Lords Sitting of 21 May 2003

Preamble
The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Hereford.

Music Standards Fund
2.36 p.m.
Lord Lloyd-Webberasked Her Majesty's Government:
Whether the funds from the Standards Fund For Music are being administered for the purposes for which they were intended.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, the Music Standards Fund was set up to protect and expand the local education authority music service provision. The Government are putting nearly £60 million per annum into their Music Standards Fund, which can be spent in any way to increase opportunities for pupils to access music education of a high quality.
In June 2002, Ofsted reported that the fund had been "well used" by music services which had,
"responded quickly to opportunities to expand and protect their work"
Lord Lloyd-Webber: My Lords, I am grateful to the Minister for her response. But is she aware that the situation as outlined is far from satisfactory, partly due to the very wide remit of the Music Standards Fund? The fund was indeed created to protect and expand existing local authority music services that employ teachers who provide instrumental music lessons in schools, not to replace them. However, we have seen many local authorities using their allocation from the Music Standards Fund to do exactly that. As there is no statutory obligation to maintain their contributions, the LEAs inevitably reduce or remove these in order to make savings.
Noble Lords: Question!
Lord Lloyd-Webber: My Lords, my question was: is the Minister aware of this? As a specific example, in the five years since the introduction of the standards fund, the Berkshire Young Musicians Trust has seen its total funding reduced by £200,000. The trust is now totally dependent on the Education Department's Music Standards Fund. The service is clearly in danger of going into reverse. Will the Minister look again at this issue? Is there not some way of looking again at the requirements for providing musical instrument tuition in schools and of considering how to press local
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authorities with regard to their contributions to ensure that this aspect of music education is given its proper place within the curriculum?
Baroness Ashton of Upholland: My Lords, I am grateful to the noble Lord, who has the widest experience and expertise on this subject in your Lordships' House. I have some points to make in response to his Question. First, we have performance indicators for the music service, which we have developed in the past year. We are looking at the issues of access, breadth, quality and wider opportunities, particularly at key stage 2 for seven to 11 year-olds—critical years, I would argue, in terms of developing that experience.
Secondly, about 253,000 pupils at key stage 2—about 10 per cent—receive regular instrumental lessons; more than 92,000 attend music service ensembles; and 18,500 schools—83 per cent—receive music support. I agree with the noble Lord that this is not perfect, but I believe that we have good services to build on. We are specifically looking at the issue of musical instruments, the point the noble Lord raised. We are looking in 12 areas at wider opportunities, making provision for 100 advanced music school teachers and carrying out a survey of the services that are available between different local authorities so we have a baseline upon which to develop.
Baroness Warnock: My Lords, is the Minister aware that in the past 30 or 40 years we have gone back a very long way in the provision of advanced instrumental teaching for children at school? There was a time when there was an embarrassment of people from this country joining, or seeking to join, the European Youth Orchestra, but those numbers have fallen. There is real cause for concern, not for the breadth of provision, which I believe the Government are really trying to ensure, but that the intense study of musical instruments for really talented children in the maintained sector is falling off. This is an area where we cannot fall victim to the fear of elitism. I would like the Minister to answer that question.
Baroness Ashton of Upholland: My Lords, there is no doubt that preparing musicians for what we might call a top professional career is not necessarily a priority for individual LEA music services. We accept that we need to do more to support them. We have within the gifted and talented programme and the music and dance scheme ways of providing that additional support. Indeed, we are looking at what more we can do to ensure that we continue to have high quality musicians and other performers in this country.
Baroness Sharp of Guildford: My Lords, the Minister will be aware of how important music is to the wider curriculum, particularly in the primary schools, as she said. We are delighted that there has been some resurgence, although there is a long way still to go from the depths that we reached during the period when the Conservatives were in power. There is considerable variation across the country from LEA to LEA. Can

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the Minister reassure us that there will be some levelling to make sure that every child has the opportunity which the standards fund is supposed to provide?
Baroness Ashton of Upholland: My Lords, the noble Baroness is correct: not only did we start from a position of having very little resource but there is variation across the country. Within the resources we have, we are very keen to develop all services to be as good as the best. Noble Lords will know about individual services. I believe that the new specialist schools programme has a massive contribution to make in terms of developing its services with other secondary schools and, of course, primary schools in the locality. As more schools specialise in music and the arts, increasing numbers of them will be able to do that.
I referred earlier to the national baseline. We are looking to ensure that we have a very clear view of what we would consider to be a good music service. My honourable friend David Miliband is holding a seminar with those involved in the music industry, professional musicians and others involved in education to look more fully at how we can develop a wider strategy on music to ensure consistency across the country.
Baroness Carnegy of Lour: My Lords—
Lord Strabolgi: My Lords—
The Lord Privy Seal (Lord Williams of Mostyn): My Lords, could we hear from the noble Lord, Lord Strabolgi, first?
Lord Strabolgi: My Lords, thank you. Is my noble friend aware that some cathedrals find it very difficult to recruit choirboys because of the lack of teaching in schools?
Baroness Ashton of Upholland: Yes, my Lords, I have heard the reports that, I believe, my noble friend refers to. That will be an aspect of the attempt to develop how schools can support the different kinds of musical teaching and training that will be available.
Baroness Blatch: My Lords, does the noble Baroness accept that there are particular difficulties, now that the Learning and Skills Council has come into play? It has confused the funding streams. A perfectly marvellous music school in Huntingdon is now vulnerable to going out of business altogether because, by law, the Learning and Skills Council cannot support extra-curricular music to school-age children in that school. It seems that an historically very good music school may now be vulnerable simply because the law prevents it from being funded properly.
Baroness Ashton of Upholland: My Lords, I do not know about the particular case that the noble Baroness cites. I undertake to look into the matter and
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to write to her about it. We do not intend, in any of the ways in which we set up funding, to prevent the high-quality services that one would expect in schools of the quality to which the noble Baroness refers. I shall address the matter.

Samuel Pepys: Tercentenary of Death
2.44 p.m.
The Earl of Sandwichasked Her Majesty's Government:
How they are celebrating the life and achievement of Samuel Pepys, founder of the professional navy, on the tercentenary of his death on 26th May 1703.
The Minister of State, Department for Culture, Media and Sport (Baroness Blackstone): My Lords, I am delighted that the British Library, the Public Record Office, the National Maritime Museum, the National Portrait Gallery and the Museum of London, all bodies sponsored by government, are running exhibitions and other events this year to commemorate the life and achievements of Samuel Pepys.
The Earl of Sandwich: My Lords, I am delighted to hear that Answer. I declare a family connection and a special interest as president of the Samuel Pepys Club, which celebrates its own centenary this coming week. Does the Minister agree that Samuel Pepys was not just a great and talented literary and historical figure; he was a founder of our modern Civil Service through his work in the professional navy? Does she further agree that his acumen, intelligence, eye for detail and, I might add, joie de vivre can be said to be qualities found in the modern Civil Service?
Baroness Blackstone: My Lords, I think I can bear testimony to the eye for detail, the scholarship and the humanity of the modern Civil Service, but I am sure that I cannot comment on its pursuit of pleasure.
Lord Howell of Guildford: My Lords—
Baroness Trumpington: My Lords—
Lord Williams of Mostyn: My Lords, I think that the noble Baroness, Lady Trumpington, stood up first.
Baroness Trumpington: My Lords, thank you very much indeed. Quite right, too. I was impressed with the list that the Minister gave. Will she add another place to it? I do not know whether Magdalene College Cambridge is doing anything about Pepys, but it owns his entire library. I wonder whether it is holding any special events this year. Rather than detain noble Lords, I shall say, "And so to bed".
Baroness Blackstone: My Lords, it is absolutely right that Magdalene College Cambridge has Samuel Pepys's splendid library, including every volume of his

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diaries. Two volumes are regularly on show at Magdalene College. I think that one of them is always open at the page that describes the Great Fire of London. I am not sure whether the college is doing anything special this year. I have just been told by the noble Baroness, Lady Blatch, that it is. Perhaps she will he able to tell the noble Baroness, Lady Trumpington, what is planned, as, unfortunately, I cannot. I am delighted that not only are all the government-sponsored institutions celebrating this great man's life, but so is Magdalene College Cambridge where he was a student.
Viscount Falkland: My Lords, does the noble Baroness not agree that, apart from the attributes mentioned by the noble Earl, Samuel Pepys was a remarkable Englishman from a relatively modest background who made use of powerful patronage—the patronage of the noble Earl's forebear—and with great skill and talent occupied high office? Does she further agree that he did more than that; he left an unequalled picture of the period and a wonderful piece of literature?
I conclude with a practical suggestion. Perhaps copies of the wonderful biography by Claire Tomalin, which won the Whitbread Prize this year, might be given as prizes in schools. The Government might encourage, where possible, that a copy be given to a star pupil.
Baroness Blackstone: My Lords, I have just read Claire Tomalin's splendid biography of Samuel Pepys. I am not sure whether it would be right for the Government to prescribe what books ought to be given to star pupils. I am sure that anyone who happens to read Hansard might take up the noble Viscount's suggestion. I wish to add that patronage was something at which Samuel Pepys was a great expert; today it would be described as cronyism.
Lord Geddes: My Lords, as a proud albeit retired member of the Royal Naval Volunteer Reserve, can I ask the noble Baroness whether she might encourage the chairman of the Refreshment Committee, my noble friend Lord Colwyn that, on our return from the recess, we might possibly splice the mainbrace in the Bishops' Bar?
Baroness Blackstone: My Lords, I shall certainly do so.
Lord Judd: My Lords, whatever the great characteristics of this distinguished Briton of the past, given his lively view of womanhood does my noble friend agree that it would have been difficult for him to have envisaged the valuable role now being played by women within the Royal Navy? When we celebrate this important anniversary, may we accompany it with a real salutation to the women of today's navy and the role they play in it?
Baroness Blackstone: My Lords, Samuel Pepys certainly liked women, but I do not think he ever
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envisaged them in the kind of role they now play in the Royal Navy. However, were he to come back I am sure that I and my female colleagues on the Front Bench would be delighted to take him through the enormous contribution now being made by women to all aspects of public life, including our armed services.
Lord Renton: My Lords, is the noble Baroness aware that the borough of Huntingdon got rid of Oliver Cromwell after suffering him for only one Parliament of four years? It then became a Royalist borough and welcomed the first Earl of Sandwich to Hinchingbrooke, which is the title of Viscount Hinchingbrooke, heir to the Earl of Sandwich. Huntingdon welcomed also the first cousin once removed of that first Earl of Sandwich, Samuel Pepys. Is it not essential that the borough of Huntingdon and the parish of Brampton should join equally in these great celebrations?
Baroness Blackstone: My Lords, I was well aware of the noble Earl's ancestor, Edward Montagu, who was Samuel Pepys's sponsor. Both the noble Earl's ancestor and Samuel Pepys were extremely skilful at changing sides. They started out as supporters of Oliver Cromwell and ended up as supporters of Charles II. Perhaps that is another reason why the borough of Huntingdon should recognise the anniversary.
Lord Howell of Guildford: My Lords, is the Minister aware that we on this side strongly support a commemoration for this excellent Tory, which is the way he ended up? We congratulate the present holder of the title who asked the Question, the noble Earl, Lord Sandwich, on reminding us of his illustrious ancestor, who was extremely adroit at being a crossbencher. As the Minister has just reminded noble Lords, Samuel Pepys began as a ferocious parliamentarian general and ended up a passionate supporter of Charles II. That is an interesting example to examine when we consider today's politics.
Baroness Blackstone: My Lords, I do not know whether that means the noble Lord is about to change sides.

Iraq: Role of UN
2.52 p.m.
Lord Juddasked Her Majesty's Government:
What progress they have made towards defining the role of the United Nations in the reconstruction and political rehabilitation of Iraq.
The Minister for Trade (Baroness Symons of Vernham Dean): My Lords, the United Kingdom has co-sponsored a draft Security Council resolution, together with the United States and Spain, which sets out the vital role we expect the United Nations to play in Iraq.

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The draft resolution would appoint a special representative of the UN Secretary General to coordinate the UN's humanitarian, political and reconstruction work in Iraq. The UN special representative would be given a mandate to coordinate closely with the people of Iraq, with the coalition and with other interested parties, but would work independently and report regularly on progress to the Security Council. We expect the draft resolution to be voted on by the Security Council either later today or, more probably, tomorrow.
Lord Judd: My Lords, while recognising the hard work by the British Government on their American colleagues on this resolution, does my noble friend agree that it will be unfortunate if the view taken by the wider world is that the occupying powers are beginning to regard the United Nations as a useful humanitarian sub-contractor for whatever they want to do? Does she further agree that the real issue here is that, if we are going to work towards global stability and security, it is essential to demonstrate that operations of this kind are undertaken with the maximum authority of the global community as a whole? That is why the United Nations should be central to the operation.
Baroness Symons of Vernham Dean: My Lords, I thank my noble friend for acknowledging the hard work of both the United Kingdom and the United States on this draft. That work has resulted not only in improvements to the draft itself, it has also ensured maximum support for it around the Security Council. I hope that, when my noble friend has an opportunity to study the draft, he will acknowledge that a number of improvements have been made to the text which was originally circulated. The issues in regard to strengthening the role of what was the special coordinator but is now to be the UN special representative to bring it into line with that adopted in post-conflict situations such as Afghanistan should also hearten my noble friend. He will see that we have moved very much in the direction he wishes.
Lord Hannay of Chiswick: My Lords, will the noble Baroness accept my thanks for the changes made to the resolution, which I think have greatly improved it? Does she recognise, however, that what matters now is, first, for the resolution to be adopted as quickly as possible and, secondly and most important, that the role of the United Nations in implementing the resolution is one of being a team player with the allies who are taking a leading role in Iraq? It is absolutely essential that the United Nations, rather than being marginalised in the implementation of the resolution, should become an integral part of it.
Baroness Symons of Vernham Dean: My Lords, I thank the noble Lord. Lord Hannay. Perhaps I may say to him that I think that it is exactly that desire which has prompted the kind of changes that have been made to the Security Council resolution. I hope
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he will note that the UN special representative will have a key role to play in facilitating the political process leading to representative government. By that I mean that he or she will be an equal partner in the process. That is one of the very important adjustments that has been made to the draft of the Security Council resolution.
Baroness Northover: My Lords, can the Minister clarify the position of the UN weapons inspectors? In Prime Minister's Question Time today, the Prime Minister said that the new UN resolution would address this. Yesterday, however. John Negroponte, the US ambassador to the UN, said that,
"the US envisages no role for the UN weapons inspectors in the immediate future",
even though the head of the UN weapons inspection team wants to return to Iraq.
Baroness Symons of Vernham Dean: My Lords, I have not seen Mr Negroponte's remarks, but I would point out to the noble Baroness that the resolution does touch on this issue by emphasising the need to confirm disarmament and the intention to review the UNMOVIC and IA EA mandates in Iraq. That review will leave open the possibility of a future role for UNMOVIC, taking account of the changed situation on the ground.
Lord Campbell of Croy: My Lords, as regards reconstruction in Iraq, do the Government see roles for the specialised agencies of the United Nations as distinct from the United Nations itself?
Baroness Symons of Vernham Dean: My Lords, I hope that we will see the specialised agencies in Iraq. Of course they have a great deal to contribute, in particular to the longer-term reconstruction efforts. While we have discussed at length the short-term humanitarian efforts, we must also acknowledge that our attention must be directed to longer-term issues such as health and education. Only last Friday I was in the United States. While there I discussed these issues with colleagues working in the various departments responsible. Between us we acknowledged that there will be a very important role to consider for the UN agencies.
Lord Rea: My Lords, with regard to those specialised agencies, can my noble friend say whether the World Health Organisation and UNICEF teams are now back in their offices and once again functioning? They performed an extremely useful role in pre-war Iraq.
Baroness Symons of Vernham Dean: My Lords, indeed they did perform useful roles and I hope that they will be able to do so again shortly. I am unable to tell my noble friend whether they are in place on the ground at the moment. The noble Lord will know that we have been working hard to ensure that a permissive environment is developed which would allow the NGOs and agencies of the UN to return. Some of them

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have started to go back, but I shall try to be more precise about UNICEF and the World Health Organisation and write to my noble friend.
Lord Howell of Guildford: My Lords, does the Minister agree that the new draft resolution gives the United Nations a much stronger role and upgrades the previous co-ordinator to the rank of UN special representative? That is important.
Can the noble Baroness confirm that, if it is carried, the resolution will solve the difficult problem of making oil and gas revenues in Iraq immune from litigation and the claims of creditors, so that the money can begin to flow back into the rebuilding of Iraq?
Baroness Symons of Vernham Dean: My Lords, yes, that was one of the main intentions behind passing the resolution. Perhaps I may say that it was also one of the reasons why it is important for us to do so urgently. The fact is that the oil is now starting to be pumped and we must ensure that it can be traded legally so that the people of Iraq can enjoy the benefits of indulging in that trade on a far more widespread basis than was ever the case under the Saddam regime.
Lord Campbell of Alloway: My Lords, in the context of the Question, might the House not use the occasion to pay tribute to the efforts made by our Armed Forces in the reconstruction and rehabilitation of Iraq, especially in the area around Basra?
Baroness Symons of Vernham Dean: My Lords, I am sure that all Members of the House will wish to join in that acknowledgement of the way in which our Armed Forces prosecuted not only the military conflict but the peace thereafter. It has been an enormous credit to them, particularly, as the noble Lord said, their work in Basra, where they were responsible for ensuring the quick re-connection of clean water supplies. It was our Army engineers who got the railway between Basra and Baghdad running—a railway that had not run for 10 years.

Indonesia
3 p.m.
Lord Aveburyasked Her Majesty's Government:
What steps they are taking, in conjunction with other members of the international community, to avert the resumption of hostilities in Aceh, and what assurances they have been given by the Indonesian Government that arms and military equipment supplied by the United Kingdom will not be used in any military operations that may be conducted in Aceh.
Baroness Symons of Vernham Dean: My Lords, the British Government, together with our EU partners, the United States and the World Bank, have urged the Indonesian Government and the Free Aceh Movement—the GAM—to resume negotiations. We
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regret that martial law has been declared in Aceh. The Indonesian Government have confirmed that Hawk aircraft were used on the first day of action in Aceh, but they have given assurances that they were not used offensively. We are considering that response.
Lord Avebury: My Lords, Britain was represented, through the European Union, at the Tokyo meeting last weekend, at which attempts were made to salvage the cessation of hostilities agreement. Can the Minister say whether any concessions were made there by either side? How far apart were they at the end of the process? Would it not be useful to know, without attempting to apportion blame, what was the sequence of negotiations that led to the final breakdown?
Considering that there is a risk of overwhelming human catastrophe in Aceh and the fact that the UN Secretary-General has made a plea that peace should be restored, will the Government consider referring the matter to the UN Security Council and calling on the council to pass an embargo on the supply of weapons to either side? Spares for the Hawks that the Minister mentioned and the Scorpions that, we understand, are being transferred to Aceh should be withheld until peace is restored.
Baroness Symons of Vernham Dean: My Lords, the reasons for the breakdown in the discussions that the noble Lord mentioned are difficult to disentangle. It looks as though, to some extent, both sides were not sufficiently committed, with regard to some of their own interests, to seeing a peaceful solution go forward. I am unable to go into any further detail than that at the moment. Perhaps, it is a subject for discussion at a future date.
The noble Lord asked about weapons. We are considering the right response in the light of what has happened over the past few days. I hope that the noble Lord will understand that even as I left the Foreign Office late this morning more information was coming in about the incident, which I know has not only caused concern to the noble Lord but has prompted further comment elsewhere. Further information is arriving from our post about what really happened, and that information is being analysed at the moment.
Lord Howell of Guildford: My Lords, do we know of any connection between the Free Aceh movement—GAM—and terrorist organisations? It seems to be intent on burning schools. If there is evidence of terrorist links, ought we not to be a little more understanding of the need for the Indonesian authorities to try to keep their country together? Should we not indicate that we realise that they need somehow to restore law and order there?
Baroness Symons of Vernham Dean: My Lords, we do not need to know that there are terrorist links. The noble Lord may be referring to the wider question of terrorist organisations elsewhere.

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If there is terrorism, it is of itself bound to be a reason for any government to want to ensure the security of their people. The noble Lord will know that there are many different views about the nature of the GAM. As is so often the case, there are those who consider it to be a group of people who legitimately want freedom for Aceh from Indonesia, and there are those who consider that its activities go beyond that into some activities that others would describe as terrorist activities.
Viscount Waverley: My Lords, more specifically, does self-determination supersede territorial integrity, in the Government's view?
Baroness Symons of Vernham Dean: My Lords, we acknowledge the territorial integrity. But, to take another example, the United Kingdom and the United Nations never recognised the sovereignty claim to East Timor. This is a different question. After Indonesia declared its independence in 1949, Aceh became part of that country. Eight years later, Aceh began to fight against the central government and, as we know, there has been a GAM seeking an independent state since 1976.
Questions of self-determination arise in a variety of historical contexts. There are differences in the way in which Indonesia has operated here historically and the historical claim that it has, as compared with the recent example of East Timor, which may still be in your Lordships' minds.

Israel and Gaza
3.6 p.m.
Viscount Waverley: My Lords, l congratulate the Minister on her tirelessness and beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what measures they are taking to encourage Israel to open the border to allow foreign nationals to cross between Israel and Gaza.
Baroness Symons of Vernham Dean: My Lords, Her Majesty's Government are gravely concerned at the recent surge in suicide bombing in Israel. We understand the need of the Government of Israel to ensure the security of Israeli citizens within international law, but we do not believe that the decision to forbid most foreign nationals from entering the Gaza Strip furthers the cause of peace or contributes to security. We have made those views clear to the Government of Israel as a matter of urgency, and we look forward to the Government of Israel easing the restrictions as soon as possible.
Viscount Waverley: My Lords, the cycle of provocation and reaction is globally unsettling and is prejudicing the road map. Arguably, regionalism is an answer.
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Do not current political policies fuel the resolve of the suicide bombers? Will they not create a humanitarian backlash that will come to haunt Israel? The guardian of Israel's well-being is to come to the negotiating table in a constructive manner.
Baroness Symons of Vernham Dean: My Lords, I agree entirely that the "cycle of provocation", as the noble Viscount put it, on both sides is at the root of the problem. We hope very much that work on the road map will not be deflected by recent developments, both the suicide bombing and the reaction to it. The people who are not friends of a peace process are exactly the people who undertake such atrocities in order to try to derail that process.
Mr Sharon has felt, as a result, that he must stay at home. That is understandable, but it has meant that he has not been able to go to the United States of America and engage in the discussions on the road map that are so important. I am sure that that was what the suicide bombers wanted to achieve, and I can only hope that Mr Sharon will take up the invitation to go to the United States and hold those discussions very soon.
Lord Hogg of Cumbernauld: My Lords, I note what my noble friend says about the attitude of Her Majesty's Government. None the less, it is the responsibility of the Israeli Government to do everything possible to protect their people against the kind of barbaric terrorism that is being directed against them. Is it not responsible of the Israeli Government to warn off foreign nationals from entering parts of the West Bank and elsewhere that are highly dangerous? They are right to do that, and many people in this country agree with the action that they have taken.
I hope that, when Her Majesty's Government give advice to Israel, they remember that it is the only democratic country in the region and that the despotic countries that surround it give succour and comfort to the terrorists.
Baroness Symons of Vernham Dean: My Lords, of course I agree that it is the responsibility of the Government of Israel or any other government faced with the horrors of suicide bombing to do everything possible to secure the security of their own civilians. I hope I made that absolutely clear in the opening statement that I made in answering the noble Viscount's Question. The issue remains whether the measures taken by the Government of Israel really do further the cause of peace and really do contribute to further security, or whether they actually contribute to what the noble Viscount called a cycle of provocation, which leads to bitterness and further violence.
Of course, we warn our own nationals about going to places where we believe they will not be safe. We are very clear at the moment about the fact that it is not safe to travel to Gaza. That is rather different from forbidding people to visit their families, to conduct legitimate trade, and the issues which perhaps do not contribute as much as they might to the security of the region.
Lord Wallace of Saltaire: My Lords, have the Government made it clear to the Israeli Government that the existence and expansion of Israeli settlements within the Gaza Strip, and, in particular, the recent expansion of the security zones for those Israeli settlements by the demolition of orchards, olive groves and houses, are part of the cycle of violence which breeds precisely the despair out of which suicide bombers come? Have the Government also made it clear that a reversal of Israeli settlement policy has to he part of an acceptance of the road map?
Baroness Symons of Vernham Dean: My Lords, yes, indeed, we have. As the noble Lord would expect, we have done so very recently with the visit of the Israeli Foreign Minister which we welcomed. He was received very much as a friend to whom we gave messages that friends give each other in privacy behind closed doors. Our policy on settlements is absolutely clear. Settlements are illegal under international law. We believe that they are an obstacle to peace. We believe that Israel should freeze all settlement activity, as the noble Lord said, as required by Phase 1 of the road map.
Lord Kilclooney: My Lords, as most European countries have maintained contact with President Arafat and now that the Israeli Government have said that they will not speak to anyone who retains contact with him, what is the position of the United Kingdom Government?
Baroness Symons of Vernham Dean: My Lords, Her Majesty's Government will consider whether it is in the interests of peace to see President Arafat. We must remember that he is still the elected president of the Palestinian Authority. He has an important role to play. But I would remind the noble Lord that there have been substantial changes in the Government of the Palestinian Authority. Now the main responsibility for delivering reforms and progress falls on the shoulders of Abu Mazan. That is obviously where the first point of contact on these issues rightly is.
Lord Clarke of Hampstead: My Lords, does the Minister agree that despite five suicide bombings being carried out by Palestinian terrorists against Israel within a 48-hour period, Israel has withdrawn from some areas of Gaza to allow Prime Minister Mahmud Abbas and the Palestinian Authority to take control of the situation? Since September 2000, the Palestinians have carried out more than 17,000 attacks, killing 778 Israelis. Does the Minister agree that the inconvenience of temporary border closing is a small price to pay if it stops one fanatical terrorist from blowing up mostly innocent people and destroying life which is so precious to all people in that region?
Baroness Symons of Vernham Dean: My Lords, if I could honestly lay my hand on my heart and say that we would know that it stopped one fanatical terrorist, of course I would agree with the noble Lord. But the problem we have here is the suspicion that for every terrorist it stops, it breeds two more. That is the
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dilemma we are facing. There is not an easy answer. I absolutely acknowledge the appalling statistics that the noble Lord gave about the death to Israelis. Your Lordships have discussed before the particularly cruel phase of using young people who are undoubtedly targeted by many suicide bombers.
I would just remind my noble friend that since the beginning of this year, 82 Israelis have lost their lives tragically and 385 Palestinians have lost their lives. There is a terrible loss of life on both sides. That is why all these discussions about whether it is right to close borders or whether it is right to have families going to see each other are really not the issue. The issue is to move forward on the road map. The issue is to go forward and to ensure that the dreadful people who want to derail this process are ignored and that that process is carried forward under the new Palestinian Authority Government.
Lord Howell of Guildford: My Lords, the figures that the Minister has just given are very telling indeed. Is not the noble Lord who has just spoken right to remind us that if we are trying to look forward, in the past few days there have been these five suicide bombing attacks against Israel which were bound to sour the process and create the type of problems that we are now discussing? Does the Minister agree that if the road map is to start from here, or even from a few days back, the first moves between the two sides have to be simultaneous? There must be substantial concessions on the Palestine side—obviously, a move towards controlling and arresting the groups that perpetuate suicide bombing—and substantial moves on the Israeli side as well. They must be together and we must move away from this "you first" argument which will never lead anywhere except to more tragedy and bloodshed.
Baroness Symons of Vernham Dean: My Lords, of course the noble Lord is right to say that the suicide bombings were bound to sour the atmosphere for international discussions. I have no doubt that that was entirely the objective of those who carried out those evil acts. Of course I agree with the noble Lord that it is essential for both sides to be seen to move together.
The terrible history that we are dealing with is one of lack of trust between the two sides. It will take great courage and great statesmanship on both sides to take those first steps. As members of the international community, through the EU and with our partners in the United States, Russia and the United Nations, it is our role to give every encouragement to that process to take those first enormously important steps.

Clerk of the Parliaments
3.17 p.m.
Lord Williams of Mostyn: My Lords, I informed your Lordships on 12th March of Sir Michael Davies's intention to retire from the office of Clerk of the Parliaments with effect from Monday 14th July. I told the House on that occasion that it had been agreed that

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a trawl for Sir Michael's successor should be held, with applications being invited from the House of Commons and the devolved Assemblies as well as from the House of Lords.
There were six applications in all—five from the Lords and one from a devolved Assembly. One applicant from the Lords was not short-listed for interview but a board, consisting of myself, the other party leaders, the Convenor of the Cross-Bench Peers and the noble Baroness, Lady Prashar, the First Civil Service Commissioner, interviewed the other five. The unanimous recommendation of the board is that Mr Paul Hayter should succeed Sir Michael Davies as Clerk of the Parliaments.
Following Mr Paul Hayter's appointment as Clerk of the Parliaments, I have been asked by my noble and learned friend the Lord Chancellor to say that he will propose to the House that Mr Michael Pownall should become Clerk Assistant and that Mr David Beamish should be appointed Reading Clerk. Both of those appointments have the support of the board to which I have already referred. The Lord Chancellor will invite the House to approve the necessary Motions of appointment on 14th July. There will be an opportunity to pay tribute to Sir Michael's distinguished career in the House on 10th July.

Criminal Justice Bill
3.19 p.m.
Brought from the Commons; read a first time, and ordered to be printed.
Procedure of the House: Select Committee
The Chairman of Committees (Lord Brabazon of Tara): My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, on behalf of the Committee of Selection, That the Lord Hoyle be appointed a member of the Select Committee in the place of the Lord Gladwin of Clee deceased.—(The Chairman of Committees.)
On Question, Motion agreed to.
Personal Bills: Select Committee
The Chairman of Committees: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, on behalf of the Committee of Selection, That the Lord Slynn of Hadley be appointed a member of the Select Committee in the place of the Lord Wilberforce deceased.—(The Chairman of Committees.)
On Question, Motion agreed to.

Water Bill [WH]
3.19 p.m.
Lord Grocott: My Lords, I beg to move the Motion standing on the Order Paper in the name of my noble friend Lord Whitty.
Moved, That the amendments for the Report stage be marshalled and considered 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,

Schedule 5,

Schedule 6,

Clauses 79 to 93,

Schedule 7,

Schedule 9,

Clauses 94 to 97.—(Lord Grocott.)

On Question, Motion agreed to.

Africa
3.20 p.m.
Lord Lea of Crondallrose to call attention to progress towards the development of "mutual accountability" with African countries under the aegis of NePAD (the New Partnership for Africa's Development) prior to the G8 summit at Evian; and to move for Papers.
The noble Lord said: My Lords, I am very glad to have been fortunate enough to secure this debate in the lead-up to Evian early in June providing the opportunity for my noble friend Lady Amos to respond in her new role as Secretary of State for International Development. It was clear in her previous incarnation that the issues surrounding the New Partnership for Africa's Development were and are very close to her heart.
In that context I also welcome, among an impressive list of speakers, her distinguished predecessor in that role in this House, the noble Baroness, Lady Chalker of Wallasey, who has a long and continuing experience with the affairs of Africa.
Our immediate aim is to help to maintain the G8/ NePAD momentum set in motion in Canada a year ago. President Chirac, who is in the chair of the G8 this year, is giving this a high priority at Evian—if it is not a treasonable offence to mention that. We need continuity in the work of the G8 even when major new issues in the Middle East and the world economy dominate the headlines. The African time-bomb is still ticking away, and we have to attend to it.
What are the key issues and developments at this time in NePAD, and what are the key challenges for the G8 in Evian in that connection? They are twofold,

837
with a close connection between peer review and mutual accountability. I shall say a few words about each.
Peer review is voluntary, but there are tangible advantages for countries entering into the process. We are beginning with about a dozen. There are 46 counties in total in Africa to bring within scope, some more on a regional framework. In the language of the Government, there will be,
"enhanced partnerships with African countries whose performance reflects the NePAD commitments".
I shall relate that to some of the main headings of NePAD.
First and foremost, peace and security, covering good governance, is correctly placed at the top of the list. No one can doubt that political stability is of the utmost importance for social and economic progress. I can add to that the effectiveness of aid; fostering trade and investment; implementing debt relief; health issues; and water security. There is a long list to be addressed. Those issues immediately raise all aspects of what is now called mutual accountability, between African countries, within African countries and north-south—by which I mean between the G8 OECD countries and the countries of the African Union.
On the question of peer review, as in the European Union the African Union leadership of such initiatives has to be top-down to begin with, but it certainly will not go far unless there is in-depth understanding and ownership. That is a tall order. It is not often appreciated how much we in Britain have benefited from being peer reviewed in Europe, but many people in this House view that process with only modified rapture. I have personally been on the receiving end of that on such issues in the labour market as adaptability, employability and equal opportunity. My advice is that it does you good.
I find when talking to African colleagues at different levels in the trade unions that they are surprised to hear what I have just said; they find it an eye-opener. One of them said to me, after hearing my line on it: "Well, if you are benchmarked and you are rich, maybe it's alright for us as well". This is not an abstract matter it is entirely practical.
The G8 countries will be reporting at Evian on progress against the commitments agreed in Canada a year ago. If the UK national action plan is any guide, that will further demonstrate the value added in the NePAD process. It is also very timely to welcome our Government's ideas for the international financial facility and the 50 billion dollars that it would produce for international aid.
The tent "mutual accountability"—I emphasise the word "mutual"—is relatively new. It may be useful to identify the two complementary aspects of the concept: the accountability north-south and the accountability within Africa. The northern contribution, from OECD countries, is not only to help with cash and technical assistance but also to be accountable in terms of removing trade distortions;
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taking really tough action against the unaccountable arms trade; having a policy on drugs; making business accountable; and so on.
The June deadline for the headings of agreement on reform of the common agricultural policy—perhaps I should say that the same should go for the American agricultural policy should see tangible progress on one of the central issues on the north-south agenda. One of the central reforms should be put in place so that, inter alia, we switch about 80 per cent of the CAP spending into areas that the WTO accepts are not trade distorting. That is only a start. Here again, however, one cannot gainsay the fact that for the countries with falls in GDP in the past 10 years of which there are many, although I do not have time to read out the statistics—the big factors unfortunately have nothing to do with trade policy.
We want to see more on the table from the north on trade policy. President Chirac acknowledged the need for change at his meeting with Africa presidents in March, beginning with the abolition of EU export subsidies for agricultural products affecting African markets. It is essential that that is taken forward further at Cancun in the autumn.
NePAD has its critics, in Africa and elsewhere. I was struck by the robust response by the executive secretary of the Economic Commission on Africa last October. Mr Amoako referred to what he described as the main myths about NePAD. First, it is said that it is an intrusion on national sovereignty; we all know about that one, of course. Secondly, it is said that it will be an elite club with insiders and outsiders. Some of our own aid organisations, such as Christian Aid, quoted in the House of Commons research paper on NePAD, share the critique of elitism against grass roots involvement.
On the other hand, there is the opposite critique, heard much more frequently in this House, that NePAD is ineffectual. There are, in fact, two opposing myths. That is well illustrated by Zimbabwe, which will obviously feature in some of your Lordships' speeches. There is a myth put about in that part of the world that NePAD is all to do with South African imperialism. The South Africans have given courageous leadership in getting NePAD off the ground, and I would advocate that they are much bolder. But what about the fact that the Mugabes of this world get a standing ovation—as he does—at the meetings of African heads of government? One way of understanding how that can happen is to reflect on how politics in our own sophisticated country operates. One might take the example of why we, in the TUC, gave a standing ovation each year to Arthur Scargill years after the TUC was even remotely in agreement with his irredentist policy. It is a genuflection to the old time religion.
The South Africans are better placed than ourselves to knock right on the head the idea that NePAD is part of a conspiracy designed by forces of white imperialism vis-à-vis countries to their immediate north. Morgan Tsvangirai, leader of the Movement for Democratic Change, is no one's poodle, as his

839
distinguished record as a trade union official demonstrates. He stands in a great tradition of African trade union leaders, from Tom Mboya to Cyril Ramaphosa.
Zimbabwe also illustrates the fact that NePAD cannot at this stage jump miles beyond peer group pressure—as if the next move would be to go right to the other end of the spectrum of direct intervention. It is absurd to say that NePAD has failed on such a test as that.
It is necessary to issue a general disclaimer or health warning that NePAD cannot do everything. Nor can it be a quick fix. Some things may need to be done that could by no stretch of the imagination be its responsibility or even potential responsibility. For example, it cannot change the United Nations rules of engagement in the Congo, highly desirable as that might be. Nor is it responsible for the arms trade; we are more responsible for it than NePAD. It cannot change tribal loyalties, straight lines on the map or more than 1,000 years of history as regards Christianity versus Islam, desirable as all that might be if we could turn back the clock.
In that connection we should remember that the countries of the Maghreb are prominently involved in this African project even though they may feel different and much nearer to Europe than to sub-Saharan Africa. However, having said that NePAD must not bite off more than it can chew, I believe that it can make the difference between a road to ruin and a road map to minimum standards of governance. Political stability has been the centrepiece in transforming many basket-case economies. It is certainly the key to private investment. I am sure that colleagues will have more to say about the role of the private sector. I hope that the Secretary of State will say more about the multi-donor-funded public/private infrastructure facility and the framework for dialogue about that.
In our most recent debate on this general topic I engaged in an interchange with the noble Lord, Lord Desai, on the comparative growth rate between Asia and Africa. We discussed the role of the middle class in generating a quite high rate of return for the new professional services and so on and creating a more powerful political constituency for good governance and the rule of law.
The role of the trade unions—one of the main forces for pluralism in many party of Africa ever since colonial days—should also be acknowledged. When it comes to local "ownership"—to use the modern vernacular—they are streets ahead of the otherwise admirable development NGOs. Trade unions play a much wider role than simply at the place of work. For example—to give a flavour—in Sierra Leone the Commonwealth TUC is working with the Labour Congress to help all civil society organisations contribute to peacekeeping. In Ghana and Nigeria, the TUC and the national Labour Congress have run voter education programmes. The list is a long one.
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Ownership of NePAD in depth is now an urgent question. That ultimately bears on the role of parliaments and parliamentarians. We should note the creation, at a meeting in Cotonou in October 2002, of the African Parliamentarians Forum for NePAD. In its communiqué it reports that some EU countries have had a direct financial input into the forum—namely, Denmark, Italy and France—whereas the UK is not mentioned except indirectly insofar as there is also EU assistance. Perhaps my noble friend can say more about that.
As regards the role of Westminster, both the IPU and the CPA do an excellent job on inward and outward missions and in seminars on the type of issue we are discussing today. The All-Party Group on Africa will be discussing with those bodies, and perhaps with the Foreign Office and DfID, how we can put together a more systematic exposition of the link with the NePAD parliamentary forum.
For many historical, contemporary and practical reasons, among G8 countries Britain and France have by far the most significant interests in Africa. France is, for example, the biggest aid donor to Africa. We are therefore proposing a meeting between British and French parliamentarians, perhaps to be addressed jointly by a NePAD governmental and parliamentary representative as the start of a continuing relationship. There have been preliminary discussions with French parliamentarians who have warmly welcomed the proposal in principle. Now we have to work out the logistics, with the enthusiastic support of the French ambassador in London, M. Gerard Errera.
I look forward to the debate and to the response from my noble friend the Secretary of State. My Lords, I beg to move for Papers.
3.34 p.m.
Baroness Chalker of Wallasey: My Lords, I should first declare an interest as chairman of Africa Matters Ltd, where we try to open doors to African investment and development. Secondly, I most warmly welcome the new Secretary of State for International Development, our own Minister, the noble Baroness, Lady Amos. She has a huge task ahead of her. She has my full support. Although we might have grown up in different stables, we have exactly the same objectives. I hope that this will be the first of many informative debates about Africa. Such debates might expand the positive attitude that already exists among many of those doing the practical work on the ground. Thirdly, I thank the noble Lord, Lord Lea of Crondall, and congratulate him on gaining this debate.
In a recent conference involving thinkers from both the G8 and African nations, we came to the conclusion—which the noble Lord, Lord Lea, has already mentioned—that NePAD cannot be a cure-all for the many problems facing Africa. It is by far the most complicated of continents. There are more than 40 countries in sub-Saharan Africa, all with their own cultural diversity and customs. I often become a little infuriated, shall we say, when I hear people talking of Africa as if it were one country with a single cultural

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heritage. It is not. It is as diverse as anywhere else in the world. I think that we need to remember that when trying to combine the energies of Africans to make a better future.
The African Union seems to realise that and to be aware that NePAD cannot be a one-speed forward process. NePAD must work at a variety of speeds in a variety of different sectors. I should like to concentrate on that in the few moments available to me.
The first thing that I should say about mutual accountability is this. Part of the solution to many of the issues on which the western world and northern hemisphere criticise NePAD, where the G8 nations and others in OECD are looking for solutions, is already in their own hands. I begin with the issue of corruption. Bribery is successful only when someone bribes. By going into the detail—as Transparency International has done—of how much corruption around the world occurs, one finds that an awful lot of companies from European and other OECD countries—and maybe even some governments, for all I know—are involved. It is they who, for a variety of projects, put up the money, which is easily taken by people of lesser probity. So part of the solution—mutual accountability—is, as the noble Lord, Lord Lea, said, in our own hands. Corruption is but one issue.
The second issue is the whole question of funding for small private sector developments through banking and other funds which may be made available by the I FC or other multilateral bodies. We will cure some of Africa's problems only if new jobs are created. As we know in this country, new jobs come not from big government contracts—I think that even the current Government would accept that—but from loads of small enterprises. Small enterprises succeed only if they can get funding. Of all the problems that can arise in developing enterprises which can bring growth, the lack of resources for small business is one of the most critical. I hope that with the new African Project Development Fund organisation and the emphasis now being placed on it by multilateral and bilateral donors, we can really do something to enhance the growth of small businesses. That will bring the jobs, and that will actually start to cure some of the problems.
The noble Lord, Lord Lea, spoke of the key problem of gaining peace and security as well as democracy and political governance. You get peace and security only when people feel themselves secure, and that requires employment. That underlines, perhaps in an unusual way, why I am so keen to see such business development.
There is a great deal to be done in terms of economic and corporate governance, not only by sharing best skills on financial management with the countries of Africa but also by making sure that businesses operating in Africa have first-class corporate governance and can share systems of corporate governance with African countries and companies in the continent.
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The third broad precondition for the sustainable development of NePAD is clearly regional cooperation and integration. I believe that if we are to see NePAD succeed, we have to put many things in our own houses in order. I hope that a renaissance decade lies ahead. I hope that the noble Baroness will be able to push that for all she is worth. Certainly the African Union wants to meet commitments in terms of creating local conditions of peace, security, democracy and political governance. The African Union is prepared to take on the ownership of NePAD, but NePAD's own development goals can be met only if it is a real partnership. That real partnership involves not just money but the active involvement of people sharing their skills with people in African countries. That is the way to get growth and stability in this huge continent, and that is the way for the G8 to help NePAD forward.
3.41 p.m.
Lord Avebury: My Lords, I join the noble Baroness, Lady Chalker, in congratulating the noble Lord, Lord Lea, on initiating this useful and timely debate in advance of the G8 summit. We are glad to know that the noble Baroness, Lady Amos, will be there maintaining the high priority given to African affairs notwithstanding the other important issues that will be on the agenda. I agree with the noble Lord, Lord Lea, that the momentum has to be kept up. It is more important than ever that the resources available for this project are effectively deployed and underpinned, as has been said, by good governance, the rule of law, human rights and democracy. That was the essence of the G8 Africa Action Plan, agreed at Kananaskis a year ago. At Evian the participants will no doubt assess the progress made towards meeting the objectives of the plan, which include strengthening institutions and governance.
In July 2002 the African Union agreed to the African peer review mechanism—which has been mentioned—directed and managed by a panel appointed by heads of state and government, and supported by a secretariat which would maintain information about participating states. Each state would submit a programme of action for implementing the declaration on democracy, political, economic and corporate governance, and that would be subject to periodic review by the panel.
Unfortunately, there are some defects in the proposals. First, states which have no intention of complying with international standards will simply not participate. It is a pity that the mechanism was not built into membership of the African Union. Secondly, the panel is not independent. Why not allow candidates to be nominated by the leader of any political party or NGO in the participating countries, with the final selection being made by an independent body such as chief justices instead of heads of state? The panel would then have the power to appoint the head of the secretariat, making that also fully independent.

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Thirdly, there is a commitment to the Universal Declaration of Human Rights, but not to the covenants, or to other UN instruments such as the Convention Against Torture. That is a defect. Fourthly, civil society should have been given a more prominent role. As I say, appointments to the panel are controlled entirely by governments, and so also presumably would be appointments to the secretariat and to the peer review teams. The review of a state will rely on
"material provided by national, sub-regional, regional and international institutions".
When the review team visits the country in stage two, it has to consult with representatives of civil society, but surely the secretariat ought to receive and study complaints beforehand, discarding only those which it considers to be frivolous or ill-founded.
Finally, only heads of government have the right to call for a review outside the normal cycle where they consider that there are signs of an impending political or economic crisis. If the panel is independent, why should it not have the power to conduct a review of its own volition, on the basis of objective trigger facts such as an adverse report on the conduct of an election, together with a request for a review by the main opposition in the country concerned? By what right do we make suggestions of this kind about the African peer review mechanism? Since the object of the exercise is in part to create a new environment that will encourage aid and investment from G8 countries, we can, by making these suggestions, render it more attractive than it is now.
That brings me to the OECD guidelines for multinational enterprises and the associated monitoring mechanism. These are practical tools for ensuring that commercial activities in Africa are guided by the highest standards of corporate social responsibility. NePAD's peace and security commission has proposed that African governments establish minimum standards by which non-state actors may access natural resources, and the guidelines provide a workable model that could be adapted or even adopted by the African Union for this purpose.
The G8 Africa Action Plan has pledged to work with African governments, civil society and others to address the linkage between armed conflict and the exploitation of natural resources by encouraging the adoption of voluntary principles of corporate social responsibility. It also calls for accountability and transparency with respect to the import or export of Africa's natural resources from areas of conflict. So there should be a more specific linkage between the guidelines and NePAD, and this would again dovetail with the Prime Minister's Extractive Industries Transparency Initiative, which I hope will be discussed at Evian ahead of the meeting on June 17th, where I understand that key players will be asked to sign up to a statement of principles. It would be useful if the noble Baroness when replying to the debate could say something further about the EITI—an initiative which I am sure your Lordships warmly welcome.
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Not much progress has yet been made towards mutual accountability under NePAD, but now is surely the time to accelerate the process. President Chirac says that one theme at Evian will be the responsibility of both governments and business. The G8 need to spell out clearly both what they expect from the peer review mechanism and what states can expect from the G8 if they satisfy well-understood benchmarks of good governance. Equally, they must speak plainly on what business and governments must do together to ensure that the African people, and not the kleptocrats, get the full benefit of developments that NePAD can ensure.
3.48 p.m.
Lord Rogan: My Lords, I also congratulate the noble Lord, Lord Lea of Crondall, on initiating the debate. I offer my good wishes and congratulations to the noble Baroness, Lady Amos, on her new position.
This debate hinges on an extremely important topic, particularly coming at a time when the plight of Africa has slipped somewhat from the limelight. When campaigning in Edinburgh back in May 2001, the Prime Minister said:
"If elected for a second term I will make Africa a major personal priority and a priority for a Labour Government".
It would appear, however, that international events—September 11th and the subsequent war on terrorism, the wars in Afghanistan and most recently in Iraq, and the continuing Israeli/Palestinian conflict—have somewhat distracted the Government and the world's media and drawn attention away from Africa.
Not for a second am I suggesting that Britain's eye should not have turned to those events. I merely wish to point out that Africa remains very much, in the Prime Minister's own words, a,
"scar on the conscience of the world".
Indeed it may even be suggested that the recent security alerts and events in Kenya and the suicide bombings in Morocco show that the continent is in fact tied up in those international events. Africa must remain a priority for us all. No one can deny that the continent is in dire need of long-term sustainable commitment.
It is therefore vital that the achievements of Kananaskis in Canada last year, when G8 support was secured for the New Partnership for Africa's Development, are carried through to this year's G8 summit in Evian. If not, we are in danger of allowing Africa to become little more than a fashion accessory, a stylish issue that grabs the headlines on select occasions to appease targeted audiences.
It is worth reminding ourselves of the reasons why we need to think more carefully and frequently about Africa. Some 65 per cent of the population of sub-Saharan Africa live on one dollar a day, 40 per cent do not attend primary schools, and 28 million are living with HIV/Aids. Southern Africa is plagued by famine and food shortages. Many of Africa's nations are suffering under the effects of continued conflict and corrupt leadership, and countries persistently face low growth rates.

845
Yet, even among the gloomiest of pictures and statistics, there is a glimmer of hope. Uganda and Mozambique, for example, have annual growth rates of 7 per cent and 10 per cent respectively. Recent years have seen the smooth handover of power to democratically elected governments in countries such as Ghana and Kenya. Life expectancy in Gambia has risen from 45 years to 53 years, and the percentage of the population receiving education has doubled in countries such as Burkina Faso, Liberia and Mali.
Although many of those improvements should be attributed to foreign aid from developed countries and to the excellent work and major commitments of NGOs, credit must also be given to the African countries themselves. Aid can and does provide the infrastructure, the means by which improvements can be made. It can indeed be the impetus to change. But fundamental long-term change can come only from within the countries themselves. Without the support of the African leaders, and the African people, aid will be little more than a stop-gap measure, a sticking plaster or band-aid over a very deep wound.
In setting standards for good governance, respecting human rights and working for peace and poverty reduction, NePAD, as the brainchild of several African leaders, is Africa's recognition that it is responsible for its own development. NePAD does not represent ideas and regulations imposed on African nations by western countries. It is not an attempt to mould them to our liking, although of course we share the aims and sentiment. Rather, it is an inside-out approach to development. As a child learns from its mistakes. so must Africa recognise its own problems, recognise that it can and must do something about them, and set about not only resolving them but moving forward and beyond them. NePAD is a real opportunity for Africa. I urge the Government to consider more carefully our commitment to and support for it.
NePAD is undoubtedly ambitious. Perhaps it can best be described as offering a new attitude to African leadership, a new way of thinking that needs time to seep into the African psyche. I wish to place on record my admiration for and congratulations to those African leaders— in particular, President Mbeki of South Africa and President Wade of Senegal—on their drive and determination in taking on the arduous challenge of lifting Africa from global depression. It is all too easy for us to be cynical about NePAD, to dwell on the teething problems and criticise the tardiness with which the principles are implemented. But I believe that we should offer those African leaders our steadfast support and not our criticism.
That said, the notion of mutual accountability or the peer review process has had a less than wholehearted response. It is not unlike the concept of peer mentoring, of which we hear much in the UK. At first glance it represents an excellent idea. African leaders can help each other to reach the goals of democracy and good governance. They can keep a close eye on each other, and allow their neighbours to criticise them in order that improvements may be made. However, with only 13 states signed up so far, it
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seems unlikely that the peer review process will get off the ground, let alone have a major impact. Mutual accountability is voluntary and, unlike developed countries, which can at least offer sticks and carrots in return for internal improvements to governmental structures, the African states can do little more than make polite recommendations.
We need only look at other African states' response to the behaviour of President Mugabe to understand just how reluctant Zimbabwe's neighbouring states are to condemn one another. If self-scrutiny is going to work in Africa, it needs a lot more teeth. The peer review mechanism requires a great deal more authority, complete with punishments and incentives.
If NePAD is truly to be an African initiative, implemented by African nations, it cannot solely remain in the domain of Africa's leaders. In asserting the importance of democracy across the continent, the heads of state must show and recognise that everyone, not just the government, should be involved.
Baroness Crawley: My Lords, I apologise for interrupting, but I remind noble Lords that the agreement is seven minutes.
Lord Rogan: My Lords, I apologise. I conclude by saying that NePAD must involve civil society.
3.57 p.m.
Lord Judd: My Lords, like others, I thank my noble friend Lord Lea for having introduced the debate. When someone with his very significant experience of life brings his attention to bear on such an issue it is particularly important.
I also say how glad I am that my noble friend Lady Amos will reply to the debate. She has already more than proved herself, and she will know that not only in this House but more widely, among all those concerned with development issues throughout the country, there is nothing but good will and the hope of a long and successful innings for her.
I should declare an interest. I am a member of the Oxfam Association and a trustee of Saferworld. I believe that one of the important aspects of policy in this country should be a close working relationship between government and the NGOs, with all the experience and insight of practical engagement that the NGOs bring to bear. That practical engagement and what it has to offer is well evidenced in the excellent briefing for the debate from the Save the Children Fund, ActionAid, Oxfam and others.
It was also good to hear from the noble Baroness, Lady Chalker. Perhaps I have reason to know more than some other Members of the House that, although on the wrong side of the House, she was an extremely effective and committed Minister. Her experience then and what she has done since have a great deal to offer us all.
As we approach the debate on NePAD in the context of the forthcoming G8 summit, there are important issues to be examined. Of course we

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welcome the partnership principle in NePAD, but how equal is that partnership in reality? Is there really the space for Africans to take the strategic responsibility?
Positive aspects of NePAD include the commitment to greater trade access; less international financial institution conditionality; meeting the development aid targets—I say in parenthesis that nothing generates more cynicism in the world than to enter into all kinds of rhetorical commitments which are not then fulfilled—regional cohesion; commitments to democracy; wider participation; and human rights. All these are good things. But we have to be realistic. Anxieties remain.
There is an insufficiently clear statement of intention on the whole issue of HIV/AIDS. There is not sufficient cast-iron commitment on the revitalising of the health sector and on access to essential medicines; and there is an absence of firm commitment on gender issues.
But, more generally, questions that worry a large number of us relate to how different in effect NePAD will be from the previous commitment to structural adjustment. It has to be recognised that structural adjustment did a great deal of harm. It was export driven—often at the expense of local producers, self-sufficiency, survival mechanisms and food security.
There are also anxieties about the context of a commitment to neo-liberal economics. A great deal of research needs to go into how far neo-liberal economics is benefiting the poor as distinct from the rich in the third world. I suggest that even World Bank statistics, as they are presented at the moment, are not very helpful in providing detail in that context.
There is also the issue of how far NePAD has taken seriously the engagement with civil society. We are not going to make a success of development unless civil society is engaged.
I hope my noble friend will forgive me if I conclude by putting a number of specific questions to her in this context. What will be done at the G8 summit to ensure that we fulfil our commitments on debt and on aid? What of the undertaking to provide an additional 12 billion US dollars for overseas development assistance from 2006; and what of the G8 pledge to ensure that half of that is for sub-Saharan Africa? What of the sectoral development goals—not least on health and education? Can we be certain of long-overdue renewed and generous backing for the Global Health Fund, and especially for the combating of AIDS in the expenditure from that fund in Africa?
What of the G8 promise to eliminate polio by 2005? As I understand it, this now requires only an additional 275 million US dollars. Compare that to recent expenditure on bombs in the Iraq war. Why can we not, at G8, make sure that it is done?
On trade, can my noble friend assure us that there is to be a real commitment to the end of dumping? The common agricultural policy is highly relevant in this context. But recent research by Oxfam and others has suggested that, in 2001–02 alone, United States'
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subsidies for cotton exports resulted in 30 million US dollars export earning losses by sub-Saharan cotton producing countries.
What of the "development box" within the World Trade Organisation agreement on agriculture? What of President Chirac's proposed moratorium on subsidies for all export goods to African countries during the current trade negotiations? What about commodity prices? Falls in world commodity prices can undo years of attempts at development. What will be the position on the coffee rescue plan put forward by the International Coffee Organisation?
On multinational companies, as the noble Baroness, Lady Chalker, said, what of their regulation and accountability? The noble Baroness was right to emphasise the importance of corruption in this context.
I simply make the point, as we approach the G8 summit, that central to it will be the role of the occupying powers in Iraq. I am frankly tired of repeatedly seeing conflict situations in which no questions are asked about the cost of bombs and armaments to win a military victory. But this is the positive fight for humanity. If we do not win it, there will not be security and stability. We shall have failed in the application of our own values. At G8 we need the hard evidence that we take the fight for humanity every bit as seriously as we take military conflict.
4.5 p.m.
Lord Blaker: My Lords, it is a pleasure to follow the noble Lord, Lord Judd. I join him in expressing support for NePAD although I am not sure that I can do it so eloquently. I want also to thank the noble Lord, Lord Lea of Crondall, for initiating this timely debate.
It was in October 2001 that the Prime Minister made a moving speech in my former constituency of Blackpool—evidently inspired by NePAD—and spoke of his vision of a partnership for Africa between the developed and developing world, involving aid and investment from the former and good governance in the latter.
But on 31st March this year, only 18 months later, the noble Baroness, Lady Amos—whom I congratulate on her new appointment—said in Pretoria:
"One unfortunate consequence of the Zimbabwe situation is that …Foreign investors fear that Nepad won't work—they think Nepad is a lost cause".
NePAD is wider than Zimbabwe, but I want to talk about Zimbabwe because I believe that the disaster that is occurring there is central to the future success or otherwise of the NePAD venture.
To me, the exciting thing about NePAD when I first came across it was its emphasis on good governance, the rule of law and human rights—and, in addition, peer pressure to secure those aims. They are also written into the African Union treaty, and into the SADC treaty.

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The second most important aspect of NePAD is the emphasis that the treaty places on the fact that bad governance undermines even the best of economic policies.
President Mbeki has frequently said that the problems of Africa should be dealt by African countries. He is certainly regarded as the most important leader in southern Africa and can give a lead. But, sadly, I do not think that so far he has displayed his ability to give a lead that will be successful. He suggested, with President Obasanjo, that the suspension of Zimbabwe from the Commonwealth should be terminated. I am glad to say that that was not accepted. He recently visited Zimbabwe with President Obasanjo to talk to President Mugabe, and the latter seems to have reacted with disdain to the approach of the two foreign presidents. He appears to have rejected a proposal that he should have talks with the MDC, to see whether agreement with the opposition could be reached, unless the MDC recognise him as the properly elected President of Zimbabwe.
So the situation in Zimbabwe is one of terror, chaos and near anarchy and it is getting worse. I do not want to add to all the facts that noble Lords already have in their possession, save to say that the noble Baroness, Lady Amos, has said that it takes seven years—originally I believe she said seven; now I think that she says 10 years—to make up the leeway lost in every year of negative growth. So we face many years of making up for what has already happened.
My main point is that the situation in Zimbabwe is now affecting not only the people there but also those in the neighbouring countries in southern Africa. This point was made not long ago by Pascal Lamy, the European Union Commissioner, and by the Canadian Trade Minister. It is made, too, in a report in today's Financial Times on the studies of the Zimbabwe Research Initiative, a non-profit-making think tank, which says that the cost to the region's economic situation has been 1.5 billion since the year 2000. That means a loss not only to South Africa but particularly to the 14 smaller member countries of the SADC. South Africa's own GDP is said to have suffered a loss of 1.3 per cent. I believe that that is an understatement because it appears to leave out the influence of foreign direct investment. A Reuters report of 13th February said that foreign direct investment for the 14 smaller countries in SA DC for 2001 was 6.6 billion dollars but for 2002 the figure had fallen to 1.09 billion dollars. That is an absolutely astonishing fall, which was no doubt caused by the situation in the neighbouring country of Zimbabwe.
I respect President Mbeke's view that the problems of Africa should be dealt with by the African countries. However, in my view that does not prevent the developed countries from urging African countries to do what they have undertaken to do in those treaties to which I have referred. The southern African countries could he encouraged to do more together to resolve the Zimbabwe problem.
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That brings me to the forthcoming G8 conference on 1st June. Africa is prominently on the agenda. The G8 countries are vital for investment in southern Africa and the provision of economic aid to southern Africa. They therefore have very great influence. A great opportunity was lost last year at Kananaskis when the Zimbabwe question was not discussed at all, except in a passing reference by, strangely enough, Chancellor Schroeder of Germany. At Evian it should be possible for the G8 countries to help the African countries to set in motion an end to the Zimbabwe tragedy for the benefit of southern Africa and the wider world.
About 200 years ago in Russia, there was a prominent courtier of Catherine the Great called Potemkin. He became famous for constructing what were called Potemkin villages. They were constructed to greet the empress when she went on tour among her people. Those villages consisted only of facades of fine buildings with nothing behind. It would be a great pity if the NePAD treaty were allowed to resemble a Potemkin village.
4.12 p.m.
Lord St John of Bletso: My Lords, I join all noble Lords who have spoken in wholeheartedly congratulating the noble Baroness, Lady Amos, on her well deserved appointment. Her dedication to Africa and developing countries will be a great example to her department. I also sincerely thank the noble Lord, Lord Lea of Crondall, for introducing this timely and topical debate.
When the NePAD initiative first emerged from discussions among leaders of various African states, many observers at the time expressed reservations about the capacity of those countries to work together and effectively to unite and address the fundamental challenges of reducing poverty and resolving conflicts. However, despite those early reservations and notwithstanding a certain loss of momentum in the shadow of other dramatic events around the world during the past year, almost a year on from its launch I believe that the number of NePAD doubters has diminished.
In my view, NePAD is a clear, principled initiative, which was devised by Africans for Africans; it has a momentum of its own and its time has come. Everyone knows that it is easy to bury Africa beneath an avalanche of statistics. My noble friend Lord Rogan mentioned that. It is true that more than 55 per cent of Africans live on less than one dollar a day, that life expectancy is only 47, that one in every five African lives will be affected by violent conflict and that seven out of 10 people in the world who have AIDS are from Africa. Yet it is also the case that 22 African countries achieved growth rates in excess of 4 per cent in 2001 and that bitter long-standing conflicts are in the process of being resolved in Sudan, Sierra Leone, Angola and the DRC. Of course, if we want to focus on the negative, it is not difficult to find more than enough reasons to shrug our shoulders and dismiss Africa as hopeless. However, we do have a choice.

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The western world can also choose to be positive and offer real and meaningful support and encouragement to the African leaders who seek African solutions to African problems. In essence, NePAD involves a straightforward recognition by African leaders that it is they who carry the responsibility for solving African problems. The days of blaming former colonial powers—and, indeed, anyone else have passed. Those leaders have admitted past failings in governance and leadership and they have stated and agreed that good governance is a pre-requisite for Africa's recovery. They have also identified the three key goals of achieving macroeconomic stability, resolving conflicts in the region and creating a peer governance system to monitor progress. Ultimately, the goals of achieving political and economic transparency, mutual accountability and mutual trust are cornerstones to the success of this new initiative.
I am aware that it is said that NePAD is just another grand statement of intent, which was drawn up to prevent a reduction in aid from donor countries that are growing weary of corrupt governments in Africa. Personally, I take a totally different view. NePAD is a credible initiative and it deserves our wholehearted and ongoing support. I also believe that it provides the promise of a new start in the relationship between Her Majesty's Government and other African nations.
Ahead of the G8 Summit in Evian, President Mbeki of South Africa has warned his fellow leaders that Africa would have to fight for more attention at the summit. He went on to say that Africans would have to learn how to start relying on themselves.
There are many reasons to be optimistic about the future of NePAD. However, as the noble Lord, Lord Blaker, has already outlined, there is one major barrier to the path of progress. It was not that long ago that the Zimbabwe issue was described by the G8 as the litmus test to NePAD's commitment to good governance. Sadly, the situation in this afflicted country worsens by the day.
Mugabe's misrule has undermined every principle on which NePAD is founded. I do not believe that the link between the success of NePAD and resolving the Zimbabwe crisis has been fully digested and accepted by all African leaders. I was fortunate enough just two weeks ago to meet the presidents of Uganda and Rwanda. While both of them gave their wholehearted support to NePAD, neither of them accepted the link between the resolution in Zimbabwe and the success of NePAD. Yet the crucial plank of NePAD is peer governance, whereby African nations unite to safeguard standards of government in neighbouring countries.
Thankfully, President Thabo Mbeki and President Obasanjo of Nigeria seem to recognise the urgency now of resolving the Zimbabwean crisis. Although their trip with the president of Malawi to meet Mugabe in Harare on 5th May did not yield immediate results, there are signs of progress along the slow, quiet path of diplomacy. The general debate appears to have
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switched from "whether" Mugabe will step down to "when and how" he is to be removed. The resolution of the Zimbabwean crisis would provide a springboard for NePAD and Africa could leap forward, increasingly united, credible and resolved.
This is an historic challenge. There is a new spirit in Africa, but it requires support and encouragement. It needs the outside world to focus on the positive and so create the kind of "can do" environment in which NePAD will succeed. In my view, it has never been more important or more valuable to be positive about Africa and its future.
4.20 p.m.
Baroness Warwick of Undercliffe: My Lords, I, too, congratulate my noble friend Lord Lea of Crondall on introducing the debate. Many noble Lords can speak with greater expertise than I in this area, but as a member of the All-Party Group on Africa, which he was instrumental in setting up and of which he is so able a vice-chair, I wanted to support the thrust of his debate. The All-Party Group aims to give greater visibility to the problems and challenges of the continent of Africa and to ensure that its needs are not ignored in the cacophony surrounding other crises in the world.
It is a timely moment for this House to discuss these issues in advance of the G8 summit at Evian which, as I see it, will be a test of whether the developed world is prepared to respond in concrete terms to the opportunity offered by the NePAD framework.
The uniqueness of that opportunity lies in the fact that NePAD is African owned and led. It was inspired by key African leaders who recognise that economic development and social change are dependent on putting right the failures of government and governance and the neglect of human rights which so often lead to conflict: and the continuing conflict in so many countries completely undermines any attempts to increase investment and thus Africa's share of global trade. Bad governance is a deterrent to foreign investment in Africa.
But as the noble Lord, Lord St John of Bletso, emphasised only a moment ago, African leaders through the NePAD strategy have recognised their collective responsibility to create the conditions for development and investment by ending conflict, improving political governance and strengthening regional integration. They will be judged on their delivery, but that very recognition is such an important first step towards delivery. And of course it can be seen only as a first step. It must be backed up by commitment to action. There is, perhaps not surprisingly, a degree of scepticism about the progress that has been made.
Several noble Lords have held up the example of Zimbabwe as a failure of collective responsibility of African leaders. They have expressed concern that they have been slow to intervene in Zimbabwe and I very much share that concern. But steps are at last being taken by African leaders and there will be more. The NePAD framework is still in its infancy. It can

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only move in partnership both within Africa and with international partners. I hope that we will not be deflected from unstinting support for this fledgling process. We have to be in this for the longer term, recognising the enormous pressures on individual participants in the NePAD process.
There are key reasons for optimism, as other noble Lords have said, and I will not enunciate them. But the challenge that NePAD leaders have posed to the developed world is that we should willingly work with them to define a new way of co-operating with Africa that involves partnership and mutual accountability. Developed countries, the G8, must demonstrate that they are willing to commit sustained, increased resources if we are to make that new partnership a reality.
We also need to see much greater co-ordination between the G8 on recognising the goals that it sets for development strategies. As others have said, both here and in another place, it is important for donors to collaborate. One suggestion has been that one of their number might be appointed as a "lead" donor that could negotiate with other donors in a particular country to develop a comprehensive and co-ordinated poverty reduction strategy.
I am aware that the G8 have set a challenging set of objectives to take the partnership with NePAD forward. The strength of these objectives is that each of them was developed in partnership with NePAD leaders. I want to compliment my noble friend the Minister—as she then was and now a most welcome appointment as Secretary of State—on the crucial part she played in representing the Prime Minister in these discussions.
But while I acknowledge that the aim of these challenging goals is to develop a new style of partnership that will unlock greater resources in the longer term, not only from the public purse but also from private sources, I hope that in her response the noble Baroness will be able to give us some indication of the timescale against which success in achieving these objectives will be assessed.
I would also welcome a clear checklist of proposals for future action against which we can judge both the progress of African partners and of G8 participants. It would be enormously encouraging if the Government were able, under the UK's presidency of the G8, to encourage all members to make Africa a priority.
Finally, from my background as chief executive of Universities UK—and I declare that interest—perhaps I may make a special plea for education. Investment in education is critical to economic and social development in Africa. It also holds the key to achieving full gender equality for women and girls—another important goal.
We cannot ignore the knowledge deficit that is a critical factor in holding back development in Africa. There is a huge brain drain. It is estimated that 30,000 Africans with doctorates live outside the continent. Young adults represent about 45 per cent of the population in most African states, but higher
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education has barely made an impact. The median rate of entry into higher education is under 2 per cent in 30 countries of sub-Saharan Africa.
Universities have a vital role in producing the professionals that the region will need if it is to reach its development goals. Scholarships and fellowships remain key to this role; for example, the Association of Commonwealth Universities has developed split-site programmes and now provides distance learning scholarships and short professional fellowships to meet contemporary needs.
Will my noble friend confirm that the UK Government will continue to give priority to efforts to help African leaders not only achieve their goals on conflict resolution and better governance, but also in the key sector of education?
4.26 p.m.
Viscount Goschen: My Lords, like many other noble Lords who have spoken in the debate, I believe that NePAD gives us grounds for optimism. There are so many issues to worry about within the continent of Africa that an initiative by African leaders to recognise previous failings and to seek to address them on an international basis must be the key to the future development of that continent. I agree with my noble friend Lady Chalker that it is difficult to generalise from Angola, to the Democratic Republic of Congo, to South Africa and to Mozambique. They are very different countries and to consider them all under the one broad grouping of Africa is to cast a wide net indeed.
There have been examples in Africa which give us some degree of optimism. The success of the South African Government in taking that country forward in the post-apartheid era is extraordinary. I had never imagined that it would be so successful. It keeps the key to the success of growth within the continent. If South Africa fails, the outlook for the rest of the continent is very poor. That is why we must give South Africa all the support we can.
The blight that faces the continent from the terrible plague of HIV/AIDS cannot be over-estimated. We are talking about countries and their governance where a large proportion of the civil servants will be infected by AIDS and dying. We are talking about capacity-building within those countries. The reality is that people are dying in great numbers, including in the educated middle-classes, and the difficulty that causes for the continuing administrations of many countries of central and southern Africa is profound.
We do African countries no favours unless we talk straight about the issues that are being faced. It' African leaders can face the truth of the failings of their forebears, so should we. The crucial reason for that is that business does not speak the language of diplomacy. Business understands sovereign guarantees and good governance. We in Parliament can persuade ourselves that things are going well, but we cannot make business invest in Africa unless the climate is created that will attract investment. That is

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why I welcome initiatives such as the Africa Private Infrastructure Financing Facility and others which have been deliberately designed for that purpose.
So we have to mean what we say. If we say that NePAD is about good governance and about peer review, we have to consider the key test that that organisation now faces—another way of putting it is that it is an opportunity—and that is Zimbabwe.Many noble Lords have referred to the problem of Zimbabwe and how that can affect the whole success or otherwise of NePAD.
If we are talking about good governance, the sanctity of property, international governance and the rule of law, then torture, rape, the seizure of property and the destruction of agriculture cannot be tolerated. I agree with much of what the noble Lord, Lord St John of Bletso, said in his powerful speech. None the less, quiet diplomacy is not the same as condemnation of such appalling practices. My belief is that unless these issues are strongly addressed and condemned, and unless African leaders are seen to uphold the principles encompassed within NePAD, that initiative will not be taken seriously. So Zimbabwe is a test but also perhaps an opportunity.
I was certainly surprised by the statement that the Secretary of State—it gives me great pleasure to use that description of the noble Baroness—made in a previous debate that Zimbabwe is not a test case for NePAD. How can that possibly be so? I am interested to know whether the noble Baroness has changed her opinion since she made that statement.
When the Foreign Secretary had discussions recently with President Thabo Mbeki, there were headlines stating that there was unity about the treatment of Zimbabwe. I am not sure that that is the case. I would appreciate clarification of that from the Secretary of State.s
NePAD has been criticised as being a top-down initiative involving only African leaders and not necessarily the rest of the countries' civil societies—the man in the village. Of course that is the case, but leadership has to come from somewhere and, in the first place, it must come from the leaders. Those who rule countries must give the first indication and the first support for such an initiative. What alternative is there? If we do not have NePAD we must have something very like it. We must have an acceptance from those who are in power that good governance must be the way forward for Africa.
How can we help? I believe that we in the West can help through carefully targeted aid, through donor funds, through making it clear to our partners within Africa that we intend to uphold our end of the bargain and through lobbying strongly in international forums for others to do so. We must also not be uncritical where we should be critical.
I leave your Lordships with a final thought. Is there some way in which Her Majesty's Government and our European partners can help with capacity building in the civil services of African countries? Often we see a situation where those at the top wish to see better
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governance and wish to address the issues of corruption. It is easy to say that in a speech, but when the entire system has broken down it is difficult to execute. I welcome any initiatives that the Secretary of State can tell us about.
4.33 p.m.
The Earl of Sandwich: My Lords, the noble Lord. Lord Lea, is an experienced trade unionist and economist and a strong advocate of NePAD. He also has the most resolute e-mail address of all of us, namely, lead@parliament. I congratulate him on initiating the debate and for his leading role in the new All Party Group on Africa.
I cannot and do not fault the principles behind the new partnership. I am impressed by the commitment of African leaders, already mentioned, and, so far, of the business community. What I am uneasy about is the lack of involvement of African people below the level of Minister and, indeed, anyone off the government payroll. As the noble Lord, Lord Lea, and others have said, Oxfam, Christian Aid and others have called for more visible participation by civil society in the development of NePAD. It will otherwise wither on the vine like so many other initiatives that have not been shared with NGOs, Churches, trade unions and other active components of society. It is surely the greatest test of good governance that more of the people have more of the share in decisions affecting their country whether or not their leaders have been elected.
I have read the UK's proposed implementation of the G8 Africa Action Plan agreed at Kananaskis. While it contains fine words, the G8 can hardly expect to achieve all of it, as the noble Baroness, Lady Chalker, said. One political scientist has said that it will take a century for Africa to achieve even the degree of integration demanded by NePAD. Yet the process is under way. I have heard the positive comments of my noble friend. The AAP is also an important political initiative, a strong endorsement of the NePAD principles linked with promises of capital projects, PRSPs, enhanced sustainable debt relief and the doubling of aid according to the process agreed at Monterrey.
Aid is important if it is carefully channelled, but we must recognise the paramount role of trade. The world aid budget is only one seventh of the amount that developed countries spend a year in agricultural subsidies. I am aware of the Government's objectives for agriculture, but unless we move faster on the CAP we are condemning African countries to a permanent state of poverty.
The answer, as always, is a mixture of aid and trade. The SADC region holds out the most promise. Having been in Mozambique last December I know that the local agricultural markets are coming back to life, and the improved internal transport, international trade in food and commodities will be a lifeline for southern Africa's poorest countries. But when it comes to mutual accountability, I wonder whether donors are

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keeping their side of the bargain. There are growing doubts about the millennium development goals and even the eradication of polio by 2006.
I come briefly to the peer review mechanism, which is the most ambitious part of NePAD. I agree that Zimbabwe cannot be ignored; yet the NePAD idea is so much bigger than Mr Mugabe. As the noble Lord, Lord Avebury, said, it needs a stronger framework. There are still too many organisations involved. NePAD can and perhaps should deal mainly with the economic and social aspects, but I doubt whether the African Union can undertake the political side on its present form. I hope that the noble Baroness will give us her own opinion and not just what the UK Government want her to say.
I am not even sure about Africa's role in African conflict. Again, it is high on the agenda. It is said that NePAD cannot work in a situation of conflict, because it concerns development. Yet some of the same principles of international partnership must apply to international peacekeeping.
Peace and security, especially in the Congo, were high on the AAP agenda last year. But what happened? Until the latest horrors at Bunia there has been no real African or international initiative. I hope we shall see one now. We have some good examples of conflict resolution. Nelson Mandela's role has been widely commended and Sir Ketumile Matsire has played a powerful role in the internal dialogue in the Congo. But what about peacekeeping? Is the African Union equipped to make a response? Are Europe or NATO so equipped? Evidently not until now.
I welcome the announcement that some troops may go to the Congo, but I wonder whether that goes far enough. The UN compound in Bunia has been literally besieged by thousands of students and militia. The local police melted away and the Uruguay force at the airport could not cope. We have relied too much on neighbours like Uganda and Rwanda, local militia all with their own agenda. The two presidents of Uganda and Rwanda even came to No. 10 last week to put their case. They can he involved now only as part of an international force.
The UN has been waiting for a proper role in the Congo for several years but the will of the Security Council which can move mountains in the Balkans or the Middle East has simply not been present in the DRC. Sierra Leone showed what was possible in a contained area with a strong component of training. But is there likely to be any change in the Congo?
Will the Minister confirm that it is not principally an African but a European failure that has left MONUC unsupported, the local militia in charge and the Congolese people stranded? Was it not a breakdown in dialogue between Britain, France and Belgium? Can she give us any news of genuine progress on this in the European Union? Recently, the right reverend Prelate, who is in his place, raised that issue. I know that M. Wiltzer, the French Co-operation Minister, has recently spoken on the urgency of taking initiatives in Africa.
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Does the Minister agree with Clare Short that the EU could do more to control small arms in Africa? Can we not do more to tighten up the ECGD's regulations on arms exports to Africa? I agree that African governments could also be much more transparent about their arms spending.
Finally, is it not time that Africa benefited from a UN regional peacekeeping initiative on the scale of those that we have seen in the Middle East? The Prime Minister is always talking about Africa. Now is the time for the noble Baroness to raise her voice in the Cabinet and to remind her colleagues that this continent deserves a higher profile and more action to match the rhetoric we have already heard. I am sure that she will.
4.40 p.m.
Lord Desai: My Lords, I, too, thank my noble friend Lord Lea for proposing the debate. I join other noble Lords in hoping that my noble friend Lady Amos will use the same firm hand with the leaders of the G8 that she has used with various African leaders, and ask them to get on with the job.
There are some matters to which the G8 ought to pay attention. First, it is very important that the G8—especially the EU and the USA—should stop harming African agriculture. I hope that by the the time of the Evian summit we shall have a firm report on how CAP reform will be delivered. Secondly, we should have a promise from the United States that at the next discussions on the intellectual property rights problem in respect of pharmaceuticals it intends to agree to the WHO proposal for a limited lifting of the patent restriction. The USA is the only country to resist an agreement. I believe that we should hold the US to account on that.
Thirdly—I repeat the point of the noble Earl, Lord Sandwich—bad as the situation in Zimbabwe may seem to us to be, the urgent problem in Africa is the Congo. People are dying in their thousands. While we wish that the UN should do X, Y and Z, we never provide it with the resources to carry out those wishes. Only the G8 can take hold of the issue and say that the Congo should be sorted out with a proper peacekeeping mission. Otherwise there will he many more deaths, which will be our fault for not having sorted out the matter.
Having got that problem off my chest, we should not forget that while there are problems in Africa good things also happen. My noble friend Lord Lea was kind enough to mention a recent comparison that I made between Africa and Asia when I pointed out how good Asia was. However, one must also remember that while we criticise Africa for its tragedies, we take the tragedies of Asia for granted. No one has stood up and said that Myanmar is a litmus test for someone's policy on Asia. But Myanmar exists. There is a problem in Acheh. I could point out other problems in Asia. So I do not think that we should single out Africa as being the only bad boy in the world.
Africa has its problems and its achievements. I especially mention the re-election of the president by peaceful democratic process in Nigeria. That is a great

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plus. I should also mention the smooth transition of power in Kenya. Many of us said that that was not possible. The high growth rates of many African countries have been mentioned. Mozambique has now become a beacon of achievement rather than a land infested by civil war. So there is a possibility that Africa will emerge from its problems.
If we say to Africa that it should solve its own problems, we should not be too impatient if those solutions are not as rapid as we would wish. Europe has problems which it has not been able to solve rapidly either. So we should not ask why the problems of Zimbabwe are not being solved quickly. It is very important that ownership of NePAD remains with Africa. While we can do our best not to add to Africa's problems, we should not be so impatient that we take over the initiative to solve its problems.
The peer review process is welcome. However, not only is it ambitious, but it is not a process that any European country would accept. We should not assume that somehow a peer review process will be tolerable. It is an interference. Unless that interference is readily welcome—and welcome with co-operation by a local state—it will not succeed. It is no good imposing conditions on others which we would not accept. Therefore, I should be cautious about this peer review process. However, it is important that we welcome, highlight and advertise the successes of Africa in democratic political transition. It is important to be able to show that countries which had problems previously, such as Nigeria, can emerge from them by their own efforts. It was not outside help, it was Nigeria's own people who solved its problem. That is important.
I make one more point. We need major investment in Africa's agriculture to improve productivity. Again, as experience of East Asia shows, it is only when one creates prosperity in the rural areas that one establishes the foundations for continued prosperity.
4.47 p.m.
Lord Alton of Liverpool: My Lords, in advance of the G8 summit in Evian the whole House is grateful to the noble Lord, Lord Lea, for introducing this timely and well attended debate featuring so many singular contributions. This is also an opportunity to welcome the Minister to her new role as Secretary of State. I join other noble Lords in warmly welcoming her, not simply because of the personal achievement it represents, but also because I believe that it will bring focus into your Lordships' House on development issues and ensure that they are centre stage as political questions. We are grateful also to her for that reason.
One recurrent theme throughout the debate has been the relationship not just between NePAD, but between development itself, and conflict. Without resolution of conflict it will be very difficult to ensure the success of NePAD and bring about development. On a day when we have learned that the number of deaths in the Congo has now reached a staggering 3 million over the past five years—a point referred to
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by my noble friend Lord Sandwich—I hope that the Secretary of State will be able to say something about the apparent failure of peacekeeping in the Congo and what more we can do to end that conflict.
Furthermore, I hope that she will reflect on the deteriorating situation in Dafur in western Sudan and the jeopardising of the Machakos peace process, what that represents and whether we can expect progress to be made. Many of us had hoped to hear by June that there would be progress and that we might see an end to conflict in Sudan, so enabling some development to take place.
The ending of the mandate of the special rapporteur for human rights in Sudan has created a vacuum in the human rights monitoring mechanism: it is one which many of us find very depressing. In the past few days a 14 year-old girl in Sudan, who is nine months' pregnant, was sentenced to 100 lashes of the whip for alleged adultery. The Sudanese Government have not ratified and do not adhere to the convention against torture. We know that torture and violation of human rights have played their part in fomenting many conflicts in countries throughout the continent, such as Rwanda, during the past few years.
The noble Lord, Lord Blaker, and other noble Lords referred to the situation in Zimbabwe. Last week, I and some other Members of your Lordships' House had the opportunity to meet Archbishop Ncube of Bulawayo, an extraordinarily brave and courageous man who has won widespread admiration for the way in which, perhaps in the steps of Desmond Tutu, he has been prepared to speak out against oppression in all its forms, risking his own life in so doing. If Robert Mugabe insists in fomenting conflict, his people will not just continue to suffer. The situation will spiral down, as it has done in the Congo, Rwanda and Sudan. That will jeopardise many innocent lives, including those of children.
A few months ago, I was able to travel into southern Sudan with the SPLA and to spend some time in the neighbouring Turkana region in northern Kenya. I also visited the shanty town of Kibera, a sprawling slum close to Nairobi, which the noble Baroness, Lady Chalker, from whom many of us were pleased to hear earlier, knows. It is said to be the biggest slum in sub-Saharan Africa.
In each of those situations, I was struck by the number of rootless, drifting young people, and by the challenge that they pose to development. It is their plight on which I wish briefly to touch today. With 1 million orphans, often living rootless and disaffected lives, and their number rising exponentially, who can doubt that that will be one of the most serious challenges that that continent, riven by so many crises, must face? Africa is awash with feral children, faring little better than vermin. They deserve to be at the top of NePAD's agenda.
Orphaned children are the sharp end of the AIDS pandemic, but urban drift, civil war, a collapsing education system, to which the noble Baroness, Lady Warwick of Undercliffe, referred in her excellent speech, human trafficking—an issue with which we

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have been dealing in the Sexual Offences Bill during the past week—and corruption are all playing their part.
In a report, Children on the Brink, several agencies including UNICEF, the United Nations Children's Fund, spelt out the scale of that disaster. It states of 88 countries studied:
"More than 13 million children currently under the age of 15 have lost one or both parents to Aids, most of them in sub-Saharan Africa. By 2010, this number is expected to jump to more than 25 million".
By 2010, in 12 African countries orphans will comprise 15 per cent of all children under the age of 15. There are already indications that that will not be the peak. In Zimbabwe, for instance, 17.6 per cent of children are already orphans, three-quarters left parentless by AIDS. In Kenya, HIV prevalence among pregnant women ranges from 3 per cent in Monsoriot to 31 per cent in Chulaimbo. Bishop Patrick Harrington, the Bishop of Lodwar, in Turkana, told me that the district medical officer reports 34 per cent of the population infected by the HIV/AIDS virus. One Kenyan simply said to me, "Kenya is dying".
The consequences of a vast, dislocated and embittered underclass of orphaned children, if it is not tackled properly and fundamentally, will be devastating for Africa. Tomorrow's revolutionaries and tomorrow's coups are already in the making in the festering slums to which children with no hope or prospects are migrating. Here is a fertile breeding ground for both Marxism and the radical fundamentalism of some religious groups.
Culturally disaffected young people will always create unrest, but the numbers in Africa are without precedent. The crisis of orphans is often just shooed away; I see no evidence that we have properly understood the scale of that catastrophe or to what it may lead.
The ravages of African civil war and tribal killings take their terrible toll. In southern Sudan, the vicious policies of the Sudanese Government have caused 2 million deaths and 4 million internally displaced people, including vast numbers of children. Development is impossible in places such as the Torit diocese, which I visited, which is being pounded into the ground. Auxilliary Bishop Akio Johnson showed me where bombs had showered down on schools and the shelters where children take refuge—"like foxes in holes", he said. For most children, there is no education at all. There are just 20 secondary schools in an area the size of western Europe.
That must be the key question for NePAD to address. It is not just a question of people in parliaments such as this lecturing people in Africa. We must work in partnership with them and use our resources, as the noble Lord, Lord Judd, said, to ensure that something is done to tackle the issues.
4.54 p.m.
Lord Hunt of Chesterton: My Lords, I congratulate my noble friend Lord Lea on arranging this debate on NePAD, which potentially provides a new start for
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Africa and for improved relations between Africa and the rest of the world. I declare an interest as chairman of ACOPS, an international non-governmental organisation set up by my noble friend Lord Callaghan to promote sustainable development worldwide, especially in marine and coastal areas.
I shall focus my remarks on environmental issues and how they are being tackled by NePAD and other, supporting initiatives. There is no doubt that environmental issues are of central concern for individual Africans suffering from lack of clean water, depleted fish stocks and desertification, to mention only a few. Those issues are included as one of the five groups of themes—the others in the group being infrastructure, IT and energy—where new initatives are to be developed under NePAD. The other groups are focused on economic, political and commercial issues.
While the UK Government are, rightly, focusing on urgent political and administrative issues, they are apparently not including those environmental issues in their work with NePAD, at least according to the DfID/FCO document of November 2002. That is perhaps surprising, as the Prime Minister in his visit to Africa in August 2000 and in the conclusions of the World Summit on Sustainable Development, emphasised environmental issues. However, some government departments and agencies are certainly working with African partners on environmental and sustainability projects, inside and outside the framework of NePAD, as I shall mention.
One key area for the African environment and for providing sustainable livelihoods is the coastal zones on and offshore. That was identified in the collaborative project called the African Process, involving many African and partner countries, which culminated in an agreed set of priorities and practical projects at a meeting of African heads of state at the World Summit on Sustainable Development. I witnessed the energy and intelligence of many African environmental experts, Ministers and officials last year at Abuja as we prepared for that world summit, with the support of President Obasanjo, whose important role in Africa was mentioned by my noble friend Lord Desai.
Those proposals are now being considered for practical action in the framework of NePAD. The responsibility and the secretariat for the overall coordination of environmental issues in NePAD, belongs to the Government of Senegal, under the leadership of President Wade and their environment Minister, the honourable Mr Diagne Fada. President Wade last year presented those issues at the G8 meeting in Canada. Other countries are given specific tasks within the specific areas of the environment programme. In the case of coastal zones, the lead is taken by the Kenyan environment Minister.
The emergence of such a structure, which I have described in a little detail, for doing business is clearly a great step forward. But it appears that the diplomacy involved has been quite stressful, as we have seen in the European Union when smaller countries are leading

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the activities of larger countries. As the new approach shakes down, agreements at high levels of government must be accepted at the working level, as other noble Lords have mentioned. The establishment of those structures should also enable partner countries, international organisations and individuals to work more effectively with Africa on those issues.
It is encouraging that some major donor countries, including Japan, I believe, are providing substantial funds for the NePAD infrastructure. Similarly, officials in international and UN agencies, with their important conventions, such as the Abidjan and Nairobi conventions regarding coastal areas, must also work with the new arrangements. That will require some adjustment as, or we hope, they will in future be able to support the designated NePAD lead. Also, the NePAD structure should help non-governmental organisations and the private sector to work more effectively and transparently with African countries' civil society in future.
To illustrate that, next week, a unique conference is being held at the Natural History Museum and the Royal Society here in London to help to support the NePAD initiative on the environment and sustainability of coastal zones in sub-Saharan Africa. Twenty-five specialists and government representatives from about 10 African countries will meet about 50 UK, European and international specialists and officials. My noble friend Lord Evans of Temple Guiting will be representing Her Majesty's Government. Addresses by the Government's chief scientist and the Foreign Secretary at the Royal Society also show the strong commitment of the scientific community to follow up commitments made by governments at the World Summit on Sustainable Development.
As I have already mentioned, there are other UK agencies, such as the Met Office, DEFRA, NERC and DfID, all of which recognise the vital interest to the whole world of the environment in Africa. At a somewhat more local level, I was delighted to hear of a splendid initiative undertaken by the World Wildlife Fund and Kiunga Marine National Reserve on the Kenyan coast, which even provides jobs for women—recycling flip-flops into delightful ornaments. These flip-flops wash up in enormous quantities on the coasts of Africa.
I join with other noble Lords in congratulating my noble friend the Secretary of State on her new appointment. I look forward to hearing from her as regards how she will be directing the excellent capabilities of her department towards the solution of critical environmental and sustainability problems in Africa. As my noble friend Lord Judd might have shouted out, these are moral imperatives.
Finally—I hope that I do not break the rules here—I thought that noble Lords might be interested to hear about the strong support for NePAD from a senior official in Senegal who, this morning, sent an e-mail, which read:
"Le NePAD dolt être connu, diffusé et compris par tous les partenaires de l'Afrupie"—
NeP AD must be known about, publicised and understood by all the partners of Africa.
5.2 p.m.
Lord Chan: My Lords, I also thank the noble Lord, Lord Lea of Crondall, for securing this strategic debate. I, too, warmly congratulate the noble Baroness, Lady Amos, on her appointment as Secretary of State for International Development. I wish her well, especially because of her commitment to Africa and now, I hope, to the rest of the world.
My involvement in Africa has concerned health and disease. The health of most Africans has not improved in the past three decades; if anything, it has got worse. The average life expectancy of Africans is now 47 years, or 30 years less than it is in the United Kingdom. Endemic disease, such as malaria, continues to kill a million people every year, including many children. Infant mortality rates in Africa are among the highest in the world. HIV/AIDS affect up to one in four adults in some African countries, resulting, as the noble Lord, Lord Alton, reminded us, in 11 million children in sub-Saharan countries who have lost one or both parents. Young children orphaned by AIDS may have acquired the disease themselves.
I listened carefully to all noble Lords who have spoken about their expectations of improvement for Africa through the G8 summit at Evian. Development in Africa must now be focused on NePAD, the New Partnership for Africa's Development, a strategy led by Africans for sustainable development, and the reduction of poverty.
The ownership of the partnership by African leaders, with their role in politics and policy, gives hope for the future, but we all know that leadership commitment alone is not sufficient: local people must be engaged in the process. There is also NePAD's innovative plan for peer review to monitor progress and raise standards of political and economic governance. Thirteen African countries volunteered for peer review to take place. This initiative should be strongly supported by G8 countries, without too much negative criticism. Like other noble Lords, I urge Her Majesty's Government to take a lead to establish practical partnerships with NePAD countries.
Development success must clearly be linked with good governance, sound policies and effective aid. Like the noble Lord, Lord Judd, I ask her Majesty's Government to ensure that the substantial new development assistance commitments made by G8 will, by 2006, amount to 12 billion US dollars annually. Will every G8 donor decide how it will allocate the additional money pledged at Evian? Assuming strong African policy commitments, about half or more of the new development aid could be directed to African nations that govern justly, promote economic freedom, and invest in their own people—according to the document.
G8 has made a number of priority areas in support of NePAD: promoting peace and security; strengthening institutions and governance by capacity building programmes, promoting human rights, empowering women and implementing measures to combat corruption; fostering trade, investing, economic growth and sustainable development;

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implementing debt relief; expanding knowledge; improving health, including HIV/AIDS; increasing agricultural production; and improving water resource management. That is a very large agenda. It is to be hoped that those issues will be tackled with persistence, and that they are not allowed to fade away.
The African Action Plan contains a commitment to provide the resources necessary to eliminate polio in Africa. The commitment will require equipment, vaccines, transport, and staff supervision. There is a requirement for 218 million US dollars to support the Polio Eradication Initiative, which began about 20 years ago. Non-G8 donors will need to be found to fill this funding gap. The United Kingdom will need to allocate an additional £37.9 million to polio eradication before the end of 2005.
Essential medicines are not available throughout the year in health clinics in Africa, and in other developing countries. Her Majesty's Government have made a commitment in the next 12 months to get international co-operation from G8, other governments, and the pharmaceutical industry, to increase the availability of essential and affordable medicines in Africa. Such medicines are needed to prevent and treat common and lethal infections for children, such as malaria. Antiviral drugs to treat HIV/AIDS are needed, but at affordable costs. I look to the Secretary of State for a brief progress report on the health improvement commitments that the Government have made to NePAD.
Finally, western voluntary organisations should be encouraged to participate in initiatives with local communities in African countries. Health professionals who are willing to give their time and their skills to assist in community health services and in hospitals in African countries should be encouraged to go to Africa, though I fear that this is still in its early stages because of conflict. However, a small start has begun; for example, the International Child Health Group of the Royal College of Paediatrics and Child Health, of which I am a patron, has sent medical literature required by colleagues in Zambia. Much more can be done with the emergence of government lead, as I experienced in India during the time when the noble Baroness, Lady Chalker, was Minister of Overseas Development.
I look forward to hearing the response of the Secretary of State for International Development, especially her words of strategic importance to Africa.
5.9 p.m.
Baroness Northover: My Lords, I should like to emphasise what we said from these Benches last week when congratulating the noble Baroness, Lady Amos, on her new appointment. We know and recognise her huge commitment to this field. I am very glad that the noble Baroness's new responsibilities have not prevented her from being present in the Chamber today. Long may that continue.
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We have had a most important debate. I should also like to thank the noble Lord, Lord Lea, for his introduction. Tony Blair was surely right when he said that Africa was a scar on the conscience of the world. With the events in Iraq, it would indeed be too easy to focus on the Middle East alone, and to forget the needs of Africa. Those needs are glaring: acute poverty; the high rates of HIV/AIDS, as other speakers have mentioned, which takes out those in their most productive years; low economic growth; appalling conflicts, such as those now unfolding in the DRC and elsewhere; and corruption. All of the latter hold back hopes of progress. No wonder universal primary education and adequate health care for all seem such a distant hope.
Aid alone, as others have said, cannot deal with these problems, nor can debt relief alone, although these are both vital. But as the noble Lords, Lord Rogan and Lord St John of Bletso, and others have said, Africa itself needs to address these questions, and that is why the creation of NePAD must surely be welcome.
There are at least two views of NePAD: one is that it is a positive development, and that African countries will indeed support each other to democratise and prosper. And then there is the view that they will take no such action—Zimbabwe is taken as a case in point and the DRC might be as well—and that NePAD is a mere fig leaf for those who wish to do nothing. Perhaps there is a middle, more neutral view of "wait and see".
The Government recently stated the view that NePAD had made good progress since its inception. The noble Baroness, Lady Crawley, argued:
"It has established a broad base of support from African governments. We and others are committed in our support for NePAD, in particular through the G8 Africa Action Plan. NePAD needs time to make further progress and it needs the active support of the international community".—[Official Report, 6/5/03; col. 939.]
That is a welcome statement.
As other noble Lords have said, it is clearly very important that African countries themselves have signed up to this agreement. Few would disagree with its aims. The eradication of poverty through the pursuit of sustainable growth and development, underpinned by the advancement of good governance, democracy, human rights and conflict resolution. We surely must welcome those aims.
In a debate on 29th April in another place, Hugh Bayley made the telling point:
"We need to recognise who the sceptics are …There are western leaders who do not want to commit to more aid or to refocus their aid on the alleviation of poverty. They do not want to change the terms of trade between the rich and poor worlds …They do not want to have to adjust the way in which the rich world deals with rural economies. There are African leaders who do not want to be accountable to their people".
He also pointed out:
"For every sceptic in Africa there is an enthusiast, and the enthusiasts and their countries will benefit most from NEPA D".

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His analysis was that many African developments had failed over the years because they were built on expectations that people outside Africa would do certain things, particularly in providing more aid. He said:
"NEPA D's strength is that it concentrates on what Africa can do for itself.".—[Official Report, Commons, 29/4/03; col. 35WH.]
Hugh Bayley makes a persuasive case. That does not mean that we should not make challenges. The action, or lack of action, over Zimbabwe is surely one area we must address, as noble Lords have said. But also, as my noble friend Lord Avebury said, it is justifiable to suggest ways of improving NePAD's independence and its concepts of human rights and good governance. The noble Earl, Lord Sandwich, also made important comments about the need to involve ordinary Africans in this process. All noble Lords rightly agree that we should support the process.
When the G8 meets in France shortly, there will be a great deal on the agenda, not least the situation in Iraq. There are many bridges and relationships that need to be mended. It seems that half a day at most will be devoted to Africa. I hope that the Secretary of State will reassure us that due attention will be paid to the situation in Africa. Will the international finance facility proposed by the Chancellor be on the agenda for the G8? How far will the G8 address the health questions raised by the noble Lord, Lord Chan? And could the noble Baroness tell us what the UK proposes for the G8 summit in terms of fair trade and reform of the CAP and of the EU?
As the noble Lord, Lord Judd, pointed out, not only the EU needs to change. The US has become particularly flagrant about its own protectionism in recent years. The example the noble Lord gave of the cotton subsidies bears this out, and there are many other examples. But opening markets in the poorest countries has to be approached with care. Some are so poor and their infrastructure so weak that they will simply lose out if that happens. China may be well placed to exploit the opening of markets, but this may not he the case for a country such as Malawi.
Can the noble Baroness assure us that in considering the situation in Africa as a whole, the Government will press on the US the need to contribute its fair share of aid, including to the United Nations and its organisations? Can she also assure us that the crisis in the DRC will be addressed, as the noble Lords, Lord Desai and Lord Alton, and others have said?
The G8 Africa Action Plan paper, Towards the 2003 Summit, issued in 2002 states:
"Up to and beyond June 2003 the UK Government will support the resolution of conflicts and consolidation of peace in the Great Lakes region".
The United Nations Security Council debated the crisis in Ituri last week and agreed that current MONUC deployments are insufficient and further action is vital. They talked about a rapid reaction force that could stabilise the region.
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At the weekend, Kofi Annan called for states to come forward to support this idea, and France has indicated its willingness to contribute troops as part of an international force, perhaps led by the South Africans. Therefore, all EU states—and the UK in particular—must be pressed to support this initiative in any way possible. I note that at Prime Minister's Questions, the Prime Minister responded positively to this idea, and I would like to hear more on this subject from the noble Baroness.
The G8 must also make real efforts to tackle the global trade in arms and ensure that G8 countries are not undermining efforts to win peace in key African countries by supplying arms to these same countries.
As we have heard, there will be much on the agenda in Evian and many relationships to restore, not least with our European partners. But if we are indeed to reduce the likelihood of conflict, addressing the situation in Africa has to be a major part of that agenda.
5.18 p.m.
Baroness Rawlings: My Lords, I, too, add my thanks to the noble Lord, Lord Lea of Crondall, for initiating this debate today. With the G8 starting in less than two weeks, it is both important and timely.
The debate has been of the highest quality, with moving details of personal experiences from many of your Lordships. I was so pleased, as was the noble Lord, Lord Judd, that my noble friend Lady Chalker was able to contribute to this debate. She is, without doubt, one of the most knowledgeable people in this area, with all the work she does and the important business that she now leads called Africa Matters Ltd.
Though previous continent-wide initiatives have failed to deliver, there is still hope that NePAD's outcome will differ. We need to recognise that NePAD represents a significant shift in pan-African policy and that one year on we are still very much at the start of the process.
There have been some positive signs in African countries, as we have heard from my noble friend Lord Goschen, the noble Earl, Lord Sandwich, and the noble Lord, Lord Desai. World Bank reports show that life expectancy is increasing—for example, in Gambia it has risen from 45 to 53 years—and the percentage of the population in education has doubled in several African countries, including Uganda, Malawi and Ethiopia.
However, the continent's economic performance as a whole remains disappointing. Real GDP since the 1980s has averaged only 2.5 per cent a year, while real GDP per capita has remained virtually unchanged. There is no denying that extreme poverty is still widespread, particularly in sub-Saharan Africa, and that significant proportions of the population live on less than a dollar a day, as we have heard from the noble Lords, Lord Rogan and Lord St John of Bletso, and many others.

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One in three people is infected with HIV. It is vital that NePAD's implementation is set within the context of HIV/AIDS and shocks such as chronic food insecurity, as we have heard from the noble Lord, Lord Chan. In 2000, it was estimated that AIDS was wiping out 1 per cent of Africa's GDP per year. Can the noble Baroness tell us what the figure is now?
Issues of accountability and ownership are vital features of NePAD. The African peer review mechanism, as mentioned by most noble Lords, is an important part of that. We welcome the statement by the chairman of the steering committee in April that the independent panel of experts is expected to be appointed within the next two months. It is a worry, though, as we heard from the noble Lord, Lord Rogan, that only 13 states have yet signed up to it. However, I share the frustration expressed by so many that so little has been done about the appalling humanitarian situation in Zimbabwe. I find interesting the comparative explanation of the noble Lord. Lord Lea of Crondall, linking the situation of Mugabe with that of Scargill as,
"genuflection to the old-time religion".
I wonder if that is really good enough.
I am very pleased that the Secretary of State, is here for this important debate. Her presence gives extra weight to these difficult issues. She said that the attitude of African leaders towards President Mugabe was "disappointing". That is surely an understatement. As my noble friends Lord Blaker and Lord Goschen so rightly said, Zimbabwe is central to the future success of NePAD.
The refusal by African leaders to attend the African conference in Paris if Mugabe was not invited put African solidarity first, contradicting the commitment that leaders made under NePAD to provide and support good governance and ignoring their responsibility to Zimbabwe's suffering people. It is hard to promote NePAD if it flouts its obligations. We all have responsibilities as well as rights. As my noble friend Lady Chalker said, corruption exists only if someone offers the bribe. What discussions have the Government had with NePAD members about the formation of a sanctions mechanism to punish bad behaviour and breach of commitments?
There must be more recognition by Africa's governments of the deteriorating situation in Zimbabwe. Recent talks undertaken by the leaders of Malawi, South Africa and Nigeria produced nothing but stalemate. Enough talking; now is the time for action with Mugabe.
If I may remind noble Lords of Christian Aid's comments in 2002, warning that,
"NEPAD has been developed predominantly between African heads of state …and the G8 leaders. It is not just a partnership between African heads of state and their own people, or between African peoples".
Can the noble Baroness please comment on the measures taken to involve civil society in NePAD, as mentioned by the noble Lords, Lord Avebury and Lord Rogan?
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For NePAD to make real progress towards the 2015 millennium development goals, it is vital that Africa's nations are supported by the international community. I wish to focus particularly on trade, as highlighted by the noble Baroness, Lady Warwick. Africa has 12 per cent of the world's population but only 2 per cent of its trade. Trade helps towards employment, and, as my noble friend Lady Chalker so rightly stressed, security comes with employment. Full integration into the international trading system could release an estimated 150 billion US dollars' extra income for developing countries. However, little progress has been made within the G8 and the EU.
The noble Lord, Lord Judd, mentioned in his very eloquent speech that dumping is another problem. The past three deadlines of the Doha trade negotiations have been missed. Doha was a crucial kick-start on trade, but progress is still disappointing. However, how are we working with NePAD to ensure that trade barriers and tariffs between African countries are tackled?
I have touched on only a few of the issues surrounding NePAD. We must reassure NePAD members that we support and follow the progress of this young body, which has huge potential to do great good for the African people. However, we remain critical in our assessment not only of their achievements but of the achievements of our Government in seeking to deliver changes needed to meet the millennium development goals.
7 p.m.
The Secretary of State for International Development (Baroness Amos)My Lords, I congratulate my noble friend Lord Lea of Crondall on securing a debate on this important issue, and on his work with the All-Party Group on Africa, at whose inaugural meeting I had the pleasure of speaking earlier this year. I also thank my noble friend for his work in seeking to build relationships between French and British parliamentarians. I thank noble Lords for their very positive remarks about my work and my role. In particular, I agree with the noble Baroness, Lady Chalker, that we share the same objectives. I hope that the House will not mind if I thank the noble Baroness in particular for her very warm words and support.
A debate on NePAD and mutual accountability is timely in the run-up to the G8 Summit at Evian, where G8 leaders will receive a report on implementation of the G8 Africa Action Plan. Our debate focused on four main areas: why NePAD is important, the response of the G8 to NePAD, areas of particular concern highlighted by noble Lords, and the key challenges that remain.
NePAD matters for Africa's development. The challenges faced by Africa are widely known, and the noble Lord, Lord Rogan, mentioned them. At present, one fifth of the world's poorest people live there, and on current trends that will rise to a half by 2015. Without major changes in how Africa does business and how we do business with Africa, it will become even further marginalised. NePAD matters because it

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is an African response to its own development problems. It is an African articulation of African priorities. It sets out a set of principles for the economic, social and political development of the continent and is, therefore, a major step towards achieving sustainable development in Africa and managing its reintegration into the global economy. I agree with the noble Lord, Lord St John of Bletso, that this represents a step change in the way that African leaders think about their continent.
NePAD identifies the priorities to be pursued by African governments. Africa needs to create an enabling environment to stop capital flight—and skills flight, as my noble friend Lady Warwick of Undercliffe, noted—and to secure investment. To do so, it needs to put an end to conflicts that blight the lives of its people. It needs to put in place sound economic policies to address corruption, improve the quality of governance and tackle the spread of HIV/ AIDS. I shall return to that point.
Without such action, the millennium development goals will not be achieved. Without change, there will be little domestic or foreign investment in Africa, resulting in continued low growth or stagnation. Furthermore, the noble Baroness, Lady Chalker, was right to point out that the diversity that exists in Africa is not recognised by business when thinking about investment in Africa.
NePAD acknowledges these problems. African leaders have said that they are going to take responsibility and that they are willing to be judged by their peers and citizens. Principles for economic, corporate and political governance have been set out, and 12 heads of state have already signed up to them. The first peer reviews will begin later this year. However, we must recognise that these are early days and that the peer review mechanism is a long-term agenda for raising standards of governance. The noble Lord, Lord Avebury, asked a series of questions about the nature of the peer review process, while the noble Lord, Lord Rogan, along with other noble Lords, was critical of the fact that, so far, only 12 countries have signed up to the principles.
It is important to be realistic. It is my view that good progress has been made. Only in July last year did the African Union adopt NePAD. Our own OECD-DAC peer review process, although set up some 40 years ago, is still being refined. That demonstrates the complexity of the exercise when countries judge each other through a peer review mechanism. Building on the notion of mutual accountability, the African peer review mechanism will examine African commitments to political, corporate and economic governance in a specific country. It is a voluntary process to monitor and raise governance standards in Africa. It has almost been finalised, but has not yet been launched. Work in progress includes setting up a panel of eminent persons, finalising technical work on developing agreed definitions of mutual accountability and selecting an institution to undertake the reviews of
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corporate governance. All this will be done at the NePAD Heads of State Implementation Committee meeting to be held at the end of May.
I take the point made by the noble Lord, Lord Avebury, about the need for an inclusive process; he spoke about the importance of including NGOs in this. I hope that that will develop over time. With respect to the political aspects of peer review, I understand that, for the time being, NePAD will draw on experts selected on an individual basis until the institutions of the African Union take on this role. It is likely that economic governance reviews will be undertaken by the United Nations Economic Commission for Africa.
Economic governance reviews are likely to begin earlier than the political reviews. UNECA has said that it believes that two or three reviews will be completed by the end of the year. I think that that is a very ambitious timetable, but it is what the organisation has said. I can also assure the noble Lord, Lord Avebury, that the NePAD secretariat has been in discussion and consultation with the OECD about the peer review process. It is intended that the NePAD secretariat will eventually go into the African Union once restructuring of the union has been completed.
As regards mutual accountability, the UNECA paper recommends that donors should be reviewed on policy coherence, medium-term aid flow, donor practices and capacity building. The African side should be reviewed on peace, security and political governance, economic and corporate governance, and human development.
If Africa is to make progress, donors as well as African governments must work together to improve performance. That means increasing the volume of aid, improving the quality and ensuring coherence in other policies such as trade, as well as working to attract investment. The noble Baroness, Lady Chalker, was correct to remark that the right kind of framework needs to be put in place to attract investment and create employment. Africa's development will come from economic growth.
The last G8 summit announced its Africa Action Plan, which includes a commitment to ensure that half or more of the new development funds announced last year in Monterrey will be used in African countries to create the right policy environment. The plan also listed the responses to be made to NePAD by G8 countries, including those on conflict, trade, health, education, water and aid effectiveness. My noble friend Lady Warwick asked for a checklist against which we can judge progress. The G8 will report concrete indicators of progress at the summit in June. A number of countries will produce country progress reports at Evian so that the public will he able to judge our performance. But we should be clear that this year's summit, although it is a key milestone, is not an end in itself. We and our G8 partners will continue to work on implementation of the action plan through our bilateral programmes and our multi-lateral engagements beyond Evian. We have performed a key

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role in maintaining high-level political interest. We need to build on that momentum, including through our increased development assistance to Africa.
I turn now to peace and security issues. We want to highlight the commitment to a co-ordinated effort to bring the peace process in Africa to a rapid conclusion, and to make a longer-term commitment to post-conflict reconstruction. Concrete progress has been made towards building peace in Sudan—which is a particular interest of the noble Lord, Lord Alton—in Burundi and in the Democratic Republic of Congo. We need ensure that final important steps are taken in those peace processes, as well as to intensify efforts to plan for peace and ensure that reconstruction efforts are successful. We also need to consolidate peace elsewhere, including in Angola, Sierra Leone, Ethiopia and Eritrea.
A number of noble Lords, including the noble Lord, Lord Alton, the noble Earl, Lord Sandwich, and the noble Baroness, Lady Northover, raised the problem of the DRC. I should remind the House that the DRC is the size of western Europe and that there is no infrastructure. I acknowledge that there are weaknesses in MONUC. International partners have been working together much more closely. Those partners include South Africa, France, Belgium, ourselves and African countries neighbouring the conflict area.
Noble Lords will have been concerned about the recent upsurge in violence in the east of the country despite the signing-off of the peace process in South Africa and moves to put in place a transitional administration. The upsurge in violence was discussed last week in the Security Council and urgent consideration is now being given to the possibility of creating an international force to complement the work of MONUC and try to stop this violence as soon as possible.
I cannot agree with the noble Earl, Lord Sandwich, that there have been no African initiatives in the DRC. South Africa has played a critical role in securing the peace. The noble Earl mentioned the important role played by Sir Ketumile Masire, while my predecessor, Clare Short, facilitated talks between Rwanda and Uganda.
It is also important to mention our work to build African capacity in conflict management. A plan has been produced and will be put to leaders at the Evian summit to be held at the beginning of June. I should also like to say something about small arms and light weapons—an issue raised by the noble Earl, Lord Sandwich, and the noble Baroness, Lady Northover. The United Kingdom has pledged over £20 million to combat small arms problems, including a regional programme for east Africa, the Great Lakes region and the Horn of Africa. We also have national plans in Kenya, Mozambique, Tanzania and Uganda.
My noble friend Lord Lea asked for more information about the multi-donor-funded public/ private infrastructure facility. The facility advises governments on improving the enabling environment for private sector participation. The Emerging Africa
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Infrastructure Fund, launched in 2002, recently made its first investment in a pan-African telecommunications company. The noble Viscount, Lord Goschen, was quite right to point out that, while we cannot make business invest in Africa, we can work with the governments of developing countries to put in place the right enabling framework.
I mentioned earlier the money committed by the international community at Monterrey. I agree with my noble friend Lord Judd that we need to ensure that that money is delivered, as well as ensuring that the aid is targeted and distributed in such a way that it can produce the most positive results.
On health, since 1988 the United Kingdom has contributed over 354 million dollars towards the eradication of polio, including an additional 25 million dollars at Kananaskis last year. I assure my noble friend Lord Judd that we have worked with others to encourage pledges to close the critical funding gap. We have increased our assistance for basic education.
With regard to the global health fund, my noble friend will be aware that, for 2004, the United States has pledged an additional 1 billion dollars, which is conditional on the US contribution to the fund not being more than 33 per cent. It is an incentive for other donors to make contributions. The United States has also made a commitment of an additional 15 billion dollars for HIV/AIDS. The noble Lord, Lord Alton of Liverpool, spoke movingly about the situation of AIDS orphans. We provide substantial support to UNICEF, which is helping to tackle the problem of HIV/AIDS orphans. We also have partnership agreements with several international development NGOs.
I am happy to write to noble Lords with more information about what we are doing with respect to health and HIV/AIDS, as there are several other issues that I would like to cover in the time available. We are proposing to the G8 that we demonstrate the success of the access to medicines framework for public/ private partnership in Ghana and Rwanda initially. We hope that that will lever further international commitments onto the agenda.
The replenishment of the HIPC trust fund has now been agreed. The UK has made a further bilateral pledge of 95 million dollars, bringing our total pledges so far to over 400 million dollars, in addition to our share of any further EC pledge. Donors have pledged an additional 850 million dollars to the HIPC trust fund, to cover the costs of debt relief for multilateral creditors that do not have sufficient resources to pay for HIPC debt relief.
The noble Lord, Lord Avebury, referred to the extractive industries transparency initiative. It seeks to create transparency in payments and revenues in the extractive industries—oil, gas and mining—in countries heavily dependent on those sectors. We hope that, at the G8 summit, we will get endorsement of action to take forward the initiative as part of a broader action plan on transparency and corruption, which is one of the priorities that the French have set.

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I turn to some of the challenges that remain. Some noble Lords questioned whether we should support NePAD, when it has taken no decisive action over Zimbabwe. The noble Lord, Lord Blaker, is right: the situation in Zimbabwe is dire. I hope that the initiative taken by Presidents Muluzi, Mbeki and Obasanjo results in some positive changes in Zimbabwe. However, NePAD is not an organisation, person or entity. It is a framework that prioritises key development issues for Africa and is bought into by African governments.
The noble Viscount, Lord Goschen, referred to my previous statement that Zimbabwe was not a test case for NePAD. The success or failure of NePAD cannot be judged on the issue of Zimbabwe alone. As I said, the peer review process was endorsed by the African Union only in July last year. We would blight an entire continent if we were to judge it on the basis of what happens in one country. I cannot agree with the noble Baroness. Lady Rawlings, that nothing has been done to deal with the humanitarian crisis in Zimbabwe. The British Government feed 1,500,000 Zimbabweans a day, and we are the second largest humanitarian donor after the United States.
Trade was mentioned by the noble Earl, Lord Sandwich, my noble friend Lord Desai and the noble Baronesses, Lady Northover and Lady Rawlings. We know that Africa's full integration into the international trading system would have a hugely beneficial impact on Africa's development. Africa has 12 per cent of the world's population but only 2 per cent of the trade. The summit comes at a critical time in the trade round. It will be important to demonstrate some concrete progress on the commitments made in the Africa action plan on trade.
We have made progress on improved trade-related capacity building, on support for regional economic integration and on improving the preference schemes accessible to African countries. Huge challenges remain, and we will continue to try to get agreement in the run-up to Cancun.
Humanitarian crises are a third major challenge. I was encouraged by the response of the international community to meeting recent humanitarian needs in southern Africa, Ethiopia and Eritrea. The UK played a major role in that. However, the role of the international community must go further than supplying food aid. We must support Africa in addressing the underlying causes of food insecurity, which include poverty, ill health, poor governance and conflict.
The noble Baroness, Lady Chalker of Wallasey, touched on the importance of regional co-operation, working in partnership and actively involving the people. That was also mentioned by the noble Lord, Lord Rogan, the noble Earl, Lord Sandwich, and the noble Baroness, Lady Rawlings. Noble Lords will be pleased that the Department for International Development has funded an NGO in South Africa to communicate NePAD ideas and principles to NGOs in South Africa, as part of the process of communicating ideas.
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My noble friend Lord Hunt of Chesterton raised the issue of the environment. Environmental issues are part of sustainable development and part of our fight against poverty. We are engaged through international processes and through our commitments under the G8 Africa Action Plan, focusing on water and agriculture. I was also asked about agriculture, and the noble Viscount. Lord Goschen, asked about capacity building. If noble Lords will allow me, I will write on those matters, given the time.
In conclusion, I reiterate our support for NePAD, because of its African ownership, because of mutual accountability and because of the importance of performance measurement. I assure noble Lords that no resources have been diverted from Africa to Iraq, and I assure the noble Baroness, Lady Northover, that there is a commitment to talking about Africa at the Evian summit. President Chirac has made that clear. I also assure noble Lords that we are seeking international support for the international financing facility, which would mean a doubling of development assistance and would mean that we could achieve the millennium development goals.
The UK Government will continue to support NePAD and Africa. We will continue to work with others for further progress towards the achievement of the millennium development goals.
5.47 p.m.
Lord Lea of Crondall: My Lords, in the couple of minutes available, I must thank all those who spoke in a well informed debate. In particular, I thank the Secretary of State for her thorough response. The debate has helped to secure wider understanding of what is meant by mutual accountability. The penny has dropped on what an ambitious programme NePAD is, despite the paradox of having the commitment of African presidents to NePAD side by side with their great reluctance to be accused of neocolonialism.
The Secretary of State pointed out that we must use realistic benchmarks for progress but also said that—I paraphrase her conclusion—there were grounds, on balance, for more hope than despair. We look forward to further consideration of the matter following the Evian summit and to the work that lies ahead. I beg leave to withdraw the Motion for Papers.
Motion for Papers, by leave, withdrawn.

Judiciary, Legislature and Executive
5.48 p.m.
Lord Rodgers of Quarry Bankrose to call attention to the relationship between the judiciary, the legislature and the executive, and to judicial participation in public controversy; and to move for Papers.

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The noble Lord said: My Lords, seven years ago, on 5th June, 1996, the noble and learned Lord, Lord Irvine of Lairg, rose to call attention to a Motion in precisely the terms that I have adopted this evening. The noble and learned Lord said:
"I believe that this debate is timely. It comes when the country must believe that there is an unprecedented antagonism between the judges and the Government".—[Official Report, 5/6/96; col. 1254.]
He also referred to judicial review and judicial discretion in sentencing.
Time has moved on—there has been the Human Rights Act, for example—but not moved on. At that time the noble and learned Lord was on the Opposition Front Bench, while in most of the intervening years the noble and learned Lord, Lord Irvine, has been the Lord Chancellor and a member of the Cabinet. But changing places, and the switch from one government to another, leaves the issues much the same. In particular, the antagonism of the Home Secretary towards the judiciary is a matter of serious concern, echoing the controversy between Michael Howard and the judges between 1993 and 1997.
In the debate seven years ago there were 20 speakers—it was a full day debate-15 of whom were lawyers. Only one speaker, myself, was both a non-lawyer and a former Member of the House of Commons. I was bold, perhaps foolish, to intervene, but it seemed right to speak from a different experience to other speakers, whatever conclusion I reached. I am speaking from that perspective again. I have now spent more than 10 years in your Lordships' House. But I was a Member of Parliament for over 20 years, more than 10 of them in government. I see no merit in presenting these important issues in terms of "us" and "them" between Members of Parliament and the judges.
Of course, Members of Parliament are close to their constituents who experience the sharp end of life. They are absolutely right to listen and reflect upon public opinion on law and order, violent crime, children as victims, drugs and policing. Members of Parliament are sometimes troubled and even angry about the apparent failures of the judicial system. But I have no evidence, and I had none during the time of my own constituency, that the judiciary has been indifferent towards these problems or living in an ivory tower.
There are no easy solutions to the rough and awkward corners of our society. The judiciary, the legislature and the executive each have their task. It is better to work together in a tolerant partnership, given their inescapable roles. That is why I am particularly disturbed by an article in the London Evening Standard on 12th May, under the name of David Blunkett. The Home Secretary chose the headline, "I won't give in to the judges", quickly slipping into,
"my so-called 'war on the judges'".
He asked why it was not possible to avoid,
"a strong and lively debate"
about Parliament and the judiciary instead of "a brawling slanging match". It was news to most of us that the judiciary had been brawling at all.
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There was a good deal more of hyperbole, often lumping together the judiciary and the rest of the legal profession. More important, Mr Blunkett made disturbing assertions that "judges now routinely "—1 repeat, "routinely"
"rewrite the effects of a law that Parliament has passed",
with,
"ever more ingenious ways of getting what they want".
This was not a casual news-based item, but a carefully considered article of over 1,000 words. At the core was his argument that,
"we need a long hard look at the constitutional relationship between Parliament and the judges and be clear how ii has changed".
But if he has raised some fundamental questions, they cannot be the property of the Home Secretary alone. On the contrary, much of the substance of the article is closer to the responsibilities of the Lord Chancellor than those of the Home Secretary. So long as the Lord Chancellor's Department remains within Government, the Lord Chancellor cannot wash his hands of Mr Blunkett's statement. To be fair, that would not be characteristic of the noble and learned Lord, Lord Irvine of Lairg.
There may be a case for "a long, hard look" at the constitutional relationship that Mr Blunkett wants. We shall see in this debate and elsewhere. But there cannot be a bilateral exchange between the Home Secretary and the judges, least of all in the language of the Evening Standard article. In the article, the Home Secretary referred to the judgment delivered by Mr Justice Collins on 19th February in an asylum case, saying,
"the Home Office eventually won the legal arguments".
In fact, on 18th March., the Home Office lost the appeal. But on this occasion it is not asylum policy or the outcome that I am discussing; it is the manner in which the Home Secretary handled the matter.
Mr Blunkett was clearly very upset about the initial judgment. He appeared on the BBC Radio 4 programme, "The World at One" and said:
"Frankly, I'm fed up with having to deal with a situation where Parliament debates the issues and the judges then overturn them".
He added:
"I am absolutely clear that we don't accept what Justice Collins has said. We will seek to overturn it".
That was not an off-the-cuff response, as the judgment had been delivered on the previous day. It was, again, a considered statement. And he made no comment on an unpleasant and highly personal attack on Mr Justice Collins in the Daily Mail.
The matter was raised by my noble friend Lord Smith of Clifton at Questions on 26th February. The Lord Privy Seal, the noble and learned Lord, Lord Williams of Mostyn, was at his most emollient, and that can be very emollient indeed. He said:
"We live in a pluralist democracy",
adding that the Home Secretary was,
"perfectly entitled to give his view about the judgment of Mr Justice Collins".

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He drew attention to another interview in which the Home Secretary had said,
"'I merely ask that alongside'"—
that is, the role of the judiciary—
"'that there should be a recognition of the role of government in establishing public policy'".
The Lord Privy Seal mentioned yet another article—the Home Secretary had had a couple of busy days—in which he made,
"a classic statement of constitutional principle".
In response to a Question asked by my noble friend Lord Lester about whether Whitehall had briefed the Daily Mail against Mr Justice Collins, the Lord Privy Seal said,
"I have not the slightest idea".—[Official Report, 26/02/03; cols. 239-240.]
I make no criticism of the Lord Privy Seal. As expected, he made the best possible defence of the Home Secretary. But he knew, and the House knew, that the Home Secretary's remarks were against the spirit of—to put it at its least—the conventional relationship between the executive and the judiciary. Mr Blunkett's remarks had been foolish and damaging. The Home Office was entitled to appeal against Mr Justice Collins's judgment, but the Home Secretary went far beyond what was required in making an attack on Mr Justice Collins.
I turn for a moment to two announcements by the Home Secretary made on 7th and 9th May calling for clarity, consistency and confidence, as the Home Office puts it, in sentencing. In the first, he referred to "tougher sentences for murderers"; in the second, he announced a new sentencing body "to guarantee sentencing reform". The principles of tougher sentences will form part of the current Criminal Justice Bill and the new sentencing body will follow.
The Home Secretary explained that he was not prepared,
"to allow sentences …which do not reflect either the punishment required or the need to give a clear signal to perpetrators that will not tolerate their presence in our society".
He said that "life should mean life" for the most serious crimes of murder. For other serious crimes, there should be a minimum of 30 years in prison, and there should be a minimum of 15 years for other murderers.
The Criminal Justice Bill should reach your Lordships' House towards the middle of June and the Home Secretary's detailed proposals will be debated at that time. I am not pursuing the new minimum sentences or the meaning of "clarity, consistency and confidence", although other noble Lords may wish to do so. My concern today is the extent to which these proposals shift the balance towards the executive from the judiciary. The Home Secretary called his statement "a landmark change." For the first time, he said,
"Parliament will …provide a framework for judges to determine how long an offender should spend in prison".
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I accept the Home Secretary's term "a landmark". He is right. The effect of these changes will diminish the discretion of the judges.
As for the sentencing guidelines council, I find it difficult to measure its weight and significance. The chairman will be the Lord Chief Justice, with seven members of the judiciary and five lay members, including the interests of victims of crime. The purpose may or may not be cosmetic. In his statement the Home Secretary referred to "too much individual discretion" in sentencing, but its powers do not appear beyond—his own description—a "dialogue" between members.
I am not claiming that the Home Secretary's new proposals—the two announcements—are unconstitutional. But, I repeat, the balance between the executive and judiciary is changing, which is precisely what Mr Blunkett wants.
Let me go back to the background of the debate seven years ago and the Home Secretary's article of 12th May. The Home Secretary claimed that the judges routinely rewrite the effects of a law and find ways of getting what they want. But judicial review is not an appeal on the merits of the case: the merits have been decided by Parliament. Judicial review simply decides whether the actual exercise of power is lawful, fair and reasonable. Judges are seeking to interpret what Parliament has decided, sometimes as the result of sloppy or ambiguous drafting by Ministers.
The Home Secretary complains about,
"a rash of high-profile cases",
under the Human Rights Act 1998. However, apart from his claim, only about 400 cases of judicial review in a year succeed—about 15 per cent of all applications. That is despite the vast number of decisions that are made by officials.
"Our democracy", as the Home Secretary described it, is not only the processes of Parliament. The noble and learned Lord the Lord Privy Seal was right: ours is a pluralist democracy. There is a huge subtle web of relationships, far beyond one man, one woman, one vote at the ballot box, the votes in Parliament and the decisions of Parliament. Our democracy is rich, sophisticated and vigorous.
If I was still in the House of Commons, I might be tempted to say to the Home Secretary, "Stop whinging". But in your Lordships' House and on this occasion, I suggest as an alternative that he stays silent and calm and, to use another word that he likes, takes a rather more mature view of these very important issues. I beg to move for Papers.
6.4 p.m.
Lord Woolf: My Lords, I am extremely grateful to the noble Lord, Lord Rodgers of Quarry Bank, for enabling us to have this debate. It was pleasing to hear him speak today as eloquently as he did seven years ago in the debate on the same subject.
As the noble Lord indicated, we are concerned today about the relationship between the different arms of government. Judges of all levels are concerned

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about the tone and content of the current public debate about that relationship. After consultation with other members of the senior judiciary, I decided that it would not be helpful for me to leap into print, as to do so could so easily be portrayed as my entering into an unattractive tussle between competing interests. Having heard at the weekend of this debate, I decided that, as I have the privilege of addressing your Lordships in person, it would be wrong of me not to inform the House of the reasons for the judiciary's concern, so far as it is possible to do so within my allotted time of seven minutes.
Before I proceed let me make some things clear. First, it is not in issue that the three government departments responsible for the criminal justice system are at one with the judiciary in seeking to improve that system and the public's confidence in it. Secondly, it is not in issue that changes are needed to the criminal justice system and that Parliament is the body that should have the final say as to what form those changes should take. Thirdly, it is not in issue that changes that are made by Parliament will be loyally implemented by the judiciary. Fourthly, it should not be in issue that, if the justice system is to be improved, close co-operation is required between the government departments involved, the judiciary and the legal profession. Fifthly, it should not be in issue that in recent times the judiciary has indeed co-operated with government departments, so far as is appropriate, to achieve the changes that are needed. Sixthly, it is not in issue that the judiciary can appropriately contribute to the work of parliamentary committees that have responsibilities in relation to criminal justice and human rights.
Let me say a few more words about co-operation. The implementation of the civil justice reforms involved the Lord Chancellor's Department, the legal profession and the judiciary working closely together. The success of the reforms demonstrates what can be achieved through co-operation. Happily, that co-operation continues. The judiciary has made very substantial efforts to assist the Home Office in achieving our common objective of improving the criminal justice system. My predecessor, the noble and learned Lord, Lord Bingham, established the Rose committee, which takes its name from Lord Justice Rose, to ensure that there is a body of highly experienced judges who can give a prompt response to proposals for change when they are received from the Home Office.
We have ourselves asked for legislation to introduce changes which we see as being needed. In relation to asylum and immigration, which we recognise are particularly difficult areas for the Home Office, we have tried to assist in every way that is appropriate. We have made Mr Justice Collins, and now Mr Justice Ouseley, available to be presidents of the Immigration Appeal Tribunal. They have transformed that body. We have made senior judges available to sit on the Special Immigration Appeals Commission so as to try to ensure that the rights of suspected terrorists who are being detained without trial receive proper protection in a manner which does not prejudice national
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security. We have also made special arrangements to enable certain asylum proceedings to be disposed of with remarkable expedition.
One of our senior judges, Lord Justice Kay, sits on the National Criminal Justice Board, a body with a critical role in achieving co-operation between agencies. We have co-operated with the various initiatives which the Home Office has rightly piloted to improve the justice system.
There are a great many more examples that I could give, but, regrettably despite our efforts, we have so far failed to achieve the co-operative relationship that is required between the judiciary and the Home Office. Unfortunately, there are times when the judiciary is left with the impression that its efforts are neither appreciated nor welcomed.
Members of the judiciary are fully prepared to accept criticism when it is justified, but they are particularly vulnerable to unjust criticism. They have no public relations machine to deploy to rebut such criticism. They are dependent upon the reasoning set out in their judgments to explain their decisions, but they cannot compel their critics to read their judgments. If judgments are not understood or are misrepresented, the judiciary is inhibited from responding because of the very important convention that judges do not discuss individual cases. The lack of response from individual members of the judiciary or the judiciary as a whole should not be regarded as indicating that criticism is not extremely damaging and, if unjustified, unfair. It is damaging because it undermines the confidence of the public in the justice system and inhibits reform of the system. It also makes the individual tasks of judges more difficult.
Finally, I turn to judicial review. Judicial review is the last protection of the individual member of the public from the unlawful activities of public bodies, including, when appropriate, the government of the day. So far as this is consistent with upholding the law, the procedure is designed to minimise the impact upon the activities of public bodies. A wide range of public bodies are subject to judicial review in addition to the Government. It is of course frustratine, for the Government to be unsuccessful, but the courts do not intervene unless that intervention is necessary to uphold the laws passed by Parliament. Out of respect to the courts and Parliament, the Government must resist giving vent to their frustration.
To attack judicial review is to attack one of the basic protections of our society today. It is inconsistent with the rule of law. It must not be forgotten that the rule of law has a critical role to play in the war against terrorism and that this country is regarded as being its flag bearer around the globe. The impact of any failure on our part to observe the rule of law is not confined to this country.
Baroness Crawley: My Lords, I apologise for interrupting the noble and learned Lord, Lord Woolf, but we have agreed a time limit of seven minutes.
Lord Woolf: I apologise, my Lords. I come to my conclusion by emphasising the judiciary's deep commitment to the improvement of the administration of justice and by making a plea for those who share that commitment to be prepared to co-operate fully with us in achieving the improvements which are needed. I apologise for my discourtesy to the House.
6.14 p.m.
Lord Morris of Aberavon: My Lords, I, too, am grateful for the opportunity that the noble Lord, Lord Rodgers of Quarry Bank, has given us for this debate on judicial participation in public controversy.
The use of judges to head public inquiries always causes me concern. Frequently there is no one else one can trust to be so impartial, but there is a price to pay. When a judge enters the marketplace of public controversy outside his court and throws coconuts, he is likely to have coconuts thrown back at him. If one values the standing of the judiciary, as I do, the less they are used the better it will be. Neither Lord Scarman's findings on the Brixton riots nor those of Sir William Macpherson escaped completely without criticism.
Secondly, politicians should exercise great restraint in their comments on the judiciary. In another place, it used to be out of order, and probably still is, to comment upon a judge without a substantive Motion. The Home Secretary uses colourful language in his writings. Surely there must be a better way for a Minister to get his views over. If the Home Office gets its actions right, the problems may not arise. I say no more.
Thirdly, the growth of judicial review and the adoption of the human rights convention have radically changed the duties of the judiciary. I read that, in 1980, there were 149 cases of judicial review. In 1997, there were 2,573. It is expected that there will be some 5,000 cases in 2003. Like the noble and learned Lord, Lord Woolf, I very much value judicial review as a bulwark for the people.
As a young man I heard Lord Scarman speak in west Wales on the human rights convention. "Trust the judges", he said. Even then his boldness caused me some concern. The more that judges' views are sought on convention concepts the greater will be the likelihood of controversy. However, I think that the track record of our judiciary in interpreting human rights concepts has in fact caused comparatively little controversy. Nevertheless, it may be opportune before very long for this House to sit back and examine both the growth of judicial review and its effects and the way in which human rights concepts are interpreted.
I turn to another aspect of the relationship of the judiciary and the executive—the office of the Lord Chancellor at the head of our legal system and its holder as part of the executive. With the reform of this House as a backcloth the office cannot escape examination. There are distinguished Members of this House who advocate a supreme court. I have reread the case of the Bailiff of Guernsey, in which, on its facts,
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the court—including a distinguished British judge—found unanimously that there had been a breach of the right to a fair trial. The bailiff had presided at a legislative stage and later as part of the executive on a planning inquiry. It was all about the change of use of a shed—perhaps the modern equivalent of the "snail" in our legal history.
The Lord Chancellor was right when he said that the position of the Lord Chancellor is unaffected. The question was whether, in a given case, the convention requirements were met. In a large number of cases where convention rights are not affected, he will sit. However, he has already reduced his availability by stating that he will not do so where Article 6 might be infringed. The reality is that the growth of cases involving the convention and of judicial review involving government should persuade us to take stock of the position.
However, in my view the prime justification for a change in the role of the Lord Chancellor is the substantial growth in the responsibilities and the spending of his department. Constitutionally, the granting of supply is the sole prerogative of another place. In 1989–90, the spending of the legal departments, including the Law Officers, was £1,173 million. In 2002–03, it is estimated that it will be over £3,000 million excluding the Law Officers.
A great spending department should have at its head a person directly answerable to another place. That is why it is rare for a Cabinet Minister other than the Lord Chancellor and the Leader of the House to be a Member of this House.
I well remember the fuss when Lord Home and the noble Lord, Lord Carrington, became Foreign Secretaries. Their department's spend was about half the then total of the Lord Chancellor's Department.
These problems will not go away, and it would be prudent for us to consider them—soon.
6.20 p.m.
Lord Windlesham: My Lords, I start with a reflection. The remarkable tolerance of the British constitutional practice has been demonstrated by the Home Secretary, an elected Member of one House of Parliament, criticising the Lord Chief Justice on a public platform outside Parliament, and by the noble and learned Lord. Lord Woolf, as a Member of the other House of Parliament, replying from within it—and what an effective reply it has been.
The debate is timely for several reasons, not only for the Home Secretary's reported remarks in his speech to the Police Federation at Blackpool last week. Although his unwarranted criticism of a recently retired and well respected High Court judge was widely reported in the press, the fact that no mention of it was included in the Home Office press release suggests that Mr Blunkett was speaking off the cuff—something that departmental civil servants always dread on sensitive occasions of that sort. Yet his censure of the judiciary was important in that it

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demonstrated publicly his own true instincts, and his political values, more starkly than would have been the case in any more carefully edited text.
As widely reported in the press, Mr Blunkett said that judges should live in the same "real world"—that dread phrase—as the rest of us. In a regrettable display of what can only be regarded as class prejudice—there is no other word for it—he declared that a retired judge who had criticised his policy in a radio interview only recently appeared to have discovered that the people he tried lived in a different world from those he had met—mark these words—at school, at university and in his chambers. I know Sir Oliver Popplewell, as do others present in the Chamber this evening. He was my vice-chairman for a time when I chaired the Parole Board. It is an entirely unfair caricature.
If sentiments of this sort are to be the driving force in relationships between Ministers and the higher judiciary, then, indeed, the outlook is bleak. What the Home Secretary appears to want to do is to determine levels of punishment by ministerial decree. This is illustrated by his attitude towards the duration of the period to be spent in custody by offenders who have been sentenced to life imprisonment for murder or certain other serious crimes. His latest claim is that the tariffs—that is, the minimum period to be spent in custody by offenders who have been sentenced to life imprisonment for murder or certain other crimes—should be reviewed. This is very difficult to accept. What it boils down to is his belief that the guidelines set by the Lord Chief Justice are simply not long enough. But how to decide what is long enough? It is a personal judgment which may be influenced and I believe is strongly influenced in the instance of the Home Secretary by reactions as reported in the mass media.
In any high profile criminal trial which attracts the interest of the mass media there is always the likelihood of a strongly punitive public response. From time to time judges have to stand up to this criticism when deciding what is the correct sentence that they believe is appropriate to all the facts that have been heard by the court. We should be grateful to them for doing so.
6.26 p.m.
Lord Dholakia: My Lords, I, too, thank my noble friend Lord Rodgers of Quarry Bank for initiating this very timely debate. I very much enjoyed the constructive response of the noble and learned Lord the Lord Chief Justice.
I should like to concentrate on just one key aspect of the relationship between the legislature, the executive and the judiciary; namely, the issue of sentencing. The nature of crime may vary from place to place and from generation to generation. We can argue about factors that affect crime and its causes, but crime is something with which all societies have to come to terms in their own way. We also have ample evidence to confirm that the public and political mood continues to be conditioned more by hunch, gut feeling and tabloid publicity than by sound research.
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The frequent calls for stiff punishments for the minority of offenders convicted of crimes involving violence, drugs or sex are not necessarily in conflict with a wish to see fewer prisoners. No one disputes for a moment that grave offences should in general attract long sentences. But the exaggerated and generalised language sometimes used about crime and law and order tends to create a climate in which it is much more difficult for the more restrained message to be heard and acted upon. The present pronouncement from the Home Secretary has not helped. A determined effort from politicians and others is needed to secure a decisive shift in the public perception of crime and punishment. We need to challenge the attitude among some people that the best thing to do with criminals is to lock them up, preferably in some of our unhealthy prisons, and throw the key away. But that is not realistic and it is unacceptable in every respect.
The past 15 years have seen an unedifying and unnecessary struggle between successive Home Secretaries and the judiciary over one key aspect of sentencing—the resistance of Home Secretaries to losing their former powers in relation to life sentences. The power of Home Secretaries to set tariffs and make release decisions in life sentence cases has always been deeply offensive to the basic principles of justice. Setting tariffs is clearly a sentencing decision and it is right that it should be made by a judge following a judicial process, not by a politician. The procedure whereby Home Secretaries have made such crucial and far-reaching decisions in private, with no right of a hearing for the prisoner and with no right of appeal against the decision, contravenes fundamental precepts of natural justice. In high profile cases there is always a risk that elected politicians will be influenced by considerations of electoral popularity and tabloid headlines rather than by the merits of the case.
Yet successive Home Secretaries have resisted every move to challenge their powers on life sentences and they have been forced to withdraw from decision-making only because the Government have lost a series of cases in the European Court and before our own courts applying the Human Rights Act. Even now, the present Home Secretary is not prepared to let the matter go, but has tabled amendments to the Criminal Justice Bill that set significantly higher starting points for tariffs in murder cases, including whole life tariffs for some types of murder.
Constitutionally, Parliament has the right to set down the parameters of sentencing in legislation. There is no dispute about that. Morally, however, Parliament should refrain from legislating for a sentencing framework which will make it extremely difficult, if not impossible, for judges to do justice in individual cases. It should resist laying down a sentencing framework which will have all the ill effects of past failed attempts to distinguish between the heinousness of different categories of murder, such as the Homicide Act 1957, rather than leaving judges to assess the seriousness of each case in the light of all the circumstances.

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Parliament should resist laying down a framework of sentences that will deprive significant numbers of prisoners of all prospect of release and any incentive to reform, thereby making it much harder for prison staff to control prisoners deprived of hope and with little to lose. It should resist rushing through a sentencing framework in such a grave area of decision-making which has been produced by the Home Secretary with no consultation whatever with the judiciary, the Prison Service, the Probation Service, victim support organisations, the sentencing advisory panel, or voluntary agencies working with offenders, such as NACRO. I have an interest as the chair of that body.
There have also been increasing moves towards Parliament's laying down mandatory sentences in cases other than murder. Since 1997, we have seen automatic life sentences introduced for a second serious violent or sexual offence, minimum seven-year sentences for a third offence of trafficking in class A drugs, and minimum three-year sentences for a third domestic burglary. The Government have now tabled amendments to the Criminal Justice Bill to provide for five-year minimum sentences for certain firearms offences.
There again, Parliament has the constitutional right to pass such legislation if it chooses to do so—but that does not mean that it is either sensible or morally right to do so. World-wide research on sentencing indicates that increasing the severity of penalties has little if any demonstrable deterrent effect on potential offenders. That is because offenders fall broadly into two categories: first, those who do not calculate rationally when committing an offence; and, secondly, those who plan carefully but plan not to get caught. The evidence shows that increasing the likelihood of detection can produce lower crime rates, but toughening up sentencing produces little demonstrable deterrent effect.
Although mandatory sentences do little to reduce crime, they do a great deal to produce injustice by tying judges' hands and making it impossible for them to sentence according to what the individual offenders deserve. They also produce distortions in the criminal process. For example, they deter guilty pleas with the result that more witnesses unnecessarily have to go through the distressing experience of giving evidence. In some cases the problems of evidence lead to acquittals of guilty defendants.
The system of justice is at the heart of our democratic process. It is the envy of the civilised world. Public confidence is shaped by the way in which justice is delivered. It does not help when the executive start interfering with it.
6.33 p.m.
The Lord Bishop of Worcester: My Lords, in the presence of persons of such distinction and experience on the subject, and in a debate for which I share the gratitude already expressed by many noble Lords, I hope that it will not be thought unduly abstract or over-ambitious if I devote my few minutes to a
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discussion of the nature of reality. If noble Lords think that that is a subject about which no human being should talk, I can only say that we on these Benches are constantly talking about subjects about which no human being should talk.
I am prompted to speak by a sentence referred to by the noble Lord, Lord Windlesham, from the Home Secretary's speech to the Police Federation, in which he said that he wanted judges who inhabited the same real world as he did. I do not wish to raise the question of whether that had a class focus or not; I simply want to talk about what that says about reality and how it is discovered.
It is important that the House reflect again on the fact that the constitutional and legal arrangements of our society do not come from nowhere. They are based on profound epistemological and ontological convictions—they are based on a set of beliefs about how human beings are to discover reality, and the capacity of any single human being or group of human beings to discover what is real, and good, and true. The wisdom that has produced the network of constitutional and legal arrangements already referred to derives directly from those fundamental convictions.
Out of those convictions comes an insistence that, if we are to discover reality, we must have a variety of perceptions of reality inter-playing with one another, and a variety of organs of society that present those convictions and perceptions to one another. The control of the perception of reality by one arm of government would represent a departure of the most fundamental kind from those convictions that are the base of our Parliament, our democracy and our society.
On these Benches, it is very hard not to feel a great deal of empathy with the Home Secretary in his position. I dare to say that we have some understanding of what it is like to be a person with a mission, and we have some understanding of what it is like to find that mission apparently frustrated by a very peculiar network—one that is hard to understand—of authorities and powers in an institution. The Church of England knows about that very well. Empathy with that frustration leads us to say that out of our corporate experience not out of my personal experience—has also come a wisdom of the need for some separation of powers. It is not conducive to the common good—to the discovery of reality, truth, beauty or anything else—for power to be vested in one part of the government and authority of any institution, least of all our country.
I therefore want to suggest in all humility to the Home Secretary that his sense of mission is entirely justified—that his conviction that the victims of crime need our protection as much as they have our concern is absolutely right. However, the way forward in discovering how to implement that mission must include a respect for the variety of perceptions and functions offered to the different organs of our society. It may in the short term—although I doubt it—appear to be a protection of victims for powers to be assumed

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by one arm of government, but in the long term we shall find ourselves living in a society in which none of us is protected or can feel content.
From the Home Secretary's comment about the real world it followed, very logically, that he could go on to say that he wanted judges who helped the police to do their job. I do not. If the judges are to help the police to do their job, or bishops, company directors or politicians to do theirs, it will be by the judges doing their job. If those distinctions are not preserved, we shall be in peril, because the convictions from which I began, fundamental as they are, are also fragile. The past century has taught us a great deal about their fragility, and this century is continuing to teach us about their vital importance.
6.39 p.m.
Lord Ackner: My Lords, almost seven years ago, while only a shadow of what he was to become, the Lord Chancellor initiated a debate on the selfsame subject. It had approximately the same number of speakers as today's debate; but the allotted time was four and a half hours. Today, we have only two and half hours. Of necessity, I must concentrate on only a small—but very important—part of this subject matter.
The Lord Chancellor believed the 1996 debate to be "timely", coming as it did,
"when the country must believe that there is an unprecedented antagonism between the judges and the Government".—[Official Report, 5/6/96; col. 1254.]
It must be common ground that that precedent has been swiftly overtaken. We have currently the unprecedented hostility within government—with the Lord Chancellor, very rightly, upholding the rule of law and in particular the obligation of the judges to apply the provisions of European human rights legislation, whose incorporation into English law the Lord Chancellor, pursuant to government policy, enthusiastically sough, and, on the other hand, the Home Secretary criticising the judiciary "for undermining democracy" and being "out-of-date"—criticism which related specifically to the Lord Chief Justice, who very recently issued guidelines in murder cases.
The House of Lords recently decided, applying the European legislation, that the Home Secretary is acting unlawfully in seeking to play a decisive role in fixing the period that those convicted of murder must spend in prison. So frustrated is the Home Secretary at being deprived of this power (a deprivation long advocated by this House) that he is proposing in the Criminal Justice Bill, shortly to be considered by this House, to hobble judges to the imposition of minimum terms from whole life to 14 years depending on his subjective assessment of the seriousness of the categories of murder he has specified.
In so doing, he has shown: first, a profound disagreement with the former views of his department, which he has in no way sought to justify; secondly, a total lack of confidence in the Attorney-General's power to evaluate the adequacy of the length of time
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murderers should be confined; and, thirdly, a total lack of confidence in the willingness of the Court of Appeal to substitute the just sentence in cases where the original sentence was unduly lenient.
In the limited time available I shall deal with those three points seriatim. As regards previous policy, the 1990 White Paper issued by the Home Office entitled, Crime, Justice and Protecting the Public, states:
"it is not the Government's intention that Parliament should bind the courts with strict legislative guidelines. The courts have shown great skill in the way they sentence exceptional cases. The courts will continue to have the wide discretion they need if they are to deal"—
I emphasise—
"justly with the great variety of crimes which come before them. The Government rejects a rigid statutory framework on the lines of those introduced in the United States, or a system of minimum or mandatory sentences for certain offences. This would make it more difficult to sentence"—
I stress—
"justly in exceptional cases. It could also result in more acquittals by juries, with more guilty men and women going free—
I stress again
"unjustly as a result".
On the second and third matter, I can deal with the position of the Attorney-General and the Court of Appeal together and quite shortly.
Under Section 36 of the Criminal Justice Act 1988, if it appears to the Attorney-General that the sentencing of a person in a proceeding in the Crown Court has been "unduly lenient", he may, with the leave of the Court of Appeal, refer the case to it to review the sentencing of that person, and on such a reference the Court of Appeal may quash any sentence passed on him in the proceeding and in place of it pass such sentence as it thinks appropriate to the case.
Murder cases cover a very wide spectrum of human behaviour from terrorist attacks down to the mercy killing of a greatly loved close relative who is suffering intolerable pain from a terminal illness. But there are many more serious cases, such as rape, robbery and arson, to name but a few, and for such cases the court has the discretion to impose life imprisonment.
It has been decided in recent times that the Home Secretary has no part to play in such sentencing. The trial judge fixes what has been known as the punitive part of the sentence; that is, the minimum period that the offender is required to remain in prison before being eligible for consideration by the Parole Board. The Parole Board's decision on whether or not it is necessary for the protection of the public that the prisoner should continue to be confined binds the Secretary of State. In such cases the trial judge considers the matter in open court, permits representation on behalf of the offender, and his decision is appealable to the Court of Appeal. The Court of Appeal has the power, and has on very rare occasions used that power, at the suit of the Attorney-General or on its own motion, to increase the sentence from a determinate period to life imprisonment. There is, however, not the slightest indication that the frequency or success of the Attorney-General's

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application has given rise to any suggestion that the judges are failing in their duty to impose the just sentence.
We should now make the mandatory life sentence discretionary; or, if we retain it, we should assimilate it to the discretionery life sentence procedure which I have briefly described.
While fully aware that we send more offenders to prison and for longer than any other European country bar one, the Home Secretary, for party political purposes, seeks to exploit the public illusion that judges are soft on crime. That is grossly irresponsible. While accepting that in any democracy there will always be a measure of tension between the judiciary and the executive, the present position has become intolerable.
6.48 p.m.
Lord Borrie: My Lords, we are all well aware that the noble and learned Lord the Lord Chancellor, who initiated a debate on this subject in 1996, lost virtually no time after coming into office in the following year in introducing the Human Rights Bill. He is a proud and passionate defender of the values contained in the Human Rights Act, and of what he might describe as the sensible and balanced approach of the judges in adjudicating on challenges made under that Act since it came into force in 2000. He rounded off a public lecture delivered at the University of Durham last November by saying that the Act had,
"breathed new life into the relationship between Parliament, government and the judiciary, so that all three are working together to ensure that a culture of respect for human rights becomes embedded across the whole of our society".
I strongly agree with the noble and learned Lord the Lord Chancellor, who also said in that lecture that in a democracy under the rule of law, it is not mature for Ministers to cheer judges when a win is secured in court proceedings and to boo when a loss is suffered. I have some sympathy—or, if I may borrow from the right reverend Prelate, some empathy—with Ministers who see policy decisions for which they are accountable in an ongoing way to Parliament and ultimately to the electorate, upset by unelected judges. who are, in a sense, not accountable to anyone and certainly have no responsibility for the ongoing work of developing policy in a particular field.
The grounds on which judicial review can be sought for ministerial decisions are, to use the straightforward and simple words of the late Lord Diplock, that a decision is tainted with,
"illegality, irrationality or procedural impropriety".
Parliament has never laid that down. To coin a phrase, it is a doctrine of the judges, by the judges and for the judges. All that Parliament has done is to endorse the machinery of judicial review in the Supreme Court Act 1981. I am not surprised if some Ministers—as we have heard, Labour as well as Conservative Ministers—may not always accept adverse court decisions with good grace and contentment.
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I am an enthusiast for the growth of judicial review over the past 20 or 30 years, and I said so in that debate seven years ago, about which I have spoken. The noble Lord, Lord Rodgers of Quarry Bank, said then that all governments abuse power. I guess that he has the same view today as he had then. There needs therefore to be accountability on the part of governments, government departments and officials and agencies of all kinds, to an independent judiciary.
However, there are sometimes signs—it would be wrong if I ignored this entirely—that courts can overreach themselves. As other noble Lords have said, although it is very firm law that the judges are not supposed to question decisions simply on their merits, they therefore may not use irrationality as a basis for attacking decisions simply because they might disagree with them on the merits. They have not always been careful to maintain that distinction.
I shall not on this occasion repeat the examples that I gave in the previous debate because there is now a new factor, which is worth mentioning and which has expanded the scope of judicial review; that is, the Human Rights Act. The traditional basis for judicial review—if "traditional" is the right word for something fairly modern—of illegality, irrationality or procedural impropriety has now been expanded by the principle of proportionality. Ministerial decisions can be challenged for not being proportionate to the legitimate aims of the legislation under which the decision was made.
If we assume that most judges, Ministers and officials are reasonable people—many noble Lords may think that that is a big assumption—surely there is often scope for differences of interpretation about what the law permits as being a proportionate application of a statute. Under the rules of judicial review, it must be the judges' interpretation that prevails.
It is therefore of particular importance that judges exercise what has been termed by others—it is not my phrase—a measure of self-restraint. I fully agree with the noble and learned Lord the Lord Chancellor—again, I take his view from the lecture that I mentioned earlier—that the experience during the first couple of years of the Human Rights Act indicates that there has been a measure of judicial restraint—some might even refer to judicial deference—towards certain areas of governmental decision-making. In that regard, it can readily be seen that Ministers, officials or—dare I say it—regulators are thought to have some particular knowledge and experience.
Nobody will be surprised at judicial self-restraint in matters of national security, because that seems to have been so for a very long time. The cases show that the judges have also been willing to let Ministers determine, for example, planning policy and to apply it in particular cases without risk of judicial review, except for some extreme case of unlawfulness or procedural unfairness.
Because of the significant increment in judicial power granted by the Human Rights Act, together with the further development of the grounds for

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judicial review, I sometimes wonder whether it is worth reviving the idea put forward by the noble and learned Lord, Lord Simon of Glaisdale, who, unfortunately, is not with us today. Seven years ago, he said that it might be useful to have administrative assessors sitting with the judge in what is now called the Administrative Court, to provide an element of expertise in administration.
Judges as well as Ministers are capable of making decisions that do not achieve a sensible balance between the demands of executive policy and the public interest on the one hand and individual human rights on the other. In my view, judicial review in general and the Human Rights Act in particular are part of the worthwhile process of better ensuring that balance.
6.56 p.m.
Lord Lester of Herne Hill: My Lords, I cannot recall a time in the past half century when there was such a pressing need to defend our judges against ill-informed attacks, not only from one section of the media but, unfortunately, from the present Home Secretary. I refer to attacks that are politically motivated and orchestrated; attacks against which the judges are unable to defend themselves effectively with help from spin doctors; and attacks against which the Lord Chancellor, because of an institutional conflict of interest, is unable to provide effective protection.
Forty years ago, judges were rarely called upon to decide controversial cases involving abuses of power by Ministers and public officials. In those days, relations between the judiciary and Ministers were cosy and cordial. There was a culture of mutual respect within the establishment. Judges were submissive lions beneath rather than beside the throne of government and sometimes more executive-minded than the executive.
Forty years later, our constitutional arrangements have been transformed, in part by an enlightened judiciary in developing modern principles of public law to protect the citizen against the abuse of public powers; in part by the incoming tide of European Community law; and in part by the Human Rights Act.
A judge once famously reminded us that justice is not a cloistered virtue. In a free society it is healthy for judges to face public criticism and debate. However, the way in which the Home Secretary and some tabloid journalists attacked Mr Justice Collins three months ago exceeded the bounds of legitimate criticism and threatened judicial independence. The criticism was unfair and ill-informed. It displayed ignorance at the highest levels of government, not only about what the judge had decided but also about our system of parliamentary government under law.
The judge gave the Home Secretary permission to appeal to the Court of Appeal. But Mr Blunkett could not contain his fury at losing the case. In the immediate wake of the judgment—I believe that it was on the very same day—and before its contents could properly have been digested by his advisers, still less explained to
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him, he made his defiant statement on "The World at One" on BBC Radio 4, as my noble friend pointed out in his powerful introductory speech.
Later, the Daily Telegraph reported that the Prime Minister is,
"prepared for a showdown with the judiciary to stop the courts thwarting the Government's attempts to curb the record flow of asylum seekers into Britain. He has ordered new legislation to limit the role of judges in the interpretation of international human rights obligations and reassert the primacy of Parliament".
The Daily Telegraph also quoted the Home Secretary as saying:
"Frankly, I'm fed up with having to deal with a situation where parliament debates issues and judges then overturn them".
In an interview with the Daily' Telegraph the next day, Mr Blunkett said:
"If public policy can be always overridden by individual challenge through the courts, then democracy itself is under threat".
Meanwhile, the Daily Mail mounted two successive days' worth of vindictive and highly personal invective and misleading comment. The judge could not answer back and the Lord Chancellor, who heads the judiciary so as to protect judicial independence from political interference, did not speak out to criticise the Home Secretary publicly.
The Lord Chancellor is a staunch defender of judicial independence, and I have no doubt that he made representations in private, but he certainly did not succeed in persuading the Home Secretary to end his attacks. Nor did the Prime Minister do so. It has been left to my noble and learned kinsman the Lord Chief Justice to do so today in what is a historic statement. It is highly regrettable that it had to be made.
Mr Justice Collins was in due course vindicated by the Court of Appeal, but by then the real damage had been done to the relationship between the Government and the judiciary.
The Home Secretary learnt nothing from the episode, as my noble friend noted, and he wrote that bellicose and ill-informed article in the Evening Standard. Incidentally, in that article he prayed in aid two distinguished jurists—Professor Sir William Wade QC and my learned friend and colleague, Michael Beloff QC—both of whom have confirmed to me that he lacked their support for his views. The next day Mr Blunkett was reported as having taken a sarcastic swipe at the Lord Chief Justice in a speech to the annual Police Federation conference and to have told them that he likes,
"judges who help us and help you to do the job".
If democracy is under threat from anywhere, it is not from the judges but from a Home Secretary who infringes basic constitutional conventions and panders to the tabloid press and popular prejudice.
That is also true of Mr Blunkett's rhetoric about sentencing decisions. There is no objection to a sentencing council and sentencing guidelines, but there is to executive interference or coercion. There really is a dangerous slippery slope. Only a couple of weeks ago, the US Congress passed a law that will require a

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report on any federal judge who sentences below the minimum in the sentencing guidelines to be sent to the Justice Department, no doubt so that Attorney-General Ashcroft may draw the judge's identity and conduct to the attention of the Congress. The Home Secretary has not gone so far—at least, not yet.
As the right reverend Prelate the Bishop of Worcester said so well , it is not the function of the judiciary to help the Home Secretary or the police, but to be impartial judges protecting the citizen against the abuse of state power and upholding the rule of law.
It is 40 years since Professor VILA Hart warned, in Law, Liberty and Morality, against the fallacy of what he described as "moral populism"; namely, that the majority have a moral right to dictate how all shall live. Professor Hart wrote;
"This is a misunderstanding of democracy which still menaces individual liberty …The central mistake is a failure to distinguish that acceptable principle that political power is best entrusted to the majority from the unacceptable claim that what the majority do with that power is beyond criticism and must never be resisted".
The Home Secretary's brand of judge-bashing, with its class-based undertones, is both unfair and misconceive—a form of official bullying. It encourages a culture of disrespect for the independent judiciary, when the Home Secretary should use his great office to encourage respect for human rights and the rule of law. Perhaps I may say, respectfully, that I hope the Prime Minister will say to Mr Blunkett what was once said by another Prime Minister, Clem Attlee, to Harold Laski: that "A period of silence from you would be welcome-. That would enable the Home Secretary to reflect on the wise advice of the right reverend Prelate the Bishop of Worcester, which I will always remember.
7.4 p.m.
Lord Lloyd of Berwick: My Lords, like all noble Lords, I am grateful to the noble Lord. Lord Rodgers, for initiating this important debate. It is a topical debate for reasons which are well known to us all. I do not intend to go into the more topical matters, already fully covered, in particular by my noble and learned friend the Lord Chief Justice, because this is a golden opportunity to consider the more general question of principle concerning the relationship between all three branches of government.
I want to start with the so-called principle of the separation of powers, a subject which is open to grave misunderstanding. I say "so-called principle" because the principle has never applied in the United Kingdom in a way that it does in France and the United States. The ereat difference between ourselves and the French is that they start with an abstract principle, most famously stated by Montesquieu, and then apply it rigidly like a straitjacket.
We in this country have always distrusted abstract principle. We prefer to go by what works well in practice. Alexander Pope said it all in,
"For forms of government let fools contest;
Whate'er is best administered is best".
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One has only to look at the history of the House of Commons, for example, to see how true that is. There was a time when the King governed personally, but he needed to come to the House of Commons for money. He needed a majority in the House of Commons to get his legislation through. Now it is entirely the other way around. The majority in the House of Commons is the Government. It is therefore idle to talk about a separation of powers between the legislature and the executive when the legislature provides the executive and the executive controls the legislature. This is all quite unlike the position in the United States. Since the executive can get through whatever legislation it wants, there is no separation of powers in that respect, but it works and for that reason we have kept it as it is.
Then take the relationship between the legislature and the judiciary. The origin of the House of Lords as the final Court of Appeal is that the litigant could petition the Queen in Parliament. Since in days gone by—perhaps happily—there were not so many experienced lawyers in the House of Lords as there are now, Parliament summoned all the judges to advise it on the particular point in question. But it was the House of Lords, not the judges, which made the decision. Again, that worked well until more lawyers with experience were needed in the House of Lords. So the Government created Baron Parke, the first Lord of Appeal in Ordinary.
There was a good deal of' resentment at that time, but only because the House of Lords did not like the idea of life peerages. We have now become used to life peers, so that objection no longer lasts. There was never any objection to the thought that Baron Parke—Lord Wensleydale, as he became—was in some way out of place in this body as a part of the legislature.
So I ask: is there any objection now to judges, more particularly retired judges, taking part in the House of Lords? Even now there are part-time judges sitting in the House of Commons. They are called "recorders". No objection seems to be raised to their sitting in the House of Commons and as part-time judges. So is there really any reason why more senior judges should not sit in the House of Lords? To that I answer no, provided always they exercise all proper self restraint. If they have taken part in a debate, obviously they will not be able to sit subsequently in a case in which that particular issue is raised. So historically there was never any separation of powers between the legislature and the judiciary. I see no reason to introduce that now for the sake of some abstract theory.
I turn to the judiciary and the executive. Here the separation of powers is absolutely vital. And why? Not because of some abstract theory, but because it is the function of the judges to stand between the individual and the executive. The writ of habeas corpus is an obvious example. But habeas corpus is only one aspect of the matter. Whenever Parliament grants powers to Ministers, as it does so frequently, it is the function of judges to ensure that Ministers keep within the powers that they have been granted. In the area of administrative law it is the most important function that we have. We do it by judicial review.

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It must be irritating—we all accept that—for Ministers, including the Lord Chancellor, to be told that they have acted unlawfully, but that is the very essence and heart of the rule of law. It is bound to create friction. Look at the friction that was created between President Roosevelt and the Supreme Court at the time of the New Deal.
Because of that risk of friction it is essential that both sides—I hate to use the word "sides" in this context—should act with the maximum of self-restraint and good will. It is essential that judges should realise, as I believe they do, that the Government have a job to do. It is essential that government should realise that judges have a job to do. I agree very much with what the right reverend Prelate said in that respect.
Of course Ministers will disagree with the decisions of judges from time to time, but when they do, it simply does not help to say—please do not let them say—that the judges are out of touch. We are not out of touch. We have no axe to grind at all other than to ensure that the law is enforced.
7.12 p.m.
Lord Plant of Highileld: My Lords, in 1941, in what subsequently became a much cited letter, a High Court judge wrote to Lord Atkins complaining that judges, far from being lions under the throne, as envisaged by Francis Bacon, had been reduced to squeaking mice under a chair in the Home Office. I doubt very much that my right honourable friend the Home Secretary or for that matter most of his predecessors over the past 20 years would regard them as squeaking mice and it is clear that the relationship between the judiciary and Parliament in both its legislative and its executive functions is now a matter of considerable controversy. For that reason I congratulate the noble Lord, Lord Rodgers of Quarry Bank, on his Motion, although its very timeliness is itself a cause for concern as it shows that things are not as they should be.
I want to suggest that current controversies are a symptom of something rather profound. It is important that what is usually called comity between Parliament and the courts should he preserved. Hitherto comity has been preserved, I think, by an assumption shared between the two institutions that Parliament made the laws and the courts applied them. In this sense it was what has come to be called a unipolar concept of parliamentary sovereignty. This assumption no longer holds. In an indirect, and rather crab-wise way, I think we are moving to what Lord Justice Sedley has called a bi-polar concept of sovereignty,
"of the Crown in Parliament and the Crown in the Courts—to each of which the Crown's ministers are answerable: politically to Parliament; legally to the courts".
If that is so we are on the move from a strongly majoritarian Parliament-based view of British democracy towards a much more constitutionalised and judicialised one.
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We do not have to look very far to see how that has come about. It is through the growth and increasing scope of judicial review and the Human Rights Act. Both of those, which I support, impose constraints on the exercise of executive power and the question. particularly in respect of judicial review, is how the exercise of that power on the part of the courts is made legitimate. The fact is that many cases under judicial review and under the Human Rights Act are going to be politically controversial. So the question of legitimacy is important in the sense that the exercise of these powers may appear to conflict with the view of the Government which can lay claim to a democratic mandate.
In the early stages of judicial review I do not think that that mattered very much because the review was of actions taken by government and their agents as authorised by statute and the courts were therefore able to appeal to the express intention or will of Parliament in legislation. It could therefore keep closely to the concepts and principles embedded in the legislation while reviewing its operation in a particular case with respect to the various criteria under which the review could proceed.
However, it has been extended to the exercise of power in a much broader sense. The rub here is that the judges can no longer appeal in those cases to legislative intent to legitimise what they are doing. As ex hypothesi the judges cannot rest on legislative intent, what legitimates their capacity to review, particularly in relation to the somewhat elusive and difficult notions of rationality and proportionality?
In recent years in this context recourse has been made to the invocation of constitutional principles such as the idea of the rule of law in the Pierson case or an appeal to the basic right of access to the courts in the Witham case. One or two noble and learned Lords who sit in a judicial capacity in your Lordships' House have sought to make that point rather more generally and have not been slow in drawing the inference that the power of government has to he limited by principles of constitutionality as much as they would be in a polity with a basic constitutional document. 1 could give examples of that, but there is not time.
The defence of the use of such constitutional principles is not that they are based upon sonie kind of constitutional or jurisprudential theory, but rather that they are implicit in common law and in the legal and political traditions of the country. As far as that is the case I believe that it is a good thing and provides a good defence of the invocation of those kinds of principles.
That kind of characterisation of the role of judicial review would very much support the claim that we are now moving towards a bi-polar concept of sovereignty with government and indeed Parliament being limited by basic constitutional principles. Indeed it is not just constitutional principles, but what might be called constitutional substance, as the Thorburn case put statutes into an order of precedence which was not a disposition made by Parliament itself.

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That of course is paralleled in the case of the Human Rights Act, particularly in relation to the strong construction requirement in Section 3 and the Section 4 requirement of the possibility of issuing a declaration of incompatibility. The noble and learned Lord, Lord Woolf, in the Poplar Housing judgment said that the judges should interpret the law in the context of the Human Rights Act and not legislate. "Amen to that", I say. But under Section 3 his judicial colleagues have in some cases moved towards the legislating rather than the interpreting end of that spectrum. I cannot go into the details, but the Mendoza case, the Offen case and a case arising out of the youth crime prevention legislation are examples of where the judges have read things into statutes retrospectively or changed the meaning of the words. In the Mendoza case they actually substituted words in the statute.
If we are moving towards a bi-polar constitutional democracy—something I welcome—it seems to me inevitable that judges will be put into controversial, political situations. They need to be very careful about their exercise of those powers and about the nature and sources of the principles that they use to guide them in those cases where there is no legislative intent to follow. They should indeed interpret and not legislate. They need to be trusted by the citizens of this country as they cannot in practice be made accountable to them.
The quotation from Francis Bacon with which I started said that the judicial lions should not check or oppose any part of sovereignty. If I am correct in following Lord Justice Sedley, the courts now share a degree of sovereignty. They need to be very careful indeed how they exercise that power in a democracy and what in fact will legitimise that exercise.
7.19 p.m.
Earl Russell: My Lords, first I thank my noble friend Lord Rodgers of Quarry Bank for initiating the debate. I recall the time when he was leader of our home affairs team, a role in which he was most conspicuously successful. It was a happy team in which I was proud to have the parts of spare man. extra and "Lords, Ladies and attendants".
The Home Secretary, on the other hand, was, I think, a little over the top when, in an article in the Evening Standard, he said:
"Confidence in our criminal justice system is at an all-time low".
In 1388, all the judges were impeached and the Lord Chief Justice was executed. In 1641. after ship money, almost all the judges were impeached. In 1609, when King James I was arguing with Chief Justice Cooke, he threw a punch at him. I do not think that things have reached that pass yet. It illustrates a serious point; that in the first two of those cases the judges were in trouble for being too compliant with the executive; and in the third they were in trouble for being too uncompliant.
There has always been steering between Scylla and Charybdis. But, when I listen to people outside this House—and I include my street neighbours in Kilburn
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as well as my academic colleagues—I hear a great deal more lack of confidence in the legislature and the executive than I do in the judiciary.
Since coming to this House, I have acquired a great deal more understanding and affection for every part of our political establishment. The only one for which I have acquired an increased respect is our higher judiciary. It has earned that many times over.
On 5th June 1996 I spoke about judicial review. I shall not do that again. I have made many speeches about judicial review. If anyone wishes they are perfectly welcome to follow the American principle and read that speech into the record of today's debate.
This year I had the privilege to give the annual lecture at Stratford-on-Avon for Shakespeare's birthday. The play for the year was "Measure for Measure". The play is a classic debate about the nature of justice between Angelo and Isabella. It illustrates a philosophical dispute about what justice is, which is eternal. It stretches from Plato and Aristotle at one end of the story to the Home Secretary and the Lord Chancellor at the other. It arises from the fact that Shakespearean England had the mandatory sentence, which led to the application of what I have come to think of as "Bingham's law" after a speech made by the noble and learned Lord, Lord Bingham, on the Second Reading of the Crime (Sentences) Bill. He said that the attempt to abolish discretion in one place always led it to break out somewhere else.
The mandatory sentence is an attempt to abolish discretion. However, Tudor and Stuart courts and juries got around that by the use of verdicts, which usually undervalued the stolen goods to bring them below the limit of selling, or by the grant of benefit of clergy.
The debate between Angelo and Isabella in "Measure for Measure" is about mercy. In the specific context of the Shakespearean courts, which practised very much the kind of principles that Isabella and Portia were arguing, the debate is about how far sentences should be based on the details of the particular case and how far they should be based on a general formula. Angelo of course was an advocate of the formula. Some of his lines sound very familiar.
"We must not make a scarecrow of the law".
When exhorted to show pity, he says:
"I show it most when I do justice. For then I pity those I do not know".
They are good lines, but they do not appear to have persuaded the courts of the period. That mercy is not, as the executive then said, "foolish pity"; it is very carefully calibrated to the circumstances of the particular cases. It takes account of three things: the criminal's fondness for profits; how far it is a deliberately calculated approach; and how far contrition has been shown. For example, of those who stole food, 31 per cent of those convicted of felony were not executed. But of those who stole food for profit all were executed.

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That is one example of a deliberate attempt to apply discretion to the facts of the case, which is the foundation of the doctrine of mercy for which Isabella pleads.
This attention to the individual facts of the case is a philosophy to which I have personally a profound devotion. But one cannot settle public policy simply on one's own devotions. So we need to think about a dividing principle. Until we have justice done by a formula coming out of computer and so long as we have courts hearing evidence, it must be the job of the judge who has heard the evidence to decide on the statement. One cannot understand what is going on in a court case without reading a transcript. Incidentally, I agree with the noble and learned Lord, Lord Woolf, about the importance of reading judgments. So that must be a matter for the courts.
The duty of the executive is to catch criminals. If it were a little better at doing that, it would be in a rather better place to criticise. When Lord Jenkins of Hillhead was Home Secretary, I remember saying:
"At last we have a Home Secretary who understands that if you want to deter crime, you don't hang 'em, you don't flog 'em, you don't shoot 'em, you catch 'em".
I wish the present Home Secretary also understood.
The duty of legislature is of course to lay down general rules because one cannot have discretion without general rules. One returns to the practice of King John before Magna Carta when he deprived the man of his lands, in the words of the official record,
"because we were cross with him".
One must have the general principles and they must interact with the discretion. How that should be done is best set out by the noble Lord, Lord Renton, in the Renton report of 1974 on the preparation of legislation; that Parliament is to lay down the general principles; it is to do it in a general form which allows the statute, as one allows the child, to grow up and not be kept perpetually in leading strings. That was the answer of a good parliamentarian and a good lawyer. I think that it should stand.
7.27 p.m.
Lord Hope of Craighead: My Lords, for reasons which are no doubt obvious to your Lordships, I was not at all certain that it would right for me as a serving Lord of Appeal in Ordinary to contribute to this debate. The first part of its subject matter—the relationship between the judiciary, the legislature and the executive—is so closely related to the work on which I and my colleagues are engaged day in and day out that I do not think that I should say anything about it, although I have listened with very great interest to what has been said by so many noble Lords on this most important topic.
However, the second part—judicial participation in public controversy—raises a number of quite different issues on which I feel able to contribute some thoughts which may perhaps be of interest. So it is on that limited chapter that I wish, in these few remarks, to concentrate.
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I should explain that my qualification for making these remarks is that I was, for seven years, between 1989 and 1996, Lord President of the Court of Session and Lord Justice General for Scotland. Those combined offices impose on a single judicial figure, which for that period happened to he me, the responsibilities which are borne in England and Wales by the Master of the Rolls and the Lord Chief Justice. The holder of these offices is the head of the judiciary in Scotland. That position brings with it, of course, numerous responsibilities, one of which is that of representing the judiciary as a whole in discussions with the executive.
When I began my period of office the practice was for these discussions to take place very largely behind closed doors. There was inevitably much to discuss. Sentencing policy was a regular topic. The administration of the court system was another. Politics came into it, of course, because I was engaging in discussions with the executive. But I did not see myself as engaging in political or public controversy. I believed that I was putting forward thoughts and ideas on behalf of the judiciary in order to assist the executive in policy making. That was the reality of cooperation, of which the noble and learned Lord, Lord Woolf, spoke.
However, as time went on, I sensed that there was a distinct and increasingly pronounced change in the atmosphere. Criminal justice had already reached the top of the political agenda in England, and it was not long before that development was felt in Scotland, too.
At about the same time, the late Lord Taylor of Gosforth became the Lord Chief Justice of England. He was already a prominent figure, well used to dealing with the media, due to his work on safety at football grounds. He adopted a quite different approach to the media from that which had been adopted by his predecessors. I think it no exaggeration to say that, with much skill and great charm, he brought the judiciary out into the open. He sought to de-mystify the judges, and his personality was such that he made great strides forward in that endeavour. Needless to say, I felt that, in my small way, I had to do my best north of the Border to follow his example.
I suppose that it was inevitable that putting a more public face on the judiciary would attract the attention of the media. The fact that we were willing to be approached and, from time to time, to be photographed and to give interviews was welcomed. I believed then, and I still believe, that that was the right thing to do and that we all owe a great deal to Lord Taylor of Gosforth for his initiative. But there is no doubt that it led, step by step, to the position where much of the debate which in my early days was conducted behind closed doors now takes place in the open, and—far too often, no doubt—is conducted through the media. I was already conscious before I left office as Lord President that important policy initiatives of which I had had no previous notice were being announced to the media, and that I was being called upon by the press to react to them on behalf of the judiciary.

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What then are we make of the situation in which we now find ourselves? The first point that I should like to emphasise is that judges do not seek to engage in public controversy. The initiative does not lie with them. Politics is not their business, nor is it their business to engage publicly—off the Bench, that is—in controversy. Their business lies in judging such cases as may be brought before them to the best of their ability. On the other hand, issues do from time to time arise that affect their work and it is inevitable, as the public have such a strong interest in those issues, that they become the subject of public controversy.
Judges would not be human if they did not have opinions on those issues. I felt that it was my business as Lord President to consult the judges, to listen to what they had to tell me and, as best I could, to represent them in such discussions as were thought necessary. My function, it could be said, was administrative and representative—not judicial, in the strict sense. The advice that I gave to judges at all levels, and especially to sheriffs, the county court judges, who often felt especially vulnerable to public criticism, was that they should not attempt to deal with those issues themselves. They should make their views known to the senior judges through whom, in a suitably detached way, their concerns might be expressed.
Inevitably, that approach focuses attention on the Lord President—the Lord Chief Justice—as the judges' representative. What it achieves is detachment. It insulates the vast majority of judges from that process, because it is through the Lord Chief Justice that the views of the judiciary as a whole are communicated. The value of that approach should not be underestimated.
The second point is that the perceived participation of the judiciary in public controversy is just the tip of an iceberg—perhaps an unfortunate metaphor in this most heated of contexts—which is represented by the extent to which judges at all levels engage with the executive, at its invitation, in issues that are developed through discussion and in due course become government policy. It is to the credit of the executive, and of the noble Baroness, Lady Scotland, in particular, that the judiciary is widely consulted on a whole range of issues of concern to government. That exercise took up a good deal of my time when I was Lord President, and I have no doubt that that is just as true today as it was in my time.
I suppose that it is inevitable that some of that process becomes known to the public. Just last weekend in Scotland, extracts from the response of the judges to a government consultation paper on the treatment in court of child witnesses were published in a Sunday newspaper. The article was accompanied by a library photograph of the judge who had prepared the response. The views in the response were portrayed as controversial, as no doubt they were. But it was not the judges who had asked for that to be published, nor who had sought pubic controversy.
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We could, no doubt, reverse the whole process towards greater openness which a succession of judges including the present Lord Chief Justice have been pursuing for more than a decade. We could close the shutters and turn out the light. Whether that would entirely remove judges from participation in public controversy is debatable. It is questionable whether it would be worth while. I for one would not want to go down that route at all.
The value of the representative function that senior judges, the Lord Chief Justice in particular, perform on behalf of the judiciary is invaluable. For myself, I applaud the fact that the noble and learned Lord, Lord Woolf, has contributed to this debate, and I am sure that I am not alone in expressing my profound admiration for what he has done and is continuing to do on the judges' behalf in that most demanding of all judicial roles.
7.35 p.m.
Lord Smith of Clifton: My Lords, I, too, congratulate my noble friend Lord Rodgers of Quarry Bank on introducing this debate. It is timely, as are all other debates in your Lordships' House on the constitution. Those need to be held at frequent intervals, in view of the current state of constitutional disrepair into which the UK has been allowed to drift. Running repairs are urgently needed but, if they are not forthcoming, there need to be regular reviews, such as this debate affords.
I wish to cast a wider look at the topic of the Motion, as other noble Lords have done. The character of the constitutional system of the UK has changed drastically in the past 25 years in both its formal and its informal composition. Things are now so out of kilter that the contemporary situation is parlous.
The most serious problem is the lack of any radical reform of the House of Commons. That colours everything. It should be the main mechanism for holding the executive to account, which it has not been for some time now. The Commons should be at the operational heart of the constitution. Recent Back-Bench revolts have suggested themselves to some commentators as signs that the Commons is reasserting itself. Welcome though some of those revolts have been, they are merely sporadic outbursts. They serve simply to tease the hopes of those of us who are fully paid-up members of the constitutional reform movement.
Unbridled presidentialism is now the operational basis for British government. That is forcefully demonstrated in the recent report, Parliament First, subscribed to by a cross-party group of senior MPs. Unless the relatively moderate reforms that it proposes are implemented—and there is little likelihood of that—the relationship between the executive and the legislature will remain lopsided.
Constitutional deterioration has come about largely because of the mind set behind the prevailing paradigm in which modern British government operates. Its mood can be gauged by some of the

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statements made by members of the governing elite. I shall cite three examples. A recent head of the Civil Service observed that,
"the constitution is what we do".
which must have made Dicey spin in his grave. Peter Mandelson stated four years ago that,
"the age of representative democracy as we have come to know it, may be coming to a close".
David Blunkett, who has already been mentioned in the debate, when Secretary of State for Education and Employment, defined the role of the then DFEE as,
"regional headquarters, with headteachers being its branch managers".
Those quotations—I could cite many more—show how old principles and boundaries are being allowed to atrophy, to be replaced with targets, performance tables, benchmarks and the like. It should occasion no surprise that many of the old, formal institutions and conventions have been allowed to wither in favour of the burgeoning number of new, informal agencies. Task forces, hived-off executive agencies, quangos and tsars have increasingly assumed the tasks of government. No real thought has ever been given as to how those can he rendered accountable or their existence properly codified. There is a vital need to bring them within the constitution.
The chaotic character of the UK constitution and the growing weakness of the legislature have inevitably placed a greater responsibility on the judiciary to adjudicate on the actions of government. As the distinguished legal scholar, Dr Robert Stevens, has recently written in his hook, The English Judges, because of the increasing centralisation of power under all governments,
"the judges have grown more important because others have become less so".
The increasing size and, more importantly, influence of the judiciary was inevitable in view of the tentacular growth in the apparatus of the British state and the concomitant enfeebling of Parliament. It is at least welcome, because, as the noble and learned Lord, the Lord Chief Justice, remarked, it is the last significant bastion left to defend the rights of the individual.
The judiciary has, perforce, been brought into contentious issues that have led to a series of clashes between judges and Ministers. As other speakers have said, this has been particularly noticeable in the area of sentencing policy. It has reached a crescendo with the present Home Secretary, who seems to rail daily against what he sees as the irresponsible interference of the judges in his work. He is threatening to limit judicial discretion by imposing mandatory sentences for certain classes of crime, and other provisions for fettering judges' power. His public criticism of Mr Justice Collins' ruling against the Home Office on asylum law prompted me to table a Starred Question on the matter. Frankly, it was disproportionate and quite uncalled for. The contretemps last week between the Home Secretary and Sir Oliver Popplewell was as unprecedented as it was unseemly.
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There is a certain historical inevitability about these ministerial/judicial clashes. They arise from the fact that constitutional modernisation has nowhere near kept pace with the ever-burgeoning powers and agencies of the state. They will continue until we contrive a satisfactory new settlement regarding the judiciary's constitutional role in contemporary circumstances. The need urgently to address these questions is paramount. One commends the proposals advanced by the noble and learned Lords, Lord Bingham and Lord Stey n, in this regard.
Another factor making for the historical inevitability of these clashes is the corporation mindset to which I referred previously. It is one that is oblivious to matters of form, established manners and protocols. Changes and modernisation are assuredly needed from time to time, and old ways of doing things may need to be abandoned. But any replacements should still be put into an ordered, coherent framework that facilitates openness and public accountability. Recent governments have utterly and wilfully been disdainful of the basic principle of democratic constitutionalism.
Successive British governments have never reflected in anything like a holistic way on the constitutional implications of their actions. They delude themselves into thinking that state institutions and practices evolve in a fashion consistent with the theory of Edmund Burke. Such muddling through simply builds up into a huge muddle, which is precisely what our constitutional arrangements are in today. Those arrangements need to be looked at in the round, preferably by a Royal Commission; but that will never happen. I would even settle for a task force, but that is equally unlikely. As it is, we shall have to make do as best we can with regular debates, such as the one being held tonight.
It is a huge irony that while British governments preach the virtues of representative democracy and the rule of law abroad, they neglect to attend to their refurbishment at home.
7.42 p.m.
Lord Goodhart: My Lords, I, too, am most grateful to my noble friend Lord Rodgers of Quarry Bank for introducing this important and highly topical debate—a debate that is indeed even more topical than it was when the Motion was originally tabled.
What is the proper role of the judiciary? I believe that the most important part of the role of members of the judiciary is as protectors of the rule of law. The rule of law is an absolutely vital element in any civilised society. It means a system of making laws that is rational, transparent and not arbitrary. It means a system of enforcing laws and protecting rights that is fair, open and accessible. We cannot have a rule of law without a judiciary. The judges are people who enforce the laws and, to some extent, make them through their interpretation of statutes and through the development of common law.
We can have the rule of law without democracy—that was true, for example, of the old British Empire—but it is surely not possible to have democracy without

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the rule of law. Society without the rule of law ceases to be a democracy. That is why in a true democracy the elected representatives of the people must recognise that there are limits on their powers. That was recognised by the founding fathers of the USA when they set up an independent federal judiciary—a judiciary that was independent because its members had life tenure and because they were not answerable to Congress or to voters for their decisions, something that the present Administration seem to be keen on reversing.
The American Supreme Court, as interpreter of the Constitution, can declare Acts of Congress void as being unconstitutional. In the United Kingdom there is no power in the courts to declare Acts of Parliament unconstitutional. But the corollary of that is that the legislature and the executive must exercise self-restraint in exercising their powers. Politicians must not challenge the rule of law, even if there is public support for their doing so. That way lies the tyranny of the majority, which can be as bad as the tyranny of a single tyrant.
I call attention in particular to what Professor Herbert Hart said, as quoted by my noble friend Lord Lester of Herne Hill. That is why I agree with those speakers in the debate who have been critical of the Home Secretary. So far, no speaker has supported him, with the limited exception of the noble Lord, Lord Borrie. The noble Lord, Lord Plant, was absolutely right to point out that self-restraint is required on both sides. I wait with interest to hear the voice of the Lord Chancellor's Department in the person of the noble Baroness, Lady Scotland.
I believe that it is fair to say that the Home Secretary has not himself expressly challenged the rule of law, but by his attacks on judges—some of them, unfortunately, highly personal—he has stirred up a populist clamour against the judiciary. He is adding his voice to a campaign that is already being generated by part of the tabloid press. I accept that the noble and learned Lord the Lord Chancellor has defended the judiciary, as we would expect of him. We are grateful for that. I agree with the noble and learned Lord, Lord Morris of Aberavon, that the role of the Lord Chancellor should change. However, that is an issue for debate on another day.
It is true that judges are far more interventionist than they were, say, 40 or 50 years ago. When I was a law student, I remember being taught about the ancient remedies known as the writs of certiorari and mandamus, but those impenetrable Latin names have now been swept away and replaced by judicial review. The judges are, rightly, more active in challenging executive decisions that are irrational, reached by an incorrect procedure, or made outside statutory powers. But that inevitably brings judges into the political battlefield. Judicial review and the role of the judiciary is, therefore, a legitimate subject for public debate, but that debate must be rational and restrained; and it must not be conducted through megaphones.
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So far, I have spoken about judges as objects of public controversy, but what about judges speaking on controversial issues? The noble and learned Lord, Lord Hope of Craighead, made an extremely valuable contribution on this point. We should remember that the opening-up of this right of judges to speak in public was due to the efforts of the noble and learned Lord, Lord Mackay of Clashfern, who scrapped the Kilmuir Rules, which prevented judges from speaking out in public.
It is entirely appropriate and welcome that two serving members and two former members of the senior judiciary have spoken in tonight's debate. They have all made important contributions. But I am sure the others will forgive me if I say that the contribution made by the noble and learned Lord the Lord Chief Justice was of quite exceptional importance. It is one to which I hope many politicians in this country—not the Home Secretary alone—and the press will pay very close attention.
As noble Lords will know, the policy of my party is that the Appellate Committee should be replaced by a supreme court which is separate from your Lordships' House. But, again, that is a matter for a different debate. While the present system continues, it is right that serving members of the judiciary should use your Lordships' House as a forum to express views that directly concern the role and functions of the judiciary or that engage the rule of law.
I should add a footnote: there is an important boundary in this matter that should be observed by serving judges who are Members of your Lordships' House. They should think carefully about speaking on political issues, especially where speaking out might disqualify them from sitting as members of the Appellate Committee when it considers those issues. But, on issues such as those covered by this debate, leaders of the judiciary not only may, but must, speak out.
It is vital that politicians respect the judiciary, which has an essential role as guardian of the rule of law. Intemperate attacks on the judiciary by people in authority will undermine that role. That must not happen. I hope very much that this debate will contribute to ensuring that it does not.
7.51 p.m.
Lord Hunt of Wirral: My Lords, this has been a memorable debate, with some outstanding contributions. We owe a great debt of gratitude to the noble Lord, Lord Rodgers, for introducing the topic. Having spoken on the subject in authoritative terms almost exactly seven years ago, he did so again today. I have compared the two speeches. The one phrase from his speech seven years ago that the noble Lord left out—no doubt he was daunted by the array of lawyers in front of him—was:
"Good lawyers almost always make bad politicians".
The noble Lord omitted that axiom, and we are all very grateful to him for doing so.

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It is a timely debate, as the noble Lord, Lord Smith of Clifton, and the noble Lord introducing the debate, told us. Indeed, the word "timely" was used by the noble and learned Lord the present Lord Chancellor when he introduced the debate on 5th June 1996.
I have been fascinated by the debate about the separation of powers. We have had some very interesting speeches. The noble and learned Lord, Lord Lloyd of Berwick. gave the historical perspective. However, he ended up by referring to the "so-called" principle of separation of powers, and I can understand why. The noble Lord, Lord Plant of Highfield, who has considerable experience in these matters, also delivered a very interesting speech. He ended by reminding us that judges should interpret and not legislate. That has been very much a theme of the debate.
The noble and learned Lord the Lord Chancellor, in opening the previous debate, said:
"Parliament makes the laws, the judiciary interprets them and the judiciary develop the common law. Parliament also confers all manner of powers on the executive and other bodies, and it is for the courts to ensure that those powers are neither exceeded nor abused but exercised lawfully".
How right he was then, and how right he is now. In 1776, John Adams said:
"The judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that judicial power".
That has been very much the debate today.
The noble Earl, Lord Russell, put the situation in historical context. He also delivered an entertaining speech, which I enjoyed enormously.
On the whole, it is accepted that the doctrine of separation of powers works well, although, as the noble and learned Lord reminded us, its strict application is not always possible. A slight blurring at the edges often occurs, as several noble Lords commented. We are now in a situation where the edges have been blurred too much.
The noble Lord, Lord Goodhart, reminded us of the importance of the rule of law preventing the tyranny of the majority. I am sure that he did not refer only to the media and the tabloid press; we must all exercise some restraint.
Much has happened since 1996. We have had the Human Rights Act 1998. The noble Lord, Lord Borne, reminded us how the noble and learned Lord the Lord Chancellor fought so hard to introduce that legislation. As the Minister will know, I have on many occasions paid tribute to the reforming zeal of this Lord Chancellor. We all benefit considerably from that.
We are of course in the real world. It was also very interesting to hear the discussion on the nature of reality led by the right reverend Prelate the Bishop of Worcester, for which we are all very grateful. We all try to live in the real world, but sometimes we do not see it quite as clearly as the right reverend Prelate does. In the real world, I wish that more people would listen to the words of the noble Lord, Lord Dholakia, when he
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said that the framework of sentencing must allow judges to dispense justice. How important a contribution that was in this debate, with all the noble Lord's experience. The noble Earl, Lord Russell, reminded us that the prime objective must be first to catch criminals before we engage in great esoteric debates on sentencing.
I am afraid that most of the debate seems to have been directed against someone whom I know very well—David Blunkett. He was my pair in another place for many years, and I have tremendous respect for him. It probably should not come from me, but no other Conservative Front Bench Members are present, so I shall speak in the hope that they do not read my remarks in Hansard: I think that he is a very great man in many different respects. If we are attacking the Home Secretary, we are attacking the Government, because I know many Cabinet Ministers share the Home Secretary's views. So we should not isolate the Home Secretary as we have done perhaps too much in this debate.
The last straw for David Blunkett appeared to be the recent controversy over the Government's ending of the presumption of support for in-country asylum applicants. The Home Secretary launched an appeal against the High Court's ruling that the policy breached applicants' human rights. He told the BBC's "World at One" programme:
"Frankly, I'm fed up with having to deal with a situation where Parliament debates issues arid the judges then overturn them".
Those words have been echoed throughout the debate. The noble Lord, Lord Windlesham, gave him a reason. He said that he had spoken off the cuff on a number of occasions. I remember speaking off the cuff when I was in government, but I do not recall many who ever did. I think that the Home Secretary was speaking his mind and that of many of his colleagues. It is a matter of regret that they have these views. I hope that the Government will listen very carefully to the points made in this debate.
The noble Lord, Lord Rodgers, had very good advice: stay silent, stay calm, and take a more mature view of these important issues. The noble Lord, Lord Lester of Herne Hill, said that a period of silence would be welcome. The noble and learned Lord, Lord Morris of Aberavon, said that surely there must be a better way for the Government to get across their views. I hope that we will have a chance to debate more extensively some of the ideas put forward by my noble predecessor as Secretary of State for Wales, Lord Morris of Aberavon, as he has great experience of these matters.
The most important contribution was that of the noble and learned Lord, Lord Woolf, and I am so glad that he said what he did. I shall now willingly give up a couple of minutes of my speech to allow the Minister her full speaking time. The noble and learned Lord expressed judicial concern about the tone and content of the debate. I say to the Minister that I hope the Government are listening.
8 p.m.
The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal): My Lords, I thank the noble Lord, Lord Rodgers of Quarry Bank, for introducing this debate so eloquently and I endorse what has just been said by the noble Lord, Lord Hunt of Wirral: it has been most memorable. After having listened to the heat of the debate, I want also to thank the noble Lord for reminding us that my right honourable friend the Home Secretary is indeed, in so many ways, a great man.
The issues we have discussed and debated today are of fundamental importance. That has been brought home to us not only through this debate, but also by the experiences over the past 13 years or so of those countries seeking to rebuild their democratic institutions after decades of absolutist rule. An independent judiciary in a healthy relationship with the other constitutional powers is one of their first goals, and one of the hardest to achieve. We take it for granted at our peril. I want to assure noble Lords that this Government jealously guard and honour that independence, as is proper.
Much of the debate has been critical of my right honourable friend the Home Secretary. However, he may well he grateful for that because he has said that he would like to -stimulate debate". He has certainly achieved his goal this evening. The right reverend Prelate the Bishop of Worcester expressed empathy and warmth of understanding for my right honourable friend and I thank him for that. He can rest assured that power is not vested in one part of the institution of government. It does indeed demand and receive respect for difference of perception, and that is honoured. The distinction to which the right reverend Prelate referred will be preserved and its fragility respected. I thank also my noble friend Lord Borrie for the sense of balance that he brought to the debate. It was good to hear a noble Lord on these Benches echoing the cool and calm judgment that the noble Lord, Lord Rodgers of Quarry Bank, sought so much to exhort.
It is right to acknowledge that there is nothing wrong with vigorous and healthy debate, in this area or in any other. It takes place against a background which is absolutely clear, in which the independence of the judiciary is acknowledged, respected and valued by government as a whole—and by my right honourable friend the Home Secretary as much as by any other member of the Government—as one of the cornerstones of our liberty. Many would think it more worrying if judges always felt obliged to agree about everything with my right honourable friend the Home Secretary, or vice versa. Luckily, we seem to be in no immediate danger of that.
The noble Lord, Lord Lester, my noble friend Lord Plant, the noble and learned Lord, Lord Lloyd, and not least the noble Earl, Lord Russell, all referred to the historical ebbs and flows of the relationship. I looked forward with joyful anticipation to the contribution of the noble Earl because I was confident that he would bring to your Lordships a certain acuity
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in terms of the historical perception. He was right to remind us that, compared with the position in 1388, things really are not that bad. My right honourable friend understands the need to catch criminals. To that end, I should like to reassure the noble Earl that this Government have rather a good record of doing that and I think we are becoming increasingly good at it.
Some time ago the Secretary of State, during a period of heightened concern about national security, issued a warrant authorising the security services effectively to burgle the house of a suspect, search for evidence and carry away anything useful they might find. The practice was believed to be authorised by legislation and had been followed for some years previously. However, in the particular case, the suspect sued for trespass. The Lord Chief Justice eventually found that the Act did not have the meaning the Government said it had; that the Secretary of State had no power to issue such a warrant; that considerations of national security and the practice of his predecessors were not enough to give him the power he claimed; that his agents were indeed trespassers; and that his purported search warrant was wholly illegal and void.
I can reassure noble Lords that I do not refer to the noble and learned Lord, Lord Woolf; it was the Lord Chief Justice, Lord Camden. The Secretary of State was the Earl of Halifax. The relevant legislation was the Constables Protection Act 1750. The year was 1765 and the case, as some of your Lordships will doubtless remember—at second hand, at any rate— was that of Entick v Carrington. So while some things may have changed over the quarter of a millennium that has passed since then, others have very definitely stayed the same.
The noble Lord, Lord Lester, spoke of the "cosy cordiality" which characterised the relationship between the executive and the judiciary 40 years ago. I hesitate to say that it may not always have been so described or experienced by those who lived and practised through that period.
Many issues were raised in the debate and I have only a limited time in which to respond. I shall address as many points as I can. First, however, I want to deal with three general issues.
I agree that the noble and learned Lord, Lord Woolf, made an important and powerful contribution, one which the Government take extremely seriously. I shall take this opportunity immediately to confirm to the noble and learned Lord that, when he referred to the five issues on which there was agreement between the judiciary and the Government, he was absolutely right about them. I shall say also that we are fortunate in having a judiciary that is not only well qualified and well equipped for its role, but carries with it the traditions of integrity and independence acquired during practice at the Bar or as solicitors. The noble Lord, Lord Dholakia, was right to say that our judiciary was held in high regard internationally—rightly so. Our judges are robust, and so they should be.

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At the moment, the higher judiciary in this country—I say this with the greatest respect—is probably of the highest quality that we have ever enjoyed. Judges and magistrates are in the operational front line. Their daily business is resolving disputes that others have failed to crack, whether over alleged criminality, money or parental access. They see life,
"red in tooth and claw"—
bleak, despairing and mundane. One can see that by going into any court in the country.
Secondly, there is the relationship between the judiciary and the legislature. In every good marriage, the partners complement each other. Like Beatrice and Benedick, they do not have the same view on every subject: there is a tension. I think that the noble and learned Lords, Lord Ackner and Lord Lloyd of Berwick, referred to that tension. But it can be a creative tension that keeps the relationship alive and vital. The absence of that tension might even be a symptom that all was not entirely well.
So it is between the three constitutional powers. All, to a degree, are jealous of their prerogatives, but they are required, in practice, to co-operate if effective government is to be delivered. Judges are sometimes accused of invading the legislature's turf. It is my experience that, on the contrary, they are very sensible of the respective constitutional roles. In 1980, your Lordships' House, in its judicial capacity, affirmed that it was the judges' duty to apply statutes, however unpalatable and whatever their perceptions of where the public interest lay. Lord Diplock pointed to the risk of judges straying beyond their constitutional role as interpreters of the enacted law. I join my noble and learned friend Lord Morris of Aberavon in quoting the noble and learned Lord, Lord Scarman. He said:
"a judge must be obedient to the will of Parliament, as expressed in its enactments".
That issue was underscored when the noble and learned Lord, Lord Woolf, made his valuable contribution this evening.
Lord Diplock also pointed out that legislation being considered by a court might have injurious consequences that Parliament had not anticipated when it was passed. However, he said:
"if this be the case it is for Parliament, not the judiciary, to decide whether any change should be made to the law as stated in the Acts"
There can be no objection to a judge saying that a statute will not or does not work. Judges have direct practical experience of the administration of justice that makes their contribution of high value.
Much debate was provoked by Mr Justice Collins's decision in the case concerning the entitlement of asylum seekers to asylum support. This evening, the issue was raised by the noble Lords, Lord Lester of Herne Hill, Lord Windlesham and Lord Plant of Highfield, among many others. In his judgment, Mr Justice Collins said:
"I made it clear that I could not go behind the words of the Act which Parliament had enacted. Whether the reasons which have led to its enactment are good or bad is not for me to decide".
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In a newspaper article, my right honourable friend the Home Secretary commented:
"I respect the role of our judges to interpret the law. But there has to be a balance between"—
Earl Russell: My Lords, has the Minister looked at the debates in the House on the Nationality, Immigration and Asylum Bill? If the Home Secretary had done so, he would not have been nearly as surprised as he was by Mr Justice Collins's judgment.
Baroness Scotland of Asthal: My Lords. I cannot speak for my right honourable friend, but I am relatively confident that the issue excited so much of his attention during that period that he could not have failed to look at much of it. Of course, I cannot comment directly, as I am not in a position to give your Lordships an answer on that.
My right honourable friend said that there was,
"a balance between interpreting the law and completely rewriting a law which has been debated and voted for in our democratic Parliament".
Those two formulations—that by the learned judge and that by the Home Secretary—are of the same principle. It is the role of Parliament to pass laws that set a framework for sentences and the role of the courts to operate within that framework in considering individual cases.
Lord Hunt of Wirral: My Lords, does the noble Baroness agree that,
""to put legislative straitjackets on the judges' discretion to sentence for serious crimes is almost always a mistake".—[Official Report, 5/6/96; col. 1256.]
Those are not my words; they are the words of the noble and learned Lord the Lord Chancellor in the debate seven years ago. Those words will come back to haunt him.
Baroness Scotland of Asthal: My Lords, I do not think that they will haunt him. Of course, we would assert that this is not what this Government are seeking to do. I say right away—
Lord Lester of Herne Hill: My Lords, I thank the Minister for giving way. Would the Minister agree with me that it is not desirable for a senior Minister to go on the radio on the same day as a judgment before it could possibly be interpreted to him and to make a powerful statement about it? That is not a wise exercise of public power, is it?
Baroness Scotland of Asthal: My Lords, I absolutely hear what the noble Lord says. It is not for me to comment on that. But it is right that the Home Secretary made his feelings felt. I think others have commented on it in this debate. I have not heard anyone, in this debate or outside, disagree with the statement of principle that my right honourable friend the Home Secretary made in response the next day—that is, the comment in the article. Neither have I heard anyone dispute what was said by the learned judge. Both were saying the same thing.

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My third general point concerns the relationship between the judiciary and the executive. A number of noble Lords, including the noble Lord, Lord Goodhart, and the noble and learned Lord, Lord Morris of Aberavon, made the point that, here again, self-restraint is the hallmark. One would expect no less of the noble and learned Lord, Lord Bingham of Cornhill, who I see in his place, than to be scrupulous, and so he was in opening his judgment in a recent case. He said:
"The question arises, as one of law not policy, whether there is a power which, compatibly with the European Convention on Human Rights, the Secretary of State may properly exercise, and the answer must turn on how, on a proper legal analysis, exercise of that power is properly to be regarded".
This would seem to me, with respect, to be a model approach.
For a government, of course, those checks can be, from time to time, uncomfortable. But the press too often misunderstand that judicial review is not an appellate procedure. That point was made very strongly by the noble Lord, Lord Rodgers of Quarry Bank, in his opening address. The court does not substitute its opinion for that of the decision-maker on whom Parliament has conferred that power. The court rules only on the legality of a decision, not on its correctness.
The Government seek a partnership with the judiciary. I, too, welcome the contribution made by the noble and learned Lord, Lord Hope of Craighead, who outlined very clearly how that relationship has developed in consultation and how the debate has been better informed by the way in which that partnership has evolved. The Government welcome that partnership and rejoice in it. The separation of powers does not imply only that each should challenge the other. In relation to the way in which the proper interests are challenged, there should also be a working together; a working in harmony.
The criminal justice reforms are central to government policy and there can be no doubt that they are needed. Over £80 million a year is wasted through adjournments, delayed and cracked trials. Only 43 per cent of trials in magistrates' courts are effective. We are also concerned to achieve greater consistency in sentencing. Evidence from around the country suggests that there is some way to go in this area, especially in magistrates' courts. The Sentencing Guidelines Council, to be chaired by the noble and learned Lord the Lord Chief Justice and with a majority of judicial members, will have a crucial part to play in delivering these reforms.
I can reassure the noble Lord, Lord Rodgers of Quarry Bank, that this is not a cosmetic exercise and it is not intended to diminish the importance of the necessary exercise of judicial discretion. That work will be added to by the Criminal Procedure Rule Committee. The Government are accountable to communities, victims and witnesses for their delivery of these reforms. We have to challenge the status quo in order to deliver. But I reassure the noble Lord, Lord
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Dholakia, that we understand fully the importance of the role of the judge and the exercise of judicial discretion.
The Government have been in discussion with the noble and learned Lord the Lord Chief Justice and other members of the judiciary on the development of the policy relating to the criminal justice system, and we shall continue to do so. There have been a number of meetings with Home Office Ministers and officials since early last year on the Criminal Justice Bill and more recently on sentencing reform. My right honourable friend the Home Secretary has agreed to several changes to the legislation to meet concerns expressed by the senior judiciary.
Home Office officials are now working on a draft protocol on consultation with the judiciary about legislation. A senior judge sits on the National Criminal Justice Board—endorsed by my right honourable friend—which will be taking forward these and other criminal justice reforms. We are building a partnership, which is as it should be. Certainly, I can say—perhaps I may also say personally—we rejoice in that partnership and have reaped many benefits from it.
When your Lordships' House debated this issue in 1996, the noble and learned Lord, Lord Irvine of Lairg, affirmed that,
"the role and independence of the judiciary would be vigorously upheld by the next Labour Government". [Official Report, 5/6/96; col. 1313.]
It has been and it will continue to be.
8.20 p.m.
Lord Rodgers of Quarry Bank: M y Lords, the debate has run its course. I wish that I had time to thank all the speakers, but I have no choice but to fall upon a period of calm and silence. I beg leave to withdraw the Motion for Papers.
Motion for Papers, by leave, withdrawn.

Clergy Discipline Measure
8.20 p.m.
The Lord Bishop of Winchesterrose to move That, in accordance with the Church of England Assembly (Powers) Act 1919, the Clergy Discipline Measure be presented to Her Majesty for the Royal Assent.
The right reverend Prelate said: My Lords, the Clergy Discipline Measure before your Lordships' House this evening represents a major revision of the disciplinary procedures of the Church of England. It is the result of very long and careful consideration of the General Synod and comes to the House with the strong support of the General Synod and the Church of England, after having been found expedient by the Ecclesiastical Committee. It is with confidence that I commend it to this House for approval.
The current arrangements for clergy discipline are contained within the Ecclesiastical Jurisdiction Measure 1963. Its procedures, modelled in some ways

917
on those of criminal courts, have been found to be inflexible, expensive and slow. The result has been that the 1963 Measure is rarely used, which has had serious consequences. A significant number of complaints have been left unresolved; discipline has tended to be exercised informally and on a voluntary basis; and a cleric's resignation has been a frequent outcome, not always appropriately.
That situation is unsatisfactory, not least from the point of view of the clergy themselves. if they are to be respected and trusted, a manifestly credible, fair and transparent system for administering discipline is essential on those rare occasions in which we fall short of the standards rightly expected of us.
Accordingly, in 1994 the General Synod established a working party to review clergy discipline and the working of the ecclesiastical courts. There followed an extensive consultation and an examination of good practice in other Anglican provinces, other Christian churches and the professions and employment in the United Kingdom, which led to the report Under Authority. Legislative proposals were then developed and taken through a long and careful process of revision in the Synod. The Measure that resulted from that lengthy process commanded the support, on its final approval in November 2000, of 100 per cent of those voting in the House of Bishops, 99 per cent in the House of Laity and 90 per cent in the House of Clergy, in which only 23 voted against final approval, with 200 voting for it.
In drawing up the Measure, the Church has sought to construct procedures which are fair to all parties; are capable of applying to all types of clergy, whatever their rank, experience or circumstances; are easily understood and flexible; and encourage as speedy a resolution as is consistent with the needs of justice. We firmly believe that the procedures in the Measure will meet all those requirements and enable genuine complaints to be dealt with effectively, while excluding those that are trivial, malicious or vexatious.
In detail, the disciplinary procedure under the Measure, which relates only to cases of misconduct and not to matters of worship or doctrine, will be activated by a written complaint to the bishop. Once received, the complaint will have to be examined by the diocesan registrar, a practising lawyer, who will decide whether the complainant has a right to complain under the Measure, whether it involves a disciplinary matter and whether the evidence supplied supports the complaint. On the basis of the registrar's assessment, the bishop will then decide whether the complaint should be dismissed. If he decides not to dismiss it a number of courses are open to him, including taking no further action, leaving the complaint on the record, seeking to promote conciliation, or imposing a penalty with the cleric's consent. The remaining option is to refer the complaint for investigation with a view to it being brought before a bishop's disciplinary tribunal if the President of Tribunals, again a lawyer, agrees that there is a case to answer.
In practice it should seldom be necessary to follow that last course of action. In those rare cases where a complaint does proceed to a tribunal, the case will be
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heard by a tribunal of five members—two clergy, two lay people and a legally qualified chairman—allocated from provincial panels. Their decision will be by a majority using the civil standard of proof. Appeals will continue to lie to provincial courts of appeal.
As regards penalties, the Clergy Discipline Measure will give more flexibility than does the 1963 Measure. The most severe, for use in the most serious cases, is prohibition for life, which involves a permanent ban on exercising any clerical function. Others include prohibition for a limited period, removal from office, revocation of a licence, requiring the cleric to refrain from some offending behaviour, and. lastly, giving a formal warning. The Measure also provides for the bishop to be able to impose some of those penalties after certain proceedings in the criminal or divorce courts—whose findings are treated as conclusive for the Church—and gives him a new power of suspension.
A closely similar process is made available for complaints about bishops and archbishops. Among its other provisions, the Measure also provides for the establishment of a new commission, the clergy discipline commission, to give general advice on the working of the Measure and to issue codes of practice and guidelines, and for the maintenance of an archbishops' list—a confidential record of penalties imposed under the Measure and other matters.
In drawing up these new procedures the Church recognises that disciplinary proceedings can have very serious implications for clergy even where the complaint is about a relatively minor matter. We have therefore been concerned to ensure that the rights of the clergy are properly protected. To that end the draft Measure was subject to a detailed scrutiny by leading counsel specialising in human rights law. Counsel was satisfied that the requirements of Article 6 of the European Convention on Human Rights, conferring the right to a fair trial, were met by virtue of the rights of appeal to the provincial courts. But he identified ways in which, had that not been the case, the Measure as originally drafted might not have been fully consistent with human rights requirements. A number of changes were made as a result; and we are therefore as satisfied as we reasonably can be that the Measure is fully compliant with the Human Rights Act.
The proper protection of the human rights of the clergy was of course a matter to which the Ecclesiastical Committee was entitled to give the fullest consideration, and it did so. One of the principal issues it addressed, at pages 55 and following of the committee's report, was that of the standard of proof where a complaint is heard by a tribunal. We explained to the committee that the choice of the civil standard. as opposed to the criminal standard which applies under the 1963 Measure, was arrived at after thorough consideration and much debate in the revision committee for the Measure and in the Synod as a whole.
The civil standard is increasingly used in the disciplinary procedures of other professional bodies. In our view it strikes an appropriate balance between

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the interests of the wider Church and the public in not allowing misconduct by clergy to go unchallenged and the right of clergy to a fair hearing and a safe decision. This is because the level of proof required will vary according to the seriousness of the allegation and the implications for the cleric. Thus in the most serious cases the standard of proof required will be indistinguishable from the criminal standard.
This understanding of the position was accepted by the Ecclesiastical Committee, which was accordingly content to accept that the adoption of the civil standard of proof was appropriate. In its examination of our representatives and in its report the committee addressed other matters but none was such, in its judgment, as to render the Measure inexpedient. In so far as the committee made recommendations for consideration by the Church, we are grateful for them and shall give them very careful consideration in the implementation of the Measure if it passes into law. The committee's decision, by a substantial majority, to find the Measure expedient reinforces my confidence that the Synod's proposals embodied in the Measure will commend themselves to this House.
In conclusion, the Measure is the fruit of very long and careful consideration by the Synod of the needs of all those who have an interest in this important area, not just clergy, their bishops and the lay people of the Church but also the wider public. We believe that it strikes a fair balance between their different interests and that in doing so it will give the Church a fair. credible and open system for dealing with disciplinary issues. I beg to move.
Moved, That, in accordance with the Church of England Assembly (Powers) Act 1919, the Clergy Discipline Measure be presented to Her Majesty for the Royal Assent.—(The Lord Bishop of Winchester.)
8.32 p.m.
Baroness Turner of Camden: My Lords, I thank the right reverend Prelate for introducing the Measure. I speak on this issue because, as some noble Lords will know, I have an interest as a former official for the union to which a number of clergy belong, Amicus, MSF Section.
The union has been concerned for some time to try to ensure that its members have the same employment rights as other employees. As is well known, that is not the case at the moment. I am not an expert in these matters; I speak from a briefing provided by the union. But one problem is lack of employment security, which, of course, extends to security of homes as well.
The clergy are in a unique and sometimes invidious position as public figures and by reason of their employment conditions. They are open to allegations which can easily be made without any supporting evidence and which are sometimes difficult to disprove. Because of the public nature and character of ordained ministry, it is often enough for allegations to be made for someone's life's work to be destroyed without the prospect of redress or reinstatement.
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Allegations repeated in a public hearing, in the solemnity of what appears to be a Crown Court, attended by the world's media, generally end the ministry of any cleric whether acquitted or found guilty. The 1963 system ensured the maximum interest by the media and gave what are in effect matters of Christian discipline the character of serious criminal misconduct. Enormous power rests in the hands of the bishop and his legal advisers which I am advised has sometimes been exercised oppressively and unjustly.
The new Measure attempts to regulate the involvement of the bishop with the administration of justice although it does not remove him from making decisions in a process in which he is involved in his own right. However, the prospect of a civil tribunal with officers not appointed by the bishop and out of the glare of the media is less of a threat to those who are determined to have their day in court and to vindicate themselves against allegations.
The second aspect of the clergy's position which needs consideration is that once removed from their employment in paid ministry they have no alternative employers to whom they can turn. They have lost their tied housing, their income, their ministry and all prospect of further service in what is, after all, very much a vocation.
I am advised by our members that there is a so-called caution list maintained by the archbishops, circulated regularly to their episcopal colleagues, on which names of clergy appear—not only those who have been formally disciplined under the 1963 Measure or have criminal convictions according to the law of the land. but those to whom their bishop has taken some exception. Clergy can be threatened with the list as a means of demanding conformity, whether legitimately or oppressively. Some modest regulation of the list is introduced in this Measure, although our members tell me that it does not go far enough.
I gather that the most important positive reform introduced by the Measure is a new section in which, for the first time, it becomes practical for anyone, clergy or lay, to initiate disciplinary proceedings against the bishops themselves. The threshold provided by the requirements of the 1963 Measure was set so high that it was practically impossible for a bishop to find himself on the receiving end of a complaint. In the new Measure it will be easier for proceedings to be commenced by a wide range of parties, including those who consider themselves to have suffered from the actions of a bishop. The briefing I received asks that attention be drawn to the new canon law, which the General Synod has also approved to accompany the new Measure.
The proposed amending canon 24 will have the effect, if approved, of imposing the provisions of the new Measure not only on serving clergy and bishops of the Church of England—that is an appropriate use of the powers of the Synod—but on all those who have ever been ordained, including those who have resigned or retired from active ministry, those who have been deposed, and even those who have repudiated the Church of England and been accepted into the

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ministry of another Church or even of another faith. Our members believe that that is not appropriate and possibly a breach of the human rights convention, despite what the right reverend Prelate said.
It is clear that the new Measure is not without shortcomings, and there will be reservations about it on points of detail by clergy. However, the prospect that bishops would deal with clergy with whom they were dissatisfied in a relatively open way, using a process more recognisably close to that which employees in ordinary walks of life might face, is a step in the right direction. The union believes that it goes some little way to meeting the kinds of arguments that it has been putting forward on behalf of its members.
The Measure still falls a long way short of full employment rights for clergy, however. Some clergy will be in a vulnerable situation, and the Measure may not improve matters for them. Clergy of the Church of England who lack the parson's freehold will still not be protected in the same way as those who have the freehold. There has been a lengthy consultation process in relation to the DTI's review of atypical workers' rights, but it has not so far resulted in a decision to grant clergy full employment rights in accordance with the campaign in which the union is still engaged. Meanwhile, as I said, I welcome the new Measure as a step in the right direction.
8.38 p.m.
Lord Brightman: My Lords, I have had the honour of being a member of the Ecclesiastical Committee for some years, and would like to take the opportunity to raise two points for consideration. The first arises from the fact that the committee has no power to amend a draft measure, even in the most obvious case. The function of the Ecclesiastical Committee is confined by statute to drafting a report to Parliament stating the nature and legal effect of a proposed measure and its views on the expediency of the measure. It then communicates the report in draft form to the legislative committee of the General Synod, and finally presents the report to both Houses, if the Legislative Committee wishes. The final step is for Parliament to submit the measure for Royal Assent, if so resolved on Motion. Nowhere along this long path is there any power for the Ecclesiastical Committee to amend a draft Measure, however obvious it may be that an amendment is needed.
This point arose in stark form in the present case. Archbishops were omitted by mistake from a certain section. There was no doubt whatever that this was an accident in drafting. It was clear from the Notes on Clauses; it was clear from the statements of the representatives of the General Synod who appeared before us. The mistake did not matter all that much in the present case, and the Ecclesiastical Committee did not reject the draft measure on that ground.
Had the mistake been more serious, I am advised that the draft Measure would have had to be returned to the General Synod for correction and that the delay might have been at least six months before the measure finally became law.
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I do not suggest that the Ecclesiastical Committee should have any general power to amend. I only suggest that there should be a limited power to correct an obvious and admitted mistake in wording, in order to avoid the laborious and time-consuming process otherwise involved.
Let us suppose that the word "not" were omitted by accident from an important clause. Supposing it were abundantly clear from the Notes on Clauses and from statements made by representatives of the General Synod appearing before the Ecclesiastical Committee that the word "not" should be there. It seems absurd that the draft Measure should have to go back to the Legislative Committee of the General Synod, and then to the General Synod, and back once more to the Ecclesiastical Committee in order to put matters right. What a palaver for just correcting an admitted mistake!
My second point relates to the size of the Ecclesiastical Committee. The committee is required by statute to consist of 30 members, subject to casual vacancies—that is to say, 15 from each House. I have examined the reports of nine meetings of the committee. It is usually not possible to tell from the reports how many members of the committee voted on the expediency of a draft Measure. But I can say that in one case only 12 members attended and voted—12 out of 30.
It is, I believe, obvious that if a committee has a very large membership, the sense of responsibility of members towards the work of that committee is in danger of being diluted. In the case of a small committee, individual members are likely to feel a greater responsibility to attend meetings. It may also be possible for the committee Clerk to arrange days that are convenient to most or all members. I therefore suggest that the members of the committee should be reduced from 30 to perhaps 14 members, drawn equally from each House.
My two suggestions—a very limited power of amendment and a reduction in the size of the committee—would require statutory authority. If those suggestions commended themselves to the Government and the General Synod, they might perhaps be the subject matter of a Private Member's Bill without upsetting the Government's legislative programme.
8.46 p.m.
Lord Lloyd of Berwick: My Lords, I agree with every word that the right reverend Prelate said and with his comments supporting the Measure that is before us.
This is an important Measure; there is no doubt about that. It was considered at very great length by the Synod. It was agreed unanimously—or by an overwhelming majority—in all three houses of the Synod. It is, on any view, a huge improvement on what was there previously. For the first time, for example, it deals separately with disciplinary offences and does so in a way that seems—to me, at any rate—to he fair to the clergyman and the complainant. It was considered

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at unusual length in the Ecclesiastical Committee, as one can see from the minutes of the two meetings that we held; the report extends to some 25 or 30 pages.
The main points for consideration arose under Clauses 1, 18 and 38. Those points were all discussed at great length in the Synod, and the Synod representatives, including the right reverend Prelate, appeared before the Ecclesiastical Committee to give us the benefit of its advice and help, and they answered questions at great length. I do not suggest that that was done at inordinate length; it was entirely appropriate that that was done. It was made clear at the outset of the hearing that the Synod wished the matter to be taken slowly because it was concerned about its importance. At the end, the Ecclesiastical Committee found, by a majority of 10 votes to two, that the measure was expedient. It was for the Ecclesiastical Committee to perform that task under the terms of the 1919 Act.
I am sure that the noble Baroness, Lady Turner, will remember that Amicus MSF applied at an early stage to be allowed to give evidence before the Ecclesiastical Committee. We considered whether we could do so consistently with the provisions of the 1919 Act. We were advised by our legal adviser that we could not.
The noble Baroness also raised the undoubtedly important point about whether the clergy should be entitled to the ordinary employment rights as between an employer and employee. That may fall outside the scope of our debate. That is not to say that it is not an important point that must be considered at some stage.
I wish that there was a way under the existing Act by which we could correct obviously accidental errors, especially when they are agreed to be errors, without what the noble and learned Lord, Lord Brightman, called the palaver of going back to the legislative committee, back to the Synod and then back again. It is obviously a cumbersome process, but we find that it is impossible to envisage that on the legislation as it stands. Section 3(5) specifically provides that the legislative committee—that is, the committee of the Synod—shall have no power to vary a Measure of the Church Assembly either before or after conference with the Ecclesiastical Committee. Therefore, there is no way in which that can be done without the primary legislation that my noble and learned friend Lord Brightman envisages.
The same applies to the size of the committee. I fully understand the reasons that the noble and learned Lord urges; in particular the obvious point that the larger the committee the more likely it is that people will think that others can do the work for them and they need not attend. But that is not always the reason: more recently, a reason has been that with the rearrangement of the timing in the House of Commons, Members who have been present at the beginning of discussions of the Ecclesiastical Committee find that they have others to attend. It is an interesting point, but one which cannot be dealt with by us without primary legislation.
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My noble and learned friend Lord Brightman, having been one of the two dissentients and the noble Lord, Lord Campbell of Alloway, was the other. I am sorry that he has decided to speak in the gap rather than put his name down in the usual way. But that was clearly his privilege. I give the Measure all the support I can.
8.54 p.m.
Lord Campbell of Alloway: My Lords, I thought that four minutes was all your Lordships could bear, so I shall speak for four minutes. I have the fairly recent honour to serve on the committee. I shall not speak to a Measure which I decline to support or oppose the Motion. I am content to rely on the assurance of the right reverend Prelate the Bishop of Winchester as to implementation. But, as in the case of the noble and learned Lord, Lord Brightman, I want to take some short points in proposals for improvement of the exercise of our statutory functions.
The first relates to attendance and the membership of 30. Everything the noble and learned Lord said was right. On our first meeting, 22 out of 30 members attended, but later it had to be adjourned because there was not a quorum of 10. At the second meeting 16 members out of 30 attended. At the end, a member who was leaving the room had to be recalled to establish a quorum for a vote.
That is not a satisfactory situation. My notes arc curious. Without consultation with the noble and learned Lord, they say, "Six or eight aside; say 16", which is not far off the 14 of the noble and learned Lord. And there should be an obligation, an honour, to attend and to remain in attendance.
My second point is that the remit of the Act of 1919, as to the constitutional entitlement, must include the concepts of natural justice as judicially established. whether or not discussed at the Synod. Paragraph 63 shows that one matter of considerable importance to the noble and learned Lord and to myself was not discussed. There is no power to amend. I am not suggesting that there should be. I agree with everything that the noble and learned Lord said. I was going to propose a new procedure under which our clerk could send reasoned reservations with draft amendments to the appropriate authority for consideration before our first meeting in the interests of constructive and informed debate on due notice. That can be discussed at the first meeting.
It would be helpful if the relevant extracts from the minutes of the Synod could be produced. It would have saved about a quarter of an hour of my questioning at one stage of the proceedings. One could have seen the extract from the notes.
So I believe that there is a case for a new procedure and a case, without having any formal power to amend and if there is agreement in the Joint Committee, for embodying that agreement in codes of practice in implementation of the statute. True, it will require primary legislation, but I make that suggestion.
I also suggest that no snap vote should ever be taken without notice in the absence of members who have raised serious reservations. That would ensure that

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there is some representative decision. A representative decision of 30 is hardly ever achieved and it assuredly was not achieved on this Measure.
My last point is that I know that estate commissioners attend as members of our committee. But should they attend? Should an estate commissioner attend, to move a snap motion or to vote for approval? They are, unlike other members of the committee, not there without some preconception. 1 suggest that that should require some consideration on the Floor of the House. This is a procedural criticism which is in no way personal and in no way concerned with the right honourable gentleman Mr Stuart Bell. I hope that the ideas—we have not discussed them—of the noble and learned Lord, Lord Brightman, will take root.
8.58 p.m.
Lord Pilkington of Oxenford: My Lords, am I allowed to speak?
Lord Bassam of Brighton: My Lords, I am advised that the noble Lord is entitled to speak, but briefly.
Lord Pilkington of Oxenford: My Lords, I shall be very brief. I am a member of the Ecclesiastical Committee. I was not planning to speak in this debate but the noble Baroness, Lady Turner, has reminded us that this deprives people of life and liberty. What has brought me to my feet are the points raised by the noble and learned Lord, Lord Brightman, and the noble Lord, Lord Campbell. The Ecclesiastical Committee is there to protect the rights of the citizens. There are weaknesses in the system. We should listen to what the noble and learned Lord, Lord Brightman, and the noble Lord, Lord Campbell, said. It is terribly important. They are a minority of individuals but we must pay attention to their interests. They lose their houses, their jobs; they lose everything.
Laws must be drafted absolutely correctly. We do not want any of the matters to which the noble and learned Lord, Lord Brightman, referred. More care should be given by the Church and by everyone else because, above all, we Christians are concerned about individuals. That is all I want to say.
9 p.m
Lord Hardy of Wath: I echo the points made by the noble Lord, Lord Pilkington. I spoke only briefly during the committee's consideration of the Measure. The right reverend Prelate may recall that I expressed some anxiety about hard worked priests. There are many of them. One might have one priest representing and serving six, seven or eight parishes. There could be enormous pressures and that could easily be the subject of a malicious complaint.
I was satisfied that the Measure was unlikely to uphold a malicious complaint or draconian action quite unfairly being taken in such cases. However, it leads me to say that I hope that consideration can be given to the point advanced by my noble friend this evening and on previous occasions. There must be
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some change, both to provide the flexibility to which the noble and learned Lord, Lord Brightman, referred in terms of the legislative perfection of measures of this kind, and to ensure that in the 21st century the clergy are not denied natural justice by a refusal of adequate representation.
9.1 p.m.
Lord Wallace of Saltaire: My Lords, we have been debating the appropriateness of the Ecclesiastical Committee at least as much as the appropriateness of the Clergy Discipline Measure. I have one or two points to make on that. There are problems about the concept of the "representativeness" of the Ecclesiastical Committee, which is drawn from Members of both Houses. The Ecclesiastical Committee should operate its powers with the maximum of restraint.
As regards membership, I was one of those who was absent from the last meeting of the Ecclesiastical Committee, which happened to coincide with a meeting of the joint Standing Committee on the EU convention. I felt it was my duty, as someone who follows European matters, to attend that committee.
Perhaps I may tell the noble and learned Lord, Lord Brightman, that the committee, on what many of us thought was an important issue from the outset, failed to start on two occasions for lack of a quorum. It struggled for several months to manage a quorum and to get any notice whatever. Noble Lords can imagine the sour feelings that some of us had when, all of a sudden, the political editor of the Sun arrived and it was splashed all over the newspapers that the world and British sovereignty was coming to an end when some of us had struggled for several months to try to attract the attention of both Houses and the press.
There are always problems about the weight of business on different committees in this House. I suspect that we will struggle particularly with Members of another place to get them to attend in the strength which has been suggested would be appropriate.
We have, as the right reverend Prelate the Bishop of Winchester said at the outset, a Measure before us which has received a long and careful scrutiny. It had had nearly 10 years consideration—and six years with the Synod—before it came to us. I have visited Synod on a number of occasions. I was struck by the greater seriousness of its debates than I sometimes witness in another place, although not of course in this Chamber.
The balance of opinion on the Ecclesiastical Committee should be as far as possible to give Synod the benefit of the doubt, although quite properly it should consider whether there are holes in the proposed Measures. We recognise that some delicate issues are addressed. What is proposed is a backstop power which ideally will be used only on the rarest of occasions.
I have a little difficulty with the proposition advanced on behalf of Amicus by the noble Baroness, Lady Turner, that there should be full employment rights for the clergy on the same basis as all others, just

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as I have struggled in my own professional life with the argument about whether university teachers—and, indeed, schoolteachers—should have full employment rights on the same principle as everyone else. As teachers, we have a special care for our students that requires higher standards of conduct. Similarly, members of the clergy have a special care, duty and obligation in the way in which they match their private to their public lives that unavoidably demands higher standards of them than of others.
We also recognise the intense pressures of contemporary life both on members of the clergy themselves and, as one or two noble Lords have said, from a tabloid press that is always looking for scurrilous allegations and willing to listen to malicious complaints. As the noble Lord, Lord Hardy of Wath, said, they are often entirely unsubstantiated but nevertheless must be answered. One recognises the difficulty for the Church as a hierarchy in handling those situations.
The Measure has got the balance right. It applies to the whole of the Church, from top to bottom; it sets out a careful balance of measures and of discipline; and it attempts to provide a balance of fairness to both sides. On that basis, I welcome the Measure.
9.6 p.m.
Baroness Wilcox: My Lords, the noble and learned Lord. Lord Brightman, my noble friend Lord Campbell of Alloway and the noble Lords, Lord Pilkington and Lord Wallace of Saltaire, have all been much concerned with the Ecclesiastical Committee and its size. That reminds me of the saying that the world is run by the people who turn up. Perhaps that is what we have heard tonight. For myself, I shall confine my comments to the question of the Measure.
We on these Benches support this Measure, which fills a vacuum in the current employment arrangements for clergy. I am grateful for the clear exposition given by the right reverend Prelate the Bishop of Winchester in moving the Motion now before us. Indeed, I should like to take this opportunity to thank him and his team for the articulate and helpful assistance that they gave the Ecclesiastical Committee during our two meetings on the Measure. As a member of that Committee—an interest I now declare—I know that I for one benefited enormously from the help that they gave us, both orally and in writing. I join with the noble and learned Lord, Lord Lloyd, in that commendation.
In view of what has already been said by the right reverend Prelate and others, and in view of the exhaustive explanatory material published with the Ecclesiastical Committee's report, I shall not detain your Lordships long, but I should like to offer the House a few reasons why the Measure deserves our wholehearted support.
First, it offers clergy a well-thought-through and comprehensive scheme for professional discipline, which current arrangements simply do not provide. Every profession needs a fair, intelligible and
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accessible scheme for the regulation of professional conduct, which is what the Measure will offer. Under its provisions, which will apply to all clergy, frivolous and unsubstantiated allegations of misconduct can be swiftly considered and set aside. As we have heard, alleged misconduct of a more serious character can be fairly and properly determined.
Where adjudication is required, that will be performed by an independent tribunal, operating in much the same way as an employment tribunal. That must be right. I was interested to hear the noble Baroness, Lady Turner, speak so eloquently in expressing her reservations and yet, at the end, welcome the Measure as a step in the right direction.
Secondly, the whole system lays great emphasis on conciliation and proceeding by consent. That is another feature that we find attractive. Thirdly, I draw the House's attention to the meticulous way in which the Measure has been prepared and in which the Synod considered disciplinary practices elsewhere. As a result, this Measure now offers to Church of England clergy the kind of disciplinary scheme which is taken for granted by most other professions in the United Kingdom; and, indeed, which is enjoyed by their fellow clergy in many other provinces of the Anglican Communion. This is another reason why we support the Measure.
The Measure has been a long time in the making. As we have heard, it is now some six years since the Synod's working party first reported. It has been thoroughly scrutinised by the Synod, with the equivalent of Committee, Report, and Third Reading stages. It has been overwhelmingly approved by the Synod's three houses. It has been found expedient by the Ecclesiastical Committee of Parliament. We on these Benches see great merit in these proposals, and wish them well. We agree that they should be presented for Royal Assent.
9.11 p.m.
The Lord Bishop of Winchester: My Lords, I am grateful to all noble Lords who have spoken, both expected and unexpected—the latter were, none the less, welcome—and to all who have attended the debate.
I am grateful to the noble Baroness, Lady Turner. for her interest. However, if I may presume to say so. there were times during her speech when she appeared to be ill served by her brief. It seemed to me that those who produced it had not read the Measure with the utmost care and had certainly not attended the debates in order really to understand the issues involved.
I do not believe that the Archbishop's list, which is described and given statutory basis in the Measure. or the preceding Archbishop's list and its predecessor, the caution list, have been open for about 20 years to the kinds of critique described by those who produced the noble Baroness's brief—a brief from which she distanced herself at points. The bishops regard it as absolutely straightforward that we, too, are brought clearly within the ambit of the measure.

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The move that brings retired and other clergy within the ambit of clergy discipline seemed to the Synod to he proper. granted that in any diocese—or at least in some, such as mine and, I suspect, Hereford—hundreds of retired clergy function week by week as clergy. A structure that did not include them within the clergy discipline Measure would be bizarre. As Amicus and many others have long been asking, this Measure gives to clergy who are licensed but not beneficed the same disciplinary structure, and, therefore, the same safeguards as are available to the beneficed clergy.
I was also grateful to the noble Lord, Lord Wallace, for his response in relation to the character of our particular calling. He reasonably used an analogy with his own. It did not seem to the Synod, nor to me, that the issues would be well served were we simply to look to the general range of employment tribunals. The issues would not be well served; the clergy would not be well served; and the public would not be well served. Amicus representatives among Synod members had ample opportunity to make their case to the Synod. However, it needs to be said that, to a very large extent, they did not persuade the Synod.
Clearly the questions raised about the Ecclesiastical Committee by the noble and learned Lord, Lord Brightman, and the noble Lord, Lord Campbell of Alloway, are neither matters for us this evening, nor for me, to comment on in any detail. There is an issue about the situation in which an error of drafting in a Measure is widely agreed to be such, both by the Church's representatives and by the Ecclesiastical Committee. However. I very much doubt whether that would be worth the huge effort involved in seeking to review the whole process. Goodness knows which cans of worms might be opened for Parliament and for the Church were such an attempt to be made. I should imagine that all sides would think a great many times before setting out on such a path.
The question of the size of the committee received an appropriate response from the noble Lord, Lord Wallace. The comparison between the two matters seemed rather significant. I am very grateful for the comments of the noble and learned Lord, Lord Lloyd of Berwick. I am also grateful for his chairmanship, as, I am sure, are the members of the Ecclesiastical Committee and the representatives of the Synod.
It is important to take up one of the points made by the noble Lord, Lord Campbell. I will not respond to the other points, because they relate to how Parliament wishes to do its business—though it would doubtless consult the Church. The noble Lord commented on the presence of the Second Church Estates Commissioner as a member of the Ecclesiastical Committee—one commissioner, not, as I felt he was suggesting, more than one. Presumably, that is a
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parliamentary question rather than a Church matter. At present, there is one member of the Ecclesiastical Committee appointed by one of the Houses of Parliament who is also a member of the Synod, and in the past there have been more than one. In that respect, those members have two bites of the cherry. That is the case for one distinguished Member of another place at present.
I welcome the contribution of the noble Lord, Lord Pilkington. His point that the committee exists to protect the rights of the citizen is of profound validity. But, given what the noble Lord has said this evening and at other times, it is important to state that the citizen—whom I take the Ecclesiastical Committee to be required to have in mind—is not only the cleric but the public. As with other codes of professional discipline, the aim of the Measure and the intensive process over the years has been to hold as carefully as possible in tension the rights of the range of individuals wits involved—both clergy and public. It is among the particularly difficult responsibilities of a bishop daily, and under the Measure, to hold the two in appropriate tension.
The noble Lord, Lord Pilkington, said that we wanted none of the things that the noble and learned Lord, Lord Brightman. referred to—I think that I quote him correctly. However, it is important for the record to say that the noble and learned Lord and the noble Lord, Lord Campbell, referred to the absence of the word "archbishop" from a clause. We highly regret that absence.
That gives me an opportunity to assure the noble Lord, Lord Campbell of Alloway, in response to his first point, that the representatives of the Synod have taken seriously the points made by the committee that are recorded on pages 2 and 3 of the report. I have no doubt that those points will be clearly considered over the next years of implementation, or through miscellaneous provisions Measures, to see how they can be approached.
I take note of the comments made by the noble Lord, Lord Hardy of Wath. Of course we are concerned to respect natural justice and I believe that that is safely in place. To some extent the noble Lord retracted his point about rural clergy, who are to he considered and defended just as carefully, along with their parishioners, as any other sort of clergy and parishioners. I am also grateful to the noble Baroness, Lady Wilcox, for her attention to this matter.
Finally, I thank all members of the committee, its staff and our own staff, and the noble and learned Lord, Lord Lloyd of Berwick, for his skilled chairmanship.
On Question, Motion agreed to.
House adjourned at twenty minutes past nine o'clock.