Lords Sitting of 6 October 2003

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

Tributes to the late Lord Williams of Mostyn
The Lord Chancellor (Lord Falconer of Thoroton): My Lords, we have lost our Leader. Lord Williams of Mostyn—Gareth—died on 20th September 2003. At the time of his death, his command of the House and the faith that the House had in him were total. He brought to the job of Leader of this House his characteristic qualities: incisiveness, respect, friendship and humour. He led the House brilliantly, calmly, efficiently and effectively. I know that he will be deeply missed in all parts of the House.
Gareth came from north Wales. Right from the beginning, he was special. It says something about his impatience that he chose to be born in the taxi his mother was travelling in to the hospital to have him— rather than wait for its arrival—and about his skill that all was well. He never lost his connection with Wales or his understanding of where he had come from. Indeed, on the night before his untimely death, he was back in Wales, in Swansea, addressing a legal dinner with his usual wisdom and wit.
He went up to Cambridge without either a dinner jacket or any of the connections that eased the passage of so many of his contemporaries. He went to the Swansea Bar, where his dominance was established very quickly. He thrived at the Bar. He was never like many other lawyers: he saw the point, and he said what it was clearly and only once. And whether it was the jury or the judge, they usually accepted it.
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By the early 90s, Gareth stood head and shoulders above the rest of the Bar, but he never disguised his bewilderment at the funny practices and clothes of the courts. Those of you who heard Gareth describe how the singer Michael Jackson, one of his libel clients, reacted with incredulity as Gareth detailed what he should expect when he went to the High Court—wigs, gowns and orotund legal argument—will know the wicked glee he took in lampooning the eccentricities of the law.
Gareth was never going to stay his working life at the Bar, moving to high judicial office—though that would unquestionably been his, had he stayed. He was a man of passionate and radical views. He wanted to change things. He relished the opportunity that going to the Lords gave him. But, just as he was not like other lawyers, he was not like other politicians either. His way to achieve the things that he passionately believed in was by quietly persuading others to do them. He knew that he could achieve so much if he allowed others to take the credit, but no one who knew Gareth was misled into believing that the quiet of his persuasion reflected moderate support for change. He desired change passionately and persistently.
When he joined the Government in 1997, he did so as a Parliamentary Under-Secretary in the Home Office. He was responsible for prisons, and he spoke for the Home Office on all its issues in the House. He was a source of real strength in the department. Officials and Ministers alike relied on him for guidance and confident wisdom. Throughout his time in government, his advice was always listened to. Here, Home Office Questions became the biggest box office draw: numbers went up; he was funny; he answered the Question—usually—and he transmitted his views loud and clear to the House.
Without ever a hint of disloyalty or aggression, very quickly after 1997 he marked himself out as the pre-eminent parliamentarian in this House. His pre-eminence came in part from his debating skills. His power to persuade was immense. Without rancour or sourness, he was able to deflect every attack, often

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using humour and always putting the best argument. Somehow, he was always able to convey to us that, however serious the issue might appear, it was not an issue that we could not sort out. There was no crisis that he could not avert; there was no injured feeling that he could not mend.
But his pre-eminence came from so much more than his debating skills. Having Gareth beside you on the Front Bench was like having the writing team of "Yes Minister" on your side. As you listened to the unanswerable supplementary question about how truly dismally you had mishandled the Dome, Gareth would whisper the life-saving answer that diverted the question and saved your bacon. His unselfish quickness was legendary. He did it for all of us. We looked so much better than we were, because we had Gareth.
Gareth did not stay a Parliamentary-Under Secretary long. In 1999, he became the first Attorney-General in this House. Because he was someone who so totally had the confidence of both the lawyers and the politicians, his tenure was extremely successful. He made the precedent stick.
He was the only possible Leader in 2001. His achievements during that period are remarkable and well recorded—including the changes in working practices, the register of Members' interests and navigating the House towards changes in the speakership. As regards the Bills he steered through the House, who else could have had the confidence of the House to steer the Northern Ireland (Monitoring Commission etc.) Bill through the House in two days flat last month?
But Gareth's remarkable achievement in this House is so much more than the record could ever show. Gareth has, above all, been the person who has most influenced how the House has coped with change. His period as Leader, and the blinding obviousness of his claim to that role, showed that it was the qualities which Gareth had that the House was both influenced by and aspired to. And those qualities—decency, selflessness, co-operation, friendship, humour and respect—he has left with us in the way that he influenced this place.
For all of us, it is next to impossible to imagine the House without Gareth. The sad requirement on us all is that from now we will have to do so. But his loss is so much more profound than only to this House. All of our thoughts are with Veena and his family. The whole House joins me in sending our deepest sympathies to Gareth's family.
On a beautiful autumn day last week in a small country churchyard, Gareth, surrounded by friends, family and colleagues from all through and all across his life, was laid to rest. His funeral could have filled cathedrals. Every Member of this House from all sides mourns the loss of Gareth Williams. He was a great Leader of the House. His death deprives us all. Losing Gareth takes away a piece of everyone here. We will never forget him.
2.45 p.m.
Lord Strathclyde: My Lords, even in these present sad circumstances, I know that the House will forgive me if I take the opportunity to congratulate and welcome the noble Baroness, Lady Amos, on her appointment as Leader of the House. I look forward to working with her for the good of the whole House.
How unbelievable it is that Lord Williams of Mostyn is not in his place today. I share the shock and incredulity that we all felt when we heard of his sudden death just over two weeks ago. When I last saw him a day or two before his death, he was all his usual self; that is, courteous, urbane, practical and good humoured. The noble and learned Lord the Lord Chancellor told us much about Lord Williams's background and his brilliant career at the Bar, to which I cannot add. But in reference to his origins, in my time in this House Wales has produced two remarkable men to lead the party opposite; namely, Lord Cledwyn of Penrhos and Lord Williams of Mostyn. They both treasured their Welsh heritage. Neither was altered for a moment by the grandeur of this place. Each was a giant in politics, but their feet were always firmly on the ground. How sorely we now miss them.
In his time as Leader, Gareth Williams dominated this House. He was formidable at the Dispatch Box, powerful in arming his own case, never afraid to strike and he was deadly with a wit that could disarm his opponents in an instant. Many great parliamentarians can deploy remorseless logic. Some have remarkable wit. Few have both. Lord Williams was one of those very few.
Gareth Williams used the same skills in leading on legislation, even when it was sometimes uncongenial to the House. He was sensitive to the mood of the House. His sharp mind unfailingly cut through the verbiage and went to the essence of the matter, which is, after all, the first duty of a revising Chamber. He may have taken many briefs at the Bar, but he needed no departmental brief here. He spoke always from the heart with true understanding and conviction.
Gareth Williams was a great Leader of the House. There are some who say that we need new ways of controlling our debates, but one only had to see him in action to see how misplaced that is. With a soft word, a quiet joke, or the merest lifting of an eyebrow, he steered the House past rocky places—a sure mark of the respect in which he was held by all.
Finally, a personal word: the relationship between the Leader of the House and the Leader of the Opposition is never entirely easy, least of all at a time of radical change and experiment, of which Gareth Williams was such an advocate. But both sides, at their best, are driven by a sense of duty to the House. Gareth knew that. It was not only his door that was open, his mind was open too. One could always trust him, and sometimes one could even persuade him.
I grieve for Lady Williams at such an untimely and bitter loss and for the whole Williams family. I hope that it is some small consolation to her to know how

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widely that sense of loss is shared. This was a remarkable Leader of the House, a brilliant, straight and decent man and a truly memorable one.
Baroness Williams of Crosby: My Lords, may I say on behalf of these Benches that the House is a lesser place as a result of the death of Lord Williams of Mostyn? It is somehow appropriate that, as the summer begins to ebb from the skies, some of the light has left this House. Lord Williams brought to this place an extraordinary sense of warmth and magnanimity. It would be right to say that his loss will be mourned far beyond the Benches of this Chamber; he will be mourned by the staff of the House and by the many who worked with him and by those in his office. Wherever he walked around the House, people greeted him with a smile, knowing that he would be accessible to them and sensing strongly that he was their friend.
Lord Williams was in every possible way a brilliant man. He soared through the Bar and, as we all know, in 1992 he became Chairman of the Bar Council. He conducted himself in Swansea and later in London in the most remarkable way, dominating some of the most crucial law cases that have ever come before the courts. When he came into politics, having been elevated by Mr Kinnock, he rose extremely rapidly up the rungs of the ladder of politics. However, it is worth remembering that before he became a Parliamentary Under-Secretary of State at the Home Office in 1997, he brought to his spokesmanship in opposition on Northern Ireland affairs his extraordinary capacity for seeking consensus among people fighting and battling against one another. Indeed, he played a very significant role at a difficult point in Northern Ireland history after the suspension of the Northern Ireland Assembly by bringing together people who had found it impossible to converse. He brought to bear his extraordinary ability for conciliation to influence them.
Once Gareth entered the Government, he played a distinguished role in the Home Office, then as Attorney-General and, finally, as Leader of the House. In that capacity, I should like to echo what we have all agreed: he brought to that role an incredible ability to get the House to understand how to work through some of the most controversial issues confronting it. Not only did he have an extraordinary sense of humour, he was able to deprecate himself. He was always modest and able to take into account the gifts and contributions of others. We shall miss him very greatly.
He was a radical. He once said that radicalism was part of the water in Wales: you drank it with your childhood. He was deeply radical and I am delighted that he was able to bring to completion two of his major objectives, which dated back to well before he entered this House and the Government: the idea of an independent commission to appoint judges and the concept of a supreme court. Those are two great monuments to his record as a politician and as a lawyer—achievements that go far beyond what most of us will ever attain in our lives.
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He was also a radical influence on this House and, as the Lord Chancellor has said, brilliantly and successfully steered the work of the committee looking at the modernisation of our working practices. The only thing that he was not completely able to achieve was to make this House more democratic and representative. That task will now fall to his successor, Lady Amos. Along with the Leader of the Opposition I warmly welcome her to her new position. She, too, has great achievements to her credit and I am sure that she will bring to her new role the dignity, thoughtfulness and conscientiousness that she has shown already in the departmental ministerial roles that she has held as a member of the Government.
I say finally to Lady Williams and her family that Members on these Benches too share the huge sense of loss that they will undergo. We believe that she brought much light and happiness to Gareth and we are pleased that she was able to share so many happy years with him. We extend our deepest sympathy to her. All will find Gareth very difficult to replace.
Lord Craig of Radley: My Lords, it is a great privilege to be allowed to speak next. On behalf of all Cross-Bench Peers and myself, I pay tribute to Lord Williams of Mostyn. When he was last in this Chamber he was so much in control, so charming in manner, so ready as always with the disarming phrase, with the witty and pithy aside, that he seemed right at the very peak of his invariably excellent form. It was surely not unreasonable to expect him to remain a much respected, admired and popular leader of your Lordships' House for at least the remainder of this Parliament.
So, along with everyone both in this House and beyond, I was profoundly and deeply shocked and saddened by the news of his most untimely death. What a loss to the country, to the Government and this House, and to all his friends; but, most of all, a most tragic and grievous loss to his wife and family. On behalf of all Cross-Bench Peers I extend to them, one and all, our most heartfelt sympathy and condolences. He has sailed over the horizon where he still is, but now no longer seen or heard by those whom he left behind.
Those noble Lords who, like me, attended the funeral service in Great Tew Church last Monday will have marvelled at the poise and courage displayed throughout by Veena Lady Williams, and Imogen. Although a very private family man, Lord Williams would have been proud—and rightly proud—of them. We mourn for him, but remember him with great affection and admiration.
Leaders of your Lordships' House have to combine two very disparate attributes: strong partisanship and scrupulous fairness to all sides and Members of the House. In Lord Williams of Mostyn those commanding attributes were evident to all and never compromised, even though it was clear from a number of comments he made to me and to others that he did not find the dual role easy. All the more credit to him that he discharged it so well.

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Peers on these Benches, and in particular those who sat to the right and behind him, could count on his assistance to be heard. He seemed to have eyes in the back of his head—perhaps an inherited Welsh gift— along with all the other gifts of intellect, radical compassion and great success in his chosen profession of the law, which he had developed and practised in, along with his affection for the Principality. Of course there were occasions when his views and one's own did not coincide, but he would always listen, even if his mind was already made up.
In the many fine obituaries for this remarkably talented and likeable man, I was struck by one phrase attributed to him when speaking about himself. It might even form a kind of colloquial epitaph. It describes the inner strength and sense of destiny of one of the most astute, charming and yet radical personalities that one could meet anywhere and at any time. According to his own account, he decided at the age of eight that he wished to be a barrister because he had the necessary characteristics,
"barking egomania allied to rat-like cunning".
All who knew him, and in particular all those who knew him well, will grieve at his so abrupt and unexpected death. He will be greatly missed and long remembered. He lived up to the Welsh motto on his coat of arms, which translates to read, "The Truth Against the World".
3 p.m.
The Archbishop of Canterbury: My Lords, one of the marks of a good lawyer is surely that he or she should confer dignity upon those situations and those persons with whom they have to deal. It may well be that this House needs no such conferrals of dignity, but what has already been said this afternoon has indicated that sense of seriousness, that sense of enjoyment and that sense of broad vision which are always inseparable from dignity.
Perhaps I may remind your Lordships' House of the late Lord Williams's involvement, over many years, with the legal work of the Commonwealth and of his sympathy and involvement with Commonwealth lawyers, as well as his sustained involvement with issues surrounding prisoners' rights. In both of those respects, he showed himself to be as we entirely expected: a lawyer in the sense that I have already outlined. He was someone concerned with the conferral of dignity: the dignity that is shared by the partnership of the Commonwealth and the dignity that alas we are often reluctant to confer on those at the wrong end of the legal system.
To speak of dignity may sound somewhat pompous. All that has been said so far has indicated a point of which none needs to be reminded: the late Lord Williams was in no sense a pompous person, but one who, confident in his own dignity, was able to recognise it in and confer it upon all those around him.
On behalf of the Lords Spiritual, it is a great privilege for me to be able to pay tribute. All on these Benches found him to be a loyal and faithful friend,
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although not an uncritical one. He enabled us to play our part in this Chamber to the full. He provided help, support and welcome for all of us. To nervous newcomers in your Lordships' House, he was a great source of strength. I am personally particularly grieved that I had such a very short time in which to learn from him and to work with him but, before I first took my seat in your Lordships' House, I was already conscious of his work, his witness and his friendship.
It will not have escaped your Lordships' notice that we shared one or two things in common that had perhaps a little to do with the water of early childhood already described and an involvement—not restricted to the two of us in this House, I am happy to say—with Swansea. To be welcomed to this House by someone with whom I felt instantly at home was a great bonus and a great benefit.
Reference has been made to the passionate concern of Lord Williams for involvement in the affairs of his native land. Some have spoken of the way in which the Welsh political tradition has been shaped by ideals of corporate and co-operative work to such an extent that Welsh people make naturally good lawyers. Those critical voices that ascribe the legal enthusiasms of the Welsh to less salutary and salubrious motivations should be silent perhaps at this point and allow the benefit of the doubt to those of us who share that lineage.
One who heard it described a speech by Lord Williams, in which he referred to his ancestry and his lineage, as the most moving moment he had ever encountered in the House. Although I belong to a different branch of the ubiquitous Williams clan in Wales, I should like to quote from those words with some sense of identification and some sense of the powerful contribution that they make to our common sense, in every sense, in the House. The remarks were made during a debate on the future of this Chamber. He referred to pride in family, history and ancestry. Quoting Yeats, he said of his ancestors, "they are no petty people". He spoke of his father, grandfather and great-grandfather; of those who suffered in difficult times in Wales in the late 19th and early 20th centuries; and he spoke of those who live unremarked, though not unremarkable, lives of duty and service. He continued:
"There are millions like them in our country today. All I would say is this: 'they are no petty people'".—[Official Report, 15/10/98; col. 1165.]
Lord Williams was no petty person. It is with a great sense of corporate love and pride that we can pay tribute to that absolute lack of pettiness; that instinctive and unfussy dignity; that wit and that sense of service which we miss so sorely—although not as sorely, we know, as his family. He was no petty person.
Baroness Jay of Paddington: My Lords, perhaps the House will allow me to pay tribute to my late noble and learned friend in a very personal way as a friend and a colleague.
Gareth Williams and I joined the House together almost exactly 11 years ago this month. We sat together on the furthest Back Bench on the Opposition side of the House, reassuring each other about our

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maiden speeches and daring each other to intervene in Question Time. Already he had started using the alternative Hansard, to which the noble and learned Lord the Lord Chancellor referred, in terms of his sotto voce interventions, to encourage me.
After a while, we both graduated and moved on to the same crowded room in the cross-corridor. Our friendship deepened because I found—perhaps because Gareth was such a clever person—that he always had time for a political discussion, a personal problem or a good political gossip over a large tea. He never seemed to eat until teatime in the afternoon, so it was always a splendid occasion on which to have a chat.
Even then he had begun what became a long-running refrain—one could almost call it a joke— about the appalling financial sacrifice of spending time as a parliamentarian compared to the time-based fees of a top QC. Only three weeks ago I congratulated him on the swift passage of a piece of complicated business in the House. He turned to me with the instant response that,
"For this money, you don't get more than 12 minutes".
In the mid-1990s we both graduated to the Opposition Front Bench and then became Ministers together following the Labour victory in 1997. We of course worked most intensely and collaboratively together as Leader and Deputy Leader of the House from 1998–2001. Throughout all those years, Gareth was an incomparable source of strength. He was an intellectual mentor and a warm and wonderful colleague and companion.
Above all, he made life enjoyable, both for me and for all those around him. He could lighten the mood of any difficult meeting with a telling anecdote or mischievous snippet that he had culled from that morning's tabloids. As many of your Lordships will know, he was always the first to read the Sun newspaper. Put simply, he made us feel better; he made us laugh.
Those who have been the target of his wit and mimicry may know that it was not always benign, but whether he was recounting some apparently bizarre incident across the dinner table or using a humorous line to reinforce a serious point there was always his twinkle and his half smile. I have often said that if we relied on Gareth to choose the best arguments and— more important, perhaps—the best wine, all would be well, and it usually was.
But it was not only at Westminster that we shared interests and friendships. We often exchanged experiences of family weekends in the Cotswolds or the Chilterns—walking, reading or making our amateur attempts at gardening. For me, one of the most affecting moments of the past two weeks since Gareth's death was to be shown by Veena the glorious blossoming flowers that he had proudly grown from seed and the empty pots that he had chosen for the autumn's planting. To be shown that by Veena and to know the strength of their relationship and the wonderful times that they had at Evenlode was indeed moving.
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Veena has asked me if I would personally convey to all your Lordships her great thanks for the kindness and warmth of your sympathies and for the way in which you have all spoken and written to her following Gareth's death.
I would not be true to myself or to him if I ended my personal tribute without mentioning our most important joint political endeavour—the reform of your Lordships' House. It was during the passage of the House of Lords Act 1999 that the whole political world recognised finally my late noble and learned friend's profound social radicalism and deep political commitment. He was a beacon of principle then, as he had been to those who knew him throughout his life.
The most reverend Primate has already quoted from one of my late noble and learned friend's speeches. Perhaps I may also quote briefly from what he said on another occasion. He spoke of his principled objection to the parliamentary role of the hereditary peerage— of his "adamant purpose"—but he also emphasised his understanding of the hurt and disappointment felt by individual Peers. He continued:
"I mentioned that I worked in Wales for a time. When I was there I tried to guess at the hurt, disappointment and bewilderment of miners who were dispossessed of their daily work …Disappointment and enforced change come to us all, and those I know and care for in those mining communities are certainly not strangers to them. That is not to oppose ignobly the disappointment of one class of our fellow citizens against the disappointment of another. It is stating, I hope gently and with understanding, the fact that change must come to every one of us".—[Official Report, 30/3/99; col. 426.]
That was true Gareth Williams, a combination of true principle and true humanity. I will miss him very much, as I am sure we all will.
Lord Rogan: My Lords, when I first entered this House, many showed me much kindness, helped me to understand its workings and made me feel comfortable. Several were especially generous with their time and patience, and none more so than Lord Williams of Mostyn.
Gareth, the man, will be greatly missed by his wife and family circle, to whom we send our deepest sympathy, and Lord Williams, the politician, will be greatly missed by this House and more widely afield. As noble Lords have mentioned, among his other duties he dealt with Northern Ireland affairs in this House. Many of us with an interest in Northern Ireland affairs will fondly remember invitations to his room for those round-table discussions, facilitated by his soft yet steely Welsh voice and a sense of humour that could defuse the most difficult situations.
Lord Williams visited Northern Ireland often, and on those occasions he would host luncheon and dinner parties to which the most diverse guests would be invited. I was last in his company during the recess when he hosted such a dinner party in Government House. Among those present in the gathering were— shall I say—two interesting guests. I sensed that they felt as uncomfortable in my presence as I certainly was in theirs, but by the pudding stage Gareth, with his

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quiet Welsh charm, had succeeded in having us all enjoy a lively and animated discussion. Perhaps a better understanding followed from the dinner.
In Ulster, we are not quick to heap praise on people, but when we do one of the best compliments that we can bestow on anyone is to say, "He was a brave fellow". Gareth, Lord Williams of Mostyn, was a firm friend, a true Welsh gentleman and a brave fellow.
Baroness Strange: My Lords, Lord Williams of Mostyn, like me, loved dogs and flowers. A week before he died he sent me some seeds of his rare white perpetual sweet pea. I never wrote to thank him; I should like to say thank you now.
Lord Eatwell: My Lords, Lord Williams of Mostyn was a member of Queens' College, Cambridge, the college of which I am president and of which, over the past several years, Gareth Williams was an active member, particularly in support of young law students in the college.
We have already heard this afternoon that Gareth Williams combined a steely radicalism with courtesy, logic and wit—and a finely tuned sense of the possible. Those characteristics were already present in his student days. The eminent international lawyer, Sir Derek Bowett, arrived at Queens' as a young lecturer in law in 1960 to find that living in the rooms opposite his was a young Welshman, courteous in manner but somewhat unkempt in appearance, with a preference, Bowett notes,
"for sweaters without the benefit of a shirt underneath".
These were the days when male undergraduates typically wore a tie, a tweed jacket and grey flannels.
To secure a scholarship at the Middle Temple, Gareth—for that unkempt Welshman was he—had first to pass an interview with the formidable Arthur Armitage, the then president of Queens'. Bowett's recommendation that Gareth appear for the interview in suit, tie and polished shoes was greeted with a vigorous diatribe against middle-class values, superficiality and the charade of interviews. Meeting Armitage later in the day, Bowett was therefore astonished to be greeted by the comment,
"I saw that pupil of yours, Gareth Williams. Bright chap, but I didn't recognise him".
Gareth was learning the art of the possible. He had turned up in his suit.
Other noble Lords have commented on Gareth's brilliant legal mind. However, perhaps because of his rebellious nature, he did rather poorly as an undergraduate, being rescued from a third class degree only by a truly brilliant essay on jurisprudence. The consequence was a remarkably unbalanced combination of a rather poor second class degree and the reward of the most prestigious university prize—for jurisprudence— an imbalance that has never been equalled before or since. Gareth then shone in the following post-graduate year with first class honours in the LL B.
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There are important clues in those stories to Gareth's subsequent career. He became, of course, a brilliant criminal barrister and later libel barrister, but he came into his own when he entered your Lordships' House and became a lawyer politician. Here he put to good use the philosophical, social and moral judgments that he displayed in his work on jurisprudence. That is where his true strength lay—a moral commitment allied to a mature understanding of the forces that shape and change the law, politics and society. It is from those strengths that this Government, this House and the country have benefited.
Gareth saw himself as a radical. As the noble Baroness, Lady Williams, reminded us, he was fond of saying that it must be something in the water in Wales. I like to think that his effective application of the radicalism that he imbibed in Wales had something to do with his time beside the waters of the Cam.
Lord Renton: My Lords, although Lord Williams of Mostyn was 33 years younger than me and had been in Parliament 47 years fewer, he always made me feel younger. He was a good listener and respected different opinions, but he was candid in his reply to them. I have known many Leaders of both Houses and Lord Chancellors, but Gareth will always remain in my mind as being a man and parliamentarian of outstanding and lovable qualities.
Lord Carter: My Lords, I should like to say a few words about the skill and the charm of Gareth Williams outside the Chamber. We are all familiar with his skill in the Chamber. I had the privilege of working with him for five years in opposition; indeed, I believe that his first appointment on the Front Bench in opposition was to succeed me as the health spokesman. As Chief Whip, I worked with him as a Minister for four years and Leader for just over a year. He was a marvellous colleague and superb comrade in arms.
I shall also remember Gareth's work outside the Chamber. On a number of occasions when he was a Minister—but more particularly when he was Leader—I would go to him as Chief Whip and say, "Gareth, we have a problem". The opposition parties or Back-Benchers would be called in to discuss the problem and subjected to that particular blend of Welsh wit and charm. The problem would somehow disappear, and the opposition would leave, feeling slightly puzzled about the exact whereabouts of the victory that they had confidently expected, and I would be a much relieved Chief Whip.
Gareth was a true radical. It is indeed a sad irony that we shall have to debate without the benefit of his wit and wisdom the reforms to the relationship between the judiciary and executive, which he had long championed.
What I shall remember about Gareth is his sense of fun. One could not be in any meeting with him for any length of time before laughter would break in. He was a lovely man and I shall miss him very much indeed.

Civil Service
3.18 p.m.
Lord Sheldonasked Her Majesty's Government:
How they propose to reinforce the impartiality of the Civil Service.
Lord Bassam of Brighton: My Lords, the Government's response to the ninth report of the Committee on Standards in Public Life, published on 11th September, sets out a range of proposals that will both uphold the impartiality of the Civil Service and strengthen its capacity to deliver. Those include a commitment to publish a draft Civil Service Bill for consultation.
Lord Sheldon: My Lords, I thank my noble friend for that reply, but will he comment on the Wicks committee's concern about certain special advisers who hold meetings with civil servants to discuss the advice that they intend to put to Ministers? That points to the risk that Ministers will not receive objective, independent and impartial advice from the Civil Service. Does my noble friend have misgivings about Ministers having the selection decision in the recruitment of civil servants which, as the Wicks committee says, can lead to the politicisation of the Civil Service? Will the Civil Service Bill deal with those issues, and when will it be published?
Lord Bassam of Brighton: My Lords, the noble Lord touched on a number of points which I shall try to deal with in turn. In our view it is perfectly proper for special advisers to meet with officials to discuss advice being prepared for Ministers. The amendment to the code of conduct makes that absolutely clear. It states:
"Special advisers must ensure, that while they may comment on advice being prepared for Ministers by officials, they do not suppress or supplant that advice".
We do not think that Wicks is justified in making the comment to which the noble Lord referred as the Government state clearly that they plan to consult the commissioners on whether distinctions over appointments and employment continue to be justified. We are at a stage of consultation, not implementation. It is important to take careful account of what the Civil Service commissioners have to say. The views of your Lordships' House will also be taken into account. As to the publication of a Civil Service Bill, we are committed to listening and there will be a period of consultation. It is expected that that will take some time. The committee in another place will give the matter careful consideration. We await the publication of the draft Bill. It is right that we take time to consult on a measure that is so critical in terms of guaranteeing impartiality and that we take our time in preparing and considering a draft Bill for consultation.
Lord Campbell of Croy: My Lords, does the noble Lord recall the previous debate in this House on the Civil Service initiated by me in which it was pointed
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out that a Civil Service Bill is now needed to define the role and status of special advisers, in number about 80, few of whom would claim to be impartial?
Lord Bassam of Brighton: My Lords, we have obviously taken careful account of what has been said about special advisers. The Wicks report was important in that regard. Of course we shall take those matters into account and I have no doubt that when we consult on the contents of a draft Bill that is one of the issues which will be covered. It is right that we provide consultation so that a wide range of views can be heard.
Lord McNally: My Lords, is it not a fact that successive administrations have lost public confidence in their handling of the Civil Service through the insistence on civil servants towing a party line and demanding that civil servants be "one of us"? As regards the plethora of advice and recommendations from various committees, rather than the Government making decisions would it not be better to ask a Royal Commission to bring together the various pieces of advice so that we can establish a Civil Service for the 21st century that retains the best traditions of impartiality and merit that have been the hallmark of the Civil Service for more than 130 years?
Lord Bassam of Brighton: My Lords, the Government respect the impartiality and integrity of advice given to them by civil servants. It is worth putting on record that we have taken measures to ensure that the advice given either by special advisers or by civil servants is proper and transparent in the way in which it is set out. It is also worth saying that this Government were the first to introduce a model contract covering employment terms and a code of conduct for special advisers. Our record is strong on transparency and clarity in this area. We are doing all that we possibly can to ensure that the integrity and impartiality with which our Civil Service is rightly credited—it has great merit in that regard—are respected in future.
Lord Saatchi: My Lords, did it help the impartiality of the Civil Service when No. 10 Downing Street wrote to the head of the intelligence committee asking him to investigate the phone records of civil servants in the Cabinet Office?
Lord Bassam of Brighton: My Lords, the noble Lord tries to make a clever point which is wide of the Question we are discussing. The Question is about the role of special advisers.
Lord Goodhart: My Lords, speaking as a member of the Wicks committee, is the noble Lord aware that a matter of particular concern was the Government's response to our original report in which the Government said that special advisers should have power to pass on Ministers' instructions to civil servants? Are there not already well established routes for passing on Ministers' instructions through civil

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servants, and if special advisers were given that power, would that not come very close to giving them power to give orders to civil servants?
Lord Bassam of Brighton: My Lords, we do not see the matter that way. It is clear that special advisers have an important role to fulfil in conveying the views of Ministers and in giving a steer. One would expect that to be the case. However, I think that falls far short of what the noble Lord suggested; namely, that that somehow acts as an instruction or an executive instruction. It helps the political process and the process of ensuring that the advice is available in the right place at the right time if special advisers can ensure that civil servants understand the politics of any given situation. Looking back at my experience, it seems to me entirely sensible—civil servants welcomed that fact—for special advisers to help civil servants understand the politics of a tricky and sometimes awkward situation in which they might find themselves.
Lord Glenarthur: My Lords, in order to set this in context, will the noble Lord say how many special advisers there are now compared with when the Government came to power?
Lord Bassam of Brighton: My Lords, I have a figure in my head but I am not exactly sure. I would rather write to the noble Lord to give him a precise answer.

Criminal Justice System: Inspection Arrangements
3.26 p.m.
Lord Dholakiaasked Her Majesty's Government:
Whether they intend to review the role and functions of Her Majesty's inspectors in the criminal justice system.
The Minister of State, Home Office (Baroness Scotland of Asthal): Yes, my Lords, the Government are currently reviewing inspection arrangements in the criminal justice system.
Lord Dholakia: My Lords, successive Home Secretaries have felt uncomfortable about the forthright reports of Her Majesty's Inspector of Prisons. Will the Minister confirm that prison inspectors provide a close scrutiny of prisons which are the least visible and most neglected of our public services? Will the Minister also confirm her department's commitment to a robust, independent prison inspectorate which is directly accountable to the Home Secretary, and that no changes are contemplated which would undermine those principles?
Baroness Scotland of Asthal: My Lords, I am certainly more than happy to confirm that the Government are wholly committed to the maintenance of robust
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inspections. Like the noble Lord, I give support and credit to all those inspectors who have robustly discharged their duty. No review currently contemplated by the Government intends in any way to undermine the effectiveness of inspections.
Lord Elton: My Lords, the post of Chief Inspector of Prisons was created in 1982 in a clause in the Criminal Justice Act of that year which I moved on the advice of the late Lord Whitelaw when he was Home Secretary. It was done at a time when the prison population was considered to be totally unacceptably large and the effects of the system in which prisoners were kept totally counter-productive. Now that the prison population is virtually 30,000 larger than at that time—representing an increase of about 85 per cent— does the noble Baroness agree that to enlarge the responsibility of an inspector to take in the duties of the Probation Service would be wholly mistaken?
Baroness Scotland of Asthal: My Lords, I make it absolutely plain that the Government have made no final decision about how, if at all, any changes should be made. The noble Lord should recognise that through all the efforts that we are making we are trying to create a criminal justice system which is fit for purpose. The changes that we are making through the national Criminal Justice Bill and through local criminal justice areas in trying to bring people together will, of course, place additional burdens on those who inspect a system which is becoming more integrated. I say to the noble Lord, Lord Elton, that we have made no decision as to how best to fashion a system. However, I absolutely agree with the comments made by the noble Lord and by the noble Lord, Lord Dholakia, that inspection is critical. It must be robust, of high quality and independent if it is to serve any real purpose.
Lord Dubs: My Lords, does my noble friend agree that to have such an independent, robust and forthright Chief Inspector of Prisons as Anne Owers, and indeed some of her predecessors, has given many of us confidence in a system that in other respects has given us much cause for anxiety? Although I understand that my noble friend has made some very positive comments, she has also talked about possible changes. Many of us hope that those changes will not diminish the robust independence and strength of the work of Anne Owers and her predecessors.
Baroness Scotland of Asthal: My Lords, I should like to reassure my noble friend that any changes which may be made in the future will be made to improve the inspectorate and not to diminish its effectiveness.
The Lord Bishop of Worcester: My Lords, I am grateful, as I am sure many of us are, for the Minister's supportive comments about inspection. Does she agree that another aspect of the context which makes inspection doubly important is the very high profile that crime has in the popular mind, and therefore the tendency to a rhetoric of toughness? The word

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"robust" is more frequently used about the regimes that people should have rather than about the inspection regime. Does she agree that it is particularly important that we are vigilant at such a time as this and that inspection fulfils the function of keeping our eyes on those whom we do not usually see and keeping our memories open to those whom we are tempted to forget?
Baroness Scotland of Asthal: My Lords, I absolutely agree with the right reverend Prelate that it is of real importance for us to have the benefit of inspection so that we can verify whether that which we aspire to achieve is actually being achieved.
Lord Ackner: My Lords, in view of the compliments that have been rightly bestowed on previous inspectors, what exactly has motivated the present inquiry?
Baroness Scotland of Asthal: My Lords, there has been a review. During that review, it was indicated that there was a level of duplication and a need to refocus the inspection process on the new challenges that are facing the system. We needed to have a holistic approach. Therefore, we needed a review to look again at how to deliver it.
Lord Carlisle of Bucklow: My Lords, the noble Baroness has been very careful in her words. She has referred several times to her confidence in "robust" inspection. Does that mean that there will be a continuation of a robust and independent chief inspector who is reportable directly to the Home Secretary?
Baroness Scotland of Asthal: My Lords, I cannot specify what form the inspection will take, although a number of models are currently being posited. One model is that there should be no change whatever. Another model is that instead of five inspectors, there should be six. A third model is that the number of inspectors should be reduced from five to three with an overarching commission or commissioner. There are also other models. We have come to no conclusion on which model would be best. We are openly considering them all, because we are absolutely committed to ensuring that the inspection process is the best that we can make it.
Lord Mayhew of Twysden: My Lords, does not the recently published book by Sir David Ramsbotham suggest the need for one change; namely, that the reports of the inspectorate should be published at once and not after such delay as Ministers and their officials may think is needed to dissipate the embarrassment of the criticisms that such reports contain?
Baroness Scotland of Asthal: My Lords, the noble and learned Lord will know from his past position in the previous government that that is not the reason why the Government take time to consider inspectors' reports. They are serious documents which need serious consideration. The Government have
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continued the previous tradition of doing just that— giving serious consideration. I do not think that that criticism can validly be laid at our door.

Interpal: Charitable Status
3.34 p.m.
Lord Chalfontasked Her Majesty's Government:
Whether the activities of the Palestine Relief and Development Fund—Interpal—are consistent with its charitable status.
Baroness Scotland of Asthal: My Lords, this is an operational matter for the Charity Commission as the regulator of charities in England and Wales. However, I understand that the commission has recently concluded a formal inquiry into Interpal which established that there was no evidence to substantiate allegations that it has links to Hamas's political and militant activities. The commission removed restrictions on Interpal's accounts and closed its inquiry on 24th September and published a report on its inquiry which is publicly available.
Lord Chalfont: My Lords, I thank the noble Baroness for that reply. Is it not a shame that the legitimate activities of this organisation should have been disrupted by what appear to have been false allegations? On the other hand, will she confirm that the European Union has now prescribed or blacklisted both the political wing of Hamas and its military wing? In the light of that, can we be assured that no charitable funds from this country will go to the Hamas organisation?
Baroness Scotland of Asthal: My Lords, I can confirm that that has occurred and that the EU has frozen the assets of Hamas as the noble Lord describes. I should also say that it is a matter for the Charity Commissioners, who behave perfectly properly by investigating any serious allegations, as they have in this case, and putting those issues to rest.
Lord Wright of Richmond: My Lords, does the Minister agree that we should not let allegations against Palestinian charities prejudice the work of other charities such as Medical Aid for Palestinians which are doing quite outstanding work to relieve the suffering and deprivation of the Palestinians in the occupied territories?
Baroness Scotland of Asthal: My Lords, that is absolutely right. I understand that my noble friend Lady Symons discussed those very issues last week and that this matter was being pursued. I should also say that the matter is properly within the province of the Charity Commissioners, who have demonstrated on each occasion that they are able to act with total propriety.
Viscount Bridgeman: My Lords, will the Minister join me in paying tribute to the Charity Commission, as she has just done, for the valuable regulatory work

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that it does, particularly in cases such as this where there are very sensitive international and political implications?
Baroness Scotland of Asthal: My Lords, I have great pleasure in doing so. The noble Lord is absolutely right.
Lord Avebury: My Lords, bearing in mind that this is the third occasion, I think, on which the Charity Commission has investigated false allegations against Interpal, is the Minister satisfied that the Charity Commission has the necessary resources to conduct investigations into such allegations whether they are substantiated or not? If she is not so satisfied, what steps will the Government take to improve the resources available for this purpose?
Baroness Scotland of Asthal: My Lords, it is right to say that the Charity Commissioners have been able to discharge their duty speedily and well on each occasion without any apparent difficulty. We would expect that they will continue so to do.
Lord Clarke of Hampstead: My Lords, referring to my noble friend's earlier answers, I think that she would recognise that, as recently as two weeks ago, the IMF reported that £560 million had gone from President Arafat into various other investments such as terrorism and casinos. Does she agree that, at a time when the Palestinian people are suffering, that is a wrong way of using that money? What are the Government doing to ensure that the Palestinian leadership is correcting such financial mismanagement? Can we be assured that British aid is being invested in valuable projects? Furthermore, what are the Government doing to push the Palestinian leadership to challenge Hamas and to dismantle the infrastructure that supports them?
Baroness Scotland of Asthal: My Lords, as tempted as I am to answer that question—and my noble friend will know how tempted I am—I think that it is very wide of the Question on the Order Paper. However, I shall ask my colleagues to write to him with an answer.

Podiatric Medical Education in London
3.39 p.m.
Lord Clement-Jonesasked Her Majesty's Government:
Whether they will establish an independent inquiry into the circumstances of the closure and relocation of the London Foot Hospital of Podiatric Medicine, in particular the role played by the North East London Workforce Development Confederation and the Camden Primary Care Trust.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, the decision to move the contract for podiatric education
20
from the London Foot Hospital and University College London was made for sound educational reasons. The changes will lead to educational improvement, more and better prepared students and better podiatry services for the people of London. The Government believe that there is nothing to be gained from an independent inquiry.
Lord Clement-Jones: My Lords, I thank the Minister for that reply, but what level of incompetence is required before an inquiry is granted? The new course costs more per head than that bid for by University College, London. It is unaccredited, so students cannot practise after qualification. Nearly all the staff of the old hospital are leaving. The number of students applying is massively down. On top of that, Camden PCT is making a profit of £2 million to £3 million out of the property, which otherwise would have been available for the London Foot Hospital. Will the Minister reconsider?
Lord Warner: My Lords, the answer is, "No". The position that the noble Lord describes is considerably different from the information available to me. The previous course at UCL and the London Foot Hospital had unacceptably high student attrition rates—40 per cent from the 1999 student cohort. The University of East London, which will run the training in future, is using a proven curriculum that has been delivered at the University of Brighton. Increased student numbers are confidently expected, and we expect a larger output of trained podiatrists.
Baroness Noakes: My Lords, I am sure that the Minister is concerned about the impact of the events referred to by the noble Lord, Lord Clement-Jones, on the provision of chiropody and podiatry services. He will be aware that the postcode lottery is alive and well so far as concerns those services. Does he have anything to offer by way of hope to the hundreds of thousands of people who cannot get that treatment at the moment?
Lord Warner: My Lords, that is a little wide of the Question, but I can say in relation to Camden, quoting the chief executive of Camden Primary Care Trust:
"At no time will there be a loss or decrease to podiatry services for the population of Camden".
Camden has written to all the other strategic health authorities and PCTs to ensure that non-Camden residents have access to services.
Baroness Jay of Paddington: My Lords, I must declare an interest in the issue, having been a grateful patient of the London Foot Hospital in its previous incarnation, something that has enabled me to walk, if not to wear fashionable shoes. May I press my noble friend a little on a point raised by the noble Lord, Lord Clement-Jones, about the break-up of the teaching team at the London Foot Hospital? As I understand it, several members of the team have already left and others have refused to accept new contracts. That is bound to undermine the quality of

21
the service offered and, again as I understand it, follows a rather unhappy period of lack of consultation between UCL and the staff concerned.
Lord Warner: My Lords, many of the staff have transferred to the University of East London. Six members of staff at UCL have decided not to accept the terms under the arrangements on transfer of undertakings, and have chosen to go their own way. I remind the noble Baroness and the noble Baroness, Lady Noakes, that expenditure on podiatry education has increased from £1.3 million in 1998–99 to a forecast £9.4 million in 2003, a sevenfold increase in expenditure.
Lord Quirk: My Lords, I also declare some interest, in my case as a fellow of UCL. Has not the sorry tale outlined in the supplementary question resulted in a great deal of student upset and disillusionment; the break-up of a highly talented team of clinical teachers, as was said by the noble Baroness, Lady Jay; and a serious demeaning of the place of podiatry in the student body and in higher education? Is not the root cause of this whole problem the unwillingness of our health authorities to locate podiatry any longer in institutions of the Russell group calibre?
Lord Warner: My Lords, there is a complex background to the problem. What shines out is that the commissioners for services for education have taken a grip on a situation in which large numbers of students failed to complete their courses, and have taken robust action to improve the education provision without any diminution of services.

Health and Social Care (Community Health and Standards) Bill
3.44 p.m.
Lord Warner: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That it be an instruction to the Committee of the Whole House to which the Health and Social Care (Community Health and Standards) Bill has been committed that they consider the Bill in the following order:

Clause 1,

Schedule 1,

Clause 2,

Schedule 2,

Clauses 3 to 25,

Schedule 3,

Clauses 26 to 34,

Schedule 4,

Clauses 35 to 37,

Schedule 5,

Clauses 38 to 40,

Schedule 6,

Clause 41,

Schedule 7,

Clause 42,

Schedule 8,

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Clauses 43 to 143,

Schedule 9,

Clauses 144 to 146,

Schedule 10,

Clauses 147 to 180,

Schedule 11,

Clauses 181 to 183,

Schedule 12,

Clauses 184 to 186,

Schedule 13,

Clauses 187 to 192,

Schedule 14,

Clauses 193 to 198.— (Lord Warner.)

On Question, Motion agreed to.

Dealing in Cultural Objects (Offences) Bill
Lord Redesdale: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Lord Redesdale.)
On Question, Motion agreed to.

Legal Deposit Libraries Bill
Lord Tope: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Lord Tope.)
On Question, Motion agreed to.

Criminal Justice Bill
Baroness Scotland of Asthal: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Lord Kingsland moved Amendment No. 160BAA:
Before Clause 135, insert the following new clause—
"JUDICIAL DISCRETION IN SENTENCING
Judges shall have discretion in the determination of all sentences save for the offence of murder."
The noble Lord said: This is a probing amendment on which the Opposition do not intend to divide the Committee. Its purpose is to give the Government the opportunity to respond to the hesitations expressed by noble Lords about Part 12 of the Bill on Second Reading.
The Opposition are particularly concerned about two of its proposals. The first is that which determines the minimum sentence after conviction in a criminal trial; and the second is the modus operandi of the Sentencing Guidelines Council. Our concerns have been aggravated by the fact that, in another place, important amendments to those matters were tabled on Report, so late that it did not have the opportunity to debate them properly.
Differences have emerged between the judiciary and the executive about the degree of statutory control appropriate to constrain the sentencing powers of a trial judge. Where should the line be drawn between obligation and discretion? In what circumstances should society require a minimum sentence irrespective of the facts of a particular case?
Under our constitution, both the executive and the judiciary are subject to the will of Parliament. However, another place, at least for the time being, is the creature of the executive. In those circumstances, your Lordships' House has a particular and special responsibility to ensure that an appropriate balance is maintained between Ministers and judges.
Imprisonment after a criminal conviction is the biggest constraint on liberty under our jurisdiction. We must ensure that, in all the circumstances of the case, the sentence is just. Do these proposals meet that test? I beg to move.
Lord Renton: Although my noble friend said that this is a probing amendment, it is an important one. For a number of years, there has been a tendency for Parliament, on the advice mainly of civil servants, to have a few offences punishable by fixed sentence. Some of those are compulsory, without the alternative of probation or any other non-custodial or financial punishment. Judges and magistrates acquire their own wisdom and judgment on whether the sentence for a particular offence should be flexible or fixed.
Circumstances continually change. A particular offence may have been committed regularly over a short time but it is wrong to assume that that will continue and to fix a sentence. I agree with the terms of the proposed new clause and believe that judges should have discretion in the determination of all sentences, save for the serious matter of murder. Therefore, while supporting what my noble friend said, I believe that we should go a stage further.
Lord Dholakia: I am delighted that we have reached the most important aspect of the Bill; that is, the general provision on sentencing. We are in general agreement about the new clause proposed in Amendment No. 160BAA by the noble Lord, Lord Kingsland, relating to the judges' discretion in sentencing. We
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supported the Halliday review which set out the constructive and rehabilitative approach to sentencing. Unfortunately, much of the impact has been lost by the Home Secretary's insertion of late amendments into the Bill. The amendments are designed to set a minimum sentence for murderers, fettering the discretion not only of the judiciary but of the sentencing council, thus questioning its independence even before it has been set up. The paramount principle is that each case before the court is unique—it has its own characteristics—and the person who can weigh all the evidence is the judge. Therefore, sentencing is for the discretion of the judges.
Where do we stand on sentencing? One of the aspects often advocated is that the primary aim of any sentencing policy must be to promote the rehabilitation of offenders, recognising the lower success rate of custody in preventing re-offending; developing custody-plus sentences as an alternative to conventional imprisonment; promoting the use of restorative justice which gives the victim greater involvement; and supporting the vital role of the probation service in reducing re-offending.
When we look at the proposals in the Bill, the Government often try to make us believe that the objective of reforms to the criminal justice system should be to increase the number of convictions. Change a process here; reduce the rights of the defendant there—many more people who go to court will be convicted and everyone will be happy. But the current failure is not that once people get into court they are not convicted. Three out of four crimes across the country—seven out of eight in London—never result in anyone being convicted.
I turn to the main argument behind the amendment; independence of the judges. I believe that that is the final safeguard. Ministers' attitudes, policies and proposals are in danger of undermining the independence of our courts. Parliament decides maximum sentences but it must be for independent judges, not party-political Ministers, to decide what particular punishment fits what particular crime.
The independence of judges is not the enemy of the political process. The independence of judges is the defence of people in this country who have no written constitution to defend them against the potential tyranny of the authorities in the abuse of power of the state. If the criminal justice process is to be replaced and valued to the full, it is imperative that it is rooted in the community. This is why independence of the judiciary must be at the heart of any legislation on sentencing.
Lord Carlisle of Bucklow: My noble friend Lord Kingsland, in opening the debate, said that the purpose of the amendment is to give an opportunity to look generally at the philosophy or the policy behind sentencing and who should have the say in sentencing under the Bill. Having attempted to read Part 12, I believe that it is verbose, complex, in many parts self-contradictory and platitudinous. I cannot believe that it is necessary to have anywhere near the number of clauses or words relating to setting out sentencing guidelines that we have in the Bill. I believe that it could be simpler.

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The noble Lord, Lord Kingsland, said that we are concerned about where the balance of statutory control of sentencing lies between the judiciary and the legislature. I have no doubt that in this Bill that balance has been moved substantially to the disadvantage of the judiciary. Therefore, it is vital that we have an opening clause, such as that in the amendment, under which the right of the court and the judge to try and sentence the offender convicted before him with full discretion is maintained.
We have recently heard much talk about the independence of the judiciary. It has been in terms of the independence of the judiciary as against the appointment of the judiciary. We have heard the Government rightly claiming their belief in the importance of the independence of the judiciary. But the independence of the judiciary, if it is to mean anything, must mean not only independence of appointment but independence on sentencing within the framework set down by Parliament. It is not the role of the legislature to set the sentence. The role of the legislature and Parliament is to set the context in which the sentence is passed and to set the maximum penalty to show the gravity attached to the offence.
The sentence passed in any case must ultimately be the individual decision of the judge. He is the only person who has had the opportunity of hearing the whole of the evidence, of seeing the defendant and of hearing what is said on his behalf. He is the only person who is in a qualified and trained position to do justice in sentencing.
I admit that I am totally opposed to mandatory minimum sentences. I opposed them from the Benches opposite when Mr Michael Howard attempted to introduce them in his Bill in, I believe, 1995–96, and many of the proposals were defeated in this House. I believe that mandatory sentences lead inevitably to injustice because they cannot take account of all the various aspects and different features that occur in every case.
The Bill asks in general terms: what are the aims of sentencing? Of course it is right that imprisonment should be a matter only of last resort and that, if imprisonment is imposed, the sentence should be as short as possible. But, at the same time, the Bill is contradictory because it requires that courts must take into account the deterrent effect of a sentence. That may mean that the sentence which a judge was minded to give to meet the facts of an individual case may not be sufficient to meet the deterrent effects to the public as a whole.
I hope that when we debate this matter on Report, we shall consider in detail the Government's answer today and listen with care to what the Minister says. However, I hope that we shall never reach the situation where the Home Office tries to impose on judges the sentence that should be given. The detail in this part of the Bill effectively goes as close as it can to a system of mandatory sentencing without actually introducing such a system.
4 p.m.
Lord Renton: Before my noble friend sits down, I wonder whether he will allow me to add to his very valuable contribution by pointing out that sometimes an offence is prevalent in one part of the country but scarcely ever committed in another. The judge sitting in the part of the country where the offence has become prevalent should have not only a power but a duty to impose a stiffer sentence than might be imposed elsewhere.
Lord Carlisle of Bucklow: Clearly the judge who tries a case has the opportunity to take into account all the features and, frankly, I do not believe that he needs to be told, as Clause 136 seeks to do, what is meant by the seriousness of the offence. He will decide the seriousness of the offence inevitably using, as I said, many of the platitudinous matters referred to in that clause. However, he is the person who decides and he takes into account, as magistrates do, other local, as well as national, matters. They are bound to do so. I say again that I believe that, the wider the discretion a judge has, the greater justice prevails.
Lord Monson: I know of at least some second and third-world countries which fetter judicial discretionary sentencing. However, admittedly as a complete layman, I know of no western democracies that do so, with the obvious exception of minimum sentences for murder and minimum periods of disqualification for certain motoring offences. If I am mistaken and if the imposition of minimum sentences is commonplace in many first-world countries, I should be grateful if the Minister would give some examples when she comes to reply.
Lord Alexander of Weedon: I agree with everything that has been said by, in particular, my noble friend Lord Carlisle of Bucklow. It seems to me that this matter warrants debate because it is a constitutional change. As has just been pointed out, apart from the mandatory sentence for murder, which itself has given rise to some considerable cause for anxiety and suggestions for change, effectively the principle has long been clear in this country that Parliament, when it legislates, sets the maximum sentence. Up to that maximum the courts, with the priceless advantage of having heard the facts of the case, decide what the correct sentence should be.
Therefore, if we are trying to consider this issue as a matter of principle, I believe we are hindered by the fact that it has been introduced in a way that seems to be increasingly essential for the introduction of constitutional change in this country. It has been introduced with speed at a late stage in the consideration of a Bill and it has not been the subject of prior consultation.
If those are now the characteristics of the approach to constitutional change taken in this country, this debate gives an opportunity to invite the Minister, who is keenly conscious of the importance of law within our society, to slow down and open up the debate. She and I, and I believe almost all the previous speakers, share the values

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that have been so epitomised in the tributes this afternoon—the values of passionate and independent care about the law. And much more unites those of us on these Benches, the Minister and those who sit with her who have those values than divides us on that issue of principle.
Therefore, I move on to ask whether this is—I put this as gently as I can—another illustration of the current Home Secretary not feeling sufficient confidence in the judiciary. Whether intentionally or not over the past year, he has certainly created the public impression that his confidence in at least some judges is less than total and that he is reluctant to accept without public challenge some of the decisions that they reach.
If there is a belief that judges do not do their job properly—that they are too soft—I consider that that belief should be out in the open. I am not clear what other basis there can be for this proposed legislation. It seems to me that underlying it is the broad approach which simply says, "We do not trust the judges to sentence sufficiently stiffly". This comes oddly in a society whose gaol population stands at a record level and where we are told that new massive prisons must be built. It is difficult to see at the same time both that judges are being too soft and yet that the prison population is rising. I believe that Home Office predictions are that it will rise very much further over the next few years.
The Minister knows perfectly well from her experience, as I do, the infinite variety of cases which involve the same crime. Some apparently minor crimes can, on examination, appear to be rather more serious, and some in the other category can, when examined carefully, have their seriousness diminished. When the facts are taken into account in litigation, they can provide another compelling reason for a sentence which, in the view of some members of the public, may be on the soft side but which is right when the facts are examined closely.
I would not be surprised if the Minister, like me, has on many occasions valued the fact that sentences are passed by judges who are experienced and skilful and who try to maintain a balance between the proper need to reflect society's concern about an offence and the proper way of treating an individual. I suspect that, like me, she will have been very glad that that exercise has been carried out, after close examination of the facts, by someone of great skill and experience.
I anticipate that in response she may say that that will be perfectly possible in the future. The judge will be able to do that and give reasons why he or she goes below the minimum. In turn, I would respond that in that case why do we need a minimum? Perhaps the Home Secretary believes that the enactment of a minimum sentence will make it more difficult for a judge to pass the right sentence if he believes that it should be below what is considered in the minimum sentencing standards to be the appropriate sentence. At one and the same time it cannot be possible to say that we trust the judges and that we are not inhibiting them in any way, but none the less we need to impose
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by statute these legislative principles. I do not pretend to know all the answers as to how that evolved, but I suggest that in a proper civilised society such as ours the matter should be dealt with by consultation first rather than by a rush into legislation.
The Lord Bishop of Worcester: Perhaps I may add to some of the points that have already been made on a matter that appears to me to go to the very heart of the Bill. This is a reminder to myself, which I am sure I do not need to give to other noble Lords, about the reason why it is considered necessary for Parliament to prescribe maximum sentences but not minimum ones. The reason is that the people's representatives have the task of protecting people who are vulnerable from the excesses of other branches of government. As a result of the interplay of the protections that are built into our constitution, we achieve something approaching justice.
It is not necessary to make speeches suggesting the infallibility of judges, for which I do not believe there is any more evidence than there is for the infallibility of bishops, but it is important to say that they have their task and we in Parliament have ours. I would be greatly concerned if we were to usurp the judicial function by not being in the business of protecting the vulnerable.
That brings me to the greatest difficulty in this matter. I expect the Minister to be very reassuring in her responses because I am sure that she believes that we have nothing to fear here. But what has so far been said in the debate illustrates why there are grounds for fear. There is a fear that different messages are being given in different places. In this Committee we shall give a reassuring message about the continued discretion of the judiciary, while out there on the hustings, in the newspaper columns, in the interviews on the "Today" programme understandably politicians of all parties will want to deliver a different message which is to assure the public that something is being done.
It is important that something is done and that the vulnerable in our society who become victims of crime should be protected, but not at the cost of the protection of people who, once they are in the dock, are in an extremely vulnerable position. In support of what is before us we need reassurance not just that the Minister who speaks in this Committee understands the sensitivities of the Committee on these matters, but that politicians generally are sensitive to the fact that they are easily trapped in an auction of toughness that leads to short-circuiting a whole host of protections, the loss of which we may have cause to regret deeply later.
4.15 p.m.
Lord Borrie: Perhaps I may follow some of the points raised by the reverend Prelate. The vulnerable in society include those accused of crimes and it is the job of the legislature to ensure that they are reasonably protected. In the context of crime, especially in this day and age, we must be concerned with the vulnerable people who are members of the public in general and

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the victims or alleged victims as well. Surely it is a matter—this is a point raised by the noble Lord, Lord Carlisle of Bucklow—on which we should not be so extreme as to say that judges must have complete discretion. It is admitted by those who have spoken that it is perfectly proper for Parliament to lay down maximum sentences. I believe that the noble Lord, Lord Carlisle of Bucklow, indicated that it is perfectly proper for Parliament to lay down context—I believe he used that word—and principle within which judges' discretion should be exercised.
As I see the scheme in this part of the Bill, there are three levels. First, there is the level of the legislature, which lays down certain principles and in certain cases indicates a minimum sentence below which normally judges should not go when dealing with particular kinds of offences that have particular qualities.
Secondly, there is the Sentencing Guidelines Council. Perhaps my only qualification for speaking in this debate is that I was once a member of the Parole Board. I remember with pleasure the fact that the Parole Board, concerning itself with sentences and the sentences that people should ultimately serve, consisted not simply of judges, but of strange people like myself and policemen, probation officers, criminologists and others. There would be a mixed panel of five or six people of whom one or two were judges, all bringing their various experiences to bear in relation to the sentence that should be served by the person whose bid for parole was up for consideration.
I mention that because we have a somewhat similar situation here. The Sentencing Guidelines Council is to have—so long as we oppose certain amendments that I notice are before us—a mixed membership of the kind that I have described. I mention that because already in our system we have certain features that suggest that not only judges should determine the final sentence that is served.
The third aspect of the scheme, apart from the legislature and the Sentencing Guidelines Council, is the judge. Surely, no one suggests in the Bill or elsewhere that the ultimate discretion will not lie with the judge in a particular case. He will bear in mind all the facts, the law and the mitigating circumstances that the defence counsel has put to him. All those matters will be considered and he should give reasons, which judges are well capable of giving, including for going above the minimum sentence, which the legislature may lay down in certain circumstances, as is being suggested.
Therefore, I do not see much difference. Perhaps I may be allowed to personalise my point—the noble Lord, Lord Carlisle of Bucklow, is a very old friend of mine. He talked about judicial discretion within a context. I do not believe that there is much difference between the two of us. The point is where to draw the line. The legislature, the Sentencing Guidelines Council and the judge in their various ways have their various functions which seem to be retained within this part of the Bill and there is nothing between us on that.
Lord Ackner: In considering the terms of this Bill, with particular regard to the independence of the
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judiciary, it is terribly important to bear in mind the background. One of the undoubted consequences of the recent constitutional upheaval is that the traditional office of the Lord Chancellor will be abolished. He and previous Lord Chancellors have agreed that the chief or essential function of the Lord Chancellor is to preserve or defend the judiciary. There is no present offer by the current Lord Chancellor that this obligation—note the words "chief or essential"— will be introduced into statutory form to bind him in those terms as Secretary of State for Constitutional Affairs.
There is a dangerous illusion that everyone supports judicial independence; but do they? I recently pointed out that that very question was answered by Lord Hailsham in a lecture he gave in 1989. I shall shorten the quotation as follows:
"Certainly not the Opposition—whatever Party happens to be on the Speaker's left. Certainly not Party Conferences of any hue. And least of all I assure you, individual members of the Cabinet whose Departmental interests from time to time basically conflict, not only with the view of the judiciary, where they are entitled to differentiate, but in the provision of the means necessary to enable the Courts to discharge their functions!"
The judiciary is in no way hostile or resistant to input from Parliament or elsewhere in relation to the sentencing process. In the Crime and Disorder Act 1998, the Sentencing Advisory Panel was set up. Its function is to provide advice to the Court of Appeal, which the Court of Appeal is required to consider. Before the Court of Appeal issues guidelines, it must consult the panel. The panel consists of a chairman who is a professor and a variety of people, some sentencers and some, like probation officers, of general balance and intellect.
The panel's recent annual report shows that new guideline judgments covering a wide range of offences— rape, child pornography, possession of offensive weapons, domestic burglary and causing death by dangerous driving—have been promulgated with the support of the panel. In addition, the Lord Chief Justice used the panel's advice on minimum terms in murder cases as the basis for his Practice Statement as to Life Sentences in May 2002. That brings to 10 the total number of proposals from the panel that the Court of Appeal has now adopted.

The provisions of the Bill propose that the Court of Appeal should no longer issue sentencing guidelines. That action is to be carried out by a new statutory body called the Sentencing Guidelines Council. As originally drafted, the council consisted solely of sentencers, including a magistrate, and was presided over by the Lord Chief Justice. The Lord Chief Justice was quite content with the proposal. It involved no change to the constitutional convention that Parliament is responsible for establishing the sentencing framework—for example, the maximum sentences permissible—and it is for the judiciary to decide in its unfettered discretion how to arrive at individual sentences which appear to it to be just.
The current proposals represent an attempt by the executive to exercise inappropriate control over the sentencing process by diluting the sentencing council

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with non-sentencers, such as policemen and civil servants. This is despite the fact that judges have followed the Court of Appeal guidelines reasonably consistently and closely over the past few decades, and, in any event, if they impose sentences which are unjustifiably lenient, the Attorney-General had the right to appeal. Prior to this proposed legislation there was no mechanism for the court to consult Parliament before issuing a guidelines judgment and to have done so would not be consistent with our constitutional traditions. What is now proposed, despite no past action by the Attorney-General, indicates a lack of confidence in the judiciary and/or in the Attorney-General in failing to exercise his discretion, to which I have referred above.
I touch but briefly—I want to say a great deal more about it later—on Schedule 17. It purports to lay down "minimum starting points" in relation to murder cases, ranging from whole life, 30 years and down to 15 years, according to the category of murder subjectively chosen by the Home Secretary without any public consultation or advice from the advisory panel. Schedule 17 represent approximately a 50 per cent increase over the recently promulgated murder guidelines referred to above. Those guidelines had been previously submitted to the Home Secretary, the Lord Chancellor and the Attorney-General, who suggested only minimal modifications which were adopted. It seems to have been entirely overlooked that this very significant increase in the length of sentences will have a serious "knock-on" effect on other sentences for serious crimes, all of which will have to be "jacked up" for the pattern of sentencing on serious offences to be maintained. This distorts the task of the Sentencing Guidelines Council before it is established. Within a short period of time, because of the knock-on effect, prisons will be unavoidably beyond their capacity and incapable of coping.
The sentencing panel's functions will also become distorted since it will have to add a 50 per cent, or thereabouts, uplift to any new proposals it might make. Before leaving the sentencing panel, it is interesting to note from its annual report at page 9 that it has already made clear to Ministers that the panel has reservations about the current proposals to dilute the Sentencing Guidelines Council. While welcoming the extension of its remit to cover general sentencing proposals as well as offence-specific guidelines and agreeing that there is a need for non-judicial input into sentencing guidelines in view of the broader social and ethical issues involved, the panel points out that it already provides that input. Of its 12 members, only four are sentencers and it sees no need to duplicate the range of experience and expertise of the panel, which seeks comments and advice before it promulgates its proposals to the Court of Appeal and, in future, the Sentencing Guidelines Council.
The panel further points out that its main concern is that, if the new system is to work effectively, the council will need to command the trust and respect of the judiciary at all levels. With that in mind, it is
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anxious to avoid overlap or duplication between the constitution and functions of the panel and the council.
I respectfully submit that there is a great deal for the Government to answer to, but we shall come to more detail as we proceed to consider the important amendments that have been tabled.
4.30 p.m.
Lord Mayhew of Twysden: I intervene briefly to express my welcome for the amendment but my slight regret that it contains the saving words at the end,
"save for the offence of murder".
When she replies, I hope that the noble Baroness will explain the Government's thinking about the offence of murder in the context of sentencing. I fear that that has been a bee in my bonnet for a long time, and I acknowledge that there has been some mitigation in recent legislation of the previous law that a Minister— a politician—determined how long someone should stay in prison because he had been convicted of murder.
We all know—it has been acknowledged today in the Chamber—that murder is infinitely variable in its culpability and wickedness. In the past, we recognised that in practice by allowing someone—until recently it has been a politician—to decide how long someone stayed in prison. Now, fixed lines are established in the Bill. I repeat the question posed by my noble friend Lord Alexander of Weedon: is not the real motive or engine behind the Bill's provisions lack of trust in the judges? If it is not that, I hope that the noble Baroness will tell us, when she replies, what it is.
As the noble and learned Lord, Lord Ackner, reminded us, we have now had for some years the jurisdiction of the Attorney-General to go to the Court of Appeal to say, "Look, this was unduly lenient". I hope and believe that that power has been exercised and has not been allowed to atrophy. As it happens, I introduced it when I was Attorney-General and used it. It has been used by every Attorney-General since, not least by the late Lord Williams of Mostyn, to whom we paid tribute this afternoon. So that discretion exists.
I therefore hope that the noble Baroness will tell us why that is thought insufficient and why the Government have become wedded to the notion of minimum sentences, the objection to which was graphically expressed by the right reverend Prelate 10 minutes ago, when he said, "Well, it is all right to fix a maximum, but minimums should be left to the professional, independent judiciary". I hope that the Minister will find time to deal with those points when she replies.
Lord Ackner: My observations were in no way meant to be an adoption of the present position with regard to the death penalty. The noble and learned

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Lord will see that I have tabled an amendment to deal with that: Amendment No. 209, which would be inserted before Clause 254.
Lord Mayhew of Twysden: I gather that that is correct. This Chamber has expressed its view about the mandatory sentence for murder more than once and has been ignored by successive governments.
Baroness Stern: I rise to support the amendment, to speak briefly and mainly to ask the Minister for help to clear up what is for me a large area of confusion. I should be grateful if she could explain exactly what the Government want to achieve by the provisions in this chapter. During our discussion in Committee, she has often said—may I say that it has been a pleasure and privilege to listen to her explanations; that has been a splendid learning experience for me for which I am grateful to her—that our aim is rebalancing and modernising. Although we do not yet have the record, I think that this afternoon she said, "We are looking for a system that is fit for purpose". In her reply, can she explain exactly what that means?
The Bill does not start from a blank sheet; in our sentencing policies we are starting from what many commentators would describe as a crisis. We already have an imprisoning rate of 140 per 100,000. To put that in context, the European Union average is 99 and that in many European countries is about 60,70 or 80. This morning, there was an article in the press about money for two new prisons to hold 1,500 people each. We read about a probation service in crisis with a workload that it cannot handle and targets that it cannot meet.
It is difficult to see how the provisions address that crisis. They are not the sort of legislative reform that has taken place in Canada, where sentencing reform embedded in law a principle of using prison as a last resort, with workable machinery to ensure that that was implemented. That has led to a substantial reduction in the use of prison in Canada. I presume or hope that the Bill is not leading us towards the situation in the United States, where judges' discretion has been almost completely removed. In answer to the question posed by the noble Lord, Lord Monson, that is a first-world country with many mandatory minimum sentences and many active groups campaigning against them because of the enormous injustice that they cause to those on whom they are imposed.
So where do the measures sit? What is the vision for sentencing policy in England and Wales as a result? What in the Minister's eyes would be a desirable outcome in effect on the prison population, the workload of the probation service, the number of people who go through a criminal justice system that may well damage their prospects of social integration and on public safety and crime levels generally? I know that that is a big question, but if we had some idea of
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what would be the desirable outcome and what is the vision for sentencing, that would help us to debate the rest of the Bill.
Lord Goodhart: This is the first occasion or which I have taken part in the debate on this very important Bill. I am glad that I have been able to come in at this stage because, in a Bill that contains many dangerous provisions. Part 12 is the most dangerous of all. I am therefore happy to support the amendment moved by the noble Lord, Lord Kingsland. In line with the noble and learned Lord, Lord Mayhew of Twysden, I would go further: I would omit the final words of the provision about its inapplicability to sentences for murder. It is plain that judges should at least have a right to retain the power to recommend the minimum term to be served.
There is a case—I do not say that we are yet in a position to adopt it—for replacing the crimes of murder and manslaughter with the single crime of criminal homicide. I hope that the Law Commission will be invited to look at the issue and to make recommendations. That change would remove a number of problems; for instance, it would no longer be necessary to impose what is at least nominally a life sentence on mercy killers, whom everyone knows will be released in three, four or five years. That would get rid of the problems of diminished responsibility and provocation, for instance, which would no longer be needed as defences to a murder charge but would simply be dealt with at sentencing. That matter is not ripe for action at the moment, although I hope that the Law Commission can be invited to look at it.
I shall return to what is already in the Bill. The Government are trying to confuse two different matters: consistency of sentencing and uniformity of sentencing. Consistency of sentencing—the idea that people who commit similar offences in similar circumstances should receive similar sentences— is highly desirable and plainly right. At a lower level of crime, for instance, in the past, one Bench of magistrates may have dealt with similar motoring offences quite differently to another magistrates' Bench. Such inconsistency can be, and has been, dealt with in recent years by the Court of Appeal Criminal Division. It hears a series of test cases that raise particular problems regarding the appropriate level of sentence in fairly general circumstances. The Court of Appeal can say what it thinks is the range of appropriate sentences for crimes of that kind.
Uniformity of sentence is different; in my view, it is wholly unacceptable. It is the idea that a similar offence should be subject basically to a similar penalty whatever the surrounding circumstances, except perhaps in the most extreme cases. The Government seem to be moving in that direction with the Bill.
I am happy with, and would positively support, the idea of lay input by non-sentencers into the question of consistency of sentencing. As the noble and learned Lord, Lord Ackner, pointed out, we have that already in the Sentencing Advisory Panel. As he asked, what is then the need for a separate Sentencing Guidelines Council, which seems to be taking a step too far? Unlike the

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Sentencing Advisory Panel, the council attempts to restrict the discretion of judges. That is plainly wrong. It is wholly inappropriate to have the two distinct bodies. We should stick with the Sentencing Advisory Panel and not have the Sentencing Guidelines Council.
If we have a council, it should never lay down restrictions on the discretion of judges in individual cases, but only seek to achieve consistency by applying general rules for general cases. In individual cases, if a judge gets it wrong it is not a matter for a minimum sentence but something to be dealt with by specific guidelines. The remedy already exists: the power of the Attorney-General to refer the case to the Criminal Division of the Court of Appeal, which can impose a higher sentence.
I agree entirely with what the noble Lord, Lord Carlisle of Bucklow, said about the danger of minimum sentences, as many other speakers have done. I will not go into the details of Schedule 17, which contains many serious faults. I shall deal simply with the question of minimum sentences. As experience has proved in America—where minimum sentences have had disastrous consequences, as the noble Baroness, Lady Stern, pointed out—we should not go into such sentences.
This part of the Bill contains many dangerous provisions. I hope that the Government will be prepared to accept the spirit behind the amendment.
4.45 p.m.
The Earl of Listowel: I am deeply concerned about the repercussions of the Government's proposal for children who become involved in the criminal justice system. I have listened with increasing anxiety as I hear each speaker voice his or her concerns. Of course we must always bear in mind the impact on victims of the crimes committed by such people. However, I was dismayed that in another place the Government proposed to introduce a minimum life sentence for children who commit murder. If what the noble and learned Lord, Lord Mayhew of Twysden, said about adult murderers is true—as I am sure that it is—it is so much more true of children who commit murder.
I am concerned that the provision is liable to lead to more interference in the judiciary as it deals with children. That would happen in the context of a situation in which children and their families have been neglected so badly in the past as regards the services that we have provided for them. Let us take for example children's homes, where staff can work without any previous professional training or qualification. In continental countries such as Poland staff in children's homes must have two to three years' professional training before they may work with these very disturbed and sometimes violent children who, sadly, may eventually end up in the criminal justice system.
Without a strong independent judiciary, the danger is that the public, who, sadly, are often ill-informed about the context of criminal behaviour, will put pressure on politicians to increase sentences and to
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overload the criminal justice system so that nothing can be done to rehabilitate people who may have committed awful crimes but who are often victims themselves.
Lord Williams of Mostyn used to say of the death penalty that, in certain circumstances, one must put aside the pressure of public opinion and do what one thinks is right. He would always say "Two wrongs do not make a right". I look forward to reassurance from the Minister that this is not a slippery slope towards lessening the independence of the judiciary and an increase of rule by popular misunderstanding of the situation.
Lord Chan: I also speak to this amendment, which would ensure judicial discretion in sentencing. That is exactly what happens at the moment. I declare that I am a member of the Sentencing Advisory Panel.
The Court of Appeal has accepted 10 submissions or recommendations from the Sentencing Advisory Panel, which demonstrates, as the noble and learned Lord, Lord Ackner said, that the judiciary accepts advice and consults on sentencing. The panel has found one issue difficult—that of minimum sentences, which have made the work of consistency in sentencing difficult and unbalanced. For example, an offender who commits burglary a third time would receive a custodial sentence of three years, which has been commented upon by the many groups of interested people who receive the recommendations and submissions of the panel. Those groups represent a large sector of the community as well as the professions.
The Government have got the legislation about right at the moment. However, my personal view is that things should not go too far, especially with regard to the sentencing guidelines council. It is not desirable for civil servants from government departments to comment on and influence sentencing.
Baroness Scotland of Asthal: I thank noble Lords who have participated in this debate for their thoughtful contributions. The noble Lord, Lord Alexander of Weedon, is right: the thrust of what the Government seek to do is very similar to the aspirations of those who sit on the Benches opposite. There is nothing on which we disagree. I hope that nobody will be surprised to hear me say that judicial independence is not only valued by this Government but jealously guarded, because it is a cornerstone on which our democracy is founded. Nothing in the Bill seeks to undermine that fundamental principle. There can be no doubt that the judiciary has discretion in the determination of sentencing for all offences. We therefore fully agree with the statement made in this new clause, and with much of what has been said this afternoon.
It may be useful to say a little now about how we see the broad scheme, especially to answer the request of the noble Baroness, Lady Stern. Noble Lords will know that, in time, we will look with greater particularity at each clause individually. At that stage, noble Lords will want to respond more fully, as shall I.

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With his characteristic sagacity, the noble Lord, Lord Carlisle of Bucklow, called the provisions verbose and self-contradictory and said that that was the best that could be said about them. However, with the greatest respect, I disagree. This is an incredibly complex area, although many would like to suggest that all is straightforward and simplistic. We know to our cost that that is not so. The Government have relied greatly on the work done on the Halliday report, which was rightly praised by the noble Lord, Lord Dholakia. We tried to set the context and my noble friend Lord Borrie was so right about the structure in Part 12 being the context and backdrop against which the exercise of discretion should be viewed.
We have learnt much in the past 50 years from the development and practice of sentencing. We have learnt about the futility of dealing with the offence without accurately and properly dealing with the offending behaviour. It has been said that certain individuals in the country serve life six months at a time—going in through one door and out through the other, backwards and forwards. By utilising all the provisions in the Bill, including those of restorative justice and rehabilitation identified by the noble Lord, Lord Dholakia, the Bill seeks to create a framework for the sentencer. The sentencer will be able not only to look at the individual offence, but to go beneath the problem.
We seek to bring not only the sentencer but the whole criminal justice system together to act in unison to provide better protection and justice for the victim as well as establishing a better-targeted and crafted process through which an offender can go. Hopefully, that will enhance the opportunity for change, for restoration, rehabilitation and reparation. Those may be contradictory, but must be held in the balance because they are equally necessary.
How do we do achieve that? Several noble Lords have mentioned minimum sentences as if they could be found in the Bill. Noble Lords will know that there are minimum starting points in the Bill, from which there can be mitigation and aggravation. We will return to them with greater particularity at a later stage, but I gently mention the provisions in Paragraphs 7 and 8 of Schedule 17. Paragraph 7 clearly states:
"Having chosen a starting point, the court should take into account any aggravating or mitigating factors, to the extent that it has not allowed for them in its choice of starting point."
Paragraph 8 states:
"Detailed consideration of… mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order."
Several noble Lords, including the noble Lord, Lord Kingsland, asked, "Where is the judges' discretion?" However, the provisions are founded on the cornerstone of the exercise of judicial discretion, first, in choosing a starting point and then in either mitigating it downwards or in taking into account those factors which cause a sentencer to go upwards.
The noble Lord, Lord Goodhart, applauds any attempt made to promote consistency. I am grateful for that. It is right that, for justice to be seen to be done,
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it must be done consistently. There cannot be one rule of law in the north of England and another in the south of England, notwithstanding the proper flexibility that there must be for regional differences, as mentioned by the noble Lord, Lord Renton. One knows that there are moments when, because of the nature of an offence in a particular area, a court may feel it right and proper to express itself with clarity, in order to bring that behaviour to a stop. Of course, there must be flexibility, and, in the provisions that we have set out, there is such flexibility.
The noble Lord, Lord Alexander of Weedon, made a point about speed without consultation. There has been a plethora of consultations about the matters. There was the consultation that went with Halliday, and, when it came to considering the issues raised in Part 12, the Government recognised the importance of the provisions and consulted further. I know that the noble Lord and others have said that the provisions were added to during the Bill's passage through the Commons and that changes were made in Committee. Respectfully, I say that that is to fail to recognise the nature of the parliamentary process. All Bills will be recrafted and refashioned as they pass through the other place. Indeed, our main role is to review, change or alter—we would say "enhance" and "make better"—those Bills.
Between April 2002 and March 2003, there were seven meetings between representatives of the senior judiciary and Home Office Ministers and/or officials at which the Criminal Justice Bill was discussed. My right honourable friend the Home Secretary and the Lord Chief Justice also met bilaterally on 21st March 2002, 25th November 2002, 13th March 2003 and 11th June 2003. The Committee will know that a protocol has been drawn up to cover consultation between the Home Office and the senior judiciary on Home Office legislation. That does not mean that we will always agree, but proper consideration will continue to be given to the proper comments made and concerns raised.
The noble and learned Lord, Lord Ackner, raised the issue of inappropriate control over the process — diluting, as he put it—by non-sentencers. Several noble Lords, including my noble friend Lord Borrie and the noble Lord, Lord Goodhart—to name but two—welcomed the introduction of a broader ambit for the sentencing council. The sentencing council will have an important and independent role.
5 p.m.
Lord Goodhart: I suggested that there should not be a sentencing council. I welcomed the Sentencing Advisory Panel.
Baroness Scotland of Asthal: I beg the noble Lord's pardon. I think that he said that, if we had the Sentencing Advisory Panel together with the current rules, we would not need a council. My noble friend Lord Borrie said that it was an enhancement, and I agree with him.
I think that it was suggested by the noble and learned Lords, Lord Mayhew of Twysden and Lord Ackner, that, in some way, the provisions would

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besmirch the role of the Attorney-General. He is not in his place at the moment, but I must say that we are blessed with a particularly gifted Attorney-General, as has historically been the case. I say without any fear of contradiction that the noble and learned Lord, Lord Mayhew of Twysden, discharged that role with great distinction, as did Lord Williams of Mostyn and others. There has not, in this country, been an Attorney-General of whom we have not been proud.
It is not a case of failure by the Attorney-General to exercise the function properly or at all. It is not a case of a lack of confidence in the judiciary or the legal officers. It is an attempt to create a framework within which there will be parity of treatment, flexibility and a solid foundation on which the exercise will be crafted. If we examine the provisions, as opposed to being terrorised by the mere thought of change, we will, I say respectfully, become much calmer. We will see, in virtually every provision, the opportunity for the exercise of discretion. The Committee should not for a moment underestimate the importance that a well-trained judiciary will have.
The Earl of Listowel: I am concerned about the popular response. If the media see someone receiving a sentence below the minimum, they will catch on to it and say, "The judge had a minimum sentence, and he went well below that". They will not listen to the fact that the judge gave his reasons, which would be wholly acceptable to all of us. Does the Minister have that concern?
Baroness Scotland of Asthal: I understand the noble Earl's concern. I know that there are people outside the House who would like the policy to be driven by the media, but it is not. It is driven by the needs of the individuals who come before the courts seeking justice—the victims, the witnesses and the defendants. Each needs a clear, acknowledged, known system that is fairly applied.
In the provisions are the tools that can be used by sentencers to make clear the reasons for their judgments and the basis on which they have been made. The guidelines that the sentencers will have observed will be written in statute. They will start from the minimum position but will be able to say precisely what mitigating factors have been taken into account and what features caused an offence to be aggravated, so that they can distinguish between such offences.
The noble Earl, Lord Listowel, is right to say that, often, there is ill-formed criticism of the exercise of a judge's discretion, whether the judge be lay or professional. The Bill will give the sentencer the tools to make the explanation clear. Discretion will be better understood for that.
The right reverend Prelate the Bishop of Worcester said that we were giving out different messages. We are not. From the Dispatch Box, I have sought to give out a consistent message.
Lord Ackner: Does the noble Baroness accept that the genesis of Schedule 17 was the Home Secretary's reaction
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to the application by the House of Lords of the human rights legislation to the effect that the Home Secretary no longer had a part to play in deciding how long someone guilty of murder should stay in prison? He threatened to respond, and, in another place, he indicated that this was his response. Some of us have received letters from the noble Baroness's department explaining why it took so long for Schedule 17 to be provided, given that the decision of the House of Lords to apply the European legislation and jurisprudence occurred way back in 2002.
Baroness Scotland of Asthal: That would not be a fair assessment. The noble and learned Lord will concede that there is, and has been for some time, a vigorous debate about the proper role that the legislature and the executive should play in determining sentence and the proper role and parameters for the judiciary. Of course, it is right that our constitutional arrangements, prior to the decision made by the Judicial Committee of this House, were such that the political—as, I believe, the noble and learned Lord, Lord Mayhew, expressed it—voice in sentencing could clearly be heard and exercised through the expression of the Home Secretary in being.
Therefore, the constitutional arrangement that prevailed hitherto was that, through the Secretary of State, Parliament had an opportunity to be heard. Once those arrangements were changed—the noble and learned Lord will know that many have cried out for such a change for a long time—it was proper for the Government, in looking at this Bill, to seek alternative arrangements if Parliament deemed it appropriate. We are now engaged in that. It is a proper discussion, which we should be having, about where the boundaries are. Parliament has had an opportunity to speak through the other place and it will have an opportunity to speak here.
We should not fool ourselves that outside Parliament in the general population there is clarity and understanding of how conclusions are reached by our judiciary. It is incumbent on us to seek to bring that clarity. If we succeed, it is to be hoped that we shall engender a greater degree of confidence in our judicial process than, lamentably, there appears to be now. It is a sad fact that although crime is dropping at significant rates, confidence levels are not rising at a commensurate level. Therefore, we must do something. Here, we seek to put matters in balance.
I hope that I have answered the question posed by the noble Lord, Lord Kingsland. It is right that this is a probing amendment. We will have an opportunity to discuss in detail the individual clauses as they arise in their proper place.
5.15 p.m.
Lord Kingsland: I am most grateful to the noble Baroness for giving such a full reply. I hope that Members of the Committee will agree that the debate has provided an important degree of clarification at the beginning of our consideration of the detailed

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amendments under Part 12. Perhaps I may make just one or two observations before I withdraw the amendment.
I was pleased to hear the noble Baroness say that she had complete confidence in Her Majesty's judges; and that she also had complete confidence in the Attorney-General. Since the Attorney-General has rarely found it necessary to use his powers to question sentences laid down by trial judges, that might suggest to Members of the Committee that, broadly speaking, the system is working extremely well.
The Minister said that the motive for the changes that the Government seek to introduce is to provide a starting point for the trial judges sentencing exercise. The starting point is the minimum sentence. That is then adapted by a process of taking into account aggravating and mitigating factors.
I ask myself: is that any different from what happens now? A trial judge considers a starting point, which is a spectrum—a range from zero to the maximum sentence. Somewhere along that spectrum, the trial judge will determine the particular sentence in the particular circumstances of the case. He or she will be assisted by the guidelines laid down by the Criminal Division of the Court of Appeal. As far as I am aware, no dissatisfaction has been expressed by the noble Baroness with respect to those guidelines. Therefore, where is the advantage of the new system that the Government are proposing?
I confess that I cannot see any advantage. Indeed, I would go further: I can see at least one disadvantage. Setting out a minimum sentence will put pressure on the trial judge to go in one direction rather than another in setting his or her sentence. The trial judge will be aware that, in circumstances where he sets a sentence below the minimum, he is likely to receive considerable criticism in the press.
When we consider the many amendments tabled to the particular clauses in Part 12, we should bear in mind today's general debate. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 135 [Purposes of sentencing]:
[Amendments Nos. 160BB and 160BC had been withdrawn from the Marshalled List. ]
Baroness Anelay of St Johns moved Amendment No. 160BCA:
Page 84, line 10, leave out subsection (1) and insert—
"(1) When a court determines the sentence that shall be imposed on an offender, it shall take into consideration the following purposes of sentencing—

(a) the punishment of offenders;

(b) the reduction of crime (including its reduction by deterrence);

(c) the reform and rehabilitation of offenders;

(d) the protection of the public;

(e) the making of reparation by offenders to the community and persons affected by their offences;

(f) the maintenance of public confidence and the prevalence of the offence in question in the locality; and

42

(g) ensuring offenders' awareness of the effects of crime on the victims of crime and the public."

The noble Baroness said: In moving Amendment No. 160BCA, I speak also to Amendment No. 160BH with which it is grouped. As my noble friend Lord Kingsland said, we have just debated the significant matters of principle that underlie Part 10. We turn now to matters of detail. The Minister said that we now have a raft of amendments which go step-by-step towards investigating what the Government are trying to achieve and determining whether this is the appropriate way forward.
It is right that we should do so because so little of this part was considered in another place. If it was, it was considered at a very late stage. For example, Clauses 165 to 214 inclusive were not debated in Committee because of a timetable Motion. Clauses 218 to 227 inclusive were not debated similarly. Government amendments to Schedules 7, 8 and 9 were never debated. Therefore, we felt it necessary to table a significant number of mostly probing amendments because it is the only opportunity in either House to consider the detail of some of these clauses.
Therefore, in the spirit of achieving the passage of the Bill in the limited time now available, I agreed to a significant number of very large groups. I apologise to all Back-Bench Members of the Committee for so doing. I appreciate that it makes debate more difficult. I tried to do it only where I could see that there is a unifying argument. I appreciate, too, that, understandably, there has been some difficulty in drawing up the lists at the Home Office.
Therefore, for the convenience of the Committee, I shall do a little caretaking. First, Members of the Committee will be relieved to hear that I shall not move Amendments Nos. 160BT and 161E. I feel that the Public Bill Office has had enough of withdrawing amendments, so I shall not add any more. I understand also that the Liberal Democrat question about whether Clause 143 should stand part, currently grouped with Amendment No. 160BK and others, has been put in that place incorrectly. I give notice therefore that it will be taken in its proper place with Amendments Nos. 161C and 161D.
Given how the groupings list has been typed, it may not be immediately obvious to noble Lords that the group to which I am speaking comprises 10 amendments, up to and including Amendment No. 160BJD. The next grouping, beginning with Amendment No. 160BK, comprises 13 amendments up to Amendment No. 160BSA. That marks the end of my sermon on these groups of amendments.
I turn now to the detail of the amendments. Clause 135 sets out in statute the five purposes of sentencing to which the courts shall have regard when passing sentence on offenders. At Second Reading, the noble and learned Lord the Lord Chancellor set out the purposes and went on state that:
"Those purposes are complementary. It will be up to sentencers to determine what weight to accord to each in a particular case".— [Official Report, 16/6/03; col. 561.]
That was a helpful statement, but it does not appear on the face of the Bill. Between now and Report stage, perhaps the Government will consider whether the

43
words of the Lord Chancellor should be incorporated into Clause 135 in some form for the avoidance of any doubt in the future.
Amendment No. 160BCA rewrites Clause 135(1). I have sought to present a keeling schedule of my own to enable other noble Lords to make sense of the various amendments that I had put down earlier. The subsection was then littered with amendments; consolidation has made more sense of them. The objective of the amendment is to add to the list of principles of sentencing currently listed in the subsection.
First, my proposed new subsection (l)(e) ensures that reparation by offenders, one of the aims of sentencing, should be directed to the community as a whole. At present the paragraph proposed by the Government refers to offenders making reparation only to "persons" affected by their offences. I ask, therefore, whether such reparation would include reparation made to the wider community as well as to the direct victims of the particular offence. When I first read the paragraph, I had thought that that was what the Government meant, and I see that the noble Baroness is nodding her head. I shall not pursue that in the hope that she will clarify the issue.
Secondly, my proposed new subsection (l)(f) sets out an additional purpose in that there should be a restoration of public confidence and that the prevalence of the offence in the local area should be taken into account. In Standing Committee in another place, my honourable friend Mr Humfrey Malins asked whether courts might need the flexibility to deal more severely with offences that are particularly prevalent in a certain area. The Minister, Mr Hilary Benn, rejected my honourable friend's argument but went on to say that, even under the Bill, there could be,
"well-justified local variation [in sentencing arrangements]".— [Official Report, Commons Standing Committee B, 30/1/03; col. 733.]
Given our previous debate, and considering in particular the contribution made by the noble Lord, Lord Goodhart, concerning consistency and the response of the Minister on that point, I should be grateful if she would expand on this. What degree of, "well-justified local variation" in sentencing does the Bill allow? What role will ensuring public confidence in the system play in the sentencing framework once the Bill has been enacted? That is not mentioned in Clause 135 and I would welcome the Minister's comments.
The third proposed new sub-paragraph (g) would make it a principle of sentencing to make offenders aware,
"of the effects of crime on the victims of crime and the public".
That wording is specific. It replicates Section 2(2)(d) of the Criminal Justice and Court Services Act 2000.I am sure that the Minister's briefing will point out that the section sets out one of the statutory aims of the National Probation Service. Noble Lords who took part in the debates on that Bill—I did not do so, but I
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have read the reports—will recall that the words were inserted after the House divided on an amendment proposed by my noble friend Lady Blatch.
The purpose of the amendment is to elicit a response from the Government as regards what consideration they have given, when looking at the purposes of sentencing, to ensuring that offenders are made aware of the effects of crime on victims and the public. In the 2000 Act Parliament recognised that this is an important issue as regards offenders being supervised by the probation service. Why is it not included here? All the other statutory aims of the Probation Service have been set out; why not this one? Why has it slipped from the list?
I turn finally to Amendment No. 160BH, concerning the role of the sentencing guidelines council, to be established by the Bill. I move from the general comments made in the previous debate to the particular and ask the following questions. Will the council have any role in formulating guidance for sentencers on the relative weight to be given to each of the priorities in particular cases, as listed in Clause 135(1)? I notice that Clause 163(l)(a), dealing with the remit of the council, states that guidance issued by it "may be general in nature". Does that include guidance on the relative weight to be given to the statutory purposes set out in Clause 135(1) and the mechanism for resolving any conflicts or tensions between them? I ask that because conflicts and tensions there are bound to be. It would be helpful if the noble Baroness could explain at this stage the Government's thinking in this regard.
It would also be helpful if she would respond to the point that has been made by Justice in its helpful briefing to noble Lords, which is as follows:
"There will be many occasions when a court needs to make a choice. Clause 135 gives no clue as to how that choice should be made, and establishes no order of priority among the various aims".
I shall not speak at greater length in putting forward these detailed questions. It is difficult to do justice to such a large group of amendments without speaking for too long. I hope that I have done them a little justice. I beg to move.
The Deputy Chairman of Committees (Lord Carter): If Amendment No. 160BCA is agreed to, I shall not be able to call Amendments Nos. 160BCB to 160BFA inclusive on the grounds of pre-emption.
5.30 p.m.
Lord Dholakia: The grouping under Amendment No. 160BCA contains a number of amendments tabled by my noble friend Lord Thomas of Gresford and myself; that is, Amendments Nos. 160BCB, 160BCD, 160BJB, 160BJC and 160BJD. A number of other amendments have been tabled by my noble friend Lady Walmsley and myself: Amendments Nos. 160BCC, 160BFAand l60BJA.
Perhaps I may say at the outset that we support much of what has been said by the noble Baroness, Lady Anelay, in relation to her Amendments Nos.

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160BCA and 160BH. Perhaps I may also mention that we shall not move Amendments Nos. 160C, 161and 257 at this stage in order to facilitate discussion on these important matters.
Amendment No. 160BCB is designed to ensure that all the factors must be considered by the court as opposed to it simply having regard to the five factors that have already been mentioned. Clause 135 contains a declaration of the purposes of sentencing regarded by the Government as the cornerstone of the proposals and an essential element of the new strategy.
Justice has pointed out that the declaration is confused and liable to produce greater inconsistency in sentencing. The Bill states that the court must have regard to five purposes each time it passes sentence: punishment, crime reduction and deterrence, the reform and rehabilitation of offenders, public protection and reparation to victims. In fact there are probably six or more different purposes because "crime reduction" is said to include its reduction by deterrence and the White Paper stated that both the deterrence of the offender and the deterrence of others should be taken into account.
Amendments Nos. 160BCC and 160BJA are designed to identify clearly the age groups to which the clause relates. Clause 126 sets out a framework for the court in relation to the purposes of sentencing which specifically excludes children—that is, offenders under the age of 18. NCH, the National Children's Bureau, Barnardo's, the Children's Society, NACRO and the National Association of Youth Justice support the principle of separating the framework for adults from that for children and further believe that there is a need to set out clearly in primary legislation the court's duty under domestic and international law to consider children's welfare as a primary consideration in all matters affecting them.
We believe that the proposed amendment would retain the primary overall aim of the youth justice system—the prevention of offending by children— while reinforcing and clarifying the necessary safeguards for children and better compliance with children's human rights obligations. If accepted, the amendments would ensure that, when passing sentence, the courts would have regard to the welfare of the child in order to best respond to their vulnerability, developmental need and relative immaturity. Ignoring these considerations can result in unnecessary, harmful and lengthy custodial sentences—itself a contravention of Article 37 of the UNCRC.
Amendment No. 160BCD seeks to insert a more accurate and less emotive expression of a core function of sentencing. Amendment No. 160BFA seeks to add a rehabilitation element to the purposes of sentencing, which a court must consider during the sentencing exercise. Amendment No. 160BJB is self-explanatory. It provides a chance to rehearse and confirm the "prison does not always work" argument and provides that the alternative must be considered.
As to Amendment No. 160BJC, Clause 135 states that a court must have regard to the purposes set out in the clause but in many cases the five purposes may
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point in different directions and the court will have to make a choice. Clause 135 gives no clue as to how the choice should be made and establishes no order of priority among its various aims, as the noble Baroness, Lady Anelay, pointed out.
We support Amendment No. 160BJD on the basis of the proposal in the Halliday report that a fundamental principle of sentencing is that it should be proportional to the seriousness of the offence. At a minimum, the Bill should adopt the recommendation of the Council of Europe, Principle A4, to the effect that no sentence should be disproportionate to the offence. In order to establish the primacy of this principle, the relationship between Clauses 135 and 136 must be established. This could be achieved by an additional subsection to Clause 135.
Lord Renton: If the amendment moved by my noble friend Lady Anelay of St Johns and the other amendment standing in her name and that of my noble friend Lord Kingsland are not accepted and do not become part of the Bill, there might be something to be said for the amendments to which the noble Lord, Lord Dholakia, has spoken. However, I would prefer the Bill to be amended fundamentally in the way proposed by my noble friend rather than by the patching-up amendments brought forward by the Liberal Democrat Front Bench.
I strongly agree with my noble friend's suggested replacement of subsection (1). Like other noble Lords, I have had to sentence a good many people in the various part-time judicial capacities I have held. When carrying out that work, we never had available to us such a clear statement of the purposes of sentencing as that expressed in the amendment. It contains valuable statements of principle for the guidance of courts and it points out the need for the court to be flexible according to the circumstances.
However, I should mention two points of detail. I am not sure that the expression "reparation by offenders" in paragraph (e) will always be widely understood. It may be the best expression but it means "compensation", and "compensation" may be better understood.
My other point arises out of what was said in a previous debate—in which, I am thankful to say, the noble Baroness, Lady Scotland, agreed with me. Paragraph (f) refers to the maintenance of public confidence,
"and the prevalence of the offence in question in the locality".
That point needs to be borne in mind by Parliament when giving powers of sentence. It is rather unfortunate and extraordinary that in some areas, especially in large cities, one type of offence will grow too prevalent and not be heard of much elsewhere. It is only right that we should bear that factor in mind when legislating.
However, returning to the generality of my noble friend's amendments, Amendment No. 160BCA would make Clause 135 more practical, more flexible and necessarily part of our law. As to Amendment No. 160BH, it should be made clear to lay Members of

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the Committee that the Sentencing Guidelines Council can only issue guidelines. It cannot change the sentencing powers provided by Parliament.
Lord Carlisle of Bucklow: In her reply to the previous debate the Minister was kind enough to mention the modest words with which I described Part 12 of the Bill. I therefore have a requirement to justify one or two of them briefly.
Among other things, I said that I felt the Bill was "platitudinous". I was referring particularly to Clause 136(1). I would not have thought that it was necessary to advise anyone sitting in any form of judicial capacity that,
"In considering the seriousness of any offence, the court must consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might forseeably have caused".
That adds nothing to the phrase "seriousness of the offence".
I also remarked that the Bill was in some ways self-contradictory. Like the noble Lord, Lord Dholakia, I was there referring to the paper produced by Justice— which no doubt the Minister has seen—in regard to this part of the Bill. Clause 135(1) states that:
"Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing".
If I understand its argument correctly, Justice is saying that the use of the word "must" could make some of the proposals self-contradictory in that one could well be in a position where the reform and the rehabilitation of the offender was pulling one way and the need for the reduction of crime, including its reduction by deterrence, was pulling in the other direction. Justice gave various examples where it believes that the other intentions of the Bill to achieve shorter sentences could be affected by the use of the word "must" and the purposes of sentencing set out in Clause 135.

At this stage, all I ask of the Minister is whether— with reference to the word "self-contradictory"—she would look again and consider whether "must" is the right word. I do not know whether "shall" would reduce the strength of the wording in any way. However, it could lead to a conflict of intention to say that in each case one must take account of the reduction by deterrence, when one is dealing with a person who, in the light of his individual circumstances, may be reformed better without a prison sentence.
No part of the clause says what weight is to be given to any of the particular purposes of sentencing. One might perhaps say something like,
"have in mind the following purposes of sentencing",
or,
"must be aware of the following purposes of sentencing",
rather than, "must have regard", which implies that any sentence must meet all those six purposes when they may in some cases be self-contradictory.
Lord Chan: I support Amendment No. 160BCA, especially the proposed paragraphs (f) and (g). The
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"maintenance of public confidence" in particular localities was a very common issue in the two research projects that the Sentencing Advisory Panel carried out in communities. The fear of crime grips vulnerable people such as single older people living alone and families with young people; that fear recurred frequently when confronted with sentencing for serious crimes such as sexual offences and violence, and extended to such issues as burglary. It is important that sentencing guidelines are stated clearly so that the public knows for certain that that is what sentencing is all about, and particularly that judicial discretion is taking those factors into consideration.
Baroness Stern: I support Amendment No. 160BCC, which relates to children under 18, and stress the importance of making it clear as often as possible in legislation that the sentencing of children—those under 18—is a very different matter from the sentencing of adults. The United Kingdom is a signatory to international obligations under the Convention on the Rights of the Child, which should require us to use custody absolutely as a last resort, for the shortest possible time. The primary consideration in sentencing children should be the welfare of the child. Therefore, it seems to me appropriate that it should be clear that children are removed from the provisions.
I also support Amendment No. 160BJB, in the name of the noble Lords, Lord Dholakia and Lord Thomas of Gresford, which suggests that prison should be used, "as a last resort".
I thank the Minister for being so helpful in answer to my question about the Government's objectives with the measures. From her answer, it was clear that the Government have no view about the desirable or appropriate size of the criminal justice system nor, therefore, about the cost of criminal justice interventions, and that that is not an issue that affects these measures. Since in the real world money is limited and is unlikely to be available easily for the vast range of interventions that have been proposed, using prison as a last resort, and having that in legislation, seems a sensible policy. It is one for which any government would be grateful, as it at least suggests that they might have the money to fund whatever they feel is the most desirable course of action.
5.45 p.m.
Baroness Scotland of Asthal: I shall respond first to the point just raised by the noble Baroness. Of course, the Government do have a view in relation to the utility of interrupting offending behaviour. The combination of the sentencing measures that we are bringing to bear should have the effect of reducing offending behaviour, thereby relieving the public of the abuse to which they are put by that offence. One hopes that it will also reduce the numbers of people whom we find we are obliged to imprison because of their activities.
We are clear that the sentencing framework should do more to support the purposes of crime reduction and reparation, which goes slightly wider than the definition of "compensation" that the noble Lord, Lord Renton, wanted. One can make reparation in a

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combination of ways—by saying "sorry", by doing work or paying money. There is a plethora of things that one can do under the heading "reparation" that go beyond compensation.
We also believe that we should continue to meet the needs of punishment. The clause aims to do that by setting out what we consider to be the purposes— though not the only ones—of sentencing. I refer to punishment, crime reduction, reparation and the reform and rehabilitation of offenders. During Committee stage in another place, we recognised in response to an amendment that reform and rehabilitation of offenders should form a purpose in their own right and made the appropriate changes. We are, however, not quite convinced by the additional proposals made in today's amendments.
I want to say a word to the noble and learned Lord, Lord Carlisle, about the apparent conflict to which he alluded in the clause. I believe that he said that the reform and rehabilitation of offenders might be in conflict with each other.
Lord Carlisle of Bucklow: The conflict is with the principle of reducing by deterrence.
Baroness Scotland of Asthal: Not necessarily. If an offender reforms and rehabilitates, that should have the impact of reducing crime, because it should reduce the source and nature of their offending behaviour, which gives rise to more crime. The two do not necessarily act in conflict with each other.
It is right that, when a sentencer comes to consider the sentence, all those factors are borne in mind, so that the sentence overall not only gives voice to what will be consistent with punishing the offender but better protects the public as well. I welcome what the noble Lord, Lord Chan said, in support of the clarity and the need to have those factors in the Bill, so that everyone knows what we are talking about.
I appreciate that Amendment No. 160BCA is a probing amendment. The noble Baroness, Lady Anelay of St Johns, will not be at all surprised that we do not believe that the amendment, which would replace the drafting of the clause with a new version that adds to the purposes outlined, is helpful. I say clearly that we think it is already implicit in the drafting of Clause 135(1)(e) that reparation can be directed towards a victim, a group of victims or a community through the reference to "persons affected by offences". We agree that reparation to communities is equally as important as reparation to a particular victim but the clause already achieves this. Similarly, we do not think that a purpose which requires the court to have regard to the offender's awareness of the effects of crime on its victims and the public adds anything over and above what is already achieved through the reparative purpose. One of the tragedies of these cases is that often the offender blocks his or her mind entirely to the consequences of the offence on others, whether it concerns drink, drugs or other offences.
Nor do we think that the maintenance of public confidence and the prevalence of the offence in the locality should feature on the list of the purposes of
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sentencing. While we agree that sentencing and the framework within which it operates need to earn and merit public confidence, this is a complex relationship and not one in which sentencers can simply be "driven by the wind" of public mood. Public understanding of sentencing is regrettably low and the evidence suggests that the public are under-informed about sentencing severity and believe it to be more lenient than it is. We need to do much more to improve this but we should not make public confidence—or the prevalence of local offending—an aim of sentencing. This could lead to very inconsistent sentencing around different parts of the country. Creating an effective sentencing framework in which sentences and the treatment of offenders promote public confidence is certainly a necessary goal. We believe that there is sufficient flexibility in the way in which we currently phrase provisions to allow local expression of issues which are pressing and difficult in a particular area. Nor are we attracted by the suggested replacement in Amendment No. 160BCD of the purpose of punishment with one that refers to the,
"holding of offenders to account for their offences".
We think that "punishment" is a better recognised and more widely used definition of one of the purposes of sentencing. We consider that Amendment No. 160BFA, which also adds a new purpose to the list (the treatment, reintegration and rehabilitation of offenders) duplicates the existing purpose—which is succinctly put in the reform and rehabilitation of offenders—which already provides for these elements to be taken into account.
We do not consider that Amendment No. 160BH adds anything useful. Sentencers will, of course, refer to any relevant guidelines when sentencing offenders to particular offences—the purposes in Clause 135 simply set out the framework for this consideration. However, I say to the noble Baroness, Lady Anelay, that when the council drafts the guidelines with the purposes of sentences in mind there will be nothing to prevent it from issuing guidance on the interaction of the purposes if it deems that appropriate or necessary, or if experience indicates that might be helpful. Clause 165 already requires the court to have regard to any guidelines issued by the council. We seek to try to create consistent application of purpose and principle. As I say, in some cases the prevalence of local offending may mean that a particular offence attracts a different sentence in one part of the country than it does in another. However, that should not skewer the way in which the measure is put on the face of the Bill.
Amendments Nos. 160BCC and 160BJA seek both to restrict the existing purposes to over-18s, which they already are by virtue of Clause 135(2)(a), and to introduce a new principle for juveniles. I know that that is a matter which the noble Baroness, Lady Stern, and the noble Lord, Lord Goodhart, are concerned about. However, this clause applies only to adults and although the welfare of juvenile offenders is indeed an important consideration in sentencing, courts are already required to have regard to it under the Children and Young Persons Act 1933. We have recently published our proposals on youth justice in a consultation document called Youth Justice--The

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Next Steps, a companion document to the main children Green Paper,Every Child Matters. In it we set out our proposal to introduce a single main sentencing purpose for juvenile offenders. The consultation period lasts up to 1st December and we very much welcome views on this as well as on our other proposals contained in the document. We believe that this is an important issue and do not consider it sensible to make changes in law to the principles of juvenile sentencing in advance of the conclusion of this consultation process.
Amendments Nos. 160BJB to 160BJD all add to the clause in order to prescribe the way the court can use the purposes set out there. We do not consider them to be effective provisions as they over-complicate the drafting, are not directly relevant, or duplicate provisions elsewhere in the Bill. Amendment No. 160BJB requires the court to impose custody as a last resort, but there is already a clause—Clause 144—which deals with custodial thresholds and stipulates that custody should be imposed only when the offence is "so serious" that a community sentence or fine cannot be justified. We believe that that is a very clear provision.
Amendment No. 160BJC would require the court to state the purpose of each sentence passed and how it expects outcomes to be achieved. We do not think that this is helpful, particularly as there is a later clause— Clause 167—which requires the court to give reasons for a sentence passed and to explain its effect. Amendment No. 160BJD says that any sentence of the court should be commensurate with the seriousness of the offence, but this is a duplication of the principle stated in the next clause, Clause 136(1).
Finally, we do not consider Amendment No. 160BCB, which is a drafting amendment, to be an improvement on our formulation. However, it provided an important opportunity for clarification. I understand why the noble Baroness and the noble Lord tabled the amendments. It is right to probe the Government's thinking on the matter but I hope that the noble Baroness and the noble Lord will be satisfied with the explanations that I have given.
Baroness Anelay of St Johns: I am grateful to the Minister. She is absolutely right to say that these are probing amendments to elicit clarification from the Government and to some extent they have achieved that end although I believe that we may need a little more assistance on Report on one or two issues.
I am grateful for the Minister's response to my noble friend Lord Renton. She clarified the issue of reparation in line with what I hoped that the Government had intended it to mean within the context of the clause. That goes to the heart of what my noble friend Lord Carlisle of Bucklow said about the drafting of the Bill. Sometimes it is verbose and sometimes the way in which its objectives are presented is not sufficiently clear. Therefore, it is important to have the Minister's clarification on the record today.
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My noble friend Lord Carlisle went to the heart of the issue—which I shall certainly need to reconsider before we reach Report—when he referred to the first line of my rewritten proposed subsection (1) in Amendment No. 160BCA which states:
"When a court determines the sentence that shall be imposed on an offender, it shall take into consideration the following purposes of sentencing".
My noble friend took me to task a little on that matter but Clause 135 is perhaps even worse as it states:
"Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing".
My noble friend directs us to the core issue of what direction should or shall or may be given to the court. That is something I should like to discuss with my noble friend before Report so that we may frame a more useful amendment to debate that point. However, I am grateful to the Minister for her response. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 160BCB to 160BCD not moved.]
[Amendments Nos. 160BD to 160BF had been withdrawn from the Marshalled List.]
[Amendment No. 160BFA not moved.]
[Amendment No. 160BG had been withdrawn from the Marshalled List.]
[Amendment No. 160BH not moved.]
[Amendment No. 160BJ had been withdrawn from the Marshalled List.]
[Amendments Nos. 160BJA to 160BJD not moved.]
Clause 135 agreed to.
6 p.m.
Clause 136 [Determining the seriousness of an offence.]:
Baroness Anelay of St Johns moved Amendment No. 160BK:
Page 84, line 34, after "offence" insert "and all the surrounding circumstances"
The noble Baroness said: In moving Amendment No. 160BK. I should, with the leave of the Committee, like to speak to the remainder of my amendments in the group-Amendments Nos. 160BL, 160BM, 160BN, 160BP, 160BQ, 160BR and 160BS.
Clause 136 lays down a number of criteria that the courts must apply when considering precisely how serious a given offence is. My amendments seek to probe the drafting proposed by the Government.
Amendment No. 160BK would allow the court to take into account all the circumstances surrounding an offence when determining the level of seriousness. My honourable friends in another place were concerned that the current drafting of subsection (1) of Clause 136 might be construed narrowly so that it focused solely on issues of individual culpability and harm caused rather than enabling the courts to look at the surrounding circumstances in their totality in particular cases, considering such factors as age and mental state of the victim and the defendant, the mode

53
of commission of the offence, any breach of trust or the motivation behind the offence, be it drugs, greed, revenge, or whatever. In another place, my honourable friend Mr Humfrey Malins put it thus at col. 741 in the Committee consideration:
"If the clause means that the court can take anything into account, then it would be nice to hear that that is the case—and the clause should say so more clearly".
Perhaps the Minister can further explain that today.
In another place, the then Under-Secretary of State, Mr Hilary Benn, responded to my honourable friend by saying:
"Nothing in the clause prevents the court from taking into account the other considerations to which he alluded".—[Official Report, Standing Committee B, 30/1/03; cols. 741-742.]
If it is the Government's intention to allow the courts to take into account such additional factors, why does the clause not say so?
Amendments Nos. 160BL, 160BM and 160BN are equally probing amendments which relate to the concept of harm. Clause 136(1) requires the courts to take into account, when looking at the seriousness of an offence, any harm caused, intended to be caused or which might foreseeably have been caused. Amendment No. 160BL would insert the words "or distress" after the word "harm".
Amendment No. 160BM would make it clear that harm taken into account may be to individual victims, other persons affected or the general public. Amendment No. 160BN would make it clear that both direct and indirect harm could be taken into account.
As I think is obvious, Amendment No. 160BL is intended to probe whether the concept of harm in the Bill includes the distress that might be caused to individual victims and the wider community. I have hinted at that in my last amendment, with regard to the principles of sentencing.
We all know the devastating effects that crime has on its victims, but they can go much wider, to the public at large, who may fear that they may become subject to a similar kind of offence. A typical situation is one in which a burglary takes place in a particular street, and other people living in that street then think that they might be subject to a similar offence in the future. Evidence from several pieces of research that have been undertaken shows that elderly people are now sometimes afraid to leave their home after dark, which, in the winter, can mean quite a long time to spend inside. The effect of crime goes very wide.
Amendments Nos. 160BM and 160BN seek clarification on related points. I will not go further than I have already done in introducing these amendments.
The remaining amendments in the group relate to taking previous convictions into account when considering the seriousness of an offence. In Clause 136(2), the Government are moving from the current position—that the courts must take previous convictions into account when sentencing—to requiring that courts treat such convictions as an aggravating factor when sentencing for the latest offence. My Amendment No.
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160BP would require the courts to treat previous cautions as an aggravating factor as well as previous convictions.
For a police caution to be given these days, a person has to admit that he or she has committed an offence. Although it is not a criminal conviction as such, it involves an admission of guilt, and the fact of the caution remains on the person's police record. So does the wording of the Bill mean that previous cautions— which may be for relatively serious offences in some people's eyes—cannot be treated as an aggravating factor by the court? Or does it mean that the courts are not precluded from doing so by Clause 136(2)? We need to know the Government's position. After all, the Minister in another place appeared to say in Committee, at col. 747, that previous cautions could not be considered at all, under any circumstances. But the Bill is silent on that point and we need to know where we stand.
Amendment No. 160BQ would change the duty placed on the court to treat previous convictions as an aggravating factor by changing "must" to "may". It would introduce a further element of judicial discretion. Are the Government able to persuade us that enough discretion is being given to judges by the use of the phrase,
"the court considers that it can reasonably be so treated",
and the wording in paragraphs (a) and (b), which allow the court not to treat previous convictions as an aggravating factor if they are unrelated to the latest offence or a long period of time has elapsed? This goes to the heart of what my noble friend Lord Carlisle of Bucklow said earlier. There appears to be some contradiction in the way in which the Bill is so drafted.
Amendment No. 160BR would introduce an explicit discretion for the court when determining the seriousness of an offence to consider such other aggravating and mitigating factors as it deems appropriate. No such general discretion is given to the court under Clause 136, which prescribes a number of limited factors, including culpability, harm caused, previous convictions and offending while on bail. Is it right that the courts' discretion should be limited, as it appears to be, in this way? Are there not other factors, both aggravating and mitigating, which might well fall to be considered?
Finally, Amendment No. 160BF relates to previous convictions by courts outside the United Kingdom. These may be treated as an aggravating factor if the court considers it appropriate to do so. My amendment relates to the circumstances in which the person was tried and convicted by a foreign court. This is a matter to which we referred when we debated Part 10 on double jeopardy and in debating the Extradition Bill in Grand Committee.
Will the court in this country merely look at the fact of the conviction when deciding to treat it as an aggravating factor, or will it be able to consider the way in which the conviction was obtained? Could

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police methods and the fairness of the trial process be taken into account in such a case? With some relief, I beg to move.
Lord Goodhart: With the leave of the Committee, I should like to speak to Amendments Nos. 160BNA, 160BQA, 160BQB, 160BQC and 160BSA. They are all in the names of my noble friend Lord Dholakia and either my noble friends Lord Thomas of Gresford or Lady Walmsley.
These amendments all deal with those parts of Clause 136 which relate to the aggravating effect of previous convictions. Before I talk about them in detail, there is the question of the appropriate role of previous convictions in the sentencing policy. Certainly we feel that these provisions are too rigid. One has to start by asking why previous convictions should lead to a longer sentence. At one time, for a few years, a Criminal Justice Act provided that previous convictions should be disregarded in determining the length of the sentence. That did not last very long, frankly. Intuitively, people feel that previous convictions and criminal records should lead to a longer sentence, but one needs to think why. The fact that someone who has already been convicted comes back for sentencing for a further crime shows that the rehabilitative or deterrent effects of the first conviction have not worked.
The case for taking previous convictions into account may be based on the belief—it may obviously in some circumstances be right—that a more serious form of punishment may be worth trying. For example, if the community order has not worked, a prison sentence may be worth trying. However, once prison has been tried and has failed, it is a little hard to see why a longer sentence should succeed where a shorter sentence of the same type did not. Indeed, it may make things worse, by increasing the risk of someone becoming institutionalised, by risk of someone becoming more dependent on drugs—we all know that they are very freely available in prisons—or by increasing the risk of the prisoner becoming isolated from friends and family and having more difficulty in re-establishing himself in life outside.
A preventive effect may be strengthened by lengthier sentences for persistent offenders, who cannot commit offences while in prison. Many years ago, there was a category of preventive detention, which meant giving long sentences for persistent petty offenders, in return for which those offenders were given somewhat better prison conditions. That was abolished, because it was regarded as inappropriate to give sentences of many years' imprisonment for petty offences such as minor shoplifting, however frequently committed.
Very long sentences may be justified on preventive grounds for violent offences or other crimes that involve exceptional distress for the victims, but it is difficult to see that they are appropriate for, for instance, repetitive shoplifting crimes. Therefore, it is desirable that there not be too much rigidity, and we think that there is too much rigidity in Clause 136.
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I shall deal with our amendments in detail. Amendment No. 160BNA would leave out Clause 136(2) to (5), which gives specific instructions to the court as to the taking into account of previous convictions. The present practice is well established and does not need to be specifically contained in statute. On a more detailed point, the Bill as drafted creates a danger of double punishment. If an offender has been convicted of previous offences and is in breach either of a community sentence or a post-custody licence, the penalty for the breach will take account of the previous offence and will be added to the sentence passed for the new offences. To treat the previous convictions as an aggravating factor would result in double punishment for having committed a breach of the order or licence, in addition to the punishment for the further offence.
Amendment No. 160BQA is a paving amendment for Amendment No. 160BQC, which requires that:
"In considering the effect of previous convictions on the seriousness of the offence, the court must have regard to the principle that the severity of the sentence must be proportionate to the seriousness of the current offence".
When I began to speak to the amendments, I made the point that one should be very careful in treating previous offences as an aggravating factor, because there is a real risk that the effect may be to make the sentence for the actual offence disproportionate to the seriousness of the offence. Paragraphs Dl and D2 of the Council of Europe recommendation on consistency in sentencing state that:
"Previous convictions should not, at any stage in the criminal justice system, be used mechanically as a factor working against the defendant … Although it may be justifiable to take account of the offender's previous criminal record within the declared rationales for sentencing, the sentence should be kept in proportion to the seriousness of the current offence".
Amendment No. 160BQB confines the operation of subsection (2) and subsequent subsections of Clause 136 to offences,
"committed by the offender when over the age of 18".
That raises the same arguments as raised on the previous group by my noble friend Lord Dholakia. Barnardo's, on a matter on which it has great experience, says that offending by children and young people divides into two broad types. To use its phrases, the first is adolescent limited and the second is life persistent. The adolescent-limited offence is the sort committed by boys of 14, 15 or 16, but that they grow out of by the time that they get into their 20s. However, there are also offences committed by boys that are a warning signal that they will become persistent, long-term criminals.
The point raised by Barnardo's is that, in offences of adolescent misbehaviour, there is no immediate cut-off. Those boys may, for a few years in their late teens, come back to court more rarely—perhaps with long intervals—but not entirely throw off such behaviour after their first conviction. The aim of the youth justice system is, as we know, the prevention of offending by children and young people, and it should be designed to assist those who will grow out of it to do so as soon as possible. Treating earlier convictions as an aggravating factor is undesirable in such cases and may make matters worse.

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Amendment No. 160BSA, the last amendment in the group, would introduce an additional subsection to Clause 136. It suggests that one can use previous convictions as a factor in imposing a more serious sentence within the same band, but cannot use it as a ground for raising the sentence to a different band. In other words, a current offence that on its own is not serious enough to warrant a community disposal cannot be turned into a community sentence, and a current offence that is defined as serious enough to warrant a community disposal cannot be raised because of serious convictions to make it suitable for a custodial sentence.
That point was raised by the Penal Affairs Consortium, which believes that there is a grave danger that Clause 136 will lead to a major and costly escalation in the severity of sentencing. This is contrary to other sections in the Bill where it is specified that only the current offence should be used to determine whether an offence is serious enough to warrant a community disposal or so serious that only a custodial sentence is justified. It may be that that provision is intended to be overriden, so it may be that Amendment No. 160BSA is unnecessary. However, it would be useful and helpful to be given the answer because we do not want to see the limited resources of the probation service being squandered on low-risk offenders who could be effectively dealt with by a repeat of bind-overs or fines. Furthermore, we do not want to see short custodial sentences being passed where a community sentence would be the norm.
6.15 p.m.
Lord Borrie: I found the points raised by the noble Lord, Lord Goodhart, interesting and fundamental, particularly in relation to previous convictions. He referred to the justification for taking into account previous convictions in determining the sentence for the offence, let alone for regarding previous convictions as an aggravating factor, which is a provision in the clause. He made the point that if the sentence is to be proportionate to the offence, in determining the sentence it seems illogical to take into account the individual's previous convictions.
Under Amendment No. 160BNA, the noble Lord, Lord Goodhart, wants to leave out subsections (2) to (5). I may have missed something he said, but subsection (3) states:
"In considering the seriousness of any offence committed while the offender was on bail, the court must treat the fact that it was committed in those circumstances as an aggravated factor".
I am not sure that the noble Lord dealt specifically with that, but I believe that it is a justifiable provision. Recently, there has been a great deal of public concern about offences—usually the more serious, violent offences are reported in the press—committed while on bail. Bail is a matter of trust and it seems to me justifiable that the public should be concerned that an offence has been committed while someone has been given the privilege of bail. It also seems justifiable that
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that should be an aggravating factor, yet it is one of the subsections that the noble Lord wants to remove from the Bill.
Lord Renton: Thirteen detailed amendments have been moved to the clause—eight by my noble friend Lady Anelay and five by the noble Lord, Lord Goodhart, on the Liberal Democrat Front Bench. The two groups are inconsistent with each other. As far as I can work out, we could not accept all of my noble friend's amendments and any of the others.
I shall not trouble the Committee with a long speech covering all the detailed amendments, but perhaps I may make the following comment. I agree with all except one of the eight amendments moved by my noble friend. I believe that she should give further thought to Amendment No. 160BP, where she asks the court to bear in mind not only previous convictions but cautions. We must be careful about that. Cautions are sometimes administered by police when no offence has been committed. The offender, who wants to get away, does not challenge the police officer, but simply accepts the caution and hopes never to be troubled again. He may nevertheless commit an offence subsequently, and reference may then be made to that earlier caution although there was no offence. I believe that my noble friend should not press Amendment No. 160BP. If she does, I am afraid I shall not support her.
I want to make one comment—I could make a number—on the amendments tabled by the noble Lords, Lord Dholakia and Lord Thomas of Gresford. Amendment No. 160BSA, which adds new subsection (6), states:
"Treatment of previous offending as an aggravating factor under subsection (2) is to be interpreted as permitting the imposition of a more demanding sentence"—
and I am puzzled by the following words, which I have never seen before—
"within the band of community or custodial seriousness".
What is the meaning of the word "band" there? The phrase has not previously entered into our statute book which deals with these matters—if it has, I have never noticed it—and therefore even if the amendment were to be accepted by the Government, that phrase should be struck out.
The clause deals with determining the seriousness of an offence and it must be considered. I dare say that until now the general power of the courts has never been defined in the kind of way that the clause attempts to define it. It is simply something that the courts must constantly bear in mind and everyone knows that. Whether the clause is desirable or not, if it is to be accepted my noble friend's amendments, other than Amendment No. 160BP, should also be accepted.
Baroness Stern: I support all the amendments which propose that previous convictions should be taken into account at the discretion of the court, but should not be considered as an aggravating factor which must be taken into account when sentencing. The noble Lord, Lord Goodhart, and the noble Baroness, Lady Anelay,

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have expressed the arguments well on why discretion should be retained. In jurisdictions where previous convictions are regarded as an aggravating factor—and I made this point at considerable length at Second Reading—many people are in prison for minor offences. When one tries to discover why people who have committed minor offences are serving such long sentences, the answer is, "They have done it before. They steal from the market very often".
The path that we are taking regarding previous convictions as an aggravating factor is a path to injustice and disproportion in punishing people not for what they have done but for being a bad person, a feckless person, a person who does not conform. For that reason, I support the amendment.
6.30 p.m.
Earl Russell: I believe I owe an apology to the Committee for contributing to the debate so soon after my arrival. I apologise for my earlier absence from the proceedings. However, in the minutes since I arrived in the Chamber, and even more so on reading the Bill with some care before I came in, I have had an uncomfortable sense of déjà vu. I suddenly feel that I am back in the first Bill in which I took part—the Education Reform Bill 1988, which was the beginning of the assault on the autonomy of the universities. There was a continual pile-up of verbiage, demanding that we justified, explained and rationalised and that we gave the latest subsection and sub-paragraph on everything we had done. It stopped there for a while but not for long.
I believe that the problem behind this issue is the Whitehall fetish for accountability. I can understand perfectly well why Whitehall becomes worried about accountability—after all, people try to hold them accountable for all sorts of things. In the words of Pope Gregory VII to William the Conqueror, which I believe puts the basic point more clearly than anyone since has ever done:
"As I have to answer for you at the awful day of judgment, ought you, can you refuse obedience to me?".
That is the voice of Whitehall in all centuries. It changes very little.
However, the point is that Ministers are not answerable for the actions of the judiciary. That is a very big difference. I believe that in the course of piling up this verbiage, we are in danger of forgetting that distinction. I know that the Daily Mail has never even known it, but one can speak truth occasionally, even to the Daily Mail. I know: I have tried. And once in a blue moon it is even correctly reported.
I believe the idea that Ministers are answerable for the actions of the judiciary is one of such very great danger that we cannot encourage it, no matter what the papers say. Therefore, I hope that some of this verbiage can be dispensed with because we are standing at the top of a slope which, I have learnt from experience, is very slippery indeed.
Baroness Scotland of Asthal: None of us could greet the intervention of the noble Earl, Lord Russell, with
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anything other than acute pleasure. I wish to reassure him that I do not believe we are standing at the top of a slippery slope; we are trying to bring a certain degree of consistency to what we have.
Earl Russell: The Minister said that we are not standing at the top of a slippery slope but endeavouring to bring a degree of consistency. That is the slippery slope.
Baroness Scotland of Asthal: Then I pray forgiveness because those of us who like consistency, equity and parity are therefore always standing at the top of a slippery slope.
I want to put Clauses 135 and 136 into context. Clause 135 deals explicitly with how the court should determine the seriousness of an offence and it sets out a number of factors which it must consider in doing so. The surrounding circumstances of the offence are relevant when considering, for example, whether there are any aggravating or mitigating factors but not when considering how serious the offence is. We do not wish to include some of the amendments because we believe that the current drafting of,
"any harm which the offence caused",
already suggests that the court can consider harm caused to the victim, the public or anyone else, and we do not need explicitly to spell that out. I know that the noble Baroness asked about the words "any harm", and I hope that that gives her the clarification that she seeks.
I turn out of sequence to address the issue raised by the noble Baroness, Lady Stern. She rightly pointed out the difficulty when proportionality goes out of the window in sentencing. Nothing in the Bill should be misconstrued to suggest that we wish to have disproportionate sentences. However, it is important that previous convictions are taken into account and that they are capable of forming an aggravating feature. The noble Baroness will know that the courts would equally have to take into account other mitigating features in order to balance the issues before them and to ensure that justice was done in any given case.
I shall preface my remarks on the amendments by answering the comment of the noble Baroness, Lady Anelay, on treating each previous conviction as an aggravating factor. We do not consider it appropriate to include a caution in the requirement imposed on the court under Clause 136(2). But requiring the court to treat a previous conviction in a particular way does not of itself prevent the court taking a previous caution into consideration as part of the overall sentencing exercise.
I shall take each of the amendments in turn. We do not want to widen the clause, as Amendment No. 160BP proposes, so that cautions, as well as previous convictions, count as aggravating factors. That is a policy decision that we have made. That is the case, first, because, if an offender has simply been cautioned in the past and not convicted and sentenced

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for an offence, it would be unfair for that caution to act as an aggravating factor in a future sentencing decision.
Secondly, if we did include cautions, that could have the potential of leading to a huge and perhaps unnecessary increase in sentencing severity. Of course, we take into account that in the way that we are now refashioning cautions, we are trying to make every intervention count, and those factors will form part of the circumstances that the court will take into consideration. Therefore, for example, if a person is given a caution and undergoes rehabilitation, drug treatment or something of that kind, the court will want to know about those circumstances. Particularly if cautions are to be used early on, we want people to grasp the opportunity for change and to change their behaviour if they are able, with the help of the court, to do so.
Therefore, we made a clear policy decision to move away from the current position where the court is simply required to "take into account" any previous convictions to the position set out in this clause where recent and relevant previous convictions must be treated as aggravating factors. Persistent offenders must know that they will be dealt with progressively more severely each time they offend. As I said, that does not mean that wildly disproportionate sentences will be the result. Sentencers will of course operate within the principles laid down further on in the Bill. Those dictate that the severity of the resulting sentence should reflect the seriousness of the current offence committed by the defendant. This clause simply modifies the proportionality principle so that previous, relevant offences can act as an aggravating factor.
We also do not consider that Amendment No. 160BK adds to the effect of this clause. The clause concerns how the court should determine the seriousness of the offence. The circumstances of the offence are an important factor when considering, for example, whether there are any aggravating or mitigating factors. However, here it is the seriousness of the offence that the court is being required to consider in order to determine what sentence to impose. The sentencing principles set out in the clause are to guide the sentencer in reaching a decision on the seriousness of the offence. If we may respectfully say so, the surrounding circumstances are not relevant to that.
For similar reasons, we do not consider that it would be possible to accept Amendment No. 160BR. Aggravating and mitigating factors which courts already take into account are relevant to the determination of the overall severity of the sentence rather than the seriousness of the offence, which is far more specific. In any case Clause 159 already does the job of providing the court with powers to mitigate sentences.
Amendments Nos. 160BL to 160 BN all attempt to amend the drafting of subsection (1) and to redefine harm caused in ways that we do not think are entirely helpful. The current drafting refers to "any harm" that could already include harm to the victim, to the public or to anyone else connected to the offence as suggested by Amendment No. 160BL. The harm caused could be
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indirect or direct and similarly we do not wish to overcomplicate the drafting by adding this formulation. Nor do we wish to widen the scope, as proposed in Amendment No. 160BJC, so as to include a consideration of any distress as well as harm caused, although of course we accept that "harm" could include psychological harm where that has been caused. We think that that would weaken the impact of the provision.
Neither do we think that inviting the court to consider the circumstances of a conviction secured in a non-UK court is relevant. The fact that the offender has such a conviction is the key fact, regardless of any other circumstances, just as such a consideration of a previous conviction incurred in England or Wales would not be relevant. The key factors are whether the offender has a previous record and how long it is.
I turn to Amendments Nos. 160BNA to 160BSA in the name of the noble Lord, Lord Dholakia, and spoken to today by the noble Lord, Lord Goodhart. They seek either to remove the principle in this clause that recent and relevant previous convictions should act as an aggravating feature in sentencing or to restrict it by inserting criteria that the court must follow when treating previous convictions as an aggravating feature in sentencing.
We would not want to accept any of these amendments because we have been quite clear that we expect persistent offenders to be treated progressively more severely—although that does not necessarily mean through the imposition of custody—in a way that ensures consistency and so that they recognise what the impact of their offending will be. We are clear that this must not result in disproportionate sentences, which is why we have said that only recent and relevant previous convictions should count. So at each stage of the offending behaviour we would hope that the sentencer has an opportunity not only to punish the defendant but also to seek to interrupt his or her offending behaviour. They can consider which method of sentencing is more likely to do that.
In effect, we are introducing, as I said earlier, a modified version of the proportionality principle. It will be up to the Sentencing Guidelines Council to set out in guidelines the extent to which severity of sentence could increase in relation to the kind of previous convictions and the nature of the current offence. We would not want to set out any restrictive criteria in statute; it will be up to the Sentencing Guidelines Council to spell out the effect of the principle. All the sentencing principles set out in this chapter that replace those in the Powers of Criminal Courts (Sentencing) Act, apply to juveniles and we do not want to change that either.
I hope that I have explained the framework into which this sits. Noble Lords will not have found me guilty of verbiage and will, I hope, better understand that which we seek to do.
6.45 p.m.
Baroness Anelay of St Johns: I am grateful to the Minister for her clarification. My amendments were probing amendments to achieve that end. I assure my

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noble friend Lord Renton that I have no intention of pressing any of these amendments. I always bear in mind his direction to the Committee in general, and I am sure to me in particular, that one should never have more words in a Bill than are strictly necessary. So I certainly would not dream of seeking to add to the Bill all these amendments to which I have spoken. However, they have elicited the response for which I had hoped from the Minister.
My noble friend Lord Renton was particularly concerned about my probing Amendment No. 160BP which referred to the inclusion of cautions within those matters that the courts should take into account as aggravating factors. I am glad to have elicited such a clear response from the Minister that there is a policy decision on cautions that they should not form part of the aggravating factors. I am prepared to accept that.
I am interested in the points that my noble friend Lord Renton raised about a caution being administered. Although it involves someone admitting that he or she has committed an offence, that person may admit an offence merely to get the matter out of the way and to move on. My noble friend has highlighted an important matter. As all noble Lords who have witnessed or taken part in cases in courts will know, not only when someone faces a caution but also when someone faces the imposition of a sentence, that person may admit the offence which they have not committed because they want the matter out of the way. Sometimes that comes to light early in proceedings. When I was a magistrate on more than one occasion I heard people say, "I didn't do it, but I can't afford to take more days off work; the witness did not turn up yesterday; I'm here again today; I can't come another day; I'll plead guilty and let's get it out of the way". The court immediately has to say, "Stop, we cannot take this case; if you are not guilty we cannot hear it".
Of great concern to us all is those people who do not make such a statement out loud and who, therefore, may have a conviction on their record of which they were not actually guilty. It behoves all of us to consider how to get round that and how we shall get across the message of what is in the Bill for people in the future so that they do not fall foul of some of the provisions in these clauses that may mean that when they subsequently commit an offence they find that a previous conviction—something that they did not do—suddenly wallops them on the head and results in them receiving a stiffer sentence.
I believe that it was vital that the noble Lord, Lord Goodhart, said what he did, referring to the need to debate the appropriate role of previous convictions in general. That did not happen in another place but it is right that it should happen here. The noble Lord, Lord Borrie, pointed us in an important direction in regard to this clause—subsection (3), relating to the scenario of an offence that is committed when someone is on bail. Before Report stage we need to consider the whole issue of judicial discretion, a
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court's discretion in deciding whether an aggravating factor is taken into account. Here the court is directed that it must take it into account.
Whenever I sat as a sentencer with others in a magistrates' court, and someone had committed an offence while on bail for another offence, of course we considered it a very serious matter indeed. I am not sure that courts need to be directed to do that. It may be that it is perfectly right to express in statute what already happens in practice. We shall have to consider that. As I said the amendments are probing amendments. I am grateful to the Minister for her response and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 160BL to 160BSA not moved.]
Clause 136 agreed to.
Clause 137 [Reduction in sentences for guilty pleas]:
[Amendment No. 160BT not moved.]
Clause 137 agreed to.
Clause 138 [Increase in sentences for racial or religious aggravation]:
[Amendment No. 160C not moved.]
Clause 138 agreed to.
[Amendment No. 161 not moved.]
Clauses 139 and 140 agreed to.
Baroness Anelay of St Johnsmoved Amendment No. 161A:
After Clause 140, insert the following new clause—
"PASSING OF DEFERRED COMMUNITY SENTENCE ON OFFENDER ALREADY SERVING CUSTODIAL SENTENCE FOR ANOTHER OFFENCE

(1) This section applies when—

(a) an offender is sentenced for an offence ("the current offence");

(b) at the time when he is sentenced for the current offence, he is in custody and is serving a custodial sentence that was passed in respect of another offence ("the previous offence") or he is ordered by the court to be returned to custody to serve any part of such a custodial sentence; and

(c) at the time when he is sentenced, the unexpired period of the custodial sentence passed in respect of the previous offence is 12 months or less.

(2) When this section applies, the court may pass a community sentence on the offender in respect of the current offence if in the circumstances the court is of the opinion that it would have imposed such a sentence had the offender not been in custody and that, notwithstanding the fact that the offender is in custody, it is in the interests of justice for a community sentence to be imposed in respect of the current offence.

(3) When this section applies and the court passes a community sentence in respect of the current offence, the court shall order that the commencement of the community sentence is to be deferred until such time as the offender is released from custody."

The noble Baroness said: Amendment No. 161A takes us to a new subject. The amendment relates to the imposition of community sentences for relatively minor offences on offenders who are at the time of sentencing already in custody for another offence. Noble Lords will be aware that at present if the release date is more than a few weeks away, the court is likely

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to impose a short consecutive custodial sentence for the new offence. That is not necessarily so, but they may do so even if ordinarily it would have imposed a community sentence had the offender not been in custody at the time.
The amendment seeks to probe whether it may be more effective to impose deferred community sentences, including what are currently known as community punishment orders and community rehabilitation orders where the offender is already in custody for another offence at the time of sentencing but has only a few months left to serve.
The offender might be in custody at the time of sentencing because he has committed the new offence while on licence, and has been recalled to prison to serve a few months of his unexpired sentence; or perhaps the Secretary of State has recalled him to prison for another breach of licence conditions before his appearance in court; or where he has been sent to prison for a short term for another offence committed in the period between committing the offence for which he is being sentenced and the sentencing hearing.
At present, this issue appears to be dealt with solely in case law. I am advised that the leading case is that of Fontenau v Director of Public Prosecutions, a decision of the Divisional Court of the Queen's Bench Division, reported in the First Volume of Criminal Appeal Reports (Sentencing) for 2001, at page 48. The noble and learned Lord, Lord Bingham of Cornhill, the then Lord Chief Justice gave the leading judgment. He said that while it is permissible to impose a community sentence on an individual nearing the end of a custodial sentence imposed on a previous occasion, that should only happen where the period remaining before release from custody is,
"so short as to be in practice minimal".
The amendment raises the question of whether it would be better for Parliament to build on this decision in Fontenau and to enable the courts to defer the operation of a community order until the offender's release from custody for the other offence, where that release is just a few months ahead. For the purposes of the debate on my amendment I have chosen a period of 12 months, although I realise that this may be too long and that a shorter period may be considered more appropriate. It really is simply a probing amendment.
What is suggested in the amendment might be more effective than the court imposing a very short consecutive custodial sentence, perhaps only of a few days, for the new offence simply because the offender is already in custody. I stress that the amendment deals solely with cases where the court would ordinarily have imposed a community sentence for the new offence, but is precluded from doing so because the offender is actually in custody for that other offence. I beg to move.
Baroness Scotland of Asthal: I reassure the noble Baroness that Amendment No. 161A is not necessary. That is the only basis on which I shall not accept it. Its
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effect can already be achieved under the current law. Where an offender is convicted on two or more indictments, whether or not on separate occasions, the court must impose a separate sentence on each count. The sentences imposed may be ordered to run concurrently with each other, or consecutively, or there may be a mixture of both. The court: should indicate which sentences are imposed in relation to which counts.
Under the new framework, with all prison sentences being served partly in prison and partly in the community, all offenders will of course have a period spent on licence in the community where resettlement and rehabilitative work can be undertaken. If the court decides to impose a community sentence and orders it to run concurrently with a prison sentence, the offender will still therefore have time under supervision in the community.
There is a body of case law establishing the authority of the court to impose consecutive sentences—the noble Baroness mentioned one leading authority—on different counts on different indictments. It is therefore already possible for the court to order a community sentence to be served consecutively to a custodial sentence currently being served as proposed under the clause. I hope that with that reassurance the noble Baroness will feel comfortable in withdrawing her amendment.
Baroness Anelay of St Johns: I welcome that assurance. I shall obviously check that that is the understanding elsewhere. The noble Baroness said it with such authority that I am sure it must be, but I shall look carefully at it. At this stage, I beg leave to withdraw the amendment and make it clear to the Committee that I shall not move Amendment No. 161B.
Amendment, by leave, withdrawn.
Clause 141 [Passing of community sentence on offender remanded in custody]:
[Amendment No. 161B not moved.]
Clause 141 agreed to.
Clause 142 agreed to.
Clause 143 [Community order for persistent offender previously fined]:
Baroness Anelay of St Johnsmoved Amendment No. 161C:
Page 87, line 11, leave out "three" and insert "two"
The noble Baroness said: In moving Amendment No. 161C, I shall speak also to Amendment No. 161D. Clause 143 gives courts the power to order that persistent petty offenders who have been fined on at least three previous occasions should be sentenced to a community sentence even though such a sentence would not otherwise be justified given the seriousness of the latest offence. Again, these are probing amendments. Amendment No. 161C reduces the number of previous occasions from three to two. and Amendment No. 161D from three to one.

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The obvious question I pose as a result of these two contradictory amendments is: why three previous occasions? I beg to move.
Lord Carlisle of Bucklow: I welcome the Bill's emphasis on community service. Perhaps I may ask the Minister a question. Community service has been going through rather a rough time. What is the position at the moment? Have more orders been made? Clearly, it is desirable that the courts should make them, as the Bill makes clear, where appropriate.
Baroness Scotland of Asthal: I do not have the figures with me, but I shall certainly write to the noble Lord. We are trying to create better-targeted community sentences which, frankly, have greater teeth. Therefore, the public will have more confidence that they do the work which we know they can in terms of reform, rehabilitation and reparation.
The noble Baroness asks why three and not two occasions? Defining a persistent petty offender for the purposes of this clause as one who had been sentenced to a fine on two or even one occasion, rather than on three previous occasions, would lead to a much greater number of offenders being caught by the provisions. I suppose it almost goes that once is a mistake, twice is somewhat careless, but three times tends to indicate a pattern. So the figure three was alighted upon as being perhaps an indication that the person has been given an opportunity to make a mistake, an opportunity to consider it again, but the third time he should be unlucky.
Not only would that be the case—I am not being entirely flippant about it because we have to consider what this approach may lead to—but we are very conscious of the concern that it should not lead to a large up-tariffing of sentences. That would also be very costly for the probation service to deal with. It has to concentrate on those offences which are of a more serious nature. We think that the limit of three previous convictions is a better one.
Much of the offending caught by this provision is minor—for example, low-level public order and minor road traffic offending—and of a kind that would only warrant a community sentence where a clear need for such a penalty is identified. Such a need is unlikely to arise unless persistency is clear. We believe that two previous offences would be insufficient to reach the threshold and one would certainly not reach an acceptable level of seriousness. It is really for that reason that we think that this is the most appropriate way forward.
Earl Russell: If the Minister has to make that point again, she might find it useful to refer to the amateur archaeologist who reported having discovered two post holes which were in a straight line.
Baroness Anelay of St Johns: These are probing amendments. I am grateful to the Minister for her clarificatory response. Towards the end she referred in
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particular to the sentencing of road traffic offenders. I had that in mind, given the response of her colleague Mr Hilary Benn in another place when he was then Under-Secretary of State, although today we learn that he is in the Cabinet. His response on a similar occasion was to talk about occasions not convictions. I was worried when he referred to three previous occasions being taken into account as a guideline for a persistent offender, that in road traffic offences there may be one conviction on one day which covered several occasions. I was not sure from what he said how the Government were approaching that form of sentencing. Today the Minister has confirmed the issue: it is the conviction not the occasion. She has put right an unintentionally misleading response from her right honourable friend in another place.
My noble friend Lord Carlisle of Bucklow was right to raise the question that he posed on community orders. It goes to the heart of the issue. We are all trying to ensure that prison sentences are used only when absolutely necessary, for the minimum number of occasions. We will certainly look at the matter in detail in future. We are all trying to ensure that community sentences are the only recourse. I reassure my noble friend that we will have the opportunity later to debate in some depth the issue of the government resources that, I hope, are to be made available for all the community sentences imposed as a result of the Bill.
Amendment No. 252C, which relates to Part 14, will be led by my noble friend Lord Bridgeman, who is on the Front Bench at the moment. We thought that it was right to table that amendment at the end of the Bill so that we can take into account everything that has been debated. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 161D not moved.]
On Question, Whether Clause 143 shall stand part of the Bill?
7 p.m.
Lord Goodhart: First, I seek clarification on a point arising out of the previous debate. It relates to the application of Clause 143 to minor traffic offences. Is it possible that Clause 143 could be applied to offences that do not otherwise carry a sentence higher than a fine? As I read it, Clause 143 could not apply unless the offence carried a punishment more serious than a fine, and that you could not simply apply it when there were three successive fines—assuming, of course, that they had all been paid.
We are concerned about Clause 143 in principle. Our concern is shared by the Bar Council and the Howard League for Penal Reform. The Bar Council says that Clause 143 could act as a green light to those who are minded to lock up people for minor offences. It has urged the courts to stop seeing an automatic route through the prisons for the non-payment of fines, whereas this clause provides that route.

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The Howard League is also very concerned about the collapse of the fine as a tool of the criminal justice system, with fines having fallen by a quarter between 1996 and 2000.
We object to Clause 143. We will not necessarily take the matter further, but we wish to make clear at this point our serious concerns.
Baroness Scotland of Asthal: We do not propose to substitute any term of imprisonment for fines. Fixed penalties for offences such as speeding, for instance, are not convictions by a court so they do not count for the purposes of Clause 143. Payment of a fixed penalty discharges any liability. I can see that the noble Lord is puzzled—I am responding to the first comment that he made about fines.
Lord Goodhart: Perhaps I am ignorant of the fact. Although I am aware that there are fixed penalties for parking offences, I understood that the punishment for moving traffic offences such as speeding—when someone is caught on camera speeding—is a fine rather than a fixed penalty. I may be wrong.
Baroness Scotland of Asthal: The situation gets complicated. The non-payment of a fixed penalty notice can result in convictions that in turn may lead to a fine that can be counted for these purposes. An offence can also be prosecuted rather than dealt with by a fixed penalty, and a fine may result. It is through that route that a fine comes about. In all other respects the position remains the same.
Baroness Anelay of St Johns: It might be helpful if we looked at the subject again on Report. In the Anti-social Behaviour Bill, the Government are introducing a significant number of new on-the-spot penalties. I am glad that the noble Lord, Lord Goodhart, raised this aspect that I had not properly considered. I give notice that we will need to consider it before Report stage.
Baroness Scotland of Asthal: It may be helpful if I write to both the noble Baroness and the noble Lord to clarify how we see the issue so as to obviate the need for the noble Baroness to return to the issue.
Baroness Anelay of St Johns: I would welcome that.
Clause 143 agreed to.
Clause 144 [General restrictions on imposing discretionary custodial sentences]:
[Amendment No. 161E not moved.]
Lord Goodhartmoved Amendment No. 161EA:
Page 88, line 7, at end insert—
"( ) In considering whether to pass a custodial sentence under subsection (2), the court must take into account the impact of a custodial sentence on any dependent children for whom the offender is responsible."
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The noble Lord said: The amendment is grouped with Amendment No. 161EB. Amendment No. 161EA would require the court, when passing a custodial sentence under Clause 144(2), to take into account its impact on any dependent children for which the offender is responsible. The amendment was tabled as a result of a briefing by the Royal College of Psychiatrists, which said that there should be an additional provision to that effect. It said that the matter should be included in a pre-sentence report. It further states that underlying the proposal is the principle that the punishment is of the individual offender and should not adversely affect innocent third parties, particularly vulnerable children. The provision would also be of particular relevance to the increasing number of imprisoned women.
It is obvious that a custodial sentence of a mother with young children could have a very serious effect. At its worst, that effect could stay with those concerned for the rest of their lives. The issue ought to be in the Bill. It is a factor that ought to be taken into account, as it is at present, no doubt, by courts considering the possibility of imprisoning mothers with young children.
Amendment No. 161EB provides that,
"the overriding principle should be to reserve the use of custody for dangerous sexual and violent offenders and seriously persistent repeat offenders".
The amendment was tabled as a result of briefing by the Prison Reform Trust. It points out that the Explanatory Notes on the Bill state under the section headed "Part 12: Sentencing":
"The provisions will be implemented as part of a strategy which will aim to ensure that custody is reserved for dangerous sexual and violent offenders and seriously persistent repeat offenders, and that the benefits of community supervision are made available for more offenders".
The Prison Reform Trust recommends that an assurance be sought that this strategy should be developed and implemented swiftly and to a timetable. It also believes that the legislation would be strengthened if the principle were included in the Bill. In support of its views, my noble friends and I have tabled Amendment No. 161EB in our name. I beg to move.
Viscount Colville of Culross: I hope that the noble Baroness, Lady Scotland, will not accept either of these amendments. As the noble Lord, Lord Goodhart, said himself, Amendment No. 161EA is something that any court should take into account and give proper consideration to. Mitigating counsel would be in grave dereliction of duty if that point were not made.
On Amendment No. 161EB, there are a number of very serious offences of dishonesty that certainly ought to be visited by a prison sentence on a suitable occasion. I recently had some experience of food safety cases in which the most horrendous behaviour could lead to extremely serious poisoning of anyone who ate the food, and in which a large sum of money was being made by the offender. I do not think that the categories put forward by the noble Lord, Lord Goodhart, in

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Amendment No. 161EB cover the ground. I would have thought that the courts should not be constrained in this way.
Lord Carlisle of Bucklow: The shortest speech that I could make would be to say that I heard what the noble Viscount, Lord Colville of Colross, said and I agree. I welcome the clause to the extent that it makes clear that prison should be used only when the offence is serious and no other form of penalty is justified. I share the views expressed by the noble Viscount. As far as Amendment No. 161EA is concerned, I would have thought that it was obvious that, when one examines all the circumstances, one should take into account the position of the family and matters of that nature. In areas such as those, I was emboldened to say earlier that the Bill was very verbose. It often states matters that are accepted as perfectly sensible and obvious sentencing guidelines that do not need to be included in the Bill.
The second amendment, Amendment No. 161EB, would leave out every form of offence of dishonesty, fraud, major larcenies, people who stole money from elderly ladies and all sorts of other offences. One type of offence, by its very nature, cannot be said to be more heinous than another offence without knowing the facts of each individual case.
That brings me back to what I said earlier. I agree that sentencing is a matter for the judge who sees the people before him, knows the facts and knows the seriousness of the offence. As far as possible, we should leave him the widest discretion within the general framework set out by Parliament.
7.15 p.m.
Baroness Stern: Briefly, I support Amendment No. 161EA despite the wise words of the noble Viscount, Lord Colville, and the noble Lord, Lord Carlisle of Bucklow. I agree that, in a different environment, it would be right for these matters to be left to the discretion of the judge or magistrate. However, when almost every circumstance is being set out in legislation, it is an omission that we are not drawing the attention of sentencers to the effects of imprisonment on the carers of children. Men are sometimes the sole carers, but they are usually women, so the effect of a prison sentence on women is much greater.
The harm caused by the imposition of a custodial sentence on women with young families can be enormous. The crime-creating effects of such a sentence can be great and can quickly cancel out any crime reduction that might be achieved by the prison sentence. The break-up of the family can lead in the long term to serious social disruption. In most of the cases for which women come before the court, a demanding community order would be a completely adequate response. Although in principle it would be desirable for the courts to be trusted in these matters, since most other matters are being set down, the fact
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that this is not makes it likely that sentencers will not believe that we felt the matter to be as important as I believe it to be. I support the amendment.
The Earl of Listowel: I look forward to the Minister's response. I have listened to the debate and feel very concerned, as do we all, about the harm caused to young children when they are separated from their mothers. I am no expert in this area and experts have spoken, so I simply look forward to her reply. Perhaps she could also tell us something about the problem of location. I understand that, because of the size of the prison population, it is often difficult to keep prisoners within close reach of family members. Will she assure the House that, in the case of principal carers, every effort is made to ensure that they can be kept within close reach of their families, especially when young children are involved?
Baroness Scotland of Asthal: I hope that I will be able to satisfy everyone. I wholeheartedly agree with the comments of the noble Viscount, Lord Colville of Culross, and the noble Lord, Lord Carlisle of Bucklow, in resisting the amendment. However, I also say to the noble Baroness, Lady Stern, and the noble Lord, Lord Goodhart, that I take on board their comments about the need to consider the position of the carer. I understand the sentiments expressed by the noble Baroness about the consequences that may flow from a mother being removed from young children when an alternative form of sentencing might be appropriate.
I hope that the noble Lord and the noble Earl, Lord Listowel, will be comforted that that is precisely the sort of issue that should be dealt with by the Sentencing Guidelines Council. It can help the judge or sentencer—lay or professional—by inviting them to take into consideration those factors that will most help them to come to a just resolution. Amendment No. 161EA would fall happily within the framework.
On Amendment No. 161EB, I say to the noble Lord, Lord Goodhart, as has already been said by the noble Lord, Lord Carlisle, and the noble Viscount, Lord Colville of Culross, the circumstances of a case can vary so widely that it would be impossible to be prescriptive in the principles. Prescribing principles in such a way would not be helpful. I respectfully suggest that the best course would be to leave matters to guidelines and the good judgment of the sentencer who hears the case.
Lord Goodhart: I am grateful to the Minister for what she said about Amendment No. 161EA. It may be that guidelines are the proper place for such consideration. I am also grateful to her for the recognition that this is an extremely important consideration that would need to be taken into account in all appropriate cases when sentencing.
It is clear that I have no support for Amendment No. 161EB in your Lordships' House. Indeed, I can see the force of the arguments. In that case, the amendment will not trouble this House again. I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.
[Amendment No. 161EB not moved.]
Clause 144 agreed to.
Clause 145 [Length of discretionary custodial sentences: general provision]:
Baroness Anelay of St Johnsmoved Amendment No. 161F:
Page 88, line 20, leave out "the shortest" and insert "such"
The noble Baroness said: Clause 145 makes provision about the appropriate length of custodial sentences and replaces the current provision in Clause 80 of the Powers of Criminal Courts (Sentencing) Act 2000. The Government have made a slight but, perhaps, important change to the wording.
At present, the statute states that the length of a custodial sentence must be,
"for such term…as in the opinion of the court is commensurate with the seriousness of the offence".
Clause 145 changes the words "for such term" to "for the shortest term". In Committee in another place, the then Under-Secretary of State, Mr Hilary Benn, stated that the alteration in the wording was,
"a deliberate change".—[Official Report, Commons Standing Committee B, 4/2/03; col. 780.]
What he did not do was to explain what the deliberate change was and how it had been arrived at. This is an opportunity for the Government to put that omission right.
My question is a lesser one: what will be the effect of the change to "the shortest term" on sentences passed for a deterrent effect? By definition, they are longer than those that would ordinarily be passed without the need for deterrence. I beg to move.
Lord Carlisle of Bucklow: When we debated Clause 135, the Minister chose not to answer my question about whether the words,
"must have regard to the following purposes of sentencing"
were right or whether we should consider them again. I think that it was with particular regard to the combination of Clauses 135 and 145 that Justice suggested that there could be a possible contradiction in the Bill. How can we be sure that a sentence is for,
"the shortest term … that in the opinion of the court is commensurate with the seriousness of the offence",
if, at the same time, the court must have regard to the deterrent effect on others? There is a possible conflict of principles. As Justice said, we should look again at the words "must have regard" in Clause 135(1).
Baroness Scotland of Asthal: I apologise to the noble Lord for not dealing with his point on Clause 135. It is the view of the Government that the phrase "must have regard" is appropriate. The noble Lord suggested the phrase "shall have regard".
Lord Carlisle of Bucklow: I suggested "have in mind" or "bear in mind".
Baroness Scotland of Asthal: The importance of Clause 135 is that the court must take into account and
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"have regard to" the purposes of sentencing in determining the appropriate sentence. That is not in conflict with Clause 145. In having regard to all those purposes, the court can still, in deciding the length of sentence, consider what the shortest term should be, taking those factors into account. They are not in conflict; they are complementary and helpful. A range of possible lengths of sentence may be considered by the court. The clause directs it to consider the shortest term. The Bill invites the court to consider the shortest term, in taking all those factors into consideration.
The noble Baroness is right to say that, in Clauses 144 and 145, we have chosen deliberately to move away from the formulation used in the Powers of Criminal Courts (Sentencing) Act 2000. We have retained the principle that a custodial sentence must be imposed only when the offence is so serious that,
"neither a fine alone nor a community sentence can be justified for the offence".
We wanted to reinforce the point that a custodial sentence should be used only as a last resort. Similarly, in Clause 145, we have said that the length of the custodial sentence should be for the shortest time,
"commensurate with the seriousness of the offence".
We would not want to revert to the wording of the Powers of Criminal Courts (Sentencing) Act, as proposed in Amendment No. 161F.
With that, I hope that the noble Baroness will Find that she has had a clearer, if not a better, explanation.
Baroness Anelay of St Johns: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 145 agreed to.
Clause 146 [General limit on magistrates' court's power to impose imprisonment]:
Lord Goodhartmoved Amendment No. 161FA:
Page 88, line 27, leave out "12 months" and insert ".51 weeks"
The noble Lord said: In moving the amendment, I shall speak also to Amendments Nos. 161FB and 161FC.
Clause 146 has caused a good deal of controversy. It has caused concern in a large number of organisations that have put forward arguments about it. We are not proposing that the increase in the power of sentencing from six months to 12 for a single offence should be removed. We are not proposing that Clause 146 should not stand part of the Bill. However, we are concerned about two things, both of which relate to the custody plus system.
I shall leave Amendment No. 161FA for the moment and go on to Amendments Nos. 161FB and 161FC. We are concerned that the increase in the power of sentencing should not come into effect until the provision for custody plus has also come into force. Once the provisions for custody plus have come into force, they will cover any sentence shorter than exactly 12 months imposed by a magistrates' court. It would be highly undesirable to have an interim period, during which magistrates could, say, impose a sentence of nine months, which would have to be served, as opposed to

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what would happen under the custody plus system. At the end of such a period, magistrates' courts would lose that power, and we think that, during the interval, magistrates' courts, flexing their muscles, would be tempted to impose sentences of imprisonment of longer than six months that would have to be served.
With Amendment No. 161FA, we want to go further. If the Bill becomes law as it stands, it will bring into force the increased sentencing powers and the custody plus powers. The effect of the Bill will be that magistrates' courts will be able to avoid custody plus by sentencing somebody to a sentence of exactly one year.
That is inappropriate and liable to lead to an increased use of the power to sentence to 12 months. Magistrates unwilling to impose custody plus, but who might otherwise have imposed a sentence of six months, might say, "Oh well, we will have to put it up to 12 months because if it is for anything less it cannot be served and will be caught by the custody plus rules". Therefore, magistrates courts' powers should be limited to a sentence of 51 weeks—that is, less than 12 months—so that magistrates cannot escape the custody plus rules by imposing a 12 month sentence; the maximum would be 51 weeks which would not be caught by custody plus. Otherwise, we, and a number of organisations, fear that there will be an increase in the jail population because of magistrates increased use of the 12-month power of sentencing. I beg to move.
Baroness Scotland of Asthal: I understand the sentiments and anxiety of the noble Lord, Lord Goodhart, which we do not share. We want magistrates to make full use of the new sentence of custody plus—with which the noble Lord has indicated that he is in agreement—up to its limit of 51 weeks, as well as to be able to impose a sentence of 12 months custody, which will be served half in custody and half under conditions in the community. Therefore, we do not wish to restrict the increase to 51 weeks as proposed in Amendment No. 161FA.
In Committee in the other place very similar amendments were tabled. A final decision on when sentencing reforms will be implemented has not been made. However, it is likely that elements of sentencing reforms will be introduced in phases over several years to allow the system to absorb new measures gradually without too much disruption and to enable the correctional services—in particular, the probation service—to reach the capacity necessary to implement them successfully. In particular, custody plus will create a large additional caseload for the probation service, which will need to be well planned so that it can deliver what is intended in a seamless way between the correctional services.
Therefore, we do not wish to be restricted by Amendments Nos. 161FB and 161FC, which would limit the introduction of new magistrates sentencing powers until the new short custodial sentences are available. Furthermore, the increase in magistrates' sentencing powers is closely tied in with the changes to allocation of offences between courts set out earlier in
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the Bill, both of which seek to encourage magistrates courts to retain more cases. We want to introduce these at the same time. Although I understand the noble Lord's anxiety, I hope that the way in which we propose introducing the provisions will meet his concerns without needing to have the restrictions proposed in the amendments.
Lord Goodhart: I am grateful to the noble Baroness for her reply. We shall consider what she said when deciding whether to bring these amendments back. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 161FB not moved.]
Clause 146 agreed to.
Clause 147 [Consecutive terms of imprisonment]:
[Amendment No. 161FC not moved.]
Clause 147 agreed to.
Lord Davies of Oldham: My Lords, I beg to move that the House do now resume and, unless any noble Lord objects, that further consideration of the Fire Services Bill be postponed until after the Unstarred Question. In moving this Motion, perhaps I may suggest that we start the Fire Services Bill no earlier than 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Obesity
7.35 p.m.
Baroness Finlay of Llandaffrose to ask Her Majesty's Government what action they are taking to tackle the threat that obesity poses to the health and well-being of the nation.
The noble Baroness said: My Lords, the World Health Organisation has called obesity a "global public health epidemic". The United Kingdom is a leader. I am most grateful to all Peers who wish to contribute today and to the many organisations concerned which have contacted me. Knowledge is ahead of policy. I call on the Government to take drastic action to improve the health of all. Obesity results from an excess of intake over energy expenditure—a simple equation. It is not just a health issue, but concerns farming and food production, food and drink marketing, transport, sport, education, employment and social security.
Obesity is when the body mass index—weight in kilograms divided by height in metres squared—is more than 30kg/m². In the UK, obesity has trebled in the past 20 years. Now, more than one in five people are obese. Almost twice as many are overweight with a body mass index between 25 and 30kg/m². Obesity shortens life by, on average, nine years. The Asian population is particularly vulnerable to developing

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diabetes at lesser levels of obesity. In the Afro-Caribbean population, obesity seems to foreshorten life by up to 20 years.
High levels of sugar may create an addiction-like endorphin response in the brain, making the obese person crave more sugar. High sugar foods can cause rebound relative hypoglycaemia, simulating hunger. These responses may account for the improved behaviour seen in some children when their diet is modified to exclude added sugar.
Obesity is linked to hypertension, heart disease, breast, colon and other cancers, osteoarthritis, back pain, asthma, sleep apnoea, diabetes, blindness and other conditions. But obesity, more prevalent in the lower socio-economic groups, is also related to low self-esteem and so may account for a large hidden morbidity in depression, failed social interaction and relationship breakdown.
When ill, obese people are harder to lift and, being less mobile, are at greater risk of pressure sores and skin infections. Obesity is a type of malnutrition; wounds heal poorly after surgery, particularly as the fat has very limited blood supply. If critically ill, venous access and artificial ventilation are much more difficult. The NHS is struggling as it is. Can we cope with the increased burden from obesity-induced illness? Current estimates are that obesity cost the NHS more than £2.5 billion last year, but that is rising exponentially. Many NHS staff are obese; the others avoid confronting obesity in patients, fearful of complaints and being politically incorrect.
We face 20 per cent of our NHS budget being consumed in treating diabetes and its complications by 2010. That doubling, from the current 10 per cent expenditure, represents the excess burden obesity will create as more people go on to get type 2 diabetes and develop it at an earlier age—even in childhood. Their constantly high sugar intake seems to create insulin resistance in the peripheral cells and literally exhausts the ability of the pancreas to produce enough insulin.
More than 10 per cent of six year-olds and more than 17 per cent of 15 year-olds are obese. These children are eating themselves to an early death. One in five eats no fruit, over half eat no green vegetables at all and most two to 12 year-olds eat biscuits, sweets or chocolates at least once a day. Low socio-economic status is associated with lower vitamin and mineral intake, making obese youngsters malnourished. They graze on high-sugar, high-fat and/or high-salt snacks and carbonated drinks, coupled with taking very little exercise.
Fad diets abound, offering a quick fix to obesity and profit to their proponents. Dietary change must be sustained change in input—food and drink—matched with energy output through exercise. Perversely, current food labelling is so precise about calories that it fails to be user-friendly. Many foods contain added sugar that is not identified on the label and hydrogenated fats to maintain their shelf-life. Food labelling needs to be simplified. The unit system used for alcohol is easily grasped and could be applied to
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food packets, portions, snacks and carbonated drinks. A ubiquitous unit of energy system that is simply understood would inform and educate about intake.
The consumption of fats and added sugars in the diet is increasing steadily. More people eat out, with 20 per cent of snacks and meals taken outside the home. A double cheeseburger with large fries and a chocolate milk shake would give me a staggering 90 per cent of my daily energy requirements. Portion sizes for snacks have increased. Many chocolate bars and crisp packets are actually bigger than they were in the 1980s. Not surprisingly, snack food manufacturers target the vulnerable—children—through TV advertising, collectable toys and so forth. Other links such as partner-profits from school and workplace vending machines result in subtle manipulation to promote the snack or fast food to the captive audience, completely undermining any healthy eating campaign. The placing of such vending machines in schools and hospitals truly raises ethical questions.
The UK adult population is decreasingly active. Exercise burns off excess energy and also protects against osteoporosis, which is another looming epidemic facing the NHS. The report, Sport and Active Recreation in Wales, points to a "physically illiterate" nation. The National Assembly for Wales aims to increase the proportion of under 65 year-olds taking adequate daily moderate exercise such as walking, dancing and cycling from a meagre 28 per cent today to match Finland's excellent 70 per cent by 2023.
Can we afford the increasing sickness absence—18 million days in 1998—from obesity-related problems? The Government's new Activity Co-ordination Team is part of an important strategy to improve opportunities for physical activity. Schools must go back to providing at least two hours of physical education per week. Many playing fields were sold off, yet children need activities like swimming, athletics, dance and ball or contact sports. They need space to play and to be able to learn to play together.
But that is not enough. Children must be able to travel to and from school safely on foot, bike, skateboard, roller-blades or scooter. What about a national network of dedicated cycle routes to and from every school, like bus lanes, that are cyclist-only in the morning and the mid to late afternoon? Every parent knows that the most dangerous points around schools are caused by those parents who drop and fetch children by car with flagrant disregard for any on foot or on a bike. No one will be coaxed out of a car. The routes have to be closed to cars to make them safe.
No one will stop the snacks being made and promoted, but they do not have to be sold in schools. No one will stop the computer games and TV that keep our youngsters super-glued to the sofa, but sport for youngsters and safe, car-free routes to schools will increase exercise. The excellent report, Tackling Obesity, may have underestimated the resistance to change. We cannot afford the costs that obesity poses.
7.44 p.m.
Baroness Pitkeathley: My Lords, I am most grateful to the noble Baroness, Lady Finlay, for giving us the opportunity to debate this important issue. In my early life, I cannot remember seeing anyone who was obese. I saw a few who were perhaps a little overweight, but no more than that. But when I recall what we used to eat, that seems somewhat surprising. We ate cooked breakfasts, huge dinners, cakes, puddings and believe me, the native Channel Island food is pretty hearty. Guernsey gache, Guernsey beanjar and other specialities do not come cheap in terms of calories.
The answer was simple. We ate heartily with a fat and calorie-laden diet, but of course we also worked very hard physically. Growing tomatoes and flowers requires a great deal of physical effort. The ability to dig and to lift heavy weights was possessed by and expected from even the smallest children. No excuses could be offered, especially not the excuse of having too much homework, although I certainly tried.
No one in my family had a car and we walked everywhere. If it was too far to walk, we went by bike. If it was too far to go on a bike, I suppose that we did not go. But on an island only 9 miles long, nowhere was too far for a bicycle. However, that was a long time ago and life is very different now, as many noble Lords will no doubt remind us.
There are only two ways to tackle the major problem of obesity. The first is to change people's eating habits and the second is to encourage them to take more exercise. I should like to cite some examples of how funding from the National Lottery is contributing to bringing about some of these important changes.
First, we at the New Opportunities Fund are addressing the problem by trying to re-educate people's eating habits. In England, 65 primary care trusts have been funded to develop projects to back the Government's campaign to ensure that people eat at least five portions of fruit and vegetables a day. The areas were chosen because of their poor levels of health and social deprivation. Some £10 million has been made available by the fund to support community-based initiatives to promote the consumption of fruit and vegetables.
Our other programme is school fruit. In England, 860,000 children aged between from four to six are now receiving free fruit during the school day through a £42 million school fruit scheme. By the end of this year, 10,000 schools will be taking part. I have visited several of the schools participating in the scheme and spoken to children and their parents. Although we always assume that children want to eat only sweets and crisps, this may be because little else is on offer. It is extremely pleasing when parents report that children are now asking for apples or bananas to be included in their lunch boxes. Even a small change such as this will make a big difference to the future health of these children and their families.
The largest of the New Opportunities Fund programmes tackles the obesity problem from the other side, encouraging children to take more exercise and to develop the habit of exercise in early life. Our
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£750 million programme is focused on schools in the most disadvantaged areas of the United Kingdom and aims to provide space and facilities to give children opportunities for exercise, whether for traditional games or other activities such as swimming, dance, yoga, tai chi or any activity that gets them moving. At weekends and during the evenings, these facilities are to be open to the local community so that pupils can share activities with their families and so try to engage adults as well.
I believe that the Olympic bid currently being made has the potential to make our whole population more health-conscious and more interested in taking exercise. Example does work: notice how many more people use the local tennis courts around the time of Wimbledon. However, it is vital to give as much encouragement to community sports and activities as to the pursuit of excellence in sport. Not everyone can be a champion, but all can be encouraged to eat a little less and move a little more.
7.48 p.m.
Lord McColl of Dulwich: My Lords, I too thank the noble Baroness, Lady Finlay, for introducing this debate and for dealing so expertly with many aspects, which I shall not repeat. I remind noble Lords that in 1939, one-third of British people were either underfed or ill-fed. The introduction of rationing changed that almost overnight. It was the most amazing experiment in public health. Suddenly everyone had exactly the right amount of food to eat, but not enough to become obese. It was a high-roughage, low-fat, low-sugar regime. Because it was not like the purified junk food of today, it satisfied the appetite. The health of the nation was probably at its peak. As children we used to point the finger at anyone who was obese, because the only way they could be overweight was to be on the black market.
The answer to obesity does not lie in fancy and fad diets which insist that people have a large breakfast or that certain foods must be consumed at a certain time of the day, along with other fashions such as the Atkins diet. They have no scientific basis to support them.
The obese person needs to want a permanent change in lifestyle and to then move on to the high roughage, low fat, low sugar regime with five portions of fruit and vegetables. This has to involve the whole family. The advice of a nutritionist is of great assistance in providing a tailor-made diet for a particular person.
My advice to one obese man whose wife was the right size was that he should eat the same quantity of food as his wife. Such are the pressures of family life that he remained the same weight but she started to put on weight.
How often we hear patients say, "I am not eating anything at all, doctor, but I keep putting on weight". Sometimes they are speaking the truth for they are consuming too many calories in what they drink. Three cocktails such as mai tais contain 1,000 calories; a bottle of red Bordeaux, 700; a pint of beer, 270; a pint of orange juice, 270 calories. Alcohol is not only a poison but contains many more calories than people imagine.

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Exercise is very important for health generally but, unfortunately, it does not seem to have much to do in reducing the weight of people who are already obese. The tendency for the obese person who starts exercising is an increase in appetite. Obese people need to want a change of lifestyle. We are what we eat.
7.51 p.m.
Lord Shutt of Greetland: My Lords, I thank the noble Baroness, Lady Finlay of Llandaff, for introducing the debate. I, too, have noticed that this topic has galloped to the top of many agendas. It clearly has something to do with food and drink.
Why should I speak about this? Some 35 years ago I worked with a young lady in an office in Halifax. She is now in her mid-50s and has suffered all her life from obesity. She has contacted me in recent times and asked for help in getting her story to others. She has written up her story—more than 200 pages—and she refers not only to her medical condition but to her social conditions and the stigma that has been put on her over the years.
She has had to work out for herself how to solve the issue and undertake her own trial and error diets. The conclusion she reached for herself is that she should eat a normal diet but eat after dark. This is because she believes she is descended from a hunter-gatherer. She has passed this on to others and she believes they have been helped by it.
She prays in aid a television programme—"That'll Teach 'Em" on Channel 4—in which youngsters who were given a 1950s diet lost weight. That was the traditional diet of those days, not the fancy foods that have been suggested.
She has not been able to get the medical profession to take an interest in her story. I suspect that there are many and varied ways of tackling obesity because so many people are so different. Does the Department of Health have a system for gaining ideas and evidence from sufferers? If not, will it look at all possible solutions, including those from sufferers themselves?
7.53 p.m.
Lord Chan: My Lords, I congratulate my noble friend Lady Finlay on securing this important debate. My focus will be on children, particularly young children in Wirral who were studied by a team from the University of Liverpool and the Wirral Health Authority. I declare an interest as a non-executive director of Birkenhead and Wallasey NHS PCT, which now has responsibility for most of these children.
Researchers Bundred, Kitchiner and Buchan analysed the routine assessment of six-week-old babies and the physical examination of pre-school children aged three to four years in 1989 and in 1998. Almost 43,000 children were included and their body mass index recorded. In a population with normally distributed weights, in 1989 about 15 per cent of children would be overweight and 5 per cent would be obese. Ten years later, 24 per cent of our children were overweight—a 60 per cent increase— and 9 per cent were obese, a 70 per cent increase. These
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findings are highly significant because they are among pre-school children, showing that obesity in our young children is doubling in a decade instead of in the 20 years observed in the USA.
The risk of obesity in adulthood increases among children who are overweight above the age of three years regardless of parental weight. More than 60 per cent of overweight children have at least one additional risk factor for cardiovascular disease such as raised blood pressure, raised blood fat levels or increased insulin levels, and more than 20 per cent have two or more risk factors. In the USA, more than 30 per cent of new cases of type 2 diabetes—a disease of overweight adults— occurs in children who are obese.
Childhood obesity is associated with poverty. In the USA in the past 30 years, obesity is associated with the consumption of fast foods, pre-prepared meals and fizzy drinks.
Parents strongly influence the food intake and activity of young children. Breast-feeding seems to lower the risk of obesity. Children who eat meals with their family consume more fruit and vegetables, fewer fizzy drinks and less fat in food both at home and away from home. Television advertising of food directed at young children may help explain why reduced TV viewing reduces rates of weight gain.
Opportunities for spontaneous play, particularly outside the home, will increase the physical activity of young children and also reduce the amount of time they watch TV. For this to become common again in our communities, the safety of children has to be improved by better play equipment and supervision to prevent adults who prey on children having access to them.
Will the Minister support families living in poverty through reliable information and practical help to feed their young children with health-promoting food, both at home and in schools? Should we not improve their environment so that children can play in safety and remain healthy?
7.57 p.m.
Baroness Rendell of Babergh: My Lords, I am grateful to the noble Baroness, Lady Finlay of Llandaff, for introducing this much-needed debate.
It has been said that when the United States sneezes the rest of the world catches a cold. To put it more appositely, when the United States overeats, or eats unwisely, the rest of us, particularly the United Kingdom, it seems, put on weight.
By 1996, Americans were spending 40 per cent of their food expenditure on meals eaten away from home. A child who never eats at a fast-food restaurant and does not eat fast food at home averages an intake of less than 2,000 calories a day, while one who eats fast food three or four times a week consumes 2,700 calories a day.
The Soil Association report released today shows that children in our schools are fed largely processed food, laden of course with fat and sugar, and twice as much is spent on prison meals than on school meals— approximately 60p per meal per head against 30p.

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Combined with, in some cases, a total lack of exercise, this is leading to obesity in our children. They watch television to an excessive extent and are taken everywhere by car, partly due to the perhaps quite natural reluctance on the part of parents to allow them to walk to school and back for fear of the danger on our streets.
Obesity, as we have heard, is not merely disfiguring and exhausting to the sufferer. In the United States physicians have seen the phenomenon of a 15 year-old dying from an enlarged heart. Osteoarthritis of the knee is another likely result of gross overweight, as is type 2 diabetes, leading to the chance of gangrene and sometimes amputation, retinal damage and possibly to blindness. A study at the University of Arizona has shown that obese girls between the ages of six and 11 were seven times more likely to develop asthma than those of normal weight.
To redress the apparently relentless slide towards widespread obesity, steps will have to be taken. It is not enough continually to warn us of the consequences of excessive fat and sugar consumption.
Two areas spring to mind in which some control should be exercised. For a start, some form of restriction should be exercised in the matter of fast-food brochures from local restaurants and manufacturers. At least one of these is put through my front door every day of the year. One recently was the real thing—a vacuum-packed slice of deep pan pizza. Children pick up these fliers and samples and are of course more affected by them than their parents are. Supermarkets should be discouraged from placing sweets and chocolates by their checkouts specifically to tempt children queuing with their parents. Sweets, chocolates, crisps and fizzy drinks might carry health warnings along the lines of those on cigarette packets to alert parents, if not children, to snacks that can damage health. My noble friend Lady Pitkeathley outlined the schools' fruit scheme. Bananas and apples at supermarket checkouts, instead of sweets, might not be too unrealistic a concept.
Finally, we might have a campaign that explains that healthy eating itself leads to weight loss. As the noble Lord, Lord McColl, pointed out, there is no need for diets, fashionable fads or regimens; healthy eating may be effective on its own.
8 p.m.
Lord Moynihan: My Lords, the World Health Organisation recently stated:
"Obesity is the dominant unmet global health issue, with western countries topping the list".
Children are most at risk from obesity, and 15 per cent of all British citizens under 15 are regrettably overweight or obese. It is a long time since the initiative successfully advocated in the early 1960s in America by President Kennedy, who stated:
"We do not want our children to become a nation of spectators. Rather, we want each of them to be a participant in the vigorous life".
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Regrettably, many of those initiatives, which were copied here, are no longer to be found. Sadly, we, like the Americans, have moved away from a culture of broadbased participation in physical education and sport to fitness as an individual pursuit.
In Fat Land, Greg Critser says:
"Unlike the old P.E., where group participation and peak performance were goals, the underlying premises of the new fitness boom were individualistic and medical. The risk of private gyms and celebrity exercise videos was a natural outgrowth. One exercised for specific ends. Many are, of course, purely cosmetic ends. Others are health-based … people exercise to 'reduce health risks' or 'feel better about oneself".
Regrettably, in the States and to a great extent here, as Critser says,
"the new unspoken truth was simple… fitness was to be purchased, even if you were a child".
There are major challenges for our sedentary society, a society that too often does not believe that it has time to exercise and where too often television and the gameboys eat away time that is better spent participating in sport and recreation. In 1999, French exercise scholar Jean-Francois Gautier wrote:
"Children are naturally very active, but their parents are restraining them. Children are only allowed to be physically active if adults decide it is appropriate".
That is our duty. That is the point that I would make to my noble friend Lord McColl—we need to focus on children to prevent obesity.
What should we do? We should consider a more comprehensive system of fitness testing for all our children—first and foremost for medical reasons but, secondly, to identify talented young sportsmen and women within a universal framework. That should be radical, new and far reaching, and include clubs, schools, local authorities, governing bodies and government. We must minimise the element of luck in our policy for developing young sporting talent while, simultaneously, we must encourage an awareness of diet and the value of fitness among our young people to prevent obesity in the future.
8.3 p.m.
The Countess of Mar: My Lords, I am grateful to my noble friend for introducing this debate tonight for very good reasons. Looking at the list of speakers, I note that, with one exception, none of them could be described as obese. Indeed, I doubt that any of them could be described as even overweight. The exception is me, but I can assure your Lordships that I will soon be joining your ranks.
A few months ago I started to get very painful knees. I went to see my GP, who offered me painkillers. I am what might be called a non-compliant patient. As I was leaving, the doctor congratulated me on remaining a non-smoker and asked whether I had gained the statutory stone as a result. "Yes", I said, "and the rest". As I drove home, I realised that he had planted a seed in my mind. I resolved to be kind to my knees.
I visualised 14 kilo bags of sugar, for that is the amount of excessive weight that I was carrying. No one with any sense would spend all day carrying that amount of sugar, would they? That was in June. I have

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now dropped 12 of those bags of sugar, and I still find it hard to believe the side effects. I have no more pain in my knees. My breathing has improved enormously, I am full of energy, and no longer feel tired without good reason. I am comforted by the thought that my not entirely healthy cardiac system does not have to work as hard as it did although, with the extra energy, it is now being healthily exercised. I am delighted that I will be saving the NHS huge amounts of money. There is also the added bonus in that I am able to get into clothes that I have not worn for years.
My husband, who was also carrying rather too much weight, saw how well I was and has lost all of his excess. The noble Lord, Lord McColl, said that we should involve the family. We both used the much-maligned Atkins diet and we intend to stick to the principles for maintaining our weight outlined by Dr Atkins.
We all have different metabolic rates, different tastes and purses of varying depth. It does not matter what diet the overweight adhere to as long as it works and they do not get into the vicious cycle of feast followed by famine. We get fat because we regularly eat more food than our bodies need for repair and energy. What we who tend to grow outwards need is the motivation to lose weight. Perhaps we need more GPs like mine.
8.6 p.m.
Baroness Greengross: My Lords, I welcome the debate, and should like to congratulate my noble friend for introducing it.
As we have heard, adult obesity rates have tripled in 20 years, and the National Audit Office estimates that the average obese person pays for their obesity with nine years of their life. We do not always recognise that obesity is as lethal as tobacco smoking, but we really need to do so.
I often speak in this House about the tremendous implications of rising longevity for our society as a whole. Today is one of those rare occasions when the issue provides the potential for a reduced lifespan rather than a longer one. Some of today's young people may well not live as long as their parents, just at the time when many other young people can expect to live longer than ever before.
What will be the impact on health inequality of the obesity that is growing among us? Will those inequalities be made worse by it? I believe that they may well be. On Wednesday this week, the International Longevity Centre in this country will be considering, in a conference, young people's attitudes to the new longevity and how they will cope as a minority among older people. It is also important to look at this issue from a whole lifecourse perspective. One of the speakers at the conference will be Howard Stoate MP. I pay tribute to the huge amount of campaigning that he has undertaken on this issue.
In America the International Longevity Center has also done much work in this area. Its president, Dr Bob Butler, distributes pedometers to encourage
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people of 50 and over to walk. He asks people to take 10,000 steps every day—that is about five miles. Perhaps we ought to do the same here.
What the WHO has termed "globesity", as we have heard, must be checked. An article in The Economist of 27th September stated that the "obesity industry" is "big business", for example, hand-held computers at restaurants calculating calories and fat in food, not the bill! However, it is not a solution for pharma and biotech companies to find a "cure" for obesity or to discover ways to mitigate the effects of over-eating; we need to tackle the underlying causes. That is why the role of government in issuing public health messages, and the kind of initiatives that the noble Baroness, Lady Pitkeathley, outlined, are important. They have done a great deal to promote healthy eating. However, more could be done to pull all this work together— especially work between the Department of Health and the DfES—for example, the report that has been mentioned about the quality of school food which describes it as "muck off a truck", better food labelling, more PE at school and consideration of a ban on advertising directly to children, as has occurred in Sweden.
In conclusion, we must take a lifecourse approach. As Howard Stoate said in another place,
"wrong lifestyle choices during childhood and adolescence can prove devastating in later life".—[Official Report, Commons, 22/1/03; col. 130WH.]
We all want disability-free later years; obesity can render that impossible and condemn us to a later life riddled by disease and pain. It must be checked.
8.10 p.m.
Lord Rea: My Lords, my noble and professional friend Lady Finlay has chosen a topic that is very much in the news. The large number of speakers, reducing each of us to a mere soundbite—though a very wise one—is an indication of its importance. The initiatives taken already by the Government are well described in the evidence of the Department of Health to the House of Commons Select Committee on Health, which is at present inquiring into this very topic.
So far, however, the evidence is that despite these worthy government initiatives, the epidemic is relentlessly and steadily increasing. I suggest that, apart from the fact that changing people's dietary habits and lifestyles is a long-term task, like altering the course of a 100,000 tonne tanker, the Government's efforts are being undermined by a skilful barrage of influences persuading people, particularly children, to go in the wrong direction nutritionally. The importance of getting children on to the right track is that childhood habits persist into adult life—I echo the noble Baroness, Lady Greengross—as does the likelihood of suffering from the chronic diseases associated with obesity.
The Jesuit saying—forgive me if I have it wrong— goes:
"Give me the boy and I will give you the man".

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I think that there are several other versions of that saying, but that is the most succinct. If anyone doubts the importance of getting children on to the right path early—and here I am talking about healthy lifestyles rather than a particular approach to the deity—I recommend that they read A Lifecourse Approach to Coronary Heart Disease Prevention to be published by the National Heart Forum next week, the outcome of its three-year Young @ Heart programme. Here I declare an interest in giving this plug because I am honorary secretary of the National Heart Forum. I am sure that the Department of Health will pay attention to that publication, not least because it substantially funds the National Heart Forum.
This lifecourse approach is why the research review on food advertising to children, commissioned by the Food Standards Agency and published two weeks ago, is so important. It is a very careful, wide-ranging and systematic study. The authors, based at Strathclyde University, reviewed every relevant study published in English throughout the world since 1970. It reached the following summary conclusions. First, there is a lot of food advertising to children—measured, not simply anecdotal. Secondly, the advertised diet is less healthy than the one recommended by the Department of Health. That, of course, is an understatement typical of "the modest style of the whole report. Thirdly, children enjoy and engage with food promotion. Fourthly, food promotion is having an effect, particularly on children's preferences, purchase behaviour and consumption. This effect is independent of other factors and operates at both brand and category level. The report continues,
"This does not amount to proof of an effect, but in our view does provide sufficient evidence to conclude that an effect exists. The debate should now shift to what action is needed and specifically to how the power of commercial marketing can be used to bring about improvements in young people's eating".
I hope that the FSA and the Government, when they come to give their response, will decide to take firm action to achieve that final aim, even if that means tighter controls on the food and advertising industry which may require regulation and legislation. Only in that way are we likely to turn the corner in tackling this unpleasant and dangerous epidemic. It will not be sufficient to rely on voluntary agreements, as we found to our cost with the tobacco industry over many years. There are many working in the food industry who would welcome such regulation, since it would require them to use their promotional expertise to market healthy alternatives and it might avoid the looming danger of possible litigation against the industry.
8.14 p.m.
Lord Clement-Jones: My Lords, this has been an excellent if rather over-snappy debate, I suspect. The noble Baroness, Lady Finlay, has set out the obesity crisis extremely well. What can we do about it? First, we can encourage children to take more exercise. In that context, the Government's local exercise action pilots—designed to give all school children two hours of sport per week—must be welcomed. By 2006,75 per
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cent of all school children should have two hours of sport per week. Presently, only one secondary school child in three is achieving that. However, let us not stop at two hours per week; that is not particularly ambitious. In Sweden, school children are involved on average in 10 hours of sport per week. So let us not over-congratulate ourselves.
Diet is the second issue. The Government certainly need to do more on this issue, particularly with schools, to promote a balanced diet and healthy eating and to counteract the weight—as the noble Lord, Lord Rea, mentioned—of advertising by food manufacturers of what are often sugary and fatty foods. The average 11 to 16 year-old is eating fewer than 13 portions of fruit and vegetables per week. Consequently, we must welcome the national school fruit scheme and the five-a-day programme. However, as the noble Baroness, Lady Rendell, pointed out, we are not doing very well in mainstream nutrition. The Soil Association's report today showed that prisoners are eating more nutritious food than school children.
Thirdly, we need proper food and exercise education in schools. A survey by the Doctor Patient Partnership found that one quarter of children eat sweets and crisps for breakfast. What we want, as the noble Baroness, Lady Pitkeathley, described, is some really good projects in schools. Recently, I came across a project developed by Linda Dawson called "Poppy and Co" which is designed to educate children positively on all aspects of food, fitness and the psychology of eating. I hope that that type of project can become part of the national curriculum and aim particularly at key stage 1 and 2 children.
Fourthly, a particular responsibility of government must be to ensure that children do not receive mixed messages in schools. Particularly unhelpful, I thought, was the endorsement by Richard Caborn, the Sports Minister, of the Cadbury "Get Active" programme. Questioning of an Education Minister in this House on that subject elicited the response that that is a,
"good example of a carefully crafted corporate social responsibility initiative".—[Official Report, 7/4/03; col. 10.]
I disagree.
It is hardly surprising that in these circumstances there is a call to ban advertising of junk food for children and for health warnings to be placed on crisps and sweets. Three-quarters of children's television advertising is for food, and 95 per cent of those advertised products are high in fat, sugar and salt. Like the noble Lord, Lord Rea, I very much welcome what the FSA is doing on this subject and the review by Gerard Hastings and others at the University of Strathclyde. I very much look forward to their conclusions and recommendations to government. We then need a Europe-wide solution to the question of children's advertising of food.
Finally, we need more training for doctors, practice nurses, health visitors, midwives and school nurses who have a direct interface with parents and school children in this area. That is extremely important.
8.18 p.m.
Lord Skelmersdale: My Lords, I shall not repeat the horrendous Figures that the noble Baroness, Lady Finlay, gave us in her excellent introduction to this debate. Suffice it to say that the Government have come very late on to the scene and we are now faced with a tidal wave of obesity threatening an epidemic of secondary diabetes, to say nothing of more strokes, heart attacks and a host of other medical conditions. Unless we can crack it, the NHS will be swamped. Noble Lords are quite right. The reason for obesity is simple: too many calories ingested and not enough expenditure thereof.
So how can we change people's habits? The Opposition's position is that it all comes down to education, and that means education at all ages and positions in work and in society. At government level, we intend when in office to create a public health commissioner to highlight problems across government departments. Education and sport are obvious examples, but less patent are the responsibilities in home affairs, work and pensions, trade and industry and the NHS, as the noble Lord, Lord Clement-Jones, has just said. The Prison Service has been mentioned and even Defra should be involved, with its sponsorship of country parks.
At the other end of the scale, education starts in the home. Every parent conducts potty training, presumably because to neglect this means more work for the parent. Would that we could say the same for diet training. Frequent answers to, "I'm hungry, Mummy" are, "There's a biscuit in the tin" or "There's a sweet in the jar" rather than "There's an apple in the bowl"; or, as my noble friend Lord Moynihan, whose comments on sport were most apt, might say— although I have not asked him—"Dinner's nearly ready. Where's that skipping rope Aunt Ethel gave you for Christmas?". Anything for a quiet life, I suppose. There is a lack of any thought by parents, who themselves were not educated in this when they were at school.
What is the Minister's answer to this? Indeed, what are the Government doing about the time bomb of obesity in general? The Health and Social Care (Community Health and Standards) Bill will start its grind through the Committee stage in your Lordships' House tomorrow. It seeks to reform and replace the wartime welfare food schemes. The extension of the provision of tokens for milk and vitamins to mothers and their children under five to include fruit, vegetables, cereal-based food, and so on, is clearly welcome. So, too, if my understanding is correct, is the extension of the scheme to families with children on means-tested benefits. That is all very well, but the Government do not appear to have grasped the problem in the rest of the population. Do they know— indeed, will the Minister tell us—what proportion of these children suffer from being overweight, compared with those not on means-tested benefits?
The health action plan mentioned by the noble Baroness, Lady Rendell, may well seek to promote healthy eating, but will it actually work? Based on our
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experience so far of changing people's eating and health habits, the prognosis is not good. To my mind, the most effective long-term solutions are the various initiatives in schools to improve the diet for the children including, as has been said, the five-a-day programme, to increase intake of fruit and vegetables.
Regrettably, my time is up, but the basic question we must ask, to misquote Professor Higgins, is, "Why can't the English teach their children how to eat?"
8.22 p.m.
Lord Warner: My Lords, we are all grateful to the noble Baroness, Lady Finlay, for raising this important issue of action on obesity today, and for her excellent analysis.
The Government take this issue very seriously indeed. How could we not, when the Chief Medical Officer has described obesity as a veritable health time bomb? I welcome also the attention being given to obesity by the Health Select Committee. I will attempt to persuade the noble Lord, Lord Skelmersdale, that we have a strategy for tackling the problem.
The latest health survey for England shows that around 22 per cent of adults -over a fifth of the adult population in the country—are obese. Studies also suggest that obesity is increasing in children, as many noble Lords have suggested. Many children eat more than the recommended levels of fat and sugar. Obesity is responsible for 6 per cent of all deaths, compared with the 10 per cent that are caused through smoking. I must point out to the noble Baroness, Lady Greengross, that obesity is not quite as lethal—yet—as smoking. It costs the NHS and the wider economy at least £2.5 billion a year.
The UK is not alone in experiencing a rapid increase in obesity. Virtually every developed country has shown increases in obesity over the past two decades. Having just come back from a holiday in the USA— weighing, 1 should add, less than when I went, all due to the Warner diet—my unscientific observation is that the US literally has a bigger problem than we do.
I want to emphasise that the Government are committed to tackling the problem of obesity in terms of both prevention and management. We have a range of measures in place or in prospect across health priority areas. Many of the initiatives I will outline are in England, but I am aware that substantial action is also being taken by devolved health departments across the United Kingdom. I can assure the noble Lord, Lord Shutt, that these initiatives are based on the evidence of individual experience.
Of course, the Government recognise that prevention is the best long-term approach to dealing with obesity, particularly in children. We know that the increase in the number of overweight and obese people is most likely to have been due to adverse changes in lifestyle, as the noble Lord, Lord McColl, and others have suggested. We know that the majority of people in the United Kingdom do not adhere to sensible recommendations on physical activity. Only

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four out of 10 men and three out of 10 women undertake enough physical activity for it to be beneficial to their health.
Furthermore, more than 50 per cent of adults have high fat intakes, between 40 per cent and 50 per cent have high intakes of added sugars, and around only 15 per cent eat the recommended five portions of fruit and vegetables each day. Government action, therefore, focuses on improving the overall balance of the diet and increasing physical activity levels.
We also recognise that the opportunities that people have to develop a healthy lifestyle may be influenced by their environments. For example, some communities do not have easy and ready access to affordable fruit and vegetables, or pleasant open spaces to walk and play in. As the noble Lord, Lord Chan, said, the link between poverty and obesity is strong. Therefore, much of the action that we are taking seeks to improve access to healthy choices. We have to recognise, however, that it is not always easy to persuade people to change their lifestyles when attractive influences, including advertising, point them in other directions. Accusations of state nannying are all too quickly used to describe sensible public health messages.
Two new initiatives will be key in fostering healthier lifestyles. The Department of Health is leading on the development of a cross-government food and health action plan. It will pull together the issues that influence what we eat and will address food production, manufacture and preparation, access to healthier food choices, and providing information for consumers about healthy eating and nutrition.
In terms of promoting physical activity, the DCMS Game Plan strategy will lay the foundations to deliver the Government's sport and physical activity objectives. Through Game Plan, the Government aim to increase participation significantly in sport and physical activity, and to reflect the significant health benefits that people can enjoy by participating in such activity. We accept many of the arguments put forward by the noble Lord, Lord Moynihan.
A cross-government activity co-ordination team, jointly led by the Department of Health and the DCMS, has been established to take that work forward. As a former chairman of the London Sports Board, I assure noble Lords that the work is not only about more Olympic champions, although we would all like more of those; it is about driving up physical activity participation rates, particularly in some of our most deprived communities, through concerted action at a national level and better local partnerships. From my experience, I can say that the need for better local partnerships, particularly in London, is a major issue.
We recognise that tackling obesity is not a job for a single government department in isolation. Joint Food Standards Agency and Department of Health work with industry is particularly relevant. A current priority area is our work with industry to reduce salt levels in processed foods, in order to reduce salt intake across the United Kingdom. Discussions on fat and
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sugar levels in food will follow. It is clear that not nearly enough progress is being made by the food industry, and average salt intakes have actually increased since the 1980s. We have to do better.
We are holding an industry stakeholders' meeting later this month to discuss further action that can be taken. The Food Standards Agency is also addressing the issue of consumer understanding of food labelling, including tackling confusing claims and advertising, such as "fat free". I am sure that it will look carefully at the thoughtful ideas of the noble Baroness, Lady Finlay, on the issue.
Our action on obesity addresses all stages of life. Prevention starts at birth. Breast-fed babies may be less likely to become obese later in life than formula-fed babies, and breast-feeding may also help their mothers return to their pre-pregnancy weight. As around only 70 per cent of women breast-feed at birth, we want to increase the proportion of babies breast-fed at birth by two percentage points each year over the next three years.
We are moving ahead on commitments to reform the Welfare Food Scheme under the Health and Social Care (Community Health and Standards) Bill. I hope that noble Lords will support those changes, which will impact on at least 800,000 mothers and children. Our Healthy Start proposals will ensure that children in low-income groups have greater access to a healthy diet, as well as providing increased support for breast-feeding and wider parenting issues.
We know that increased consumption of fruit and vegetables not only helps to reduce risk of heart disease and some cancers, but may help the maintenance of a healthy weight. As the noble Baroness, Lady Pitkeathley, said, as part of the five-a-day programme to increase access to and intakes of fruit and vegetables, the New Opportunities Fund has provided £10 million in funding for community initiatives targeting more than 6 million people in England. Community initiatives such as provision in local shops, setting up food co-ops, local campaigns and initiatives in school and workplace canteens have previously been shown to result in the lowest consumers of fruit and vegetables increasing their intakes by around one portion a day. This may not sound a lot, but this level of increase can lower blood pressure and reduce the risk of stroke and heart disease.
Providing consistent messages to children on healthy lifestyles is vital. I assure my noble friend Lord Rea that we will carefully consider the Food Standards Agency's recently published thoughtful review on the promotion to children of foods that are high in fat, sugar and salt and assessing the policy implications. We strongly encourage the industry to act more responsibly when promoting to children foods that could have health risks.
A range of action, already implemented in schools, aims to encourage a healthy diet, increase physical activity and provide consistent messages to pupils. For example, the NOF is providing £42 million to expand the national school fruit scheme. More than 800,000 children in four regions are currently receiving free pieces of fruit and the scheme should reach all four to

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six year-olds in England by 2004. Here I want to pay tribute to the work done by my noble friend Lady Pitkeathley and her colleagues at the NOF.
Other activities include the development of national nutritional guidelines for school meals, the Food in Schools programme and the National Healthy Schools programme, in which two-thirds of schools are now involved. I recognise that there are still concerns about school meals, but the Food Standards Agency is working with the DfES to look at how standards in schools are operating.
Increasing levels of physical activity, particularly among children, is a key priority across government and substantial investment has been made to date. For example, £459 million is being invested by DfES and DCMS to transform physical education, school sport and club links over the next three years. The work with clubs is important in giving many more people access to physical activities and sports. This programme is already proving successful, with 220 school sport co-ordinator partnerships now operational.
We inherited a situation where many school playing fields had been sold off, but we remain committed to preserving them. Last year, we published new planning guidance for open space, sport and recreation.
It is essential that we increase levels of physical activity for all ages across the population. In partnership with Sport England and the Countryside Agency, we have set up a programme of nine local exercise action pilots to test community approaches to increasing physical activity among priority groups. For example, Great Yarmouth primary care trust is working with a range of partners, including its local council, education action zone and a private leisure company to deliver weight-management, walking and community outreach programmes.
Finally, in addition to the action I have outlined, primary care has a particularly important role in the prevention and management of obesity. Local action is being delivered through national service frameworks and the priorities and planning framework, which specifically addresses obesity.
In a new project, the NHS will distribute 10,000 pedometers, already used in the USA, to primary care trusts in areas of high deprivation as a motivational tool to encourage increased walking. The National Institute for Clinical Excellence, in conjunction with the Health Development Agency, is developing guidance on the prevention and management of obesity. This will supplement the NICE guidance already available on surgery and prescribing of obesity drugs Orlistat and Subutramine. Guidance is also available on exercise referral and identifying and treating children suffering obesity.
This has been a good if slimline debate on a critically important subject. I have tried to pick up the concerns of many noble Lords. I hope that I have assured the House that the Government are committed to reversing the current trend of increasing overweight and obesity. Even with the action being taken, we are far from complacent because success depends on
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people changing their lifestyles in large numbers. The Government will continue to keep under active review what further action can be taken.

Fire Services Bill
8.34 p.m.
Lord Evans of Temple Guiting: My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Evans of Temple Guiting.)
On Question, Motion agreed to.
Clause 1 [Powers of the Secretary of State]:
Lord McCarthymoved Amendment No. 18:
Page 2, line 18, at end insert—
"(5A) Where the Secretary of State submits proposals under subsection (3) and the negotiating body or a member of it submits to him within the requisite period a reasoned statement not accepting the proposals, the Secretary of State shall not make the order until the process of assistance is exhausted.
(5B) In that process the Secretary of State shall consult with ACAS with a view to the appointment, after consultation with the members, of assistance from a person or body for the purpose of mediation, conciliation or arbitration, as seems to him and the Service appropriate, in order to resolve the issues without delay.
(5C) Where the issue is the subject of arbitration, the Secretary of State shall take the result of that arbitration into account as guidance before making any further proposals."
The noble Lord said: My Lords, we return to a debate that we raised in Grand Committee because we did not receive satisfactory replies at that stage. This amendment has, in effect, three limbs. It suggests that when proposals are met by a reasoned rejection on the part of either one or both of the parties, then the Secretary of State should consult ACAS, the official conciliation machinery, in order to see whether it can help by introducing some form of third-party dispute resolution—conciliation, mediation or possibly arbitration. The amendment merely suggests that if that happens and if, as a result of the initiative taken by the Secretary of State, there is some positive movement, either in terms of mediation or arbitration, then that should be taken into account before the order is issued.
This is, in effect, our final attempt—on Report, at least—to introduce into the consideration of the problems which arise from the Bill the possibility of what I prefer to call an "independent assessment". But the essential nature of the kind of independent assessment that we suggest in the amendment is that it takes place after the introduction of the Secretary of State's orders.
When we debated this matter previously, the noble Lord, Lord Rooker—I am sorry that he is not in his place—said, "Well, of course, we have built into this process all kinds of measures of conciliation, mediation and arbitration. We even have" (and it is true) "a very forward-looking provision whereby we can have ex parte"—that is, one party—"mediation

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and arbitration. How could you be more progressive than that?" He said, so far as I remember and he is not here to correct me, "We are a listening government".
A Noble Lord: Where is he?
Lord McCarthy: I do not know where he is but never mind. He said, "We are a listening government. We have listened to what you say and we tell you that all these provisions exist".
However, when this Government say that they listen, I am reminded of Falstaff. The House will remember that Falstaff listened but he did not know it. He said that he suffered—he was rather proud of it— from the malady of not marking; in other words, he failed to reply to the arguments. He failed to provide any additional data which showed that the arguments put forward against him were wrong. He replied in the way—I believe that this is very much the Government's way of replying to points that we have put forward in this debate—that the late Lord George-Brown used to do. He used to say that he reacted to criticisms with what he called "ignoral". The Government are absolutely dominated by the philosophy of ignoral. They ignore all our suggestions; nevertheless, we shall try again. I want to make several points in relation to this amendment.
First, we are not suggesting any interference in the conciliation, mediation and arbitration procedure that exists before an order is introduced. Of course, there are perfectly adequate procedures at present. As far as I know there is nothing at all—maybe the Minister charged with the debate will tell me—that happens after an order is introduced. The moment an order is introduced, the moment the Secretary of State gets on his high horse and says that there shall be an order, there is no appeal; there is no conciliation, no mediation, no arbitration—nothing. We are talking about what happens after the Government have introduced their order.
My second point—I shall be pleased to be corrected— is that I believe that this makes the fire fighters unique. I shall say why and in what way I believe that they are unique. One can take the view, as different countries in different ways have and as to some extent this country has, that there are certain groups of workers in the economy whom we do not want to see involved in industrial disputes; we do not want to see them on the stones. Their work is too essential so we restrict or discourage their general right to strike because they are an essential service. As they are an essential service, industrial action is particularly unnecessary and counterproductive. I accept that.
We say that about the Army; we say that about the police; we say that about the Prison Service; we say that to an increasing extent about health workers, doctors, nurses, paramedics and people of that kind in the health service. To some extent we say that about top civil servants; we say that about judges; we even say it about members of the Government and about the Prime Minister. He is not expected to take industrial action to get decent wages. In a sense, such
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people are above and beyond that; they are in a special category; they are essential to the work of the body politic. I accept that.
However, almost all have some alternative, some substitute, some extra something to compensate them for the fact that society does not expect them to use industrial action. The most common factor is that they have a form of pay review, an independent injection of outside expertise, in which the Government make their case, in which the union makes its case and in which the pay body—we have an increasing number of them—takes the decision and says that it believes that the Government and the union are wrong and that the reasonable view is somewhere in the middle.
Where industrial action is inappropriate we have what I call some form of independent assessment. We have that because we are a civilised society. If one does not give that to workers who have no right to use crude industrial power—many of those workers would have a lot of crude industrial power if they used it—they will be either slaves or outlaws. They would be slaves if they had no alternative but to buckle down and do whatever the Government said, or if they took action that essentially was unlawful, they would be outlaws.
In the Bill—I say this with great concern and regret as it is being done by my own party—the Government are making the fire service slaves or outlaws. They are offering the fire service no alternative. Before the chopper comes down, before the final decision of the Secretary of State—who knoweth all things—we are asking that the Secretary of State should explore the possibility of some kind of independent assessment.
Let the Government reject our amendment, but let them defend what they propose. Whoever may or may not be present today, let the Minister's representative say why it is not reasonable for me to suggest that if they do not accept this amendment they are saying to the fire service, "You are either slaves or outlaws". I beg to move.
Lord Campbell of Alloway: My Lords, I wish to ask the noble Lord a question for clarification only. Does he agree that the amendment could not apply in an emergency situation such as a terrorist attack and that the problem is in the devil of the drafting of Clause 1?
8.45 p.m.
Lord McCarthy: My Lords, I accept what the noble Lord says about the devil of the drafting of Clause 1. He and I have crossed swords and yet we have agreed about the various defects in the drafting of Clause 1. The problem is that the Government will not say in Clause 1—and we have moved many amendments— what is and what is not an emergency situation. Sometimes when the absent Minister is present he says, "Well, of course, we do it in emergency situations only". Then he says that even the previous strike was not an emergency situation. So we do not know where we are.
The noble Lord is quite right. If there were a proper definition of what was an emergency situation, as against a situation where there is no definition, the

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problem would be easier to solve. Nevertheless, even within that context and even in the emergency situation, I do not see why, if the Government are aware of what is happening, they should not at that point allow for some form of independent assessment. After all, they are not committed to this. Our amendment commits them only to exploring the possibility of consulting ACAS. If one says, "Well, it is such an emergency situation that something has to be done", the noble Lord may be right.
However, I would argue that in 99 per cent of cases, if the Government know what is coming, if they have good intelligence, there is plenty of time before introducing this kind of extreme legislation to have some form of third party assessment.
Lord Wedderburn of Charlton: My Lords, I wholly agree with my noble friend in his moving of the amendment, but I am not sure I agree with him on the emergency point. The amendment is in connection with Clause 1(3). It applies to orders changing or modifying or fixing the conditions of service. If there is an emergency, it is terribly difficult to envisage that the Secretary of State will come forward with a desperate effort to change the conditions of service. In my understanding, the emergency point has been raised in connection with orders under Clause 1(1)(b).
My noble friend asks for third party assistance on the idea that there is a problem about emergencies on this amendment which relates to the situation where the Secretary of State proposes to change the conditions of service. And he is right.
Lord Evans of Temple Guiting: My Lords, I am unable to accept Amendment No. 18 in the name of my noble friend Lord McCarthy and other noble Lords for the same reason we were unable to accept Amendment No. 17 when the House sat on 18th September.
My noble friend Lord Rooker made it clear at Second Reading, in Grand Committee and again in the earlier stages of Report, that the powers in the Bill need to be used to draw a line under any future dispute.
The negotiating bodies have every right to enter into arbitration. It is written into the constitution of the NJC. Clause 1(3) allows the negotiating bodies an opportunity to scrutinise any order proposed by the Secretary of State, and the Secretary of State must consider their views before proceeding. However, to suggest that the negotiating body should then return to arbitration on this new issue is one bite of the cherry too far.
Amendment No. 18 would prolong any dispute with further arbitration. If the Secretary of State imposes that arbitration on the negotiating body while it is at loggerheads, it is unlikely to prove a helpful manoeuvre in progressing talks—not to mention the difficulty of deciding when the process of assistance has been exhausted. I must conclude that Amendment No. 18 would effectively prohibit the Secretary of State from
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making orders under Clause l(l)(a). As a result, I respectfully request noble Lords to withdraw their amendment.
Lord McCarthy: My Lords, if those are the kind of arguments that we are getting from the Government, I quite see why the noble Lord, Lord Rooker, is not here. The fact is that nobody will delay anything. It is up to the Secretary of State to decide when he wants to use his powers. Constitutionally, in terms of what is in the agreement between the union and the employer— about which the Government have made great play— arbitration operates before the Secretary of State issues an order. I would be very happy if the Government interrupted me and said that I was wrong, and that they are committed to a situation in which the Secretary of State could issue an order but it would be shelved immediately and he would wait if a party wished to try third-party dispute resolution. I do not think that they will say that. None of us believes so.
By the time the Secretary of State finally screwed up his courage and decided to issue one of his orders—I admit that he would be reluctant to do so, as it is a very dangerous and stupid thing to do—he would want to get it over very quickly. He would not want third-party dispute resolution. In particular, he would not want independent assessment—I stress the words "independent assessment". I do not believe that we would get arbitration in that context. I do not even know whether I would want arbitration in that context; I want a shaft of light.
I have spent a long time mucking about with third-party dispute resolution. One thing has come through to me: as the late Hugh Clegg said, if they ask for us they do not know what they want, and we do not know what they need anyway but, by God, we will find out. That is the heart of third-party dispute resolution. The parties come because they are in a mess and both sides have exaggerated. The Government and employers have exaggerated the benefits of the settlement, and the unions have exaggerated the justifiability of their claims. Someone must sort out such disputes.
I am not asking for arbitration; I am saying that it is sensible. If the Secretary of State reached the stage where he was forced to use those powers, I would feel sorry for him. It is essential to have a little conciliation and mediation at the point where he puts forward his proposals and finally decides how it will be, poor man. Independent assessment would be extremely useful for him, and it would provide elementary justice for the workers concerned.
I am not going to get anywhere tonight, so with great respect I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hanhammoved Amendment No. 19:
Page 2, line 22, leave out "two years" and insert "eighteen months"
The noble Baroness said: My Lords, I moved this amendment in Committee. I am well aware that the sunset clause was inserted into the Bill during the proceedings in the other place. The sunset clause provides two years. I cannot imagine that, at that

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stage, any one had the slightest idea how long this Bill was going to be on the Floor of this House. Indeed, they might have had other thoughts had they known. However the period of two years that was inserted in the other place will be quite a long time considering when this Bill finally receives Royal Assent. The Bill is designed to deal with one specific set of purposes only—the current dispute. Although I appreciate that there is a timetable for this dispute to be finally resolved, two years could be reduced to 18 months. Therefore, I beg to move.
Lord Campbell of Alloway: My Lords, I support this amendment. Eighteen months appears to be wholly apt for a temporary emergency measure that the Government do not wish to use—I am quoting from what they have said—save in a state of emergency that applies when there is no state of emergency to impose conditions of service by decree unless Clause 1—the devil of it—is amended. It is not a good Bill, so the shorter its life the better.
Lord Evans of Temple Guiting: My Lords, as we have heard, Amendment No. 19 is intended to shorten the sunset clause period from two years to eighteen months. The other place decided on the two-year period for reasons that, despite the time that has passed since that amendment was made, are still valid, and which I will reiterate here.
A time limit of 18 months would last until about March 2005, which sounds a long time away. It would probably be sufficient time for any Bill introduced next Session to implement White Paper policies to receive Royal Assent, although if the parliamentary passage of such a Bill were prolonged, that could not be guaranteed. However, even if the new legislation were in place, the changes on the ground that it would instigate would not take place overnight. It makes sense to have a two-year period so that we can ensure that the modernisation agenda is well under way before the powers in the current Bill lapse. We would rightly be open to criticism from this House if, in 18 months time, we found ourselves facing further disruption and frustration, but arbitrarily, without the powers in this Bill.
A two-year time limit gives greater certainty. The Government consider a two-year limit to be the right period of time. I hope, therefore, that the noble Baroness will withdraw her amendment.
Lord Wedderburn of Charlton: My Lords, before my noble friend sits down, I followed his explanation and I appreciate all that he says about the programme, but why did the Government not include the sunset clause at the beginning? Were there other reasons for accepting it, or is the Minister's explanation the reason for having second thoughts?
Lord Evans of Temple Guiting: My Lords, the explanation that I have given is the reason why the Government accepted the sunset clause.
Baroness Hanham: My Lords, I remain dismayed at the Minister's response, as I was before. From what he said I can only assume that there will be another fire services Bill in the Queen's Speech because, after all, we have had only the White Paper so far. What has been said confirms that we will be reconsidering the fire service once the Queen has made her pronouncements of the Government's future programme.
The sunset clause is still too long. I do not necessarily agree with the Minister about the need to keep it going until a further fire services Bill has been passed, for all the reasons that we outlined at an earlier stage in our deliberations—to which we will no doubt return later. We have concerns about the Bill in its entirety, so the less time that it is on the statute book the better. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9 p.m.
Baroness Turner of Camdenmoved Amendment No. 20:
Page 2, line 24, at end insert—
"(7A) Except where one of the conditions in subsection (7B) applies, an order made under this section which has not previously been revoked shall automatically lapse on the day after three months have elapsed from the end of that two year period.
(7B) The conditions are—

(a) where an order made under subsection (l)(a) sets or modifies conditions of service to be more favourable than the conditions previously applying for any fire brigade member and do not reduce the pay and allowances payable to any person, or

(b) where an order has given directions under subsection (l)(b) which the Secretary of State, after consultation under subsections (3) and (4) above, declares before that day to be necessary for the reasons which he states."

The noble Baroness said: My Lords, in Grand Committee, my noble friend Lord Wedderburn of Charlton tabled an amendment the object of which was to ensure that, when the sunset clause operated, an order made under the provisions of the Bill that had not previously been revoked would lapse automatically.
As my noble friend explained then, it is not much good if the Bill, if it is an Act, automatically ceases to exist, if orders made under it are allowed to continue. The amendment that we tabled in Grand Committee suggested an automatic lapse date after three months. As my noble friend said, we were not wedded to three months, but we thought that some time limit should be put on orders.
In the debate that followed, the noble Lord, Lord Evans of Temple Guiting, whom I am pleased to see on the Front Bench this evening, pointed out that it might not be a good idea for all orders automatically to lapse. What if pay rates had been raised, equipment moved or property sold? There were many changes that no one would want to reverse.
We accepted that there was validity in that argument, so we have come back on Report with a different amendment. We are again seeking a time limit on orders made under the Bill, but we stipulate that it should not have the effect of reducing pay and allowances made to any person nor apply to any order

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that the Secretary of State, after appropriate consultation, declares before that day to be necessary for reasons that he will state.
I hope that the Minister will feel that there is merit in what we are trying to do. We accept that the Bill is an interim measure and that that is guaranteed by the sunset clause. However, we want to make sure that orders made under it will also lapse after three months, except in the situations provided for in our altered amendment and referred to by the Minister in Grand Committee. After all, that is what discussions in Committee are meant for. We listened to the arguments made by the Minister, and we have taken them on board and tried to meet them with this amendment. I hope that it will be acceptable to my Front Bench. I beg to move.
Lord Campbell of Alloway: My Lords, I would accept the amendment if it were limited to a situation other than an emergency situation. However, because of the drafting of Clause 1, that cannot be. Therefore, I oppose it.
Lord Wedderburn of Charlton: My Lords, I am glad that my noble friend has pressed the amendment on the Government. It removes the farce about the semantics of the sunset clause. It has become a tradition to discuss the Bill after sunset and well into the night. Tonight, we have to do without the king of Denmark. I do not know whether that is because,
"Something is rotten in the state of Denmark".
There is something farcical about a Bill that says that it has a sunset clause but allows the Secretary of State, if he wishes, to make orders just as "rosy-fingered dawn" appears for the first time and to continue with whatever conditions and declarations he wishes to make with regard to fire authorities. Such orders will not cease to have effect unless he chooses to revoke them. The Bill is not a Bill with a sunset clause; it is a legislative phoenix that the Secretary of State has the power to make rise from its ashes at any point before the period of two years ends.
My noble friend was right: the arguments made against our amendment in Grand Committee are dealt with in the second part of this amendment. I press that on whomever is to speak for the Government. They were the only reasons given. If there are further reasons, no doubt we shall hear them. This amendment covers what was argued against it: namely, first, that the firefighters might have been given by order different and better conditions of service, which we did not want to take away. That is dealt with by the amendment. Secondly, there might be some important directions to fire authorities which must continue because of the serious, if not emergency, situation that would be created without those directions being fulfilled. That is dealt with by the amendment.
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What else do the Government want? Do they want to continue the life of the Bill in a different form for ever under orders which never cease unless the Secretary of State decides to revoke them? It is not reasonable to demand that. Clearly, the spirit of the amendment should be accepted. If the Government do not like the wording, they should tell us that they will come back at Third Reading with something more appropriate.
Lord Bassam of Brighton: My Lords, first, when we discussed some of these issues at an earlier stage, it was clear that we had gone with the notion of a sunset clause to demonstrate our good faith in respect of the arguments raised.
I turn now to Amendment No. 20, which I acknowledge responds to earlier debates on the issue. Ultimately, it is not right or appropriate to limit the consequences of orders made under the Bill in this way for the following reason. Paragraph (b) of Amendment No. 20 does not seem to achieve anything other than to add more bureaucracy since the Secretary of State can simply declare that orders about properly and facilities are necessary. If he believes it to be the case, he could declare that they are all necessary.
It is also unclear what effect the proposed amendment would have on orders made under the Bill. It does not follow that if an order lapses the changes that have taken place as a result of it must be changed back to the previous position. That would result in uncertainty and, potentially, a degree of chaos. If an order lapses, it would result in preventing changes that have not yet been implemented from taking place.
The amendment places too great a restriction on the powers of the Secretary of State to allow orders made to lapse arbitrarily. It is for that reason that we cannot accept the principle behind this proposition. I therefore invite the noble Baroness to withdraw the amendment.
Baroness Turner of Camden: My Lords, I am rather disappointed with that response, as I am sure my noble friend understands. He said clearly that the reason the amendment is not acceptable is that it would place restrictions on the Secretary of State's powers under the Bill. That, precisely, is the real reason; namely, that the Secretary of State wants to maintain powers to do what he likes without any accountability. I find that quite unacceptable. We shall need to think carefully before Third Reading.
It is unacceptable that there could be a situation in which the Act would lapse, but orders—no matter what they were like or however unacceptable they may be in the long run—would continue to exist even though the Act no longer existed. I cannot understand how that can be justified, particularly when we have tried very hard to meet the points made by the Minister when we raised this issue in Grand Committee. Of course, I shall withdraw the amendment at this time in the evening. But I am very unhappy and give notice

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that I shall consider what has been said because I think that we should return to this issue at Third Reading. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Speaker (Lord Lyell): My Lords, I advise the House that if Amendment No. 21 is accepted, I would not be able to call Amendment No. 22 because of pre-emption.
Baroness Hanhammoved Amendment No. 21:
Page 2, line 25, leave out subsection (8) and insert—
"( ) No order shall be made under this section unless a draft of the order has been laid before, and approved by resolution of, both Houses of Parliament."
The noble Baroness said: My Lords, we return again to a matter which we have discussed, but I make no apology for bringing it back. We have talked at length about the purposes and use of this Bill and it has become more apparent, as our lengthy debates have progressed, that it is possible that the Bill could be used either for an emergency or—as I think was the original intention—to draw the line under a dispute. In effect, that is what the Bill is largely all about.
It has also become clear that there will be time, if the Secretary of State decides to pursue an order, for at least some discussion and negotiation to take place on it. So this is not something that would go through in a matter of days. It is therefore not a matter that should be the subject of a negative resolution in this House. If the Secretary of State reaches the point where he needs to issue an order under this legislation then that is a very serious matter, one which should be debated in both Houses and not simply put forward for negative resolution. On that basis, I beg to move.
Lord Campbell of Alloway: My Lords, I intervene briefly once again to say that I would accept this amendment if it did not apply to an emergency situation, but under the Bill as drafted, it will do so. That would inhibit the requisite exercise of powers of the Secretary of State. Thus the same objection arises as that which I raised on Amendment No. 9.
Lord Bassam of Brighton: My Lords, two different propositions are contained in these amendments. Amendment No. 21 argues for an affirmative resolution, while Amendment No. 22 seeks a negative resolution. I shall deal with the amendments together because in a sense the kernel of the argument will be contained in my first series of points about affirmative resolution.
I know that we have been over these arguments in Grand Committee. We made it clear then, and the argument still stands, that the report published on 11th June—my birthday—by the Select Committee on Delegated Powers and Regulatory Reform considered the delegated powers contained in the Bill and found that the degree of parliamentary control over the exercise of each power was appropriate. Thus
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the expert body of your Lordships' House has made it plain that it has decided that the Government have got this right.
Perhaps I may quote from paragraph 15 of the report where it states that:
"We take the view that the delegation is appropriate. We also believe that the level of scrutiny is appropriate, taking into account, for example, that regulations governing conditions of service of the police are similarly subject to negative procedure. There is power under clause l(5)(a) to fix or modify pay or allowances retrospectively. But we note that under clause 1(6), retrospective reduction is not permitted, and that there is a 2-year 'sunset' at clause 1(7)".
This matter has already been considered by the experts and they have deemed it appropriate.
Amendment No. 22 is slightly more tempered and extends the requirement for negative resolution of either House from an order made under subsection (l)(a) to orders made under subsection (l)(b) as well. Clause l(l)(b) allows the Secretary of State to direct fire authorities in the use and disposal of property and facilities. The main reason for subsection (l)(b) is, in the case of further strikes, to allow the Secretary of State to instruct the fire authorities to give the emergency fire cover access to whatever equipment they might need to protect human welfare, a reasonable proposition in itself.
In such a situation, we would need to move quickly and it would be unacceptable for the Secretary of State to make an order that could later be prayed against. That would lead to a chaotic situation which we cannot accept. For those reasons, we reject both the approaches set out in these amendments and I hope that the noble Baroness will feel able to withdraw her amendment.
9.15 p.m.
Lord Wedderburn of Charlton: My Lords, before my noble friend sits down, I understand his second argument—namely, that they could not possibly allow time for an order made under Clause l(l)(b)—which refers to giving directions to a fire authority—to be prayed against because it would be so urgent in an emergency. If that is so—I do not believe the Minister was here—why did his noble friend resist the amendment that tried to limit such orders to emergencies?
Lord Bassam of Brighton: My Lords, I was not here and I am not conversant with the argument used by my noble friend. Our concern is that we cannot have a parliamentary procedure put in place by amendment. That would create a situation of chaos. I have made it quite clear in responding to the amendments today that that is the case. That is why we do not believe either of these amendments is right. The Delegated Powers and Regulatory Reform Committee—this is the important point—does not believe they are right either. It takes the view, as do we, that we have got the parliamentary process absolutely spot on for this particular procedure.
Lord Wedderburn of Charlton: My Lords, with respect to my noble friend, was not that point made by the Committee on orders under Clause 1(1)(a), which is what the Bill is about? That is what it was dealing with. The Minister dealt with orders under Clause 1(1)(b) and said they would only occur in an emergency. Why does he not put that in the Bill?
Baroness Hanham: My Lords, I wish to make it clear that I moved only Amendment No. 21.1 am not sure whether Amendment No. 22 will be moved but, as I have been challenged to do so by the Minister, I shall respond on my Amendment No. 21.
I am aware that the Delegated Powers and Regulatory Reform Committee agreed that this should be done under the negative resolution, but I am not sure that it was aware of any of the debate that had taken place in the House. It would clearly have understood what the Bill is all about, but quite a lot has been teased out during the course of the Bill as to the amount of time that would be available if the Bill ever had to be used, either in an emergency situation or in a "drawing the line under" situation. I am not aware whether the House can adjust the timescale so that it could discuss a resolution if it was necessarily put forward.
The Bill requires further consideration. That is the reason for bringing forward the amendment. I hear what the Minister says. For the time being, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburnof Charlton moved Amendment No. 22:
Page 2, line 25, leave out "that makes provision authorised by subsection (l)(a)"
The noble Lord said: My Lords, as the previous amendment was not passed, it is possible for me to move Amendment No. 22. To be fair, my noble friend Lord Bassam was not present at the previous discussions of this issue in Grand Committee and, indeed, on Report. I am not sure whether he is very well acquainted with the arguments and I wonder whether I should formally move Amendment No. 22 in order to give him the opportunity of adding to his response in regard to orders under Clause 1(1)(b).
He said the orders would only be needed in an emergency and that that is the reason why we could not even have a debate in which they could be prayed against. Can he tell the House the shortest possible notice time for a prayer against such an order? My understanding is that it is very short indeed. I move the amendment simply to give him an opportunity to reply. I do not want to take him by surprise. He has had time to think about it. Can he tell the House why the amendment should not be accepted? I beg to move.
Lord Campbell of Alloway: My Lords, in fairness, the noble Lord, Lord Bassam, could be unfairly confused on this. It is perfectly plain from the drafting of the Bill that Clause 1(1)(b) can be used either in an emergency or when there is not an emergency. I do not
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wish to say anything about the merits of the amendment; I wish merely to put the record right as a matter of the construction of the Bill.
Lord Bassam of Brighton: My Lords, it will come as no great surprise that I do not have a great deal further to add to the remarks that I put on the record earlier. I am grateful to the noble Lord, Lord Campbell of Alloway, for his intervention, which I saw as helpful.
I believed that I had made it plain that the legislation would not be used only in emergency; it might be used in a strike in which fire authorities must respond to emergencies. That is different in nature to being in a declared state of emergency. Parliament has, in any event, 40 days to pray against a negative resolution order. My point earlier was that that would be an unacceptable fetter on the ability of the Secretary of State to act, and could lead to a chaotic situation.
I have nothing further that I need to add to clarify the situation. If the noble Lord, Lord Wedderburn, is unhappy with what has been said, he has the opportunity to come back at a later stage of the Bill's consideration. Having heard that, I hope that he feels content to withdraw his amendment today.
Lord Wedderburn of Charlton: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCarthymoved Amendment No. 23:
Page 2, line 27, at end insert—
"(8A) In determining what it is appropriate to include in any order under this section and what appears to him to be an appropriate negotiating body, the Secretary of State shall—

(a) not require or take account of any composition, membership, representation, chairmanship or procedure other than that agreed by negotiation between the members;

(b) shall have regard to relevant Conventions of the International Labour Organisation, the European Social Charter and instruments of the United Nations, binding on the United Kingdom; and

(c) where a member of the negotiating body expresses to him reason to doubt whether an order is in terms that contravene any such Convention, the Charter or other such instrument, shall publish the grounds on which he believes the order does not involve any such contravention, and consult further with the members of that body."

The noble Lord said: My Lords, our debates are getting increasingly like a soap. Soaps keep going because nobody ever knows what anybody else ever says. People in soaps are astonished, because we have heard what has been said but they have not. So the soap staggers on. That is all right for soaps, but it does not do for this House.
I do not complain about the fact that the Minister is not here, but it is unfair on those he has left behind, who have not read all the stuff. I hope that they have read this stuff, because in discussing Amendment No. 23 I shall refer to issues that—I am afraid—we raised in Committee. The noble Lord, Lord Rooker, who was present on that occasion, gave a series of very unsatisfactory answers.

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The amendment is doing three very simple things. From the White Paper, we know that the Government are going to introduce very substantial changes in the organisation, functions and role of the fire service. They are going to determine the composition of the negotiating body in respect of what is agreed between parties; they are going to revolutionise that. The amendment is saying that they should respect from hereon in what is called in the world of industrial relations the principle of mutuality. That principle means that people respect each other and that they do not change things unilaterally—that they should mutually agree. In some ways, the most important principle in the principle of mutuality is that each side decides who represents them. Employers pick their representatives, unions pick theirs, and nobody says, "I don't like Charlie Farnesbarnes". That is an attack on the principle of mutuality—the fundamental principle that the parties select their representatives.
We say that in determining the composition of a negotiating body in future what has been agreed between the parties should be accepted and respected. No one should unilaterally suddenly demand that one of the parties do something contrary to what has been agreed. In doing that, people will be respecting the relevant conventions. If we had enough time and it was not this late hour of the night, I could recite many relevant conventions of the ILO, the European Social Charter and so on. If I did not recite all of them, my noble friend Lord Wedderburn of Charlton could recite many more. I refer in particular, as this is the way I have been brought up, to the principles and practices of ACAS, God save us. We should respect those relevant conventions and the principle of mutuality. The desire to tell the parties who they should have to represent them is contrary to many different international conventions, the European Social Charter and so on.
All we are saying in our amendment is that if you do these dreadful things, there may be a complaint on the part of one or other of the parties. We are quite open that it will probably be the union that complains if it is told that under the Government's proposals it cannot have its general secretary on the other side of the negotiating table because the Deputy Prime Minister does not like that, and that the Deputy Prime Minister or one of his minions will sit in the chair and conduct the negotiations. We are not saying that if someone complains about these appalling practices, the Government should not introduce them—we are being very modest tonight—but that they should publish their grounds for diverting from basic established principles and consult on these matters.
I have explained—perhaps I have to explain it to the Government Front Bench—why we are raising this issue at this time. I apologise to those who have heard the explanation before. We have reached this point because this amendment is a successor to Amendment No. 20 which we moved in Committee. Frankly, we were alarmed by the words of the Deputy Prime Minister when he introduced Our Fire and Rescue Service. He introduced that White Paper at the same
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time as the other place was passing the Bill. He said that it was a sensible package of reforms on industrial relations—I do not criticise the rest of the White Paper—in line with best ACAS practice. I hope that the Front Bench is listening because I want the Government to say—and if they do not say it tonight, I want them to say it subsequently—how they can defend the notion that ACAS would support any part of this nonsense. I have read everything that ACAS has published on this subject and I tell you now that there is nothing that ACAS has ever published which supports one tittle of what the Government propose to do.
I shall go on asking the Government, if I have to use Question Time to do so, to justify why they dare not say to me that ACAS ever supports any of this nonsense. I must quote the White Paper. It states between paragraphs 7.9 and 7.12–1 quote selectively but I am prepared to quote even more if the Government wish—that,
"negotiations cannot be conducted effectively by large teams"
and that in the fire service the teams are too large. Therefore, the size of the teams of worker representatives needs to be reduced. Paragraph 7.13 states:
"We envisage three separate negotiating bodies covering different groups within the present grading structure: Chief Fire Officers … middle management; and fire fighters".
I say now that a statement of that kind is intended to derecognise and to change the recognition basis of the industry. That would very easily form the basis of a successful appeal to the body which the Labour government introduced to look at attempts at derecognition. But this is an attempt at derecognition coming from the Government themselves.
Paragraph 7.12 states that the Government,
"will take power to determine the number, composition and chairing of the negotiating body or bodies".
Quite frankly—I find it difficult even to say this, it is so monstrous—Mrs Thatcher never reached that point. Paragraph 7.13 goes on to state:
"The composition and chair of each body would be determined by the Deputy Prime Minister".
However, he is not even a party to the system. It continues:
"The arrangement for non-uniformed staff would continue as now".
One might think that he has gone as far as he could possibly go, but that is not so. On the principle of mutuality, paragraph 7.13 states:
"We see no prospect of such changes being made by agreement. That is why we intend to specify who should be involved".
I have never known any employer to say in advance of negotiations that they see no prospect of agreement and therefore to say, before negotiations even begin, how it is going to be. Of course, the Government can do that. They say, "We will pass a law".
I find that absolutely monstrous. I am ashamed that my party puts such things in a White Paper. We say that such a policy is contrary to ILO conventions, including Conventions 87, 88, 98 and 151. Convention 88 states that the right of the worker's representatives

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to protection against this domination by employers must be maintained. But what is this proposal but the domination of the right of protection by the employer? What is this but the breach of that convention?
At one point, the European Social Charter states:
"those who are elected or appointed to be representatives should be those who are elected or appointed within the rules of their appropriate union".
However, that is not what the Government are saying. The Government are saying that the Secretary of State will decide these matters. The Secretary of State will say, "I don't want you. I don't want you. I'll have the other fellow". I have never heard anything so monstrous in all my life.
Most absurd of all, the Government say—and I am glad that the noble Lord, Lord Rooker, is with us, because he actually said it; I do not have the actual quotation, but I will get it if he wants it—that the ACAS code supported what the Government are trying to do. I have here, and I will quote it if I have enough time, the 1970 code of practice, issued by a Conservative government. You will find nothing in the industrial relations code of practice that supports such barbarism.
I also have the latest ACAS advisory booklet, Representation at Work. I would quote from it extensively if it were not for the time of night. Nothing in that code of practice supports what the Government are trying to do. I find it very difficult to believe that the Deputy Prime Minister—with his experience, background and origins—knows, understands and appreciates what is being suggested in his name.
9.30 p.m.
Lord Campbell of Alloway: My Lords, we are sort of banging on a bit. I wonder, with the greatest respect, what is the relevance of these various codes of practice to an emergency measures Bill of some 18 months' or two years' duration? What is the relevance?
Lord McCarthy: My Lords, I may not be allowed to say this, and I say it very reluctantly, but the noble Lord is in danger of having "emergency" on the brain. I am not necessarily talking about an emergency. I am talking about what the Government propose to do to the fire service.
The noble Lord intervenes at a very convenient moment. I was told something by the noble Lord, Lord Rooker, which is in some ways similar to what the noble Lord, Lord Campbell of Alloway, has just said. He said two things. First, he said that he could not answer my concerns because there was no power in the Bill to impose these things by the force of law, so we could not discuss it. I cannot see why we cannot discuss matters that cannot be imposed by the force of law, but never mind. That is what he said.
I am quite prepared to admit that we have made mistakes in this debate. Unfortunately, we fell into a debate about whether the things that I am complaining about, which are in the White Paper, could or could not be introduced through the powers in the Bill. Quite frankly, I do not know the answer to that. In a sense,
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it is not my central concern. My central concern is that this is being advanced as government policy and that there are many ways, without using this Bill, to enforce such things. The fact that the Government announce policies of this kind can dominate the negotiation process.
Secondly, the noble Lord, Lord Rooker, said that, rather than comment on the violation of conventions and so on, he would cite ACAS. Well, I have said what I think about ACAS. What will happen in the fire service—and I know that it is going on now—is negotiations on the future stages of the 2003 agreement. It is possible—in fact, it is likely—that by 7th November another 7 per cent increase will be linked to the new role structure. If that role structure is not agreed, there will not be a 7 per cent increase. By July 2004, another 4.2 per cent will be linked to further changes in industrial behaviour, and so on. All these sums of money are contingent on the verification by the Audit Commission of certain savings.
Without talking about whether the Secretary of State could impose the new structure through this Bill or would have to wait for a new Bill, he could, at any point, say that he was not satisfied that sufficient advance had been made. He could say that he was not satisfied that he could pay 11.2 per cent, that the figure could not be higher than 7 per cent, and he would produce an order based on this legislation. At that moment, what is in the White Paper would affect the Bill.
The Government ought to tell us what they intend. Do they intend, in the current negotiations, to threaten the unions with the possibility that if they do not agree, they will get a big, big Bill which will force these monstrous things on them? Or do they intend as the noble Lord, Lord Rooker, said at one stage, to keep them in the background and not mention them although we all know that they are there? That seems to me a pretty daft way of carrying on.
Once the union reads the White Paper and knows what is in the Government's mind, there cannot be what any reasonable man would call negotiations about the future of the fire service. The Government must begin by going back—reversing, getting out their reverse gear, coming out of the garage—and changing their policy. I beg to move.
Lord Wedderburn of Charlton: My Lords, I support my noble friend. Everything he said, it would be difficult to deny. In view of some of the glances of the 10 people in the Chamber, I wish to say that I am sorry that we are forced to rise on such matters at this hour. No doubt the authorities will note that it is now 20 minutes to 10 o'clock and we are debating a matter of grave importance in international and domestic law.
I wish to make three main points. Knowing that it is the Government's policy to take control of the composition, chairmanship and procedures of the National Joint Council—or national joint councils, as they will impose—we say in the amendment that that is not something that they should take into account in

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making the orders. The burden of proof on us, therefore, is not to prove that the orders could impose those new requirements.
The noble Lord, Lord Rooker, in his reply in Grand Committee made a bad point in saying that it would be impossible for an order on terms and conditions of service to make provisions that affected the procedures and composition of the National Joint Council. He said that that was because it was no concern of the contract of employment of a firefighter what happened at the level of the National Joint Council. He asked to be shown where it was written in the contract of employment, overlooking the rather elementary point that a major part of most contracts of employment today consists of terms implied from other documents and procedures. It may be works rules, collective arrangements or collective agreements, which take their legal effect by incorporation, often impliedly, into the employment contract. If that were not so, workers would not have dozens of rights that are implied, and indeed dozens of obligations that are also implied.
The courts have recognised the extensive rights of workers to have the machinery of such joint negotiating bodies considered as part of their contract of employment obligations and rights. I even dare to quote two authorities on the point. They were not quoted in Grand Committee. Therefore, I am obliged to quote them, so that they be on the record, which is all that we shall get tonight.
Lord Campbell of Alloway: My Lords—
Lord Wedderburn of Charlton: My Lords, I would like to finish my point before I give way. The first authority is City and Hackney Health Authority v NUPE and Craig in 1985, where rights stemming from a Whitley Council for ancillary staff and their procedures were incorporated impliedly into the contract of employment of a worker. I will refrain from quoting, as I must, what Lord Justice Oliver says until after the noble Lord has insisted on intervening.
Lord Campbell of Alloway: My Lords, I beg to move that the Question be now put. It is a fallen Motion.
Lord Wedderburn of Charlton: My Lords, that is a debatable Motion, and I will debate it by continuing with my advocation of the amendment, if that is permitted.
The Deputy Speaker: My Lords, does the noble Lord wish to put the Question? I understand that it is a serious Motion to put before the House.
Lord Campbell of Alloway: My Lords, we have had long enough on this debate. The matters have been considered on previous occasions. We are drifting into an attack on government policy. I am wholly delighted
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to attack it on other occasions, but at this hour of night and in this context, no. I beg to move that the Question be now put.
The Deputy Speaker: My Lords, I am instructed by the order of the House to say that the Motion that the Question be now put is considered to be a most exceptional procedure, and that the House will not accept it, save in circumstances in which it is felt to be the only means of ensuring the proper conduct of the Business of the House. Further, if a Member who seeks to move it persists in his attentions, the practice of the House is that the Question on the Motion is put without debate.
Lord Wedderburn of Charlton: My Lords, I wish to debate the Motion that the noble Lord, Lord Campbell of Alloway, has put, but by giving reason why there are new matters that the House and the Grand Committee before it has not yet heard. Those new matters are relevant to the rights of thousands of workers and, indeed, fire authority employers, and therefore it is quite irresponsible for the House to legislate without hearing what they are. If the noble Lord, Lord Campbell of Alloway, does not want to hear them, that is his private concern, but the concern of a legislature is to consider the matters that are relevant. I have two judicial authorities which do not support what the noble Lord, Lord Rooker, said in Grand Committee. I believe that my noble friend wants to interrupt me. If so, I am happy to be interrupted.
9.45 p.m.
Lord Grocott: My Lords, I want to say only that we are still discussing the amendment. I get the sense of the House that perhaps we can do so without it going on at inordinate length.
Lord Wedderburn of Charlton: My Lords, the length of the amendment is relevant to the importance of the matters under debate. My noble friend the Chief Whip is responsible for when the business comes on in your Lordships' House. If he had put us on at five o'clock, we would have had plenty of time. And we have plenty of time for this debate—the night is young.
The second authority is Lee v GEC Plessy in 1993 where a group of workers was held to have employment rights about severance payments determined according to the correct procedures and arrangements in the collective agreements negotiated by their union in a sectoral joint council. I accept that there are limits to what can be taken into account as part of the employment contract, but it is wrong to suggest that the orders make under Clause 1(1)(a) of this Bill could not have provisions which affect the composition and procedures of the National Joint Council in so far as it is part of the entitlements of fire fighters, workers, employees in the industry. Therefore, that major plank in the argument of the noble Lord, Lord Rooker, put in Grand Committee is, with the greatest respect in my submission, wrong.
The second point is that my noble friend Lord McCarthy was absolutely right in stating that under Conventions 87 and 151 of the ILO and under the

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European Social Charter, the rights of employees to nominate their own representatives without something equivalent to Mussolini's Carta del Lavoro being imposed on the structure of their joint procedures is plainly part of international law.
I must say not only to the Government but to the Opposition that the exposure in Grand Committee that the Opposition, too, were not disposed to argue vigorously for the defence of these international legal documents, to which Britain is a party, was a matter of great surprise to me and deserves a little more elaboration by a party which now is beginning to set its policies at its conference.
Thirdly, it must be restated—as was stated in Grand Committee—that your Lordships' Joint Committee on Human Rights made it quite clear that because the powers to make orders are so widely drawn under the Bill there is the possibility that orders under the Bill will infringe both the ILO Convention 151, Article 8, and the European Social Charter, Article 6. It would not be thought right for me to read out the passages from the committee's report because, contrary to our choice, the matter has been brought on when everyone is dozing and swapping jokes. But firefighters are not swapping jokes about this. Nor are other workers who fear that such an approach to public services is in the thinking of those who are putting forward the powers in the Bill.
Therefore, the amendment provides, first, that in making orders the Secretary of State should not,
"take account of composition, membership, representation, chairmanship or procedure",
of national joint councils; and, secondly, that he,
"shall have regard to the relevant Conventions",
of the ILO, the Social Charter and other instruments of the United Nations that are well-known—and well-known even in government. If a member of the negotiating body believes that there is a problem in regard to our international legal obligations, he can call upon him to explain why an apparent breach of the international conventions and documents appears to have been made in the order.
What is unreasonable about that? The Secretary of State must consider international law; he must refrain from pressing his policy on the composition of the National Joint Council through use of the orders; and he must declare and explain any apparent breach of the international legal position. Why is that so unreasonable? But we know—it has been made clear tonight—that the Government are simply taking a position, having no reverse gear, and that they will be obdurate in the face of any amendment. One could table an amendment saying that the Benches in the Chamber were deep red and it seems that the Government would oppose it tonight.
If the Government do not have arguments better than those put forward in Grand Committee, they should accept the spirit of the amendment, accept that this type of provision should be placed on the face of
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the Bill, and make it clear that the fears of those who believe that orders may have some of the effects that have been mentioned are not justified.
Lord Evans of Temple Guiting: My Lords, in his first intervention, the noble Lord, Lord Campbell of Alloway, was absolutely correct. The proposals in the White Paper about reform of the NJC are not a matter for the Bill that we are discussing this evening. The White Paper and not the Bill proposes that we should take power to determine the number, composition and chairing of the negotiating body or bodies for England. However, we acknowledge that the agreement signed in June between the FBU and the employers recognises that the constitution of the NJC needs revision. The parties have agreed to consider that and are doing so at this moment. We welcome those developments and shall see what they produce before deciding whether to intervene.
The noble Lord, Lord McCarthy, must see that the Bill does not allow the Secretary of State to determine the number, composition and procedures of the current National Joint Council. It does, however, define "negotiating body", and one part of the definition indicates that the body must be constituted in accordance with what appear to the Secretary of State to be appropriate arrangements for the negotiation of conditions of service of fire brigade members.
The purpose of that part of the definition is so that the Secretary of State can be sure that the body is properly constituted and thus properly representative of both sides, with agreed procedures in place. The government view is that, while we have made clear in the White Paper that we believe that the NJC needs to be reformed, the current NJC meets the definition in the Bill and therefore that is the body that would fall to be consulted by the Secretary of State.
The second part of Amendment No. 23 requires that, in making an order, the Secretary of State shall have regard to relevant ILO conventions, the European Social Charter and UN instruments binding on the UK. However, where such conventions or agreements are binding on the UK, it goes without saying that any Minister making an order under the Bill would have to have regard to them. I do not believe it is generally helpful to add such requirements to the face of legislation.
Under the third limb of Amendment No. 23, if a member of the negotiating body expressed reason to doubt that an order did in fact comply, the Secretary of State would have to make clear how his proposals did not conflict with those instruments. We would certainly not expect the orders to conflict with the instruments, but we could not stand by if there were further breakdowns that threatened to lead to a resumption of industrial action. In addition, once again, for the millionth time, I draw noble Lords' attention to the fact that the powers in the Bill are time-limited to two years, and therefore this issue will not be around for ever. Having given those assurances, I respectfully ask the noble Lord to withdraw his amendment.
Lord McCarthy: My Lords, the Government are incapable of learning—totally incapable. At no time this evening, or in Committee, have the Government felt the need to answer issues raised in the White Paper or what the Government intend to do to the principle of mutuality. They have not said whether they are justified and, if they are justified, why they are justified. They have not said how they came to make those reactionary statements in the relatively unimportant White Paper. If they say things and cannot defend them, one wonders how far they want to go with this basic attack on the principles of collective bargaining.
The Government have nothing to say. They say, "It is not covered in this Bill" or "We cannot talk about it now". It has become a congenital disease. They cannot answer the question. Every time one asks what one believes is a very simple question that goes to the heart of what we are supposed to be about—for the millionth time, the Minister says—one does not receive an answer. It is dreadful; it is awful. It is killing this Government. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCarthymoved Amendment No. 24:
Page 2, line 29, at end insert "and that duty shall be owed to and enforceable by the Secretary of State"
The noble Lord said: My Lords, Amendment No. 24 will probably suffer the same fate. It is an amendment that we introduced previously. In our way we are trying to limit the enforceability of the orders. We say in the amendment that that enforceability, that duty,
"shall be owed to and enforceable by the Secretary of State",
and by no one else. We say that partly because we believe it is a reasonable limit, but also to achieve clarity. As we go on, the chances of achieving clarity are tending to disappear.
As the noble Lord, Lord Rooker, pointed out in Committee, Clause 1 (9) states:
"It shall be the duty of a fire authority to comply".
My noble friend Lord Wedderburn asked in Committee what happens if they do not comply; what happens if it is not their fault that they do not comply because they are prevented from complying and, in particular, they are prevented from complying by the actions of the union or the actions of the members of that union? As I said on the previous amendment, we have not had an answer to that question. Who can sue? Who can obtain enforcement? Is it to be the Secretary of State, as we suggest, and only the Secretary of State, or could an authority that felt that it was prevented by industrial action seek to enforce it; or could an injured third party take action? If action were taken, what action would be justified? Could an interim injunction be acquired, considering the easy way in which interim injunctions can now be granted?
That deals with the union and the organisation, but what about the workers? I have tried to make this point before. I have asked this question not a million times, but six or seven times. What is the position of the worker who is dismissed? He or she frustrates the order and as a result the employer sacks him or her. Is that
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a fair dismissal? Is there some other substantial reason. If the matter goes to a tribunal, if the union defends the person and says that after all it is all right because it is just a breach of contract, and if the employer says to his lawyer, "Oh, no, it is not just a breach of contract; he has frustrated a statutory order and that is not protected", how should the chairman of the tribunal advise the side members? Can the Government help? No. I cannot get a word out of the Government. I do not think they know. They have blundered into this thing.
When we asked for elaboration the Minister took the view that the only way the issue could be clear is if he did not elaborate. Ignorance was bliss. He said:
"Clause 1(9) is one of the shortest subsections in the clause. The fewer the words, the less likely they are to be confusing. It is fairly clear that there is a duty on [an authority] to comply with a direction. The amendment would mean that only the Secretary of State could bring such an action".
That is right. That is what we want.
"I say without qualification that the Secretary of State is very likely to have a big interest in enforcing such an order. It would be the Secretary of State who decided to use the power to determine the terms of the direction. If there is good reason to make the direction or order, there is a hell of a good reason to ensure that it is enforced. It goes without saying that the Secretary of State certainly would have that keen interest".
We thought at that point that the Minister was saying that it was primarily a job for the Secretary of State, and that if anyone wanted the order enforced and felt that he was being damaged by the frustration of the order, he could go to the Secretary of State and say, "take action". But, no, he went on:
"On the other hand, if one takes not much of a leap of imagination, one would realise that others might"—
not will—
"have an interest in enforcing such orders. The order could be, for example, that one fire authority is required to make facilities available to another fire authority. That other fire authority—the other body— might want to enforce that. It would be entirely up to it if that were the case".—[Official Report, 7/7/03; col. GC38–39]
The Minister does not mention at any point the union, or what would happen if the fire authority went against the union. It is all being done in terms of the employer.
It would be very odd, would it not, if the Government were intentionally legislating and enforcing the order entirely against employers, so that the worker would be free? Noble Lords in the Opposition—if they pay attention, thank you—would undoubtedly, as they did, say, "This is a daft Bill. It leans on the employer but the worker is scot-free. You pass this Bill and the worker can go on striking in exactly the same way. His right to strike is exactly what it was before". That is what the Opposition said in the other place.
The Government said, "Don't worry about that. We will tell about that in the White Paper". There is not a word about it in the White Paper. So I ask the Government today: are you really saying that this enforcement is entirely and absolutely on the employer? The trouble is that you do not say; but please do say if you do not agree with our amendment. If you think that someone other than the Secretary of

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State has power to enforce this order, say who they are; say how they will do it; say what the consequences will be; and say what the liabilities will be for the union and the union's members. I beg to move.
10 p.m.
Lord Wedderburn of Charlton: My Lords, as my noble friend Lord McCarthy has indicated, the amendment has more than a narrow procedural ambit. It goes to the root of how the Government see the statutory duties created by this Bill.
The fire authorities have told us one thing. Clause 1(9) states:
"It shall be the duty of a fire authority to comply with a direction … in an order".
If one thinks about a fire authority subject to an order which it does not like, an order perhaps about closure of fire stations or the removal of important and essential equipment from one place to another— Shooters Hill and Greenwich are always taken because that was a prize case which involved this issue under previous legislation—the person who can persuade the fire authority and say, "Don't be silly; you must do what the order and directions say you must do", is of course the Secretary of State. He controls the purse strings and will try to control the effect of his order with its statutory duty. If an employing fire authority fails to observe his Clause 1(1)(b) directions to reallocate the engines or close the stations, surely the primary responsibility of enforcing them should fall to the Secretary of State.
Under the law, if it comes to the crunch, the way to enforce such a statutory duty, because the Bill does not state that there can be any action for damages is, as my noble friend said, by injunction—and, if necessary, by interim injunction, which can be imposed in the courts at very short notice. We are saying, "All right; if that is the structure that the Government want to create, say so in the Bill. Don't say, as the noble Lord, Lord Rooker, said in Grand Committee, that lots of other people may have the right to bring action for injunctions". Why give rise to a flood of litigation in the middle of a tense situation? We say that it should be the Secretary of State, not Uncle Tom Cobbleigh, Harrods or "Disgusted of Tunbridge Wells", who has the right to move the High Court for an injunction.
Rather than let loose that misdirected flood of litigation—which may happen—there should be the same position as in the leading case that dominates the problems of this part of the Bill. We cited that case in Grand Committee and have never received any kind of comment from the Government: Meade v. Haringey Council in 1979, in Industrial Cases Reports page 509. The union brought out some of the personnel— caretakers and others—in Haringey schools, which was said to be a breach on the part of the education authority of its duty to keep schools open, because they had to close them. Who brought the action for the injunction? With no disrespect to him, he was a "Disgusted of Tunbridge Wells" figure, Dr. Meade.
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The court said that Dr Meade:
"claims to be entitled to bring these proceedings in his own right as a parent who has suffered damage by reason of the closure of the schools. He also claims the right to bring these proceedings on behalf of other members of a body of 1,000 people who have formed themselves into an association called Haringey Schools Trust as well as on behalf of all the other parents of children attending or due to attend the defendants' schools as well as on behalf of all the ratepayers of Haringey".
That is how you enforce a statutory duty if the Bill or Act does not make clear that the enforcement authority is more narrow.
In Grand Committee, it was suggested that it was an absurd new idea that an Act should confine the enforcement procedure to the Minister primarily responsible, having made the order. There is a clear set of precedents. One of them is legislation put on the statute book by the previous government in 1994 to restrict the right of prison officers to take industrial action. They had their right to take industrial action restricted by the Criminal Justice and Public Order Act 1994.
Section 127 of that Act states that if a person contravenes the section by inducing a prison officer to take action in contravention of his duty of service and obligations as a prison officer, that is a statutory tort— a breach of a statutory duty. But the section continues:
"The obligation not to contravene subsection (1) above shall be a duty owed to the Secretary of State".
Subsection (3) makes clear that the duty is to be enforced by the Secretary of State.
I do not quote that section as a desirable precedent for restricting the rights of industrial action of prison officers, who are not exempted as a special group by the rights of association conventions of the ILO or any other international body. However, legislation which nobody objected to on any formal or substantial grounds, stating that only the Secretary of State could enforce the breach of a statutory duty, is on the statute book and can be found elsewhere. Why do the Government want to leave it obscure and indeed to imply that anyone who suffers damage by a breach of a statutory duty created by orders under the Bill can bring an action in the courts? What has brought about this sudden desire for a litigious creation in the Bill?
My noble friend has made the case clearly that it would be much better, as a matter of common sense— not of law, but of technique and common sense—to confine the right and power to enforce the statutory duties created by the Bill to the Secretary of State. That is all that the amendment seeks. I hope that the Government can begin to see some sense and to accept it.
Lord Evans of Temple Guiting: My Lords, I am unable to accept Amendment No. 24 for the following reasons. Clause 1(9) makes it a duty of a fire authority to comply with a direction. The amendment would provide that only the Secretary of State could bring an action before the courts to enforce that duty.
It is, of course, the Secretary of State who is likely to have the greatest interest in enforcing such an order. But, as my noble friend Lord Rooker explained in Grand Committee, it does not take a great deal of

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imagination to think of others who might have an interest in ensuring that a direction is acted on. For example, if a direction were to require one fire authority to make facilities available to another fire authority or some other body, that other fire authority or other body might want to enforce it. So I cannot support the noble Lord's attempt to prevent such action being taken. For that reason, I invite the noble Lord to withdraw his amendment.
Lord Wedderburn of Charlton: My Lords, before my noble friend sits down, he says that anyone who is likely to suffer damage from the breach of a statutory duty created by the Bill should have a right to bring action in the courts. Since inducement of a breach of a statutory duty is a parallel wrong, if not a more grievous one, to a breach of a statutory duty itself, he presumably applies the same logic to inducing a breach of statutory duty. He does not know.
Lord Evans of Temple Guiting: My Lords, this is Report stage.
Lord McCarthy: My Lords, I take it that the Minister is not going to reply to that point, and that I must decide what to do. Even if they do not accept our amendment—I know that they will not—I am sorry that the Government cannot explain why. I am not trying to be unfair, but I think that I am right in saying that virtually everything that the Minister said was said by the noble Lord, Lord Rooker, in Committee.
We are asking not only why the Government have not said in the Bill what the responsibilities are, and who they think will be able to enforce the Bill, but for an idea of how they think it will work, instead of throwing it to the courts. And they say nothing. They just say, "Oh well, the fundamental impetus will come from the Secretary of State, but an authority will have an interest in this" and then everything evaporates.
We still do not know whether it is the Government's intention—and, if so, the extent to which it is their intention—to extend the liability of workers in the industry and their union. It will all come out. Somebody will bring an action and we shall find out. But the Government do not advance in any way. Once again, therefore, I must beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.15 p.m.
Lord Wedderburn of Charltonmoved Amendment No. 25:
Page 2, line 29, at end insert—
"(9A) An act done in contemplation or furtherance of a trade dispute which is not otherwise actionable in tort by reason of Part V of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) (industrial action), shall not be actionable in tort on the ground only—

(a) that it constitutes a breach or contravention of, or non- compliance with, an order made under this Act, or

(b) that it constitutes, or threatens, an inducement of, or agreement or combination to commit, any such act.

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(9B) In subsection (9A) an "act" includes a deliberate failure to act."
The noble Lord said: My Lords, this amendment follows directly on the debate that we have just had. Except for Third Reading, this is the last moment at which the impact of the Bill on the liberty of the union and its members to take industrial action can be tested. We know that the official Opposition do not think that the union should have any right to strike—that was confirmed in Grand Committee—so they must be very happy if they understand the Bill.
The Government say that they do not intend the Bill to have any effect on the right to take industrial action. However, there is a simple point that should give them pause and which is a problem for them in the face of that proposition. I can do no better than to put the point in the form of brief quotations from Lord Denning, then Master of the Rolls, in Meade v Haringey Borough Council [1979]—the case that I mentioned in relation to the last amendment and which always causes some merriment on the Government Front Bench because they know its title but not much about its content. In that case, the union had brought school caretakers out on strike, which caused a breach of statutory obligations of the local council under the Education Act.
Lord Denning said that there was a difference between inducing a breach of contract—which invariably takes place in industrial action and which, if there is a trade dispute and a ballot under the provisions of the 1992 Act is protected—and, on the other hand, an inducement of a breach of statutory duty, which, ballot or no ballot, trade dispute or no trade dispute, is not protected by the legislation on the statute book at the moment. Lord Denning said that the legislation,
"gives them [the union] immunity if they induce a person to break a contract. But it gives them no immunity if they induce a local authority to break its statutory duty".
Replace the words "local authority" with "fire authority" and we have this case.
A paragraph later, Lord Denning said:
"There is another way of putting the case".
Lord Denning invariably had another way of putting his case. He continued:
"Now seeing that it was a breach of statutory duty (for the schools to be closed) this agreement was nothing more nor less than an agreement to do an unlawful act, or at any rate to use unlawful means. Such an agreement, if it results in damage to anyone, is an actionable conspiracy",
which, he explained, would also not be protected by legislation.
There has been some commentary on the judgment of Lord Denning on other matters relating to Meade v Haringey Borough Council, but I know of no other authority that has doubted those propositions of law, except the Government Front Bench. Their answer has invariably been that that is not their intention. It may not be their intention, but it is their Bill. Therefore, Amendment No. 25—in respect of which I also speak to Amendment No. 26—would ensure that it is made absolutely clear, once and for all, to cure any doubt— and there is not much doubt about the matter in the judgment of Lord Denning—that this new set of

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statutory duties, created by the Bill, however they are to be enforced, do not create an illegality that creates an obstacle to the legality of industrial action when there is a trade dispute and when there have been the necessary ballots and notice procedures under the 1992 Act.
There was some debate in Grand Committee about whether our amendments were properly drafted or caused doubt about creating a right to strike without ballots and without a trade dispute. These amendments do not allow any reasonable person to make that point. They make it clear that we are talking about industrial action that is protected under Part V of the 1992 Act or is not actionable under the 1992 Act because there is a ballot and because there is a trade dispute. Where those things are so, the union, having pursued all the necessary procedures and established the arguability of a trade dispute, should not suddenly confront a new illegality such as the illegality pronounced by Lord Denning and in other cases that were mentioned in Grand Committee and elsewhere, which, I hope, the Government have read by now. That illegality is inducing a breach of statutory duty. That is not covered by the legislation that protects the liberty and right to take strike action.
The Government must face the fact that, at the least, the Bill is ambiguous. They cannot deny that it creates statutory duties; we have just seen that they think that all statutory duties should be enforced by anyone who is likely to suffer damage or can establish an arguable case. I remind your Lordships that an interim injunction can be obtained from the High Court, where the balance of convenience and public interest is in favour of the claimant and his case in law is not proven but is only arguable, under the decision in American Cyanamid Co v Ethicon Ltd, which was decided by your Lordships' Judicial Committee in 1975.
In the face of that, how can the Government deny that there is the risk of a problem with a claimant who wishes to get—and, given a suitable brief, he has a chance of success—an injunction from the High Court against industrial action that can be said arguably— only arguably—to induce a breach of one or other of the statutory duties under the Bill? Of course, there may be an inducement to breach of contract, which would be protected, but there was a breach of contract protected with regard to the inducement of school caretakers in Meade v Haringey Borough Council. That was not enough to protect the union, although, in the discretion of the court, procedural problems came to the rescue in the end as regards the issue of an injunction for matters that are not relevant to the present argument. It was not enough because they had induced a breach of statutory duty.
The Government have already admitted that claimants all over the land, from Tunbridge Wells to Harwich, could bring an action in order to get an injunction to enforce the duties. As I said to the Minister—he did not answer because, I think, he could not—that obviously also applies to inducement to
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breach of statutory duty, as the Court of Appeal held in 1979 and as has been supported by decisions in the High Court and superior courts ever since.
That is the case for the amendment. That is why, if it is rejected, the Fire Brigades Union and other public service workers will have the greatest fear of the consequences of a train of thought that, so far, has dominated the obdurate resistance of the Government to facing that simple case. I beg to move.
Baroness Turner of Camden: My Lords, this is an important amendment, as I am sure our Front Bench appreciates. Throughout the passage of the Bill, we have been told by the Minister on a number of occasions that it is not the intention of the Government to interfere with the right of members to take collective industrial action. We accept that this is the Government's intention.
For us, the trouble is that it has never been clear in the Bill, which has overriding powers to impose statutory duties, and so on. As has been explained by my noble friends, this can mean that individuals taking action can lose immunities provided under existing legislation after following the appropriate method of conducting ballots and such like. The amendments spell out the law under which they can take legal action at the moment.
I suggest that my noble friends on the Front Bench give this issue very serious consideration. There is concern among trade unionists and, in particular, fire brigade members with whom we have been in contact, that they are in danger of losing their right to take collective action despite the Government repeatedly saying that that is not their intention. I hope that these amendments will be considered seriously.
Lord McCarthy: My Lords, I want to make one point. I am sorry to rise when the Government clearly want to finish the business. As I said in Committee, I am concerned with the position of the workers themselves. If an employer is unable to carry out the instructions of the Secretary of State because of the action of his employees, he may wish to sanction or threaten them in some way. Indeed, if the action continues and the employer thinks that it is their fault and he wants to defend his position, quite legitimately, he may dismiss the employees.
Is that lawful? Is it the Government's intention that in an industrial tribunal—because the union will fight the case—an employer could say, "This is not a breach of contract. This is a breach of a statutory duty."? Is it the Government's intention that it will be correct that it is a breach of a statutory duty and that, therefore, workers can be dismissed because it is a fair dismissal and is not protected? Or are the Government saying, "No. We hope that the chairman will disregard what the employer says. This is covered by existing legislation."? Or, worst of all, are the Government saying, "Wait and see. We are not going to tell you. Try it out. See if you can get away with it."? Which of those three positions do the Government believe in?
Lord Bassam of Brighton: My Lords, I am conscious that this is ground that has been covered extensively at

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earlier stages. I shall not therefore rehearse an argument with which I am sure the noble Lords and the noble Baroness are by now entirely familiar. The burden of these amendments remains—if I can put it in lay terms— to ensure that protection is afforded by the Trade Union and Labour Relations (Consolidation) Act 1992 to certain industrial disputes to cover breaches and contraventions of, or non-compliance with, orders made under the Bill. Inducement to act in any of these ways would be covered, as well as the actual acts or omissions themselves.
The long and short of our position is that we remain of the view that these amendments are unnecessary. We continue to believe that if a dispute arises about something dealt with in an order made under the Bill, the ordinary operation of trades union law will offer fire brigade members protection. It is not part of our intention—I repeat, it is not our intention—to offer less protection or, as the amendments might offer, more protection. That is not the case. That is not what we are seeking to establish.
The amendments could cause confusion for other public sector workers who carry out functions governed by legislation and whose working conditions may inadvertently change as a result of directions or other changes in law. This would single out the firefighters to be treated differently from other groups of workers, which, in our view, would be equally unfair.
We do not seek to do anything which is not already a fact in law. We do not believe that the Bill changes matters in the way that has been argued in your Lordships' House tonight. Furthermore, we think that the amendments are unnecessary and, in short, that they could cause additional confusion.
I understand the concerns expressed by noble Lords during this and our earlier debate, but we think that those concerns are misplaced and take us no further. I hope that noble Lords will feel a little reassured, although I suspect that they will not since they have not been greatly reassured by almost anything that has been said at the Dispatch Box this evening. However, they should be reassured and I hope that the amendment will be withdrawn.
Lord Wedderburn of Charlton: My Lords, we have heard some answers to some amendments, and I think that my noble friend Lord Bassam may take a prize. He made approximately four points.
He said first that the amendment was unnecessary because the Trade Union Labour Relations (Consolidation) Act 1992 already protects action by firefighters in a trade dispute—presumably he meant with a ballot. I have explained that it does not do so if it induces a breach of statutory duty. What is his answer to that? He did not say a word about statutory duties. Does he understand what a statutory duty is? Has he looked at any of the authorities which state that that is a wrong and is not protected by the legislation? So the first point was very odd.
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The second point was the usual: "It is not our intention". This whinging cry from the Government that it is not their intention to do things under the Bill is one which the workers have heard and the unions have taken note of. They are not interested in statements of intention if they are not reflected in the law. The Government are responsible for the Bill, not their misunderstandings and intentions as to the law. They misunderstand and refuse to understand the point about statutory duty.
As for other public sector workers who inadvertently bring about changes in matters regulated by statute, my noble friend should take a look at the books. There are workers who can risk inducing breach of statutory obligations and they are specially dealt with. There is the possibility that such a liability can arise under the telecommunications legislation. I have already explained that it is possible that such a liability could arise under the legislation applying to prison officers. Those are all listed in the books and we do not find public sector workers in a special category whose legal right to take industrial action is limited by their obligations under statutes which create statutory duties. If the Minister has other illustrations perhaps he will rise and give them to noble Lords, but he has not. This is all claptrap which would not pass an entrance examination, let alone a first year paper.
There is such a thing as the wrong of inducing a breach of statutory duty that is not protected by the legislation on strikes. Tonight I have no alternative but to withdraw the amendment, but I tell my noble friends on the Front Bench, in all friendship, that they are making a ghastly mistake in putting this before the trade union movement. If they want to inflame the situation, they will go on with their obdurate failure to understand the simplest possible point. I do not know of any other simple English phrase that will explain it: inducing breach of contract is protected; inducing breach of statutory duty is not.
Undoubtedly we shall come back to these issues on Third Reading. It does not matter how many noble Lords go into the Lobby who have spent their time not in the debate, but in the bar or in their rooms, so long as the point is put to the legislature and history records whether they refuse to recognise this point. For tonight I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 26 not moved.]
Lord Campbell of Allowayf his intention to move Amendment No. 27:
ut Clause 1.
The noble Lord said: My Lords, as yet, the Government have refused to accept amendments to Clause 1 which proscribe the exercise of powers by the Secretary of State to impose conditions of service by decree when there is no emergency situation, such as a terrorist attack or the immediate threat of such an attack, within the definition of Amendment No. 2, which was withdrawn on the first day of the Report stage. It is a bone of contention which arose on Second

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Reading. It has bedevilled the subsequent stages of the Bill and, indeed, some of my previous interventions today.
I do not understand why it is said that the noble Lord, Lord Rooker, has not made himself plain. I shall not quote references but, at columns 1157, 1158, 1165 and 1166 of Hansard on the second day on Report, he made the construction of Clause 1(1), which governs the exercise of powers by the Secretary of State, perfectly precise and clear. The purpose of the Bill is to enable a line to be drawn as a longstop—at any time in any future dispute— that could not be the subject of challenge, irrespective of whether or not there was an emergency situation.
The noble Lord, Lord Rooker, used the term "caveat". There was no need to do so. He has made his position totally plain. It is that position which goes to the essence of why we wish to amend Clause 1 and why, if those amendments are not accepted, to move that Clause 1 should not stand part of the Bill.
There is not an emergency situation today; there has not been one for some time. According to the noble Lord, Lord Rooker, excellent working arrangements with the union are going well and timetables have been agreed. When there is no such emergency, to seek to impose, or threaten to impose, conditions of service by decree, as a longstop to collective bargaining, is wholly unacceptable and could well provoke further disruptive industrial action. It would appear that the noble Lord, Lord Rooker, accepted on the first day on Report—I think with me—that the ghost of the withdrawal of services has now been laid, at all events in a state of emergency.
I have been advised to give notice that Amendments Nos. 2 and 4, as tabled on the first day on Report, are to be re-tabled on Third Reading. They will seek to limit the use of the powers under Clause 1 to impose, or to threaten to impose, conditions of service by decree only in a state of emergency, as defined, and will require consultation before introduction instructions are given to the fire authorities when there is no such state of emergency. If the amendments are not accepted, I have been advised to give notice that then, and only then, would the amendment to leave out Clause 1 be moved, and to explain that the other amendments to Clause 1—Amendments Nos. 3, 5, 6 and 7—which were withdrawn on day one of the Report stage, shall not be retabled on Third Reading. The House will face a clear-cut and straightforward issue. On that basis, I shall not move the amendment.
[Amendment No. 27 not moved.]
Clause 2 [Interpretation of June 2003 agreement]:
Baroness Turner of Camdenmoved Amendment No. 28:
Page 2, line 34, at end insert "and no order made under this Act shall seek to amend the operation or result of that agreement or of any such mediation, conciliation or arbitration"
The noble Baroness said: My Lords, in Grand Committee, the Government accepted an amendment moved by my noble friend Lord Lea to the effect that nothing in the Bill affects the possibility of the parties agreeing on a reference to mediation, conciliation or
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arbitration on the interpretation of the June 2003 agreement between the FBU and the local authority fire service employers. My noble friends and I were grateful to the Government for accepting the amendment, which envisaged the possibility of the resolution of any difficulties through third party intervention—that is, by means of mediation, conciliation or arbitration. That is the way in which union officials, of which I was once one myself, normally expect to deal with differences.
We believe that the inclusion of the clause goes some way to making the Bill slightly more acceptable. However, the overriding powers in the Bill still exist and have not been modified by the inclusion of the wording. There is very little point in having the right to go to arbitration, for example, underlined by including it in the Bill, if the powers that exist in the Bill can override whatever decision results from the arbitration. Unless the decision reached in arbitration is respected, it is simply a waste of everyone's time.
I am not sure that it is the Government's intention to ignore the result of arbitration, conciliation or mediation, but I am concerned with the wording of the Bill. As it stands, irrespective of what may be said on behalf of the Government today, it would be open to a Secretary of State simply to use the powers of the Bill without regard to any decision reached by external arbitration. The powers in the Act will be absolutely overriding.
That is unsatisfactory, so I hope that the Minister accepts that the arguments have some force. Even if the wording of our amendment is unacceptable, perhaps he could come up with something that meets our concerns before the Bill finally leaves the House. I beg to move.
Lord Evans of Temple Guiting: My Lords, Amendment No. 28 prohibits the Secretary of State from making orders that would alter any agreement reached by the parties through arbitration on the interpretation of the agreement signed on 13th June 2003. If the two sides in the NJC felt that they were getting into difficulty and sought mediation, conciliation or arbitration, we would encourage that. There are many areas where I am confident that if the two sides can come to an agreement, so there is no dispute between them, we would not want to intervene. However, it is a big step from that to say that, whatever the outcome, we may not intervene.
It would not be acceptable if agreements reached now flew in the face of what we are saying in the White Paper. It is not unreasonable that, if the arbitrator comes up with something quite different from published government policy, the Secretary of State should be able to intervene and stop things going off in the wrong direction. The Bill, of course, requires the Secretary of State to consult the negotiating body before he makes an order fixing or modifying conditions of service. The Secretary of State would doubtless take the views of the body into account before finalising his proposals. That would include any decisions made under arbitration. With that in mind, I ask the noble Baroness to withdraw her amendment.
10.45 p.m.
Baroness Turner of Camden: My Lords, we have been told this evening that the White Paper is relevant, but earlier we were advised that it was not relevant to the Bill. I have worked on the basis that we were not discussing the White Paper this evening.
Frankly, it is rather disappointing that the Minister was unable to accept what we are proposing. It is proposed because we are seeking to be helpful and to spell out in the Bill that it is worth going to arbitration as arbitration will actually mean something. What bothers us—and has bothered us throughout the discussion on the Bill—is the overriding nature of the powers in the Bill and the fact that it gives the impression that no matter what people want to do, finally the Secretary of State will have his say and that is it and there is no point in attempting to do anything at all about it. That is unacceptable except in an emergency. The Government have not been prepared to accept the amendments that we tabled to make it clear that the Bill had application only in emergency situations.
As the Bill now stands, if it leaves the House unamended, it will say to everyone, "Look, the Secretary of State can do what he wishes to do irrespective of whether there is an emergency or not. That is the overriding situation and that is it, finished". That is not at all acceptable. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [Supplemental provisions]:
Lord Wedderburn of Charltonmoved Amendment No. 29:
Page 2, line 38, after first "service"" insert "means terms and conditions of employment and"
The noble Lord said: My Lords, the object of this amendment is to define what is meant by "conditions of service" in the Bill. At the moment there is no definition of "conditions of service", merely an indication that they can include pay and hours.
Like all our amendments, this is an amendment which would be helpful to the Government, although their difficulty in appreciating the help that is offered them has already been made apparent this evening. The reason it is important that the Bill should define "conditions of service" as meaning terms and conditions of employment is that that would go a large way to making clear what is at the moment ambiguous; namely, that an order under Clause 1(1)(a) would operate so as to effect terms and conditions of employment in a contractual sense. Therefore, if there were any threat ever—I do not appreciate that there may be—to take action on the part of the workers concerned in opposition to such an order fixing conditions of service, it would at least be arguable that this was an inducement to break conditions of service, which meant terms and conditions under their contracts of employment.
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The amendment would make it quite clear that at least the orders under Clause 1(1)(a) impose contractual conditions and not free-standing statutory duties. It would not do much for Clause 1(1)(b) orders but we have already seen that the Government do not seem to care about inducing a breach of those.
The right to strike would therefore pro tanto be protected in respect of the sort of dispute that the Government have usually described; namely, some dispute relating to an order fixing or modifying new conditions of service, and the Government would be free from the charge that they chose not to clarify the position and deliberately left the possibility that the effect of orders under Clause 1(1)(a)—as government spokesmen this evening appear always to accept— would operate as imposition directly of statutory duties. At least they would be rescued from that thicket by this amendment. I beg to move.
Lord Evans of Temple Guiting: My Lords, Amendment No. 29 inserts some additional words into the definition of "conditions of service". My noble friend moved a similar amendment in Grand Committee where he explained that the purpose of the amendment was to ensure that the duty of complying with an order about terms and conditions of service applied throughout the contract of employment.
The advantage he saw in this, as opposed to a statutory duty to comply, was that it would be quite clear for the purpose of the Trade Union and Labour Relations (Consolidation) Act 1992 that any breach of what the order required would be a breach of contract and not a breach of statute.
The Government's view is that fire brigade members will anyway be under a contractual duty to observe the conditions of service imposed by any order under Clause l(l)(a). As my noble friend Lord Rooker explained earlier, in discussing Amendment No. 11, any changes to terms and conditions of service introduced by such an order will become terms of the relevant contracts of employment. Failure to comply with them would be a breach of contract.
As I also said earlier, I do not favour making "just in case" amendments, which in our view this would be. However, I hope that with the assurance I have given about the way in which this would work, the noble Lord will feel able to withdraw the amendment.
Lord Wedderburn of Charlton: My Lords, we have it again. First, my noble friend from the Dispatch Box misstates what is in the Bill. The Bill does not have a definition of conditions of service. Clause 3(2) states:
"'conditions of service' includes… pay and allowances, hours of duty or leave".
That is not a definition; that is a statement of inclusion. There is a rather simple difference between that and an exclusive definition. The amendment offers the Government a definition to say what my noble friend has just said—to state the Government's intention in the Bill.

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The Government seem to think that they make law by standing at the Dispatch Box. That is neither a democratic nor a justifiable view. Their intentions are not law. Their interpretations are not law. It is what is in the Bill and what goes on the statute book that is law. Unless they define conditions of service in the way that the amendment suggests, they cannot do other than leave ambiguous, at the very least, whether a court would hold that they are direct statutory obligations. We have explained this again and again, but all the Government do is say, "Well, that is not our intention". If it is not their intention, why do they not put it in the Bill? They do not put it in the Bill because they do not want to. That is why some of my more suspicious friends say, "If they do not want to, what are they up to?" What is the worth of these statements of intention if they will not shroud them with the majesty of law?
This will come up again on Third Reading, whether in this guise or another. That causes great merriment on the Government Front Bench. The Government have more merriment about their refusal to understand in this Bill than in any other legislation— even in the dread years of the 1980s—that I have experienced in this Chamber. Of course they are mainly newcomers to this Chamber, as was proved in Grand Committee. However, they are not newcomers to the law and to industrial relations, because they are legislating on it. Let them go away and think again. This is the nub of a major question about statutory duty and breach of contract. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wedderburn of Charltonmoved Amendment No. 30:
Page 3, line 9. at end insert—
"( ) For the avoidance of doubt, section 244(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) (meaning of "trade dispute" in Part V) is declared to apply to a case in which a dispute relates wholly or mainly to matters which are the subject of an order or proposals for an order made by the Secretary of State under this Act affecting the working conditions of members of a fire brigade."
The noble Lord said: My Lords, Amendment No. 30 deals with a separate and very serious point that was vigorously debated in Grand Committee. It is important that I should put it on record now, on Report, since more people are likely to cast an eye over the pages of Report than were ever likely to look at Grand Committee. The advantage of having a Bill in Grand Committee for those who do not want anyone to understand what is going on is that no one ever reads that part of Hansard. So let us see what this is about.
There is a doubt, which this amendment attempts to cure, about whether Section 244(2)(b) of the 1992 Act applies in a case which might be a dispute between the Fire Brigades Union and the employers and the Minister in the sense that he has made an order of new conditions of service or to close down fire stations, and whether that is likely to be arguably a trade dispute.
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The legal definition of a trade dispute is that it must be a dispute between workers and their employers. Section 244(2)(b), which this amendment would apply to the Bill, states:
"A dispute between a Minister of the Crown and any workers shall, notwithstanding that he is not the employer of those workers, be treated as a dispute between workers and their employer if the dispute relates to matters which…
(b) cannot be settled without him exercising a power conferred on him by or under an enactment".
The Secretary of State could propose or make an order under the Bill when it is enacted and the firefighters' trade union, on behalf of its members, could be engaged in a dispute in opposition to the terms of that order about modified conditions of service which are applied by the employers—for example, where employers put into effect an order setting new conditions of service which, as we have seen, they will not allow to go to arbitration, instead insisting on new patterns of work, new rosters, new hours or closing stations.
Insofar as the dispute is between workers and employers, it will be a trade dispute, but it manifestly could be settled without the intervention of the Secretary of State. The employers might be willing to settle a dispute on terms that are different from the order the Minister wishes to impose. That is the justification we have seen tonight and in Grand Committee for the power to have the order: that they might make what the noble Lord, Lord Rooker, called in Grand Committee "sweetheart deals".
It could be argued that it was really a dispute with the Minister, which has been made in a number of parallel cases in the courts. That would exclude it from being a trade dispute—not because it had the wrong content about employment conditions, as in various cases, one of which the noble Lord, Lord Rooker, cited in Grand Committee—those were irrelevant—but because it was alleged to have the wrong parties. The Minister suggested in Committee that if an order had been made, only he could settle the dispute or only he could impose a settlement.
Section 244(2)(b) does not refer to a case where the Minister disapproves of a settlement made by the parties. It relates to where the dispute cannot be settled except by the Minister using his power. Section 244(2)(b) does not refer to a case where the Minister disapproves of a sweetheart deal or draws a line under a dispute which the parties could, left to themselves, settle without his intervention. It is about a case where, as one puts it, his approval is necessary to settle a claim otherwise it cannot be settled.
That is why there is at least a doubt—more than that, in my view—whether the section would apply to a case where the parties could settle without the Minister's intervention in a dispute that affects working conditions of members of a fire brigade. Without this amendment, or something like it, those workers might be prevented relying on the defences normally available in a trade dispute which otherwise would qualify as a trade dispute by reason of its

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content, because it could be alleged that it had the wrong parties—union and Minister—as against union and employer.
There is no reason why this defect should not be cured in the Bill. It is another case of the Secretary of State's order-making power being a root cause for why the normal protections for ballot-supported industrial action could be thrown into grave doubt by the Bill.
This problem is separate from the problem we raised in previous amendments. To refuse to face it is not a sensible way of approaching our industrial law. It is our hope that the Government, having had time to consider the matter further, after Grand Committee, will accept at least the thrust of the amendment. I beg to move.
Lord Bassam of Brighton: My Lords, the noble Lord, Lord Wedderburn, does Grand Committee a disservice. I know that some people hang on every word that is printed in Hansard following Grand Committee deliberations. Indeed, I have had many letters and correspondence from people who have believed—or perhaps questioned—every word that has been spoken.
This issue has, as the noble Lord said, been debated at some length, and our position is spelt out quite clearly on the record. But it is only right that I repeat it this evening.
The nub of the Government's position remains this: we do not believe that the amendment is necessary. We continue to believe that if a dispute arises about something dealt with in an order made under this Bill, the ordinary operation of the trades union law will offer fire brigade members protection.
In our view, there are only two possibilities. The first is that fire brigade members are in dispute with their employers. They hope that their employers will pay what the order requires and then some more besides. Providing the union and its members follow the requirements of the legislation, any industrial action that they take in pursuit of their dispute will of course be afforded the usual protection.
The second possibility is that fire brigade members are in dispute with the Secretary of State, because it is he or she who has made the order and they are seeking to change his or her mind about it. In that case, the dispute would fall within Section 244(2) of the Trade Union and Labour Relations (Consolidation) Act. Again, providing the union and its members follow the requirements of the legislation, any industrial action that they take in pursuit of their dispute will be given the usual protection.
We do not believe that there is some other, third circumstance in which fire brigade members can be in dispute, but somehow neither with their employer nor with the Secretary of State. Indeed, the noble Lord really gave voice only to those two instances himself. We do not think that they will find themselves outside the protection of the law on industrial action.
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The noble Lord will undoubtedly say that the debate has not been listened to by the Government. However, we have listened. The fact that we do not agree with him and other noble Lords who have pressed these and similar related points does not mean that we do not listen; it simply means that we do not agree with their interpretation. That is simply and plainly as we see it. I hope that he will withdraw his amendment and that he does not find it necessary to bring it back at Third Reading.
11 p.m.
Lord Wedderburn of Charlton: My Lords, I got from my noble friend that I had put forward certain arguments and that he did not think that I was right— that he did not agree, but he did not give me any reason why he did not agree, except that the usual protections would apply. No doubt the usual protections will apply, but he said that there might be a dispute with the employers or with the Minister. I assure him that I do not want to be holding the brief for a union that has to accept that its dispute is with the Minister, because then it will need Section 244(2)(b), which states that the dispute cannot be settled without him exercising a power conferred on him by an enactment.
Such a dispute about conditions of service with employers could, of course, be settled without an order. The whole point of the Bill is that the Minister will say, "I don't like the settlement that you're making", or, to be quite concrete and realistic about the present situation, "I don't like the interpretation that you're putting on your settlement. I don't like the way that you're interpreting the pay rises or our other arrangements. I'm going to make an order". That is his choice. It is not a dispute that cannot be settled without his using his powers under the enactment.
Unless the Bill states that Section 244(2)(b) will apply in such a situation, there is the greatest possibility of what I envisage. There is certainly a doubt. The noble Lord mentioned people who had written to him. I wish that he would read out some of those letters. Then we would know who had written them. Whether they are as ignorant as those on the Government Front Bench seem to be about the basics of trade dispute law would become clear.
It really just does not do to spend the whole evening, until 11 o'clock, sitting on the Front Bench saying, "That is not our intention. We don't agree", without argument. As my noble friend Lord McCarthy said, this evening we have heard no argument. At least in Grand Committee we got some arguments from the noble Lord, Lord Rooker. He did not respect our amendments, or us, but at least he made some arguments. We have tried to say why they were bad ones tonight, but we have not had any extra arguments. The state of Denmark without the king has not responded with a clarion call from the Front Bench. It has merely said, "We don't think so", or, "That is not our intention". We are saying merely, "Put your intentions where your mouth is going to be heard by the courts"; that is, in the Bill.

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Whether we return to the issue in this form at Third Reading is a matter for consideration. But the Government need not believe that we shall hear again with happiness the noble Lord, Lord Bassam, saying that it is only right that he should repeat what was said previously. We ask the Government not to repeat at Third Reading but to think; not merely to state again their intentions but to state what they want the law to be. The amendment is crucial as regards the practical
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application of the Bill in the courts if action is ever brought. A responsible legislature should envisage that and make provision for it.
For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 31 not moved.]
House adjourned at six minutes past eleven o'clock.