget that another proposal runs alongside: the flat-rate tariff for treatment. Older people will turn out to be—and already are—in many ways some of the NHS's most expensive patients. On average, it takes older people longer to recover from surgical intervention. It is therefore likely that they will be the biggest drain on NHS resources under a flat-rate tariff system. So there again the NHS will have an incentive to discharge older people before they are ready.
My final point is that during our discussion on 10th March the Minister mentioned the Commission for Health Improvement and performance management. I then invited him to tell us how that would relate to
32
foundation hospitals. He was unable to do so, saying that he could not comment on the legislation at that point. We were overjoyed to receive the Bill, so I therefore ask again: how will the measures work in relation to foundation hospitals?
4.30p.m.
Lord Hunt of Kings Heath: My Lords, I was surprised by the tone used by the noble Baroness, Lady Noakes, to describe the Bill. The Government have listened and sought to reach a consensus on many of the important issues that have been debated. For example, there was the decision about regulations and directions on continuing care, the consultation on Section 2 notification and agreement to what we thought was a reasonable compromise—a six-month delay in implementing the Bill—and consultation with local authorities about panel members in case of dispute.
We responded to the requirement of the Select Committee on Delegated Powers and Regulatory Reform for more detail about the size of the charge. We made changes to the giving and withdrawing of notification and the proposed discharge date notification, so that both the NHS and social services will be clear about where each is in the process. We published the draft regulations, as requested, so that noble Lords are aware of the details and, of course, the Government tabled a raft of amendments in another place to bring carers into the Bill. We also announced that we would transfer £100 million in a full year to local government to meet the additional costs of dealing with the number of delayed discharge cases. I therefore think that it is very unfair to say that the Government have not listened, or been ready to discuss or compromise. I am sorry that noble Lords have not acknowledged that.
Of course nursing homes in some parts of the country have come under pressure. The figures that I have show that the number of care home places has fallen by 6,320 between 1997 and 2001. It is a fall, but it is only about 1 per cent of all care home places. That takes account of the number of homes closing, homes opening and existing homes extending capacity. Those are the figures that should be borne in mind—not the highly exaggerated figures that are often quoted.
The amendment relates to the issue of re-admissions to hospitals, and the suggestion that the Bill is an incentive to discharge patients prematurely. We define re-admission as admission to hospital within 28 days of discharge. I do not deny that re-admissions should be a matter of concern if they indicate failings in the care the person received during the earlier period of treatment. But it would be wrong to assume that that is inevitably the case. There are situations in which it would be wrong to blame the NHS for having failed to treat the person properly the first time. The article on re-admission rates in Leicester, to which the noble Baroness, Lady Barker, referred, surely provides evidence of that. The study showed that nearly 60 per cent of re-admissions were due to new problems or chronic medical conditions.

33
Noble Lords will know that my department has been focusing intently on how to reduce delayed discharges since October 2001 when the building care capacity grant was first distributed. In the period since then delayed discharges have fallen significantly. If the connection between delayed discharge and readmission were correct, we would expect an equivalent rise in re-admissions, but there has been a rise of under 1 percent. I do not overlook the fact that re-admission rates can indicate potential problems around discharge, which is why we need to monitor the situation clearly. But there is no justification for arguing that pressure to reduce delays leads inevitably to premature discharge, and hence unnecessary re-admission. I do not believe that the figures back that up.
I found the Leicester study interesting. It showed that social reasons, either alone or in combination with other factors, can contribute to re-admissions. That is hardly surprising. A frail, elderly person returning from hospital without sufficient or timely support could have problems, which might then lead to re-admission. It is extremely interesting to note that the study reported that improper communication among various members of the multi-disciplinary team and with the general practitioner accounted for a significant number of re-admissions. That is the point. It is the point of what we are discussing and the point of lessons from Climbié and elsewhere in the health/social care interface.
It is precisely that problem, which the study described as improper communication, that the Bill will prevent. Many of the problems that we face are not down to enormous pressure on health care and local government, nor are they down to impossible pressure on individuals. They are caused by the lack of proper processes and procedures, lack of proper supervision and a seeming inability among professional practitioners to write matters down so that there is an audit trail. Those are the issues that the Bill is attempting to grip. Because the NHS has a new duty under the Bill to communicate to the local authority that it has a patient who may need help, social services will be brought into the planning process early on—not the situation that has been described when the health service can ring social services departments at 4 p.m. on a Friday saying, -Here is a patient we are just about to discharge".
This is an example of the Bill placing a great deal of responsibility on the NHS to sort out the matter. The NHS will have to inform social services of the date of discharge at least 24 hours beforehand. Social services will have advance notice of when services will be available. Because both the hospital and the primary care trust will consult the local authority about the services that they will provide after discharge, the patient's needs for health and social care will be considered by all parties.
34
It is not justified to create a link between the Bill and premature discharge. The incentives that are currently in place, and which will be in place with the financial flows in the future, will ensure that the incentives work in the right way towards effective discharge procedures and effective relationships and partnership between the health service and local government. Above all, they will ensure that when a person is ready for discharge, the community care package can be assessed and put into place as quickly as possible. On that basis, I hope that the noble Baroness will not press her amendment.
Baroness Noakes: My Lords, I thank the noble Lord for his reply. I did not say in my opening remarks that the Government had not listened. He seemed to accuse me of claiming that, but I did not say that. I said that the Bill was unbalanced when it arrived, but because of amendments tabled by us and those on the Liberal Democratic Benches, it is now better balanced, but it is not yet balanced enough. The Government, or at least the House, listened to many of the amendments. But there is one area that remains outstanding, which is the issue of reciprocal incentives.
I have no doubt that the Bill creates powerful incentives for social services to act as rapidly as possible, but I fear that it creates a harmful incentive on the NHS. I do not claim that early discharge results inevitably in every patient being re-admitted, but there is likely to be a correlation. The statistics that we have seen show that the proportion of re-admissions attributable to early discharge has nearly doubled in the past couple of years, just as we have seen the ticking up of the rate of re-admission.
This is too dangerous an area of the Bill to leave without corresponding incentives on the NHS. I have heard the Minister but the Bill would be inappropriate if it were left without corresponding incentives. I should like to test the opinion of the House.
4.38 p.m.
On Question, Whether the said amendment (No. 13) shall be agreed to?
Their Lordships divided: Contents, 145; Not-Contents, 112.

Division No. 2

CONTENTS

Aberdare, L.

Brooke of Sutton Mandeville, L.

Addington, L.

Brougham and Vaux, L.

Ampthill, L.

Burnham, L.

Anelay of St Johns, B.

Buscombe, B.

Astor, V.

Byford, B.

Astor of Hever, L. [Teller]

Caithness, E.

Avebury, L.

Campbell of Alloway, L

Barker, B. [Teller]

Carnegy of Lour, B.

Beaumont of Whitley, L.

Cavendish of Furness, L

Biffen, L.

Chadlington, L.

Blaker, L.

Chalfont, L.

Blatch, B.

Clement-Jones, L.

Bowness, L.

Colwyn, L.

Bradshaw, L.

Cox, B.

Bridgeman, V.

Craig of Radley, L.

Bridges, L.

Crickhowell, L.

35

Dean of Harptree, L.

Newton of Braintree, L.

Dholakia, L.

Noakes, B.

Dixon-Smith, L.

Northesk, E.

Eccles of Moulton, B.

Northover, B.

Eden of Winton, L.

Oakeshott of Seagrove Bay, L.

Elis-Thomas, L.

O'Cathain, B.

Elles, B.

Onslow, E.

Elliott of Morpeth, L.

Park of Monmouth, B.

Elton, L.

Patten, L.

Ezra, L.

Perry of Southwark, B.

Falkland, V.

Perry of Walton, L.

Fearn, L.

Plumb, L.

Finlay of Llandaff, B.

Plummerof St. Marylebone, L.

Fookes, B.

Razzall, L.

Fowler, L.

Reay, L.

Gardner of Parkes, B.

Redesdale, L.

Gilmour of Craigmillar, L.

Renfrew of Kaimsthorn, L.

Glentoran, L.

Rennard, L.

Gloucester, Bp.

Renton, L.

Goodhart, L.

Roberts of Conwy, L.

Gray of Contin, L.

Rodgers of Quarry Bank, L.

Greengross, B.

Rogan, L.

Hamwee, B.

Roll of Ipsden, L.

Hanningfield, L.

Roper, L.

Harris of Richmond, B.

Ryder of Wensum, L.

Henley, L.

St. John of Bletso, L.

Hodgson of Astley Abbotts, L.

St John of Fawsley, L.

Hogg, B.

Sandberg, L.

Holme of Cheltenham, L.

Sanderson of Bowden, L.

Howe, E.

Scott of Needham Market, B.

Howe of Aberavon, L.

Sharp of Guildford, B.

Howell of Guildford, L.

Sharples, B.

Hunt of Wirral, L.

Shaw of Northstead, L.

James of Holland Park, B.

Shutt of Greetland, L.

Jenkin of Roding, L.

Skelmersdale, L.

Kimball, L.

Smith of Clifton, L.

Laing of Dunphail, L.

Soulsby of Swaffham Prior, L.

Lawson of Blaby, L.

Stevens of Ludgate, L.

Lester of Herne Hill, L.

Swinfen, L.

Livsey of Talgarth, L.

Taverne, L.

Lucas, L.

Thatcher, B.

Lyell, L.

Thomas of Gresford, L.

McColl of Dulwich, L.

Thomas of Walliswood, B.

MacGregor of Pulham Market,

Thomson of Monifieth, L.

L.

Tordoff, L.

Mackie of Benshie, L.

Tugendhat, L.

McNally, L.

Vivian, L.

Maddock, B.

Waddington, L.

Marlesford, L.

Wallace of Saltaire, L.

Masham of Ilton, B.

Walmsley, B.

Mayhew of Twysden, L.

Warnock, B.

Miller of Hendon, B.

Weatherill, L.

Monro of Langholm, L.

Wigoder, L.

Mowbray and Stourton, L.

Wilcox, B.

Moynihan, L.

Williams of Crosby, B.

Murton of Lindisfarne, L.

Windlesham, L.

Newby, L.

Wolfson, L.

NOT-CONTENTS

Acton, L.

Campbell-Savours, L.

Ahmed, L.

Carter, L.

Amos, B.

Chorley, L.

Andrews, B.

Christopher, L.

Archer of Sandwell, L.

Clark of Windermere, L.

Ashton of Upholland, B.

Clarke of Hampstead, L.

Bach, L.

Clinton-Davis, L.

Barnett, L.

Cohen of Pimlico, B.

Bassam of Brighton, L.

Corbett of Castle Vale, L.

Bernstein of Craigweil, L.

Crawley, B.

Blackstone, B.

David, B.

Borrie, L.

Davies of Coity, L.

Bragg, L.

Davies of Oldham, L.

Brooke of Alverthorpe, L.

Dean of Thornton-le-Fylde, B.

Brookman, L.

Desai, L.

Bruce of Donington, L.

Dixon, L.

36

Donoughue, L.

Lea of Crondall, L.

Dormand of Easington, L.

Lipsey, L.

Dubs, L.

Lofthouse of Pontefract, L.

Elder, L.

Macdonald of Tradeston, L.

Evans of Parkside, L.

McIntosh of Haringey, L.

Evans of Temple Guiting, L.

[Teller]

Falconer of Thoroton, L.

MacKenzie of Culkein, L.

Farrington of Ribbleton, B.

Mason of Barnsley, L.

[Teller]

Merlyn-Rees, L.

Faulkner of Worcester, L.

Milner of Leeds, L.

Filkin, L.

Mishcon, L.

Fitt, L.

Mitchell, L.

Fyfe of Fairfield, L.

Morris of Manchester, L.

Gale, B.

Orme, L.

Gibson of Market Rasen, B.

Parekh, L.

Gladwin of Clee, L.

Patel of Blackburn, L.

Golding, B.

Pendry, L.

Goudie, B.

Peston, L.

Gould of Potternewton, B.

Pitkeathley, B.

Grabiner, L.

Prys-Davies, L.

Graham of Edmonton, L.

Puttnam, L.

Gregson, L.

Ramsay of Cartvale, B.

Hardy of Wath. L.

Rendell of Babergh, B.

Harrison, L.

Richard, L.

Haskel, L.

Sainsbury of Turville, L.

Hayman, B.

Sawyer, L.

Hilton of Eggardon, B.

Sheldon, L.

Hogg of Cumbernauld, L.

Simon, V.

Hollis of Heigham, B.

Strabolgi, L.

Howells of St. Davids, B.

Symons of Vernham Dean, B.

Howie of Troon, L.

Taylor of Blackburn, L.

Hoyle, L.

Temple-Morris, L.

Hughes of Woodside, L.

Thornton, B.

Hunt of Chesterton, L.

Turner of Camden, B.

Hunt of Kings Heath, L.

Uddin, B.

Janner of Braunstone, L.

Walker of Doncaster, L.

Jeger, B.

Warwick of Undercliffe, B.

Jones, L.

Whitaker, B.

Jordan, L.

Wilkins, B.

King of West Bromwich, L.

Williams of Elvel, L.

Kirkhill, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
4.48 p.m.
Clause 9 [Dispute resolution]:
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 14:
Page 8, line 26, leave out "under this Part"
On Question, amendment agreed to.
Clause 10 [Adjustments between social services authorities]:
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 15:
Page 8, line 43, leave out from "incurred" to "from" in line 46 and insert—

"(i) in the performance of functions under this Part in relation to a qualifying patient;

(ii) in the provision of community care services which are the subject of a decision under section 4(2)(b); or

(iii) in the provision of services to a carer which are the subject of a decision under section 4(4)(b),"

On Question, amendment agreed to.
Earl Howe Earl Howe moved Amendment No. 16:
After Clause 20, insert the following new clause—
"DURATION
(1) Subject to subsection (2), Part 1 of this Act shall cease to have effect at the end of five years beginning with the date on which it comes into force.
(2) If the Secretary of State is satisfied that it is necessary for social services authorities to continue making payments in cases where the discharge of patients is delayed for reasons relating to the provision of community care services or services for carers, he may make an order providing that Part 1 of this Act shall continue in force for a further five years.
(3) An order may not he made under subsection (2) unless a draft of that order has been laid before, and approved by resolution of, both Houses of Parliament."
The noble Earl said: My Lords, the objections that we in the Opposition have to the Bill are many. Some objections are based on considerations which we know are valid, even in advance of the Bill coming into force. We deplore the way in which it makes local authorities the whipping boys for the problem of delayed discharges without in any way recognising the role which they play day in, day out, in preventing inappropriate admissions to hospital in the first place. We deplore a policy that moves us away from the letter and spirit of shifting the balance of power and imposes a system of micro-management from the centre. We deplore the pointless churning of public money around the system. We deplore the additional bureaucracy and the cost of that bureaucracy.
However, many of our objections to the Bill come under a somewhat different heading—the fact that this whole measure is a giant experiment. The Government profess to be confident that the Bill will achieve what is intended of it. I do not know on what considerations they base that confidence. The idea of penalising local authorities came originally from Sweden. Sweden is the home of many good ideas, but this is one that has not worked. Even after operating the scheme for a number of years, and even with spare capacity in its care home sector, Sweden still has a higher incidence of delayed discharges in both relative and absolute terms than we do in the UK. Against that background, the Government's confidence for the Bill looks somewhat bold.
That is one dimension of the risk, but we fear, too, that the Bill will introduce perverse incentives which may frustrate rather than assist the aim it is designed to achieve. We fear that the sword of Damocles hanging over social services will serve to encourage care homes to ratchet up their charges, thus restricting even further the resources available to meet the needs of patients.
We fear that the Bill will distort priorities in that local authorities will not be able to devote the time and resources they should towards helping people in their own homes when they are faced with the imperative of avoiding tines for patients stuck in hospital. Partly because of that, we fear that more elderly patients who need some form of social care will be referred to hospital as the one place where they are guaranteed to have their needs seen to, thus swelling the numbers of patients who are blocking beds. We foresee the creative, collaborative
38
relationship between the NHS and local authorities that is now increasingly in evidence being transformed into a wary, confrontational relationship— again, to the detriment of patients.
The risk that patients and their carers will be denied a proper degree of choice has, at least in part, been forestalled by amendments to the Bill which the House approved last week. But this measure does not have the patient's voice at its core. It is a Bill about the system and about the acceleration of processes. We are assured by Ministers that it would be unthinkable for patients not to be involved in decisions ma de about what happens to them and for their confidentiality to be breached. But we are not at all confident about those assurances in the face of the financial imperatives and dictates that the Bill introduces.
In looking at the Bill, we are faced with a balance of risks and probabilities. We can only make educated guesses about what will happen. Certainly the Government are not in a position to assert with confidence that the Bill will succeed, by which I mean that it will succeed in the broadest sense. They may not want any of the unintended consequences to happen, but little can be done if they do. That is why I have tabled the amendment. It proposes that we give the Bill a finite life of five years. At the end of that time, the Government would have to present an affirmative resolution to Parliament if they believed that it was necessary to keep the provisions of the Bill in force. I have not set the hurdle any higher than that; it seems a perfectly reasonable proposal. Five years is a reasonable period of time. By then, the effects of the Bill will be measurable. If it has succeeded in delivering a genuinely better system for patients and has encouraged new investment in capacity without the adverse consequences I have referred to, no one in Parliament will argue against its continuation.
So, in the scale of risks for the Government, the risk of accepting the amendment is minuscule. They say they are confident of the Bill succeeding in its purpose. In that case, they have nothing to fear from a review after five years. Equally, in the face of this giant experiment, Parliament, I believe, is entitled to an insurance policy. I beg to move.
Lord Clement-Jones: My Lords, I support the amendment. We have had a powerful speech from the noble Earl, Lord Howe, in favour of it. It is no secret that we on these Benches believe the Bill to be completely misguided. In the best of all possible worlds, we would prefer it not to leave the House, as the Minister is clearly aware.
The Government have a rather different view. What is in contention is the evidence they have that the Bill will be effective. There appears to be no evidence at all, apart from a spurious health tourism visit that Ministers appear to have made to Sweden, as the noble Earl, Lord Howe, pointed out.
The amendment gives the Government the opportunity to put the matter to the test. In fie years' time it would give both Houses the opportunity to debate whether the Bill has benefited the patient. Even

39
if we cannot bury the Bill in this House, I hope that at least we can provide for it to be put to the test in five years' time. For that reason, I hope that the amendment will be supported.
Lord Hunt of Kings Heath: My Lords, I am overwhelmed by the enthusiasm shown by the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, for the Bill. I regret that. I will not repeat what I have already stated today—this is probably our fourth Second Reading-type debate on the principles contained in the Bill—but I would like to respond to two points raised by the noble Earl, Lord Howe, and endorsed by the noble Lord, Lord Clement-Jones.
Let me clearly state that local authorities are not the whipping boys, as described by the noble Earl, Lord Howe. The Bill's architecture and the practice that will follow is so constructed that the success of its implementation will depend on both the local authority and the NHS improving their practice. If the NHS fails on its side of the bargain, incentives will be in place to ensure that it, too, suffers.
The noble Earl, Lord Howe, referred to money moving around the system. I believe that financial incentives, in the right circumstances, can encourage good performance. That is why it is appropriate that we are transferring £100 million in a full year, which is what we reckon will be the local authority costs of dealing with the current level of delayed discharges and why it is right that that money should come from NHS budgets. Where local authorities ensure that they deal with discharge cases effectively, that resource will be spent not on paying penalties to the NHS but on providing effective community support services. That is surely the point.
I very much hope and, indeed, expect that very few penalties will be issued, because that is, in a sense, the last resort under the Bill. One wants good practice to be adopted everywhere. We know that good practice exists in many parts of the country. Despite the spectacle that we have been treated to in our debates of problems facing these poor statutory agencies, there are many examples of such agencies getting their act together, ensuring that discharge procedures are put into place effectively and that there is an effective package of care in the community for older people who have been so discharged.
This is not a confrontational Bill. It is not bureaucratic, but it does demand rigour and proper processes. It demands that matters should be written down. It demands that deadlines are met. But the whole problem with so much practice in health and social care up to now is that rigour has been lacking. I make no apologies whatever for ensuring through the Bill that rigour is put into place as that is the essential safeguard for the individual patient who at the moment is delayed far too long in an acute hospital bed.
As regards the sunset clause, I repeat what I said at Report stage. Such clauses are generally used only in Acts that are passed because of national emergencies such as the Import, Export and Customs Powers (Defence) Act 1939, or Acts which impinge upon
40
individual civil liberties. Proposing a sunset clause for this Bill is going over the top. We shall, of course, monitor the introduction of the Bill. We have monitoring systems in place. We shall look at the data. We shall work with local authorities and with the health service to ensure that the Bill is implemented successfully. I am confident that that will be the case. I believe that older people in particular will very much benefit from its provisions. However, I do not believe that this is the kind of Bill to which a sunset clause should apply.
5 p.m.
Earl Howe: My Lords, I listened carefully to the Minister and I thank him for his remarks. Once again, he asserted his confidence in the Bill before us. It would be surprising if he had not. What has been notable ever since Second Reading is that, apart from the Minister, hardly anyone at all, not even on his own Benches, has expressed any confidence in the Bill or any enthusiasm for it. I suggest that that fact alone puts the Minister's confidence into perspective. I should tell him that even at this late stage of the Bill I have received impassioned pleas from local government quarters to kill the Bill off entirely. No doubt other noble Lords have also received such pleas. It is only right to take such approaches seriously but for our part, as the noble Lord, Lord Clement-Jones, indicated, we have decided on balance that, particularly improved and amended as it has been by your Lordships, the Bill should be allowed to pass.
As I have said, this is a Bill that is not only shot through with undesirable features but is also fraught with risk and uncertainty. That is the main reason for my amendment. There is another reason which is that it should be second nature to us to look for ways of ridding the statute book of unnecessary or unsuccessful regulation whenever we can. Sunset clauses enable us to address those objectives in a very neat fashion. Frankly, it is irrelevant where and when sunset clauses have been used before. They should be seen as being useful in appropriate circumstances. I believe that this amendment is worthy of approval and I should like to seek the opinion of the House on it.
5.4 p.m.
On Question, Whether the said amendment (No. 16) shall be agreed to?
Their Lordships divided: Contents, 145; Not-Contents, 115.

Division No. 3

CONTENTS

Aberdare, L.

Biffen, L.

Addington, L.

Blaker, L.

Alton of Liverpool, L.

Blatch, B.

Ampthill, L.

Bowness, L.

Anelay of St Johns, B.

Bradshaw, L.

Astor, V.

Bridges, L.

Astorof Hever, L. [Teller]

Brooke of Sutton Mandeville, L

Avebury, L.

Brougham and Vaux, L.

Baker of Dorking, L.

Burnham, L.

Barker, B.

Buscombe, B.

Beaumont of Whitley, L.

Byford, B.

41

Campbell of Alloway, L.

Moran, L.

Carnegy of Lour, B.

Mowbray and Stourton, L.

Cavendish of Furness, L.

Moynihan, L.

Chadlington, L.

Murton of Lindisfarne, L.

Chalfont, L.

Newby, L.

Clement-Jones, L. [Teller]

Newton of Braintree, L.

Coe, L.

Noakes, B.

Colwyn, L

Northesk, E.

Cox, B.

Northover, B.

Dean of Harptree, L.

Oakeshott of Seagrove Bay, L.

Denham, L.

O'Cathain, B.

Dholakia, L.

Onslow, E.

Dixon-Smith, L.

Park of Monmouth, B.

Eden of Winton, L.

Parkinson, L.

Elis-Thomas, L.

Patten, L.

Elles, B.

Perry of Southwark, B.

Elliott of Morpeth, L.

Perry of Walton, L.

Elton, L.

Plumb, L.

Ezra, L.

Rawlings, B.

Falkland, V.

Reay, L.

Fearn, L.

Redesdale, L.

Finlay of Llandaff, B.

Renfrew of Kaimsthorn, L.

Fookes, B.

Rennard, L.

Fowler, L.

Renton, L.

Gardner of Parkes, B.

Roberts of Conwy, L.

Gilmour of Craigmillar, L.

Rodgers of Quarry Bank, L.

Glentoran, L.

Rogan, L.

Goodhart, L.

Roper, L.

Gray of Contin, L.

Ryder of Wensum, L.

Hamwee, B.

St. John of Bletso, L.

Hanham, B.

Sandberg, L.

Hanningfield, L.

Sanderson of Bowden, L.

Henley, L.

Sandwich, E.

Hodgson of Astley Abbotts, L.

Scott of Needham Market, B.

Hogg, B.

Sharp of Guildford, B.

Holme of Cheltenham, L.

Sharples, B.

Howe, E.

Shaw of Northstead, L.

Howe of Aberavon, L.

Shutt of Greetland, L.

Howell of Guildford, L.

Simon of Glaisdale, L.

Hunt of Wirral, L.

Skelmersdale, L.

Inge, L.

Smith of Clifton, L.

James, of Holland Park, B.

Steel of Aikwood, L.

Jenkin of Roding, L.

Stevens of Ludgate, L.

Jopling, L.

Swinfen, L.

Laing of Dunphail, L.

Taverne, L.

Lawson of Blaby, L.

Thatcher, B.

Lester of Herne Hill, L.

Thomas of Gresford, L.

Livsey of Talgarth, L.

Thomas of Walliswood, B.

Lucas, L.

Thomson of Monifieth, L.

Lyell, L.

Tordoff, L.

McColl of Dulwich, L.

Tugendhat, L.

MacGregor of Pulham Market,

Vivian, L.

L.

Waddington, L.

Mackie of Benshie, L.

Wallace of Saltaire, L.

McNally, L.

Walmsley, B.

Maddock, B.

Warnock, B.

Marlesford, L.

Weatherill, L.

Masham of Ilton, B.

Wigoder, L.

Mayhew of Twysden, L.

Wilcox, B.

Miller of Chilthorne Domer, B.

Williams of Crosby, B.

Miller of Hendon, B.

Windlesham, L.

Monro of Langholm, L.

Wolfson, L.

NOT-CONTENTS

Acton, L.

Borrie, L.

Ahmed, L.

Bragg, L.

Amos, B.

Brett, L.

Andrews, B.

Brooke of Alverthorpe, L.

Archer of Sandwell, L.

Brookman, L.

Ashton of Upholland, B.

Bruce of Donington, L.

Bach, L.

Campbell-Savours, L.

Barnett, L.

Carter, L.

Bassam of Brighton, L.

Chorley, L.

Bernstein of Craigweil, L.

Christopher, L.

Blackstone, B.

Clark of Windermere, L.

42

Clarke of Hampstead, L.

Jordan, L.

Clinton-Davis, L.

King of West Bromwich, L.

Cohen of Pimlico, B.

Kirkhill, L.

Corbett of Castle Vale, L.

Lea of Crondall, L.

Crawley, B.

Lipsey, L.

David, B.

Lofthouse of Pontefract, L.

Davies of Coity, L.

Macdonald of Tradeston, L.

Davies of Oldham, L.

McIntosh of Haringey, L.

Dean of Thornton-le-Fylde, B.

[Teller]

Desai, L.

MacKenzie of Culkein, L.

Dixon, L.

Mallalieu, B.

Donoughue, L.

Mason of Barnsley, L.

Dormand of Easington, L.

Merlyn-Rees, L.

Dubs, L.

Milner of Leeds, L.

Elder, L.

Mishcon, L.

Evans of Parkside, L.

Mitchell, L.

Evans of Temple Guiting, L.

Morgan, L.

Farrington of Ribbleton, B.

Morris of Aberavon, L.

[Teller]

Morris of Manchester, L.

Faulkner of Worcester, L.

Orme, L.

Filkin, L.

Parekh, L.

Fitt, L.

Patel of Blackburn, L.

Fyfe of Fairfield, L.

Pendry, L.

Gale, B.

Peston, L.

Gibson of Market Rasen, B.

Pitkeathley, B.

Gladwin of Clee, L.

Plant of Higlifteld, L.

Golding, B.

Puttnam, L.

Goudie, B.

Ramsay of Cartvale, B.

Gould of Potternewton, B.

Randall of St. Budeaux, L.

Grabiner, L.

Rendell of Babergh, B.

Graham of Edmonton, L.

Richard, L.

Greengross, B.

Sainsbury of Turville, L.

Gregson, L.

Sawyer, L.

Harrison, L.

Sheldon, L.

Haskel, L.

Simon, V.

Hayman, B.

Strabolgi, L.

Hilton of Eggardon, B.

Symons of Vernham Dean, B.

Hogg of Cumbernauld, L.

Taylor of Blackburn, L.

Hollis of Heigham, B.

Temple-Morris, L.

Howells of St. Davids, B.

Thornton, B.

Howie of Troon, L.

Turner of Camden, B.

Hoyle, L.

Walker of Doncaster, L.

Hughes of Woodside, L.

Warwick of Undercliffe, B.

Hunt of Chesterton, L.

Whitaker, B.

Hunt of Kings Heath, L.

Wilkins, B.

Janner of Braunstone, L.

Williams of Elvel, L.

Jones, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
5.14p.m.
Lord Hunt of King Heath: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass. —(Lord Hunt of King Heath.)
On Question, Bill passed, and returned to the Commons with amendments.

Crime (International Co-operation)Bill [H.L.]
Read a third time.
Clause 1 [service of Overseas process]:
Lord Filkin Lord Filkin moved Amendment No. 1:
Page 2, line 2, leave out from "proceedings" to end to line 3.
The noble Lord said: My Lords, the amendments alter the drafting of the references to "administrative proceedings" in Clauses 1 and 14. We have discussed

43
administrative proceedings at length. In Grand Committee, my noble and learned friend the Attorney-General agreed, in response to a question from the noble Lord, Lord Carlisle, that we would look further at the drafting of Clause 14. Since then, we have considered carefully whether it enables us to assist as required by the MLAC.
On reflection, we were not satisfied that Clauses 1 and 14 were exactly in line with our obligations to assist under the MLAC in relation to administrative proceedings. The explanatory report to the MLAC states that we are obliged to assist at the investigation stage of such proceedings, as well as at the latter stage when the decision has actually led to a proceeding before the criminal court. It states that,
"assistance can be requested … not only for investigations in criminal matters but also for investigations of conduct that is subject to certain administrative sanctions".
The current drafting of Clause 14 limits assistance to the appeal stage only. The second amendment therefore extends that. As revised, Clause 14(1)(a) and (b) will refer to criminal proceedings or a criminal investigation, and administrative proceedings or an investigation into an act punishable in such proceedings. That makes the circumstances in which we may assist much clearer. The first amendment makes a minor amendment to Clause 1 along the same lines, allowing any document made by an administrative authority relating to administrative proceedings to be served, not just those recording decisions of the administrative authority.
The third amendment ensures that the same safeguards will apply to requests relating to administrative proceedings as apply to requests relating to criminal proceedings. Those safeguards are that in order to assist in obtaining evidence in the UK, the territorial authority in the UK—the Secretary of State for England, Wales and Northern Ireland, and the Lord Advocate for Scotland—is to be satisfied that an offence has been committed or there are reasonable grounds for suspecting that it has, and that proceedings have been instituted or there is an investigation into it. The fourth amendment ensures that references to an "offence" in subsection (2) will cover both criminal offences and acts punishable in administrative proceedings.
We consider that the amendments to Clause 14 will enable us to provide assistance in administrative proceedings in the way required by the MLAC, and acknowledge with appreciation the intervention of the noble Lord, Lord Carlisle, in the measures. I beg to move.
Lord Renton: My Lords, the Minister has taken a great deal of trouble over the amendments, which are mainly drafting amendments. Indeed, he takes a great deal of trouble all the time.
I have one question. which I know was raised in Grand Committee. Amendment No. 4 will insert at the end of page 9, line 9: "An offence"—that means a criminal offence—
"includes an act punishable in administrative proceedings".
44
There may technically be some good reason for inserting that in a Bill with such international implications and effect. However, it is very unusual—in fact, I do not have an example in my recollection—that any administrative proceedings in themselves give rise to a criminal act in such a way. I would be grateful if the Minister would explain that.
Baroness Anelay of St Johns: My Lords, I thank the Minister for tabling the amendments. which clarify the position with regard to administrative proceedings. My noble friend Lord Renton reminds us that we have debated administrative proceedings both in Grand Committee and on Report, when we probed the Government as to what "administrative proceedings" cover. They do not exist in this country as such, nor in all other countries in the European Union.
It is important that the Government make the clarification that they have done today. I would be grateful if the Minister would respond to my noble friend. The Minister was very helpful in responding to one of my own amendments on Report, and he gave a fuller answer to the question raised by the noble Lord, Lord Renton, than he may be able to give today at Third Reading.
Lord Filkin: My Lords, I thank the noble Baroness, Lady Anelay, for her broad recognition of what we have done in this respect.
With regard to the question raised by the noble Lord, Lord Renton, concerning administrative proceedings, to begin with, in the UK administrative proceedings do not lead to a criminal offence but in other countries they do. As the noble Baroness, Lady Anelay, explained, my noble and learned friend Lord Goldsmith gave a full answer to that point on Report.
In essence, the matter goes to the heart of the Government's, and I believe the Official Opposition's, stance in that we see the cornerstone of our cooperation with other European Union member states as being built on the principle of mutual recognition rather than on an expectation that there will ever be exact harmonisation of criminal law because we feel that that would take us into directions that we do not wish to follow.
Perhaps I may quote my noble and learned friend Lord Goldsmith speaking on Report on this part of the Bill concerning the relationship between the proceedings on an appeal against a decision in administrative proceedings and the proceedings themselves. He signalled that we would consider that matter carefully. I am searching, without a great deal of success, to find the exact words that my noble and learned friend used when he went into full detail about that on Report.
However, at heart, although we do not have an exact equivalence in our own jurisdiction, nevertheless we consider it right that we should be able to co-operate with member states rather than go into harmonisation. I suspect that, with a little further devilling, I shall be able to bring to mind the explicit reference of my noble

45
and learned friend Lord Goldsmith on Report. If it would be helpful. I shall drop a note to the noble Lord setting out the fuller detail.
Lord Renton: My Lords, before the noble Lord sits down, when the Bill goes to another place, it will have to consider it in detail, just as we have done. Perhaps I may suggest that some kind of explanation would be relevant for those who are to be involved in the implementation of the Bill in real life. Perhaps it could be explained that administrative proceedings are those which arise through what happens in other countries rather than just here. I do want to make that suggestion.
Lord Filkin: My Lords, as the noble Lord, Lord Renton, has pointed out that I have not yet sat down, I accept his point that we may be able to give some guidance on that matter. I turn to what my noble and learned friend Lord Goldsmith said on Report. Administrative proceedings are those which relate to an administrative offence. That much is self-evident. They concern something that we might well regard as a criminal offence here. It is tried as an administrative offence but there is an appeal to a court and a penalty is imposed.
Clemency proceedings are quite distinct. They are a form of procedure not known to us specifically but they may well include what we might think of as an appeal for a reduction in a sentence imposed on the conviction of the criminal offence. My noble and learned friend said:
"I do not know whether it is theoretically possible to have a clemency proceeding against the finding of guilt on an administrative offence. That is not the point. They are distinct issues".—[Official Report, 23/1/03; col. GC 71.]
Perhaps I may take the spirit of what the noble Lord., Lord Renton, said and see whether we can make it absolutely clear what the offences might be and why they are necessary in the Bill. That may help to bring some economy to the proceedings in another place.
On Question, amendment agreed to.
Clause 14 [Powers to arrange for evidence to be obtained]:
Lord Filkin Lord Filkin moved Amendments Nos. 2 to 4:
Page 8, line 38, leave out from "proceedings" to end of line 40 and insert "or a criminal investigation, being carried on outside the United Kingdom,

(b) administrative proceedings, or an investigation into an act punishable in such proceedings, being carried on there"

Page 9, line 1, leave out from beginning to ", the" and insert "In a case within subsection (1)(a) or (b)"
Page 9, line 9, at end insert—
"An offence includes an act punishable in administrative proceedings."
On Question, amendments agreed to.
Clause 82 [Foreign surveillance operations]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 5:
Page 55, line 40, at end insert—
46
"( ) A foreign police or customs officer conducting relevant surveillance in the United Kingdom under this section shall be prohibited from challenging a person under surveillance."
The noble Baroness said: My Lords, in moving Amendment No. 5, I shall speak also to Amendment No. 6, which is grouped with it. Amendment No. 5 would make it clear on the face of the Bill that when foreign police or customs officers are in the United Kingdom carrying out covert surveillance under the provisions of the Bill, in those circumstances they must not challenge a person here in the UK.
I raised this matter in Grand Committee as part of a wider amendment that. also sought to prohibit the officer from entering private property and arresting the person under surveillance. At that stage, the Government maintained that all these matters could be dealt with by secondary legislation. I was grateful to the Government for changing their mind with regard to entry to private property. On Report, we all agreed to a government amendment that dealt with that issue.
However, the Government have still not changed their mind on the matter of arrest and challenge. After discussions with the Minister, I am prepared to accept that it should be clear enough that the officer cannot arrest a person when he is carrying out covert surveillance. In this country, we all understand what "arrest" means. It is clearly set out in our law. But will the Minister take the opportunity today to confirm that it would be against UK law for a foreign officer—either a customs or a police officer—to arrest a person whom he has under covert surveillance?
That still leaves the issue of the lack of clarity with regard to the matter of challenge. I have used the word "challenge" in Amendment No. 5 because that is the word in the Schengen handbook. But, so far as I am aware, as I said previously, there is no concept of that in our law. The Minister was kind enough to write to me after the Report stage to clarify the Government's position on what is meant by the word "challenge". But I am afraid that his valiant efforts at clarification only helped to worry me even more about the drafting of the clause.
In his letter of 11th March, the Minister acknowledged that, so far as he is aware, the word "challenge" is, indeed, not defined in English law. He went on to say that the Government construe the references in the convention as preventing officers from questioning or stopping a suspect or from asking him to explain or justify his actions or to identify himself. Perhaps I may say at this point that I believe that is a very practical and proper interpretation of the word "challenge". It goes far broader than what I had originally considered to be meant by "challenge", whereby a policeman would simply say, "Oi, you there. Stop". Therefore, it is a far broader definition.
As a result of that helpful—at least, helpful to me—letter from the Minister, I then tabled a further amendment—Amendment No. 6 on today's grouping list—to include the Minister's interpretation on the face of the Bill. However, at present the problem is simply that there is no clarification in the Bill as to what we mean by the word "challenge".
I believe that in this case a mention in the Schengen handbook is simply not good enough, especially as we now know that the Government have interpreted the word "challenge" to mean that people should not be stopped or questioned. I believe that that clarity and that assurance should be on the face of the Bill and not left to the vagaries of the original definition of the word "challenge" in the Schengen handbook. Perhaps I may take the Minister into my confidence. I do not carry the Schengen handbook around with me as prescribed reading. I suspect that members of the public do not do so either, nor those who advise them at first instance if they find themselves challenged by a foreign officer from either the police or customs. I give way to the noble Lord.
Lord Clinton-Davis: My Lord, does the noble Baroness carry around with her Archbold?
Baroness Anelay of St Johns: My Lords, my answer would be longer if I did. I have a copy on my desk upstairs. It is a year out of date because the up-to-date one is at home. But the noble Lord is absolutely right to point out that lawyers do not always carry around every single reference book. However, with regard to this definition, I could save the problem of Archbold and the Schengen handbook. Here I have a solution for the noble Lord, Lord Clinton-Davis—a simple short amendment on the face of the Bill. I beg to move.
Lord Clinton-Davis: My Lords, I find the amendment singularly unhelpful. I believe it is very important that there should be a similarity of practice so far as concerns the various member states. That is, above all, the most important point. I do not believe that it is sensible for a foreign officer to stop any person whom he suspects. The danger is that he will be put at risk. That is not a sensible idea. The noble Baroness offered no views on that.
5.30 p.m.
Baroness Anelay of St Johns: My Lords, it may be helpful if I intervene to make clear that Amendment Nos. 5 and 6 are in the alternative. I tabled Amendment No. 6 only after the Minister's response to me. Both would prohibit foreign officers from carrying out any such activity. The intention is to insert a clear prohibition on the face of the Bill. At present the reference in the Schengen handbook is somewhat unclear.
Lord Clinton-Davis: My Lords, I am obliged to the noble Baroness but I do not think that there is any point to either amendment. She has not added to or subtracted from the present law in any way whatever. At present, no foreign officer can stop and question a subject. That is a vitally important point. If he were to do so, he would be in the arena of difficulty and subject to retribution and retaliation by the miscreants. At present, before any action is taken by the home
48
officers, the foreign officers can advise, talk to the people concerned, and offer an opinion but that is all. I believe that the law should remain as it is.
Baroness Carnegy of Lour: My Lords, I support the amendment. I jumped the gun on Report, saying that I was in favour of such an amendment when my noble friend had not moved it. When I read Hansard I found that the Minister was extremely kind and glossed over the matter, for which I am grateful.
Clarity on this issue is important. I do not have in front of me of the Minister's letter to my noble friend a copy of which he kindly sent me. However, I think that he said that a police officer in hot pursuit could not challenge the person he was pursuing because if he did so he would not be undertaking surveillance any more. I did not understand that. It seemed an academic point which did not soothe my concern that the public should be protected from being stopped and searched, or challenged—whichever we take the word to mean—by the person. Perhaps the noble Lord can clarify that. I prefer Amendment No. 6. I do not think that there is anything wrong with putting that provision on the face of the Bill. It would clarify matters for the public, give them confidence and fit in with the other changes which the Minister has wisely made in response to our discussions on this part of the Bill.
Lord Monson: My Lords, whether or not the noble Lord, Lord Clinton-Davis, is right in his interpretation, in order to dot the "i"s and cross the "t"s is there any reason why Amendment No. 5 or 6 could not be included? Like the noble Baroness, Lady Carnegy, I prefer Amendment No. 6. It would give the public confidence. That is all important in these matters.
Lord Goodhart: My Lords, I support the amendment. It seems to me that the word "challenge" would not have got into the Schengen convention document unless in some of mainland European systems it or the equivalent word in the national language had some specific meaning. "Challenge" is not a term of art recognised in United Kingdom law— certainly not in English law. Nor is it entirely self-evident from the context what the word "challenge" means here. It would be helpful if we had an explanation in the Bill. I prefer Amendment No. 6 to Amendment No. 5 which simply puts "challenge" on to the face of the Bill without any explanation as to its meaning. Amendment No. 6 may or may not be accurate but it gives an explanation which would be more readily understandable in this country as to what is meant by "challenge".
Lord Filkin: My Lords, there is probably a dire lesson for me on these amendments: it never pays to be helpful. I shall not rush to that conclusion. We have sought to be as reasonable as we could as regards putting entry into private property on the face of the Bill. For reasons I shall do my best to explain, we do not think that this further crossing of "t"s and dotting of "i"s is necessary.

49
We understand that the amendments probe the meaning of "challenge", seeking to put beyond doubt that the public have nothing to fear in this respect. I am happy to make that utterly clear on the record. As part of that endeavour, I wrote to the noble Baroness, Lady Anelay, on 10th March responding to a number of questions raised in the House during Report. As I noted then, the word "challenge" is not defined in English law. We interpret it, therefore, according to its natural meaning and construe the references in the convention as preventing the officers from questioning or stopping the suspect or from asking him to explain or justify his actions or to identify himself. Clearly, if such action were to be taken, the foreign officers would no longer be carrying out surveillance and new Section 76A would no longer apply, meaning—perhaps I may address the question of the noble Baroness, Lady Carnegy—that they will not be acting within the authority that the Bill gives; they will be acting outwith that authority. Moreover, the officers could be putting themselves in danger since they would be unsupported by UK officers and would, in our judgment, be most unlikely to take the risk of challenging the suspect.
The Schengen handbook outlines all the conditions to which police officers from Schengen states are subject when undertaking cross-border surveillance. In the English version of the handbook the reference to "challenge" has been listed as "stopped and questioned" and this interpretation is mirrored in all the other language versions. We have checked with colleagues and confirmed that the different language versions are drafted centrally by the secretariat maintaining the handbook and the different language drafts are put to the jurist linguists to ensure that the same terms are referred to in each of the translations. So we are confident that the Schengen handbook which affects officers coming for surveillance into this country in the narrow sense, as described in the Bill, and United Kingdom police officers going abroad applies.
Lord Clinton-Davis: My Lords, will the Minister confirm or deny that the practice pursued by the various members of the Schengen agreement is exactly the same; and that is what he has in mind on this issue?
Lord Filkin: My Lords, that is exactly the thrust of my remarks. We are interpreting exactly what the agreement says. The Schengen handbook records that in exactly the same way. I am not aware of any problems which have arisen as a consequence of the operation of the Schengen handbook and the Schengen convention which other European member states have been undertaking for some years.
We fully expect that foreign officers who are acting under the clause will comply with the convention and the provisions in the Schengen handbook and so will not have any contact with the target while conducting urgent cross-border surveillance in the UK. Any
50
contact between foreign officers and the suspect has the potential to lead to conflict and would be inconsistent with the premise of covert surveillance. That is why member states, when discussing and negotiating this framework agreement, were of the clear view that it should not happen. UK officers operating abroad will be instructed to behave in exactly the same way.
Moreover, placing such a prohibition on the face of the Bill through this amendment is meaningless. Foreign officers acting under this clause have no powers under UK law to stop and question anyone. Accordingly, the amendment is ineffectual in so far as it is an attempt to remove any such legal power. Those powers do not exist. Attempting to remove them is nugatory. Further, it seems to create a prohibition without any sanction.
Therefore the point of the amendment is not to change the position legally; it is to make clear to foreign officers that they should not challenge the target. That message is already clearly made by the convention and by the Schengen handbook. I am not persuaded of the argument that foreign officers coming to this country might read the Bill when they would not read the handbook. That is an implausible set of circumstances. Foreign officers undertaking close surveillance of this type would be expected to have read the handbook. If they were in doubt, when they telephoned NCIS for permission to proceed they would be given clear advice in that respect.
It is a basic point. Our practice is no different from any other European Union member state; to whit, if you go across the border you are acting only in a surveillance role; there is no power of arrest, challenge or entry. For those reasons, putting what is already not legal on to the face of the Bill is nugatory and would have no impact in practice on what happens.
The noble Baroness, Lady Anelay, also asked me to confirm the powers of arrest. Foreign officers have no powers of arrest. Holding a person without powers is an offence. Foreign officers will be in contact with people who possess the Schengen handbook. I hope I have explained to the satisfaction of the House that, while we were pleased to put beyond doubt the issue of entry into premises, there is no reason to put that on to the face of the Bill as the issue is without doubt or risk.
Baroness Carnegy of Lour: My Lords, before the Minister sits down, perhaps I may say that he has just made a legal argument. But to be practical, what would happen if a foreign officer conducting surveillance stopped somebody and questioned them?
Lord Filkin: My Lords, he would be acting without authority; he would be acting outwith the law. Therefore he would be in breach of the convention and the Schengen handbook. At a very practical level—I believe that is what the noble Baroness is thrusting towards—a serious issue would be raised between NCIS and the country from which the foreign officer came. That officer would have breached a fundamental term of the framework agreement.

51
The framework agreement operates at heart on the basis of mutual respect of the convention agreement. That would not be elevated to the greatest of issues between other member states, but it would certainly be seen as a significant breach of the agreement, the protocol and of our law.
Baroness Anelay of St Johns: My Lords, I am grateful to the Minister for his response, and for the support of my noble friend Lady Carnegy and the noble Lords, Lord Monson and Lord Goodhart.
The Minister began ironically by saying that perhaps it does not pay to be helpful. Perhaps I may reinforce the fact that it most certainly does from his point of view. As I recall, the fact that he listened so carefully in Grand Committee meant that we were able seriously to foreshorten both Report stage and Third Reading. So the Government change of mind on certain matters was most welcome and helpful to all Members of this House.
But the Minister seeks to persuade me that I should not pursue these amendments because, on his argument, they are nugatory; that one does not need to withdraw a power which does not exist. But the Minister himself said that the Government accepted that there was a need for clarity with regard to the issue of not going into private property.
I accept the Government's argument with regard to "arrest". That provision should not be on the face of the Bill because there is clarity as to what "arrest" means. But there is the matter of the meaning of "challenge". I do not expect every member of foreign police forces or customs services to carry a copy of the Bill with them. I hope that they will be sufficiently well trained to know what it contains and what the Schengen handbook contains. My duty as a Member of Her Majesty's Opposition is to ensure that there is clarity in our legislation for members of the public in the United Kingdom. That is what I seek.
I listened to the points made by noble Lords, who prefer Amendment No. 6 to Amendment No. 5. I agree. Amendment No. 6 has greater clarity. It also has the advantage that it seeks to put on the face of the Bill the Government's interpretation. In the mean time, I beg leave to withdraw the amendment.
Amendment. by leave, withdrawn.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 6:
Page 55, line 40, at end insert—
"( ) A foreign police officer or customs officer conducting relevant surveillance in the United Kingdom under this section shall be prohibited from stopping or questioning a person under surveillance."
The noble Baroness said: My Lords, I beg to move.
5.46 p.m.
On Question, Whether the said amendment (No. 6) shall be agreed to?
Their Lordships divided: Contents, 122; Not-Contents, 117.

Division No. 4

CONTENTS

Addington, L.

Lester of Herne Hill, L.

Alton of Liverpool, L.

Livsey of Talgarth, L.

Ampthill, L.

Lucas, L.

Anelay of St Johns, B.

Luke, L.

Astor, V.

Lyell, L.

Astor of Hever, L.

McColl of Dulwich, L.

Baker of Dorking, L.

MacGregor of Pulham Market,

Barker, B.

L.

Beaumont of Whitley, L.

Mackie of Benshie, L.

Blaker, L.

McNally, L.

Blatch, B.

Maddock, B.

Bradshaw, L.

Marlesford, L.

Bridgeman, V.

Masham of Ilton, B.

Bridges, L.

Mayhew of Twysden, L.

Brooke of Sutton Mandeville, L.

Miller of Chilthorne Domer, B.

Brookeborough, V.

Monro of Langholm, L.

Brougham and Vaux, L.

Monson, L.

Burnham, L,

Montagu of Beaulieu, L.

Buscombe, B.

Mowbray and Stourton, L.

Butterworth, L.

Moynihan, L.

Byford, B.

Murton of Lindisfarne, L.

Campbell of Alloway, L.

Nicholson of Winterbourne, B.

Carnegy of Lour, B.

Noakes, B.

Cavendish of Furness, L.

Northesk, E.

Chadlington, L.

Northover, B.

Clement-Jones, L.

Oakeshott of Seagrove Bay, L.

Cope of Berkeley, L. [Teller]

O'Cathain, B.

Cox, B.

Onslow, E.

Craigavon, V.

Palmer, L.

Crickhowell, L.

Park of Monmouth, B.

Dean of Harptree, L.

Parkinson, L.

Denham, L.

Perry of Southwark, B.

Elis-Thomas, L.

Rawlings, B.

Elliott of Morpeth, L.

Redesdale, L.

Elton, L.

Rees, L.

Ezra, L.

Renfrew of Kaimsthorn, L.

Falkland, V.

Renton, L.

Roberts of Conwy, L.

Fearn, L.

Rodgers of Quarry Bank, L.

Feldman, L.

Rogan, L.

Fookes, B.

Roper, L.

Fowler, L.

Russell, E.

Gardner of Parkes, B.

Sandberg, L.

Geddes, L.

Sandwich, E.

Glentoran, L.

Scott of Needham Market, B.

Goodhart, L.

Seccombe, B. [Teller]

Gray of Contin, L.

Sharp of Guildford, B.

Greenway, L.

Shutt of Greetland, L.

Hamwee, B.

Simon of Glaisdale, L.

Hanham, B.

Skelmersdale, L.

Hanningfield, L.

Thomas of Gresford, L.

Henley, L.

Thomas of Walliswood, B.

Hodgson of Astley Abbotts, L.

Thomson of Monifieth, L.

Hogg, B.

Tope, L.

Howarth of Breckland, B.

Tordoff, L.

Howe, E.

Vivian, L.

Howe of Aberavon, L.

Waddington, L.

Howe of Idlicote, B.

Wallace of Saltaire, L.

Hunt of Wirral, L.

Walmsley, B.

James of Holland Park, B.

Warnock, B.

Jopling, L.

Weatherill. L.

Lang of Monkton, L.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Barnett, L.

Ahmed, L.

Bassam of Brighton, L.

Amos, B.

Bernstein of Craigweil, L.

Andrews, B.

Bhatia, L.

Archer of Sandwell, L.

Blackstone, B.

Ashton of Upholland, B.

Borrie, L.

Bach, L.

Bragg, L.

53

Brett, L.

Jannerof Braunstone, L.

Brooke of Alverthorpe, L.

Jones, L.

Brookman, L.

Jordan, L.

Bruce of Donington, L.

King of West Bromwich, L.

Campbell-Savours, L.

Kirkhill, L.

Carter, L.

Layard, L.

Christopher, L.

Lea of Crondall, L.

Clark of Windermere, L.

Lofthouse of Pontefract, L.

Clarke of Hampstead, L.

Macdonald of Tradeston, L.

Clinton-Davis, L.

McIntosh of Haringey, L.

Cohen of Pimlico, B.

[Teller]

Corbett of Castle Vale, L.

MacKenzie of Culkein, L.

Craig of Radley, L.

Mallalieu, B.

Crawley, B.

Mason of Barnsley, L.

David, B.

Merlyn-Rees, L.

Davies of Coity, L.

Milner of Leeds, L.

Davies of Oldham, L.

Dean of Thornton-le-Fylde, B.

Mitchell, L.

Desai, L.

Morris of Aberavon, L.

Dixon, L.

Morris of Aberavon, L.

Donoughue, L.

Morris of Manchester, L.

Dormand of Easington, L.

Orme, L.

Dubs, L.

Parekh, L.

Eatwell, L.

Patel of Blackburn, L.

Elder, L.

Pendry, L.

Evans of Parkside, L.

Pitkeathley, B.

Evans of Temple Guiting, L.

Plant of Highfield, L.

Farrington of Ribbleton, B.

Prys-Davies, L.

Faulkner of Worcester, L.

Puttnam, L.

Filkin. L.

Ramsay of Cartvale, B.

Finlay of Llandaff, B.

Randall of St. Budeaux, L.

Fyfe of Fairfield, L.

Rendell of Babergh, B.

Gale, B.

Richard, L.

Gibson of Market Rasen, B.

Sainsbury of Turville, L.

Golding, B.

Sawyer, L.

Goudie, B.

Sheldon, L.

Gould of Potternewton, B.

Simon, V.

Grabiner, L.

Stone of Blackheath, L.

Graham of Edmonton, L.

Strabolgi, L.

Grocott, L. [Teller]

Symons of Vernham Dean, B.

Hardy of Wath, L.

Taylor of Blackburn, L.

Harris of Haringey, L,

Temple-Morris, L.

Harrison, L.

Thornton, B.

Haskel, L.

Thronton, B.

Hayman, B.

Turner of Camden, B.

Hilton of Eggardon, B.

Walker of Doncaster, L.

Hogg of Cumbernauld. L.

Warwick of Undercliffe, B.

Hollis of Hcigham, B.

Whitaker, B.

Howells of St. Davids, B.

Wilkins,B.

Hoyle, L.

Williams of Elvel, L.

Hughes of Woodside, L.

Williams of Mostyn, L. (Lord

Hunt of Kings Heath, L.

Privy Seal)

Irvine of Lairg, L. (Lord

Winston, L.

Chancellor)

Woolmer of Leeds, L.

On Question, amendment agreed to.

Resolved in the affirmative, and amendment agreed to accordingly.
5.56 p.m.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 7:
Page 56, line 43, at end insert—
"(12) The Secretary of State shall lay before both Houses of Parliament at least once in every 12 months a report on the working of this section.""
The noble Baroness said: My Lords, I did not move a similar amendment on Report because I wanted to give full consideration to the helpful and detailed response that the Minister gave to my amendments to Clause 82. the clause which introduces powers of hot surveillance for overseas police and customs officers, to which we referred in a previous amendment.
The Government have sought to reassure us throughout that these powers will be used only on rare occasions. I certainly hope that they are right and that that proves to be the case. But regardless of whether the Minister is right or wrong, I am convinced that it is vital that these novel and significant powers should be subject to some form of scrutiny and evaluation in future years.
Will the Home Office, NCIS or individual police forces monitor how foreign authorities are using these provisions? If so, will the results be available for scrutiny by Parliament? Will the operation of what will become Section 76A of the Regulation of Investigatory Powers Act 2000 be reviewed under the arrangements for scrutinising the operation of that Act?
As I said in Grand Committee in relation to another part of the Bill, it is important that when new provisions are introduced into the United Kingdom's domestic law, particularly those which depend upon the actions of authorities in other countries, they are kept under scrutiny in order to ensure that they are operating effectively in the fight against crime and for the benefit of the United Kingdom and its citizens.
I believe that these novel provisions are significant enough to warrant a proper form of scrutiny. My amendment seeks to impose an annual reporting system. I am certainly open to suggestions from the Minister for finding another route. I do not seek to impose a "Bassam special" upon the House necessarily on this occasion. I hope that the Minister will give sufficient assurances that I shall not perhaps need to press the amendment. I beg to move.
Lord Clinton-Davis: My Lords, it is not beyond the powers of the noble Baroness or anyone in this House to ask in a written or oral Question what are the powers and how they are being used. But there are so many powers and so many statutory mechanisms in force for consideration of that issue that we should not be bemused. In particular. I believe that the National Crime Squad and the National Criminal Intelligence Service should be able to monitor how the provisions are working. Perhaps my noble friend will illuminate the House by saying what progress has been made in that regard.
Above all, I stress the importance of preparing thoroughly for questions that may arise out of the changing scenario. To ask my noble friend to return to the House whenever is rather stupid. It is important that this matter is kept under review by the best people authorised to do that. Is my noble friend satisfied that the right questions have been asked by the Home Office in that regard? It is important that we should see that the matter works out well in practice. That is all. To say that the Secretary of State should return to the House is to put forward a solution by which no questions would be asked. I ask the noble Baroness to think carefully about this matter. Is she more concerned with the device or with the practice? In my view the practice is all important. I hope that my noble friend can give the House some assurances in that regard.
6 p.m.
Lord Renton: My Lords, the noble Lord agrees that the public and Parliament should have the right to be made aware of what is happening under the new Bill. However, I suggest to him that instead of leaving the matter to chance, with an obscure Member of either House tabling a question from time to time, there should be an obligation on the Government to let us know how such an important Bill, which breaks new ground, is working out.
Lord Clinton-Davis: My Lords, the noble Lord refers to an obscure Member, but it may not always be such a Member. From time to time even the noble Lord asks questions and he is by no means an obscure Member.
Lord Renton: My Lords, it could be one of the most important Members, dare I say, like the noble Lord, Lord Clinton-Davis, himself, but I believe that that is leaving too much to chance. All other legislation dealing with criminal matters enacted in the past 100 years or so has either amended it or amplified it, but this Bill breaks new ground; it brings in the responsibility of the police in various countries that have signed the Schengen convention. This is an important new development. I suggest that the Government would not be disadvantaged by being asked by Parliament—as we shall do—to report on how matters are proceeding. It would not be merely an obligation, but a great advantage to them to be able to keep us all informed. Therefore, I most warmly support my noble friend's amendment.
Baroness Carnegy of Lour: My Lords, I too support the amendment. It limits itself to the clause concerning surveillance. That is a novel matter for the public. We cannot tell how the public will react to realising that there may be foreign officers snooping about for five hours, looking for someone in their midst. That will arouse misgivings among the public should it happen in areas outside big cities. I can imagine the reaction in different communities that I know once they discover that someone has been conducting surveillance in their midst. I do not know whether the amendment is the right way in which to solve the problem but the Minister must accept that there should be continual update on how the matter is proceeding—whether the arrangements put in place under Schengen and begun in other countries are working out. I hope that the Minister can give the House a good answer.
Lord Filkin: My Lords, I shall do my best. While the noble Baroness, Lady Anelay, will not be surprised to hear me say that I shall not accept the amendment as drafted, I shall try to talk about the heart of it as a number of noble Lords on the Benches opposite have spoken in its support.
The first question that I was asked was whether the Home Office will monitor the article thoroughly. Yes, the Home Office has already agreed with NCS and NCIS that implementation will be closely monitored so that the effectiveness of the new arrangements can be assessed and any operational improvements made as part of it.
56
The Government do not support the specific form of the amendment, because we consider that there will be satisfactory review mechanisms in place. I shall explain the review process that will apply to the new arrangements. Article 40(3)(g) of the Schengen convention requires each instance of urgent surveillance to be the subject of a report to the UK authorities; that is, to the National Criminal Intelligence Service.
All surveillance operations under Part II of the Regulation of Investigatory Powers Act 2000 (RIPA) are covered by the oversight of the Chief Surveillance Commissioner whose annual reports to the Prime Minister are laid before Parliament. RIPA provides that all paperwork relating to RIPA Part II, which will include the reports into urgent operations required by Schengen Article 40 that are taken over by UK officers, will be open for inspection by the Chief Surveillance Commissioner.
Surveillance carried out in the five-hour period before a RIPA authorisation is obtained, or the surveillance ceases, will not be subject to the oversight of the Chief Surveillance Commissioner because there is no decision to review. That surveillance is either automatically lawful or it is not. However, in each case the foreign officers will be required to ask the UK authorities to take over the surveillance under RIPA. Where that happens and the surveillance continues under a RIPA authorisation, the new arrangements will fall under the existing responsibilities of the Chief Surveillance Commissioner. It will be captured at that point.
In addition, the National Crime Squad and the National Criminal Intelligence Service have agreed with the Home Office that they will monitor how the new provisions are working in practice. The exact details of the information that will be collected have yet to be settled. I envisage that it will include all the information that existing members of Schengen currently collect such as the name of the requesting country, the offence concerned, whether or not the surveillance was authorised, the reasons for any refusal, any conditions attached to the approval, the duration of the operation, the outcome and any particular problems or issues. I am very willing to make it absolutely clear to the House as a matter of public policy that we shall provide noble Lords with a summary report of that information after the first year of operation.
The NCIS annual report is the responsibility of the director general, and must cover the whole range of their operational activity. As I have pointed out before, the provisions of the Bill deal very much with exceptional circumstances; we do not expect urgent cross-border surveillance to form a significant part of NCIS's core business. So while we may expect it to allude in this report to cross-border surveillance, as part of the functions of the Sirene Bureau, we would not anticipate that there would be massive detail on that.
I appreciate that those are new arrangements and it is quite right for the House to wish to provide for a degree of parliamentary oversight into their functioning. As I

57
have explained, there will be arrangements to keep those provisions under review and to make the information available to Parliament in the form that I have described. I do not believe that it will be necessary or appropriate to have a requirement for an annual report in perpetuity. I did not think that the noble Baroness, Lady Anelay of St Johns was arguing that.
I would like to deal with one more point before I conclude. Schedule 5 amends RIPA to extend the role of the independent investigatory powers tribunal to cover the new arrangements under new Section 76A. So the tribunal will be able to consider any complaints from any person who is aggrieved by any conduct under the new arrangements. So there is an avenue of redress.
I have already said that we will provide noble Lords with a summary report of how the process is working. It will cover the points that I have indicated. In that first year, it might appear that we were still in—how shall I put it—early teething stages. There may have been only one or two such cases, or it might be slightly early to come to a settled view. I do not want to create needless work, but there is a balance to be struck between utter repetition of annual reports, and trying to ensure that the thrust of noble Lords' concerns is adequately addressed.
So I will go further than saying that we will simply provide a report to the House after the first 12 months. If, in the light of operational experience, it does not seem that that has been conclusive, because of its early stage, we would be happy to provide a further report. That could happen after perhaps two or three years, if that would give a better basis of understanding about how these important powers are operating. It would at least give the clearest opportunity for the House to inquire about those powers. I hope that with those assurances, it has been helpful to the House to ensure that there will be both close monitoring and an adequate opportunity for parliamentary scrutiny of the early operation of the measures.
Lord Renton: My Lords, how often, and covering what period, would such a report be used?
Lord Filkin: My Lords, I was signalling that we were not in favour of an annual report. These measures could be on the statute book for the next 30 or 40 years. An annual report on something that is obviously working would be a waste of time and public money. I have gone further than I originally intended. Although we will perhaps not give a full report, as there are some operational matters that one cannot fully go in to, I will seek an adequate report after the first 12 months of operation. I was going further than that. If it was felt that it was still early days at the end of the first 12 months, or there had been an insufficient number of cases to have a settled view, I would ensure that the Home Office and respective other bodies provided a further report. In other words this would
58
ensure that the House would have an opportunity to see how the measures were operating after the early settling-in period had been completed.
Baroness Anelay of St Johns: My Lords, I am grateful for the support given by my noble friends Lord Renton and Lady Carnegy of Lour. They are correct to call this matter a novel procedure. I am grateful for what the Minister said in response to this amendment, and the assurances that he has put on the record. I will not be pressing this amendment. He is right to say that I was trying to obtain those kind of assurances. I am grateful to him for offering to put a summary report before the House at the end of the year's operation. I am particularly grateful to him for thinking beyond that. If that period did not conclusively show whether these new powers were working satisfactorily, then he would consider a later report so that there could be a better sample of cases.
I should refer to the point made by the noble Lord, Lord Clinton-Davis. He has said before that Written and Starred Questions could be relied on, instead of annual reports. I stress that I am a fervent user of both methods when appropriate. However, I am aware of their limitations. When I was responding for the Opposition on matters relating to the Dome, I recall having one hit when the noble and learned Lord, Lord Falconer of Thoroton, answered a Written Question, which he subsequently found was not correct. He came to the House to apologise. There were many other occasions when we simply did not get answers. For example, the Department of Health has refused to answer a Written Question asking specifically which hospitals still have mixed sex wards. So I support the proper use of Written and Starred Questions, but they have their limitations.
However, I do not need to press this amendment, because the Minister has given a much fairer and better resolution to the issue of obtaining information than having to have an annual report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 8 not moved.]
6.15 p.m.
Clause 92 [Supplementary and consequential provision]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 9:
Page 61, line 36, at end insert—
"(9) Subject to subsection (10) this section shall cease to have effect at the expiry of three years, starting with the date that the Act is given Royal Assent.
(10) Subsection (9) shall not apply if, before the expiry of the three years, the Secretary of State provides by order made by statutory instrument that the section shall continue in force.
(11) An order may not be made under subsection (10) unless a draft of the order has first been laid before and approved by a resolution of each House of Parliament."
The noble Baroness said: My Lords, this is a sunset provision for Clause 92, which gives the Government the opportunity to amend or repeal primary legislation by statutory instrument, either with or without parliamentary scrutiny.
We have had some debate on these matters at earlier stages, but this is the first time they have been debated in this particular form. I wish to make it clear right from the beginning that I have decided it would not be appropriate to press this amendment. I wish to use Third Reading to obtain further clarification. There may be other Bills upon which I wish to press such an amendment. As the Minister knows, I have no liking for Henry VIII clauses. That is despite the fact that he will remind me that when my party was in office, on very rare occasions it used them. However, they are like a gathering storm at the moment in the hands of this Government. We are seeing them far too frequently. I note with great approbation that the next Bill to be handled by the Minister, the Extradition Bill, has not yet fallen foul of such a clause—I am relieved to say.
What further clarification do I require to this Henry VIII clause? It relates to a response made by the Minister at our last stage—and in Grand Committee. On Report, at column 691 of Hansard of 3rd March he said that the Government would not want a sunset clause on the Henry VIII powers on every Bill. I agree with the Government on that. I do not think that every Henry VIII clause is so abhorrent that a sunset clause should be added to it. Some of them are.
The Minister also said at column 691 that the Government would continue on their present course of putting Henry VIII clauses into Bills, until the Delegated Powers and Regulatory Reform Committee objected in a particular case. If the Minister's argument was taken to its extreme, it would be that nobody should table an amendment unless it was first proposed by that committee. I invite the Minister to rebut that, and say that he was perhaps only thinking of extreme circumstances where he would want that committee to propose an amendment first. Although we take extremely seriously what the Delegated Powers and Regulatory Reform Committee says—it is a strong guide to us on specific powers—we can think of a whole raft of amendments which would not be considered first by the committee. Even if they were, and the committee decided that it would not be proper to recommend the House to object to something that the Government had done, there would still be an opportunity for the House to come forward with its own amendments.
The Government's present position appears to be that they are going to carry on with their bad behaviour until the committee catches them out. If anybody else catches them out their attitude is that they need pay no attention. I hope the Minister will robustly say that that is not the
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case, and that he would welcome a reasoned argument in future on why Henry VIII clauses should be curtailed by sunset clauses. I beg to move.
Lord Goodhart: My Lords, I have some sympathy with what the noble Baroness, Lady Anelay, has said but, on this occasion, I do not feel able to support the amendment. I served for some years as a member of the Delegated Powers and Regulatory Reform Committee, although I am not currently a member. The question of whether sunset clauses should be attached, either on a regular or occasional basis, to Henry VIII powers relating to transitional and consequential amendments and so on should be considered by the Delegated Powers and Regulatory Reform Committee.
A number of difficult questions need to be considered. For example, we now know from a Written Answer to a Question that I tabled that these clauses have been used on a considerable number of occasions and, in a number of cases, more than three years after the enactment of the Act. Rather than go into this matter on an ad hoc basis, it would be helpful if the Delegated Powers and Regulatory Reform Committee could issue a special report on whether or not it was appropriate that a time limit should be imposed on some or all of such clauses. In the mean time, I am not minded to support the proposal that the sunset clause should be included in this case.
Baroness Carnegy of Lour: My Lords, I am a member of the Delegated Powers and Regulatory Reform Committee, which is taking a great interest in the number of Henry VIII clauses proposed by the Government. They seem to have become a habit. On this occasion, the Government are suggesting to the Scots Parliament that it should develop the habit of behaving like Henry VIII.
When we last discussed the issue, the noble Lord, Lord Goodhart, suggested that perhaps Henry VIII clauses in the Scots Parliament should be called "Macbeth" clauses. I have reflected on that matter and I do not believe that that is the right name for them. I suspect—although I have not yet had an opportunity to discuss it north of the Border—that there was nothing more unattractive to Scots than the way in which Henry VIII behaved south of the Border. However, he was not their king in this respect and I am not sure that the Scots will mind referring to them as Henry VIII clauses.
I hope that the Scots Parliament will not develop the habit of using them too often because it does not have a House of Lords or a Select Committee to question them. I trust that the Government will be careful about inflicting this habit on the Scottish Parliament, although it is not for this House to say.
My noble friend is making the limited suggestion that a sunset clause should apply if the government of the day do not come forward with proposals. The amendment seeks merely to hold the Government to account, within three years, for the way in which the Bill has operated.

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I, too, shall be interested in what the Minister has to say. I hope that he will take the matter seriously because I believe that the Government are developing an unfortunate habit in relation to such clauses. I hope that we shall not see too many of them.
Lord Renton: My Lords, the Government have nothing to fear from the amendment because it gives them the last word. It merely suggests that after three years the Government should consider whether the Bill should continue or be discontinued. The new subsection (10) would enable the Secretary of State to provide by order that the section shall continue in force. As the Government have the last word, I should have thought they would welcome the amendment.
Lord Filkin: My Lords, let me remind the House of the purpose of the powers in Clause 92. The clause does not grant the Government sweeping powers to amend legislation at will without Parliament having a chance to glance at what they are doing. We all know that, in practice, that is not the case. The powers concern only incidental and consequential provisions which fall within the scope of the Bill, and no wider. It would be ultra tires to use the power in another way and we have no intention of doing so.
I challenge the use of the term "bad behaviour". That is not the case. When the Bill has eventually passed through both Houses and received Royal Assent, in essence it will become the Act that this House and another place want to place into legislation and want to make work. All that these powers seek to do—limited and defined in the way that I have described—is to ensure that the will of the House can be exercised in practice; that it does not fall foul of some unforeseen and potentially unforeseeable circumstance which comes to light subsequently and identifies a glitch or an incongruity between this Bill and other powers.
As Members of the House are aware, the Government have already responded to the concerns held by certain noble Lords that the order-making powers were not subject to sufficient scrutiny. We therefore tabled amendments to ensure that any future amendments to primary legislation would be subject to the affirmative resolution procedure, while any amendments to secondary legislation would be subject to the negative resolution procedure. These amendments were in line with the recommendations of the Delegated Powers and Regulatory Reform Committee. The committee welcomed the Government's constructive approach to its recommendations.
As to the comments made by the noble Baroness, Lady, Anelay, in regard to the Delegated Powers and Regulatory Reform Committee, I said:
"The committee has proved itself to be a wise counsellor for the House on these matters, and I believe that we should continue to rely on its wisdom in the future".—[Official Report, 3/3/03; col. 691.]
What I implied or intended by the word "rely" was that the committee gives the House good advice and that we should consider that advice before we form our views. I was clearly not implying that the Government
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would always agree, word for word, with the committee, or the reverse. There will be occasions when, for good reasons of public policy, we would not necessarily follow the committee's advice. But we will always want to hear what it has to say before we come to a conclusive answer.
The Delegated Powers and Regulatory Reform Committee did not recommend a sunset provision and the Government do not believe that it would be appropriate. Although we will make every effort to "get our act together" and introduce all necessary consequential amendments without delay, it is always possible that circumstances will arise beyond the three-year period. Schedule 5 runs to 11 pages, which demonstrates the highly technical nature of some of the law involved in the Bill.
The noble Baroness's amendment provides the Government with a chance to resurrect the powers of the clause beyond the three-year period. But that would require further parliamentary business and we question whether that is necessary.
On Report, the noble Lord, Lord Goodhart, commented that the sunsetting of such clauses,
"should be referred to the Delegated Powers Committee for further study rather than introducing it as part of a Bill at this stage, before implications have been fully thought through".—[Official Report, 3/3/03; col. 690.]
On this occasion, as on others, I am inclined to agree with the noble Lord in this respect.
On Report, the noble Baroness, Lady Carnegy, raised questions about the powers of Scottish Ministers. If she would find it helpful, I shall speak briefly to that issue at this point.
We have consulted the Scottish Executive and Scottish officials closely on these issues. There is good liaison and consultation between the Scottish Executive and the UK Government and a long history of judicial co-operation. It is correct that Scottish Ministers should have order-making powers for those matters that are within their devolved competence. It is indeed possible that there may be certain variations north and south of the Border, but this would be only where a specific point of law in either jurisdiction required that. The overall purpose and effect of the orders would be the same.
This is because the subject matter of the Bill—the implementation of international obligations— imposes exactly the same obligations in both Scotland and England and there is no reason to think that either set of Ministers would not be diligent in endeavouring to see that they were implemented effectively and that they were compliant with international obligations as a consequence. In circumstances of dispute, the joint ministerial committee can be used to resolve matters. Furthermore, Section 58 provides a legislative mechanism to solve problems of this kind, which no doubt one would hope would be entirely theoretical. So there is no need to provide for this afresh in every subsequent piece of legislation.

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I shall not delay the House by going into more detail, but I should be happy to talk to the noble Baroness, Lady Carnegy, on this important but perhaps rather specialised point of Scottish intersection.
6.30p.m.
Baroness Carnegy of Lour: My Lords, I thank the noble Lord for giving way. Perhaps I may say, with the leave of the House, that he has done extremely well during the passage of the Bill in his co-operation with the Scottish Executive. It has involved a great deal of interlinking of ways of working. Bringing the Schengen agreement into Scots law has been a big operation in itself. I was not criticising that, I was merely saying that the Government requiring the Scottish Executive to use Henry VIII powers was new and that I hoped the habit would not develop too much. I was only referring to Henry VIII powers.
Lord Filkin: My Lords, I thank the noble Baroness, Lady Carnegy, for that helpful clarification.
In conclusion, we hope that we will not need to use these powers after three years. But, in reality, no one can be certain of that. The argument for throwing them away or for arguing that one has to continually come back to Parliament for their renewal is akin to saying that because an event might have a low level of risk one does not require insurance and one can therefore afford to throw away one's insurance policy. I do not think that that is what the noble Baroness, Lady Anelay, is arguing. But it could be implied from the view that one does not need the powers to make incidental and consequential amendments to ensure that Parliament has the ability to keep its legislation in the form when and if it passes it. I hope that that is a satisfactory explanation.
Baroness Anelay of St Johns: My Lords, I am grateful to the Minister for his assurances and particularly for his explanation of what he meant at col. 691 on Report. There he referred to his reliance upon the work of the Delegated Powers Committee and how that fitted into the general approach as to how the Government might draft Bills. That was most helpful.
I accept the fact that this particular Henry VIII power deals only with incidental and consequential amendments. I am not trying to criticise those who are drafting the Bill. Far from it. I am trying to ginger up Ministers so that they might think a little more ahead as to the drafting of their Bills. In that way we would not have to go through several stages of drafting after a Bill has passed through both Houses in order to ensure that it is tidied up appropriately.
I agree entirely with the Minister that on occasions Henry VIII powers are required so that one can properly implement the original policy intention which may have been agreed to by all in both Houses. That does not always happen with such clauses. As I mentioned at the beginning, I certainly do not intend to press the matter. I agree entirely with other noble
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Lords about the importance of this matter being considered again by the Select Committee. I hope that it has a second report. In saying that, of course, one cannot then give up the idea that such a sunset clause may be unnecessary in the future. What if the Select Committee did not report? What if that report were not acceptable to the House? There still may be a need for sunset clauses and Henry VIII powers. But at this stage in this Bill, I certainly do not intend to press the issue. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 4 [Terrorist property: freezing orders]:
[Amendments Nos. 10 to 12 not moved.]
Lord Filkin Lord Filkin moved Amendment No. 13:
Page 79. line 3, leave out from "45." to "which" in line 5 and insert "at the end of paragraph (c) of the definition of "restraint order" there is inserted "or an order"
The noble Lord said: My Lords, Amendments Nos. 13 and 14 are purely technical, and I hope that the House sees them as such. Paragraph 9 amends the definition of "restraint order" for the purpose of the insolvency provisions of Schedule 4 to the Terrorism Act 2000. The intention is to include within that definition overseas freezing orders so that the same insolvency rules apply to such orders as apply to domestic restraint orders. Unfortunately, as paragraph 9 stands, it will include external forfeiture orders within the definition of "restraint order". That is a mistake. The amendments correct it. I beg to move.
Lord Filkin Lord Filkin moved Amendment No. 14:
Page 79, line 6, leave out third "or"
[Amendment No. 15 not moved.]
Lord Filkin: My Lords, I beg to move that this Bill do now pass. In doing so, I should like to thank the Opposition Front Benches for their constructive approach to the Bill. I felt that it worked well in Grand Committee and that the probing enabled us to identify one or two lacunas. I am still smarting from the vicious defeat inflicted on the Government today, so I cannot say that we shall not see the Bill again. Just in case we do not, I should also like to thank my noble and learned friend Lord Goldsmith and my noble friends Lord Bassam and Lord Clinton-Davis, and the officials, who have been assiduous in serving both the Government and co-operating with the House on this legislation.
Moved, That the Bill do now pass.—(Lord Filkin.)
Lord Renton: My Lords, perhaps I may say a few words. I speak as a rusty old lawyer who became a barrister 70 years ago. I am full of admiration for the way in which this massive, rather difficult Bill, which breaks new ground, has been handled by two Members of this House who are not lawyers—the noble Lord, Lord Filkin, speaking on behalf of the Government

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and my noble friend Lady Anelay of St Johns for all she has done on behalf of the Opposition. What they have achieved is a very great credit to both of them.
Lord Clinton-Davis: My Lords, I do not always agree with the noble Lord, Lord Renton, but I do on this occasion. My noble friend Lord Filkin and the noble Baroness, Lady Anelay, have cast a ray of light over this complicated Bill. Although I do not always agree with the noble Baroness, she is always very polite. The principal praise I give is to my noble friend Lord Filkin. He has tackled the issue with humanity and understanding. I associate myself with the remarks of the noble Lord, Lord Renton.
On Question, Bill passed, and sent to the Commons.

Health (Wales) Bill
6.38 p.m.
Report received.
Schedule 1 [Schedule 7A to be inserted in the National Health Service Act 1977]:
Lord Roberts of Conwy Lord Roberts of Conwy moved the amendment:
Page 6, line 8, after "district;" insert—

"(aa) to report annually to the public on the discharge of its duty;"

The noble Lord said: My Lords, we were all agreed in Committee that this Bill received fair scrutiny. There were few outstanding points of difference. That remains the situation. That is why, perhaps, only one amendment has been tabled. We are also all agreed on the importance of CHCs. We on these Benches welcome their retention in Wales and regret their passing in England. Their duties are spelled out in the first paragraph of Schedule 1 and each has the primary role,
"to represent the interests in the health service of the public in its district".
I pointed out in Committee that the Bill makes no provision for enabling CHCs to report back to the public on how they have discharged that all-important duty. The amendment seeks to remedy that deficiency by requiring each council to produce an annual report. After all, that is a fairly minimal standard requirement. I tabled another amendment to the same effect in Committee but Amendment No. 1 is an improvement.
It might be argued that the point may be covered by a regulation made by the National Assembly but there is an advantage in including the requirement to report in primary legislation as a counterpart to the duty to represent the interests of the public. The amendment will give CHCs just the measure of independence that they may require if councils feel that they must be critical of some aspect of the health service in their localities.
We have received firm assurances from Ministers that the Government have every intention of ensuring that CHCs will be independent but it is not difficult to see how that intention cart be thwarted—God forbid—
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by regulations prohibiting this, that and the other. We must not forget that the Assembly government that will initiate regulations has a direct responsibility for the health service in Wales and an interest in ensuring that it is seen in the best possible light. I hesitate to suggest that it might be tempted to suppress local criticism on occasion and to muzzle its watchdogs. The Minister is familiar with that accusation because it has already arisen in the context of the proposal for a commission for health care audit and inspection— and that Bill is not yet law.
There is plenty of scope currently for criticism of the NHS in Wales and that may be the case in future—although we all wish otherwise. We want to ensure that CHCs are fully and freely able to express their views. Reporting back to those whose interests they represent is the very least that we can ask of them. I beg to move.
Lord Thomas of Gresford: My Lords, I pay tribute to the assiduous way in which the noble Lord, Lord Roberts, addresses the Bill. He is right to do so, from his lengthy experience as a Minister of State in the Welsh Office. However, I have said on a number of occasions that I do not believe that we should seek to second guess the Assembly's desire. I do not think that it is appropriate for the amendment to be passed.
Baroness Finlay of Llandaff: My Lords, I also commend the way in which the noble Lord, Lord Roberts, has examined the Bill and drafted the amendment. Reporting on activities to the public is an important principle. However, I share the reservations expressed by the noble Lord, Lord Thomas, as to tying the Welsh Assembly government to one system. It may find it better to have a report every second year with an interim report annually; or reporting more frequently—such as six-monthly interim reports as the role of CHCs changes. I am concerned that flexibility may be constrained by the amendment.
6.45p.m.
Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Lord for allowing us to debate again community health councils in Wales. He welcomed their continuance in Wales and regretted their passing in England. I feel a little like the Lord High Executioner in saying that I welcome the Welsh Assembly's decision to continue CHCs but equally welcome my department's view that in England it is appropriate to make changes and develop rather more sophisticated mechanisms for patient and public involvement. One of the great joys of devolution is that we shall see how the two systems work side by side and learn the good and bad points of each. That is the spirit in which we approach this issue.
I agree also with the noble Lord that the matter has been extensively debated here and in another place. There are essentially two aspects to the argument—requiring community health councils to produce annual reports on their activities and the extent to which any annual report by a CHC would encompass not just its activities but the quality of NHS provision in the area.

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The Bill gives the Welsh Assembly sufficient power to ensure that annual reports are made and cover important issues of public concern. New Schedule 7A(2)(h) allows the Assembly to place a duty on each CHC to publish an annual report about its activities and performance. That power already exists. Each CHC will be required to send copies of its report to the Assembly, relevant NHS bodies and local authorities and to make its content public. I agree that the public have a right to know what is being done by the CHC responsible for their area and that the publication of an annual report gives the council the opportunity to give an account of itself.
Current CHC reports contain details of visits undertaken, public consultation exercises, issues of concern regarding local health provision, the number of meetings and attendances by individual members, and budget details. Those reports are sent to relevant health bodies, which are required to comment on any issues raised. They are also made known to the public by being sent to citizens advice bureaux and libraries and being published on CHC websites. NHS bodies are expected to comment on those reports and to record any steps taken in consequence of advice given or proposals made by the CHC.
The new regulations will re-state the provision of the Community Health Council Regulations 1996, which require CHCs to produce annual reports and make them widely available to the public. In terms of content, the only difference between the reports is that they will contain details of complaints handled by the new CHC complaints advocates and a summary of visits made to inspect general practitioners' premises and other local family health service practitioners.
The Assembly is right to want evidence that CHCs are performing consistently to a set of agreed standards—but how that will be done is the subject of discussion between the Assembly and CHCs. As to independence, it is my understanding that there is no intention to control the activities of CHCs. But they are public bodies and the Assembly has a duty to ensure that their funding achieves the best value for money. The precise details of the matters to be included in CHC annual reports will be set out by the Assembly in regulations, following consultation and agreement with community health councils.
The other strand of the debate is the duty of CHCs to report on the quality of NHS provision in their areas. Traditionally, annual reports have primarily been about the functions and performance of the council itself, rather than the level and quality of health service provision in the area. NHS organisations have a duty to report regularly on the level, quality and performance of service through their own annual reports, directories of services and patient leaflets. Requiring CHCs to do that would create the danger of undermining the good work done elsewhere. The noble Lord, Lord Roberts, mentioned the new commission in forthcoming legislation for health care audit and inspection. The Bill will include special considerations for Wales. But, at present, CHI is charged with reporting on the quality of local healthcare provision. If CHCs undertook that
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work, there would be a danger of conflicting with CHI and other inspection bodies. I agree with the noble Lord, Lord Thomas, that the point of annual reports and whether CHCs should produce them must. under devolution, rest with the Assembly.
The Assembly has already made its intention clear of wanting CHCs to report to the public and to enable information about them to be readily available so that their performance can be judged. The regulation-making power in the Bill gives the Assembly sufficient power by which to order the affairs of CHCs and their appropriate reporting. On those grounds, I ask the noble Lord not to press his amendment.
Lord Roberts of Conwy: My Lords, I am grateful to the noble Lord, Lord Thomas of Gresford, and to the noble Baroness, Lady Finlay of Llandaff, for their kind words about me at the opening of their remarks. However, they do not hide the fact that neither supports my amendment. I am nevertheless consoled by the considerable assurances given by the Minister about the regulations that the Assembly will propose that will cover the area of reporting by community health councils.
I am also grateful to the Minister for his assurance of the independence of community health councils and, indeed, for the rest of what he said.
So I am content to have emphasised the point about CHCs. To my mind, they are good institutions hut must have the element of independence that will allow them to be real watchdogs on behalf of their districts. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

Business
6.52p.m.
Lord Grocott: My Lords, with the leave of the House, later this evening my noble friend Lady Symons will repeat a Statement on Iraq and, again with the leave of the House, I shall make a short Statement about arrangements for tomorrow's debate on Iraq and the various contingent business changes.

Iraq: Legality of Armed Force
6.53 p.m.
Lord Goodhart Lord Goodhart rose to call attention to the obligations of the United Kingdom under international law concerning the use of armed force, and to move for Papers.
The noble Lord said: My Lords. shortly—in a matter of hours—President Bush will no doubt deliver a final ultimatum to Iraq. Within 24 hours of that, probably, there will almost inevitably be war with Iraq in which British troops will be involved.
As we have just been told, we shall have another debate tomorrow. The purpose of this debate is limited to one specific aspect of that wider debate: the legality

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of the use of armed force in Iraq without the specific authority of a further resolution of the Security Council. The Government have during the past weeks and months laid great stress on the importance of legality. They have said that they would not ask the Armed Forces to intervene unless it was lawful for them to do so.
A second resolution in the Security Council would have given legitimacy, but it is now clear that no second resolution will be passed by the Security Council. The Government now have to face the question of whether force is lawful without such a resolution. The noble and learned Lord the Attorney-General says yes, but I must say that I believe he is wrong.
Can force be justified without United Nations authority in any circumstances? Sometimes, yes. There is of course the right of collective dissent under Article 51 of the United Nations Charter. Another example, although still a controversial one, is the right of humanitarian intervention outside the charter, as exercised in Kosovo— an occasion on which the noble and learned Lord, Lord Morris, appeared on behalf of the Government to argue the case in the International Court of Justice for the existence of the right of humanitarian intervention.
As I explained in my speech of 26th February in your Lordships' House, I believe that neither of those grounds—collective defence nor humanitarian intervention—can be relied on to justify the use of armed force against Iraq today. The Attorney-General does not base his case on either of those grounds, so I shall not pursue them.
Probably the most important document in international law today is the United Nations Charter. Under chapter 7 of the charter, the Security Council deals with threats to peace and acts of aggression. Article 39 gives the Security Council power to decide what measures should be taken in accordance with Articles 41 and 42 to maintain or restore international peace and security. Article 41 gives the Security Council power to impose measures not involving the use of armed force, such as economic sanctions. Finally, Article 42 states that if the Security Council considers that the measures provided for under Article 41 would be or have proved to be inadequate, military action may be taken to maintain or restore international peace and security.
Those powers were the basis of the Gulf War in 1991 and subsequent UN action in Iraq. The Attorney-General bases his case that there is an existing authority to use armed force on resolutions arising from Iraq's invasion of Kuwait in 1990 and its aftermath. We therefore need to consider those resolutions.
Resolution 660, adopted on 2nd August 1990, demanded that Iraq withdraw its forces from Kuwait. Resolution 661 imposed economic sanctions under Article 41 on Iraq. Resolution 678, adopted on 28th November 1990, authorised member states, unless Iraq withdrew from Kuwait by 15th January 1991,
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"to use all necessary means to uphold and implement resolution 660 … and to restore international peace and security in the area".
In that context, all necessary means obviously included armed force.
Resolution 687 was adopted after the end of the war on 8th April 1991. It affirmed the previous resolutions. It required Iraq to accept the destruction and removal of chemical and bacteriological weapons and missiles with a range of more than 150 kilometres. It required from Iraq a commitment not to use, develop, construct or acquire banned weapons, and not to acquire or develop nuclear weapons. It reaffirmed the economic sanctions, with a relaxation for foodstuffs, and provided for sanctions to end when Iraq had completed the required actions.
The resolution declared,
"that, upon notification by Iraq to the … Security Council of its acceptance",
the formal cease-fire would become effective. The motion also decided that the Security Council would,
"remain seized of the matter and take such further steps as may be required for the implementation of the resolution and to secure peace and security in the area".
There is nothing in Resolution 687 that authorises the further use of armed force against Iraq by member states without a further resolution of the Security Council. Such action, would, in my view, be plainly inconsistent with the terms of the resolution.
We now move to Resolution 1441, adopted on 8th November last year. It decided that Iraq was in breach of its obligations under Resolution 687, but should be given a final opportunity to comply. Paragraph 12 decided that the Security Council would convene immediately on a report from the inspectors of non-compliance by Iraq,
"in order to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security".
Paragraph 13 recalled,
"in that context, that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations".
By paragraph 14, the Security Council decided,
"to remain seized of the matter".
That is the background. We now have the summary of the advice given to the Government by the noble and learned Lord the Attorney-General. We welcome the fact of that disclosure, although we should have liked to see much more detail of what must have been a lengthy opinion dealing with the complex arguments involved in the case and showing possible qualifications and reservations. All we have seen is the baldly stated summary. We also regret that the noble and learned Lord the Attorney-General has not given us the opportunity to ask questions and to hear his answers.
The Attorney General's opinion reaches a highly questionable conclusion, which is based on a dubious interpretation of deliberately ambiguous wording. If do not dispute that some reputable experts in international law have reached the same conclusion as the Attorney General. I mention Professor Ruth Wedgwood, of the

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law school of Columbia University, for example. But they are in a minority, especially in the United Kingdom. The opinion of 16 leading academic international lawyers, including the professors of international law at Oxford, Cambridge and University College London, in a letter to the Guardian on 7th March, was contrary to that which the Attorney-General has now disclosed.
Resolution 687 is crucial because it set up the ban on weapons of mass destruction. It also set up the inspection regime. As I said, there is nothing there that constitutes an authority to go to war without going back to the Security Council for authoritative act under Article 42.
Resolution 1441 is undoubtedly the most important of all. I have already read the main provisions of paragraphs 12, 13 and 14. I cannot see how anyone could conclude that a breach by Iraq was sufficient to justify armed force without further reference to the Security Council. Paragraph 12 requires the Council to convene on the report,
"in order to consider the situation".
That in itself is inconsistent with an automatic trigger of further action. The motion says that the Council recalls that it has warned Iraq of serious consequences as a result of violations. Indeed, that is the case. This is a further warning that breaches may well lead to the use of armed force, but it is no automatic authority to go ahead. The final paragraph states that the Council decided,
"to remain seized of the matter".
It is plainly not delegating it.
The Attorney-General says that Resolution 1441 would have said so if a further decision were required. I see no justification for his argument. Both the United States and British ambassadors to the United Nations when Resolution 1441 was adopted said that it contained no automaticity. I believe that there was a clear understanding that Resolution 1441 did not confer a right of action without referring back to the Security Council. Unless there had been such an understanding, it would have been difficult if not impossible to get Resolution 1441 through the Security Council.
A final decision on the use of armed force requires judgment as to the seriousness of the breaches by Iraq, the effectiveness of the inspection system and whether the breaches could be corrected by means short of war. Those are difficult decisions. The Attorney General is arguing that the Security Council has delegated those decisions to the United Kingdom and the United States of America—in effect, to the US alone. I do not believe that that is the kind of decision that the Security Council could, or would delegate to any one member, however powerful. A decision to use armed force under Article 42 in full scale war is the most solemn decision that the Security Council can ever take. The idea that vague and ambiguous words in those resolutions can be read as implying a delegation to the United States, with or without the United Kingdom, to take these decisions verges on the absurd.
Where does that leave the Government? I speak as someone who believes that Saddam Hussein should be disarmed by force if no other way succeeds. I believe that he does have weapons of mass destruction. His failure to co-operate with the inspectors when cooperation would have led to the lifting of sanctions can have no other rational explanation. But I also believe in the rule of law. I respect what the Prime Minister and the Government have done up to now. They have undoubtedly worked their guts out to achieve a second resolution, but it is now apparent that they have failed. It is not the fault of the Government, but mainly that of the Bush Administration who have have shown contempt for the United Nations and for international law. To some extent, it is also the fault of the French Government, who seem animated more by hostility to Anglo-Americans than by a willingness to seek a compromise. But failure there has been.
War and British participation now seems inevitable. The Government should face up to the fact that what we are about to do is not lawful. They will have to bear the consequences of that, and so will we. I beg to move for papers.
7.7 p.m.
Baroness Ramsay of Cartvale: My Lords, I am very grateful to the noble Lord, Lord Goodhart, for introducing this debate on the UK's obligations under international law concerning the use of armed force. Speaking as a non lawyer, I have been greatly perturbed in recent months by the outpouring of statements and opinions by many lawyers on this subject with specific reference to Iraq.
I should have liked to deal with this in my speech in the debate on the 26th February, but there was insufficient time and I could only say then:
"Although I am not a lawyer. I really have problems understanding how anyone can raise fears about international law being breached by military action against Iraq. Chapter 7 specifically allows the use of force and Saddam has failed to comply with 23 separate obligations under a series of resolutions under Chapter 7".—[Official Report, 26/2/03; cols. 263–264.]
I wanted to go on to spell this out in more detail, which thanks to the noble Lord, Lord Goodhart, I can now do. and also to express my dismay at the way in which the words "international law", "legal" and "illegal" were being bandied around as cover for opinions, which in my opinion were in fact political and personal.
I should say here that looking round the Chamber I see many members of the legal profession, and what I have to say will not be music to their ears. I should at the beginning enter a caveat that. of course I am not speaking of all lawyers and, of course on Iraq, as other issues, lawyers hold very different views and have spoken on different sides of practically every aspect of the situation.
Of course also I have no problem with those who have political and personal objections to military action against Iraq and I understand very well those who have political and moral problems with that, but

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I do take issue with international lawyers who invoke legality when that is not justified, and is not in truth what they are really talking about.
If anyone reads Resolution 687 of April 1991, they will see that it is a very long resolution of some 34 operational paragraphs and the noble Lord, Lord Goodhart, has dealt with quite a lot of it. I know it well having, as I have told the House before. spent the last 12 months of my government service, up to the end of July 1991, totally immersed in the Gulf crisis and war. One can see that 687 is very specific in the obligations it laid on Iraq and the time-scale for compliance by Iraq— for example, in the case of a declaration of locations, amounts and types of all items specified in a paragraph which was a detailed list concerning chemical and biological weapons—was 15 days. It was, like all the 17 resolutions on Iraq over 13 years, passed under Chapter 7 of the UN Charter, and it ended with the crucial words, which I did not hear the noble Lord, Lord Goodhart, quote,
"decides … to take such further steps as may be required for the implementation of the present resolution".
Resolution 687 was, of course, the conditions for the ceasefire in the military action authorised in 678 of November 1990.
The Security Council has authorised the use of force, as it is entitled to, under Article 42 of Chapter 7 by means of various wordings—in 1950 on Korea; in 1990, 1992 and 1994 on Kuwait, Somalia and Haiti; in 1993 for UNPROFOR; in 1997 for Albania; and in 1999 for East Timor. I shall not quote all the words because of the time constraint, but my point is that if you look at them all there is no one formula—which is a point some international lawyers seem confused about, to say the least.
There is no question that the use of force was authorised in 678 in 1990 and the subsequent Chapter 7 resolutions on Iraq, up to and including 1441, were all trying to achieve compliance with Resolution 687, which was the ceasefire. That is my reading of the situation as someone who is not a lawyer, but I am pleased that as far as I can see from the Answer of my noble and learned friend the Attorney-General to my Question for Written Answer today, I have been thinking along the right lines.
The reason I have laid this out in some detail is because I have been bewildered to read and to hear some of the so-called legal points advanced by international lawyers attacking the legality of military action against Saddam Hussein. The argument that 687 was in 1991 some 12 years ago and therefore this somehow affects is legality really does not stand up. There is no statute of limitations on Chapter 7 resolutions. Fifteen days was a deadline for Saddam to comply, not for action to be taken against him.
The length of time, 12 years, is a political reason why it was important to have 1441 as a final opportunity for compliance, but surely never a legal one. Yet a much quoted letter in the Guardian of 7th November, mentioned by the noble Lord, Lord Goodhart, signed by some 15 teachers of international law, deals only with 1441, as if it stood alone, with no hinterland of the 16 previous resolutions. The letter declares,
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"before military action can be lawfully undertaken against Iraq a Security Council must have indicated its clearly expressed assent. It has not yet done so".
But I am sorry, yes it has, and it is surely peculiar that international law teachers should be so simplistic and ignore the context and history of 1441. They give no indication at all that there could be a doubt about their way of reasoning. I recognise that people have their own agenda and positions on controversial issues, but I expect them to have the intellectual honesty not to use the cloak of academic cover to claim to my mind a very doubtful objectivity.
When I was an undergraduate, I was told by an eminent professor of law that there was no such thing as international law. I certainly do not want to accept that. having been a fervent supporter of the UN since my school days, and I am an enthusiast for the International Criminal Court—
Earl Russell: My Lords, in academic matters disagreement is frequent and normal. It is more easily resolved if we do not call in question the honesty of those with whom we disagree.
Lord McIntosh of Haringey: My Lords, my noble friend Lady Ramsay has reached the end of her time. Time is very short in this debate and I think we would do better without interventions.
Baroness Ramsay of Cartvale: My Lords, I thank my noble friend, and I will now conclude my remarks. I am an enthusiast for the International Criminal Court, but I am perturbed by the ease with which international law practitioners seem to be able to use it as a political football.
I am not a lawyer, and that is not said apologetically. I am glad that I am not because I think it helps me to see clearly the differences between what is a matter of law, of politics, or of morality—something which some lawyers all too eas1ily blur. It is of course acknowledged that international law is not an exact science, but it surely does not have to appear as bizarre as some of its practitioners have made it appear in recent months.
7.16 p.m.
Lord Mayhew of Twysden: My Lords, it is now with a certain queasiness that as a mere wretched lawyer I rise to offer my opinion that military force against Iraq will be lawful, notwithstanding the absence of a successor resolution to 1441. Like the noble Baroness, Lady Ramsay, and the noble Lord, Lord Goodhart, I do so as a firm upholder of the United Nations Charter. I believe that its adoption marked the beginning of a new world order of immense promise and that the organisation, for all its manifest deficiencies, has on the whole served the world well—and certainly irreplaceably—for over half a century.
I would not support action which flouted the principles or purposes of the charter. Central to those is the restoring or securing of international peace and security. Equally, I have to accept that the United Nations is a relatively new jurisdiction. We are far from having an article or precedent for many of the fraught

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situations which this volatile world throws at us. Therefore, there will frequently be respectable arguments on both sides of any issue—arguments which it would take years to litigate in any international court to an authoritative conclusion, even if that were possible.
This is, in my view, such a case. I believe that the exigencies of the situation simply do not afford us that comfort any more than they did when we intervened in Kosovo, controversially at the time but an action now accepted as lawful as well as expedient.
This is not to claim that the law is what we say it is. It is to recognise that member states must sometimes have the courage to act when the law may not be explicitly cut and dried and to bear the heavy responsibility themselves for doing what they conscientiously believe to be necessary and lawful.
In view of the body of opinion that holds that use of force against Iraq would be unlawful unless authorised by a further resolution, I have found it helpful to go back to Saddam's invasion of Kuwait. When Iraq invaded Kuwait and seized its territory in 1990, our own Government gave immediate help under the doctrine of collective self defence, now enshrined in Article 51 of the charter. At the same time, we pressed for an urgent Security Council resolution condemning the invasion and demanding Iraq's withdrawal. We were determined to get this engagement of the Security Council as soon as possible, and within a very few days it was achieved, with Resolution 660 the result.
When Saddam's forces thereafter stayed exactly where they were, we remained resolute in upholding the jurisdiction of the Security Council. We worked hard for subsequent resolutions, and in particular for 678— already referred to this evening—which authorized member states to use "all necessary means" to uphold and implement Resolution 660 and to restore international peace and security in the area.
"All necessary means" embraced, as it embraces today, military means; that resolution mandated the ensuing military operations which expelled Saddam from Kuwait and were halted when that was done. I have some reason to remember those matters because I was at the time the Attorney-General in the War Cabinet.
It may be that the mandate would have covered us if we had gone on—if we had continued military operations after we had liberated all Kuwaiti territory. The arguable ground—and it has since been argued— would have been that they were still necessary to restore international peace and security. But that would have been to introduce great controversy where previously there had been remarkably little. We instead worked, I believe rightly, for the conditional ceasefire set out ultimately in Resolution 687. This was binding on Iraq, which formally accepted it anyway, and it remains binding on Iraq today. Because it was a conditional ceasefire, it left 678 undischarged, in force, but, as it were, to be placed in abeyance or suspension provided Iraq fulfilled its obligations and continued to fulfil the conditions.
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Iraq has never complied with these conditions, as the council has repeatedly found. Some 17 further resolutions have failed to secure compliance, and so 678 is now not in abeyance or suspension—it is available.
This extraordinarily lengthy and, some might say, indulgent series of resolutions culminated in 1441 on 8th November last year. The resolution specifically recalls in its preamble that Resolution 678 authorised member states to use all necessary means to restore international peace and security in the Gulf. It further recalled that 687 imposed obligations on Iraq as a necessary step for the achievement of the council's stated objective of restoring peace and security. It recited that the council was determined to secure full compliance with its decisions, and it then recorded the decision that Iraq has been and remains in material breach of its obligations, including those under Resolution 687. That position remains the same today as common ground, as shown in the latest Blix report. It is surely implicit that in deciding that, the council found that international peace and security in the area have in consequence not been restored.
Resolution 1441 went on to declare the decision to offer Iraq a final opportunity to comply with its disarmament obligations, specifying what in particular must be done within 30 days. If this final opportunity is not taken, Iraq is reminded that it has been repeatedly warned that it will face serious consequences as a result of its continued violation of its obligations.
Following the critical report of Dr. Blix and his colleague, it is plain, now four months later, that the final opportunity to comply with Iraq's obligations has not been taken and the council has duly discussed the situation. It has not adopted any further resolution, politically desirable though that would have been. But 1441 does not lay down that it shall do this, only that it shall convene to consider the situation and the need for compliance with all its resolutions in order to secure peace and security. That is what it has done.
Because Resolution 678 has remained in full effect since its adoption or has, at the very least, been revived by Saddam's current and continued non-compliance, its mandate must be undiminished. Its exercise will not have been triggered by 1441, nor will it have followed automatically from 1441. Any military force used against Iraq will have drawn its justification from the mandate which 678 has never ceased to afford to member states—because the council has always decided that peace and security in the Gulf area have not been restored following the events of 1990.
Those who today refuse a further resolution in the council are entitled to make that choice for whatever reason. But that choice cannot have the effect of a retrospective veto on the operation of 678.
That is my view of this anxious matter. I am fortified today to find that it accords with that of the noble and learned Lord the Attorney-General. I hope I shall not be thought frivolous if I end with a thought that in any event it reflects what the law ought to be. In international law, what the law ought to be generally turns out not to have been a bad guide to what it is later found to have been.
7.25 p.m.
Lord Thomas of Gresford: My Lords, I am grateful to my noble friend Lord Goodhart for raising this important matter at such a sensitive time. It falls to me to take up the challenge of the noble Baroness, Lady Ramsay of Cartvale, to defend what she describes as a bizarre interpretation of the law.
I go back to the beginning. On 2nd August 1990, following the invasion of Kuwait, Resolution 660 determined that the invasion constituted,
"a breach of international peace and security"
and demanded withdrawal. It was not an authorisation for the use of force, since it was made under Articles 39 and 40 of the charter which call upon states to comply with "provisional measures" before deciding on sanctions, whether forceful or otherwise. It was followed by Resolution 661 which imposed economic sanctions. Further resolutions were passed, condemning the consequences of Iraq's invasion, but the Security Council reaffirmed its determination at that time to ensure compliance by Iraq with the Security Council resolutions by maximum use of political and diplomatic means—not force.
It was not until 29th November 1990, with Resolution 678, that force was authorised. Paragraph 2 of the resolution:
"Authorises Member States co-operating with the Government of Kuwait … to use all necessary means to uphold and implement resolution 660 … and all subsequent relevant resolutions and to restore international peace and security in the area".
Resolution 660, the upholding of which was the cause for force to be authorised, was confined to demanding the withdrawal of Iraq from Kuwait. The subsequent resolutions referring to economic sanctions said nothing about disarmament or regime change.
The provision to restore international peace and security in the area referred at the time to the violation by Iraq of international peace and security by its invasion of Kuwait. It was focused and specific. No further breach was identified. That phrase cannot be construed to authorise, 13 years later, an invasion of Iraq by armed forces of the United States and the United Kingdom to topple the regime and eliminate weapons of mass destruction. Such a construction is, to use the description of my noble friend Lord Goodhart, absurd.
In April 1991, after Desert Storm had been completed and hostilities had ceased, Resolution 687 welcomed in its preamble the restoration to Kuwait of its sovereignty, independence and territorial integrity, and affirmed the commitment of all member states to the sovereignty, territorial integrity and political independence not only of Kuwait but Iraq. It also noted the intention of the member states co-operating with Kuwait to bring their military presence in Iraq to an end as soon as possible. The resolution decided that Iraq must unconditionally accept the destruction, removal or rendering harmless, under international supervision, of all chemical and biological weapons and all ballistic missiles. That is why inspectors were
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appointed, for international supervision. There was no mention of force. There was no mention of force of arms or war at that stage.
Paragraph 33 of that resolution declares that upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of the provisions, a formal ceasefire is effective between Iraq and Kuwait and the member states co-operating with Kuwait in accordance with Resolution 678. The formal ceasefire did not require the final implementation of Resolution 687 to have taken place.
The noble Baroness, Lady Ramsay of Cartvale, referred to paragraph 34. That decides that the Security Council shall remain seized of the matter and shall take such further steps as may be required for the implementation of this resolution and to secure peace and security in the area. As my noble friend said, it did not delegate to the United States or to the United Kingdom. It kept the matter in its hands—the power to authorise the further use of force. No individual state or group of states acting outside the clear mandate of the Security Council retained the right to use force, even to punish Iraq for breaches of the resolution or to compel its compliance.
The Attorney-General suggests that Resolution 678 suspended but did not terminate the authority to use force. Such an interpretation is in clear conflict with the expression of the Security Council's intention. The limited ends in Resolution 660—the expulsion from Kuwait—had been achieved. Significantly, in the latest Resolution 1441, whereas there is specific reference to Resolutions 661, 678 and 687. there is no such reference to Resolution 660; its ends had been fulfilled. Indeed, on 11th April 1991, the President of the Security Council, following the unqualified acceptance by Iraq of Resolution 687, declared that the formal ceasefire was effective.
So, we come to Resolution 1441 on 8th November of last year. France and Russia and others negotiated over the draft to ensure that resolution did not include the authorisation of force. Russian Deputy Foreign Minister, Yuri Fedotov, said on 8th November:
"Russia, with the support of France, China and other UN Security Council members, 'managed to have the most unacceptable formulations from the project excluded' including 'provisions which would permit an automatic unilateral use of force'".
They have not changed their position. That was their position when Resolution 1441 was passed. If there was a lack of clarity about it, the representatives of the United States and the United Kingdom must accept responsibility because the United States Permanent Representative to the United Nations, John Negroponte, said in the Explanation of Vote on the same day:
"The resolution [1441] contains no 'hidden triggers' and no 'automaticity' with the use of force".
Similarly, Sir Jeremy Greenstock, our representative, agreed in the United Kingdom Explanation of Vote:
"We heard loud and clear during the negotiations the concerns about 'automaticity' and 'hidden triggers' … there is no 'automaticity' in this Resolution. If there is a further Iraqi breach of the disarmament obligations the matter will return to the

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Council for discussion as required in Operational Paragraph 12. We would expect the Security Council then to meet its responsibilities".
So our representative was saying, "It is for the Security Council to decide what to do". The essential point is that it is for the Security Council to decide whether and to what extent Iraq is in breach of its obligations and to determine what is the appropriate action. The United Kingdom may, by promoting a resolution in cahoots with the United States and Spain, act as prosecutor, but it has to persuade the jury of world opinion, represented by the Security Council, that there has been a material breach of Resolution 1441 which is punishable only by recourse to war. Neither the United Kingdom nor the United States is entitled to enforce the "will" of the Security Council.
7.34 p.m.
The Lord Bishop of Salisbury: My Lords, I, too, am grateful to the noble Lord, Lord Goodhart, for securing this debate on our obligations under international law concerning the use of armed force.
I am among what may be a relatively small number of those who feel that many of the arguments deployed in your Lordships' House and elsewhere seem to revolve around a fairly limited sense of what counts as legal. Noble and learned Lords will give us their opinions as to how we might or might not justify the action the Government are proposing to take, and they will be able to argue, as lawyers are trained to do, from the small print about what "all necessary means to secure peace and security in the Gulf" actually means. But is getting the small print right what moral leadership requires when most of the world seems against the course of action that this country proposes? Is the acid test in this case not so much whether or how we can get away with going to war with Iraq but how that decision sits with our wider responsibility to uphold a world order where peace, justice and truth prevail?
Behind our debate this evening there are, I suggest, two complementary attitudes to the law. One view is of a minimalist structure that allows people to do very much what they want and comes into play only when liberties collide, and my freedom to do what I want invades your life and limits your ability to live your life as you would wish. On this view, the law sorts out the boundaries and patrols them. The other views the law as an overarching framework that holds people together and never lets them forget that they are neighbours one to another. Its fundamental premise and starting point is not me and my rights but us and our world's needs.
I should like to belong in a society where the second view is the one that holds, where we think first of the kind of community that we long for and of the needs of others and only secondly of what suits us and of how much we can get away with before others stop us. I know that is an idealist position but the other long considered licence for those who have the power to exercise it is our current norm for self-centred living. My point is this: the world is simply too small for that
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view. Even if it is technically legal, what about the future? What is the long-term aim of our policy? Is it simply to be rid of this particular threat and this particular tyrant? I hope that we shall all say amen to that, but is it not also to build a more secure and interconnected world? How will the world be more secure and more interconnected after this venture, however successful, if we embark on it with ourselves and the United States alone? In that regard the policy of the Government of the United States seems to me to be short term and isolationist. That can only have the effect of giving permission to other nations to act as they wish in pursuit of their own immediate and short-term goals.
The Minister will probably tell me that 12 years is a long time to wait for Saddam to disarm and that it is only our threatened use of force that is squeezing some concessions out of him now. Yet the world's gaze is now fixed upon Baghdad and the inspectors have been reporting progress. Why not pursue that legally established process to the very end until every opportunity for peace has been exhausted? Might not that be the way to build a global certitude that war is the only option left? We do not seem to have persuaded many of that now.
I know from my links with the Sudan that patient work in building up partnerships of trust between nations is being undermined by our proposed action. I am not surprised that the Secretary of State for International Development views the unravelling of her work over the past few years with some dismay. What kind of a world, what pattern of relationships, what international authority will we land ourselves with if we act virtually unilaterally in such a way? How will the nations of the Arab world view us and our use of the law? What kind of an example will we set? We are commending unilateral action by those who have the power to act. How do we propose to rebuild trust between nations when we are campaigning with only the United States as our companions? The United Nations, founded with such great hopes, has been damaged and belittled by what we have seen of attempts to cajole or bribe it into rubber-stamping the decisions of the powerful. Yet we desperately need a vision of a world where the voice of the weak and powerless resonates as clearly as that of the mighty, where the exercise of strength can always be held to account, and where collaboration and unity are prized and not undermined.
That is the kind of world that is upheld by embracing the law as a delight sweeter than honey in the honeycomb. That is what our Judaeo-Christian forbears prized, and of that they were proud to be the guardians.
7.40 p.m.
Lord Hannay of Chiswick: My Lords, it is with some trepidation that I rise to speak in the debate. I am not a lawyer, and the subject matter is complex and open to different legal interpretations, as we have already heard. Nevertheless, the topicality of the subject, with the Government having clearly reached a decision to commit our Armed Forces to achieve the disarmament

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of Iraq by the use of force, and my own personal involvement, as Britain's ambassador to the United Nations during the first Gulf War and in the adoption of many of the UN resolutions that are relevant to the matter, have overcome my qualms. I hope that my direct experience will compensate for my lack of legal expertise.
Any consideration of the current circumstances relating to the use of force against Iraq by the United Kingdom and its allies has to go back to Security Council Resolution 678 of November 1990, which explicitly authorised the use of force by the allies of Kuwait to reverse Iraq's aggression against that country. In passing, I would like to comment on what the noble Lord, Lord Goodhart, said about it being inconceivable that the Security Council would delegate such authority. It did so on that occasion. did so again in the case of Somalia, and then—surprise, surprise—did so on behalf of the United States.
Security Council Resolution 678 cast its net wider than just the reversal of Iraq's aggression, because it authorised the use of force in addition,
"to restore international peace and security in the area".
It is that second part of the mandate, the first part having been fulfilled in 1991, that is crucial to the present situation. When the Security Council came to lay down the terms for the cessation of hostilities after the Gulf War in Resolution 687—it was known in the argot as "the mother of all resolutions", in tribute to the person who gave rise to it —it was the second part of the mandate that underpinned the provisions relating to disarming Iraq of its programmes for producing weapons of mass destruction and also any missiles of more than 150 kilometres' range.
That was very clearly explained in the preamble to Resolution 687, which speaks of the need to be assured of Iraq's peaceful intentions, refers to Iraq's threats to use chemical and biological weapons contrary to its international obligations, expresses concern at Iraq's nuclear ambitions, states that all weapons of mass destruction pose a threat to peace and security in the area, the precise words of Security Council Resolution 678, and sets out the objective of Resolution 687 as—those words again—restoring peace and security in the area.
Moreover, the operative parts of Resolution 687 are even clearer. Iraq must unconditionally accept the destruction, removal or rendering harmless of all its chemical, biological and nuclear programmes under international supervision. It was stated that the ceasefire was dependent on Iraqi acceptance of that. As several noble Lords have said, the resolution ends rather unusually by stating that the Security Council would take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the region.
In the event, Iraq's arsenal of weapons of mass destruction turned out to be massively greater than had been expected on the basis of existing intelligence, a warning against the view that intelligence invariably tends to overstate the threat. Despite its promises to the contrary, and with a tenacity worthy of a better
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cause, Iraq set about deploying every trick of the trade to retain as much of its weapon programmes as it could. That has been the history of the past 12 years, interspersed with a series of unavailing and inadequate attempts to bring it to compliance by the limited use of force.
One further reference is perhaps germane to that earlier period. When Iraq first began to drag its feet over the removal of its weapon programmes in the summer of 1991, the Security Council adopted a further resolution that has not been quoted by any noble Lord. Resolution 707 of August 1991 explicitly referred to section C of Resolution 687, the section that deals with disarmament, and slated that Iraq's actions constituted a material breach of Resolution 687,
"which established a ceasefire and provided the conditions essential to the restoration of peace and security in the region".
The link back to Resolution 678 could not be set out much more clearly than that.
Let me cut now to the autumn of last year—cut I must because of time constraints—and to Security Council Resolution 1441, adopted by a surprising unanimity in November 2002. That resolution gave Saddam Hussein what was explicitly stated to be one last chance to comply fully with all the earlier resolutions on disarmament. It set out in great detail how that needed to be done. What it did not do was, in itself and on its own, provide authority for the use of force in the event of non-compliance. It did not purport to do that, for the very simple reason that it did not, in the light of the analysis that I have given of the earlier resolutions, need to do it. The authority already existed. It was intended to send a clear and strong signal to Iraq that, in the event of non-compliance, there would be serious consequences. That there has since been non-compliance is surely not seriously in doubt.
That there has also been some limited measure of compliance is not really the point. The most recent of Iraq's many full, final and complete declarations, handed over in December to the chairman of UNMOVIC, was not full, final or complete, as Dr Blix told the Security Council. There has been no fundamental change of Iraqi attitude, no policy decision at the highest level to abandon the proscribed weapons programmes, such as was taken some years ago by South Africa in respect of its nuclear weapons programme, which led to its rapidly receiving a clean bill of health from the international inspectors. Instead, we have seen a continuation of existing policy designed to give up only what could not be successfully concealed.
Faced with the evidence of non-compliance, the Security Council has unfortunately fallen prey to divided counsels, expressed most graphically in the agonisingly prolonged debates over whether to adopt what has come to be called "the second resolution", although it is in fact about the 18th, depending on where one starts counting. There are many misunderstandings about that second resolution. as there have been about Resolution 1441. It too was not in itself an authorisation for the use of force.

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Anyone who has examined the text of the draft and all the successive iterations of it that followed can see that it did not explicitly authorise the use of force.
The purpose of the resolution was surely political and not legal, to draw a line under the phase of non-compliance with Security Council Resolution 1441 and to signal that serious consequences were now imminent. If it could have been adopted, it would have sent a powerful signal to Saddam Hussein of the determination of the whole international community to bring an end to the matter one way or another. Alas, that will now not happen, and perhaps the best chance of getting Saddam Hussein to blink has been squandered in a bitter wrangle over the timing of sending such a signal. Signal or no signal, the authority remains the same in this analysis. It derives not from the now-moribund second resolution, nor from Resolution 1441 alone, but from Resolutions 678 and 687 as well.
What then remains to be said? It is certainly ironical that the authority for the use of force derives in this case from two resolutions for which France and Russia, at that time still flying under the flag of the Soviet Union, voted in favour. However, it also follows in this analysis that action by the UK, the US and its other allies does not herald either a new doctrine bypassing the system laid down in the UN charter, nor the flouting of international law. In fact, it is far less daring than was the decision by NATO to use force against Yugoslavia in the case of Kosovo, where it was recognised that entirely new ground was being broken under the justification of an overwhelming humanitarian emergency. This really is as close as it is possible to be to a one-off situation. The UN has not often voted explicitly to authorise the use of force in the past and it does not look likely to do so very often in the future.
So, sweeping conclusions about the legitimisation of pre-emptive action are rather wide of the mark. Moreover, the action being taken is not designed to further the interest of one country or one group of countries; it is designed to bring about compliance with a series of mandatory resolutions of the Security Council. It is thus, in this view, very firmly situated within the framework of international law.
7.50 p.m.
Lord Brennan: My Lords, this debate is about international law. It is not about lawyers or words but about the legal system by which we try to keep the peace in our world. When we signed up to the United Nations Charter as a nation, we did so to avoid for future generations the scourge of war. In seeking to achieve that objective, we agreed, as signatories to a treaty, that the use of force between nations should be permissible only in the case of armed or imminent attack or under United Nations authorisation when a threat to the peace had been declared by the Security Council and non-military measures had been determined to be inadequate.
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That is the international law that we agreed to support. It explains the valiant and unstinting efforts of our Prime Minister, Foreign Secretary and others in recent months to achieve a solution to the Iraqi problem through the United Nations. It explains why, in his statement today, my noble and learned friend the Attorney-General sought to explain the legal basis for action against Iraq within the context of resolutions from the United Nations—not the humanitarian example of Kosovo but reliance on the system in which we play our part.
Today, I believe that my noble and learned friend the Attorney-General, most helpfully and with clarity, established his view of the legal position. I do not agree that he should have attended this House to answer his case. I do not agree that the legal opinion of my noble and learned friend the Attorney-General is a subject for heated parliamentary exchange which includes him; it is for us to debate his view objectively. But it is a view that I cannot accept.
We, whether lawyers or not, have concentrated in this debate on the terms of the past resolutions. I propose to extract our thinking from simple semantics and to remember the objectives of those resolutions. Resolution 660 condemned the invasion of Kuwait. Resolution 678 agreed that all necessary means could and should be undertaken to restore the sovereignty of Kuwait. The subsequent resolutions—Resolutions 687 and 707 up to 1441—dealt with the disarmament of Iraq's weapons of mass destruction.
In my view, by no means is it clear that when we agreed internationally to take all necessary means to fight a war to restore the sovereignty of Kuwait, we thereby explicitly agreed that in 12 years' time we would agree to an invasion of Iraq if we were not satisfied about its disarmament in terms of weapons of mass destruction. My noble friend Lady Ramsay is right: it is a lawyer's fault ever to concentrate on those words. That was not the intention, and no amount of semantics will persuade me that such a conclusion is to be drawn from these resolutions now.
Nothing in the resolutions justifies a present war. A further resolution is required. I shall not rely on lawyers for that conclusion; I shall rely on three people. A week or two ago, President Bush Senior said that the way to world peace was through multilateral negotiation, collective agreement and collective action. It is upon that foundation, which he so eloquently described, that the United Nations worked. Ten days ago, President Clinton, as well versed in security matters as anyone, said that there should be more time—not unlimited time but such an amount of time as will combine an ultimatum with satisfying the people whom we represent that this is a justified war.
The last of the three is Kofi Annan—not a lawyer but a noble servant of international peace. Ten days ago, in The Hague, he said the following:
"The members of the Security Council now face a great choice. If they fail to agree on a common position. and action is taken without the authority of the Security Council, the legitimacy and support for any such action will be seriously impaired".

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He said plainly:
"I think that under today's world order, the Charter is very clear on circumstances under which force can be used … If the US and others were to go outside the Council and take military action it would not be in conformity with the Charter".
That comes from no lawyer; there are no specious semantics. It is a statement by the first servant of world peace about international law and justice with which I personally agree.
I do not support the theory of anti-war; Saddam should be disarmed. I do not support unlimited delay; I agree that an ultimatum should be set up. But I do not agree that this action can properly be taken outside the context of the United Nations. But perhaps it will be—the die may be cast. If it is, then I, as one lawyer, shall stop contributing to these debates as of this evening. Once the action begins. nearly 50,000 of our soldiers—men and women—deserve the maximum moral support of our country. They will not be assisted by yet further incessant analysis of what is right and what is wrong, whatever may subsequently be argued.
But I hope that if we act, as the Government may choose to do, with the United States outside the United Nations. we shall very quickly remind the world that as a nation we support international law; we shall fight this war according to all civilised principles; we shall arrest where we can those who should be charged before an ad hoc international criminal tribunal for their crimes; and we shall guarantee—I underline the word —the future functioning of a civilised and democratic society in Iraq in so far as we can.
This is not the end of the United Nations; neither is it the collapse of international law. But if action is taken outside the United Nations, we as a nation must return to the fold of international law as quickly as possible.
7.59 p.m.
Lord Lester of Herne Hill: My Lords, two issues have been raised by my noble friend's Motion. The first is whether the use of force against Iraq is lawful under international law; and the second is that, even if it were lawful, what are the legal limits governing the use of force under international humanitarian law? I shall deal with the second of those issues rather than the first.
As I am sure all noble Lords will agree, it is obviously essential for members of the Armed Forces and civil servants to have clear guidance about the legal obligations imposed on them as we face imminent war against Iraq. The Cabinet Secretary, Sir Andrew Turnbull, has recognised this in evidence to a committee in another place and has indicated that at the earliest opportunity that position will be clarified in a parliamentary debate. That is why this debate is particularly timely. I very much hope that the Minister will reply clearly to both those issues. In the light of some Questions for Written Answer that I had tabled, I wrote last Thursday to the noble Baroness asking her to do so. Having waived privilege in respect of the Attorney-General's conclusions, I hope that in
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fairness to the Attorney-General the Government will publish his full reasons so that we can see more than the one-page summary.
Forty years ago, I learned the principles of public international law as I understand them not in this country but in the United States Harvard law school. My mentors were two great American jurists, Professor Richard Baxter who became the American judge on the International Court of Justice and Professor Louis Sohn, the expert on United Nations law. On the basis of their teaching and my subsequent practice, and my reading not only of the various opinions which have been referred to but also the four detailed opinions by Rabinder Singh QC and his colleagues, I agree with the views expressed by my noble friend and the noble Lord, Lord Brennan. I am not convinced by the summary reasoning given by the noble and learned Lord the Attorney-General.
International humanitarian law is inspired by the desire of all civilised nations to reduce the evils of war by protecting both combatants and non-combatants from unnecessary suffering, safeguarding the fundamental human rights of those who fall into the hands of the enemy, particularly prisoners of war, the wounded, sick and civilians, and facilitating the restoration of peace. English law makes it quite clear that a military commander is responsible for offences committed by forces under his effective command and control. English law makes it an offence to commit crimes against humanity or war crimes. I am sure the Minister will be able to confirm that there are effective sanctions under English law for any such offences. I ask the Minister also to confirm that those principles are rooted in well-established, customary and conventional international law; and that Ministers, civil servants and members of the Armed Forces of this country and the United States are bound to comply with those obligations.
On Saturday the Financial Times published an important letter from the Director-General of the International Committee of the Red Cross in Geneva, Mr Angelo Gnaedinger who wrote:
"If a war is fought, all combatants must behave in a way that prevents indiscriminate and excessive suffering and destruction. International humanitarian law prohibits direct attacks on civilians and stipulates that everything possible must be done to minimise incidental civilian deaths and injuries. Furthermore, combatants must avoid damaging or destroying vital structures. These provisions can only become a reality if the warring parties do not use weapons that indiscriminately kill and maim, cause excessive and long-lasting suffering and damage or pose long-term threats to health and security".
The director-general also noted that during the Gulf War tens of thousands of people from both sides were detained as prisoners of war or civilian internees. He wrote:
"It is essential that everyone in this situation is treated humanely and in accordance with the Geneva Conventions. The potential conflict parties must also do everything possible to care for the sick and wounded, whether combatants or civilians, friend or foe. This implies that combatants respect the work of medical staff and facilities protected by the Red Cross and the Red Crescent emblems. In addition, everyone should do their outmost to ensure that humanitarian organisations can deliver medical care and emergency relief".

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Do the Government accept everything that the Director-General of the International Committee of the Red Cross has said is required? I hope and believe that the answer will be in the affirmative.
Finally, the director-general wrote:
"If war cannot be avoided, everything must be done to contain its effect on the safety and stability of the region. Much of this depends on how the hostilities are conducted and on the space given to human dignity and integrity in the midst of turmoil".
Do the Government agree with that? Do they accept the obligation to meet the needs of the people and their rights for help and protection under international humanitarian law?
To be just, a war against Iraq would have to respect the principles and rules of the international rule of law. Even amid the clash of arms, the laws are not silent. In the pursuit of the international rule of law, our Government as well as the Government of the United States must surely be ruled by international law in war as in peace and must demonstrate that they will fully comply with those fundamental principles in their conduct. We are not Romans; nor are we barbarians; nor, if I may say so, cowboys enforcing gun law in the Wild West. I hope that the United States Government will understand in their conduct of this war that, in Shakespeare's words,
"it is excellent to have a giant's strength, but it is tyrannous to use it like a giant".
I look forward to the Minister's full explanation of the Government's understanding of the international legal obligations imposed upon them and their allies in the use of armed force and the Government's acceptance of the matters raised on behalf of the International Committee of the Red Cross. In case there is any doubt about the matter, I wish to reiterate that for the reasons already given, and to be given, my view is firmly that what we are about to do is in breach of fundamental international legal principles.
8.6 p.m.
Lord Owen: My Lords, within a very short time this country will, sadly, be at war again with Iraq. I believe that it will be a just war, a necessary war and a war that is fully compatible with the UN Charter. I realise that people hold different views and I respect those views. But I come to this debate with one very profound memory. As an 18 year-old medical student I watched this country go into the Suez war divided. undoubtedly, we now know, acting illegally, sending its troops out without public opinion behind them. It is right, therefore, that we seek to establish whether or not this action is legal. It is of fundamental importance that people being asked to risk their lives are in no doubt about the legality of the war. I hope that today's debate contributes to showing our forces in the field how resoundingly this House rejects the argument of the noble Lord, Lord Goodhart.
First, the noble Lord is profoundly wrong. Of the three resolutions mentioned, he chose to concentrate on 1441. He said it was the most important resolution.
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However, by far the most important resolution is 678. It was quite wrong to stop reading at "Kuwait". It was a continuous sentence which concluded,
"to use all necessary means … restore international peace and security in the area".
We have not restored peace and international security in the area. Nor has there been any real halt in hostilities—just a few months in 1992. In fact, we have been asking our air force pilots to risk their lives year after year in order to stop the Kurds being pushed again right up to the borders as they were. Unfortunately, we have not been able to stop a virtual genocide of the Marsh Arabs. So we are still using force, and using it under the most important resolution of all; that is, Resolution 678.
I should like to say to the right reverend Primate, who happens to be my diocesan bishop, that I respect and like the fact that the Church and the new Archbishop have taken such a strong view, even though I oppose it. But of all people, the clergy should have a vested interest in trying to establish a rule of law and practice whereby cease-fires can bring a war to an end as quickly as possible.
I urge Members of this House and others discussing this issue to understand that the Security Council is not a court. I spent almost five years of my life in and out of the Security Council, listening to the arguments—all related to war and resolutions on war. It is a council—a cabinet in a way—which makes political judgments. It listens to lawyers, rightly so, but must determine what is the overall good, in this case for the world. It is surely a fundamental good to establish the integrity and necessity of cease-fires.
President Bush senior did not have to stop when he did. We had General Schwarzkopf and General Powell in what was called a turkey shoot on the Basra route. I prayed that night that they would stop it, and they did. But they stopped it not without conditions, quite rightly. Having behaved in the way he did, Saddam had to be disarmed of the weapons of mass destruction which we knew he contemplated using on the warheads which could have landed in Tel Aviv or Saudi Arabia.
It is no use our trying to get away from the question: why have we not done anything over the past 12 years? Let us be political and realistic. The only country which could topple Saddam Hussein, post-1992 through to 2000, was the United States. But they did not have the will to do it. They did not want to send their troops back in again. It was only after September 11th that they found the national will and resolve to go ahead. I believe it was decisive and correct leadership of the British Prime Minister to decide that he was not going to stop them. Now that they had the resolution to deal with this issue, he was prepared to back them.
And let us not have lectures on containment from the French Government. Initially, under President Mitterrand, they co-operated. They flew with their pilots to enforce the no-fly zones. But they backed off from the military need for containment. Let no one say containment has worked; it has failed miserably. I have attended humanitarian conferences throughout

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the world. People constantly ask me, "How can you justify what is happening to the infant mortality rate in Iraq and the failure of sanctions?". I said that I could not justify it. It is a humanitarian outrage. But it would be a worse humanitarian outrage to allow Saddam Hussein to get away with it; to stop the no-fly ban and to allow what would undoubtedly happen again to the Kurds.
So although we are discussing legal questions and respecting legal arguments—I want a law, a charter, an international discipline—let us set the matter in its political framework. Let us face the reality. Let us accept what horrors are taking place. The argument is put forward: let us leave it for a few more weeks, a few more months. I understand that argument. But the decision to amass 250,000 troops must be taken months in advance. We have to make a judgment. The French admitted that without those troops being there, there would not even be the limited compliance we see. But Iraq is still in fundamental breach.
At the end of the day it comes to a judgment. You can listen to the lawyers and you can listen to our bishops. You have to make your own choice. But how many people in their homes tonight, tomorrow and in the next few tortured weeks will ask the real question that underlies this: who but the United States were ready to take on and risk their troops and undoubtedly lose many lives. Thankfully, this country was ready, and there are many other countries too. We are not alone. Why are we doing it? It is because of a basic, deep humanitarian belief that this particularly vicious dictator has to be stopped.
We have behind us 17 or 18 UN resolutions. We can argue about the number but it is not one or two. We have a clear mandate. We did not do the job in 1991. I will not be Professor Hindsight. I wanted that ceasefire. I did not want them to go through to Baghdad. But when I see a ceasefire as brazenly broken as it has been by that man, and when I now see the most powerful country in the world ready to take risks with its own people to fulfil the United Nations Charter's own resolutions and demand the ceasefire and enforce it, I believe it should be supported.
8.15 p.m.
Lord Archer of Sandwell: My Lords, the noble Lord, Lord Goodhart, is to be congratulated on securing this opportunity to discuss the implications of the present situation in international law. In our more general debates, various contributors pursue different themes and any specific theme such as international law tends to disappear in the general cacophony.
This is our opportunity to debate our differences. I have the misfortune to differ from a number of noble Lords with whom I frequently find myself in agreement, but that is one of the consequences of the present situation in international law, which develops daily and does not exist in tablets of stone.
The major theme of our discussion is whether there is Security Council authority under Article 42 for military action. Any of us may feel strongly that something should be done to intervene in what is the
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career of a foul dictator in Iraq. Unless we can persuade an international consensus as to that, it may just be that we are wrong. It may just be that the conduct that we are pursuing is not the appropriate conduct. It is not a bad idea to listen to what other people say even if one is convinced that they have discreditable motives.
The possible justifications for armed force in the absence of such authority are interesting, but they bear no real applicability to the present situation. The problem about Resolution 1441 simply is that it manifestly does not authorise military action. If the council had intended to do so it could have said so quite unambiguously. To seek to spell out such authority from a reference to "serious consequences" is to treat the Security Council as a Delphic oracle. It is not necessary to be an international lawyer to see the common sense of that.
It has always been recognised that authority for something as serious as war should be unambiguous, at least partly because if the council chooses to authorise action under Article 42 it needs to spell out specifically what that action is. I agree with the noble Lord, Lord Lester, that it is not simply for any individual state which chooses to act on a general authority to decide precisely what action it is entitled to take irrespective of the humanitarian consequences.
It was not by oversight that the council refrained front authorising military action. When Resolution 1441 was under discussion, the council specifically considered whether to authorise military action and it declined to go so far. There were those who supported the resolution, as has been said, on the understanding that it did not include automaticity. Indeed, the resolution specifically provides that if Iraq fails to co-operate, the inspectors should report back to the council. Those who wanted automaticity failed to persuade the council.
When it was repeatedly pointed out that nowhere does Resolution 1441, expressly or by implication, authorise military action, the new doctrine emerged: "This is not about 1441 after all. What we are really talking about is Resolution 678 of 1990, and Resolution 687, which gave conditional authority to use all necessary means for the purpose which was then under consideration; that is, to secure withdrawal from Kuwait". The problem with that is that since then the Security Council has considered Iraq again and again and has passed at least 10 further resolutions—it may be there were far more—in which it set out what further action Iraq is required to take in a different situation and specified what further steps UNMOVIC and IAEA are to take in the light of the new circumstances.
The argument appears to be that we should go back to 1990 or 1991, ignore all that has happened since, all the intervening resolutions, all the further discussions and return to Resolutions 678 and 687 as though they were the last word on the subject. The sleeper has been reawakened and looks just as he did 12 years ago. But Resolution 687 had a last word: that the council resolved to remain seized of the matter. To go back to

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1991 and to rewrite the history of the past 12 years would be like a man ordering a beef steak 12 years ago which is now brought to him, but in the meantime he has become a vegetarian, and it is argued that he never cancelled the order.
I understand the frustrations of those—particularly the Prime Minister—who believe fervently that an Iraq with weapons of mass destruction is a potential threat to world peace and security, if not in the immediate future at least at some future indeterminate time. I pay tribute to the Prime Minister's efforts to persuade the international community of that danger. Some of us were saying that long before it became apparent to the United States. We may suspect the motives of those who express their disagreement, although we may also consider it possible that they too, like the United Kingdom Government, are expressing what they genuinely believe. But the UN charter and the machinery that is now in place are the only criteria that until now have generally been accepted as forming a consensus among the international community.
I happen to believe that it is in need of reform. It places too high a premium on the interests of individual nation states. Perhaps now, or at least when the situation is less emotional, the world will set about constructing a more objective international authority, but for now the Security Council is all that we have. Destroy that and we may wish to have back what we have destroyed. I agree with my noble friend Lord Brennan that if we fail to persuade the Government, we should accept that events have overtaken our arguments, but I believe that history will decide who was right.
8.23 p.m.
The Earl of Sandwich: My Lords, I thank the noble Lord, Lord Good hart, and unlike some of my noble friends, I support his contention that any action in Iraq now should be expressly sanctioned by the international community. Resolution 1441 was yesterday's resolution; it was not a war resolution. In 2003 it cannot be right for two nations to enter a major regional war without a very specific UN authority, even against the advice of their closest allies.
I wish to raise a related issue: the interpretation of international law concerning the use of our Armed Forces in humanitarian work. I speak with Iraq in mind, but I shall begin with the example of Afghanistan. Noble Lords will remember that the mandate of ISAF, the International Security and Assistance Force, does not extend beyond Kabul. Yet the aid workers have had to operate in the provinces at considerable personal risk. Staff of UN agencies and NGOs have been active, often without formal protection beyond that of the local warlord.
To provide that protection and to assist in humanitarian work, the US-led coalition has created new units known as PRTs (provincial reconstruction teams). There has been considerable concern among NGOs about the role of those units. They point out that confusion arises when soldiers plan or carry out
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humanitarian work while their regiments may be simultaneously involved in conflict elsewhere in the country. It is unreasonable to expect local people to draw a distinction between soldiers handing out supplies or building a school and others who are carrying weapons with obvious military intent. There are also off-duty occasions when soldiers mingle with. and may be indistinguishable from, aid workers and indeed the local population.
Until recently when the NGOs complained, even co-ordination of their work was to be undertaken by those US-led teams rather than by the UN. The new teams do not, apparently, appreciate the problem, perhaps seeing themselves as liberators after the conflict has ended. Yet we know that, beyond the control of central government, the provinces are subject to frequent insecurity, ambushes and attacks on aid workers. Last month a UN de-mining team was attacked, and employees of the World Food Programme had their vehicle seized by armed gunmen. Several agencies and NGOs have now closed down their programmes. Warnings are being issued by Taliban remnants, and the FCO states that the threat to westerners in Afghanistan remains high, due to heightened tension. The knock-on effect of the Iraq war can only be to worsen security in Afghanistan, and some German and Dutch forces may now even be withdrawn from ISAF.
My first group of questions to the Minister, some of which I have tabled is as follows. How many British troops are now being seconded to these new US-led teams, and will they come under US command and be subject to the same rules of operation? This has a relevance for Iraq. Is she aware of the strong concerns of NGOs—and here I declare an interest, having close links with Christian Aid and several other NGOs—that this blurred distinction could adversely affect, and even endanger, the organisations and people whom they may wish to protect? To quote from a recent Save the Children Fund statement:
"Humanitarian agencies will not be used as instruments of foreign policy. Nor should humanitarian assistance ever be used as a political or military tool".
Another statement from CARE International, quoted by the International Development Select Committee, this week said:
"Any action that fudges the distinction between military and civilian activities … makes us complicit … and identified in the eyes of ordinary people with … vigilantes".
Turning to Iraq, it is not difficult to imagine the same issue arising in many areas of conflict there, especially after the first strikes are over, and during the period preceding and following any ceasefire. I am not at all opposed to a humanitarian role for the British Army in controlled situations. The hasty construction of refugee camps in recognised areas of Macedonia was a good precedent. provided that they were properly co-ordinated by the United Nations.
In a war, it may not be possible to draw these straight lines, and military objectives will always have precedence. Yet the Geneva conventions—and this is where international law is clear, as the noble Lord, Lord Lester of Herne Hill, said—state that civilians

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should be a focus of humanitarian work from the outset of a conflict. One only needs to look at Palestine and see how Israel disregards UN conventions and the role of humanitarian aid workers, to understand the fears now being expressed about Iraq.
This brings me to my second group of questions. Can the Minister give us an assurance that her Government already have a contingency plan for Iraq, which bridges the need of the army, the UN and NGOs? Why is the humanitarian operations centre in Kuwait run by the US military and not, for example by the UN Office for Humanitarian Affairs? How will this centre relate to USAID's disaster team, and their NGO based in Jordan? Meanwhile, what will be the role of the UN Regional Co-ordination Office In Cyprus?
Much of this ambiguity, as many noble Lords will have realised, stems from the lack of a UN mandate, or a successor resolution to UN Security Council Resolution 1441. Illegality will run right through the system. The military strength and sheer willpower of the US will lead to a chain of command all the way through the network of humanitarian and non-government agencies. The work of NGOs and their independent judgment may be compromised, whether it is over oil-for-food or refugees.
It seems very likely that the same pattern will emerge in Iraq as in Afghanistan. Under US military law, I understand, power does not automatically revert to the civilian authority, even after the conflict has ceased.
I have worked with NGOs long enough to know when they are voicing very serious concerns. They have a long history of independence and they have their own way of doing things. They have built up expertise in emergency assistance which is second to none and has informed and piloted much of the work of official agencies, as DfID will acknowledge. In particular countries in the Middle East they have developed great sensitivity to the needs of local populations. They do not want all this experience to be jettisoned by the misplaced sense of superiority of a bunch of US colonels or by an ill-conceived policy of our own Government. Remembering previous exchanges with the Minister, I am confident that she would not want this to happen in the case of Iraq or anywhere else.
8.30 p.m.
Lord Grabiner: My Lords, I believe that the use of force against Iraq in the present circumstances is justified and lawful under international law without the need for further Security Council authorisation.
As a matter of law, it is necessary to view everything that has happened since 2nd August 1990, when Saddam Hussein invaded Kuwait, as a continuum. The issue we are debating today is not whether a material breach of Resolution 1441 is a sufficient justification for the use of force against Iraq. That, I believe, is the thrust of the argument of the noble Lord, Lord Goodhart, and of my noble and learned friend Lord Archer of Sandwell. In my view, respectfully, that is entirely the wrong question.
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The real question, I suggest, is whether the use of force is justified having regard to all the circumstances and, in particular, to the events and "relevant resolutions" over the past 13 years. Not only is this the right question as a matter of law, common sense also suggests that the right conclusion will be reached only when regard is had to the full context.
Saddam Hussein's invasion of Kuwait was followed later that year by Security Council Resolution 678. This resolution could have been, but was not, limited in its terms to the expulsion of Iraq from Kuwait. In fact, the resolution authorised the use of "all necessary means" to secure not one but two entirely distinct objectives.
The first objective was the expulsion of Iraq from Kuwait. The second objective—this point was, if I may respectfully say so, correctly picked up by the noble and learned Lord, Lord Mayhew of Twysden, and the noble Lord, Lord Hannay of Chiswick, but for some reason was wholly ignored by my noble friend Lord Brennan—was the restoration and maintenance of international peace and security.
Clearly the second objective was intended to go wider than the first, otherwise there would have been no need to include a second objective at all. This demonstrates that from the outset the Security Council did not see Saddam Hussein's invasion of Kuwait as having consequences limited to Kuwait; the Security Council rightly recognised that Saddam Hussein's behaviour had consequences far beyond Kuwait because it demonstrated his tendency to take up arms, to attack and threaten Iraq's neighbours and to destabilise an entire region.
The conclusion of the Kuwait crisis and the consequent ceasefire did not cancel out Resolution 678 and its twin objectives. On the contrary, the ceasefire was itself expressly conditional on Iraq's acceptance of a detailed programme of disarmament and United Nations supervision, which included strict time limits to which Saddam Hussein was obliged to adhere. This was all spelled out in paragraphs 8 to 13 of Security Council Resolution 687, which was adopted on 3rd April 1991.
The unanimous view of the Security Council is that Iraq has not complied with Resolution 687. Indeed, paragraph 1 of Resolution 1441 of 8th November 2002 records,
"that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687".
In other words, all member states are agreed that Iraq has not complied with the ceasefire conditions. Its failure to do so drives one to the conclusion that the Security Council has existing authority to achieve through alternative means the second objective of Resolution 678; namely, international peace and security. It has that authority because the ceasefire conditions set out in Resolution 687 were not met. The ceasefire failed to achieve the objective of restoring international peace and security and that objective remains to be satisfied.

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This is not a new argument. It was used in 1993 and in 1998 to justify the use of force against Iraq in response to its then breaches of Resolution 687. In 1993 the then United Nations Secretary-General accepted that the use of force conformed to the resolutions of the Security Council and the United Nations charter.
That analysis is, I believe, confirmed by the plain text of Resolution 1441 itself. First, the provisions of this resolution are described in terms in paragraph 2 as Saddam Hussein's "final opportunity". A final opportunity means what it says. It is very simple language capable only of one construction. There is nothing more final than a final opportunity.
Secondly, by paragraph 12 of Resolution 1441, the Security Council decided to convene if the inspectors reported a failure by Saddam Hussein. This paragraph specifically does not provide that no action may be taken in response to any such failure unless and until a further resolution is obtained. On the contrary, paragraph 13 recalls that Iraq has been repeatedly warned that,
"it will face serious consequences as a result of its continued violations of its obligations".
Serious consequences cannot mean that Iraq may merely expose itself to a further Security Council debate. The words "serious consequences" speak for themselves, especially when one bears in mind that Resolution 1441 is itself described as Saddam Hussein's "final opportunity".
The conclusion from all this is that there is an existing Security Council mandate for the use of force against Iraq if that is what is necessary to disarm Saddam Hussein and thereby achieve international peace and security. It may be politically desirable to obtain a further resolution from the Security Council, but that is another question.
I believe that similar arguments have been made by my noble and learned friend Lord Goldsmith, the Attorney-General, and by my learned friend Christopher Greenwood QC, who is the distinguished Professor of International Law at the London School of Economics.
I have confined my arguments so far to the context and the construction of the relevant resolutions. There are, however, two further arguments. The first is that Chapter VII of the UN charter does not set out an exhaustive list of the circumstances in which it is lawful for member states to have recourse to force. NATO's intervention in Kosovo provides a recent and powerful precedent for the legality of the use of force in a situation not covered by Chapter VII. That point was fairly acknowledged by the noble Lord, Lord Goodhart, in his speech. The Kosovo intervention did not fall within that chapter because it was not specifically authorised by any Security Council resolution. It was none the less justified and, in my opinion, lawful because of the urgent need to provide humanitarian relief.
The humanitarian argument was supported by all parties, including especially the Liberal Democrats. They did not and do not suggest that the bombing of
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Belgrade was in violation of international law. What this demonstrates is that international law cannot be rigidly confined to the straitjacket of Chapter VII but must take account of the varied and complex situations that the modern world throws up.
Whether or not there is a comparable humanitarian justification for intervention in Iraq is very much a factual question. In my view, it is impossible to doubt that there is a pressing humanitarian need to intervene. It is accepted by all that Saddam Hussein has used chemical weapons on his own people and the brutality of his regime is not in doubt.
Those who believe, as I do, that the use of military force is necessary, lawful and morally right must believe that they can justify their position to the families of innocent victims of that use of force. I believe that we can do so.
Some would stand by and say that there is nothing lawfully that can be done to remove the long-term threat that Saddam Hussein presents or to save the people of Iraq from him. They have to say that—particularly in the face of Mr. Chirac's stated position that France would veto any resolution, whatever the circumstances. But those who do stand by must be able to justify their position to the families of innocent victims as well—that is, the victims of Saddam Hussein. I do not believe that they will be able to do so. Those families will not begin to understand the legal arguments that were used to justify such a culpable failure to act.

Business of the House: Debates, 18th and 19th March
8.41 p.m.
Lord Grocott: My Lords, with permission, I wish to make a brief Statement about future business.
Tomorrow, the House will meet at the usual time. After Starred Questions and the Report stage of the Public Service (Disruption) Bill—to which no amendments have been tabled—my noble and learned friend the Leader of the House will move a Motion to take note of the Government's policy towards Iraq.
A list of speakers is now open in the Government Whips' Office. It will remain open until noon tomorrow, as usual. We will not seek to proceed tomorrow with the Northern Ireland Assembly Elections Bill or the Regional Assemblies (Preparations) Bill.
If the House approves the Motion to be moved tomorrow, on Wednesday the first business after Questions will be the Second Reading of the Northern Ireland Assembly Elections Bill. The Public Bill Office will accept amendments from 10 a.m. tomorrow until 30 minutes after the end of the Second Reading debate on Wednesday. Then the House will proceed with the first of the two balloted debates, the remaining stages of the Bill, the second balloted debate and the Unstarred Question.

Iraq
8.42 p.m.
The Minister for Trade (Baroness Symons of Vernham Dean): My Lords, with the leave of the House, I shall now repeat a Statement being made in another place by my right honourable friend the Foreign Secretary. The Statement is as follows:
"With permission, Mr Speaker, I should like to make a Statement in respect of Iraq and the debate which will he held in this House tomorrow.
"As the House will be aware, in the Azores yesterday my right honourable friend the Prime Minister, President Bush, Prime Minister Aznar of Spain and Prime Minister Barroso of Portugal called on all members of the Security Council to adopt a resolution—which would have been its 18th on Iraq—to challenge Saddam to take a strategic decision to disarm his country of his weapons of mass destruction as required by SCR 1441.
"Such a resolution was never needed legally but we had a preference for it politically. There has been intense diplomatic activity over the past 24 hours to secure that end. Yesterday evening, our Ambassador to the United Nations, Sir Jeremy Greenstock, consulted his fellow permanent representatives from other Security Council member states. Only this morning, I spoke to my Spanish, American, Russian and Chinese counterparts.
"Despite those final efforts, I regret to say that we have reluctantly concluded that a Security Council consensus on a new resolution would not be possible. On my instructions, Sir Jeremy Greenstock made a public announcement to that effect at about 3.15 p.m. UK time today.
"What we know about the Iraqi regime's behaviour over many years is that there is the greatest chance of their finally responding to the obligations on them if they face a united Security Council. So, over the months since Resolution 1441 was unanimously adopted by the Security Council in early November, my right honourable friend the Prime Minister and I and our ambassador to the United Nations have strained every nerve in search of the consensus that could finally persuade Iraq to provide the full and immediate co-operation demanded by the Security Council.
"In all the discussions in the Security Council and outside, no one has claimed that Iraq is in compliance with the obligations placed upon it. Given that, it was my belief that, up to about a week ago, we were close to achieving the consensus that we sought on a further resolution.
"Sadly, one country then ensured that the Security Council could not act. President Chirac's unequivocal announcement last Monday that France would veto a second resolution, 'whatever the circumstances', inevitably created a sense of futility in our negotiations. I deeply regret that France has put Security Council consensus beyond reach.
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"The alternative proposals submitted by France, Germany and Russia for more time and more inspections carry no ultimatum and no threat of force. They do not implement Resolution 1441 but seek to rewrite it. To have adopted such proposals would have allowed Saddam to continue stringing out inspections indefinitely. He would rightly draw the lesson that the Security Council was not prepared to enforce the ultimatum which lies at the centre of Resolution 1441: that, in the event of non-compliance, Iraq should expect 'serious consequences'.
"As a result of Saddam Hussein's persistent refusal to meet the UN's demands, and the inability of the Security Council to adopt a resolution, the Cabinet has decided to ask the House to endorse the United Kingdom's participation in military operations with the objective of ensuring the disarmament of Iraq's weapons of mass destruct ion, and thereby the maintenance of the authority of the United Nations.
"From the outset of this crisis, the Government have promised that, if possible, the House would have the opportunity to debate our involvement in military action prior to the start of hostilities, and on a substantive Motion. The House will have that opportunity tomorrow. Copies of the Motion, proposed by my right honourable friend the Prime Minister and Cabinet colleagues, have been placed in the Vote Office. I understand, Mr Speaker, that you will specify the time by which amendments must have been received. My honourable friend the Parliamentary Secretary to the Privy Council Office will make a short Business Statement.
"To inform the debate, I have circulated several documents to all right honourable and honourable Members today. Those include a copy of the response from the Attorney-General to a Written Question, in which he sets out the legal basis for the use of force against Iraq, as well as a detailed briefing paper summarising the legal background, which I have also copied to the chairman of the Foreign Affairs Select Committee. I have also made available a note summarising Iraq's record of non-compliance with Resolution 1441. A Command Paper comprising key recent UN documents, including Dr Hans Blix's paper entitled, Unresolved Disarmament Issues: Iraq's Proscribed Weapons Programmes, which was published on 7th March, is available in the Vote Office.
"The debate tomorrow will be the most important in the House for many years. Some say that Iraq can be disarmed without an ultimatum, without the threat or use of force, but simply by more time and more inspections. That approach is defied by all our experience over 12 weary years. It cannot produce the disarmament of Iraq; it cannot rid the world of the danger of the Iraqi regime; it can only bring comfort to tyrants the world over, and emasculate the authority of the United Nations. It is for those reasons that we shall be asking the House to support the Government's Motion tomorrow".
My Lords, that concludes the Statement.
8.48 p.m.
Lord Howell of Guildford: My Lords, we are grateful to the noble Baroness for repeating the Statement made by the Foreign and Commonwealth Secretary, which is sombre.
To use President Bush's phrase, the moment of truth has now arrived. Diplomacy—at least in relation to the issue of Iraq—has failed; and so has the UN process. It is clear that the will is simply not there in the United Nations to enforce its own stream of resolutions, about which we have heard during the debate that surrounds the Statement. In fact, by declaring its resolution to veto any resolution, France, our neighbour, has in effect pulled the plug on the United Nations process.
All this is deeply regrettable and we shall discuss it in detail tomorrow. There is room for criticism from these Benches on the handling of the situation, but this is now where we are. I should make it clear that we endorse the position that the Cabinet has taken and for which it seeks approval from the other place in a debate tomorrow.
I shall state the main issues for tomorrow—indeed, for all time. First, there is the legality question, which we are in the middle of debating in your Lordships' House. This ought to have been settled long before we reached the point at which the troops are going into action, which is about to happen. Resolution 687 laid down the ceasefire and the total defeat of Saddam. People forget how he was defeated. But the ceasefire conditions have all been broken. Sixteen other resolutions have also been defied, culminating in Resolution 1441.
I feel some unease—even regret—that the legal basis of this action is still being questioned in debate here tonight. The noble Lord, Lord Owen, said that it would send out a clear message, but I can tell him and others that this debate will settle nothing. As the noble Baroness, Lady Ramsay, rightly observed, lawyers can go on disagreeing for ever, and they will do so. We are adding nothing to the certainty, and something to the uncertainty of the message going out from this nation. I hope, along with the noble Lord, Lord Goodhart, that the Attorney-General will be here later to favour us with his thoughts following his Written Answer to the noble Baroness, Lady Ramsay of Cartvale. She made a superb speech to which I shall refer later. It would be a pleasant courtesy, if I may put it that way, if the Attorney-General were to join us. It would also be very helpful to the Government's case. We are left a little sore at how that matter has been handled.
Secondly, there is the issue of imminence and danger of a threat, which was not so much mentioned in the Foreign Secretary's Statement tonight. Obviously, it is the conviction of the Prime Minister, Mr Blair, which some of us share, that just ahead there is a dark rendezvous between fanaticism and weapons of mass destruction. It is difficult to prove, but I have to ask whether there is more evidence on that aspect that can be brought out in tomorrow's debate. There is no doubt that the presentation of the case for intervention has been poorly put forward until late in the day, which has added greatly to the tensions, difficulties
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and divisions. I noted that the Foreign Secretary did not attempt to repeat the wider case for action in his Statement. Will the Prime Minister do so tomorrow?
Other issues include mending the divisions. Let us have something on that tomorrow. I and others will be putting forward some thoughts on the way in which to bind together all the terrible wounds that have been caused. I would caution against too much bashing of France or Germany. That is for the tabloids, not for statesmen. The ragings of Ministers, such as Mr Peter Hain, are something that the Government will live to regret when it comes to rebuilding European unity on new foundations and reconstructing the trans-Atlantic alliance.
There was no mention of Turkey in the Statement. What has gone wrong there? Will the Turkish allies co-operate with the United States, or will their doubts, which are democratically based, slow down the whole operation?
There was not much mention of Israel, which was certainly referred to in the Azores. What precisely are the next steps in reactivating the road map? What part will the United Kingdom be playing? What part will the Russians, who are members of the quartet, be playing? Should we now be thinking of a bigger world summit to get a combined approach, not just on Palestine but North Korea, Iran's illegal nuclear weapons and all sorts of other things? Can we be assured that these issues will be the context in which matters will be debated tomorrow?
There is very little time but we want to raise a whole other tranche of issues, such as the state of our Armed Forces, whether they have all the equipment that they need and the possible use of new and terrifying weapons like the thermobaric bomb, of which details are carried today in the International Herald Tribune. Some of these thoughts should be shared before we go much further.
In view of time and the need to get on with the debate, which addresses an important element of this issue. I conclude by saying that the best thing is to pray that the intervention will be swift; that casualties will be minimised; and that, whatever the doubts and fears, we will present the kind of national unity and solidarity, both in Parliament and in the Cabinet, which our troops deserve as they go about their awesome and challenging duties in the name of a better and safer world.
8.55 p.m.
Lord Wallace of Saltaire: My Lords, I thank the Minister for repeating the Statement. I shall be brief because we are in the middle of a debate which touches on some of these issues and we shall discuss them again tomorrow.
We recognise that the Statement brings diplomacy to an end and commits us to armed conflict. We on these Benches much regret the absence of a second resolution and we recall that only a week ago the Prime Minister was strongly committed to a second resolution. We note that it was not only the French Government who made that impossible; the British

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and Americans failed to persuade a clear majority of the Security Council, even without the prospect of a French veto, that the action was justifiable. There has been a failure of diplomacy—sadly, a failure of American diplomacy in particular.
We on these Benches recognise the efforts that all Members of Her Majesty's Government have made over the past few months to maintain a balance between European and American approaches to the issue and a multilateral approach to it. As I shall comment later, some of us fear that the United States and Britain are entering an armed conflict with different underlying objectives.
I note the declaration, and I thank the Government for providing a number of supporting documents, from the summit in the Azores. It remarked that our alliance rests on a common commitment to democracy, freedom and the rule of law. It repeats the blurring of the distinction between the problem of Iraq and the longer and wider-term conflict against terrorism. We note that it reaffirms the vision of Middle East peace. I wish that I did not so heavily suspect that that appears because Her Majesty's Government asked the Americans to include it, but that the American Government are not fully committed to a vision of Middle East peace. That is one of the issues that greatly concerns these Benches.
We note the reference to maintaining—and, we hope, strengthening—the authority of the United Nations. Our concern about the current action is that we risk weakening the authority of the United Nations. We therefore greatly hope that the conflict to which we are now committed will be as short and as bloodless as possible; that on the conclusion of the conflict Her Majesty's Government will do their utmost to put the United Nations back in the middle of resolving the outcome of the conflict; and that they will do their best to bring European governments back together in their approach to the broader problem of security and peace in the Middle East as a whole. In that I strongly agree with the noble Lord, Lord Howell of Guildford.
8.58 p.m.
Baroness Symons of Vernham Dean: My Lords, I thank the noble Lords, Lord Howell of Guildford and Lord Wallace of Saltaire, for their receipt of the Statement. The noble Lord, Lord Howell, is right in saying that it is a sombre Statement. Who could fail to agree with that? We are all facing a difficult moment and, sadly, I must agree with his point about France's position. I do so not in a raging way, as he indicated others have done, and not in a sense of bashing anyone, but very sadly.
The noble Lord, Lord Howell, pointed to some of the issues we shall be debating tomorrow, but I believe that the legality of the position is indeed settled. I do not think we have ever had such a clear statement from the Attorney-General at a juncture like this. As the noble Lord cited to me, the Attorney-General's advice has been exposed before in relation to the Maastricht Treaty. However. the present situation relates not to a
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treaty which has been signed but, first, to continuing international negotiations and, now, the very real and terrible possibility of war. I believe that this Government have gone further than any other Government to put that advice into the public arena, and the Law Officer with principal responsibility has given a clear statement of his opinion.
I agree with the noble Lord, Lord Mayhew, that there are so many opinions that it would take years to litigate. I suspect that that statement is likely to excite relish and gloom in equal measure on the part of your Lordships, but I am bound to say that, as we have seen already this evening, there will always be a variety of opinions on these issues.
I heard what the noble Lord, Lord Howell, said about more evidence in respect of tomorrow's debate. However. I remind him that we have already put into the public arena a full history of the United Nations Security Council resolutions, starting with 660 and going through the 17 relevant resolutions. That is in Command Paper 5769. We have also published a detailed statement on the legal basis—a fuller statement than that which my noble and learned friend gave in answer to the noble Baroness, Lady Ramsay of Cartvale. There are other documents, including that which contains Dr. Hans Blix's comments on the unresolved disarmament issue. So a range of documentation is available to your Lordships on this issue.
The noble Lord, Lord Wallace of Saltaire, said that a week ago the Prime Minister was strongly committed to this second resolution—or, indeed, the eighteenth resolution, as it should more accurately be described. I am bound to say that I thought that the noble Lord. uncharacteristically, did not completely hear what I said regarding the statement and how we had thought those votes were secure. If the noble Lord does not want to take it from me, he can take it from our ambassador to the United Nations, Sir Jeremy Greenstock. My noble friend Lady Amos has worked tirelessly with the three African countries and there were also exchanges with our friends in Latin America. But I am afraid that the bald and sad position is that the unequivocal statement from President Chirac that he would veto the resolution whatever the circumstances, no matter what it said, demonstrated the futility of those negotiations with other countries. I am afraid that in doing that, France put a consensus on this issue beyond reach.
The noble Lord said that he suspects American motives about what has been said over the publication of the road map and the Middle East peace process. We will have to see. I hope that the road map is published. I have been answering questions in your Lordships' House on the Middle East peace process for many weeks; I have gone on and on, probably to the irritation of some of your Lordships, about how important it is that the road map is published. I, for one, greeted the statement from the United States on that point last week with very great pleasure, and I look forward to the publication of the road map in due course. But as the noble Lord, Lord Howell of' Guildford, reminded us, we will have an opportunity

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to debate all these issues fully tomorrow. I do not suppose any of us look forward to that debate but I am sure all of us will take it very seriously.
9.3 p.m.
Lord Craig of Radley: My Lords, I thank the Minister for repeating the Statement. I hope that this House, while tonight disunited on semantic matters of international law, will be fully united in its support for the Armed Forces involved in any conflict against Iraq. Can the Minister confirm that the strategic objectives are agreed with the United States Government? Will she spell out those objectives for the record? Will she confirm that our forces and those of the United States have been given the same directives for military action?
Baroness Symons of Vernham Dean: My Lords, of course I agree with the noble and gallant Lord, Lord Craig of Radley, about support for our Armed Forces. Whatever our differences in the House, and they have been ably demonstrated this evening, if we come to the point of military conflict, I am sure the House will be united in supporting our brave service people overseas.
The noble and gallant Lord asked me about strategic objectives and about sharing those with the United States of America. Although we are now on the brink of a situation where military conflict looks almost inevitable, I am not yet in a position to expose to your Lordships the strategic objectives. I hope that we shall be able to do that properly in a debate tomorrow and to satisfy some of the questions that the noble and gallant Lord raised. I hope that he will bear with the Government Benches for a few more hours. I hope that we shall be able to satisfy his questions in the debate tomorrow. I agree that they are very important issues.
Earl Russell: My Lords, I hope that I may ask the noble Baroness a question that I asked in both the previous debates on Iraq to which she responded. I repeat it as I should really like to know the answer. In assessing the threats to international peace and security posed by alternative courses of action, how far have the Government considered not merely events inside Iraq but also events across the Middle East, across the Muslim world and across the world as a whole? If they have seriously considered that wider context, will they be prepared to share some of their thoughts with us either today or tomorrow?
Baroness Symons of Vernham Dean: My Lords, of course, the noble Earl must know that a responsible government in considering whether or not to embark upon military action must look at all the exigencies and all the possibilities of that military action. Papers are being circulated. I am sure that my noble friend Lord Bach has seen papers in the MoD and I have seen papers in the Foreign Office which consider all the possibilities of what might happen—the terrible "what if?" papers. Of course, any responsible government would do that.
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The noble Earl asks how far we are able to share those thoughts. I am bound to say to the noble Earl that we come, as we often do on these matters, to the great difficulty of my having to say to your Lordships that it is really impossible to discuss these matters openly in public, not because I do not want to share thoughts with the noble Earl, Lord Russell, but because I do not want to share them with a potential enemy. To discuss publicly what the eventualities may be supposing one side decides to up the ante by the use of certain weapons or the movement of troops in a certain way and the consequences of what might happen in those circumstances, which is really what we are talking about here, and not only that, but also what might happen to political relationships in the Middle East, to all the countries of the Gulf and the immediate neighbours of Iraq, Iran and Turkey—we can all think these things through, as I am sure the noble Earl has done—is not in the interests, as I am sure the noble Earl if he thinks about this will agree, of the safety of the people about whom we must care most now. I refer to our own troops in the Gulf and, of course, to those innocent people in Iraq whom we do not want to become the innocent victims of war but who, sadly, as is always the case, inevitably do suffer in such circumstances. We do not want to make their position any worse.
Lord Elton: My Lords, will it, by contrast, be possible tomorrow to be rather more explicit about what Her Majesty's Government and the Government of the United States intend to happen when they have secured Iraq in the matter of re-establishing its coherent independence and the well-being of its people?
Baroness Symons of Vernham Dean: My Lords, I believe that we can be more explicit about that. I can already tell the noble Lord that we believe that the territorial integrity of Iraq must be maintained. We believe that the Iraqi people themselves, in consultation with the international community, should generate ideas for the future political arrangements in Iraq. We also expect a successor regime to be a significant improvement on the existing one in terms of good governance and in terms of respect for human rights as well as in terms of its willingness to comply with its international obligations. We also hope and believe that the United Nations must be at the centre of any transitional administration in Iraq. I believe that that is enormously important. I hope that that concentration on the United Nations will answer some of the doubts that I know many of your Lordships have about what might happen in a period immediately after a military conflict.
Lord Mackie of Benshie: My Lords, although I appreciate the views of those on our Front Bench when they refer to "us on these Benches", does the noble Baroness understand that I and a considerable number of other people agree with the Government and the

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Prime Minister and the actions they have taken? We wish him and the Government every success in the very difficult circumstance in which we are at the moment.
Baroness Symons of Vernham Dean: My Lords, I thank the noble Lord. That does not come as a surprise to me, because he has talked to me about the issues. What he says demonstrates that the issue cuts across all parties. The government party is not of one mind over it. I understand that those on the Conservative Benches are not of one mind, and it comes as no surprise that the Liberal Democrats are not all of one mind either. I simply hope to reiterate what the noble and gallant Lord said a few moments ago, which was that, if we sadly embark on military action, there will be no division among noble Lords in the support that goes out to our troops overseas.
Lord Burnham: My Lords, is it the intention that there will be a vote at the conclusion of tomorrow's debate in this House?
Baroness Symons of Vernham Dean: No, my Lords, there is no such intention.
Baroness Park of Monmouth: My Lords, does the noble Baroness agree that there has been ample demonstration so far this evening that there is a legal base for what we are about to do? In any case, we have troops sitting in the Gulf. The longer time passes, the more danger to their lives. This is becoming a serious issue which we cannot ignore. It has also rightly been said that many people inside Iraq long to be liberated. What we are doing is exactly what the UN ought to do.
The United Nations would be deeply discredited if we were not to take action and pursue the proper and right goal, which the Prime Minister and the President have initiated. Great patience has been displayed, almost too much, in order to defer to the tender consciences of many people whom I contend have not thought about the actual need of Iraq to be liberated.
Baroness Symons of Vernham Dean: My Lords, I agree that there is a legal base. It has been amply demonstrated by my noble and learned friend the Attorney-General. We know what it is right to do, not only legally but in respect of weapons of mass destruction.
The noble Baroness makes a very powerful point about many people in Iraq itself. Those people could not have a debate such as this. Only last week I read an appalling account of someone who had suggested that the best thing for Iraq might be to see the back of Saddam Hussein. That person died in a very public and horrible way. I am sure that many noble Lords will have read that account.
There are those in the region who also believe that action needs to be taken. I spoke with representatives of many of the Gulf states only a couple of weeks ago when I was in the Gulf. They made their views very clear. Of course they are not necessarily happy to do so
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very publicly, but I assure noble Lords that for many of them the removal of Saddam Hussein has become a matter of real urgency.
I am sure that our troops will acquit themselves well. We do not want them to tire in the Gulf, of course, but we had to do what we have done. The noble Baroness talked about tender consciences. It was right that we pursued every option as much as we did. The Prime Minister's judgment was right that we should have been seen to exhaust all the possibilities. We can only regret that consensus was put beyond our reach.
Lord Thomas of Gresford: My Lords, were the Government able to command a majority in the Security Council for the 18th resolution, regardless of the position of France? The burden of blame appears to be placed entirely on France. One wonders whether the Government were satisfied that all the other members of the Security Council were on board.
Baroness Symons of Vernham Dean: My Lords, I believe that that point was covered by my right honourable friend's Statement, which I repeated. But, for the sake of clarity, perhaps I may say it again.
"Given that, it was my belief" —
that is, my right honourable friend's belief, and he is a good and truthful man—
"that up to about a week ago, we were close to achieving the consensus that we sought on a further resolution".
The noble Lord can talk to my noble friend Lady Amos about her conclusions. She has visited the three states in Africa which are on the Security Council.
However, when the noble Lord implies that we were somehow unreasonable in what we said about Iraq, I am bound to say to him that the statement that there would be a veto on the resolution, whatever the circumstances, was very final. It was not that there would be a veto as the resolution stood or that we could talk about it but we might have to think about the use of the veto. It was an absolute statement that there would be a veto, whatever the circumstances. I am not entirely sure how the noble Lord can argue that that does not mean that the door was closed on negotiations.

Iraq: Legality of Armed Force
9.15 p.m.
Debate resumed.
Lord Lloyd of Berwick: My Lords, my first point is that the noble and learned Lord the Attorney-General does not seek to justify the use of force by the United Kingdom on the ground that Iraq presents an immediate threat to the United Kingdom and that we are therefore entitled to defend ourselves under Article 51 by a pre-emptive strike. Secondly, he does not seek to justify the use of force on the ground of an impending humanitarian catastrophe of the kind

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which was said by some to have justified our actions over Kosovo. Nowhere does he mention the word "genocide".
So far, I find myself in complete agreement with the noble and learned Lord the Attorney-General in what he does not say. It means that much of what has been urged in previous debates on Iraq in this House and in the press is no longer in point so far as concerns lawfulness. Surely we must now concentrate on the arguments on which the Government are presumably relying.
Therefore, instead of the wider arguments, many of which, I accept, involve difficult questions of international law, the noble and learned Lord the Attorney-General has, for reasons of his own which must seem good to him, confined himself to a single, fairly narrow point—that the use of force has been authorised by the United Nations. I say at once that I find that argument unconvincing and I hope to say why in a very few sentences.
When we went to war in 1990, we were authorised to use force in the clearest possible terms. Resolution 678 refers to "all necessary means", and we all know what that means. By contrast, nothing could be less clear than Resolution 1441. That must surely have been one of the reasons, if not the main reason—I accept that it may not have been the only one—that we have tried so hard to obtain a second resolution.
If Resolution 1441 was intended to provide the authority contained in Resolution 678, which now appears to be the main argument, why, I ask, does it not say so in express terms? Why does it refer instead to "serious consequences"? Any lawyer will tell you that if you use two different expressions in a single document or in a series of connected documents, they will be taken to mean two different things.
Therefore, why does Resolution 1441 refer only to "serious consequences"? I suggest that the answer is obvious. Resolution 1441 was a compromise. When I suggested that in the course of the debate last week, the noble Baroness, Lady Symons, was good enough—or, at any rate, was inclined—to agree that Resolution 1441 was a compromise. I refer noble Lords to col. 1144 of the Official Report of 10th March 2003. She went on to say that she believed that the countries which signed up to Resolution 1441 did not have much doubt as to what "serious consequences" meant. On that, with great respect, I beg to differ. If Resolution 1441 had authorised the use of force in the event of any further material breach, it is clear to me that it would never have been agreed; and the proof of that pudding is in the eating. The countries which would have opposed Resolution 1441 if it had contained any teeth are the very countries which have made it impossible now to secure the second resolution.
It is difficult for me to imagine that any of the countries which signed up to "serious consequences" thought that those words authorised use of force or in some way revived the previous authority to use force which had been contained back in 1990. There is a reason for saying that. The construction of Resolution
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1441 is itself inconsistent with any such argument. One has only to look at paragraph 12 which states that if there should be any further material breach the Security Council will meet again "to consider the situation". That hardly sounds like a call to arms. Yet the noble and learned Lord the Attorney-General says that in some way paragraph 12 supports his argument. I cannot see how. He says that it shows that the Security Council had already decided back in 1990 what to do in the event of a further breach. I regard that argument as quite unreal and it appears contrary to the understanding at the time of our own ambassador, Sir Jeremy Greenstock.
Resolution 678 authorised the use of force in the immediate aftermath of the invasion of Kuwait and its clear purpose was to compel Iraqi forces to withdraw. It is the only resolution which has ever referred to the use of force. It succeeded in its objective. I simply cannot read it, even by implication, as authorising the use of force 13 years later in the event of a failure by Iraq to disarm, especially when that earlier resolution is read in the light of Resolution 1441 which seems to negative any such implication.
The debate no longer involves any difficult questions of international law. It is simply a question of the meaning of ordinary English words contained in the two resolutions. With the great respect for the Attorney-General which one must have, I find it impossible as at present advised to accept his argument—although, like others, I hope very much that he will come to support his arguments in this House. I greatly regret reaching such an unpalatable view especially in the light of the powerful arguments advanced by my noble friend Lord Owen and repeated to some extent by the noble Lord, Lord Howell. The strict question before us at the moment is limited to the lawfulness in international law of what we propose to do and I have to express the position as I see it.
9.24 p.m.
Lord Desai: My Lords, the lawyers have spoken. We have heard eight lawyers during 13 speeches. My noble friend Lord Rea and I are not lawyers. When I read the Motion, I thought that we were going to discuss not Iraq but the general proposition about the obligations of the UK under international law. I went home with several books and worked hard over the weekend. I could have saved myself the bother. Everything I wanted to say has already been said much better than I could have said it.
From the debate tonight and having read the judgment of the Attorney-General—with which I concur—all I can say, in the words of a Foreign Office document from 1984, is that the subject under discussion,
"cannot be said to be unambiguously illegal".
That is about the most sound judgment I can come to and all I can say on the legal situation.
I make one point in connection with what was said by the right reverend Prelate the Bishop of Salisbury. He asked what kind of world we want to live in. He said we live in a global village. Do we not want the rule

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of law? Do we not want peace and security? But when people say that they live in a village, they must have in mind a very different village from that which I am used to. Their village must be modern; British suburbia with everyone driving into town in a Mercedes-Benz on roughly equal incomes, whereas I think of villages as theatres of conflict and division.
If I was living in a village and knew that domestic violence was taking place in a nearby household, would I say, "That is nothing to do with me. Existing law says we shall not interfere with family life"? Or would I say that all decent people ought to intervene in such a situation if we want a decent world? As I have said before, I am not worried whether or not Saddam has weapons of mass destruction and threatens us. I have always been more worried that he threatens his own people.
In international law aggression can only be committed by one country against another. In international law a country cannot commit aggression against its own people. The whole international law is based on a notion of sovereignty of the state, which I find offensive if not immoral. Many crimes are being committed every day, not just in Iraq, Iran or China, but by governments of countries which are supposed to be legally sovereign. They can do whatever they like to their own people and all we are supposed to say is, "But the law says you cannot do that".
United Nations Article 2(4) does not allow the use of force unless it is self-defence or collective defence. Thankfully the world has ignored that kind of injunction and gone on happily—or unhappily as the case may be—to make a number of interventions whether or not the United Nations allows it. When India intervened in East Pakistan in 1971 to prevent what West Pakistan was doing to the people of Bangladesh, its actions were illegal. The General Assembly condemned India for that. I say, "Tough". It was the right thing to do. We have seen a number of other acts like that, Kosovo being the most recent one. We also went into Sierra Leone.
I ask myself whether I want the ideal law as it is enshrined in a hook, or can I reduce human misery by an act of aggression, which may be illegal but may be just? There is law and there is justice, and I am not sure that they always agree with each other—of course, I speak as a non-lawyer.
We place the United Nations on a big pedestal as if this was an ideal world. It is the only thing we have, but we had better cast a cold, critical look at what the United Nations has done. Way back in 1970—I have to show off all the hard work I have done—in the American Journal of International Law, an article entitled, "Who killed Article 2(4)?" stated:
"The practice of these states has so severely shattered [mutual confidence in] … the precepts of Article 2(4),
which prohibits the use of force,
"that … only the words remain. In the twenty-five years since the San Francisco Conference, there have been some one hundred separate outbreaks of hostilities between the states".
That was in 1970.
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In a sense, if anything Kosovo more or less put an end to any pretence. It is rather like prohibition in Pakistan. You cannot drink if you are an ordinary citizen, but if you go to the house of a Minister you can always get a good drink. There is the law, and I here is compliance with the law, and those who can get away with it do not comply with it.
We must stop pretending that the United Nations works as we think it should. We must replace what we would like the world to be with how the world is. A charter which forbids something and which has been seriously violated over the past 58 years must have something wrong with it. A number of times when it has been violated the results have been good. I ask why that is the case.
When we went into Kosovo, in the words of Javier Solana in the European Council statement of 25th March 1999, the justification was:
"It cannot be permitted that in the middle of Europe the predominant population of Kosovo is collectively deprived of its rights and subjected to grave human rights abuses".
If it cannot be permitted in the middle of Europe, why can it be permitted in the Middle East? Are they not the same as us? In the words of the right reverend Prelate the Bishop of Salisbury, are 'we not in the same village? If we are, it is our duty to act.
9.32 p.m.
Lord Rea: My Lords, in the run up to this debate I had done a considerable amount of homework on the legal issues surrounding SCR 1441 and whether it alone or together with previous resolutions constituted a legal case to launch military action. But, coming last, all my points have been made very well by a galaxy of legal talent. Suffice it to say that by my count the balance of legal opinion expressed tonight in your Lordships' House believes by a score of six to two that there is not an adequate legal basis for the military action that now seems inevitable. Therefore, they do not agree with the opinion of the Attorney-Generah who has found himself with a rather difficult brief.
Several noble Lords have pointed out that Kofi Annan, the Secretary-General of the UN, has made it clear that to launch military action without a further resolution would be outside the terms of the UN charter. We should remember that the USA and the UK were both instrumental in drawing up that charter in 1945. Unfortunately, the decision taken in the Azores yesterday means that we are almost certainly going to war without a further resolution. That will be because of the unilateral decision of the present US administration to attack now rather than wait for the few further months that Hans Blix says he needs to complete his work. The military build up of the past few months has gathered its own momentum, seemingly as if discussions at the Security Council were not taking place at the same time. In the Security Council the USA has used every critical word from Hans Blix about any Iraqi reluctance to co-operate as a justification to use force urgently to disarm Iraq and has not seemed to hear his words reporting considerable progress and increasing co-operation.

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Prodigious efforts by Sir Jeremy Greenstock, by the Prime Minister, by the Foreign Secretary and by my noble friend Lady Amos to persuade or to entice other members of the Security Council to support the second resolution giving the go ahead for early military action have failed. Those nations do not perceive any Iraqi threat as imminent or dangerous—if they see a threat at all—and wish to allow more time for the inspectors. The arrogance of the current US administration in pushing ahead regardless is breathtaking.
It has been a tragic mistake to nail our colours so firmly to the US mast, as quite apart from failing to avert what will be a very destructive war, our reputation as an upholder of international law is likely from now on to be tarnished. It is just possible that if at an early stage we had withheld our military support from the Americans, as we did in the Vietnam War, they might have thought twice about going alone. But even if war had still occurred we would have earned an enhanced international reputation for dissociating ourselves from what many feel is an illegal act. Whether the UN can rescue any continuing credibility after this fiasco is doubtful. But that may not matter to the Americans who in any case treat the UN with disdain, despite its building forming a prominent part of the New York skyline.
I think it is very sad that the Prime Minister did not listen to some older and wiser advisers, let alone the opinion of his own people, before committing the UK to following the current American agenda so closely. I am thinking here of some very distinguished and senior people indeed, who sit in your Lordships' House such as the noble and gallant Lord. Lord Bramall, former chief of the defence staff, the noble Lord, Lord Hurd of Westwell, distinguished former Foreign Secretary or the noble Lord, Lord Wright of Richmond, former head of the Foreign Office. All of them and many others of great eminence have spoken or written warning of the dangers ahead. The noble Lord, Lord Hurd, wrote in Friday's Evening Standard, suitably diplomatically of course:
"On balance I believe that a pre-emptive war against Iraq would be wrong and in the long term unwise".
I repeat that he said it would be wrong and in the long term unwise. He added:
"But once British forces are in action the position changes for me … At that point people like me shut up and hope that our fears were misguided. Two days ago I lit a candle for peace in Durham Cathedral. It seemed that afternoon the most sensible thing to do".
I am afraid that I cannot follow the noble Lord and shut up, although I shall not criticise the Armed Forces. They have been given a dangerous job to do and I am sure that as always they will do it efficiently and as humanely as any military operation can be done. My main concern has been and will continue to be that the humanitarian operation that follows the fighting will be carried out equally efficiently; the Iraqi people have already suffered enough, from past wars, from sanctions and from Saddam Hussein's regime. But that is for another debate on another day.
9.38 p.m.
Lord Wallace of Saltaire: My Lords, we shall return to this subject tomorrow so noble Lords will view this debate as part of moving from a discussion of what needs to be done to a discussion of the context in which action is now to be taken. The noble Lord, Lord Owen, who I am sorry to see is not in his place, said powerfully at the beginning of his speech that ideally there should be no doubt as to the legality and the legitimacy of the action that British troops are called upon to take. He made the powerful comparison with Suez, which for many noble Lords was the beginning of their political engagement. We are now going to war. Sadly, doubt remains about the legality and the legitimacy of the action.
A great many respectable, honest lawyers, politicians and informed members of the public remain unconvinced. Our Prime Minister has spoken of the importance "of a firm legal basis" for action. President Bush has spoken of the importance of carrying the international community with us. Neither of those have been carried. Their support has not been won. At the brink of war our arguments have to stop. We have to hope for the most rapid and happy conclusion of the conflict. We recognise the viciousness of the Iraqi regime, and the desirability not only of its disarmament, but of a change of regime for the benefit of its people.
We recognise that the United Nations Security Council has been seized of this issue for nearly 13 years. However, we also recognise that a doctrine of permissible regime change is a radical departure from international law, on which the international community is not yet agreed. A campaign to democratise the entire Middle East, which is part of the underlying rationale for American action, is not one which even the democratic world as a whole, let alone non-democratic states, are yet persuaded to support. Why then have the majority of the UN Security Council, and the majority of international lawyers, remained unpersuaded?
As several participants in this debate have said, Resolution 1441 was unanimous. However, as the noble and learned Lord, Lord Lloyd of Berwick, remarked, it was achieved by compromise and by requiring a report back to the Security Council. There was very careful drafting. The commitment was to inspections. The resolution established an inspection regime with the threat of force behind it, which is now under way. Those inspections have not yet been completed, and nor have they failed. The inspectors have not reported back to the Security Council that they have definitively failed. They have been proceeding with relative, though not yet complete, success.
The attempts to resurrect Resolution 678 from before the last Gulf War, cannot obscure that. Resolution 1441 superseded 678, 687 and the many others. We all share a common commitment to the importance of the structure of international law and its institutions, which has managed to civilise the international society of states. It is the legacy of efforts by Dutch, Swiss, British, French

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and American lawyers, politicians and diplomats over the past 150 years. As I teach international institutions, I recognise the particular importance of the American contribution to this construction. That included, above all, President Franklin D. Roosevelt's immense contribution in the last years of the last war and, in the end, America's sponsorship and design of the United Nations and the other agencies of the UN family.
The UN remains an imperfect body. It is still a very fragile body. Nevertheless, around that has been built a complex fabric of international law and international conventions. Our shared aim must be to strengthen this fragile construction, and to weave more threads into the fabric, not to weaken or to tear it. We must not damage what has been woven together so far. I am persuaded that the Government intend to strengthen it. Sadly, I am not persuaded that the current US Administration shares that objective.
That is partly why we have ended up in the situation that we are now in. We have an Administration which, before they had won the election, were talking about reducing American observance of the structure of international law and conventions; an Administration which, when they came into power, withdrew from several international conventions—including agreements on arms control—and refused to accept several more; we have an Administration which, since September 11th, have breached the Geneva convention on the treatment of prisoners in a number of ways. There is the extraordinary legal limbo of Guantanamo Bay; we heard yet again last week a series of well-sourced allegations in the American press of the mistreatment and torture of prisoners at Bagram; and I remind the Minister of the repetition in the reports in the American press last week that that is also taking place on British territory in Diego Garcia.
There are deeply divided counsels within the US Administration. Again this is a part of the problem as we face the situation we are now in. We have the most bitterly divided US Administration as our partner, with some senior officials dismissing the UN, NATO and international law as such. Calls on the United Nations to "face up to its responsibilities" as the US alone defines those responsibilities are not helpful. I regret that our Foreign Secretary, Jack Straw, has repeated that statement, that demand, in those exact terms.
The US Administration have slipped in terms of their rationale from disarmament to regime change, sliding from a war on terrorism to a very different war on Iraq; sliding from a war on Iraq itself to the objective of remaking the entire Middle East within an American-led framework; and responding very differently to the far more imminent threat from North Korea.
The legality of the conflict must come under Article 42 of the UN Charter and not under Article 51. There is no imminent threat from Iraq to either the United States or Britain which justifies our action. There is a potential threat to Iraq's neighbours, even to Israel, but not to us— unless one accepts the accusation of Paul Wolfowitz and others that the war on Iraq is exactly the same as the war on terrorism, and we have no evidence that that is so.
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Article 42 seeks,
"to maintain and restore international peace and securaty".
So, for that, we need a regional approach clearly under multilateral auspices with the support of other states within the region—unless Her Majesty's Government were to accept the view of the neo-conservative right in the United States that the whole of the Middle East, except Israel, is corrupt and needs to be reshaped, with most of its regimes overthrown. That suggests that we are going to change the regimes of some 10 to 20 member states of the United Nations.
Kofi Annan said very clearly that,
"If the United States and others were to go outside the Security Council and take unilateral action they would not be in conformity with the charter".
I agree with the noble Lord, Lord Desai, that sometimes it may be necessary for states to act outside the charter when they are persuaded, as the Indians were in what is now Bangladesh, that their actions are justified even though the rest of the world does not wish to pay attention to what is happening locally. The question for us is whether this action is justified and whether or not the rest of the world is prepared to take its responsibilities seriously.
As we have heard, international law is an imperfect instrument and the UN has many flaws, but legality and legitimacy matter. We are now committed to the conflict, unfortunately without a consensus and without persuading the international community. So we have to underline, first, the importance of international law in the conflict, as my noble friend Lord Lester said, proportionate force, care of civilians and proper treatment of prisoners. Secondly, we have to underline the UN framework for post-war reconstruction and for regional settlement, and, lastly. an emphasis on strengthening international law and institutions—regionally the EU, and globally the UN.
9.50 p.m.
Lord Howell of Guildford: My Lords, I agree with the noble Lord, Lord Goodhart, who proposed this Motion, on one thing at least. It is embodied in the question: where is the Attorney-General? We admire him and are rather proud that he is a Member of your Lordships' House. On such an occasion as this, I would have hoped that he would be able to join us. We know that he is a vastly able person, and fully able—I am sure—to prevent having wormed out of him any properly confidential advice that he has given to the Government. But it is a disappointment. I said that earlier and I say it again.
As to the debate itself, it is customary in all debates to say how timely they are. But, as I hinted in an earlier response to the Statement, the timeliness of this debate does not overwhelm me at all. It seems rather pointless at this late stage to go on questioning legality. It just prolongs arguments which ought to have been closed, at the very moment when our troops are standing by for action in difficult circumstances in the desert. Anyway we know—and all the distinguished lawyers who have spoken know—that all these arguments will

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always be challengeable and open to question. There will always be legal experts ready to question whatever conclusion is reached.
So, despite what the noble Lord, Lord Owen, was saying about how he hoped the message would go out from this debate, my fear is that the message—if anything at all leaks out of this debate from your Lordships' House, which is not usual—will be thoroughly confusing and not particularly helpful to the position that we have reached and which we have to resolve with determination and, one hopes, with some national unity.
I am very much at one with the noble Baroness, Lady Ramsay of Cartvale, that if there is one clear rule of international law, it is that international lawyers always disagree. Even this evening, the party of the noble Lord, Lord Goodhart, the Liberal Democrats, seemed to disagree with each other. We have heard one comment of dissent. The noble Baroness rightly said that all our parties have dissenters in them on this very complex issue. But here was the eminently sensible Menzies Campbell MP—an old acquaintance whom I much admire—clearly stating back in September, that,
"legally, no resolution is required for the use of force to implement resolution 687".
Yet, the noble Lord, Lord Goodhart, this evening said the exact opposite. I must confess that the whole position of the Liberal Democrats on this issue is bewildering. They say that action will be illegal but they say they will support the troops who presumably they regard as fighting illegally. I do not understand how those two positions can be held at once. Perhaps on second thoughts I do because the confusion is forgivable. Why? It is forgivable because we are operating in wholly new and unfamiliar circumstances, as the noble Lord, Lord Hannay, argued with great authority, which he certainly possesses.
As the US national security strategy pointed out last November, while there is nothing new about the legitimacy of pre-emptive strikes—those have been argued for by scholars, theologians and others down the ages—the concept has always been associated in the past with the other concept of "imminent threat". What now has to be adapted is that latter concept in the age of global terrorism, where the whole idea of imminent threat being armies massed to attack is displaced by far more amorphous, diaphanous and difficult threats which have to be analysed and foreseen rather than patiently waited for until they inflict murder and mayhem, as happened in September a year ago in New York. I can understand why some lawyers are confused because they have not yet perceived that the world is an entirely changed place and that the nature of "imminent threats" has changed as well.
On the narrower issue of the legality of intervention in Iraq, the basic contention that disarmament by force is legal seems irrefutable. We have heard from the Attorney-General and from US legal authorities. I took the trouble to consult over the weekend and my
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suspicions were fully confirmed. They were extremely strong in their argument. We have heard from numerous legal experts on both sides of the Atlantic.
All agree that Articles 51 and 42—which say that the UN may take such action by air, sea and land forces as may be necessary to restore international peace and security—the reinforcement given by the phrase "all necessary means" in Resolution 678 that we have all quoted at each other this evening; and the combination of Resolutions 678 and 687 and a string of further resolutions leading to Resolution 1441 establish beyond doubt the legal nature of any intervention.
The noble Lord, Lord Goodhart, gave his own criteria in a clear and telling speech the other night. As well as the universal acceptance of the doctrine of humanitarian war—which is new to the global scene—they seem to underpin the same view. The well-documented genocide of the Marsh Arabs is a cut-and-dried case. Genocide has been committed. Humanitarian intervention is the custom of the age. To me, that is the end of the matter.
The interventions in the 1990s, when President Clinton was in office and cruise missiles rained down on Iraq, was fully justified and supported by the resolutions that are now being called upon. The noble Lord, Lord Grabiner, is so right when he says that one must consider the full context, not just the narrow niceties—although I can see that great legal minds focus on such matters.
The real issue is no longer legality. Although that is important, that argument is either over or will never be decided and will go on for ever. The issue is the nature of the threat. Does one believe, as I certainly do, that ahead there is a crossroads, a fatal rendezvous, where fanaticism and weapons of mass destruction will meet—and where not only our interests in the Middle East region but here on UK soil could and would be directly assaulted?
The noble Lord, Lord Wallace of Saltaire, who is an enormous authority on international affairs, dismissed that point, as many of his colleagues have done again and again. But those who have to take political decisions and lead nations are not in a position to dismiss those questions. Professor Christopher Greenwood, a professor of law whose views have already been mentioned, recently told the Foreign Affairs Select Committee in another place that the gravity of a threat must be taken into account—that is, the nature of nuclear or biological attack and the methods of delivery, which these days might be completely clandestine. He wisely added that the judgment of whether such a threat exists lies with governments, not lawyers.
If war is illegal, as the noble Lord, Lord Goodhart, and his colleagues seem to imply, what is the attitude of the International Criminal Court'? The noble Lord, Lord Lester of Herne Hill, made his usual perceptive comments about the conduct of the war. If it is believed that the war will be illegal, will actions taken during that war by leaders or the rank and file become war crimes? Incidentally, I understand that ICC crimes have been adjusted. I learnt that only by chance. The

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crime of aggression has had its jurisdiction deferred while lawyers try to define what it means. If that is correct, we should know a little more about it; in fact we should be told about it.
There remain a long list of war crimes on the statute hook. Is it proposed that our soldiers be judged against those? Are those issues on which it would have been helpful for the Attorney-General to disentangle the complex questions involved?
Diplomacy has failed, in this instance, as has the UN process. As I said, the will to enforce the resolutions is not present. That is deeply regrettable, and the situation could have been better handled. I am tempted to agree with the observations of my noble and learned friend Lord Howe of Aberavon that there was a danger in calling the situation a war, when in fact it is a disarming and cleaning-up operation—a determination to free the world from a poisonous virus that has been polluting the whole Middle East—and that that would have been a better description and might have led to lower and more realistic expectations.
Tomorrow we will debate the whole issue and will also debate how, despite the errors and blunders, a new and better foundation for European advance and transatlantic relations can be built on all the divisions and tensions.
Meanwhile, as I said, France has pulled the plug on the United Nations. A second resolution is impossible, so there is plainly a right to go ahead without what is unattainable. The right to go ahead remains, and the exercise of that right is a matter for political decision, not for lawyers. I agree with Professor Greenwood about that. The decision that has now been made is wise, lawful and opens a better chance of peace in a hideously dangerous world.
10.1 p.m.
Baroness Symons of Vernham Dean: My Lords, I, too, thank the noble Lord, Lord Goodhart, for initiating this debate and thank all your Lordships for your manner of participation in our debate.
Last Thursday, in answering a Question posed by the noble Lord, Lord Roberts of Conwy, I reminded your Lordships that, by long-standing convention, followed by successive governments and reflected in the ministerial code, legal advice to the Government remains confidential. That convention is confirmed in page 389 of Erskine May.
I am sorry that the noble Lords, Lord Goodhart and Lord Howell, were somewhat niggardly in their approbation of my noble and learned friend's statement. The Attorney-General has been more open-handed than any of his predecessors in publishing his advice in the way that he has. Furthermore, my right honourable friend the Foreign Secretary has also tried to help your Lordships by circulating a further paper.
In recognition of the enormous importance of this issue, my noble and learned friend has decided to disclose his view of the legal basis for the use of military force. As I said, that is almost unprecedented. The last time that a Law Officer's views were disclosed
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concerned the Maastricht Treaty in 1992. It is right that what has happened today remains the exception rather than the rule.
Many shades of opinion have been expressed this evening both among noble Lords who are lawyers and those of us who are not. I remind my noble friend Lord Rea that although my noble and learned friend may take a different view from several of your Lordships, he has had access to all the relevant documents. That fact must be borne in mind.
My noble friend Lady Ramsay of Cartvale explained that she is not a lawyer. Nor am I, but the position before us is relatively clear and the basis of our legal view is fairly plain and straightforward.
The legal basis for any military action that might be taken against Iraq would be the authorisation which the Security Council, by its Resolution 678, in 1990, gave to member states to use all necessary means restore international peace and security in the area. That authorisation was suspended, but it was not terminated by Security Council Resolution 687 in 1991. It has been revived on previous occasions and UNSCR 1441 revived it again.
In UNSCR 1441 the Security Council determined, first, that Iraq's possession of weapons of mass destruction constitutes a threat to international peace and security; secondly, that Iraq has failed in clear violation of its legal obligation to disarm; and, thirdly, that in consequence, Iraq is in material breach of the conditions for the ceasefire laid down by the Council in UNSCR 687 at the end of the hostilities in 1991.
I shall reiterate some of the detail of the argument. As my noble friend Lord Grabiner said, it is a question of the full context of what has happened since Resolution 660 which we should take into account. As the noble Lord, Lord Goodhart, pointed out, chapter 7 of the United Nations Charter gives the Security Council the power to authorise states to take such military action as may be necessary to maintain or restore international peace and security. In the case of Iraq, the Security Council took such a step following the Iraqi invasion of Kuwait. Paragraph 2 of SCR 678 authorised,
"Member states co-operating with the Government of Kuwait … to use all necessary means to uphold and implement Resolution 660 and all subsequent relevant resolutions and to restore international peace and security in the area".
The phrase "all necessary means" was understood then, as it is now, to include the use of force. Following the liberation of Kuwait, the Security Council adopted UNSCR 687. That resolution set out the steps that the council required Iraq to take in order to restore international peace and security in the area. Iraq's acceptance of those requirements was the condition for the declaration of a formal ceasefire. Those steps included the destruction of all WMD under international supervision and the requirement that Iraq should not attempt to acquire such weapons or the means of their manufacture. As a means to achieving the disarmament required by the Security

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Council, UNSCR 687 also required Iraq to submit to extensive weapons inspection by UNSCOM, now UNMOVIC, and the IAEA. The Security Council was quite clear that those steps were essential for the restoration of international peace and security in the area.
I agree with the noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Owen, that UNSCR 687 did not repeal the authorisation to use force in paragraph 2 of SCR 678. On the contrary, it confirmed that SCR 678 remained in force. The authorisation was suspended for so long as Iraq complied with the conditions of the ceasefire, but the authorisation could be revived if the council determined that Iraq was acting in material breach of the requirements of SCR 687.
This is an important point. SCR 687 suspended but did not terminate the authorisation. The formality of acceptance of the terms was not sufficient. Iraq was and is required to comply with those terms. I make that point strongly for the noble Lord, Lord Thomas of Gresford, as well as for the noble and learned Lord, Lord Lloyd of Berwick.
Although almost 12 years have elapsed since SCR 687 was adopted, Iraq has never taken the steps required of it by the council. Throughout that period the council has repeatedly condemned Iraq for violations of SCR 687 and has adopted numerous resolutions on the subject. In 1993 and again in 1998 the coalition took military action under the revived authority of SCR 678 to deal with the threat to international peace and security posed by those violations.
The right reverend Prelate the Bishop of Salisbury was right to say that I would say something about 12 years being a long time. Indeed, 12 years is a long time for Iraq to comply. More particularly, I say to the right reverend Prelate that 17 resolutions is a great number for Iraq to have failed to comply with.
In relation to the action in 1993 the Minister of State at the Foreign and Commonwealth Office, Douglas Hogg, wrote:
"The Security Council determined in its statements of 8 and 11 January that Iraq was in material breach of resolution 687 and its related resolutions, and warned Iraq that serious consequences would ensue from continued failure to comply with its obligations. Resolution 687 lays down the terms for the formal ceasefire between the coalition states and Iraq at the end of hostilities mandated by the Security Council in resolution 678. These terms are binding in themselves but also have been specifically accepted by Iraq as a condition—
the point made by the noble and learned Lord, Lord Mayhew—
"for the formal ceasefire to come into effect. In the light of Iraq's continued breaches of Security Council resolution 687 and thus of the ceasefire terms, and the repeated warnings given by the Security Council and members of the coalition, their forces were entitled to take necessary and proportionate action in order to ensure that Iraq complies with those terms".
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Again, on 14th January 1993 in relation to UK and US military action of the previous day, the then UN Secretary-General, Dr Boutros Ghali, said:
"The raid yesterday, and the forces which carried out the raid, have received a mandate from the Security Council, according to resolution 678, and the cause of the raid was the violation by Iraq of resolution 687 concerning the ceasefire. So, as the Secretary-General of the United Nations, I can say that this action was taken and conforms to the resolution of the Security Council and conforms to the Charter of the United Nations".
This is not a new point. Indeed, we reiterated it fairly recently. I remind my noble and learned friend Lord Archer that in relation to the military action taken in 1998 I said, I believe from this same Dispatch Box, that any action involving UK forces would be based on international law. That is our position today.
The charter of the United Nations allows for the use of force under the authority of the Security Council. The Security Council resolution adopted before the Gulf conflict authorised the use of force in order to restore international peace and security in the region. Iraq is in clear breach of Security Council Resolution 687, which laid down the conditions for the ceasefire at the end of the conflict. Those conditions included a requirement on Iraq to eliminate its weapons of mass destruction under international supervision. These conditions have been broken. It is the same argument—it goes back to Resolutions 678 and 687, but now it is reinforced by Security Council Resolution 1441.
It is against that legal background that the United Kingdom and the United States brought to the council the draft resolution which was eventually adopted unanimously as SCR 1441 on 8th November. I remind the noble Lord, Lord Thomas of Gresford, the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Wallace of Saltaire, that the preamble to that resolution again expressly referred to SCR 678, confirming once more that that resolution was still in force. It also recognised the threat that Iraq's non-compliance with the council resolutions posed to international peace and security; and it recalled that SCR 687 imposed obligations on Iraq as a necessary step for the achievement of its objective of restoring international peace and security. I say to the noble and learned Lord, Lord Lloyd of Berwick, that in paragraph 1 the council went on to decide that Iraq,
"has been and remains in material breach"
of its obligations under SCR 687 and other relevant resolutions.
On this occasion, the council decided, in paragraph 2, to offer Iraq,
"a final opportunity to comply with its disarmament obligations".
Iraq was required to produce an accurate, full and complete declaration—all those words are important; "accurate, full and complete"—of all aspects of its prohibited programmes, and to provide immediate and unrestricted access to UNMOVIC and the IAEA. Failure by Iraq to comply with the requirements of SCR 1441 was declared to be a further material breach of Iraq's obligations, in addition to the continuing breach already identified in paragraph 1.

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In the event of a further breach, or interference by Iraq with the inspectors, or failure to comply with any of the disarmament obligations under any of the relevant resolutions, the matter was to be reported to the Security Council. The Security Council was then to convene,
"to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security".
That appears in paragraph 12. In paragraph 13, the council warned Iraq that,
"it will face serious consequences as a result of its continued violations of its obligations".
UNSCR 1441 did not require a further decision by the Security Council to be taken. SCR 1441 afforded Iraq a final opportunity to comply and provided for any failure by Iraq to be "considered" by the Security Council under paragraph 12. That consideration has taken place regularly since the adoption of 1441. It is plain from UNMOVIC statements to the Security Council, its 12th quarterly report and the so-called "clusters document". that Iraq has not complied, as required, with its disarmament obligations. Whatever other differences there may be on the Security Council, no member of the council has questioned that conclusion. It follows that Iraq has not taken the final opportunity offered, and remains in material breach of the disarmament obligations which, for 12 weary years, the council has insisted are essential for the restoration of peace and security. In these circumstances, the authorisation to use force contained in SCR 678 revives.
The noble Lords, Lord Goodhart and Lord Thomas of Gresford, spoke about automaticity and hidden triggers. The US and the UK made it clear that there were no hidden triggers or automaticity because everyone in the council understood the consequences of a finding of material breach and everyone agreed that there would be a further council discussion before force was used. The statements by the UK and the USA at the time made that clear.
Mr Negroponte, the American Ambassador to the UN, said on 8th November that if the Security Council failed to act decisively in the event of further Iraqi violation, the resolution did not constrain any member state from acting to defend itself against the threat posed by Iraq or to enforce the relevant UN resolutions and protect world peace and security. Our own ambassador, Sir Jeremy Greenstock, said at the same meeting that there was no automaticity in the resolution. He said that if there was a further Iraqi breach of its disarmament obligations, the matter would return to the council for discussion as required by OP 12. That is the point—that is what has been happening, and it has been happening for four months.
The noble Lords, Lord Brennan and Lord Wallace of Saltaire, spoke about the Secretary-General. The UN Secretary-General stated that if action were to be taken without the authority of the council, it would not be in conformity with the charter. Our position is that as the council has authorised military action through UNSCR 678 and subsequent resolutions, such action is in accordance with the authority and would therefore be in conformity with the charter.
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The noble Earl, Lord Sandwich. talked about the strong concerns of the NGOs. I agree that there are real concerns about the humanitarian issues. Her Majesty's Government's policy is clear that an immediate priority is to continue to support humanitarian efforts to relieve the suffering of the Iraqi people. We in the United Nations system are planning for a range of humanitarian contingency matters. Our planning includes the MoD and DfID We are in contact with the United States and with a range of United Nations humanitarian agencies. We are all making detailed contingency plans.
The noble and learned Lord, Lord Lloyd of Berwick, made much of UNSCR 1441 being a compromise. So are most treaties and most legislation, but words still mean what they say, even in a compromise. There is nothing wrong with a good compromise, provided that it does the job it needs to do, and UNSCR 1441 certainly did.
The noble Lord, Lord Lester of Herne Hill, raised a number of points about international humanitarian law. I am still being advised by the FCO on these matters. As an FCO Minister and, even more particularly when I was an MoD Minister, I cannot recall a time when these matters were not thoroughly, painstakingly, almost agonisingly discussed, as they should be. I assure the noble Lord that these extremely complex questions are gone into in great detail when all the stages of any military action are engaged upon. I shall write to the noble Lord and make sure that a copy of the letter goes into the Library of the House. I assure him that, as always, whatever we do will be in compliance with international law.
Lord Lester of Herne Hill: My Lords. I am grateful to the Minister for giving way. In the light of what the Cabinet Secretary said to a committee in another place, will the Government give the Armed Forces and civil servants very clear guidance about their obligations under humanitarian law? Will she confirm that there are effective remedies in English and American law if they breach those obligations'?
Baroness Symons of Vernham Dean: My Lords, of course; we always do when we are in these difficult situations. I have no reason to think that this particular armed conflict, if, sadly, it must come, will be any different.
The Government have said since the start of this process—as we did during similar processes leading to military action in 1998—that we shall always act in accordance with international law. I hope that I have been able to set out the basis for international law as regards the action that may follow Iraq's failure to comply. We still hope that Saddam will take a decision open to him even now to disarm voluntarily but I am bound to say that that hope is dwindling fast, as many of your Lordships indicated this evening.
As my right honourable friend's Statement made clear, tomorrow the House of Commons will be asked to endorse the UK's participation in military operations and it will be asked to do so with the objective of ensuring the disarmament of Iraq's weapons of mass destruction and thereby the

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maintenance of the authority of the United Nations. As part of the same village, as my noble friend Lord Desai put it, these issues are of enormous importance not just in Iraq and the region but right the way across the world. In many ways I agree with many of the sentiments expressed by the noble Lord, Lord Howell of Guildford.
I am sure that all your Lordships join me in sending the strongest possible message of support to our Armed Forces already in the Gulf and to those who will join them shortly. I am sure that, although we do not take any relish in the debate that we shall have tomorrow, we shall approach it in the same serious frame of mind as we approached the very interesting debate initiated by the noble Lord, Lord Goodhart, this evening.
10.21 p.m.
Lord Goodhart: My Lords, I thank all noble Lords who took part in this difficult and rather unhappy debate. We have seen tonight a deeply divided House. There have been powerful speeches in support of the Government by, among others, the noble and learned Lord, Lord Mayhew of Twysden, who was the Attorney-General at the time of the first Gulf War, the noble Lord, Lord Hannay of Chiswick, who was our ambassador to the United Nations at the time of the first Gulf War, and the noble Lord, Lord Owen, who is a former Foreign Secretary.
There have also been powerful speeches the other way, not only from my noble friends but also from a former Law Lord, the noble and learned Lord, Lord Lloyd of Berwick, and from two distinguished lawyers on the Labour Benches, the noble and learned Lord, Lord Archer of Sandwell, a former Law Officer, and the noble Lord, Lord Brennan, a former chairman of the Bar Council.
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I should like to make a special mention of the right reverend Prelate the Bishop of Salisbury, who for a few minutes raised our thoughts away from the narrow details of the text of resolutions of the United Nations and up to a higher level.
It is not appropriate for me at this stage to make a speech in reply. However, I should like to make one comment; that is, that the arguments of the noble and learned Lord the Attorney-General and of those who supported him in this debate are that ever since Resolution 678 in 1990 there has been a right for the USA or, indeed, any other member state, to launch an attack on Iraq up to the level of full-scale war without any further approval by the Security Council at any time when Iraq has been in serious breach of Resolutions 678 or 687. That, I have to say, in my view stretches the interpretation of Resolution 678 far beyond the breaking point. It might have been wiser to be more frank and simply to adopt the view of the noble Lord, Lord Desai, that what is illegal may also be just—not an argument which I accept in this case but one which seems to me to be seriously arguable.
We now therefore move to war. I say in response to the noble Lord, Lord Howell, that I see no inconsistency between our stating our views frankly while we are still at peace and recognising that, once war begins, that debate should cease, as it will as far as we are concerned. I join entirely with the noble Baroness, Lady Symons, in sending messages of support to our troops in the Iraq theatre. On this sombre evening, we must hope that the war is quick and that casualties among military and civilians on our side and the other are as low as possible. I beg leave to withdraw the Motion for Papers.
Motion for Papers, by leave, withdrawn.
Northern Ireland Assembly Elections Bill
Brought from the Commons; read a first time. and to be printed.
House adjourned at twenty-six minutes past ten o'clock.