Lords Sitting of 10 September 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 Peterborough.

Clinical Trials: EU Directive
Baroness Hayman: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In so doing, I remind the House of my non-financial interest as chairman of Cancer Research UK.
The Question was as follows:
To ask Her Majesty's Government what progress they have made in resolving the problems highlighted by medical charities and National Health Service clinicians in relation to the implementation of the European Union Directive on Good Clinical Practice in Clinical Trials.
Lord Davies of Oldham: My Lords, a joint Medical Research Council/Department of Health project is exploring in depth the challenges identified by those undertaking publicly funded trials in the consultation on the draft implementing regulations. The Government are considering changes based on all the responses to the consultation. My noble friend Lord Warner has written to my noble friend Lady Hayman.
Baroness Hayman: My Lords, I thank my noble friend for that encouraging reply, particularly given the seriousness of the situation before the intervention of my noble friend Lord Warner. Will my noble friend confirm that the Government recognise the crucial role that non-industry funded clinical trials play in this country as distinct from the rest of the EU? Will he give an undertaking that the extended timetable that I believe is now available will be used to ensure that high quality publicly funded or charitably funded clinical trials, which have been of such benefit to patients in this country, will be safeguarded?
Lord Davies of Oldham: My Lords, I recognise the importance of non-industry-funded health research carried out in this country. There is now a somewhat deferred timetable with regard to work on the directive. That provides additional time to take on board the very forceful representations made by Cancer Research UK and, indeed, by other bodies, and to get the matter right.
Lord Clement-Jones: My Lords, clearly very great concern has been expressed by the medical and research community, not least by Cancer Research UK and the MRC. This is yet another example of an EU directive where the Department of Health has been
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caught on the hop. Is it not high time that the Department of Health got a rather better radar screen so that it can pick up these directives when they come through via UK representation in Brussels and make representations while a directive is going through, not afterwards?
Lord Davies of Oldham: My Lords, I do not accept that the Department of Health is not sufficiently sensitive to issues as they arise in respect of European Union directives. A directive that seeks to protect patients across Europe, and is highly desirable in those terms, is relatively straightforward in the majority of countries where most research is carried out by commercial organisations. As my noble friend indicated in her Question, the directive has particular implications and difficulties for the very substantial amount of research that is carried out by non-commercial organisations in this country. Therefore. we have a particular interest in the matter and have made forceful representations on it. In the additional time that is now available we are taking on board the representations that we have received. We are extremely hopeful that we shall arrive at a directive which is fully consistent with the needs of this country.
Baroness Greengross: My Lords, recognising the justified excellent reputation of non-industry funded clinical trials in this country, will the Minister assure us that in future all clinical trials, whether publicly or industry-funded, will include all age groups because at the moment many exclude people of 65 and over with terrible results?
Lord Davies of Oldham: My Lords, that is an important point. We are aware that research can be skewed if not all age groups are represented. I fully take on board the point that the noble Baroness makes.
Earl Howe: My Lords, despite what the Minister said, is this not a prime example of an EU directive hat brings with it massive burdens for those who carry out clinical trials and no benefit whatever for patients? Will the Minister explain what the point is of a harmonisation measure if it adds nothing either to the validity of trials or, indeed, to patient safety?
Lord Davies of Oldham: My Lords, I contest the noble Earl's point that the directive fails to add to patient safety. The directive is driven by the needs of patients. As has been indicated, in other countries the need for the directive may be even more pressing than in this country. However, we do not wish to be complacent about research in this country. We have the most excellent record. The noble Earl will recognise that ID per cent of the world's advanced medical research is carried out in this country. It is a very important part of our provision. But that does not mean that in all forms of medical research we do not make the needs of the patient a priority. The measure we are discussing will help in that regard.
Lord Tebbit: My Lords, if the Minister noticed that there are defects in our system that may endanger patients and if he was aware of that, why on earth did not the Government bring forward domestic legislation to deal with it instead of waiting to be bossed around by people in Brussels who are mostly concerned with defects in other countries?
Lord Davies of Oldham: My Lords, when a defect, as the noble Lord identified it, occurred with regard to our own circumstances in the case in North Staffordshire some two years or so ago, we took appropriate measures to rectify it. But, as he will recognise, research is carried out on a European-wide basis, and other countries too have enviable records with regard to their work. It is appropriate that we should have harmonisation across Europe, given the fact that the medical profession contributes to European-wide medical advance through such research.
Baroness Carnegy of Lour: My Lords, will the noble Lord remember that every clinical trial in this country is looked at by local medical research ethics committees, which approach it from the point of view of the people who will take part in the trials? Have the Government pointed that out to the European Union—because I do not think that every country in the EU has that type of protection? I should have thought that that alone should make us exempt from the directive.
Lord Davies of Oldham: My Lords, I cannot go quite so far as the noble Baroness wants in assuring her that such a contribution would then make us exempt from the directive. But she is absolutely right: our concern about ethics, through the local control that she has identified, is an enormous strength in our provision of medical research. We have presented to Europe, in the discussions on the directive, all those facets of our outstanding record with regard to medical research.
Baroness Finlay of Llandaff: My Lords, given the rigours with which clinical trials are conducted in this country, and the evidence that patients in trials do better overall than those who are not entered into trials, are the Government taking on board the representations from intensivists and others dealing with critically ill patients, where there are very real problems in obtaining consent to entrance into a trial by routes other than the conventional one; namely, the prior consent of patients? That group of patients, if not included in clinical trials, may well not receive advances in care in the long term.
Lord Davies of Oldham: My Lords, the noble Baroness has introduced an additional point of considerable importance. It is not directly covered by the directive; nevertheless, she is right—we do need to pay particular regard to that group of patients. I can assure her that the department does so.

BT: Queries and Complaints
2.45 p.m.
Lord Mackie of Benshieasked Her Majesty's Government:
Whether they consider BT's system for answering queries and complaints by way of recorded voices to be in the best interests of the consumers.
Lord Davies of Oldham: My Lords, like many companies, BT uses automated call management systems. Companies believe that this is the most efficient way of dealing with incoming calls. Oftel has no powers to control how businesses operate their call management systems and so any complaints should be brought to the attention of senior management within the company concerned—in this case, BT.
Lord Mackie of Benshie: My Lords, I thank the Minister for that expected reply. However, I cannot think that the Government can absolve themselves from all responsibility for the public service which has been privatised. This Question arose, of course, from personal experience. I arrived home on a Thursday to find that both telephones were not working. After an hour and a half, I got through to an unfortunate man in Cardiff—who, I regret to tell your Lordships, had never heard of Forfar. He assured me, however, that on Monday—this was Thursday—someone would come along to see what was wrong with the line. This duly happened. I found out that the engineer lived half a mile away and could have come on Thursday had he known about the problem. So it is quite obvious that these systems are not working and the Government need to take an interest in the matter. I do not know whether they have a golden share, but I can assure the Minister that they still have some influence.
Lord Davies of Oldham: My Lords, if the noble Lord has not drawn this issue to the attention of the senior management of BT, as I advise him to do, he has taken my advice very rapidly indeed through his Question. I am sure that we all sympathise with the difficulties that he faced, which I imagine are not a unique experience in this House. However, BT has been a privatised company for a considerable period of time. Its senior management must answer for the ineffective service that he has identified on this occasion.
Lord Wedderburn of Charlton: My Lords, could the explanation for the noble Lord's terrible experience be that the call centre operative who said he was in Cardiff was really in Bombay?
Lord Davies of Oldham: My Lords, that then presumes that the call centre in Bombay would have understood Forfar rather better than Cardiff. That may not be the case.
The Lord Bishop of Oxford: My Lords, I suggest to the Minister that there is a public issue here; namely, the mental health of the nation, given the number of

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people ringing up and getting totally frustrated. This is seriously deleterious to the mental health—not to speak of the spiritual health—of the nation. Best practice is for the caller to be told where he is in the queue and how long he has to wait. It is a simple procedure. I do not know whether BT does that, but it helps to lower the aggression level a little.
Lord Davies of Oldham: My Lords, the whole House clearly appreciates the right reverend Prelate's constructive suggestion. Let us hope that more companies involve themselves in relieving this pressure—although I would counsel the right reverend Prelate against suggesting that our mental health is too fiercely damaged by these trials and terrors, because I fear that we have probably all experienced them.
Lord Tebbit: My Lords, perhaps I may remind the House that I was a director of British Telecom for some years. I also carried through the provisions of its denationalisation, which led to better services and lower prices and included a provision for competition. Surely the Minister should have reminded the noble Lord that in a competitive, free-market situation, which there is in telephony in this country, there are enormous choices for consumers. Perhaps he will also intervene on my behalf with the right reverend Prelate to see whether I may be informed as to where I shall be in the queue in having my prayers answered next Sunday when I am on my knees in one of his churches.
Lord Davies of Oldham: My Lords, with regard to the first part of the question, the noble Lord is right that there is competition in the provision of such services. But I believe that most of us who have trouble with a company believe that it should be for that company to improve its procedures, not only on our own behalf but on behalf of all its customers, rather than go through the sometimes laborious exercise of transferring our custom elsewhere.
As to the competition between the efficacy of British Telecom management and higher powers, I give way to the noble Lord and his experience in that matter.

BBC Charter Renewal
2.51 p.m.
Lord McNallyasked Her Majesty's Government:
How they will ensure that both Parliament and public are fully involved and consulted during the process of BBC charter renewal.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, the Government will announce how they intend to conduct the charter review before the end of the year. I can give a commitment now, however, that the process will be
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both wide-ranging and thorough, that public debate will form a critical element of the review and that there will be opportunities for parliamentary scrutiny.
Lord McNally: My Lords, I welcome that reply and hope that the statement of how the Government intend to conduct the review will be made in the form of a parliamentary Statement so that it may be scrutinised in both Houses. Is the Minister aware that there is considerable public concern that charter review in the hands of this Government needs to be fully transparent? There are grave public concerns that it may well be a combination of payback time by politicians with a grievance and "pay-for" time for commercial interests. Therefore, the BBC and its integrity need to be fully protected during the process.
Lord McIntosh of Haringey: My Lords, the noble Lord was good enough to write to me on this subject at the end of July and to issue his letter to the press. Therefore, I assume that he can take some credit for fomenting public concern. But the basis on which he wrote to me and the concerns that he expressed are entirely inappropriate. There is no question of there being a payback time. The Secretary of State has at all times made it entirely clear that she rejects any attempt to confuse our desire to correct any statements made by the BBC with the charter review process. We shall maintain the BBC's independence and we shall not be influenced by matters taking place now. In answer to the noble Lord's other questions, our process, of course, will be entirely transparent.
Lord Barnett: My Lords, I appreciate what my noble friend has just said about the crucial importance of the independence of the BBC. However, assuming that the noble Lord, Lord McNally, is not asking for a referendum to obtain public support for any renewal of the charter, is there not a danger that the renewal may occur during the course of a general election, which at present is supposed to take place in about 2006? In those circumstances, will the Government consider bringing forward the date of the charter renewal rather than risk it being involved in the type of party-political conversation that we have just heard from the noble Lord, Lord McNally?
Lord McIntosh of Haringey: My Lords, I know even less than my noble friend Lord Barnett about when the next general election will be. However, the last charter was granted in 1996 for a period of 10 years. We have made commitments, particularly in relation to the licence fee, for that period until the end of the charter review. I do not believe that any strong reasons exist for changing that period now.
Baroness Trumpington: My Lords, when the charter is renewed, would it be possible to slip into it a little piece requesting the BBC to return the main news bulletin to nine o'clock every evening?
Lord McIntosh of Haringey: My Lords, there are two documents: the charter, which is about eight pages

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long; and the agreement, which is about 16 pages long. I do not believe that either of them goes into the type of detail to which the noble Baroness, Lady Trumpington, refers; nor do I believe that they should.
Lord Gordon of Strathblane: My Lords, that leads beautifully to my question. Granted the overwhelming importance of the charter in constitutional terms, the agreement is none the less the document that deals with the nitty-gritty of day-to-day broadcasting. Can the Minister give us any assurance about parliamentary discussion of the BBC agreement?
Lord McIntosh of Haringey: Yes, my Lords. I can certainly say that there will be parliamentary discussion of the BBC agreement. It is a constitutional oddity that, although there is no requirement for the BBC charter to be considered by Parliament, there is a requirement for the agreement to be considered by the House of Commons because their Standing Orders require anything which affects communications across the sea—that is, the BBC World Service—to be considered by Parliament. But, of course, we intend to go very much further than that.
The detail of parliamentary scrutiny is at least in part a matter for Parliament. However, we certainly recall that in 1996 the previous government said that there would be an opportunity for each House to debate the document. They undertook that if either House were to demonstrate that it found the charter or the agreement unacceptable as drafted, the government would consider whether changes were necessary and, if so, would withdraw the documents and prepare new drafts.
Earl Russell: My Lords, in his first reply to my noble friend, the Minister—I believe that I quote him correctly—made a reference, first, to correcting mistakes by the BBC and, secondly, to preserving the independence of the BBC. Does he agree that there is, if not a contradiction, a certain potential tension between those two remarks? Does he also agree that the Government are not an impartial judge of impartiality?
Lord McIntosh of Haringey: My Lords, my remarks about correcting mis-statements were a direct response to an accusation made publicly by the noble Lord, Lord McNally. I made it clear that they have nothing to do with the charter review process or the independence of the BBC.
Lord Elton: My Lords, will the charter or the agreement define the balance of power and authority between the governors and the executive of the BBC, and can we be assured that that matter will be a subject of discussion in this House?
Lord McIntosh of Haringey: My Lords, the question of what detail is a matter for discussion in this House is, at least in part, as I said, a matter for this House—a matter for Parliament. My understanding—I could
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be wrong on this; I have not read the documents recently—is that the issue of the role of the governors is a matter for the charter and not the agreement. However, I shall write to the noble Lord, Lord Elton, if I am wrong about that.
Lord Sheldon: My Lords, is my noble friend aware that the BBC is the only one of our media which is not beholden in some way to proprietors, advertisers or the government? As that is so, is it not clear that it is the only truly independent voice—one of our few successful institutions—and that any aspect of charter renewal must preserve that distinct position, which has been of outstanding benefit to our country over the past 80 years?
Lord McIntosh of Haringey: My Lords, I entirely agree with what my noble friend Lord Sheldon has just said. That is why I have already said that we shall, at all costs, maintain the independence of the BBC. That is why, in relation to the charter review, I also said that the process will be wide-ranging and thorough and that it will include a public debate and opportunities for parliamentary scrutiny. I believe that those are the assurances which my noble friend seeks.
Lord Eden of Winton: My Lords, does the Minister have some sympathy with the BBC with regard to its charter requirement to maintain a proper balance and to be even-handed in all respects? For example, with regard to the Prime Minister's speech yesterday to the TUC, which version would the BBC have been correct in reporting—the robust version handed out in the official statement or the weaker, wetter version, being what was actually said to the TUC?
Lord McIntosh of Haringey: My Lords, I do not believe that it would be at all appropriate for me to comment on the BBC's treatment of the Prime Minister's speech. But my understanding is not the same as that of the noble Lord, Lord Eden.
Baroness Buscombe: My Lords, in looking forward to charter renewal, do the Government agree that if the BBC was fully under the remit of Ofcom—an independent regulator—the current row leading to the Hutton inquiry would not have escalated in the way that it has?
Lord McIntosh of Haringey: My Lords, that is a hypothetical question on which the noble Baroness, Lady Buscombe, is entitled to form her own views. I shall not anticipate the form which the charter review will take or the role of Ofcom in any final BBC Charter or agreement.
Lord McNally: My Lords, do not the Minister's replies make an unanswerable case for the recalling of the Puttnam committee, particularly because the noble Lord, Lord Puttnam, is extremely good at sequels?
Lord McIntosh of Haringey: My Lords, I realise that sequels are often very popular but, on the whole,

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sequels tend to be poorer than the originals. That is not in any sense a criticism of my noble friend Lord Puttnam or of any of his colleagues.

Asylum Seekers: Legal Aid
3 p.m.
Lord Aveburyasked Her Majesty's Government:
What responses they have had to the consultation papers issued by the Lord Chancellor's Department on 5th June and the Legal Services Commission on 2nd July on proposed changes to the general civil contract for both private solicitors and not-for-profit organisations.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): My Lords, we received some 250 responses to the department's consultation paper on the future of publicly funded immigration and asylum work. The Legal Services Commission received 17 responses to its paper on proposed contractual changes. We are currently collating and analysing the responses.
Lord Avebury: My Lords, would it be fair to say that the opinion of the organisations representing asylum seekers, including the Law Society and learned counsel instructed by the Refugee Legal Centre and by the Immigration Law Practitioners' Association, was that the proposed limits of five hours' advice on preparation of an application and four hours on an appeal are wholly unrealistic and irrational; and that the manner in which they were prepared may have been unlawful?
Does the Minister agree that because of the procrustean time limits imposed on representatives. some genuine refugees will be sent back to their countries of origin to face torture and possible death? Does he accept that some of the best practitioners are likely to give up because they will not be able to deliver an adequate service; and if that happens that the LSC may be in breach of its duty under the Access to Justice Act? So will the Government withdraw these proposals and get the LSC to enter into consultation with providers on setting benchmarks and on other means of reducing the costs of legal aid?
Lord Filkin: My Lords, I shall seek to pick about two questions from the five asked. The noble Lord is quite right on the first point, that the proposal to put a cap on the level of legal aid expenditure on individual asylum cases did not meet with strong support from lawyers. That was perhaps not surprising. Nevertheless, it opens up a serious issue that must be looked at by the Government and by the legal profession as to how one copes with the fact that legal aid expenditure on immigration and asylum has doubled since the year 2000 and that the average cost of each case of legal aid has doubled since the year 2000.
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There was no illegality whatever in the process by which that consultation paper was put out. Of' course, as ever, we are giving serious thought to the responses. But there is no doubt that government have to act in this area in order to fulfil their responsibility both to the taxpayers ill giving value, to ensure that the legal aid system is protected for the benefit of others and to ensure that there is a fair hearing for people who claim asylum in our country.
Lord Archer of Sandwell: My Lords, while accepting the need to ensure value for money, has my noble friend grasped that the cases which solicitors will hesitate to accept will be the more complicated ones because they will not be able to do justice to those under the new regime? Will that not be likely to lead to the more complicated cases falling to the non-profit-making organisations; and does my noble friend consider that that will contribute to speeding up the hearing of asylum cases, which is the very laudable intention of the Government?
Lord Filkin: My Lords, clearly where remuneration is on an average cost basis there is always a question as to whether work is displaced to other providers. Obviously, the Government were aware of that kind of issue when they put forward the proposals for consultation. I come back to the essential point that it is not just the level of spend that has been rising on legally-aided immigration and asylum work, there has been clear evidence of abuse of over-claiming, some evidence of touting for business and some evidence of poor quality work and advice.
As well as the points addressed by the noble Lord, Lord Avebury, the consultation paper also looked at how to bring in accreditation for lawyers in order to ensure that the work of those firms which provide first-class, high-quality advice services to asylum claimants is replicated and that those who do not provide good quality work do not continue to be state-funded in this way.
Lord Goodhart: My Lords, during the passage of the Access to Justice Act 1999 we on these Benches pointed out the undesirability of having a single pot of money to fund all forms of legal aid. Does the Minister accept that we have been proved right and that increases in criminal and immigration spending have led to real cuts in civil legal aid, which has been cut in cash terms by 15 per cent over the past three years? Is it not right that this should be funded separately and that civil legal aid should be ring-fenced from the increases which have resulted from increased spending on criminal and immigration cases?
Lord Filkin: My Lords, I do not, because the realities of life are that, whether or not one puts things into separate pots, there is ultimately one pot which is the Government's overall resources from taxation and other sources; and governments have to make judgments about how to deploy that. The reality is that it is not just legal aid on immigration and asylum that has been rising but legal aid expenditure generally. We

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now spend £1.9 billion per year on immigration and asylum; only a few years ago—in 1997–98—we spent £1.5 billion. So there has been general pressure.
The other point in this respect of which the House should be aware—lest there is any danger of an impression that we are mean, cheap or resistant to supporting appropriate justice and hearings for asylum claims—is that I cannot find another country in Europe with anything like the quality of legal aid and advice given at initial hearings compared to this country. Austria, France, Germany and Italy provide no effective legal aid system at initial hearings.
So, while there is a need for reform, we should not get carried away with the view that we are looking to, in a sense, do other than uphold justice and fairness for asylum seekers while fulfilling a duty to getting economy out of the system.
The Countess of Mar: My Lords, I declare an interest as a member of the Immigration Appeal Tribunal. Is the noble Lord aware that there is a very noticeable difference between efficient and inefficient firms? Some clearly run a case for as long as possible even though it is absolutely hopeless while others deal with matters very smartly in a very short period of time and probably save taxpayers a huge amount of money. Is not the answer proper supervision by the Legal Services Commission?
Lord Filkin: My Lords, the noble Countess is absolutely right. There are some instances—I shall not detail the firms—where it is quite clear that the quality of work is not good, there is over-claiming and unmeritorious cases are being pursued. She is also right that a proper system of regulation—the accreditation system I referred to previously—must be part of the answer. Therefore, we are moving towards implementing that aspect of the proposal in the consultation paper, which found substantial support from many who responded to the invitation to consult.
Lord Phillips of Sudbury: My Lords, does the Minister realise that his answers work in exactly the opposite direction to the object he has just enunciated; namely, proper and good legal advice? My own firm—I declare an interest—has a legal aid franchise for immigration and asylum work. In a typical case, it takes my colleagues 10 to 12 hours to deal assiduously with an immigration application. The maximum amount of time to be permitted, if these proposals go through, is three hours. I put this dilemma to the Minister. In that position what would he do? Would he abandon legal aid—and a great many firms are on the point of doing that—or would he skimp the work, which the good firms are unwilling to do?
Lord Filkin: My Lords, I would look at some of the current practices by which legal time is spent on immigration and asylum cases. For example, if someone is a minor or has some mental incapacity
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there is a real benefit in having a lawyer present at the initial interview. However, we have not been able to identify much added value provided by having a lawyer sitting watching an interview between a Home Office official and an applicant for asylum. The research evidence does not show that that provides much benefit. Indeed, in most cases firms that claim for time put in on such cases often send a junior person rather than a qualified lawyer but, of course, claim the full rate.

Iran: IAEA Report
3.11 p.m.
Lord Corbett of Castle Vale: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. I remind the House that I chair the British Committee for Iran Freedom.
The Question was as follows:
To ask the Government what is their response to the report of the International Atomic Energy Agency into Iran's nuclear weapons development.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, the United Kingdom has long-held concerns over Iran's nuclear ambitions. So do others, as was made clear recently in the statements by the G8, the EU and EU/US summits. The House will wish to know that the report of the International Atomic Energy Agency is currently under discussion by the board of governors in Vienna. Her Majesty's Government hope that the board will adopt a robust position on this issue.
Lord Corbett of Castle Vale: My Lords, I thank my noble friend for that reply. Can there be any doubt that the mullahs' regime in Tehran, which uses terror at home and sponsors it abroad, is trying to deceive the world over its nuclear weapons programme, which was revealed to the world last year by the National Council of Resistance of Iran? May I take it from what my noble friend said to me that the United Kingdom is going to back demands by the director general of the International Atomic Energy Agency that the mullahs honour their international obligations and immediately permit intrusive and unannounced inspection of their nuclear facilities?
Baroness Symons of Vernham Dean: My Lords, I hope that my initial Answer made it clear that the fears expressed about Iran's nuclear capability have not been allayed. I can tell the House that I met Dr El Baradei, the director general of the IAEA, in Vienna only last week and naturally we discussed this matter. He has, as the noble Lord indicated, grave concerns. I hope that a robust response will come forward from the governors. I can also tell the House that I have agreed to meet the director general again, if possible, to discuss the matter further before the next governors' meeting, which is due to take place in November this year.
Lord Avebury: My Lords, did the noble Baroness note the statement by Foreign Minister Kharrazi asking for unspecified assurances from the IAEA before Iran will agree to sign the additional protocol which is necessary to allow the thorough inspections which are clearly warranted? This is in spite of the fact that this is a standard text that has been adhered to by some 35 other countries without difficulty. In the meanwhile, have there been any sites that the agency would like to have inspected to which a visit has been denied in the absence of the protocol? In the light of Iran's withdrawal of the ambassador in the United Kingdom, what influence does the noble Baroness think the UK can have in persuading Iran to comply with her international obligations?
Baroness Symons of Vernham Dean: My Lords, I have noted the points made in relation to Dr Kharrazi and it is our view that Iran should sign the additional protocol forthwith and without any conditions. I have made that clear to Iranian ministers when they have visited this country. As to the withdrawal of the ambassador, that was on a matter quite unconnected with this issue but I can tell the House that the ambassador is now back in London and I am very pleased that he is.
Lord Howell of Guildford: My Lords, if the noble Lord, Lord Corbett of Castle Vale, is right—I hope that he is—and this leads to an ultimatum to Iran to allow in the inspectors, and if that produces no co-operation from Iran, can the Minister tell us what would then be the next step? What sanctions are there to bring to bear on Iran? Would the British Government be prepared, for instance, to draft and propose a resolution at the United Nations raising the question of Iran's non-compliance with the non-proliferation treaty?
Baroness Symons of Vernham Dean: My Lords, I wish to be very careful on this matter because, as I have indicated to your Lordships, this is under active discussion in Vienna at the governors' meetings. I do not want to anticipate the outcome of a meeting which is clearly one where a number of different countries have differing points of view and we must try to reach international consensus.
Let me try to be a bit more helpful. If we do get a robust response from the governors, and if Iran continues to take no notice of the points of view put by the IAEA, there will be a further meeting of the governing body in November this year. That was why I indicated that I hoped I would be able to have further meetings in the intervening period between now and then. Of course there is a possibility that this matter might be referred to the Security Council but I and, I am sure, others hope that Iran will do the sensible and right thing and engage properly with the requests of the IAEA.
Lord Hannay of Chiswick: My Lords, I strongly support the robust line being taken. Does the noble Baroness agree that if, in the case of North Korea, it is
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felt necessary to address some of the security concerns of that extremely disagreeable regime at the same time as pressing very hard on its nuclear ambitions, when dealing with a much more sophisticated government like the Government of Iran it might be a good idea if the United States was also prepared to address some of their security concerns? Does she have any idea what the United States might be prepared to do in its relationship with Iran if Iran were to sign the additional protocol?
Baroness Symons of Vernham Dean: My Lords, it is always very difficult to draw direct comparisons; nobody knows that better than the noble Lord, Lord Hannay. If the Government of Iran have particular points that they wish to raise that are matters of genuine concern about their security, it is only right and proper to listen to those concerns. There is no secret about the fact that we have a different analysis of the way in which to encourage Iran to be part of the international community from that held by our friends in the United States. Where we disagree with the United States we try to persuade them that the role that we are adopting of engagement with Iran—critical engagement, certainly, but still engagement—is a better way of encouraging it to comply with international norms. Of course we will try to persuade the United States to encourage rather than disengage in the way that, regrettably, has perhaps been the case.

Business
Lord Grocott: My Lords, a very brief word about business a week this Thursday, that is 18th September. The usual channels have agreed that Starred Questions will be at 11.00 am.

Human Fertilisation and Embryology (Deceased Fathers) Bill
Baroness Pitkeathley: 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.—(Baroness Pitkeathley.)
On Question, Motion agreed to.

Local Government Bill
3.18 p.m.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Local Government Bill, has consented

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to place her prerogative and interest, so far as they are affected by the Bill. at the disposal of Parliament for the purposes of the Bill.
Bill read a third time.
Clause 3 [Duty to determine affordable borrowing limit]:
Lord Bassam of Brightonmoved Amendment No. 1:
Page 2, line 39, at end insert—
"( ) The power under subsection (7) is not to be read as limited to the specification of an existing document."
The noble Lord said: My Lords, Amendments Nos. 1, 3 and 4 have a similar purpose. They relate to Clauses 3, 15, and 21 which all include powers for the Secretary of State to make regulations referring to published codes of practice to which authorities are to have regard. These powers are crucial to our aim of basing the new capital finance system on independent codes of practice and accounting standards. The purpose of the amendments is to ensure that any revised editions of such codes are also covered by the regulations and thus apply immediately and automatically.
Much attention has already been focused on Clause 3 during Parliament's consideration of the Bill. It is the clause that underpins the prudential borrowing system. Authorities are required to determine their own affordable borrowing limits, and, in doing so, may be required to have regard to codes of practice specified in regulations. In the draft regulations under the power, we have of course specified the Prudential Code for Capital Finance in Local Authorities, an often-read document. which is being specially prepared by the Chartered Institute of Public Finance and Accountancy, CIPFA.
The regulations under Clauses 15 and 21 also refer to CIPFA codes. Clause 15 is a power to specify general guidance and in this case we have named CIPFA's Treasury Management code. The code is already widely used by authorities and sets out practice in such areas as investment and the management of debt.
Clause 21 deals with the accounting practices to be followed by authorities and enables the Secretary of State to specify proper practices. Here the regulations identify two other well established CIPFA codes: the Statement of Recommended Practice and the Best Value Accounting Code, which together lay down the basis of local government financial management and accounting.
We always intended that the regulations should refer automatically to new editions of these codes as they are published. It would be undesirable to have to make amended regulations whenever one of the codes was reissued. That could create uncertainty about the legal status of a new edition of a code. Also, any need for each revised edition to be approved by the Government might cast doubt upon our commitment to accounting practice as the basis for the capital
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finance system. Our policy here has the full support of local government and has been endorsed in another place.
This is an important issue, and we have recently reviewed the drafting of these three clauses. We now consider that the treatment of new editions of the codes should be clarified. These technical amendments therefore expand each clause to state that the references to codes are not limited to the existing editions. They simply ensure that the original policy intention is properly and effectively implemented. I beg to move.
Baroness Hamwee: My Lords, I have no objection to the amendments. But the more a Bill lists what might be included in provisions, the more one is in doubt about the things that are not listed. Although I understand what the Minister is saying, I find the approach quite difficult. If the Secretary of State specifies that an order or provision is wide open, let it be so, rather than suggest that it is in some way limited. Sometimes I find this approach more confusing than helpful.
Lord Bassam of Brighton: My Lords, I know that the noble Baroness rarely gets confused. We think that we have clarified the situation. I take the point that she makes, but I do not think that it has great bearing on the issue.
On Question, amendment agreed to.
Clause 11 [Use of capital receipts]:
Baroness Hanhammoved Amendment No. 2:
Page 5, line 35, leave out paragraph (b).
The noble Baroness said: My Lords, we have discussed the amendment twice: in Committee and on Report. My final remarks on Report were that I thought it likely that we would return to the matter, so here we are; we do not like summer holidays to get in the way of a good discussion. On Report the Minister said that the difficulty with the same amendment being tabled was that he had nothing new to say. But it seems to us that if you have a simple formula, you should stick to it. That is why we have made no attempt to look for different words.
Clause 11(2)(b) would enable the Secretary of State, by regulation, to snatch all or any part of a local authority's capital receipts. We know that the purpose behind that would be to pool those resources and redistribute them to other authorities not prudent or fortunate enough to have access to their own receipts.
There are three reasons for our concerns about that. The first is that debt-free councils could lose only what they have been able to raise from disposal of their housing stock. There are not many of them, but they feel very strongly that they have managed their affairs well and should not be penalised in that way, by ministerial whim.

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Other local authorities which are not in the same position may still need to support the provision of affordable housing or to maintain property that they still own. We made the point previously that to strip local authorities of such capital receipts jeopardises their ability to maintain their own property.
Under the Government's plans to create thousands of new homes, the money collected from these authorities is a drop in the ocean. But for small-scale development these receipts, in good hands and prudent councils, would potentially provide great flexibility.
The Minister has made the point on several occasions that some local authorities—those that would benefit from the redistributed resources—do not have such capital receipts, to which we must ask: why not? The policy for discounted sales to tenants, which the Labour Party did not much like for quite a long time but then embraced, has been available to all authorities for many years now. It seems hard that those who have implemented the policy vigorously and obtained capital receipts should have to support those who may have been less enthusiastic and more dilatory in their ability to do so. I beg to move.
Baroness Hamwee: My Lords, we support the amendment because we oppose the provision that it would ameliorate. To continue the theme of my earlier remarks, and to he utterly clear, we would have preferred to say that the Secretary of State may not make provisions through regulations that the whole or part of a capital receipt be paid to him. Perhaps that does not affect the thrust of the amendment.
The Bill is about freedoms and flexibilities. The clause seems to give with one hand and to take away with the other. I am aware that the Government said during the passage of the Bill that the provision is perfectly reasonable on the basis that receipts arise because the grant originally came from the Government. But some authorities received negative housing subsidies for decades and many have invested in their housing stock the income that they have received from lettings.
My analogy is that, if I give a gift, I do not expect to be able to say after 15 years or so, "You did jolly well: the stock market went up, you invested and got more than I thought you might get, so give me some back". If you make a grant and hand over money, in an environment where noble Lords on all sides say that local authorities should have greater freedom, autonomy and discretion, let the money follow what the mouth says. We support the noble Baroness's amendment.
Lord Hanningfield: My Lords, I support my noble friend Lady Hanham and what the noble Baroness, Lady Hamwee, said. I support particularly the point that the Bill is supposed to be about freedoms and flexibilities for local government. Although it gives some flexibilities and freedoms, there are one or two issues on which local government, as a united front across all parties, feels that more is being taken away
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than is given. This is one such issue. I hope that the Government, even at this late stage, could think again about this aspect of the Bill.
Lord Rooker: My Lords, it is quite right, tlt, theme of the Bill is freedoms and flexibilities. Although we are dealing with the same issue as we dealt with previously, and my answers will be the same, the arguments in favour of amendments are getting slightly weaker. My arguments are as robust as ever. The noble Baronesses would have difficulty arguing the case that they have just made to certain local authorities, and certainly to the tenants of some local authorities. But this is an important part of the Bill and I welcome the opportunity to discuss the amendment.
The amendment seeks to remove the Secretary of State's power to pool capital receipts. This would mean that many authorities would not get the resources they need to meet pressing demands for housing. Therefore, it is plainly unacceptable to the Government. My noble friends and I have said before that the redistribution of housing capital receipts has been, is, and will continue to be, a fundamental principle of housing capital finance. We believe that it is right that a portion of the proceeds from the sale of council housing be recycled for use in areas where housing need is greatest.
As has been explained before, the current arrangements are that local authorities are required to set aside a portion of their housing capital receipts. The flaw in that arrangement is that debt-free authorities are exempt from the requirement to set aside any portion of their right-to-buy receipts. Not having to set aside a portion of the housing capital receipts means that they are not contributing to the redistribution system that lies at the heart of the housing capital finance regime. Indeed, they may retain the receipts and use them for whatever purpose they wish.
For the avoidance of doubt, I repeat that an authority with debt is not necessarily good and an authority that is debt free is not necessarily bad—and vice versa. There is nothing intrinsically good or bad about being debt free: it is sometimes an historical accident of finance. The fact remains that debt-free authorities have been able to use certain money more than once and for expenditure other than on housing. We are determined to channel that money into housing.
I also wish to make the point, which I believe was raised by the noble Baroness, Lady Hanham, that these funds are not necessarily generated by good management of the council—by good planning, for example. They are raised because tenants are exercising their right to buy. As the noble Lady said, some authorities are more dilatory than others. However, if the local authority stops people exercising their right to buy, there is an adequate system of appeal. The local authority must obey the law, and rightly so.

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On the other hand, some authorities have not done as well as others because their stock is rubbish and their tenants do not want to buy it, even at the knock-down prices that they are offered. It is therefore not fair to say that authorities have not done well if they have not generated enough receipts. That is an unfair portrayal of local authority housing, which is very uneven throughout the country. The authority has no influence on the disposals. It does not manage them. Therefore, the authority should not be able to claim credit for them. The disposals are solely in the hands of tenants who exercise their right to buy.
We believe that redistribution must apply to all if it is to be fair to all. It is unacceptable that some authorities should have more access to resources than others, regardless of their need, simply because they happen to be rich in right-to-buy receipts and are debt free. Without redistribution, local authorities with debt, lower capital receipts and a greater housing investment need will lose out. That is irresponsible and it would be quite indefensible to allow that to happen.
The current means of redistribution based on set-aside will cease to be available when the new capital finance system is introduced. Pooling is the mechanism that will replace it and redistribute housing capital receipts for all local authorities.
I am aware—and I make no apology for this—that these are exactly the same arguments that I used on Second Reading, in Committee and on Report. As the noble Baroness, Lady Hanham, said, the case is virtually the same, although I believe that the noble Baroness introduced a weakness by chastising authorities with low capital receipts by saying that it is their fault because they were dilatory in the selling. The selling is not theirs to control; it is the tenants'. Perhaps the stock is rubbish and the tenants will not take it off the local authorities' hands.
My arguments have not changed, because we think that it is right that the resources generated by the sale of council housing stock be recycled and made available for the areas of greatest need. The amendment would remove our ability to do that. The alternatives, as I have told the House before, are higher taxes, less investment in housing or cuts in other programmes. I have not heard from either of the proponents of this amendment which one of those three they recommend. Clearly, they are not prepared to put their names to higher taxes or to stand up in this House and say, "Let's have less investment in certain areas". They are certainly not prepared to stand up in this House and name the areas of local expenditure that should be cut to pay for their amendment—and I am not surprised.
If the amendment is pressed, the noble Lords who tabled the amendment are duty bound to say which alternative they would put in its place. They are not prepared to do that, so I hope that they will not press the amendment. It has been round the course several times. Some parts of local government think that the measure does not offer 100 per cent freedom of flexibility but there is a general view that it is very close to that. It is good governance and good use of public
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funds placed in areas based on housing need. That is all that this is. It is not confiscation, but a method of re-directing money to areas of the greatest housing need. With all due respect, I do not understand how anyone can seriously oppose that policy.
Baroness Hanham: My Lords, I can and I do, and this is the third time that I have said that. I used very similar arguments in my speeches about this matter on other occasions. "Redistribution" is a word that probably falls better from the Minister's lips than from mine, as does "pooling".
The Minister's case for redistribution is that the money goes to authorities with greater need, but we would argue about where that is. In these days, local authorities need key workers, and key worker accommodation. There are many areas that are perhaps not quite as destitute as others, but where key worker housing is absolutely imperative. It is important that they have the capital for that and we would expect to see capital receipts used for that purpose.
The measure removes a flexibility. It removes the flexibility for authorities that have receipts to use them for affordable housing for specific needs. I am almost certain that, under the Deputy Prime Minister's mantle—his sustainable communities—everything in the future will go one way. The decisions about where key worker housing goes will have little to do with individual local authorities and everything to do with the Deputy Prime Minister. The little pot of gold that might helpfully be used by local authorities would be taken away by paragraph (b).
I disagree with the Minister about some authorities being more dilatory than others, because some authorities never promoted the right to buy and the sale of housing stock. It should have been promoted, because many people needed the issue to be put before them so that they could consider it. Some authorities are still not as energetic as others. Sometimes that is with good reason—blocks of flats, for example. Some authorities have not been as assiduous as others. They have not recouped the capital receipts that they might otherwise have done.
We have trotted round this field now on three occasions. All that I can do is to seek the opinion of the House on this matter.
3.38 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 133; Not-Contents, 118.

Division No. 1

CONTENTS

Aberdare, L.

Anelay of St Johns, B.

Addington, L.

Ashcroft, L.

Alderdice, L.

Astor of Hever, L.

Allenby of Megiddo, V.

Barker, B.

Alton of Liverpool, L.

Beaumont of Whitley, L.

307

Biffen, L.

McNally, L.

Blatch, B.

Maddock, B.

Bridgeman, V.

Mar and Kellie, E.

Brooke of Sutton Mandeville, L.

Marsh, L.

Brougham and Vaux, L.

Masham of Ilton, B.

Burnham, L.

Mayhew of Twysden, L.

Buscombe, B.

Miller of Chilthorne Domer, B

Byford, B.

Molyneaux of Killead, L.

Caithness, E.

Montagu of Beaulieu, L.

Campbell of Alloway, L.

Mowbray and Stourton, L.

Carlisle of Bucklow, L.

Moynihan, L.

Carnegy of Lour, B.

Murton of Lindisfarne, L.

Carrington, L.

Noakes, B.

Clement-Jones, L.

Northesk, E.

Cope of Berkeley, L.

Northover, B.

Courtown, E.

Norton of Louth, L.

Crathorne, L.

O'Cathain, B.

Deedes, L.

Palmer, L.

Denham, L.

Park of Monmouth, B.

Dixon-Smith, L.

Parkinson, L.

Dundee, E.

Pearson of Rannoch, L.

Eden of Winton, L.

Peyton of Yeovil, L.

Elles, B.

Phillips of Sudbury, L.

Elliott of Morpeth, L.

Plumb, L.

Elton, L.

Plummer of St. Marylebone, L

Erroll, E.

Quinton, L.

Ezra, L.

Rawlings, B.

Falkland, V.

Reay, L.

Feldman, L.

Rennard, L.

Fookes, B.

Renton, L.

Fraser of Carmyllie, L.

Roberts of Conwy, L.

Geddes, L.

Rodgers of Quarry Bank, L.

Gilmour of Craigmillar, L.

Rogan, L.

Goodhart, L.

Roper, L.

Hamwee, B.

Rotherwick, L.

Hanham, B.

Russell, E.

Hanningfield, L.

Ryder of Wensum, L.

Harris of Richmond, B.

St John of Fawsley, L.

Henley, L.

Sandberg, L.

Higgins, L.

Seccombe, B. [Teller]

Hodgson of Astley Abbotts, L.

Selsdon, L.

Holme of Cheltenham, L.

Sharman, L.

Hooson, L.

Sharp of Guildford, B.

Howe, E.

Sharples, B.

Howell of Guildford, L.

Shutt of Greetland, L.

Hunt of Wirral, L.

Skelmersdale, L.

Hurd of Westwell, L.

Smith of Clifton, L.

Hylton, L.

Soulsby of Swaffham Prior, L.

Jellicoe, E.

Stevens of Ludgate, L.

Jenkin of Roding, L.

Stoddart of Swindon, L.

Kimball, L.

Strathclyde, L.

Knight of Collingtree, B.

Swinfen, L.

Laing of Dunphail, L.

Thatcher, B.

Lamont of Lerwick, L.

Thomas of Gwydir, L.

Lane of Horsell, L.

Tordoff, L.

Livsey of Talgarth, L.

Trumpington, B.

Lucas, L.

Tugendhat, L.

Luke, L.[Teller]

Ullswater, V.

McColl of Dulwich, L.

Wakeham, L.

MacGregor of Pulham Market, L.

Walmsley, B.

Williams of Crosby, B.

Mackie of Benshie, L.

Willoughby de Broke, L.

NOT-CONTENTS

Acton, L.

Blackstone, B.

Allen of Abbeydale, L.

Boothroyd, B.

Archer of Sandwell, L.

Borrie, L.

Armstrong of Ilminster, L.

Bridges, L.

Ashley of Stoke, L.

Brooke of Alverthorpe, L

Ashton of Upholland, B.

Campbell-Savours, L.

Barnett, L.

Carter, L.

Bassam of Brighton, L.

Christopher, L.

Berkeley, L.

Clarke of Hampstead, L.

Bernstein of Craigweil, L.

Clinton-Davis, L.

Billingham, B.

Cohen of Pimlico, B.

308

Corbett of Castle Vale, L.

Lofthouse of Pontefract, L.

Crawley, B.

McCarthy, L.

David, B.

Macdonald of Tradeston, L.

Davies of Coity, L.

Mclntosh of Haringey, L.

Davies of Oldham, L. [Teller]

McIntosh of Hudnall, B.

Dean of Thornton-le-Fylde, B.

MacKenzie of Culkein, L.

Dixon, L.

Mackenzie of Framwellgate, L

Donoughue, L.

Mason of Barnsley, L.

Dormand of Easington, L.

Massey of Darwen, B.

Dubs, L.

Merlyn-Rees, L.

Elder, L.

Mitchell, L.

Evans of Parkside, L.

Morris of Aberavon, L.

Evans of Temple Guiting, L.

Morris of Manchester, L.

Falconer of Thoroton, L. (Lord Chancellor)

Nicol, B.

Orme, L.

Farrington of Ribbleton, B.

Patel of Blackburn, L.

Filkin, L.

Pendry, L.

Finlay of Llandaff, B.

Peston, L.

Fyfe of Fairfield, L.

Pitkeathley, B.

Gale, B.

Puttnam, L.

Gavron, L.

Ramsay of Cartvale, B.

Gibson of Market Rasen, B.

Rendell of Babergh, B.

Golding, B.

Richard, L.

Goldsmith, L.

Richardson of Calow, B

Gould of Potternewton, B.

Rooker, L.

Graham of Edmonton, L.

Sawyer, L.

Greengross, B.

Sheldon, L.

Greenway, L.

Simon, V.

Grocott, L. [Teller]

Slim, V.

Harrison, L.

Smith of Gilmorehill, B.

Haskel, L.

Smith of Leigh, L.

Haskins, L.

Strabolgi, L.

Hayman, B.

Symons of Vernham Dean, B.

Hilton of Eggardon, B.

Temple-Morris, L.

Hogg of Cumbernauld, L.

Thornton, B.

Hollis of Heigham, B.

Tomlinson, L.

Howie of Troon, L.

Turnberg, L.

Hughes of Woodside, L.

Turner of Camden, B.

Hunt of Kings Heath, L.

Varley, L.

Irvine of Lairg, L.

Walpole, L.

Islwyn, L.

Warnock, B.

Janner of Braunstone, L.

Wedderburn of Charlton, L.

Jay of Paddington, B.

Whitaker, B.

Jones, L.

Whitty, L.

Judd, L.

Williams of Elvel, L.

King of West Bromwich, L.

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

Kirkhill, L.

Lea of Crondall, L.

Williamson of Horton, L.

Lipsey, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
3.48 p.m.
Clause 15[Guidance]:
Lord Rookermoved Amendment No.3:
Page 7, line 7, at end insert—
"( ) The power under subsection (1)(b) is not to be read as limited to the specification of existing guidance."
On Question, amendment agreed to.
Cluase 21 [Accounting practices]:
Lord Rookermoved Amendment No.4:
Page 9, line 28, at end insert—
"( ) The power under subsection (2)(b) is not to be read as limited to the identification of an existing document."
On Question, amendment agreed to.
Lord Hanningfieldmoved Amendment No. 5:
Before Clause 25, insert the following new clause—
"APPLICATION OF PROVISIONS OF THIS PART
The provisions of this Part may only be applied to those local authorities that have been identified by the Audit Commission as at risk of overspending their total budget by more than 10 per cent."
The noble Lord said: My Lords, we object to Part 2 because it potentially applies to all authorities, although the problems it would address affect a tiny minority. The amendment would restrict the potential effect of Part 2 to those authorities identified by the Audit Commission as likely to overspend their budgets by more than 10 per cent. According to the Audit Commission's latest report, Stewardship and Governance, that would bring 6 per cent of local authorities into the possible remit of these provisions. The amendment does not say that these provisions will apply to those 6 per cent of authorities; it says that these provisions can only apply to those 6 per cent of authorities.
I should like to remind your Lordships of some of the reasons as to why we are so concerned about Part 2. Throughout the passage of the Bill we have argued against the inclusion of these provisions. We have argued on the basis of principle; we have argued on the basis of practice. Both those lines of approach have failed to make any impact on the Ministers opposite, who have refused to recognise the disastrous message that this provision sends out to local authorities. If Ministers do not believe that to be the case, perhaps I may quote from the evidence of the Society of Local Authority Chief Executives to the Select Committee on the draft Bill.
"The prevailing attitude of mistrust of local government, however, is revealed once again in the Bill's clauses on financial administration".
In previous debates, the Minister went so far as to describe as irresponsible the suggestion that this provision should be challenged. He said that it was irresponsible of the noble Baroness, Lady Hamwee, to suggest that just because an authority does not get into trouble does not mean that it should not have a higher level of reserves. I refer your Lordships to Hansard, 16th July 2003, col. 901.
But that is precisely what it means. That is why we argue that these are local judgments. In its evidence to the Select Committee, the Chartered Institute of Public Finance and Accountancy (CIPFA)—to which the noble Lord, Lord Bassam, referred in his first amendment—stated:
"specifying a 'minimum level of reserves' for local authorities is impracticable and should be left to local judgment and good professional practice".
In making that statement it was well aware of the findings of the Audit Commission. The point was directly addressed in evidence to the Select Committee. CIPFA stated:
"I think the latest Audit Commission figures which have come out show that approximately 90 per cent of local authorities have adequate balances, the other ten per cent are judged by the auditors to have inadequate balances. However, when you look at the pattern of local authority spending … between 20 to 40 per cent of local authorities do overspend on individual directorate
310
levels in a year, virtually none of the local authorities actually end up having to reduce services as a result i.e. they have enough in their balances to cover those in year differences against actual budget".
Whether what is defined by the Audit Commission as an inadequate reserve actually leads to problems in practice is not relevant; it is key. The evidence is that in the vast majority of cases there are no problems. That is the evidence given by CIPFA. But it is not just CIPFA that has a problem with this provision. The Society of County Treasurers, in its evidence to the Select Committee stated:
"The proposals for the Secretary of State to specify that local authorities maintain their reserves at a minimum level would seem to be particularly problematic and unnecessary".
What about the Audit Commission? Surely, it must be in favour of this power. Its evidence to the Select Committee stated:
"To date Auditors have resisted making recommendations about minimum levels because it is rightly the responsibility of local authorities to determine this for themselves based on a risk assessment of their operational and business models".
Remember those words from the Audit Commission:
"rightly the responsibility of local authorities to determine this for themselves".
On these Benches, we agree with the Audit Commission. On these Benches, we agree with the Chartered Institute of Public Finance and Accountancy. On these Benches, we agree with the Society of Country Treasurers; we agree with the Society of Local Authority Chief Executives; and we agree with the Local Government Association.
We have tried a number of lines of argument with the Government. Most of the time they have failed to address the specific arguments that we have put forward. For example, in Committee and on Report, we suggested that the provision in Clause 26(2) would be ineffective because it only enables intervention at the end of a financial year—after the damage has been done. The Government have not addressed that.
We also queried the suggestion that the powers would be held in reserve. How does that commitment square with the insistence of the Government that they are taking these powers to deal with a large number of authorities identified by the Audit Commission as having inadequate reserves? If the powers have been taken to address that particular problem, surely they will be deployed against a large number of authorities, even if we know that, in practice, the vast majority will come to no harm.
We put the argument that making short-term decisions to protect a level of balances could cost local authorities an enormous amount of money in the long term. Ministers have not addressed that. There are so many arguments against this provision that we could come up with new ones all day.
Clause 26(2) states:
"In the case of a controlled reserve, it shall not be regarded as appropriate for the balance of the reserve at the end of the financial year under consideration to be less than the minimum amount determined in accordance with regulations made by the appropriate person".

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Throughout the debates on these clauses, Ministers have insisted that local authorities must have adequate reserves to meet unforeseen problems that might emerge during the year. But what they are committed to here is a minimum level of reserve at year end. Why do they need a minimum level of reserve at the end of the year? What if local authorities decided that problems over school funding were so severe in a year that they wanted to do something about it? They may have no particular spare cash, but they may have money in reserves which they may want to give to schools during that year. However, as the year progresses, the risk declines and they do not have to call on their reserves. Therefore, at the end of the year, if they chose to, some money could be given to schools from reserves. That is the freedom for local government. Whose judgment should it be that that money is better kept in councils' coffers than spent on services that they are there to deliver?
In our previous debates, the Minister said that this provision will come into play only where an authority ignores the advice of its chief financial officer. But it is quite within the bounds of possibility for that to happen. A chief financial officer's duty is to protect the financial standing of the council. A leader's duty, for example, with regard to children's services, is to ensure appropriate levels of funding. Money is extremely tight. These judgments are finely balanced. At the end of the day, because the Government lay different responsibilities on councils, they might reach different views.
I am trying to be helpful by showing that these issues are not quite as black and white as they are presented. We think that this clause should be removed. We disagree with it fundamentally. It is against local authorities of all parties. This is Third Reading and the amendment would put in the Bill a restriction on the possible scope of the exercise of this provision. People in local government object to the breadth of a power that even the Government admit they do not wish to apply generally. Why not limit the scope of the power to those authorities that are on course to overspend? On that basis, on the latest Audit Commission figures, that would bring about 6 per cent of authorities within the scope of these powers.
Ministers opposite have a great deal of experience and political wisdom. I hope that they will accept the amendment in the spirit in which it is tabled. It moves the argument forward in a practical way and makes the best of a bad job. I beg to move.
4 p.m.
Baroness Hamwee: My Lords, we support this amendment. The noble Lord listed those organisations and individuals with whom his Benches agreed in their criticism of the provisions. I would add to that list the noble Lord, Lord Smith of Leigh. I am sorry he is not in his place. At an earlier stage of this Bill he asked whether the Government really wanted this power because it would he so difficult to exercise. However, difficulty for the Government is not one of the problems I seek to address in supporting the amendment and opposing the provision in the Bill
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which it seeks to dilute. I said at Report that autonomy in local government, as elsewhere, requires capacity building. The more provisions in place which say, "Here is your freedom and flexibility but we retain a reserve power to take it away", the more that undermines autonomy. It undermines the capacity of individuals whom we seek to attract into public service which as we know, is a huge issue.
Chief finance officers do not get where they are through being irresponsible. If anything, they are a pretty cautious breed. I prefer to see authorities relying on the judgment not just of the politicians but also of the professional officers—I use the term professional in every sense of the word. I am surprised that the noble Lord, Lord Hanningfield, thinks that as many as 6 per cent of authorities might be on course to exceed the 10 per cent limit. I thought that this was a pretty smart clause because it will probably mean that almost no authorities will come within it. This is based on my limited experience of observing other authorities. This amendment is an interesting and fruitful way to reduce the impact of this clause, with which we, the LGA and CIPFA do not agree. We support this amendment.
Lord Bassam of Brighton: My Lords, I appreciate why noble Lords have tabled this amendment. The noble Lord, Lord Hanningfield, has made the point that it is perceived as an unnecessary burden on well managed authorities. I shall explain very carefully why we are continuing to resist this amendment to the new clause. I must set out why Part 2 needs to remain of general application and—this is important—why the particular form of the new clause makes it an undesirable addition to the Bill.
We have argued throughout that the powers and duties in Clauses 25 to 29 should apply to all authorities. I will come to Clause 30 later. We are not doing this because we wish to impose additional duties on authorities. These duties need to apply to all authorities because no criteria for selection will reliably identify the authorities that are in danger. The well run authorities with sound finances and sound procedures will automatically be complying with these duties and will feel no extra burden. The authorities that the noble Lord leads and the noble Baroness, Lady Hanham, has worked so tirelessly for, like the noble Baroness, Lady Hamwee, and many others, will experience no additional burden. But authorities change, and we regard these requirements as too important for their application to depend on anyone's assessment of the past performance of the authority or forecasts of its future.
All these clauses do is require authorities to comply with good practice. Most authorities already do so, but we have set out on a number of occasions during these debates the evidence that has led us to conclude that this good practice must be backed by statute. The need for sound finances is all the greater when major new financial freedoms are being given. Let me say again that the Government regard the provisions of Part 2 as an essential complement to the freedoms given elsewhere in the Bill and in particular to the prudential system.

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Turning now to the specific requirements of the new clause, the trigger for the application of Part 2 will be identification by the Audit Commission that the authority is at risk of overspending by more than 10 per cent. Assuming that was a practical proposition for the Audit Commission—and that is a very big assumption—what would be the implications of this risk for the finances of the authority? Say there was a risk of overspending by less than 10 per cent—say 8 per cent—but the authority only held reserves of two per cent of its budget. The authority would be at serious financial risk, but the new duties and powers of Part 2 would not be available.
Perhaps a real life example would help noble Lords to focus on this issue. When the chief finance officer of Hackney issued his Section 114 report in October 2000 he estimated an overspend of between £14.5 million and £22 million. The reserves were £6.5 million. The general fund budget for the year was £264 million. The reserves were therefore insufficient, but the projected overspend was less than 10 per cent of the budget. The Audit Commission, even if it could have foreseen that development, would not have identified Hackney under the new clause. So the Part 2 provisions would not have applied in one of the most serious financial crises to have hit a local authority in recent years. On the other hand, authorities at risk of overspending by more than 10 per cent might hold reserves adequate to cover this risk. There would be no reason to put them on what would certainly be seen as an Audit Commission blacklist.
The amendment runs into precisely the objection to crude rules of thumb that we have been accused of in Government. The advice on reserves that a chief finance officer will give under Clause 25 will be tailored to the circumstances of the authority. As the noble Baroness said, these chief finance officers are very wise people. And we have made clear that Clause 26 will not be used to impose blanket minima, but will be applied only to specific authorities. If a minimum was set under Clause 26, we would only do that after considering the advice of the chief finance officer and any observations of the auditor.
I would now like to turn to Clause 30. Clause 30 is a facility that helps authorities in serious financial difficulty deal with their problems. It has received a warm welcome in local government and from the LGA in particular. But the new clause says that it would only be available to authorities on the Audit Commission blacklist. Yet unforeseen financial crises can hit any authority. A major legal case, for example, might be lost unexpectedly and the authority be unable to cope with the damages awarded. It would be absurd to deny an authority the benefits of Clause 30 because it had not been put on the blacklist. This is another example of the perverse effects of this amendment. I seriously caution the noble Lord to think long and hard about those perverse effects.
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To sum up, this amendment does not achieve its aims. It does not accurately identify the authorities in financial danger. It risks prejudicing the financial reputation of authorities with sound finances, and it denies most authorities the benefit of Clause 30. It would be a highly undesirable change to introduce into the Bill, and I hope the noble Baroness and the noble Lord will rethink this carefully and agree to withdraw their amendment. I fear its consequences.
Lord Hanningfield: My Lords, I am very disappointed in the Minister's reply. It shows how out of touch he is with local government since he came to the Government Front Bench. Local government has changed a lot in the last two or three years, due to the policies of this Government. We have comprehensive performance assessment. I am a leader of a local authority as well as a Member of your Lordships' House. I see an auditor who looks after Essex County Council and all the district authorities in the county and meets with them about once a month. This is something new. We discuss the finances and the problems of that authority with the Audit Commission, so a report goes straight back all the time. Therefore, all the authorities in the land have a regular assessment of what they are doing, almost monthly. That is very new and operates in such a way as to make one feel that one is having an exam every month by the Audit Commission, which I do not feel is necessarily the right way to run local government.
This is the part of the Bill that local authorities dislike the most. Local authorities are increasingly being told by the national government how they should spend their money and what they should do. That has inevitable consequences for council tax. The noble Lord, Lord Rooker, argued in his first response about higher taxes, but this clause means higher taxes. Once we start off with one or two authorities, all authorities will be affected. Authorities are told how much they have to give schools and how much they have to have in their reserves, and the consequences are higher council taxes. Judgments about council taxes are much better left to the local authority. Decisions on levels of reserves are better left to the local authorities and their professional advisers, as the noble Baroness, Lady Hamwee, said.
The Minister's reply was disappointing. It shows that he does not really understand the unhappiness that local government feels about this part of the Bill—which is supposedly about freedoms and flexibilities—or the effect that CPA has had on the monitoring of local authorities, or how different the situation is now.
The amendment that we have tabled would at least limit the scope, and one hopes that it would be less than 6 per cent. The scope that the Government wish to take in the Bill is very dangerous. The amendment would limit the possibility of damage. I wish to test the opinion of the House on the amendment.
4.12 p.m.
On Question, Whether the said amendment (No. 5) shall be agreed to?
Their Lordships divided: Contents, 145; Not-Contents, 126.

Division No. 2

CONTENTS

Aberdare, L.

Lane of Horsell, L.

Addington, L.

Livsey of Talgarth, L.

Alderdice, L.

Lucas, L.

Allen by of Megiddo, V.

Luke, L.[Teller]

Anelay of St Johns, B.

Lyell, L.

Ashcroft, L.

McColl of Dulwich, L.

Astor of Hever, L.

MacGregor of Pulham Market, L.

Avebury, L.

Barker, B.

Mackie of Benshie, L.

Blackwell, L.

McNally, L.

Blatch, B.

Maddock, B.

Bridgeman, V.

Mar and Kellie, E.

Bridges, L.

Marlesford, L.

Brooke of Sutton Mandeville, L.

Masham of Ilton, B.

Brougham and Vaux, L.

Mayhew of Twysden, L.

Buscombe, B.

Miller of Chilthorne Domer, B.

Byford, B.

Molyneaux of Killead, L.

Caithness, E.

Montrose, D.

Campbell of Alloway, L.

Mowbray and Stourton, L.

Carlisle of Bucklow, L.

Moynihan, L.

Carnegy of Lour, B.

Murton of Lindisfarne, L.

Chadlington, L.

Newton of Braintree, L.

Chalfont, L.

Noakes, B.

Cope of Berkeley, L.

Northbrook, L.

Courtown, E.

Northesk, E.

Crathorne, L.

Northover, B.

Crickhowell, L.

Norton of Louth, L.

Dahrendorf, L.

O'Cathain, B.

Deedes, L.

Palmer, L.

Denham, L.

Park of Monmouth, B.

Dixon-Smith, L.

Parkinson, L.

Dundee, E.

Patten, L.

Eden of Winton, L.

Elles, B.

Pearson of Rannoch, L.

Elliott of Morpeth, L.

Peyton of Yeovil, L.

Elton, L.

Phillips of Sudbury, L.

Falkland, V.

Plumb, L.

Feldman, L.

Quinton, L.

Fookcs, B.

Rawlings, B.

Freeman, L.

Reay, L.

Geddes, L.

Redesdale, L.

Goodhart, L.

Rennard, L.

Greenway, L.

Roberts of Conwy, L.

Hamwee, B.

Rodgers of Quarry Bank, L.

Hanham, B.

Rogan, L.

Hanningfield, L.

Roper, L.

Harris of Richmond, B.

Rotherwick, L.

Henley, L.

Russell, E.

Higgins, L.

Hodgson of Astley Abbotts, L.

Ryder of Wensum, L.

Hooper. B.

St.John of Bletso, L.

Howe, E.

StJohn of Fawsley, L.

Howell of Guildford, L.

Saltoun of Abernethy, Ly.

Hunt of Wirral, L.

Sandberg, L.

Hurd of Westwell, L.

Seccombe, B. [Teller]

Hylton, L.

Selsdon, L.

Jellicoe, E.

Sharman, L.

Jenkin of Roding, L.

Sharp of Guildford, B.

Kimball, L.

Sharpies, B.

Knight of Collingtree, B.

Shutt of Greetland, L.

Laird, L.

Simon of Glaisdale, L.

Lamont of Lerwick, L.

Skelmersdale, L.

316

Smith of Clifton, L.

Thomson of Monifieth, L.

Stevens of Ludgate, L.

Tordoff, L.

Stewartby, L.

Trumpington, B.

Stoddart of Swindon, L.

Tugendhat, L.

Strathclyde, L.

Ullswater, V.

Swinfen, L.

Waddington, L.

Taverne, L.

Wade of Chorlton, L.

Wakeham, L.

Tebbit. L.

Walmsley.B.

Thatcher, B.

Warnock, B.

Thomas of Gwydir, L.

Williams of Crosby, B.

Thomas of Walliswood, B.

Willoughby de Broke, L.

NOT-CONTENTS

Acton, L.

Hunt of Chesterton, L.

Alli, L.

Hunt of Kings Heath, L.

Archer of Sandwell, L.

Irvine of Lairg, L.

Ashley of Stoke, L.

Islwyn, L.

Ashton of Upholland, B.

Janner of Braunstone, L.

Barnett, L.

Jay of Paddington, B.

Bassam of Brighton, L.

Jones, L.

Berkeley, L.

Judd, L.

Bernstein of Craigweil, L.

King of West Bromwich, L.

Billingham, B.

Kirkhill, L.

Blackstone, B.

Layard, L.

Boothroyd, B.

Lea of Crondall, L.

Borrie, L.

Lipsey, L.

Brooke of Alverthorpe, L.

Lofthouse of Pontefract, L.

Burlison, L.

McCarthy, L.

Campbell-Savours, L.

Macdonald of Tradeston, L.

Carter, L.

Mclntosh of Haringey, L.

Christopher, L.

Mclntosh of Hudnall, B.

Clarke of Hampstead, L.

Clinton-Davis, L.

MacKenzie of Culkein, L.

Cohen of Pimlico, B.

Mackenzie of Framwellgate, L

Corbett of Castle Vale, L.

Mallalieu, B.

Craig of Radley, L.

Marsh, L.

Crawley, B.

Mason of Barnsley, L.

David, B.

Massey of Darwen, B.

Davies of Coity, L.

Merlyn-Rees, L.

Davies of Oldham, L. [Teller]

Mitchell, L.

Dean of Thornton-le-Fylde, B.

Morgan, L.

Desai, L.

Morris of Aberavon, L.

Dixon, L.

Morris of Manchester, L.

Donoughue, L.

Nicol, B.

Dormand of Easington, L.

Orme, L.

Dubs, L.

Patel of Blackburn, L.

Elder, L.

Pendry, L.

Erroll, E.

Peston, L.

Evans of Parkside, L.

Pitkcathley, B.

Evans of Temple Guiting, L.

Prys-Davies, L.

Falconer of Thoroton, L. (Lord Chancellor)

Puttnam, L.

Radice, L.

Farrington of Ribbleton, B.

Ramsay of Cartvale, B.

Filkin, L.

Randall of St. Budeaux, L.

Finlay of Llandaff, B.

Rendell of Babergh, B.

Fitt, L.

Richard, L.

Fyfe of Fairfield, L.

Richardson of Calow, B.

Gale, B.

Roll of Ipsden, L.

Gavron, L.

Gibson of Market Rasen, B.

Rooker, L.

Golding, B.

Sawyer, L.

Goldsmith, L.

Sheldon, L.

Gould of Potternewton, B.

Simon, V.

Graham of Edmonton, L.

Smith of Gilmorehill, B.

Grocott, L.[Teller]

Smith of Leigh, L.

Harrison, L.

Stone of Blackheath, L.

Haskel, L.

Strabolgi, L.

Haskins, L.

Symons of Vernham Dean, B.

Hayman, B.

Temple-Morris, L.

Hilton of Eggardon, B.

Tomlinson, L.

Hogg of Cumbernauld, L.

Turnberg, L.

Hollis of Heigham, B.

Turner of Camden, B.

Howie of Troon, L.

Varley, L.

Hughes of Woodside, L.

Walpole, L.

317

Wedderburn of Charlton, L.

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

Whitaker, B.

Whitty, L.

Williamson of Horton, L.

Williams of Elvel, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
4.24 p.m.
Lord Jenkin of Rodingmoved Amendment No. 6:
After Clause 43, insert the following new clause—
"REVIEW OF PROPERTY OWNERS' CONTRIBUTION TO BIDS
(1) It shall be a duty of the Secretary of State to appoint an independent person to conduct a review of property owners' involvement in, and financial contribution to, BIDs.
(2) Such a review should be completed by September 30th 2005.
(3) The Secretary of State shall no later than three months after the completion of the review lay before Parliament a report—

(a) summarising the results of the review; and

(b) stating, with reasons, whether or not legislation should be introduced to require property owners to make a financial contribution to BIDs."

The noble Lord said: My Lords, I am sure that this amendment is of some discomfort to the Minister and the noble Baronesses, Lady Hamwee and Lady Maddock.
Lord Peston: My Lords, before the noble Lord proceeds, perhaps I may say that we are at Third Reading. The Companion to the Standing Orders is very clear on what it is permissible to do at that stage. We have been breaking that rule for the past hour. There are several amendments in the Marshalled List which cannot remotely fit in with what is said in the Companion. To bring in an entirely new clause tests the patience and the general proprieties of your Lordships' House beyond endurance.
Could someone advise us on whether we have abandoned the Companion and self-regulation and that a free-for-all is permissible at all stages of a Bill or do we have rules in this House? Could we have an answer to this question before we proceed?
Lord Tordoff: My Lords, the answer to the question is that there is no one who can stop it except the House itself. We are a self-regulating House, which is not doing so at the moment. This may be a matter to be considered by your Lordships' Select Committee, which is looking at certain matters regarding the speakership.
I agree with the noble Lord, Lord Peston. I am becoming increasingly fed up with the fact that Third Reading is being turned into Committee: the same arguments are being deployed. Unless some really new matter has arisen, to introduce a new clause seems to be outside the terms of the Companion.
Earl Russell: My Lords, if Third Reading is being turned into Committee, is that not in part because we are not exercising our right to vote at that stage so that business is not disposed of at an earlier stage?
The Earl of Erroll: My Lords, I support what the noble Earl has said. I remember that there were far
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more votes taken at Committee in the old days so that one disposed of most of the material then. Report stage involved tidying up and Third Reading was a formality. Because so much material is being introduced, people are now keeping the real fight to Report stage: everything is being delayed by one stage. I believe that is where some of the problem lies.
Lord Barnett: My Lords, I point out that Paragraph 6.132 of the Companion states that,
"The principal purposes of amendments on third reading are: to clarify any remaining uncertainties; to improve the drafting; and to enable the government to fulfil undertakings given at earlier stages of the bill".
It may be that the noble Lord, Lord Jenkin of Roding, can tell us how his amendment fits into any one of those three points. It is not clear to me.
Lord Jenkin of Roding: My Lords, perhaps I may now proceed. With the greatest respect to the noble Lord, Lord Peston, he might have waited to see what the amendment was about. He used the phrase "a totally new clause". In the first two or three lines I am going to explain the past history of the matter in Committee, on Report, and why it is entirely reasonable that we should suggest this proposed change at Third Reading having regard to the fact that the Committee stage was held in the Moses Room where no votes are taken. Report introduced a new element when the noble Lord, Lord Rooker, gave a commitment to a review. It is simply now a question of trying to make the review statutory. I believe that it is an entirely appropriate point to raise at Third Reading and I hope that I shall be allowed to get on with it.
Lord Peston: My Lords, I am truly sorry to interrupt the noble Lord. I am sure he believes that he is acting in our best interests, but unless the English language has lost all meaning it is incompatible with the Companion and with self-regulation and proceeding in a proper way, to which most of us have devoted our time
I apologise to the noble Lord in one respect. His amendment arises at a relevant time to raise a matter generally. The point I make is even more general. Several other amendments are about to be moved which also break the rules. I am totally in agreement with the noble Lord. Lord Tordoff. The trouble is that there is no one in the House who appears to be willing to take responsibility for dealing with the matter. It is ridiculous that Back-Benchers such as myself and the noble Lords, Lord Tordoff and Lord Barnett have to raise the issue. There should be someone else who pronounces so that the House can return to its proper way of behaviour. All I can do is to go on record as deploring what appears to have happened to your Lordships' House.
Baroness Hanham: My Lords, the amendment almost certainly falls within Paragraph 6.132 of the Companion, which states,
"to clarify any remaining uncertainties".

319
There have been uncertainties about this matter throughout and we have had to continue to adapt to them. Noble Lords have raised a very valuable point about not being able to vote at Committee. One stage of the Bill is truncated in terms of testing the response of the House.
4.30 p.m.
Lord Williams of Mostyn: My Lords, my noble friend Lord Peston may have been referring obliquely to me when he said that someone should stand up. If I had any marginal uncertainty, the noble Baroness, Lady O'Cathain, urged me vigorously to stand up.
I was not prepared to give any advice on this amendment to your Lordships, should it have been wanted, but my noble friend Lord Peston referred to two subsequent amendments. On this amendment, would it he a prudent course to note the various stances adopted and to bear in mind that there is currently a Committee on the Speakership of the House? If my noble friends Lord Peston and Lord Barnett feel it appropriate, they might wish—if they have not already done so—to make representations there. It may be convenient for your Lordships to hear the advice I am tendering on the basis of advice that I have received from the Clerks.
The other two amendments that might have been challenged—perhaps it is convenient to deal with them all now—are Amendment No. 13 in the name of the noble Baroness, Lady Blatch, and Amendment No. 19 in the name of the noble and learned Lord, Lord Brightman. The Clerks have given careful attention to the matter and they have come to the conclusion, and advised me, that neither Amendments Nos. 13 nor 19 fall foul of the rule in paragraph 6.133 on page 126 of the Companion.
Amendment No. 13 introduces a new issue. It has not been disposed of at an earlier stage, so it does not fall foul of paragraph 6.133 on the advice I have received because it deals with the conditions of local authority workers. Amendment No. 19 is different from the amendment of the noble Baroness, Lady Blatch, on Section 28. Some of your Lordships feel that Third Reading is not the time or place for amendments, but that is a different view.
That is the advice I have received from the Clerks, which I am transmitting to your Lordships. It does not relate to the amendment or point made by the noble Lord, Lord Jenkin, but I respectfully suggest that if one got to the substance of the matter, recording and inwardly digesting the view of my noble friends Lord Peston and Lord Barnett, which might be taken up by the Committee on the Speakership, that might be a convenient way of attempting some progress.
Lord Jenkin of Roding: My Lords, I am grateful to the noble and learned Lord the Leader of the House for recognising that the strictures probably do not apply to Amendment No. 6. I am also grateful to the noble Lord, Lord Peston, who indicated briefly that he was prepared to accept the same view. In the course of moving the new clause I hope to justify the view he took.
320
This is the third attempt on this side of the House with the support of the Liberal Democrats to remedy what is widely seen as a major lacuna in Part 4 of the Bill which deals with business improvement districts. Almost all of those concerned with the issue have welcomed Part 4, which was heralded by the Prime Minister in a major speech to local government in April 2001. It is certainly welcomed on all sides of the House.
Part 4 establishes a new procedure whereby business ratepayers can vote to pay an extra levy to fund specific improvements in a defined area of their town. If the vote is carried, then all will pay, subject to any exceptions spelt out in the scheme; that way there are no free riders. But only the occupiers of property have such a vote. If the vote is carried then only occupiers—that is to say ratepayers—can be made to pay.
Part 4 does not give any vote to the occupiers' landlords; the property owners. They can contribute, and those who choose to pay do so, but those who choose not to pay are free to enjoy any benefits of the improvements without contributing to the cost. That is a familiar problem, which I call "free riders".
Yet it has been comprehensively acknowledged by the Government at every stage of the Bill that property owners are often the prime movers in BID schemes. It has been perfectly clear that most schemes would not get off the ground without substantial owner leadership and financial support.
I come to the point that I believe is behind the complaint of the noble Lord, Lord Peston. In Committee amendments were tabled and debated at length to include property owners in Part 4. They were resisted by the Government—I hope I shall summarise the arguments fairly—because they were seen as a new tax on property owners, the introduction of which would require a considerable new administration that would fall mainly on local authorities, which collect the rates and the occupiers' levy. They would have to set up registers of land ownership and establish who should pay the BID levy and so on. I hope that that is a fair description of Ministers' arguments.
In Committee, the noble Lord, Lord Rooker, went further, and threatened that if the amendment were carried and the House insisted on writing it into the Bill, the Government would simply move to remove Part 4 altogether and the BID proposals would be stillborn. So we did not press the amendment; indeed one would not have been able to do so in the Moses Room.
On Report, another tack was tried. It was accepted that the provision could not be introduced in the Bill for the reasons spelt out by the noble Lord, Lord Rooker, but amendments were tabled to give power to add to the owners' levy by order so as to avoid having to come back to Parliament for fresh primary legislation. Ministers liked that even less; introducing a new tax by statutory instrument appeared to offend them grievously.
Instead, the noble Lord, Lord Rooker, offered a review of the experience of BID schemes with the implication that if it is established that the exclusion of

321
owners from any statutory rights and obligations under the BID scheme is harming the scheme, and if a case is made out for including them, that could be the subject for further legislation. The promise of a review was reinforced in a full letter of 25th July from another Minister in the Office of the Deputy Prime Minister, Mr Nick Raynsford to Sir Ian Henderson, who is the chief executive of the British Property Federation.
The prime purpose of the new clause is to make the review a statutory obligation, so in a sense it follows directly—if I may say so to the noble Lord, Lord Peston—as a consequence of what was offered on Report. I hope that it would be held to fall within the Standing Orders. It also takes the opportunity to provide for an independent person to conduct the review and for a shorter timescale for the review than that set out in Mr Raynsford's letter.
Mr Raynsford's letter spelt out the timetable envisaged by the Government. I hope that the House will bear with me, because it needs to be spelt out in full:
"The review … will have three stages. Firstly it will examine the ways in which the BID pilot projects have engaged property owners in the setting up of the BID and how effective this has been. This first stage will take place in the autumn of 2004 when we believe some of the BID pilots will be established. However, the review cannot simply examine lessons learned from the pilots because the pilots are receiving particular support and advice. Therefore the second stage of the review will examine how successful BIDs are at engaging property owners when they are evolving independently. This part of the review will take place throughout 2005 when we expect to see some BIDs established which have not been involved in the pilots … the third stage of the review will seek to measure the continuing involvement of property owners in BIDs once the initial results from their investment are evident. This means that BIDs that have already been established will be monitored throughout 2006, with the review drawing to a conclusion in January 2007".
That is gold-plating the review and taking an extended period before there can be any question of coming back to legislate to fill what many see as a great lacuna in the Bill. It is not acceptable to the property interests, who are the people who are primarily developing the BID process. I am very grateful to Mr Raynsford and to the noble Lord, Lord Rooker, for arranging a meeting on Monday at the ODPM where those matters were discussed with some of the representatives of the organisations involved. At the meeting, the property and retail sectors told the Minister that a large number of BIDs are planning to start collecting their BID levies from April 2005, covering the billing year 2005–06. From that date, it should therefore be apparent whether landlords are being involved and involving themselves in the BID planning process. Clearly, they told Ministers, that would give a good indication of whether a broad cross section of landlords are contributing funding, sitting on the BID boards and generally participating. If they are not, it was said, surely it would be prudent for the Government to take remedial action as quickly as possible rather than waiting until 2007 for the conclusion of the extended review process. One must also bear in mind the inevitable delay after that while
322
legislation is considered, while there is consultation on it, and when it can be introduced and taken through Parliament.
So what this new clause is proposing is that the review should be complete by the end of September 2005, compared with the Minister's date of January 2007. That would be followed by a report within three months. I feel that that is a perfectly adequate time to conduct a proper review.
The second point is that an independent review seems to me desirable to avoid any suspicion that the review would be coloured by the department's much-trumpeted reluctance to envisage having to introduce an owner levy. It seems to me—although I am sure that whoever is appointed by the ODPM to carry out the review will do his best—that it has taken a very firm view on this and would in effect be reviewing its own decisions.
The third point—and this is the one that I think Ministers really do have to take on board—is the question of making it a statutory review. This proposal reflects the fact that occupiers—which include, for example, the retailers and the occupiers of offices and bodies such as the British Retail Consortium—are deeply disappointed that there is no formal mechanism for requiring property owners to contribute to BIDs. They say that a statutory review would carry more weight in occupiers' negotiations with landlords to make voluntary contributions. The message would he that there is to be a statutory review. If landlords do not contribute voluntarily, then Parliament and the government of the day will consider whether they should be required to contribute compulsorily.
The strength of the message that a statutory review conveys would also provide those enlightened landlords who are prepared to participate with a greater degree of comfort that the issue of landlords' contributions remains one that the Government and Parliament are monitoring. The British Property Federation reports that many landlords in its membership are looking for a clear steer from Government that they will monitor the problem of free-riding from other landlords. A statutory review provides the clearest signal that that would be the case.
None of us mistrusts Ministers' good intentions, and there is no suggestion to that effect; not a bit of it. It is that with this new clause incorporated in what will be the Act, it will be much easier to convince doubting owners to stick with the BID process. That will help to ensure that the Prime Minister's aspirations for BIDs will actually be delivered. If those seem familiar words, they are quite deliberately put. It is turning aspirations into action and delivery.
I cannot for the life of me see why the Government should not accept this new clause as it stands. I beg to move.
Baroness Hanham: My Lords, I rise briefly to support my noble friend on Amendment No. 6. He has been very consistent through the course of these proceedings in trying to find a way whereby landlords can be harnessed into the BIDs process. I say to the

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noble Lord, Lord Peston, that a consistent theme throughout our consideration of the Bill has been how to harness owners into the BID process so that they are a committed part of it. A number of ways have been tried. This proposal seems to have all but the Minister's blessing for the review to be completed by an earlier date. I very much hope that the Government will accept that this is a sensible and time-rational way forward and accept the amendment so that we can move on with the support of everyone, including the landowners, who are very willing to be involved.
Baroness Hamwee: My Lords, as the noble Baroness has just said, property owners—landlords—are offering to pay money. I hope that the Minister, on behalf of the Government, will accept that offer with open arms. To do anything else would be bizarre.
4.45 p.m.
Lord Rooker: My Lords, notwithstanding the points made by the noble Lord, Lord Jenkin, it would probably be bizarre to accept the amendment at this late stage of the Bill. Although it is a very seductive proposition—all these people queuing up wanting to pay money—at the end of the day, I do not think that it would work out quite like that. I shall not go over the issues that we addressed previously. The noble Lord, Lord Jenkin, stuck to the issue—that the new clause has been tabled essentially because, not to put too fine a point on it, no one takes my word in Hansard. As Ministers' statements in this House are obviously not acceptable to businesses, they want this provision on the statute book. On the other hand, on the issue of owners and taxation, as I hope I made clear in Committee and at Report stage, one cannot introduce a new tax by way of statutory instrument. That would require much more fundamental legislation and major changes in, for example, the sanctions which we discussed in Committee.
We do not think that the amendment is necessary simply because, as I said, I gave assurances both in Grand Committee and on Report that the Government will undertake a review of the role of property owners in BIDs. Conversely, we would be stupid to look a gift-horse in the mouth if, as a result of introducing the BIDs—which everyone fully accepts is a first-class idea—there were a way of including property owners. The idea was not in the Bill initially, but to exclude it would he to look a gift-horse in the mouth. So we want to have a review, and we will have a review.
I detected a certain tone in the comments of the noble Lord, Lord Jenkin. I should perhaps say that my ministerial colleague Nick Raynsford is the policy Minister responsible for this matter. As the noble Lord is a former Secretary of State, he knows how the system works. I am not the policy Minister on this; I am simply here to speak for the Government on behalf of my colleague in another place. Nick Raynsford met the noble Lord during the week, and he has written to interested parties outlining the review process. So the lead policy Minister has written to the industry, and I have made statements in this House.
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I have been told to my face that we may not be in government when the review comes round—but so what? The civil servants are going to be there. The policy enunciated will still be there—the policy will not change. The Government have given a firm commitment on the Floor of this House. That can always be repeated in another place by means of Parliamentary Questions; there is no problem about that. There has also been a firm commitment in writing to the industry. We think that that is sufficient. We do not believe that a statutory obligation to do that should be necessary to persuade property owners that we are telling the truth and mean what we say.
The amendment seeks to limit the time period for the review to September 2005. We believe that that would undermine the credibility and effectiveness of the review. The British Property Federation, in previous discussions, has pointed out that the review must examine the way in which property owners are engaged in BIDs—or business improvement districts, for those watching us on the telly, which I suspect is nobody.
Noble Lords: Oh!
Lord Rooker: My Lords, the BBC keeps telling us that the House of Commons is back. To the BBC, the House of Commons is Parliament. That is how it works, is it not? I should not have said that. I did so only because I did not want to use the jargon. I shall repeat the sentence. The British Property Federation, in previous discussions, has pointed out that the review must examine the way in which property owners are engaged in BIDs—business improvement districts—over a couple of years to ensure that they do not renege on promises of support when the initial wave of enthusiasm dies down.
The form of the review that we have proposed seeks to meet those concerns. The first phase of the review will evaluate the BID pilot projects and other voluntary BID schemes to see whether property owners are being effectively engaged with business improvement districts at an early stage. We are already preparing to begin this first phase which will start in the autumn of 2004 and conclude in 2005. During 2005 and 2006 the review will focus on the business improvement districts that are up and running and that are preparing to begin. We do not realistically expect that more than a handful of business improvement districts will be up and running until 2005. One must be realistic. This is quite new. Therefore, that phase shall be vital to ensure that a thorough review takes place. The noble Lord's amendment would make that time too short.
The third stage of the review will focus on BIDs that have been up and running for 18 months to 2 years to check that property owners are still involved. However, if after stage two of the review, or even stage one, it becomes clear that there is almost no proper engagement of property owners in BIDs, continuing with stage three may not be appropriate. We are willing to be flexible in that respect. However, we are

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not willing to commit to a timetable before the outcome of the first stages of this review can be anticipated.
The noble Lord, Lord Jenkin, asked, as does the amendment, that an independent person be appointed to conduct the review. I was present at the meeting on Monday. I have not checked any of the notes, but so far as I know we did not discuss the independent person, because nobody offered to pay for them. I note that the appointment would be made by the Secretary of State—the Deputy Prime Minister. The argument could be, "Well, if we have appointed him, we are going to have to pay the salary and the fees". Where is the independence? I have to be careful. Nobody offered to put a kitty together to pay. Already our word is not taken on the Floor of the House that we will conduct the review. There is an insistence to put that into the Bill. Our faith is being questioned. This is not a personal matter between myself and the noble Lord, but that is the bottom line. The industry wants the matter on the face of the Bill. We could argue until the cows come home over how independent this person should be and who should pay for him. It should not be ourselves, because we would be held to be paying for that independent review, which would, therefore, not be independent.
The Office of the Deputy Prime Minister will have overall responsibility for co-ordinating the review, but a steering group of interested parties will be convened to oversee its progress. The representatives on this steering group have yet to be confirmed but I can assure the House that they will include property interests, business interests, as well as those with regeneration and town centre management experience. We will be happy to publish progress reports at the end of each stage of these reviews, a copy of which will be placed in the Libraries of both Houses and will be made available to the public.
We have every intention of conducting this review methodically and fairly. I have said before that at the end of the day we would be stupid to look a gift horse in the mouth if there was a way of allowing the property owners to be involved. It was impossible to do that in this Bill because it would be a new tax involving the whole system of collection, whereas the existing system based on the rates of the people who tenant the properties is already there. We are building on an existing system with no new infrastructure. My right honourable friend the Minister for Local and Regional Government, Nick Raynsford, and I have both given clear assurances. I repeat them today on behalf of the Deputy Prime Minister. I see no need for this amendment. I make no criticism of the effort to put these views on the record. Therefore, I hope that this will be taken as gospel by the property interests in that I mean what I say. If I go tomorrow, the person following me will say exactly the same things.
Lord Jenkin of Roding: My Lords, in a brief reply I wonder if the Minister would go just one stage further? Would he offer to publish interim reports as the review proceeds, so that if after the first wave it appeared that
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there was a serious problem of keeping property interests involved, at least that would become apparent? If the noble Lord could meet us in that way, perhaps we might save him some embarrassment.
Lord Rooker: My Lords, I shall repeat what I said. We have talked about a three-stage review, where we publish progress reports at the end of each stage. I cannot promise any more than that. I believe that I am being wholly reasonable. We will have representatives on a steering group to oversee the way the review is going—with property interests, business interests, and those with town centre management experience. What more can I offer?
Lord Jenkin of Roding: My Lords, I recognise, as a former Treasury Minister, that, subject to the inevitable Treasury constraints on this sort of matter—we had a brief word about that in Monday's meeting—the noble Lord and his colleague Mr Raynsford have gone probably about as far as they can. I hope that the Minister will recognise that the importance of this matter is all about putting the argument to doubting property owners. With the reinforcement that he has given, and with his putting the name of the Deputy Prime Minister behind it, I hope that the property interests concerned might be prepared to take that as a sufficient guarantee that their interests will be properly safeguarded by the review. In these circumstances it would be churlish to press the matter to a Division, although I came into the House firmly prepared to do just that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brightonmoved Amendment No. 7:
After Clause 63, insert the following new clause—
"RELIEF FOR REGISTERED COMMUNITY AMATEUR SPORTS CLUBS
(1) In section 43 of the 1988 Act (occupied hereditaments: liability), in subsection (6) (calculation of chargeable amount where ratepayer is a charity and hereditament is occupied for charitable purposes)—

(a) the words after "on the day concerned" become paragraph (a) of that subsection, and

(b) after that paragraph there is inserted ", or

(b) the ratepayer is a registered club for the purposes of Schedule 18 to the Finance Act 2002 (community amateur sports clubs) and the hereditament is wholly or mainly used—

(i) for the purposes of that club, or

(ii) for the purposes of that club and of other such registered clubs."

(2) In section 45 of the 1988 Act (unoccupied hereditaments: liability), in subsection (6) (calculation of chargeable amount where ratepayer is a charity and hereditament will next be used for charitable purposes)—

(a) the words after "on the day concerned" become paragraph (a) of that subsection, and

(b) after that paragraph there is inserted ", or

(b) the ratepayer is a registered club for the purposes of Schedule 18 to the Finance Act 2002 (community amateur sports clubs) and it appears that when the hereditament is next in use—

(i) it will be wholly or mainly used for the purposes of that club, and that club will be such a registered club, or

(ii) it will be wholly or mainly used for the purposes of two or more clubs including that club, and each of those clubs will be such a registered club."

(3) In section 47(2) of the 1988 Act (first condition for discretionary relief), after paragraph (b) there is inserted —
"(ba) the ratepayer is a registered club for the purposes of Schedule 18 to the Finance Act 2002 (community amateur sports clubs), and the hereditament is not an excepted hereditament and is wholly or mainly used—

(i) for the purposes of that club, or

(ii) for the purposes of that club and of other such registered clubs;".

(4) In section 48 of the 1988 Act (discretionary relief: supplementary), after subsection (2) there is inserted—
"(2A) A hereditament not in use shall be treated as wholly or mainly used for the purposes of a club that is a registered club for the purposes of Schedule 18 to the Finance Act 2002 (community amateur sports clubs) if it appears that when next in use it will be wholly or mainly used for the purposes of a club that is then, or two or more clubs each of which is then, such a registered club."
(5) In section 67 of the 1988 Act (interpretation of Part 3 of that Act), after subsection (10) there is inserted—
"(10A) The times at which a club is a registered club for the purposes of Schedule 18 to the Finance Act 2002 (community amateur sports clubs)—

(a) shall, where it is registered with retrospective effect, be taken to have included those within the period beginning with the date with effect from which it is registered and ending with its registration; but

(b) shall. where its registration is terminated with retrospective effect, be taken not to have included those within the period beginning with the date with effect from which its registration is terminated and ending with the termination of its registration.""

The noble Lord said: My Lords, I can see happy, smiling faces around the Chamber. I wonder why that is.
In Committee, the issue was dealt with by my noble friend Lord Rooker. He congratulated the noble Lord, Lord Phillips, on a brilliant amendment. He also said that that was followed by five brilliant speeches in support. As noble Lords are now well aware, the Government have now tabled our own amendment to that brought forward by the noble Lord, Lord Phillips of Sudbury, and the noble and right reverend Lord, Lord Sheppard of Liverpool, to reflect the all-party support that there appeared to be behind the thrust of those amendments.
I shall speak briefly to the amendments that we are proposing and then say a few words, hoping that I shall do the subject justice. Amendment No. 7 would amend the Local Government Finance Act 1988 and provide mandatory rate relief at both the occupied and unoccupied rates for registered community amateur sports clubs—CASCs—under Schedule 18 to the
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Finance Act 2002. Registered CASCs can also have this relief increased at the discretion of local authorities. That means that in many local authorities there will effectively be 100 per cent relief.
Sports clubs that do not meet the requirements for CASC registration and therefore mandatory rate relief will still remain eligible for discretionary relief. The decisions on those matters will rightly be a matter for individual local authorities. This will be good news for CASCs that play a valuable and influential role in promoting the health and social cohesion of their local communities, but have been unable to receive mandatory rate relief because of the complexities of charitable registration. I am sure that registered CASCs will welcome—and have already welcomed—the certainty that mandatory rate relief would provide through this much simpler route.
I am delighted that the Government have taken the initiative here. We deserve credit for recognising the important part that sports clubs play. I congratulate the noble Lord, Lord Moynihan, and the noble Lord, Lord Phillips of Sudbury, on their role in highlighting and underlining the importance of the matter. I also congratulate and thank my noble friend Lord Pendry. He discovered the important precedent that set us on this course. The move has been welcomed by the chief executive of Sport England. It has been recognised and welcomed by the Central Council for Physical Recreation. I pay tribute to their efforts over the years in arguing that case. I have volumes of correspondence going back over many years when I was leader of a local authority. The authors of that correspondence tried to persuade me to do something about the matter. The Government have acted decisively and great benefit will flow from that.
This morning I talked to the treasurer of St Peter's Cricket Club, a humble organisation which pays some £1,200 a year in rates to Brighton and Hove Council. Next year the £1,000 that it will save will be invested in its pavilion. I hope that that is replicated across the country. Derek Betts, the club's treasurer, a very careful man, tells me that the £1,000 will bring enormous benefit and enable the club to expand and extend its "colts" activity, from which my son benefits.If replicated country-wide, that kind of activity would be of enormous benefit. Credit is due to all those involved in the matter. I thank all those who argued the case for the measure. On this occasion we ought also to thank the Treasury for its magnanimity. I beg to move.
5 p.m.
Lord Phillips of Sudbury: My Lords, this is a red letter day for amateur sport in this country, not just because many millions of pounds will he retained by clubs such as St Peter's Cricket Club, Hove, as the noble Lord, Lord Bassam, indicated, but, much more importantly, because it will encourage tens of thousands of amateur sports clubs to register as CASCs.
It is worth reminding the House that this has been a four-year campaign and that this is the crowning of it. The first and crucial achievement occurred in the

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Finance Act 2002 when, for the first time ever, a new category of body was created—community amateur sports clubs—with exemptions from tax closely akin to those of charities. As we know, the one thing that was left out was mandatory 80 per cent rating relief. The amendment is not merely beneficial in itself—the measure will, of course, go on from year to year—but it will also unlock the uncertainty and scepticism that have, as I say, held back tens of thousands of small clubs from registering. I believe we all agree that amateur sport is not only one of the crowning cultural achievements of this country but is perhaps a greater source of local and communal pleasure than anything else.
I, too, give unstinted thanks to the noble Lords, Lord Bassam and Lord Rooker. The amendment has no enemies and at previous stages of the Bill they dealt with the matter extremely adeptly. I thank the civil servants who were involved in the matter. We have had an extremely fair and constructive hearing from the DCMS and, latterly, the Treasury. I thank the Treasury. As has been said, it had to agree to the measure and it must safeguard the public purse. I thank all noble Lords in this House, not a single one of whom has been anything but supportive of the measure. Finally—in many ways this is the most important thanks to give—I thank the sports fraternity, led, as the noble Lord, Lord Bassam, said, by CCPR. I should like to mention Nigel Hook. All in all, this is a great day and, what is more, it is a better amendment than mine because it deals with the extra 20 per cent above the 80 per cent mandatory relief and makes clear that CASCs will be entitled to the extra 20 per cent. I shall not move my amendment when we reach it. I vent a small cheer and give considerable thanks.
Lord Moynihan: My Lords, I also wish to congratulate all those involved in the long-running campaign, especially my predecessor, John Greenway, whose tireless work on the issue in another place has paid dividends today. I, too, congratulate the Central Council of Physical Recreation and add to the tributes paid to Nigel Hook, who is retiring. This is a red letter day for him. His encyclopaedic knowledge of sport and his enthusiasm are second to none. I pay tribute to noble Lords on all sides of the House, not least to the important work done over the years, characteristically diligently, by the noble Lord, Lord Pendry. I also pay tribute especially to the work done by the noble Lord, Lord Phillips of Sudbury. I thank the Ministers and the officials who accepted our case. It is a classic example of the maxim that if at first you don't succeed, try, try and try again.
This is, I hope, the first in a series of campaigns to raise the profile of sport. From these Benches we want to ensure that the importance of sport and recreation is re-established at the centre of the political agenda and is recognised as relevant to the objectives of every government department. That is why I am deeply grateful to my noble friend Lady Hanham and her
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team in local government for working so constructively to support 80 per cent mandatory rate relief for CASCs.
Today's victory goes to the heart of our vision for sport at the local level. It is about volunteer retention; engagement with local communities; youth involvement; the participation of the disabled in sport. It is about social inclusion and the goal of a healthier nation. It is not about today's Olympians; it is about where tomorrow's Olympians are to be found. It is an important step towards wider participation at a time when, despite, £1.6 billion going into sport from the lottery over the years, participation over that time has risen by only 0.3 per cent. That is why the litmus test of this amendment and this initiative is to increase the active membership of community amateur sports clubs. I hope that we shall be able to rectify the now unusual position that Northern Ireland faces of being worse off than the rest of the United Kingdom in respect of rate relief for amateur clubs.
In the spirit of welcoming the Government's U-turn, perhaps in conclusion the Minister can continue the spirit of co-operation and of cross-party support which should always be in the nature of the links between sport and politics, and announce today that the Government do not intend to pocket the tax from the proposed London Olympic lottery game but reinvest that tax directly into the success of the Games in London.
Lord Pendry: My Lords, I support this important amendment and I add my voice to those who have congratulated the Government on listening to those of us who have argued for years for mandatory rate relief for voluntary sports clubs.
I was particularly pleased that the noble Lord, Lord Bassam, confessed at Report stage that he was,
"not aware of the 65 per cent mandatory relief in Northern Ireland"—[Official Report, 16/7/03; col. 932.]
with regard to voluntary clubs. He said that he would review the situation, which he did. I pay tribute to the excellent work of the noble Lord, Lord Phillips of Sudbury, who has been a great campaigner on the issue for many years, as has the noble Lord, Lord Moynihan. Our congratulations must go to them. The CCPR and Nigel Hook have also been mentioned. His voice has been loud and clear on the matter. I do not wish to say much more except that common sense has prevailed. I refer to the benefits that accrue to the people of Northern Ireland as a result of this mandatory rate relief and to the local and wider communities. As the noble Lord, Lord Moynihan, said, Northern Ireland now has some catching up to do as a result of the amendment. I welcome it wholeheartedly.
The Earl of Caithness: My Lords, while supporting the amendment, I should like to ask the Minister one technical question. Who will pay for the rate relief? Will it be the general taxpayer or business?
Baroness Billingham: My Lords, before the Minister replies to that I add my congratulations to everyone who has been involved in what is, as has been said, a

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red letter day for sport. When I joined the House relatively recently, I found that a huge campaign had been mounted by people who are present in the Chamber today. I pay tribute to them and recognise the work that has been done by noble Lords. I pay tribute also to the Ministers. The measure is an important example of co-operation throughout the House. The House has shown me what a good friend it is to sport. Every debate we have ever had has shown a complete consensus on all sides. Not only do we realise that sport is fun—many of us have enjoyed it and continue to enjoy it, surprisingly, far past our teenage and our early years. We also know the other benefits that accrue from it, such as health and social inclusion. For all those reasons, this is a marvellous piece of work.
I do not want people outside this Chamber to read Hansard and think that this issue is of interest only to men. I want to say thank you on behalf of all the women and girls. They, too, love their sport, and I want it to be seen both in this Chamber and outside that they welcome the amendment. It is a marvellous achievement and I congratulate everyone concerned.
But the next thing I want to say to the Minister is: now we must make it work. We have had some bad press on community amateur sports clubs and we have to put that to rights. People have been disheartened, discouraged and frightened by what they have seen as the red tape involved in setting up community amateur sports clubs. Let us join together and make sure that we send this message out now: that is in the past. The future is much simpler, much more proactive and much more likely to benefit all our communities. I thank everyone who has been involved.
Lord Bassam of Brighton: My Lords, it is nice, as a Minister, to be the recipient of congratulations, and the congratulations that have been generally disbursed are well merited. I, too, wanted specifically to mention Nigel Hook. He is to retire shortly and, in a sense, this is almost a parting gift. I know from contact with him that he is extremely grateful for what has occurred.
I take the point that this provision must be made to work. I suspect that those in the local authority sector, the CCPR, Sport England and everyone else will want to see it work, and work well. It deserves to. It will bring immense benefits to those clubs that operate at the lowest possible level. In my local authority area, some 20 sports clubs will benefit from this. This is a city with a population of a quarter of a million. We can see, if we extrapolate that, the enormous benefits that will accrue across the country.
The question was asked: who will pay for this? In the end, does it much matter? I can tell the noble Earl that there will not be a cost to business. The money will come from general taxation. But, in general, business has a role to play in sponsoring and supporting sport, and it does that very well indeed. That will be reflected financially, I suspect, in the way in which the formula works. That is how these matters usually operate, and certainly that is how we intend to see it work.
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This is a great day for sport. It speaks volumes for what can be achieved when intelligent and rational debate takes place and when people put their point at exactly the right stage of a Bill. I am grateful for all the congratulations that have been expressed. They are certainly well merited.
On Question, amendment agreed to.
[Amendment No. 8 not moved.]
Clause 64 [Transitional relief]:
5.15 p.m.
The Earl of Caithnessmoved Amendment No. 9:
Page 32, line 26, leave out "be the same as or different from" and insert "subject to subsection (10A) below, be less than, but not greater than"
The noble Earl said: My Lords, in moving this amendment, I shall speak also to Amendment No. 10.
Governments of all persuasions have accepted that rating revaluations may produce significant increases in rate bills for individual ratepayers and that, therefore, a cushion should be introduced to avoid sudden and significant increases in such hills. That concept is not opposed by the amendments that I have tabled.
The Government are tightening the current rating system by introducing self-financing for transition within each financial year. The Bill also calls for any shortfalls in any year to be recovered by changes to the unified business rate in later years, thus removing; any chance of predictability ratepayers may have for their forthcoming rate liabilities. That makes the system a whole lot more complicated.
The Government intend to achieve this precise balance for transitional arrangements through two mechanisms, or through a combination of the two. The first mechanism is to balance the cost of cushioning rate bill increases by delaying reductions in rate bills when a ratepayer has not experienced an increase in rateable value. That is otherwise known as downwards transition.
The second mechanism is to make a simple, overall surcharge on the uniform business rate in order to pay for the cost of transition for ratepayers. I believe that this second approach is fairer to ratepayers if the cost of the surcharge is spread over the lifetime of a rating list rather than set every year.
The amendments do not—and never have done—fundamentally challenge the notion of self-financing. They merely seek to redress the unfairness of the means of making transitions self-financing—which the Government have admitted will include the system of downwards transition. Downwards transition means that, following a revaluation, ratepayers whose rateable values change by less than the national increase in rateable value will find themselves subsidising more successful ratepayers whose rateable value has increased, often as a result of their location in a growing business area. Independent research suggested that this policy cost ratepayers £1.3 billion in denied rate reductions between 1995 and 2000. I am sure that your Lordships will agree that that is

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fundamentally unfair and that it affects most harshly the very ratepayers, estimated by independent research to be in the hundreds of thousands, who are for the most part in small or medium-sized enterprises which find rates a disproportionate burden.
The amendments instead seek to facilitate alternative arrangements for transitional arrangements in England, identified by the independent report, The future of business rating transition in England, produced in time for this Bill, in February of this year. The report concluded:
"Compared with the current system, implementing any one of these schemes"—
the schemes that I have put forward—
"would have the advantages of speed of implementation, robustness, fairness, transparency and affordability",
in comparison to the Government's proposals.
The amendments would enable a government to avoid "downwards transition" through allowing a surcharge in the uniform business rate to be phased in over more than one year. That gives the flexibility that the Government need to avoid making transitional self-financing in each and every financial year and allows the Government a practical opportunity to avoid downwards phasing.
I wish to stress that my amendment would address the lack of flexibility that the Bill imposes on the Government. I was party to a mistake in 1988, when we did the same thing and left no flexibility at all. That had to be corrected in 1992; the Government had to redress the situation. I fear that the present Government are making the same mistake as we made in 1988.
My final point relates to the question that I asked on the previous amendment. For months, in the negotiations that we have had with the Government, they have turned round to us and said that there can be no money from the general taxpayer. The system that I have proposed is self-financing over a five-year period together with interest. It requires some investment from the general taxpayer in the first one or two years, which is then recouped; so at the end of the fifth year there has been no cost to the general taxpayer.
In his response to the previous amendment, the noble Lord, Lord Bassam, confirmed that the general taxpayer would be the person who bore the cost of the relief for sports clubs. That is a new and important step forward. It means that the Government will use general taxation for the benefit of some sectors. I also refer the noble Lord to the local retention of business rates. That, again, is being supported by the general taxpayer. Here, I propose a system that is not going to cost the general taxpayer any money over a five-year period. It will initially, but all that money will come back. It is better for business; it is more equitable for business. The amendment is strongly supported by the Royal Institution of Chartered Surveyors, the Rating Surveyors' Association and the Institute of Revenues, Rating and Valuation. I beg to move.
Baroness Hanham: My Lords, I briefly want to support my noble friend Lord Caithness as regards the
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amendment. I remember very well the last revaluation of business rates that took place. All I can recall is that not only was the issue terribly complicated, but it was very widely misunderstood and resented by business.
Having seen the four pages in the Bill that deal with this matter I think that there will be even more resentment. I do not suppose that anyone will be able to understand it. however hard they try. This seems to be an easily understood method of ensuring that a revaluation involving changes to people's tax, either up or down, is implemented in a way which shows fairness—which I do not think that the previous revaluation of rates ever absolutely managed to demonstrate. So I think this is a very neat way of dealing with the issue, and I very much hope that it will have the Government's support.
Baroness Maddock: My Lords, we, on these Benches, at previous stages of the Bill supported the noble Earl, Lord Caithness, in his efforts to deal with this very difficult issue. We continue to do so at this stage of the Bill.
The situation is particularly disappointing because the House of Commons' Select Committee inquiry into this Local Government Bill warned the Government about fettering their ability to contribute to the costs of transition. It pointed out the difficulties that the Government could get into if there was a downturn in business. But this Bill completely removes their ability to support transitional relief.
As the noble Earl said, it is disappointing that the Ministers at ODPM have not been able to persuade the Treasury as they did with sport because I consider this to be a similar kind of issue: it is about local matters, it is about small local businesses. We all know that our successful large businesses started as small businesses. I regret that the Government feel unable to keep an open mind and to give themselves the ability always to support small businesses.
Lord Bassam of Brighton: My Lords, Clause 64 assures ratepayers that there will be a transition scheme to accompany future revaluations. The existing provision in the Local Government Finance Act 1988 simply confers a power to establish a scheme, but does not impose a duty to do so. Business, including the CBI, has stressed the necessity of transition schemes.
The details of a future scheme—the annual increases and decreases in bills—will be decided in the run-up to the revaluation concerned, when the impact on individual rateable values will be known and more certain. But, as we stated in the White Paper Strong Local Leadership—Quality Public Services, any future transition scheme will need to be self-financing. There is no reason why the general taxpayer, as opposed to the ratepayer, should meet the cost of transitional relief. Accordingly, Clause 64 requires that the total rate yield for any year is not to be affected by a transition scheme.
The clause allows for flexibility in how schemes may be structured so as to be self-financing. The methods likely to be used include having a transition scheme

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which balances the rates lost through phasing in increases in bills against the rates gained by phasing in decreases. Such phasing of decreases in bills as well as increases has been a feature—as I am sure all noble Lords will acknowledge—of past schemes.
In addition to providing for a scheme which balances rate income lost through phasing in increases and rate income gained through phasing in decreases, this clause allows for an addition to rate bills generally as a means of making good the loss of rates resulting from phasing in increases in bills.
This clause also allows for a scheme which is funded by a combination of phasing in decreases and an addition to rate bills generally. This will allow us to put in place a fair and workable scheme.
The effect of these amendments is to make transition revenue neutral over a five-year period—instead of year by year as set out in the Bill—with the Treasury making a contribution to the cost of the scheme in the first years. The Treasury would need a way to recover in later years what it had paid in the early years. The Exchequer would also need to recover interest on what it had paid out in the early years of the scheme, and would need to recover a sum to offset the effects of inflation between paying out the sums concerned and recovering them. All this would make for a complicated calculation—the noble Baroness, Lady Hanham, said that it would be simple—which would also introduce an element of uncertainty for ratepayers.
A five-year revenue neutral scheme would be much more complicated to operate and far less intelligible to the ratepayer than a scheme which was revenue neutral year by year. Furthermore, it is our view that it is difficult to see any reason for such a scheme. Why should the general taxpayer in effect give a loan to ratepayers at the start of each transition scheme?
Transitional relief means that we are easing the burden on ratepayers. We do not believe that the general taxpayer should cover the cost of this. It seems fair to us that ratepayers in general should pick up that bill.
An attempt to make a scheme revenue neutral over the five-year life of a list would mean that at each revaluation complex estimates would need to be made in advance of announcing any transition scheme. If at the end of the fourth year it was discovered that the Treasury had not recouped the money it had contributed in the early years, rate bills would have to be increased to balance the scheme. That would create uncertainty for the ratepayer.
The noble Earl, Lord Caithness, asked why the general taxpayer should not pay for the transitional relief. As I have made clear, this scheme could cost billions of pounds. That would be a heavy burden on general taxpayers. He cited the previous amendment in aid of his case. The cost of relief to sports clubs will of course be far less; more importantly, it will be of tremendous benefit to non-profit-making bodies. Businesses, by their very nature, do not fall into that category. The cost of the relief granted is significant
336
but minuscule by comparison to the potential costs of the general taxpayer funding the transitional relief proposition contained within the amendments.
I hope that, having listened carefully to what I have said—although we may still disagree on this issue— that the noble Earl and the noble Baronesses who have spoken in favour of the amendment will think again and withdraw it today.
The Earl of Caithness: My Lords, I listened with great care to the noble Lord. I have to say to the noble Lord that it is only the Government—not the practitioners, not industry and not businesses—who think that their proposal will he less complicated than the one that I have submitted. Virtually everything the noble Lord said refers to the Government scheme and not to our scheme. Our scheme is more certain for businesses. It is much fairer for businesses. The Government's scheme will certainly cause mayhem. As a chartered surveyor I would say to the Government, "Thank you very much". Many of my colleagues will make a huge amount of money out of this by advising businesses. I want to do them out of some of that money. I want to make the scheme simpler, more straightforward and more transparent. I want to get rid of the uncertainty that the Government are creating.
The noble Lord said that the general taxpayer should not contribute. Overall, I totally agree. The general taxpayer will not contribute under my scheme. By the end of the five-year period, all the money, together with interest and inflation, will he reclaimed by the Treasury.
I am very grateful for the support of the noble Baroness, Lady Maddock, and my noble friend Lady Hanham. This is now the occasion to test the opinion of the House.
5.29 p.m.
On Question, Whether the said amendment (No. 9) shall be agreed to?
Their Lordships divided: Contents, 139: Not-Contents, 119.

Division No. 3

CONTENTS

Addington, L.

Caithness, E. [Teller]

Alderdice, L.

Campbell of Alloway, L

Allenby of Megiddo, V.

Carlile of Berriew, L.

Anelay of St Johns, B.

Carlisle of Bucklow. L.

Astor of Hever, L.

Carnegy of Lour, B.

Attlee, E.

Chalfont, L.

Barker, B.

Colwyn, L.

Beaumont of Whitley, L.

Cope of Berkeley, L.

Biffen, L.

Crathorne, L.

Blackwell, L.

Crickhowell, L.

Blatch, B.[Teller]

Dahrendorf, L.

Bridgeman, V.

Deedes, L.

Brooke of Sutton Mandeville, L.

Denham, L.

Brougham and Vaux, L.

Dixon-Smith, L.

Burnham, L.

Dundee, E.

Buscombe, B.

Eden of Winton, L.

337

Elliott of Morpeth, L.

Murton of Lindisfame, L.

Elton, L.

Newby, L.

Falkland, V.

Newton of Braintree, L.

Feldman, L.

Noakes, B.

Flather.B.

Northbrook, L.

Fookes, B.

Northesk, E.

Freeman, L.

Northover, B.

Gardner of Parkes, B.

Norton of Louth, L.

Geddes, L.

O'Cathain, B.

Gilmour of Craigmillar, L.

Onslow, E.

Glenarthur, L.

Palmer, L.

Glentoran, L.

Park of Monmouth, B.

Goodhart, L.

Parkinson, L.

Hamwee, B.

Pearson of Rannoch, L.

Hanham, B.

Peyton of Yeovil, L.

Hanningfield, L.

Phillips of Sudbury, L.

Hanson, L.

Plumb, L.

Harris of Richmond, B.

Plummer of St. Marylebone, L.

Henley, L.

Rawlings, B.

Higgins, L.

Reay, L.

Hodgson of Astley Abbotts, L.

Redesdale, L.

Holme of Cheltenham, L.

Rees, L.

Hooper, B.

Rennard, L.

Howe, E.

Roberts of Conwy, L.

Howell of Guildford, L.

Rodgers of Quarry Bank, L.

Hurd of Westwell, L.

Roper, L.

Jacobs, L.

Rotherwick, L.

Jellicoe, E.

Russell, E.

Jenkin of Roding, L.

St John of Fawsley, L.

Kimball, L.

Saltoun of Abernethy, Ly.

King of Bridgwater, L.

Sandberg, L.

Knight of Collingtree, B.

Scott of Needham Market, B.

Lamont of Lerwick, L.

Seccombe, B.

Lane of Horsell, L.

Selsdon, L.

Liverpool, E.

Sharman, L.

Livsey of Talgarth, L.

Sharp of Guildford, B.

Lucas, L.

Sharpies, B.

Luke, L.

Shutt of Greetland, L.

Lyell, L.

Skelmersdale, L.

McAlpine of West Green, L.

Stewartby, L.

McColl of Dulwich, L.

Taverne, L.

MacGregor of Pulham Market, L.

Thomas of Gwydir, L.

Thomas of Walliswood, B.

Mackie of Benshie, L.

Thomson of Monifieth, L.

McNally, L.

Tordoff, L.

Maddock, B.

Tugendhat, L.

Magjnnis of Drumglass, L.

Ullswater, V.

Mar and Kellie, E.

Waddington, L.

Marlesford, L.

Wade of Chorlton, L.

Mayhew of Twysden, L.

Wakeham, L.

Miller of Chilthorne Domer, B.

Wallace of Saltaire.L.

Montrose, D.

Walmsley.B.

Mowbray and Stourton, L.

Warnock, B.

Moynihan, L.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Clarke of Hampstead, L.

Alli, L.

Clinton-Davis, L.

Archer of Sandwell, L.

Cohen of Pimlico, B.

Ashton of Upholland, B.

Corbett of Castle Vale, L.

Barnett, L.

Bassam of Brighton, L.

Craig of Radley, L.

Berkeley, L.

Crawley, B.

Bernstein of Craigweil, L.

David, B.

Blackstone, B.

Davies of Coity, L.

Boothroyd, B. Borrie, L.

Davies of Oldham, L. [Teller]

Brooke of Alverthorpe, L.

Dean of Thornton-le-Fylde, B.

Burlison, L.

Desai, L.

Campbell-Savours, L.

Dixon, L.

Carter, L.

Donoughue, L.

Chandos, V.

Chester, Bp.

Dormand of Easington, L.

Chorley, L.

Dubs, L.

Christopher, L.

Elder, L.

338

Evans of Parkside, L.

MacKenzie of Culkein, L.

Evans of Temple Guiting, L.

Mackenzie of Framwellgate, L

Falconer of Thoroton, L. (Lord Chancellor)

Mallalieu, B.

Mason of Barnsley, L.

Farrington of Ribbleton, B.

Massey of Darwen, B.

Filkin, L.

Merlyn-Rees, L.

Fyfe of Fairfield, L.

Mishcon, L.

Gale, B.

Mitchell, L.

Gavron, L.

Morgan, L.

Gibson of Market Rasen, B.

Morris of Aberavon, L.

Golding, B.

Morris of Manchester, L.

Goldsmith, L.

Nicol, B.

Goudie, B.

Orme, L.

Gould of Potternewton, B.

Patel of Blackburn, L.

Graham of Edmonton, L.

Pendry, L.

Grocott, L.[Teller]

Peston, L.

Harris of Haringey, L.

Pitkeathley, B.

Harrison, L.

Prys-Davies, L.

Haskel, L.

Radice, L.

Hayman, B.

Ramsay of Cartvale, B.

Hilton of Eggardon, B.

Randall of St. Budeaux, L.

Hogg of Cumbernauld, L.

Rea, L.

HollisofHeigham, B.

RendellofBabergh, B.

Howie of Troon, L.

Richard, L.

Hoyle, L.

Rooker, L.

Hughes of Woodside, L.

St.JohnofBletso, L.

Hunt of Chesterton, L.

Sheldon, L.

Hunt of Kings Heath, L.

Simon, V.

Irvine of Lairg, L.

Smith of Leigh, L.

Islwyn, L.

Strabolgi, L.

Jay of Paddington, B.

Symons of Vernham Dean, B.

Jones, L.

Temple-Morris, L.

Judd, L.

Tomlinson, L.

King of West Bromwich, L.

Tumberg, L.

Kirkhill, L.

Turner of Camden, B.

Layard, L.

Varley, L.

LeaofCrondall, L.

Wedderbum of Charlton, L.

Lipsey, L.

Whitaker, B.

Lofthouse of Pontefract, L.

Whitty, L.

McCarthy, L.

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

Macdonald of Tradeston, L.

Mclntosh of Haringey, L.

Williamson of Horton, L.

Mclntosh of Hudnall, B.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
5.40 p.m.
The Earl of Caithnessmoved Amendment No. 10:
Page 33, line 5, leave out subsection (10) and insert—
"( ) In making regulations under this section the Secretary of State shall have regard to the object of securing (so far as practicable) that the aggregate amount payable to him and all billing authorities by way of non-domestic rates as regards a relevant period is the same as the aggregate amount which would be so payable apart from the regulations.
(10A) For the purposes of subsection (10) above, the Secretary of State shall estimate the difference between—

(a) the aggregate amount which would apart from the regulations, all billing authorities by way of non-domestic rates as regards a relevant period, and

(b) the aggregate amount which will be payable having regard to rules prescribed under subsection (4) above,

and any shortfall in aggregate amount shall be recovered by applying a surcharge of the non-domestic rating multiplier for each relevant financial year."
On Question, amendment agreed to.
Clause 77 [Power to change number of valuation bands]:
Lord Hanningfieldmoved Amendment No. 11:
Page 43, line 7, at end insert ", provided that such change does not alter the ratio between the top and bottom band.
(4B) The power under subsection (4A) shall not be used to alter the ratio between the top and bottom bands set out in subsection (1).""
The noble Lord said: My Lords, the amendment would not restrict the Government's power to vary the number of council tax bands. It would simply retain the current ratio between the top and bottom bands. That would mean that householders in the top band would continue to pay three times as much council tax as those in the bottom band.
The purpose of the amendment is to provide householders with a degree of protection against steep rises in council tax, which is escalating to unprecedented levels. In 2003, council tax breached the £1,000 average. Even the Government have now recognised that council tax rises of the level that we have witnessed over the past three years are unsustainable.
In Committee, we debated at length the motivation behind the introduction of council tax. It was originally devised as part property tax and part tax on services. It was never designed to be based solely on the capital value of a property. That is why there is a structure of discounts based on the number and type of occupancy.
The discounts have nothing to do with the value of a property; they are based on an assumed reduced take-up of services. It is important that some consideration of service uptake is retained when planning any alterations to the tax system, so that we do not burden council tax payers with inflated charges based solely on property values. That is why the 3:1 ratio was originally introduced and why it is important that we make provision to ensure that it is retained. Let us also be clear that any threat to the existing 3:1 band ratio is a threat not necessarily to the wealthiest but often to those carrying the largest levels of mortgage debt or the lowest levels of disposable income.
On Report, the noble Lord, Lord Rooker, agreed that there is no direct correlation between the capital value of a property and the householder's income. Many properties with a high capital value might be owned by elderly retired people with low levels of disposable income, or by families with large mortgages and therefore relatively high levels of debt.
Property is a poor indicator of ability to pay. If variations in the number of bands mean a shift in the tax burden on to those householders occupying properties of higher capital value there will be problems—particularly with the elderly, who already find it very difficult to meet their council tax bills. Several groups of elderly people have got together to oppose council tax.
The amendment does not seek to inhibit the Government from shifting around the balance of council tax payments through the introduction of new
340
bands. It simply seeks to put a cap on the Government's tax-raising powers. We believe that householders will appreciate that measure of protection. We do not believe that householders living in the same billing authority area will welcome the prospect of paying five times as much council tax as their neighbour because their house is five times more valuable. If that is what the Government have in mind, I think that there will be some very concerned people out there. I beg to move.
Baroness Hamwee: My Lords, we discussed the issue at various stages of the Bill. We do not support the amendment. As many know, we do not particularly support council tax. I do not see that it will help at all. My main concern as regards revaluation is to consider some of those at the bottom end of the scale, particularly those in park homes and so on, who have had tremendous problems. If the Government are trying to look at bands, I do not think that the amendment would be very helpful or that it would ameliorate any of the real problems that we have with council tax. I am afraid that we do not support it.
Lord Rooker: My Lords, having just heard the three key words "ability to pay" from the Tory spokesman, if I had a sense of humour I would wish that the noble Baroness, Lady Thatcher, had been here. "Ability to pay"—from the party that brought in poll tax. Come off it. I know that a decade is a long time in politics, but one must remember that council tax was introduced because of the absolute disaster of poll tax, where there was nothing like ability to pay. Now I am being lectured by the Conservative spokesman about ability to pay and local government finance. I am not taking that, for a start.
Having got that off my chest, I shall address the noble Lord's points. I accept that the amendment is narrow. There is not much new to say about the matter, but we must put it on the record. The amendment relates only to the Secretary of State exercising his powers to change the valuation ratio of 3:1 between the bottom and top bands. As I said previously, most people who pay council tax do not have a clue about the ratio between the top and bottom levels of council tax.
The amendment would mean that however council tax was fixed, the person with the biggest house in the area—at the highest band, well above the lowest band—would never pay more than three times the amount paid by the person in the house with the lowest value. There could be an argument about the issue; it has never been seriously debated. In response to the noble Lord, Lord Hanningfield, there are not too many cases of people in the top band and those in the lowest band living next to one another. I do not think that it is generally the case, so it is not a question of people paying five times more than their immediate neighbour.
When we discussed the issue on Report, I said that there was nothing new to say. I shall make the point in figures, which the noble Lord did not use. I fully accept what I said previously: occupancy of a property is not

341
a sign of the ability to pay or of a person's income. I do not retract those points, which are valid. A person whose house is, say, at the bottom of band H, valued at £320,000, would pay three times the council tax of someone whose house was valued at the top of band A at £40,000. Much to my regret, in some ways, there are thousands of dwellings worth much less than £40,000, and much less than £20,000, in parts of this country. Where someone in a dwelling valued at £20,000 or £40,000 lives a few streets away from a house valued at £320,000—it need not necessarily be next door£the poll tax ratio would be only 3:1 but the property value ratio would be 8:1. It could be a lot higher than that.
I repeat on the record that we have no plans to change the ratio. If the amendment were agreed, we would not be able to change the ratio to reflect more closely the relative values of the bands. We would be stuck with the ratio established in 1992. On Report, the noble Lord, Lord Hanningfield, conceded, at column 983, that he was not fully wedded to the existing ratio of 3:1, which he now seeks to set in concrete. The noble Baroness. Lady Hanham, said, at the same column, that there needed to be a careful review of the number of bands and the ratio between them. It was a duet. By and large, the message was, "We are not fully wedded to the status quo". Noble Lords did not come up with an alternative, although the alternative offered today is highly restrictive.
On Report, noble Lords expressed concern about the owners of houses in band H. But we are also concerned, as we must be, about those in houses in the current band A that are worth very little—a lot less than £40,000. Even if no additional bands were created above the current band H. the amendment would prevent us creating an additional band below band H, for which the tax payable could be less than one third of the amount paid by those in band H.
Although, from the noble Lord's perspective, the amendment looks satisfactory, it would be highly restrictive if we wanted to propose going below the £40,000 level for the many thousands of people who, rightly, see their property as bearing no relation to the upper figure for band A.
I understand noble Lords' concerns about the exercise of powers, but constraining them in such a way is not a sensible way to proceed. Any change to the banding schemes, whether by re-valuing the bands, adding new bands or changing the ratios between bands, must be made by order, which is subject to the affirmative resolution procedure in the House of Commons. If the Government were minded to do that, it is not something that could be slipped through without a debate and a vote. That would be the right way and would provide proper parliamentary scrutiny.
I repeat, however, that we have not yet decided whether we will change the ratio. It does not make sense to limit our powers in this area, especially as we know that the existing ratio does not reflect the relative spread of values.
342
Although it is churlish for Ministers to say this, I must put on record the fact that the amendment is technically defective, because the actual power to change the ratios is Section 5(4)(a) of the Local Government Finance Act 1992, not the new subsection (4A) inserted by Clause 77 of this Bill. That is a minor matter because if the will of the House were such that we should proceed, we could put that technical matter right. I make the point only in passing for the information of noble Lords. By the way, that is not an invitation to nip along and table a manuscript amendment.
No decision has been made to change the ratio, but the amendment would be highly restrictive as drafted because it would prevent us from introducing a band below £40,000. It is right for us to be concerned, as we all are, about property owners at all levels. I understand the Opposition's concern about people in big houses who may be on poor incomes. I fully accept that. Nobody would argue that people should move from their family house, which may be full of memories. There is no reason for that to happen if people can maintain the property. Nevertheless, people with low incomes present a real problem.
I fully accept that living in bigger, more expensive houses does not necessarily indicate an ability to pay. Nevertheless, I do not think that this is the way to go about changing the situation because it would stop us doing something for people living in really poorly valued properties. That is one area that we certainly want to examine, but no decisions have been made.
Lord Hanningfield: My Lords, I do not think that we should go over old history, but I want to return to why we introduced the community charge or poll tax. It was because there was a revolt against rates. I remember going to meetings where 500 or 600 people were unanimously jumping up in protest against the rates. We are reaching that stage with the council tax. In great chunks of the country, the community charge or poll tax was actually lower than the rates—although not everywhere, which was one of the problems. However, in some parts of the country, people were actually paying less than they were under the old rate system. That was certainly the case in Essex.
There were problems. People were outraged about rates. I accept that people did not like the community charge, but we are now getting the same thing about council tax. The Government do not realise that. I attended a meeting with 200 or 300 people aged 65 and over, all of whom were revolting against the council tax. This legislation could gradually push council tax higher and higher, not only through extra expenditure, but through revaluation or a change in the bands.
I was minded to table a rather more complicated and sophisticated amendment. I thought that I should keep it simple, but perhaps I should have tabled a more sophisticated one, because then the Minister would not have been able to make the same comments.

343
It is vital for the Government to realise how unpopular council tax is becoming and that something must be done about that. If we are to have new bands, putting some people into the higher bracket, after seven years of a Labour Government, it could be that the Conservative Party now cares more than the Government about people's ability to pay. That is why we are trying to protect those people. It is important to test the views of the House on this issue.
5.55 p.m.
On Question, Whether the said amendment (No. 11) shall be agreed to?
Their Lordships divided: Contents, 105; Not-Contents, 149.

Division No. 4

CONTENTS

Anelay of St Johns, B.

Lamont of Lerwick, L.

Astor of Hever, L.

Lane of Horsell, L.

Beaumont of Whitley, L.

Liverpool, E.

Blackwell, L.

Lucas, L.

Blatch, B.

Luke, L.

Bridgeman, V.

Lyell, L.

Brooke of Sutlon Mandeville. L.

McAlpine of West Green, L.

Brougham and Vaux, L.

McColl of Dulwich, L.

Burnham, L.

MacGregor of Pulham Market,

Buscombe, B.

L.

Byford, B.

Mancroft, L.

Caithness, E.

Marlesford, L.

Campbell of Alloway, L.

Mayhew of Twysden, L.

Carlisle of Bucklow, L.

Montrose, D.

Carnegy of Lour, B.

Mowbray and Stourton, L.

Colwyn, L.

Moynihan, L.

Cope of Berkeley, L. [Teller]

Murton of Lindisfarne, L.

Craigavon, V.

Newton of Braintree, L.

Crathorne, L.

Noakes, B.

Crickhowell, L.

Northbrook, L.

Deedes, L.

Northesk, E.

Denham, L.

Norton of Louth, L.

Dixon-Smith, L.

O'Cathain, B.

Dundee, E.

Onslow, E.

Eden of Winton, L.

Palmer, L.

Elliott of Morpeth, L.

Park of Monmouth, B.

Elton, L.

Parkinson, L.

Feldman, L.

Pearson of Rannoch, L.

Flatter, B.

Peyton of Yeovil, L.

Fookes, B.

Plumb, L.

Freeman, L.

Plummerof St. Marylebone, L.

Gardner of Parkes, B.

Rawlings, B.

Geddes, L.

Reay, L.

Glentoran, L.

Rees, L.

Griffiths of Fforestfach, L.

Renton, L.

Hanham, B.

Roberts of Conwy, L.

Hanningfield, L.

Rotherwick, L.

Hanson, L.

St John of Fawsley, L.

Harris of Peckham, L.

Saltoun of Abernethy, Ly.

Henley, L.

Seccombe, B. [Teller]

Higgins, L.

Selborne, E.

Hodgson of Astley Abbotts, L.

Selsdon, L.

Howe, E.

Sharpies, B.

Howell of Guildford, L.

Skelmersdale, L.

Hunt of Wirral, L.

Strathclyde, L.

Hurd of Westwell, L.

Tebbit, L.

Jenkin of Roding, L.

Thomas of Gwydir, L.

Kimball, L.

Thomas of Swynnerton, L.

King of Bridgwater, L.

Tugendhat, L.

Knight of Collingtree, B.

Ullswater, V.

Laird, L.

Waddington, L.

344

Wade of Chorlton, L.

Warnock, B.

Wakeham, L.

Willoughby de Broke, L.

NOT-CONTENTS

Acton, L.

Jannerof Braunstone, L.

Addington, L.

Jay of Paddington, B.

Alderdice, L.

Jones, L.

Alii, L.

King of West Bromwich, L.

Archer of Sandwell, L.

Kirkhill, L.

Ashton of Upholland, B.

Lea of Crondall, L.

Barker, B.

Levy, L.

Barnett, L.

Lipsey, L.

Bassam of Brighton, L.

Livsey of Talgarth, L.

Berkeley, L.

Lofthouseof Pontefract, L.

Bernstein of Craigweil, L.

McCarthy, L.

Blackstone, B.

Macdonald of Tradeston, L

Borne, L.

Mclntosh of Haringey, L.

Brooke of Alverthorpe, L.

McIntosh of Hudnall, B.

Burlison, L.

MacKenzie of Culkein, L.

Campbell-Savours, L.

Mackenzie of Framwellgate, L

Carlile of Berriew, L.

Mackie of Benshie, L.

Carter, L.

McNally, L.

Chorley, L.

Maddock, B.

Christopher, L.

Mallalieu, B.

Clarke of Hampstead, L.

MarandKellie, E.

Clinton-Davis, L.

Mashamof llton, B.

Cohen of Pimlico, B.

Mason of Barnsley, L.

Corbett of Castle Vale, L.

Massevof Darwen, B

Crawley, B. Dahrendorf, L.

Merlyn-Rees, L.

David, B.

Miller of Chilthorne Domer, B.

Davies of Coity, L.

Mitchell, L.

Davies of Oldham, L. [Teller]

Morgan, L.

Dean of Thornton-le-Fylde, B.

Morris of Aberavon, L.

Desai, L.

Newby, L.

Dixon, L.

Nicol, B.

Donoughue, L.

Northover, B.

Dormand of Easington, L.

Orme, L.

Dubs, L.

Patel of Blackburn, L.

Evans of Parkside, L.

Pendry, L.

Evans of Temple Guiting, L.

Peston, L.

Falconer of Thoroton, L. (Lord Chancellor)

Peterborough, Bp.

Pitkeathley, B.

Falkender, B.

Prys-Davies, L.

Falkland, V.

Radice, L.

Farrington of Ribbleton, B.

Rarnsay of Cartvale, B.

Filkin, L.

Randall of St. Budeaux, L.

Finlay of Llandaff, B.

Rea, L.

Fyfe of Fairfield, L.

Redesdale, L.

Gale, B.

Rendell of Babergh, B.

Gavron, L.

Rennard, L.

Gibson of Market Rasen, B.

Richard, L.

Golding, B.

Richardson of Calow, B.

Goldsmith, L.

Rochester, Bp.

Goodhart, L.

Rodgers of Quarry Bank, L.

Goudie, B.

Rooker, L.

Gould of Potternewton, B.

Roper, L.

Graham of Edmonton, L.

Russell, E.

Grocott, L. [Teller]

Sandberg, L.

Hamwee, B.

Scott of Needham Market, B.

Harris of Haringey, L.

Sharp of Guildford, B.

Harris of Richmond, B.

ShuttofGreetland, L.

Harrison, L.

Simon, V.

Haskel, L.

Smith of Leigh, L.

Hayman, B.

Stone of Blackheath, L.

Hilton of Eggardon, B.

Strabolgj, L.

Hogg of Cumbernauld, L.

Symons of Vemham Dean, B

Hollis of Heigham, B.

Temple-Morris, L.

Howarth of Breckland, B.

Thomas of Walliswood, B.

Howie of Troon, L.

Thomson of Monifieth, L.

Hoyle, L.

Tomlinson, L.

Hughes of Woodside, L.

Tordoff, L.

Hunt of Kings Heath, L.

Turnberg, L.

Irvine of Lairg, L.

Turner of Camden, B.

Islwyn, L.

Varley, L.

345

Wallace of Saltaire, L.

Williams of ElveI, L.

Walmsley, B.

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

Walpole, L.

Whitaker, B.

Williamson of Horton, L.

Whitty, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.4 p.m.
Clause 92 [Power to charge for discretionary services]:
Lord Hanningfieldmoved Amendment No. 12:
Page 52, line 7, at end insert "except in cases where a surplus is generated and reinvested in the discretionary service for the purposes of increasing provision of the service or to raise the quality of the existing discretionary service"
The noble Lord said: My Lords, the amendment would deal with some of the practical, not to say philosophical, difficulties thrown up by the current drafting of the clause. The clause prevents a local authority from making a profit from charges for a discretionary service. That is wrong in principle and difficult to police in practice. We listened to the arguments made at other stages of the Bill's progress, and we remain convinced that there will be substantial practical problems with giving effect to the provision as it stands.
The amendment would address some of those concerns. It would enable local authorities to over-recover the costs of provision of a discretionary service but only for the purpose of reinvestment in the service, in order to improve it or widen take-up. After all, the bottom line for all of us is service improvement. Let us not close off one obvious avenue to achieving that.
I remind your Lordships that we are talking about discretionary services, services that local authorities are under no obligation to provide and consumers are under no obligation to purchase. We welcome the introduction of a power to charge for such services. Without that power, the services would probably not exist. Local authorities are hard pressed to meet their statutory commitments, without the added pressure of delivering non-statutory, loss-making services.
My strong belief is that local authorities would be inclined to make much greater use of a power that enabled them to improve a service, without having to subsidise it from somewhere else. They would be able to use the power more effectively. We accept that the purpose of the power is, primarily, to promote the economic, social and environmental well-being of our communities and that it is not intended to provide a further income stream for local authorities. However, in order for local authorities to remain a high-quality service and meet the requirements of promoting the well-being of our communities, it is clear that, in some instances, they may wish to over-recover their costs in order to invest in service improvements, either to raise the quality of service provision or to increase the capacity of the service.
We should not miss the opportunity in the Bill to enable local authorities to improve the quality of their discretionary service provision. The message that the
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Bill sends to local authority managers is that they must make a loss and guard against the prospect of creating a surplus. That seems nonsensical.
In Grand Committee, the noble Lords on the Government Front Bench suggested that amendments previously tabled had been designed to push local authorities into unrestricted commercial activity. I hope that those noble Lords will not construe the new amendment in that way. We seek to make clear and explicit the freedoms that are hinted at in the Bill. On Report, there was a suggestion, born of experience, I think, from the noble Lord, Lord Bassam of Brighton, that flexibility in defining "costs" could provide sufficient room for manoeuvre in the clause. There was, undoubtedly, a good deal of truth and practical sense in that proposition. However, given that it is primary legislation, finance people, however clever they may be, will find it difficult to change new investment to costs. We are concerned with improving service delivery and widening provision. I cannot see why we should not make explicit what is implicit and say to local authorities that they may over-recover their costs, but only for the purpose of improving the service. That is a more honest and straightforward way of dealing with the power.
In Committee, the noble Lord, Lord Rooker, mentioned the dangers of allowing authorities to enter into unrestricted commercial activity. On the face of it, it is a reasonable argument. None of us wishes to see local authorities putting themselves into financial difficulties because they have lost money as a consequence of delivering discretionary services. However, that is not the danger that the Minister sees. He seems to be content for local authorities to lose money, and the clause does not prohibit that. Perhaps the Minister is alert to a more subtle danger that some of us may have missed. Perhaps there is a danger in allowing local authorities to make money. That is ruled out in this clause. Again, let us remind ourselves that these arc services which no one has to purchase and which local authorities do not have to provide.
As well as the principal objections that we have to this measure, we are also concerned about how it will work in practice. What will happen if the take-up of the service is greater than predicted and local authorities make a surplus? Will they be penalised? Will they have to pay back any profit? To whom will they pay the money? Surely, the most sensible and practical way forward would be to oblige any profit to be reinvested in the service. That is what we are suggesting in this amendment. I hope that noble Lords will support this pragmatic approach. I beg to move.
Baroness Maddock: My Lords, we have a great deal of sympathy with the principle underlying the amendment. As the noble Lord said, it would be quite difficult to guarantee that no profit will be made on a service over a year. It may be that the Minister can tell us that regulations will deal with that situation should it occur. At this stage, I wonder whether the wording is

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sufficient to carry out the intention of the amendment. However, we support it in principle. I shall listen with interest to what the Minister has to say.
Lord Bassam of Brighton: My Lords, as I listened to the noble Lord, Lord Hanningfield, I began to feel that probably there was not so much difference between us. However, I shall go through the issue carefully. It was interesting that the noble Lord addressed some of the points we made at earlier stages of the Bill. I am grateful to him for that.
Amendment No. 12 appears to allow authorities to invest in their discretionary services with the aim of increasing both the take-up and the quality of the service concerned. We have no problem with that. Under the power, as currently drafted, any such reinvestment would count as a cost of the service and would reduce any surplus, thus helping the authority to achieve the duty in the clause. In other words, standard accounting practice already achieves one of the objectives which perhaps lies behind the amendment. If it is the case that it is seeking to allow only such investment, the amendment would be unnecessary.
However, the amendment goes further than that. It would absolve authorities of the need to comply with the duty in Clause 92(3). It would allow all best value authorities to engage in a restricted form of trading, irrespective of performance—not something that I think we, across the Chamber, would agree with—and without the necessary checks and balances envisaged in the trading powers set out in Clauses 94 and 95. It would permit something without those checks and balances which I think we are agreed should be in place. It would permit a form of trading by the back door.
The provision on charging at Clause 92 is not about allowing authorities to enter into commercial activity in their discretionary service provision. The purpose of providing a new general power to enable best value authorities to charge for discretionary services is to encourage them to enhance their existing services and to develop new ones that will help to improve the service provided to their community. That is probably a shared objective. It is not our intention, through this new power, to provide a new source of income for authorities, but it should allow them only to cover their costs.
I appreciate that in Committee some concerns were expressed about whether an authority would be acting ultra vires— point, I believe, referred to by the noble Baroness, Lady Maddock—if its income exceeded its costs by only a very small amount. Clause 92 gives local authorities flexibility in terms of costs and charges. The concept of,
"taking one … year with another",
is well precedented—for example, with NHS trusts and in the Audit Commission Act 1998—as a way of establishing the idea of balancing the books without having detailed prescription either in the Bill or in secondary legislation. Any over or under recovery, resulting in a surplus or deficit of income in relation to costs, would be addressed by an authority when setting its charges for future years, so that, over time, income equated to costs.
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We do not want this clause to operate in a heavy-handed way at all. I made that point at an earlier stage. We understand the spirit behind this amendment, but it does not address the issue properly—again, a point on which I believe that the noble Baroness, Lady Maddock, was uncertain. I can give an assurance that we do not want the clause to operate in a heavy-handed form. The heart of the proposed amendment is defective, despite the noble Lord's efforts to ensure that it would work properly. We cannot permit a form of trading to be established by a back-door route. We permit that in other parts of the Bill.
Having heard that explanation. I hope that on this occasion the noble Lord will feel able to withdraw his amendment because we are not a million miles apart on this.
6.15 p.m.
Lord Hanningfield: My Lords, I thank the noble Lord, Lord Bassam, for that reply. I agree that we are not many miles apart. At an earlier stage I quoted—I shall not quote again—the situation regarding archaeologists, who are being withdrawn from local authorities because they are unaffordable. If costs can be recovered through commercial activity when houses are being built and so forth. that service could continue. That is the type of instance to which I referred.
I have noted carefully what the Minister said today and on previous occasions. Obviously, it is all on the record. It is important and I believe that the Government acknowledge the problem. I was interested to hear the Minister say that reinvestment in the service is obviously a cost and that it can therefore go down as a cost in the way in which it is presented. With those assurances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatchmoved Amendment No. 13:
After Clause 111, insert the following new clause—
"ADOPTION: CONSCIENTIOUS OBJECTIONS

(1) No person employed by, working for or acting as an adviser to a local authority shall he under any duty whether by contract or by any statutory or other legal requirement to participate in—

(a) any placement under section 18 of the Adoption and Children Act 2002 (c. 38) (placement for adoption by agencies); or

(b) any application under section 49 of that Act (applications for adoption), to which he has a conscientious objection on either of the grounds specified in subsection (2).

(2) The grounds referred to in subsection (1) are that the placement is with, or the application is made by—

(a) a couple who are not a married couple;

(b) one person who is in fact part of a couple within the meaning of section 144(4)(b) of the Adoption and Children Act 2002 (general interpretation etc.).

(3) In any legal proceedings, the burden of proof of conscientious objection shall rest upon the person claiming to rely on it.

(4) A local authority shall not treat less favourably any person who relies on subsection (I) above."

The noble Baroness said: My Lords, in speaking to Amendment No. 13, I shall clarify what has been a serious misunderstanding at previous stages of what it is that I am trying to achieve. The amendment simply extends the right of social workers to exercise their conscience in a situation which seriously compromises their profound belief that children should be adopted by a mother and a father.
I implore those who oppose my amendment—who may speak against me today—to give reasons why some professionals are protected by a conscience clause and why this particular group of professionals cannot enjoy the same freedom. Dawn Jackson and Norah Ellis are the cases that I cited in previous debates. Of course, there are others; I heard of another only today. They worked for Sefton Borough Council Social Services Department. Between them they have 46 years experience of childcare. They are specialists in adoption; they have dealt with the most complex and difficult cases over all those years, and they have exemplary records.
As mothers, as very practised social workers specialising in adoption and as committed Christians, based on practical evidence they believe profoundly that a child fares better and is more secure when placed with a mother and a father, who, preferably, are married. There has been considerable misunderstanding during earlier stages, but absolutely nothing proposed in my amendment invalidates gay adoption. Parliament has decided that issue: gay and lesbian people may adopt children. Although I oppose that proposal, I nevertheless accept the will of Parliament. I repeat, my amendment does not invalidate that change in the law.
However, just as teachers can refuse to teach religious education or take a religious assembly, just as medical professionals can refuse to carry out or assist with abortions, why cannot a social worker enjoy the same right? Nor will my amendment result in stigmatising anyone. Doctors exercising their conscience about not performing abortions does not stigmatise those who have abortions. Teachers exercising their conscience do not stigmatise children. Social workers exercising their conscience who in every other respect are doing an excellent job, would not stigmatise others. At a time when there is a serious lack of good experienced social workers, those two ladies—and we know of others—have been hounded out of their jobs in a specialist area of adoption. The Green Paper presented to Parliament yesterday referred to the need to do more to attract good, experienced social workers. Norah Ellis and Dawn Jackson had exemplary careers in adoption services. My amendment is too late for them—they were hounded out of their jobs—but it would prevent others from experiencing the same cruel fate. I beg to move.
Lord Hunt of Kings Heath: My Lords, I congratulate the noble Baroness, Lady Blatch, on her tenacity in relation to this question. However, I am sorry that she has brought this matter to the House at this late stage and I hope that the House will reject her amendment. I know that the noble Baroness disagreed with the
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decision of Parliament in relation to the Adoption and Children Act passed last Session although she has said she accepts the decision. The issue is expressly about the issue of a clause of conscience for social workers rather than whether unmarried couples—whether of the same or the opposite sex—may adopt. One must consider the issue she has raised in the overall context of why Parliament passed the Adoption and Children Act in the previous Session. We had a very serious consideration of these issues.
The outcome for many children in care has been very poor. The statistics seem to show that half of young people in prison under the age of 18 and 26 per cent of all prisoners have been in care at some stage. Up to 20 per cent of all care leavers experience some form of homelessness within two years of leaving care. More than half of young people leaving care at the age of 16 and over are unemployed. Some estimates put that proportion as high as 80 per cent. We know that for many of those young people adoption would have been a much better option. The outcome for adopted children is so much better than for those children left in care despite the enormous work of those in the care setting. We also know that there have been long problems with the adoption process. Thankfully, the Act passed last year together with associated changes has improved the system of adoption no end. In 1996, the total time spent in care before final adoption was three years and four months. That is a long time in anyone's mind but in the experience of a young person, it is often an eternity.
The question of unmarried couples was a very crucial issue in the debate on improving adoption procedures. The fact was that before the passage of the previous Act, single people could and did adopt. In such circumstances, if a single person was in a relationship with another person, whether of the same or opposite sex, that person was also assessed by social workers. Before the Act of last year was passed, that partner could not adopt. As a Minister responsible for that Bill at the time, I was impressed with the views of young people who had been adopted in such circumstances. They argued that they would feel more secure if both partners could adopt jointly. This House agreed and passed the necessary legislation. The noble Baroness, Lady Blatch, may shake her head but it is important to set the context in which to make a judgment as to whether her amendment ought to be accepted. One cannot consider the question of a conscience clause in isolation from decisions that this House made after intense and passionate debate less than 12 months ago.
No one has the right to adopt. The paramount interest must be the child. I am convinced that the changes we made were in the interests of the child. Frankly, this amendment is retrograde and against the interests of the child in adoption procedures. Whether one considers an issue of conscience by social workers in this regard to be on the same level as that of doctors in relation to abortion or teachers in relation to the teaching of religious education is a matter of individual judgment that each noble Lord must make. If we look at the history of adoption, for many years

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single people have been able to adopt. Whatever the sexual orientation of their partner, if that person applied to adopt a child, their partner would also be assessed. I do not believe that the issue of conscience in relation to social workers is of the same order as the two examples she gave on doctors and abortion and teachers and the teaching of religious education. The amendment of the noble Baroness would set a worrying precedent and make administration of the law on adoption very difficult for the relevant public authorities. I have no doubt that if it were passed, it risks reducing the pool of prospective adopters. For the sake of children for many years to come, this House should reaffirm the decision made in the previous Session and reject this amendment.
Lord Campbell of Alloway: My Lords, I oppose this amendment for the very close reasoning given by the noble Lord, Lord Hunt of Kings Heath. I shall not reiterate parts of the reasoning. This is advanced as a conscience clause. It is a conscience clause that qualifies implementation of those provisions of an Act of Parliament contrary to the spirit of the enactment. As such, it is indeed the motivation. It is a wholly unacceptable position. That Act was brought in after a pretty tough dispute in your Lordships' House. I supported the provisions. My noble friend opposed them and we both have an interest to declare. I certainly declare mine. The reasons for retaining my position could not have been better put than by the noble Lord, Lord Hunt of Kings Heath. The amendment expressly recognises an aversion to homosexuals as adopters or unmarried couples.
Baroness Blatch: My Lords, it does not.
Lord Campbell of Alloway: My Lords, it does. In terms. If my noble friend would like me to give way, I shall give way.
Baroness Blatch: My Lords, indeed it does not. Just like the doctor who does not wish to be involved in aborting babies, the amendment refers to the profound beliefs of social workers in the way in which children should be placed. I made a specific point when I said it does not stigmatise homosexuals in any way. My amendment just protects the right of the social worker not to be given that work to do.
6.30 p.m.
Lord Campbell of Alloway: My Lords, I am grateful to my noble friend. I hear what she says and shall try to deal with it in a moment, but I really cannot deal with interruptions from a sedentary position—they make it quite impossible to make a speech.
If one looks at the terms of the amendment, it is manifestly plain that it recognises an aversion to unmarried couples as adopters which extends, against the background of the whole debate in this House, to homosexual couples. Before this, a single homosexual could adopt. The amendment totally ignores the absence of any evidence of any untoward conduct by a single homosexual adopter in the past. That was a
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matter that carried some credence when your Lordships considered the subject in a strenuous debate, argued by the noble Lord, Lord Hunt of Kings Heath, with my noble friend Lady Blatch arguing against him.
The amendment also ignores the stringency of the vetting procedure, and another matter that was of considerable importance in the debate—the plight and interests of those thousands of children in care who seek the benefit of a home, education, prospects for a happy life and so forth.
It is understood that it is the intention to take the opinion of your Lordships' House with a free vote on these Benches. That is why I have spoken at a little length today, and I seek your Lordships' indulgence for having done so.
Baroness Richardson of Calow: My Lords, I should like to support the amendment. Your Lordships will know that I wholeheartedly agree with the adoption provisions, and I have spoken many times on the matter in this House. Some people have very strong convictions and I believe that their employment should not be put at risk because of them, although I do not share that viewpoint in any way.
My primary reason for supporting the amendment is to safeguard the rights of those couples described under proposed subsection (2)(a) and (b) who offer themselves for assessment. They have a right to be assessed without prejudice, whether acknowledged or unacknowledged, by those who do the assessment. They have a right to be judged by criteria that are as objective as they can be, and which would be better preserved if those with strong conscientious objections over the matter were allowed not to be put in the situation of having to make that judgment.
I support the amendment, which would benefit not only those with strong religious convictions but, primarily, those who need to be assessed in a proper way.
Baroness Barker: My Lords, I join the debate with some regret, as these matters have been debated at considerable length on many occasions.
I shall deal with two points. First, in moving her amendment the noble Baroness, Lady Blatch, said that those of us who oppose her do so on a misunderstanding of her intent. I believe that we do not do so, but that we understand entirely what the amendment seeks to do. It seeks not to overturn your Lordships' decision on same-sex couple adoption but to undermine it in practice. That is as unacceptable as seeking to overturn it.
We all know that principles have to be put into action. Anyone who has read at length the Climbié report will know what life is like in a social services department, particularly in a children's unit. The amendment would enable social services departments, which are already working beyond capacity in many cases, particularly in children's work, to keep on their staff people who absent themselves from part of their work. The net effect would be that all children would suffer.

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The most dangerous thing about the amendment—as I said when we discussed it in previous debates—is the precedent that it sets that the beliefs of staff and social services departments take precedence over the needs and wishes of users. If noble Lords have read the Climbié report at any length, they will know what a dangerous precedent that would be. Tremendous work is being done in the social work profession to move in a way that is completely contrary to that.
Secondly, I want to address a point made by the noble Baroness, Lady Richardson of Calow. I hold her in high regard, as I have done throughout all our decisions, and I have had similar thoughts to those that she has expressed. Ultimately, much though it pains me to disagree with her, I believe that she is wrong. I came to my conclusion after spending time reading a lot about the history of adoption and fostering in this country. During the passage of the adoption Bill, I spent considerable time talking to people who were coming to terms as adults with the effects of decisions made on their behalf by people who thought that they were acting with the best of intentions.
Adoption is always an expression of the views and philosophy of the society of the time. If one goes back into the history of fostering and adoption, one comes across instances where people of undoubted good faith and intentions made decisions because of their beliefs on matters of race and religion. From our standpoint now, we can see that those decisions have had the most damaging effect on children.
I am haunted by many of the letters that I received throughout the passage of the adoption Bill, but one in particular sticks in my mind. A man was trying to figure out why as a child he was moved on from a very happy placement. He said that the only reason he could possibly think of was that his foster parents were Jewish and that he was not: he wished that he had been left in that happy situation, Christian though he was—and still was when I spoke to him—rather than being moved.
I have no doubt that in the course of our debates we were right to stick with the principle in Clause 1 of the Adoption and Children Act 2002 that it is the best interest of the child that is paramount. That is why I believe that the amendment moved by the noble Baroness is not only wrong but dangerous. I therefore hope that noble Lords will retain the decision that we have made on at least six occasions when we have discussed the matter.
Earl Russell: My Lords, the question of the rights of the individual conscience against the state is one that has absorbed some of the finest minds in our cultural tradition over some 2,000 years and more. Distilling all that into a few words is something of a challenge, but I believe that I can see something of a distinction, to which my noble friend Lady Barker referred.
Where, as an individual, one is commanded to do something that one thinks is sinful, one must not do it. But when one is taking part in the provision of a public service, as my noble friend Lady Barker said, the users
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also have rights. There the principle of the rights of conscience, although it cannot ever be extinguished, must be handled with a good deal more caution and balance.
I have had to think quite hard about this because a great many of the changes imposed on universities by successive governments have involved me in doing things against which my conscience protested. In some cases I have managed to make the cup pass from me by the exercise of some ingenuity. But I have taken the line throughout that a public service is to an extent a seamless robe, and if one cannot do what is required in that service, then one must resign from it. Since the Education Act 1988 I have been several times very near doing that myself. But I would not have claimed the right to exercise my individual conscience to refuse to perform a service which I then knew had to fall on long-suffering colleagues who were desperately overworked already and who in many cases might dislike it almost as much as I did.
The point made by the noble Baroness, Lady Richardson of Calow, was one of great brilliance, but not therefore necessarily a point of truth. It is a point which only a very great and sensitive mind could have made. But if one thinks, for example, of the first women to attempt to enter public and political life, they also had to face assessment from people who took a very dim view indeed of the political powers of women. I believe that they were right in deciding—and my grandmother was among them—that it was much better to face down these dangers at the earliest possible stage because equality would never be achieved until one took the bull by the horns, faced down the dangers and the hostility and defeated them.
I believe that the women who took that attitude were right. They suffered a good deal in doing it, but I believe that the suffering was shrewdly and deliberately chosen. I wonder whether these cases have some parallel element.
Lord Bassam of Brighton: My Lords, this has been a valuable discussion, revisiting an issue which has been debated twice already within the confines of this Bill, in Grand Committee and on Report. It would be unkind of me not to join in the congratulations to the noble Baroness, Lady Batch, on her tenacity. I appreciate that and also her sincerity in these matters. But, like the noble Baroness, Lady Barker, and the noble Lord, Lord Campbell of Alloway, I believe that the noble Baroness, Lady Blatch, is clear in her intent. She accepts the will of Parliament in these matters. She well understands that the impact of her amendment, were it to be carried by the House, would undermine the will of Parliament. I believe that is the case and that that view is generally shared in your Lordships' House.
At each stage of this Bill we have explained why the clause is inappropriate. We continue to resist the amendment for reasons that I intend to spell out very clearly. As we all appreciate, Amendment No. 13 would ensure that no person working for or on behalf of a local authority shall be under any duty, whether by contract or by any statutory or other legal

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requirement, to participate in adoption placements or processing adoption applications to which they have a conscientious objection.
This refers to cases where children are to be placed for adoption with an unmarried couple or with one person who is in fact part of a couple living together as partners in an enduring family relationship. It also covers the processing of these adoption applications.
The Adoption and Children Act 2002 allows for the first time unmarried couples, regardless of their sexual orientation, to apply to adopt a child jointly. However, as we all understand, it has long been possible for a person in an unmarried relationship to apply to adopt as a single person.
The Adoption and Children Act does not therefore raise any fundamental new issues, so we do not believe that there is any need to make special provision for conscientious objections as a result of the change to enable unmarried couples to adopt jointly. Arguably, the key benefit for children of the change in the 2002 Act is that it enables a child adopted by an unmarried couple to have the permanence and security of having two legal parents. I believe that all Members of the House would welcome that.
The new clause raises employment issues that are more suitably addressed by the Employment Equality (Religion and Belief) Regulations 2003, which were approved by both Houses on 17th June. These regulations will prohibit discrimination on the grounds of religion or belief in employment and vocational training.
Local authorities have a duty to maintain an adoption service in their area that meets the needs of those who may adopt a child. This includes unmarried couples and individuals who are in fact part of a couple. As many noble Lords have said, the clause would make it more difficult for local authorities to provide a service and to meet their duties and could well lead to delays in the assessment of prospective adopters able to meet the needs of children waiting for adoption. I do not believe that anyone sees that as a desirable outcome. The Government believe that it is unacceptable to risk vulnerable children losing out on the chance of, or experiencing delays in, finding a new family.
I believe that the comparison drawn with conscientious objection to abortion in earlier debates is unhelpful in that conscientious objection to participating in an abortion procedure often raises strong ethical issues around the sanctity of life whereas objecting to non-married couples adopting is about judgmental attitudes on the lifestyle of individuals and their personal choices. There is a profound difference in that, which seems entirely inappropriate to the present.
As I said at the outset, I do not doubt the noble Baroness's sincerity and I certainly do not doubt her tenacity. But I hope that, having listened to the arguments, the noble Baroness will be able to withdraw the new clause.
6.45 p.m.
Baroness Blatch: My Lords, I thank the Minister most strongly for at least not doubting my sincerity and motivation for tabling the amendment. My noble friend Lord Campbell of Alloway and the noble Baroness, Lady Barker, do doubt my sincerity. They have attributed to me motivations which I find deeply hurtful and which are simply wrong. I want to protect people like Norah Ellis and Dawn Jackson, the lady I heard about today, and others whose jobs are now at risk. In fact, what those two ladies experienced was frightful. It was discrimination against them because of their beliefs, which I understand from what the noble Lord has just said gave—
Earl Russell: My Lords, I speak on behalf of my noble friend Lady Barker. I never understood her to be referring to the noble Baroness's intentions. I have checked this reading with my noble friend. She acknowledges the noble Baroness's sincerity completely. What was being discussed was the effect of the amendment. Even after Pepper v Hart the mind of the mover is not the sole guide of the courts to the intention of Parliament. I believe that my noble friend Lady Barker is right about what will be taken to be its intention. I admit that the noble Baroness believes otherwise, but this is simply a difference of opinion between us.
Baroness Blatch: My Lords, the noble Earl will receive a very apologetic letter from me tomorrow if I am wrong, but I remember the noble Baroness saying that she did not think that I was invalidating the previous Act of Parliament, but that my intention was to undermine it. That was personal against me. I shall read Hansard and I promise a profuse apology if I misinterpreted the noble Baroness.
My motivation is that, just like medical professionals, the professionals involved in adoption have a strong belief on two grounds. One is practical, and is supported by evidence that my noble friend. said does not exist. I have not chosen to engage that argument because it was lost when the decision was taken by Parliament to allow same-sex adoption. However, I invoked the other argument: that their religious beliefs are such that they would find it in all conscience difficult to engage in processing and/or assisting in same-sex adoption.
I know that the noble Baroness, Lady Richardson, and I are not usually on the same side, but I thank her for what she said because she introduced a different argument. It would be difficult for someone holding strong views who was well known in the authority—as indeed they were in Sefton Borough Council—to be assessed knowing that someone had a prejudice or a belief. We can argue about the words. They would not feel secure that they were being judged or assessed fairly. That is a powerful argument for which I am grateful.
Many of the comments made are not acceptable as arguments. There are no fewer abortions simply because some doctors do not perform them and some professionals in the medical world do not assist with

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them. That is managed in the health service, just as it could be managed in the world of social services. There is always more work than there are people to carry it out, as the noble Baroness, Lady Barker, said. Therefore there is always a choice of work for these fine, exemplary workers to be put to and to allow them to exercise their conscience not to be involved in such work.
It was not my intention to undermine the will of Parliament, but I oppose this level of intimidation against good, honest people; highly experienced social workers working in the interests—as they feel—of children. They should not be discriminated against simply because of their belief. I wish to test the opinion of the House.
6.52 p.m.
On Question, Whether the said amendment (No. 13) shall be agreed to?
Their Lordships divided: Contents, 63; Not-Contents, 142.

Division No. 5

CONTENTS

Allenby of Megiddo, V.

Kimball, L.

Astor of Hever, L.

King of Bridgwater, L.

Blatch, B.[Teller]

Laird, L.

Brougham and Vaux, L.

Liverpool, E.

Burnham, L.

Lyell, L.

Byford, B.

McColl of Dulwich, L.

Caithness, E.

Mancroft, L.

Carlisle of Bucklow, L.

Masham of Ilton, B.

Carnegy of Lour, B.

Montrose, D.

Colwyn, L.

Northbourne, L.

Cope of Berkeley, L.

Northesk, E.

Craig of Radley, L.

O'Cathain, B.

Crickhowell, L.

Onslow, E.

Denham, L.

Park of Monmouth, B.

Dixon-Smith, L.

Peterborough, Bp.

Eden of Winton, L.

Plumb, L.

Elliott of Morpeth.L.

Reay, L.

Elton, L.

Rees-Mogg, L.

Flather, B.

Richardson of Calow, B.

Fookes, B.

Roberts of Conwy, L.

Geddes, L.

Rochester, Bp.

Glentoran, L.

Selsdon, L.

Griffiths of Fforestfach, L.

Stoddart of Swindon, L.

Hanham, B.

Strathclyde, L.

Hanson, L.

Tebbit, L.

Hodgson of Astley Abbotts, L.

Thomas of Gwydir, L.

Howe, E.

Ullswater, V.

Howell of Guildford, L.

Wade of Chorlton, L.

Hurd of Westwell, L.

Wakeham, L.

Hylton, L. [Teller]

Waldegrave of North Hill, L

Jopling, L.

Willoughby de Broke, L.

NOT-CONTENTS

Acton, L.

Bassam of Brighton, L.

Addington, L.

Berkeley, L.

Alderdice, L.

Bernstein of Craigweil, L.

Alli, L.

Bhatia, L.

Archer of Sandwell, L.

Blackstone, B.

Ashton of Upholland, B.

Borrie, L.

Barker, B. [Teller]

Brooke of Alverthorpe, L.

Barnett, L.

Burlison, L.

358

Buscombe, B.

McCarthy, L.

Campbell of Alloway, L.

Macdonald of Tradeston, L.

Campbell-Savours, L.

Mclntosh of Haringey, L.

Carlile of Berriew, L.

McIntosh of Hudnall, B.

Carter, L.

MacKenzie of Culkein, L.

Chandos, V.

Mackenzie of Framwellgate, L.

Chorley, L.

Mackie of Benshie, L.

Christopher, L.

McNally, L.

Clarke of Hampstead, L.

Maddock, B.

Clinton-Davis, L.

Mallalieu, B.

Cohen of Pimlico, B.

Mar and Kellie, E.

Corbett of Castle Vale, L.

Massey of Darwen, B.

Craigavon, V.

Merlyn-Rees, L.

Crawley.B.

Miller of Chilthorne Domer, B.

Dahrendorf, L.

Mitchell, L.

David, B.

Morgan, L.

Davies of Coity, L.

Newby, L.

Davies of Oldham, L.

Newton of Braintree, L.

Dean of Thornton-le-Fylde, B.

Nicol, B.

Desai, L.

Northover, B.

Donoughue, L.

Norton of Louth, L.

Dormand of Easington, L.

Orme, L.

Dubs.L.

Patel of Blackburn, L.

Elder, L.

Pendry, L.

Evans of Temple Guiting, L.

Peston, L.

Falconer of Thoroton, L.(Lord Chancellor)

Pitkeathley, B.

Prys-Davies, L.

Farrington of Ribbleton, B.

Radice, L.

Filkin L

Ramsay of Cartvale, B.

Finlay of Llandaff, B.

Randall of St. Budeaux, L.

Gale, B.

Razzall, L.

Gavron, L.

Rea, L

Gibson of Market Rasen, B.

Rendell of Babergh, B.

Golding, B.

Rennard L.

Goldsmith, L.

Renwick of Clifton, L.

Goodhart, L.

Richard L.

Goudie, B.

Rooker, L.

Gould of Potternewton, B.[Teller]

Roper, L.

Russell, E.

St. John of Bletso, L.

Graham of Edmonton, L.

Sandwich, E.

Greengross, B.

Scott of Needham Market, B.

Grocott, L.

Sharp of Guildford B

Hamwee B.

Shutt of Greetland, L.

Hams of Haringey, L.

Simon, V

Harrison, L.

Smith of Leigh, L.

Haskel, L.

Stern B

Hayman, B.

Stone of Blackheath, L.

Hilton of Eggardon, B.

Symons of Vernham Dean, B.

Hogg of Cumbernauld, L.

Temple-Morris, L.

Hollick, L.

Tomlinson, L.

Hollis of Heigham, B.

Tope, L

Howells of St. Davids, B.

Tordoff, L.

Hoyle, L.

Turnberg, L.

Hughes of Woodside, L.

Turner of Camden, B.

Hunt of Kings Heath, L.

Wallace of Saltaire, L.

Irvine of Lairg, L.

Walmsley. B.

Islwyn, L.

Warnock, B.

Jay of Paddington, B.

Watson of Richmond, L.

Jones, L.

Wedderburn of Charlton, L.

King of West Bromwich, L.

Whitaker, B.

Kirkhill, L.

Whitty.L.

Levy, L.

Williams of Elvel, L.

Lipsey, L.

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

Livsey of Talgarth, L.

Resolved in the negative, and amendment disagreed to accordingly.
7.3 p.m.
Lord Hanningfieldmoved Amendment No. 14:
After Clause 112, insert the following new clause—
"PARISH COUNCILS (MODEL CODE OF CONDUCT) ORDER 2001
(1) The Parish Councils (Model Code of Conduct) Order 2001 (S.I. 2001/3576) shall cease to have effect.
(2) This section shall come into effect on the day on which this Act is passed."
The noble Lord said: My Lords, we now return to an amendment that we first debated on Report. We do so because, as that debate showed, at stake are some interesting issues which we believe require further consideration. I should hope that we would all agree that parish councillors do an enormous amount of good work for their communities, often for little recognition or reward. They do this because they are public-minded citizens with a real sense of community who wish to make a positive impact on their localities. The bottom line is that we need more people like that. We want to encourage people to become parish councillors and not frighten them off.
As it currently stands, the parish councils' code of conduct requires all parish councillors to register interests, including their property, their employment and their business interests. It also requires them to register the interests of their spouses and relatives. Registering an interest is different from declaring an interest. It involves making a written and public statement of interest up front and in advance regardless of the likelihood of those interests ever having any bearing on any issues ever discussed or likely to be discussed within a parish council.
Parish councillors are not parliamentarians dealing with major issues of state; they are for the most part responsible for important but very strictly local issues. A comprehensive register of interests is ridiculous over-regulation. That is why we object to it. Perhaps the Minister will tell us that parish councils are seething hotbeds of corruption and fraud doing major damage to the economy and infrastructure of this nation. On Report, the noble Lord, Lord Bassam, quoted some examples of misconduct. No one would minimise the seriousness of any form of misconduct in public life, and I unreservedly support him in condemning those activities. However, if I remember the figures correctly, after investigation, 83 councillors were subjected to a period of disqualification. That means that, in a 12-month period, of approximately 20,000 parish councillors, less than half of one per cent were found guilty of any, and sometimes minor, misconduct. I may have the numbers slightly wrong, but I think that the point is clear. That is the scale of magnitude of wrong-doing with which we are dealing.
No one disputes at all the need for probity in public life. The question is whether noble Lords believe in the concept of balance. Should we regulate to eliminate the possibility of any risk under any circumstances and in every situation? Or should we try to make regulation proportionate to the risks involved? I favour the latter option, first, because there are costs involved in regulation, and those costs must be balanced against the level of risk against which they seek to offer protection. Secondly, all regulation potentially has the capacity to damage the institution or body regulated. In the case of parish councils, that is an outcome that we should all deplore.
In May 2002, the University of Aberystwyth published an ESRC report on community governance in England and Wales. That report found that nearly 40 per cent of parish councils did not have enough councillors to fill their seats and that the situation had been in decline for more than a decade. However, the report concluded:
"It has been suggested to us that one factor behind the lack of candidates is that being a parish councillor is seen as an onerous task with little reward, and the introduction of the new code of conduct may prove a further disincentive".
For the most part parish councillors are giving up their time for free to address very local issues. They do so because they are committed to the community ethic. We need to encourage more people to take that view. What the Government have done through the introduction of this code has had the opposite effect. It has made a bad situation worse and threatens to undermine one of the oldest institutions of government in this country. I hope that the Minister will consider this amendment. I beg to move.
Baroness Maddock: My Lords, we made our position very clear at other stages of the Bill. We on these Benches believe that if one puts oneself forward in any way for public office, one opens oneself to public scrutiny. I have listened to the arguments time and again, such as the fact that it may be a small council and councillors are not paid. With respect. I do not think that that is relevant. The important thing is that one is speaking and making decisions on behalf of others. All we are asking is that people use their common sense and declare where they are coming from and what possible interests they might have in the matter they are discussing.
Earlier this week, this House again addressed the issue of what one should declare as an interest. I think that a certain amount of common sense comes into this. I have briefly reread the requirements. A lot of fuss has been made about this. but I am clear that if someone wants to make decisions in public service on behalf of others, then the public have the right to know exactly where that person is coming from and what their interests are. If people are not prepared to do that. then it seems to me that they are not really very community-minded.
Lord Hylton: My Lords, having served in the past on a parish council, for about 20 years, in one small Somerset village, I strongly support the amendment. In moving it, the noble Lord, Lord Hanningfield, drew the key distinction between registration and declaration of interests. I hope that the Government listen to all his other arguments.
Lord Rooker: My Lords, essentially the new clause seeks to remove parish councils from the ethical framework of behaviour that was established in the Local Government Act 2000. I am astonished that at Third Reading the matter is on the Order Paper. It seeks to remove parish councils from the model codes of conduct that followed that legislation by simply revoking the code that currently applies. I agree that

361
separate codes have been established for local authorities, police authorities, national park authorities, the Broads authorities and the parishes. They cover everybody. Why should there be an exemption for one group of people who have put themselves forward to serve on those bodies? That could not possibly be justified. We would almost be saying that any level of behaviour goes for that sector. That would be unacceptable to the public. It should be unacceptable to Parliament. Also, the public would not have a test by which to judge the behaviour of people whom they elect.
I accept that there are difficulties. Earlier this year I was hoping to vote for the first time in a town council myself, but there were only 10 candidates for 13 places, so there was no possibility of voting. I am not aware—I have not inquired—and I have seen no evidence that it was this code that was the cause of that. The public have the right to expect that all the people who are taking decisions on their behalf that may affect their daily lives observe the highest standards of conduct. I cannot see the problem about operating the code. All parish councils are statutory consultees on planning issues. Some parishes have budgets of tens of thousands of pounds. I appreciate that the variation in parishes and the size of their budgets is enormous. However, some are very large, but why should the small ones be exempt? They are making the same kind of decisions—true, for a smaller area—but there is no good argument that they should be exempted.
It is astonishing that when that legislation was before Parliament and I was elsewhere in the Government—this was not the key matter that I was dealing with—the National Association of Local Councils, which represents the parish councils, pressed for their inclusion within the new ethical regime. I have not read the debates so I do not know whether that was opposed in this place, but the idea that the parishes should be pulled out now, just as the code is starting to operate, is nonsense. Much of the new code is similar to the previous code that was put in place in 1990. I have not personally checked that, but that is my information.
The main difference is that the new code requires registration of interests and the standards board provides an effective means to enforce it. In some ways the introduction of the standards board should probably have solved all of the problems for people in public life. When allegations are made against them for all kinds of spurious reasons, the standards board is there as a back-stop to make sure that we have a proper independent judgment over the operation of the codes. I understand that half of the allegations so far sent to the standards board relate to parish councillors. I cast no aspersions about parish councillors on that matter—there are an enormous number of them compared to county councillors and district councillors. I do not know the precise figures.
362
The effect of the amendment would repeal the current order. It does not repeal the power of the Secretary of State to introduce an order. If the amendment were pushed—I sincerely hope it is not—I hope that it will not be carried. If it were, I suspect the Secretary of State would introduce a new order the following day, because his powers to produce an order are not affected by the amendment. There might be an argument over the will of Parliament et cetera, saying that parishes should not be covered. The other place would smartly send the matter back here. It is true that there are people who do not like the idea of answering a few personal questions as a result of seeking public office. The balance has to be made by them. It is their personal judgment. That is why the overwhelming majority of people have accepted the code. I have no figures about the number of parish councillors who have been removed for refusing to sign—but it has to be a tiny percentage. It is the norm to sign up. To remove it for only one part of public life would send completely the wrong signals to the public. All of the other types of councils are covered, including the police authorities, the national park authorities and the Broads authorities. Why do we not have an amendment to exempt some of those bodies? Why just the parish councillors? We have had no explanation for that.
It is true that there have been a few noises, but people should not become the mouthpieces for a few noises. We are dealing with legislation. The proposal would send the wrong impression to the public that there was an ethical code of behaviour that people in public life were expected to operate, but with certain groups exempted. That cannot be justified. I say to the noble Lord, Lord Hanningfield, one cannot justify that across the garden fence or in the local shop one could say "it does not matter with our councillors. We do not have to know where they are coming from, what their interests are, irrespective of the decisions that they might be taking". I repeat that they are statutory consultees on planning applications. That is in some ways one of the most sensitive areas that people can deal with.
I find it difficult to believe that the Conservative Opposition is serious in this matter, because it would send wholly the wrong signals to the public in exempting parish councils from the ethical codes of behaviour. I hope that it is not pushed to a vote, and if it is I hope that it will be voted down.
Lord Hanningfield: My Lords, I thank the Minister for that reply. I made it clear in proposing the amendment that no-one should be absolved from declaring an interest—that is what the noble Baroness, Lady Maddock, said in her contribution. People should always declare an interest if they have any kind of involvement in the subject that is being talked about—whether it is here a parish council, or wherever.
I was pleased to hear the Minister say that he was not the Minister at the time. When the Labour Party was first elected I was the vice-chairman of the Local

363
Government Association. I spent much time with the then Minister, Hilary Armstrong, discussing this legislation. At that time no-one envisaged a virtual castle in London with the national standards board presiding over very minute complaints—mostly about people calling each other four letter words. If there was an issue of real corruption then it should be considered by the board. The process was set up differently from that which was expected by local government. That is why parish councils and others did not mind coming in—they thought that there would be some local mechanism. In fact the measure does enable in other parts of the Bill more local discussion of very small complaints—which is what should have been done from the beginning. There were problems with the legislation from the start, which this Bill rectifies. I am content with that.
However, parish councils are different. I am now an elected county councillor. I have 10 parish councils in my patch. They are much like the "Vicar of Dibley". The matters that they discuss are mainly litter and the sports field. The borough council normally takes planning decisions contrary to the views of the parish council anyway. It is the borough council that takes the planning decisions. The legislation that affects the parish councils was a sledgehammer to crack a nut. It has put people off from standing for parish council. No-one should be absolved from declaring an interest in any subject in which they have some involvement. But for parish councillors to have to list every asset that they have, when they are never going to be discussed at a meeting is ridiculous. Therefore I wish to test the opinion of the House.
7.20 p.m.
On Question, Whether the said amendment (No. 14) shall be agreed to?
Their Lordships divided: Contents, 55; Not-Contents, 121.

Division No. 6

CONTENTS

Astor of Hever, L. [Teller]

Griffiths of Fforestfach, L.

Blatch, B.

Hanham, B.

Brougham and Vaux, L.

Hanningfield, L.

Burnham, L.

Howell of Guildford, L.

Buscombe, B.

Hurd of Westwell.L.

Byford, B.

Hylton, L.

Caithness, E.

Jenkin of Roding, L.

Campbell of Alloway, L.

Jopling, L.

Carnegy of Lour, B.

Kimball, L.

Chalfonl, L.

King of Bridgwater, L.

Coe, L.

Liverpool, E.

Colwyn, L.

Lyell, L.

Cope of Berkeley, L. [Teller]

Mancroft, L.

Craigavon, V.

Montrose, D.

Denham, L.

Newton of Braintree, L.

Dixon-Smith, L.

Northesk, E.

Elliott of Morpeth, L.

Norton of Louth, L.

Elton, L.

O'Cathain, B.

Flather, B.

Onslow, E.

Fookes, B.

Plumb, L.

Geddes, L.

Reay, L.

Glentoran, L.

Rees-Mogg, L.

364

Roberts of Conwy, L.

Tebbit, L.

Saltoun of Abernethy, Ly.

Thomas of Gwydir, L.

Selsdon, L.

Ullswater, V.

Wakeham, L.

Skelmersdale, L.

Warnock, B.

Strathclyde, L.

Willoughby de Broke, L.

NOT-CONTENTS

Acton, L.

Islwyn, L.

Addington, L.

Jay of Paddington, B.

Alderdice, L.

Jones, L.

Alli, L.

King of West Bromwich, L.

Archer of Sandwell, L.

Kirkhill, L.

Ashton of Upholland, B.

Levy, L.

Barker, B.

Lipsey, L.

Bassam of Brighton, L.

Livsey of Talgarth, L.

Berkeley, L.

Lofthouse of Pontefract, L.

Bernstein of Craigweil, L.

McCarthy, L.

Blackstone, B.

Macdonald of Tradeston, L.

Borrie, L.

McIntosh of Haringey, L.

Brooke of Alverthorpe, L.

McIntosh of Hudnall, B.

Burlison, L.

MacKenzie of Culkein, L.

Campbell-Savours, L.

Mackenzie of Framwellgate, L.

Carlile of Berriew, L.

Mackie of Benshie, L.

Carter, L.

McNally, L.

Chandos, V.

Maddock, B.

Chorley, L.

Mallalieu, B.

Clarke of Hampstead, L.

Mar and Kellie, E.

Clinton-Davis, L.

Massey of Darwen, B.

Cohen of Pimlico, B.

Merlyn-Rees, L.

Corbett of Castle Vale, L.

Miller of Chilthorne Domer, B.

Craig of Radley, L.

Mitchell, L.

Crawley, B.

Morgan, L.

David, B.

Northover, B.

Davies of Coity, L.

Orme, L.

Davies of Oldham, L. [Teller]

Pendry, L.

Dean of Thornton-le-Fylde, B.

Peston, L.

Desai, L.

Pitkeathley.B.

Dixon, L.

Radice, L.

Dormand of Easington, L.

Ramsay of Cartvale, B.

Dubs, L.

Randall of St. Budeaux, L.

Elder, L.

Razzall, L.

Evans of Parkside, L.

Rea, L

Evans of Temple Guiting, L.

Rendell of Babergh, B.

Falconer of Thoroton, L. (Lord Chancellor)

Rennard, L.

Renwick of Clifton

Richard, L.

Farrington of Ribbleton, B.

Rooker, L.

Filkin, L.

Russell, E

Gale, B.

Scott of Needham Market, B.

Gibson of Market Rasen, B.

Sharp of Guildford, B.

Golding, B.

Shutt of Greetland, L.

Goldsmith, L.

Simon, V.

Goodhart, L.

Smith of Leigh, L.

Goudie, B.

Stone of Blackheath, L.

Gould of Potternewton, B.

Symons of Vernham Dean, B.

Graham of Edmonton, L.

Temple-Morris, L.

Grocott, L.[Teller]

Tomlinson, L.

Hamwee, B.

Tope, L.

Harris of Haringey, L.

Tordoff, L.

Haskel, L.

Turnberg, L.

Hayman, B.

Turner of Camden, B.

Hilton of Eggardon, B.

Wallace of Saltaire, L.

Hogg of Cumbernauld, L.

Walmsley, B.

Hollick, L.

Wedderburn of Charlton, L.

Hollis of Heigham, B.

Whitaker, B.

Howells of St. Davids, B.

Whitty, L.

Hoyle, L.

Williams of Crosby, B.

Hughes of Woodside, L.

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

Hunt of Kings Heath, L.

Resolved in the negative, and amendment disagreed to accordingly.
7.30 p.m.
Baroness Hamweemoved Amendment No. 15:
After Clause 114, insert the following new clause—
"GOODS, FACILITIES AND SERVICES
In section 19 of the Disability Discrimination Act 1995 (c. 50) (discrimination in relation to goods, facilities and services), after subsection (3) there is inserted—
"(3A) In subsection (3)(h), the services of a local authority shall include those it provides to its elected and co-opted members.""
The noble Baroness said: My Lords, the amendment would insert a new clause pursuing a matter that was dealt with at a previous stage of the Bill. As one noble Lord said earlier, it would avoid embarrassment by seeking an assurance from the Government.
The amendment proposes to extend the Disability Discrimination Act to local authority members. My noble friend Lord Addington has tasked me to state why I have not extended the proposal to all elected representatives. I take his point that this is a local government Bill. However, I hope that in his response the Minister can give us some hope on this point.
The amendment implements the outstanding recommendation of the Disability Rights Task Force that local councils should be placed under a duty not to discriminate against disabled councillors, including a duty to make reasonable adjustment. The Government have said that they will address the matter as soon as legislative time allows. I hope that legislative time is galloping towards this.
I am surprised to learn from the Disability Rights Commission, which supports this proposal, that over 13 per cent of local councillors in England and Wales have a disability. It must be a given that we want to encourage the involvement in the public services of all who have a contribution to make and that, by failing to ensure that those with a disability can overcome that disability through facilities and services, society itself risks losing out by putting barriers in the way of tapping all available talents. It is also a given that discrimination is wrong.
I refer to such matters as communications support— providing materials in accessible format. I am told of one town councillor who could not hear debates properly after renovations to his council chamber. The other two noble Lords who, like me, have experience of a new chamber, not at local government level, will know that it can present a considerable problem if it is designed so that the public can hear but members cannot hear one another.
I hope that the Government will soon publish a draft disability Bill. I know that at a previous stage the Minister said that this issue would be a matter for the Secretary of State for Work and Pensions and proposed to raise the matter with him. I hope that we can be assured today that the draft disability Bill will include provision to plug that loophole. If we receive that assurance, I shall be happy to accept it and shall not need to take the matter further on the face of the Bill. I beg to move.
Baroness Hanham: My Lords, I have not put my name to the amendment, but I want to make it clear
366
that we support it. Had I been quick enough, I would have added my name, but I was not. I want to make it clear that it receives all-party agreement.
Lord Bassam of Brighton: My Lords, I hope that my remarks will be welcomed. It is certainly my intention to be helpful on this amendment.
We argued earlier, and we stick to the point, that we feel that the amendment is unnecessary. But we understand and appreciate the motive behind it. Like the noble Baroness, I have been in council chambers which have appalling audio systems. They are a positive barrier to debate and are very unhelpful, particularly to those with a hearing difficulty. It is right that local authorities address the needs of those members of the authority who have any form of disability. We recognise and support that point.
As the noble Baroness has said, the issue of discrimination against disabled councillors was raised in 2000 by the Disability Rights Task Force. In responding to its report, the Government undertook in 2001 to extend the Disability Discrimination Act 1995 to local councillors.
We believe that it would be wrong to make piecemeal changes to the disability legislation. As the House is now aware, my right honourable friend the Secretary of State for Work and Pensions intends to publish a draft disability rights Bill later this year. We gave a commitment at Committee stage that my right honourable friend the Minister of State would write to those who raised concerns during the course of that debate. I am happy to say that, in response, the Secretary of State has confirmed his intention to legislate on this matter.
We believe that the disability rights Bill will be the correct legislative vehicle to consider extending the provisions of the Disability Discrimination Act. The Disability Rights Commission agrees with us in that regard and has made it plain that it prefers that as the best means of addressing the issue. So we are at one with the spirit behind the amendment. We accept the points that have been made and we intend to deal with them in the forthcoming disability rights Bill. Obviously, we hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Hamwee: My Lords, I am grateful for that response. Part of the way through the Minister's speech, I thought that I should have to ask whether he had intentionally put a full-stop between "we will legislate" and "there will be a Bill". But he said at the end, as I understand it—I say this in terms so that he can contradict me if necessary—that the draft disability rights Bill will be the vehicle to deal with the issue. Yes, the Minister is nodding his acknowledgement that that is the case. On that basis I am glad to enable us to move on. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 115 [Local polls]:
[Amendment No. 16 not moved.]
Lord Rookermoved Amendment No. 17:
After Clause 118, insert the following new clause—
"REGULATION OF COSMETIC PIERCING AND SKIN-COLOURING BUSINESSES
(1) Section IS of the Local Government (Miscellaneous Provisions) Act 1982 (c. 30) (regulation of tattooing, ear-piercing and electrolysis businesses) is amended as follows.
(2) In subsection (1) (requirement for person carrying on business to be registered), for paragraph (b) (ear-piercing) there is substituted

"(aa) of semi-permanent skin-colouring;

(b) of cosmetic piercing; or"

(and in the side-note for "ear-piercing" there is substituted "semipermanent skin-colouring. cosmetic piercing").
(3) In subsection (2) (requirement to register premises where business carried on)—

(a) for "ear-piercing" there is substituted "semi-permanent skin-colouring, cosmetic piercing", and

(b) for "pierce their ears" there is substituted "carry out semi-permanent skin-colouring on them, pierce their bodies".

(4) In subsection (5) (local authority may not require particulars about individuals whose ears have been pierced etc.), for "or whose ears he has pierced" there is substituted ", whose bodies he has pierced or on whom he has carried out semi-permanent skin-colouring".
(5) After subsection (8) there is inserted—
"(9) In this section "semi-permanent skin-colouring" means the insertion of semi-permanent colouring into a person's skin."
(6) Schedule (Section (Regulation of cosmetic piercing and skin-colouring businesses): transition) (which makes provision about transition) has effect."
The noble Lord said: These amendments are to meet a government commitment to give local authorities outside London specific powers to regulate cosmetic body piercing and micropigmentation businesses. London local authorities already have such powers under private legislation.
The new clause would amend the Local Government (Miscellaneous Provisions) Act 1982 to bring cosmetic body piercing and micropigmentation businesses under the regulatory framework of registration arid by-laws that already apply to ear piercing, tattooing, acupuncture and electrolysis.
Under that framework, local authorities would be able to require cosmetic body piercing and micropigmentation businesses to register with them and observe by-laws on hygiene and cleanliness for preventing the transmission of infection. For example, businesses would be required to use sterile instruments for each client. It would be an offence to trade without registration or breach by-laws.
The term "cosmetic piercing" is used to include cosmetic body piercing and ear piercing as these are both forms of skin piercing to allow the insertion of jewellery into the skin. This is the approach taken in the London legislation. "Semi-permanent skin colouring", which means the insertion of semipermanent colouring into a person's skin, is used to include micropigmentation and related activities such as semi-permanent make-up and temporary tattooing. The use of this umbrella term should stand the test of time should further activities of this kind come into fashion.
The schedule allows a smooth transition when the new legislation is adopted by local authorities. In brief, the transitional provisions provide that the amendment does not affect persons and premises already registered for activities under Section 15 of the 1982 Act—for example, tattooing, ear piercing and electrolysis; the amendment does not affect pending local authority resolutions to apply Section 15 of the 1982 Act in their area; where a local authority has already resolved that Section 15 of the 1982 Act should be brought into force in their area for tattooing, ear piercing and electrolysis, the local authority will he automatically enabled to apply the registration and by-laws regime to cosmetic piercing and semi-permanent skin colouring; and a person and premises already registered for ear piercing shall be counted as registered for cosmetic piercing unless cosmetic body piercing is subsequently provided when a new registration would be required.
This is a serious issue and it is only the lateness of the hour that prevents me giving your Lordships some samples from my The Wildcat Collection catalogue of sophisticated body adornments, which has been on my bookshelf for a considerable number of years. I can show noble Lords that there is no part—and I mean no part—of the human anatomy that cannot have fitted to it a sophisticated body adornment. I do not have the guts to read out some of the details, but my noble friend on the Front Bench has been having e look. I have only one copy of this and I shall not put it in the Library.
I just want to make clear that we are talking about a very serious issue. I once did a TV programme, which is where I picked up this catalogue, and one consultant at one hospital—Wolverhampton I believe—gave examples of having to dig out of bodies some of these sophisticated body adornments—which is the phrase I shall always use—from the most unlikely places. He had been quite surprised himself but he knew that it did not all stop at nipple rounders or spiked nipple collars. There were polo locks and nostril studs arid all kind of things. There is a warning on some of the items that they are not suitable for genital piercing—although most of them are—which applies to both males and females. It requires the utmost care. In this case one can take one's own CD and they will do the piercing for you in air-conditioned premises. The prices are obviously a little out of date—I would not dream of reading out some of the prices—and quite modest. As I say, the catalogue has been on my bookshelf for some years.
People choose to do this. One issue I raised on Report was that of young children whose mothers were having them pierced, probably for their own gratification in a way. There is nothing intrinsically wrong or unhealthy in that as long as it is done under proper conditions. There is no question about that; no one says that anything is wrong. The evidence is that the legislation can work in London and we think that the time has come for premises to be more regulated, hence the Government have tabled this amendment. I am only sorry that there is not time to say where all the

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pear-drop and nuclear weights can be fitted on the body, and the ultimate necklace—I have to say—is not intended for the neck. I beg to move.
7.45 p.m.
Baroness Hanham: My Lords, I thank the Minister for the very welcome reception of this amendment. It was originally moved in the House of Commons by my honourable friend Philip Hammond. After vague promises there we reintroduced the amendment here to see whether we could get those promises firmed up. I am delighted that the Government have seen the sense and, indeed, the necessity of ensuring that these various piercings are carried out under regulated circumstances.
On Report I cited the case of a young man who had diabetes. No medical history was taken because there was no necessity to do so. And because no one was performing particularly capably in the premises where the piercing was carried out, he died. He got septicaemia. That was a desperately unhappy outcome of his trying to make himself look better.
I am delighted that the regulations will be put in force. The Minister was kind enough to write to me about the perplexing question of consent. As the Minister said, not only can mothers have their children's ears pierced, but on the other hand it would be the mothers who would give consent if they were asked for it. So that is a difficult area. I understand that this issue is covered by common law—for example, the assault of a person. So that if there was a complaint made it would, by definition, be something that could be dealt with, although it would probably have to be dealt with by civil prosecution. None the less, this is a huge step forward. I thank the Minister on behalf of my honourable friend, who has been sitting up there for a very long time. I think it is fair to say that he has given up at the one moment when he might have been given credit for the actions that he has taken. I thank the noble Lord.
On Question, amendment agreed to.
Lord Northbournemoved Amendment No. 18:
After Clause 118, insert the following new clause—
"EMPLOYMENT RIGHTS OF LOCAL AUTHORITY EMPLOYEES
(1) No employee whose employer is a local authority or local authority company shall be required to work on both a Saturday and the immediately following Sunday if that person has the care and control of a school-age child.
(2) On whichever day the employee is not required to work under subsection (1). he shall not be required to work at any time during that day.
(3) The Secretary of State may by regulation provide for—

(a) exemptions or exceptions to cover emergencies;

(b) rights of enforcement and redress for employees through courts or tribunals either already existing or to be established for this purpose;

(c) criminal sanctions.

(4) For the purposes of subsection (1), any adult with whom a school-age child customarily lives as part of his or her family has the care and control of that school-age child and where more than one adult qualifies under this test each of them has the care and control.
(5) In this section—
"employee" and "employer"—

(a) in relation to England and Wales, and Scotland, have the same meaning as in the Employment Rights Act 1996 (c. 18), and

(b) in relation to Northern Ireland have the same meaning as in the Employment Rights (Northern Ireland) Order 1996;

"local authority" means a local authority in any part of the United Kingdom, including the Common Council of the City of London but excluding a parish or community council;

"local authority company" means a company through which is exercised a power conferred under section 95;

"school-age child" means a person who has attained the age of five but has not attained the age of eighteen."

The noble Lord said: My Lords, I have brought back Amendment No. 18 because a number of your Lordships have indicated that they feel it to be important; indeed, some have even suggested that it should be tested against the opinion of the House.
The amendment has now been revised by the addition of a subsection (3), which addresses some of the objections raised at earlier stages of the Bill, especially those relating to emergencies and emergency services. Those noble Lords who support the amendment believe two things: first, that local authorities should be setting a good example in respect to family friendly employment practices and that it is entirely appropriate that they should be asked to give a lead by Parliament in doing so; and, secondly, that children of school age should not be deprived of the time, love and care of their parents on both of the only two days of the week when they are not in school.
Research shows that children of school age, on average, will do better in school and in later life if they have the opportunity to spend time with their parents, doing things together, learning by example and having a normal happy family life. Surely, one day a week is not too much to ask for.
Children of school age who are left on their own all day when they are out of school are vulnerable. They are liable to join the gang at the end of the street or to get into trouble in one way or another. These things can, through boredom, be precursors to substance abuse and anti-social behaviour. Children need time with their parents. Yet there is clear evidence that family life is under increasing pressure today from the seven-day week. There is an increasing consensus among working fathers and mothers and their children that parental time at weekends, when the children are not in school, is an important issue which needs to be addressed quickly by the Government.
That is emphasised by the comprehensive summary of research published last week by the Joseph Rowntree Foundation. I give your Lordships one quotation from that research:
"Despite the plethora of new legislation and policy on families and work, and the need for some of these new employment laws to 'bed down', there are two areas where Government needs to consider further interventions. Long hours of work and Sunday and weekend work by parents of school age children need further consideration".
On Report the Minister said, sadly, that my amendment is inconsistent with the Government's general approach to better regulation. That is, we regulate only when there is an identified problem that cannot be solved in any other way. Well we now know, since last week, that this is an identified problem, a serious problem that has been identified by thorough research by the Joseph Rowntree Foundation in conjunction with London University. Will the Government either accept the solution I propose in this amendment or else come up with some other solution to the problem?
I know the Government are under pressure from local authorities to reject this amendment and I understand that some local authorities are so short-staffed that they have enormous difficulty in servicing all the demands of their care services including, particularly, those involving young people. But surely the solution is to staff the social services properly rather than to damage the nation's children? Damaging the nation's children is what we are doing by depriving them of family life.
Of course this will cost money, but if the present situation is leading to damage to the nation's children, albeit that that damage may not show for many years, is it not economic good sense to make the necessary investment now? The harm done to children by parental deprivation does not show up immediately but that does not mean that it will not come back to haunt us in the future. The effective care and education of the nation's children is crucial to the future of our society. I urge the Government and the House to take this amendment seriously.
I want to make one more point. The Government have already made a commitment to monitor how existing legislation is working and to commence a review in three years' time. However the existing law relates only to parents of children under six years old, it does not specifically cover families with children of school age. I sincerely hope the Government are prepared to take action on weekend working for families with school-aged children long before 2006, but whether or not they do, will they at least undertake to widen the monitoring and the reviewing of these issues so that it includes all families with school-aged children? I beg to move.
Baroness Blatch: My Lords, I rise to support the noble Lord, Lord Northbourne, enthusiastically and to congratulate him on his persistence. He listened to the arguments throughout the Committee stage and he has modified his amendment, which allows for those occasions when emergency services or unavoidable events require somebody to work Saturday or Sunday.
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One argument that has been made to me is that almost nobody is required, I mean forced, to work on a Saturday or a Sunday. For those who believe that argument then the amendment is harmless. But if it is not the case and parents of young children are forced, required by the local authority, to work on Saturday and/or Sunday and are given no right whatever not to do so, then it seems to me that the amendment has force, and in that case it has my support.
There is much wringing of hands about young families, dysfunctional families, families that are not coping very well. Governments have set up endless committees, think tanks and task forces. The noble Baroness, Lady Ashton of Upholland, is constantly telling us about what the Government are doing to make life easier for parents bringing up children and how children should be our prime consideration. That is what the noble Lord, Lord Northbourne, has said throughout, that the consideration should be for the health and well-being of young children. For some the weekend, Saturday and/or Sunday, is very precious time with their children and it does seem to me that the amendment is a permissive amendment asking, for the right of parents of small children not to be required and/or forced to work on one of those two consecutive days, Saturday and/or Sunday.
There are many families where those are the only days they can work and, indeed, want to work. There are many people who live alone, and working at weekends is one way of getting out and meeting people. There are ways and means of covering it. For areas such as care homes, which I know are particularly sensitive areas, Monday, Tuesday, Wednesday, Thursday and Friday are as critical as Saturday and Sunday. Every day of the week is a critical day, and we are saying simply that parents of young children should not be forced. If they are, then it means that they would be denied and discriminated against for employment if they could be required to work on one of those days. They could not take the job unless they were allowed the right not to accede to that request. They would be discriminated against in the workplace and that would be wrong. I support the amendment wholeheartedly.
Lord Peston: My Lords, I rise to ask a question. I have followed this debate and I have been puzzled about it throughout. I understand why the amendment refers to a local authority, because we are discussing a local government Bill. The noble Lord, Lord Northbourne, has also referred to local authorities giving a lead, which is a quite separate matter.
Am I to understand that what the noble Lord, Lord Northbourne, is really saying is that this ought to apply to all firms in the British economy'? Is that what he really wants? I assume he must be arguing that because I cannot imagine that it would only be the children of local authority employees who would suffer if their parents were not there. So what he is really asking for is something much more fundamental; namely, that all firms in the British economy should have to have a law of this kind applied to them. That may well be right.

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Certainly I am as sympathetic to the care of children as anybody could possibly be. In the case of my own children—well, I had an easy life as a professor—I was always available. Students got neglected but my children always came first. But the fact is that if our economy is to have any hope in the world whatsoever, to start to move in this direction would be a devastatingly costly exercise. It is all very well to put it forward, and I am as sympathetic as one can be, but to do it within the context of a Bill of this sort, given the fundamental principles involved, seems to be entirely inappropriate, not because the aim is not what we would like to achieve but simply because we are talking about massive costs. I would be very interested in what the Institute of Directors and the CBI would say.
Lord Northbourne: My Lords, does the noble Lord, Lord Peston, have any evidence of what those costs would be?
Lord Peston: My Lords, I believe, and I know from speaking to noble Lords opposite—the Tories—that there was a time when they believed in the working of the free market, and essentially I take the view that when we live in a free market economy the free market outcome is prima facie the correct outcome. Every so often when I say that to them they all look at me with horror, but the fact is that that used to be at least the Conservative view. I do not commit the CrossBenchers to anything.
My general view is that imposing burdens on the economy, bearing in mind that the overwhelming majority of people in this country work in the private sector, is something that we ought at least to be careful about.
As I said, I rise not because I do not accept the argument, I am extremely concerned about parents not being there for their children, but the consequences of this proposal are absolutely massive and I would wish to pause before we place this on the statute book in a local government Bill simply because we are discussing a local government Bill. I do not want to be negative in the sense that I do not agree with the sentiment. I do agree with it wholeheartedly, but I am genuinely concerned about the principle rather than the specific.
Lord Elton: My Lords, I rise to congratulate the noble Lord, Lord Peston, on the skill and elegance with which he evaded the question asked of him by the noble Lord, Lord Northbourne, which was where was the evidence for the massive cost to which he said this would give rise.
Lord Peston: My Lords, is the noble Lord, Lord Elton, actually saying that this would be costless? Is he saying that the business firms that do employ people over the weekend are idiots, that they do not know what is in their best interests, and they are somehow going out of their
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way to ill-treat their employees? The argument is ridiculous. All I am arguing is that the free market outcome is prima facie the correct outcome.
Lord Elton: My Lords, that was not actually the point on which the noble Lord was addressed. The question was, what was the evidence for the massive nature of the costs to which this gives rise. I am being prompted, but I cannot hear the prompts, so I shall continue unsullied by help or hindrance.
I support the noble Lord, Lord Northbourne, in a crusade that he has pursued for decades. It started in the days of "Keep Sunday Special", when he attempted to keep free an area of the week when people could count on being free at the same time as the others in their family. That attempt failed. The noble Lord is now trying to secure a time when children at school can be free at the same time as one of their parents, if one of their parents wishes.
I follow the noble Lord, Lord Peston—to his surprise—in thinking that, in principle, the proposed measure is a good thing. I would like to see it as accepted practice among all employers. The Bill applies only to local authorities, but, on the grounds that it is good to pilot any such innovation, this is a good, concise, contained area in which to do so.
I regret that the issue has arisen so late this evening, because my noble friend opened his remarks by saying that he had been advised to test the feeling of the House. I suspect that, on this matter, there is more dirigisme on the other side of the House than there is on this, and that it will be directed at seeing that the amendment fails. I would not like it to do so without recording my warm support for any move that strengthens the bond between parents and children in a society that is becoming increasingly corrosive of that link.
Lord Campbell of Alloway: My Lords, perhaps I may briefly, and without repetition, support the spirit of the amendment. For the very same reasons as were so well put by my noble friend Lady Blatch, which need no repetition, I hope that the opinion of the House shall not be sought tonight on the amendment. There are problems of costs to the local authorities. The essence of the problem arose when the House accepted Sunday trading—this is a spin-off.
There is a wider dimension, to which the noble Lord, Lord Peston, referred, that requires consideration. If the noble Lord divides the House, I will go with him, but I hope that he does not. I will go with him as a humanitarian gesture which is worthy of support. But I think that it is premature, if I may say so.
I ask the noble Lord, Lord Northbourne, to consider one matter to which I draw attention. Look at subsection (3)(c). Why on earth should the criminal law be introduced as a sanction for enforcement when the funds go to the wretched Treasury? What you want is a process of civil law compensation whereby, if the local authority breaches the code or regulations, the person involved says, "Look here, I have suffered damages worth x—say £50, £100 or £150—will you

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pay me?" If they say "Yes", that is the end of it. If they say "No", he goes to the registrar of the local county court and says, "I want more". The registrar would listen to it all and say, "No, they have given you quite enough; you must pay all costs; so there is a sanction" or "They have not given you enough; I will give you more" and then pay all the costs. The injured person gets compensation by a civil process.
What on earth is the use of giving the Secretary of State powers to introduce criminal sanctions? I ask that that may be taken into account. I have given notice to the noble Lord, Lord Northbourne, by his series of secretaries in Cambridge or somewhere, that I was going to take this point, so I hope that it does not come as a surprise. If he divides, I will support him as a humanitarian gesture, but, with respect, I think that he would be unwise to do so.
Baroness Hanham: My Lords, as I said on Report, in principle I support the noble Lord, Lord Northbourne. That was the attitude taken in the House of Commons. I do not think that any noble Lord, particularly those who have children. would not say that weekends are extremely precious, and that they are a very precious time to be with one's children. But to start by saying that all local authorities will have to agree to any request not to have to work on both Saturday and Sunday, without us having some idea of the implication, seems too far-stretched to be included in legislation.
It is well worth exploring the implications of the proposal. My noble friend Lord Hanningfield, the leader of Essex County Council, who has canvassed the idea, believes that the measure would cost potentially millions. He said billions—I have changed the "b" to "m"—but he may well be correct, and I may be wrong as a former leader of a local authority. Under the circumstances, it would be unwise for the measure to be embarked upon in that way.
Somebody needs to take a grip on the matter and see whether the measure is possible. It ought to be possible within the terms of flexible working, which is already part and parcel of employment law. Good employers, under special circumstances, ought to be able to grant such freedom. But I do not know whether they can grant it perpetually to people who have taken on a job that says they will work at weekends. We need to consider that.
I told the noble Lord, Lord Northbourne, that I would agree in principle—I did so during the previous debate. I hope that he will accept that as a sensible stance by someone who is basically very supportive of the measure but worried about the practicalities. Like my noble friend Lord Campbell, I hope that the noble Lord does not push the amendment to a vote today. But I hope that it does not get lost in a welter of ministerial bromides, and that it is taken seriously. If possible, in the not-too-distant future, someone—not only the Rowntree Trust, which is a valuable organisation—should investigate the implications of
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this proposal. We could then balance them with the cost to local authorities of children being on the streets. That work needs to be done.
Baroness Hamwee: My Lords, we on these Benches have difficulty with this amendment. My noble friend Lord Russell dealt with it at a previous stage and I will not follow him in referring to the Irishman's pig. At some point, I will ask him what that was all about. However, I follow him in his comments. Our preferred approach is not to look at the prescriptive allocation of particular days of the week. I would he far happier to see what is clearly an important issue addressed in the round.
This matter does not only concern weekdays and weekends. There are hours during the week when many parents operate in an almost child-free or childless zone. They hardly see their children during the week. The issue is much broader than just weekends.
Although local authorities should set a good example, I am unpersuaded that it would be appropriate to impose this arrangement on a sector that is actually a pretty good employer. Earlier in this debate, the noble Lord, Lord North bourne, mentioned local authorities being against the proposal. Certainly, as others—especially the noble Baroness, Lady Hanham—have said, there should he a huge investigation into the implications.
I cannot resist mentioning an article about the French school system that I saw in the Independent two or three days ago. Many French schools still require attendance on Saturday mornings, and many children prefer that, because the alternative is spending time with their parents going to the supermarket. I am sorry that we cannot support the noble Lord, Lord Northbourne.
Lord Hylton: My Lords, before the Minister replies, I would like to say that I am very happy to support at least the principle of the amendment moved by my noble friend Lord Northbourne. He has frequently spoken about the need for quality time for the whole family. He was too modest to mention his admirable speech on the Second Reading of the Anti-social Behaviour Bill, when he drew attention to the "Dad-deficit for boys". That is an important factor in keeping them—or not—on the straight and narrow path. Neither did he mention the importance for a significant minority of the Jewish Sabbath on Saturday.
Good employers are already doing what my noble friend wants in many cases. That is particularly true of small employers and farmers, with whom I am more acquainted than with most other types of employer. As has already been said, it is most desirable that local authorities should give what lead they can. I suspect that some of them up might actually find themselves saving overtime payments. The policy would also give

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trade unions a lever with which to improve the situation of all employees. With those words, I hope that the Minister will give us a favourable response.
Lord Campbell of Alloway: My Lords, before the noble Lord sits down, does not the essence of the problem lie with these wretched supermarkets?
Lord Hylton: Indeed, my Lords, shops and other sales outlets are the ones most likely to require their workers to work both Saturday and Sunday.
Lord Bassam of Brighton: My Lords, before I get into the meat of the issue, it is worth reminding your Lordships that we are discussing the Local Government Bill. I echo the words of congratulation that have already been given to the noble Lord, Lord Northbourne, for his tenacity in bringing forward this amendment. It has already been debated twice—in Grand Committee and on Report. The noble Lord, Lord Northbourne, is a tireless campaigner in this field and he should be congratulated on that. As a parent with three young children, I certainly approve of and endorse his campaigning. Listening to what he and other noble Lords have had to say on this subject, I have a great deal of personal sympathy for his position.
It has been a mature debate. As it has moved on, all the other important considerations have been introduced into it—considerations such as whether it is right that it should apply only to one sector of employment and whether it is right that it should be imposed on the sector of employment that is best conducted—local authorities. Local authorities are good employers and are flexible in their working practices. We all know from our rich years of experience—in Kensington and Chelsea, Essex or wherever—as local authority representatives that local authorities have been very good about introducing innovation in childcare and support for those who care for young children.
This has been an important debate, but issues such as cost, impact and the perversities of the proposition, which were well aired on Report, I think, or in Committee, when the noble Earl, Lord Russell, made a telling intervention, must be taken into account. I am one of those who would like, in principle, to be able to support the amendment but find that I cannot. We need to see how the current legislation works. As the noble Lord, Lord Northbourne, said, it has not been in place long. As a government, we are well on the road to introducing and ensuring that there are flexible working arrangements and ensuring that nobody is discriminated against unfairly and that family-friendly practices are put in place. It is right to see how those things work in practice and progress, as we always should, on the basis of evidence. It is for that reason that I look forward to 2006, when there will, no doubt, be a thorough review of the way in which the legislation has worked. It is at that stage that some of the considerations to which the noble Lord has drawn attention in moving his amendments will be best addressed.
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I appreciate that that is some time off, but it is right that we have a monitoring strategy in place. We ought to work closely with the employers, whether they be in the local authority or the private sector, so that we can assess the impact of the legislation and how it has worked and see how best practice has operated and how flexible working practices have worked.
I do not think that I will tread on the toes of too many ministerial colleagues if I say that we would welcome the opportunity at that stage to see whether the matter is an important consideration. That, in itself, will enable the local authority sector to review the impact and consider whether it is an appropriate way forward and will provide the opportunity for employers generally to consider other issues, such as cost, to which the noble Baroness, Lady Hanham, referred. Cost is not an insignificant matter. My noble friend Lord Peston made the point forcefully that, although it is a highly desirable direction for public policy to follow, we must balance it with the cost of implementation and the perversities that occur occasionally through implementation.
I hope that the noble Lord does not feel that he needs to press the matter to a Division this evening. That would be unfortunate. However, as Ministers, we have the issue at the front of our mind. We undertake to consider it at a later stage, and we keep it under review at all times. I am grateful to the noble Lord for bringing us back to the matter with his trenchant persistence, on which he is to he congratulated, and for his tireless campaigning in the field. I hope that he will feel able to withdraw his amendment.
8.15 p.m.
Lord Northbourne: My Lords, may I say to the noble Lord, before he sits down—he cannot reply after I have spoken—that he did not deal with my point about whether the Government would extend the monitoring and review process in 2006 to cover school-age children?
Lord Bassam of Brighton: My Lords. that is a fair point. I did not respond to it. It goes without saying that it would make good sense to do that. It would be in the spirit of the legislation that we have introduced in the past few years.
Lord Northbourne: My Lords, I am grateful to the noble Lord. I shall follow the lead given by the noble Lord, Lord Campbell of Alloway, and make a humanitarian gesture, by telling your Lordships that I do not intend to test the opinion of the House. The reason, simply, is that I do not think that I should win.
The noble Lord, Lord Peston, referred to the immense cost. Everybody talks about the high cost, but I think it is just a question of good management, although the matter needs considerable research. The noble Lord, Lord Campbell of Alloway, introduced the interesting idea of having a civil remedy, rather than a criminal remedy. That needs exploring further.
I do not want to delay the House. I am extremely grateful for contributions made by noble Lords, which will assist in arriving at a better way of achieving this

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objective. I hope that the noble Lord's department might be prepared to enter into discussions with noble Lords and others who are interested to determine whether the matter can be moved forward over the next months and years. I promise I shall come back on this subject—unless the Lord takes me. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 120 [Repeal of prohibition on promotion of homosexuality]:
Lord Brightmanmoved Amendment No. 19:
Page 75, line 40, at end insert—
"(2) Subject to the general principle that the institution of marriage is to be supported, a local authority shall not encourage, or publish material intended to encourage, the adoption of any particular sexual lifestyle.
(3) This section does not prohibit the provision for young persons of sex education or counselling services on sexual behaviour and associated health risks."
The noble and learned Lord said: My Lords, although it may not be very obvious at first glance, this amendment is. in substance, a drafting amendment, but it is an essential one. The only purpose of the amendment is to clarify what would otherwise be an ambiguous situation. Section 28—to use the familiar description—prohibited a local authority from promoting homosexuality. What was meant by promoting is irrelevant for present purposes. I believe that it has a dictionary meaning of encouraging, but that does not matter.
Clause 120 states that Section 28 "ceases to have effect". The question arises: what exactly is the result? Let me take a simple analogy. Suppose that there is a notice on a garden lawn: "It is prohibited to walk on the grass". Suppose that notice is removed. What is the result? What are walkers being told? They are being told that it is no longer forbidden to walk over the grass.
So with Section 28, which states that a local authority is prohibited from promoting homosexuality. Section 28 is repealed. What is the message? A local authority is no longer prohibited from promoting homosexuality. That is clearly not the intention of the Government. The Government try to meet the ambiguity point by saying that local authorities can undertake only those activities for which they have specific powers. Therefore, no more need he said.
But that response is flawed. It overlooks the fact that, as a matter of law, rights and powers—I do not mind which word is used—can be created not only expressly but also by implication. If a course of action is prohibited by statute and then the prohibition is removed, what was previously prohibited is, by implication, sanctioned. If Clause 120 stands on its own, without any explanation, the result is that what was previously prohibited—the encouragement of homosexuality—is, by implication, now sanctioned.
If the situation is not clarified and there is a law case, I can see the case wending its extensive way to the House of Lords— all for the want of a few words of clarification, which Parliament can so easily provide. Perhaps I may take your Lordships to the wording of
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my amendment, for my suggestion of a way of resolving the ambiguity point. I have done it in a way which I hope will cause no offence to anyone. It does not alter one line of the Bill. It begins with the words:
"Subject to the general principle that the institution of marriage is to be supported."
Those words are lifted verbatim from Section 1 of the Family Law Act 1996. They can be removed by the Commons if the Government do not like them. The amendment continues:
"A local authority shall not encourage, or publish material intended to encourage the adoption of any particular sexual lifestyle."
The Government may say that the words "sexual lifestyle" lack definition. I do not mind. The Commons, with their highly experienced parliamentary draftsmen, can no doubt think of a better terminology. My wording, or their better wording, will preclude the implication that what was previously prohibited is now sanctioned.
My amendment concludes with the important words:
"This section does not prohibit the provision for young persons of sex education or counselling services on sexual behaviour and associated health risks."
That is inserted merely to make sure that I am not interfering with sexual education.
I am not a politician. I have no experience of local government. I am only in your Lordships' House ex officio because I have spent my life in the law and ended up as a judge. I am convinced that it is my duty to advise your Lordships that an uncertainty exists. If the Bill is returned to the Commons with my amendment, they can resolve the ambiguity in whatever way they please. I must advise your Lordships that the ambiguity should be removed.
I may be asked why I am moving an important amendment so late in the day. The answer is that that is what the Companion tells me to do. Third Reading is the proper time to clarify any remaining uncertainties in the Bill. I do not know whether there will be a Division on my amendment, but if there is, a vote for the amendment is a vote for clarity. A vote against—and I intend no offence—would be a vote in favour of ambiguity.
I conclude by reminding the House of the words of the noble Lord, Lord Lester of Herne Hill, in debate on the drafting of statutes. He said:
"It is essential for reasons of legal certainty and the rule of law, that legislation should be drafted as clearly as possible and in a manner which reflects the objects and purposes of Parliament in using its sovereign power to make the law of the land".ֵ[Official Report, 21/1/98; col. 1591]
I ask your Lordships to support the amendment, which I only put forward in what I believe is the best interests of the promoters of this legislation. I beg to move.
8.30 p.m.
Lord Campbell of Alloway: My Lords, I have difficulties with this amendment. I speak with utmost deference and respect, having appeared befDre the noble and learned Lord when he was a High Court judge, in the Court of Appeal and in the Appellate

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Committee. He is one of the best equipped legal draftsmen whom I have known in my experience at the Bar, but I have problems with his amendment.
My problem is that, if the amendment had said, in ordinary language, that the local authority should say that the right way of living is with a family in marriage, I would have been content. That would have been in accordance not only with the Christian faith, of which most of us are members, but with the Islamic faith and the Jewish faith. The amendment, as I read it—though I may be totally inept—does not ordain that the encouragement for the children should be to understand the importance of marriage, whether they be Christians, Islamic, Jews or whatever. That is my problem. Therefore, I have a difficulty with the amendment, but perhaps my difficulty is ill conceived.
Earl Russell: My Lords, I congratulate the noble and learned Lord, Lord Brightman, on having shown the patience of Job in waiting for the right moment for the amendment to come out. He has been waiting for the resolution of the debate on Section 28 and has had the amendment on the Order Paper without moving it all through the progress of the Bill. He has sat through many hours when his amendment has not come out and, so far as I know, has not breathed one word of complaint. That is an example to us all.
However, I am not convinced that the noble and learned Lord is setting out to meet a genuine danger. If one considers the Learning and Skills Act 2000 and the guidance drafted by the right reverend Prelate the Bishop of Blackburn in conjunction with a great many other people, one can see that a great deal has already been done to plug the gap that the noble and learned Lord believes is there. However, I shall leave the detail of that to the Minister.
The second part of the amendment says that,
"a local authority shall not encourage, or publish material intended to encourage, the adoption of any particular sexual lifestyle".
I would not have chosen the word "lifestyle", but the sentiment is exactly right. It is not the business of schools to do that. How we should live is a matter that is to be resolved by individuals and by collective conscience in groups. It is not the business of schools to teach that one way of living is right and another is not. If that had been the whole of the amendment, even though I believe it to be unnecessary, I would have been perfectly content to see it on the statute book.
However, my problem is with the first words of the amendment, that,
"the institution of marriage is to be supported".
Your Lordships know my own personal views on marriage. One thing that I have against it is that "till death do us part" is not long enough. But I do not feel entitled to take legislation to enforce my particular preference and conscience on other people. A great many people, among whom I would include my two sisters-in-law, for whom I have great affection, have a genuine conscientious objection to the state of marriage. However, they live together in a union—or,
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in one case I regret to say used to live together in a union when she was alive—as true, as loving and as faithful as any that I can think of. Qualitatively I can see no difference between those types of union.
It is very dangerous to start using the law as a kind of hortatory device to support marriage. In fact it sounds very often as though in medieval theology marriage had been not a sacrament but a penance. The more people think of it as a sacrament the more I would have thought that they would have had reservations about using the law and financial incentives to support it. To use financial incentives to spread a sacramental grace is simonious and that, metaphorically, expresses some of the objections that I feel about the idea of using the law to encourage marriage. It is a matter for the individual conscience and it ought to be undertaken with a whole heart, complete will and genuine intention or not at all.
The amendment could possibly have the inadvertent effect of discouraging things which need to be done in cases where marriages have not worked; for example, the provision of women's refuges for people who have had to leave marriages which very patently are not working. I am certain that never for a moment was that the noble and learned Lord's intention, but without an exhaustive trawl through statutes, for which I have not the resources, I cannot be sure that that would not be its effect. If it is, I hope that it will not happen.
I said at earlier stages of the Bill that people feel committed to each other in unions by different things, not necessarily by the ceremony of marriage, even if they have gone through it. One or two noble Lords may possibly remember that I mentioned a couple with whom we had dinner 15 years ago and who were both coming out of a failed first marriage and hesitating before commitment to a second. They discussed with each other at some length what would make them feel that they had made a commitment to each other. They decided that it would be when they took one subscription instead of two to their favourite learned journal.
It so happens that by sheer chance I met that couple again at a party last Sunday evening. I asked them what they had done about it. They said that they had taken out a single subscription to that journal and that the editor had been furious. Here, what stands in the way of family values is not liberalism but commerce. That is a point which we could all afford to take. They had got married but they said that it was not the marriage which gave them their sense of commitment and the sense that they were a union; it was that they had only the one copy of the journal so if they ever parted one of them would be without the back numbers and without one of the basic resources of living.
I do not know how many other ways there are in which people may feel that they are committed to each other, but they are truly legion. If one looks at people who have gone through the ceremony of marriage one may see two complete strangers. By contrast, as recently as last weekend I was having dinner with a couple who were obviously, in any inward and

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spiritual sense, as completely a married couple as I have ever seen. They had a private language; they understood each other instantly; they would react to something I said as one person. Both of them are still in the process of freeing themselves from marriages to other people, but in any inward and spiritual sense, those people are as married as any couple who have been through a ceremony I have ever met.
So I believe that simply enforcing, encouraging or even using the power of the state to give primacy to a ceremony is a mistake. It is taking the letter and not the spirit. There are many instances that the letter killeth and the spirit gives it life which, not being a Christian, I quote in a metaphorical sense. But in a metaphorical sense I believe that it is a truth and that is why we on these Benches have difficulty with this amendment. For a party with liberalism in its philosophy, it is a matter for the individual conscience.
Lord Peston: My Lords, I rise to ask a question. The noble and learned Lord, Lord Brightman, said that his purpose was to produce clarity where there would otherwise he confusion. In my case he has produced confusion where, until he spoke, I thought the matter was clear. As I understood it, some years ago a reactionary House of Lords passed an amendment, Clause 28, which was viciously anti-homosexual and prohibited what it called the promotion of homosexuality. The law was changed.
As I understood it, a few weeks ago the House removed that provision and returned the law to where it was. That is the whole story as far as I am concerned. There is no confusion whatever. Will the noble and learned Lord, Lord Brightman, tell us whether, if he passes his amendment, we will return to banning the promotion of homosexuality? I read his amendment as reintroducing Clause 28 in a different form of words.
Baroness Warnock: My Lords, I hope that the point about lack of clarity in the Bill will not be overlooked. Probably not lawyers, but ordinary people tend to think that if one removes a prohibition one gives a permission. Since Clause 28 was so notoriously antihomosexual—I entirely agree with that point, it was a disgraceful clause—removing it, of which I am greatly in favour, suggests an ambiguity about the entitlement of teachers.
I was persuaded by my noble and learned friend in his exposition of that ambiguity, but I find a certain contradiction in proposed subsection (2) between,
"Subject to the general principle",
and,
"shall not encourage, or publish material intended to encourage, the adoption of any particular lifestyle".
Marriage is a particular sexual lifestyle. If it is to be supported then that is to encourage a particular sexual lifestyle.
I would he happy with the amendment removing any possible ambiguity if it started after the comma, so that it read,
"a local authority shall not encourage, or publish material",
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and so on. That would rule out any preference that a teacher might have, whether for marriage, homosexuality or any other sex style we would like to imagine. I am a believer in marriage, but I do not make any distinction among my five children between the two who live with partners unmarried and the three who are married. They are all my children and sons-in-law and daughters-in-law, although I never know quite how to refer to them.
The first proposed subsection is the trouble. Nevertheless, there is an ambiguity in the Bill as it stands.
Baroness Blatch: My Lords, the noble and learned Lord, Lord Brightman, is right in one of his assumptions: if in law there has been a prohibition measure—like him I scanned the dictionary, and it subsumes encouragement of homosexuality—and it is removed and there is no substitute, that means that it is a legal activity. The promotion of homosexuality becomes permissible and legal. To that extent the noble and learned Lord is right.
I believe that I was wilfully misunderstood when I tried to put something in place of accepting. the abolition of Clause 28 to give the power to parents to make judgments about the materials used and the content of sex education outside the national curriculum and the degree to which they believed it was appropriate for their children. That was denied me. As I say, I believe that it was wilful misinterpretation. I have read and reread the debate, which was all about my subverting Clause 28 and reinserting it by the backdoor and all the rest of it. I thought that it was straightforward support for parents and a straightforward provision to protect children from the worst form of sex education and the worst form of materials used for sex education.
I have one difficulty which has already been mentioned by the noble Baroness, Lady Warnock. I very strongly support the first line of subsection (2), which states:
"Subject to the general principle that the institution of marriage is to be supported".
However, there is a difficulty with the second part of the subsection, which equates marriage with all other lifestyles. Consequently, the two parts of the provision almost contradict one another.
I unashamedly want to distinguish marriage from other forms of sexual lifestyle. Not only do I think that marriage should be supported; the Government and the Prime Minister believe it should be supported. The Foreign Secretary is on record as making very strong statements of support for marriage and as advocating marriage as the best arrangement, not only for bringing up children but for ensuring the cohesion of society. I support it very strongly and I should like to see the distinction. If no such provision goes to the other place, the other place will have no opportunity to consider the basic dilemma. A prohibition has been removed but nothing has been put in its place.
So I want to put on record my view that there is a difficulty and ambiguity in subsection (2) of the amendment. However, if the noble and learned Lord,

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Lord Brightman, wishes to seek the opinion of the House, I should like to think that there will be support for it. He will have my support because I think that the provision will keep the debate alive in another place and that it will allow further thought to be given to what should be put in place of the abolished Clause 28. That is why I shall support the noble and learned Lord.
8.45 p.m.
Lord Northbourne: My Lords, I have put my name to the amendment. I do not wish to delay the House. I am sorry that this debate has, in my view, degenerated into another ongoing discussion about homosexuality, because I do not think that that is what this amendment is about. For me—one may think rather naively—the problem is much simpler. I believe that this amendment is about a tolerant and inclusive society. We know from the enormous lobby that many of us received that there are many in this country who are very deeply worried about the abolition of Section 28. I do not happen to be one of them. However, those people, whether they were right or wrong, were terrified that their children and grandchildren were going to be put in a situation where there was some sort of promotion of homosexuality or other kind of sexual lifestyle indoctrination.
We know that that is not the case. However, I believe that every government have the responsibility to act not only for those who vote for them but also, once they are elected, for all citizens. I think that the Government should show more concern for that enormous chunk of the population who are deeply worried about this situation. That was one of the reasons why I wanted to support the amendment tabled by the noble and learned Lord, Lord Brightman. I also support the point that he made about the uncertainty which was created by negativing a positive statement without in any way making clear what we mean.
Lord Elton: My Lords, I rise briefly in support of the noble and learned Lord, Lord Brightman, and in search of illumination. I would be grateful if he would tell me if I am not right in thinking that the first line makes the rest of subsection (2),
"Subject to the general principle".
In other words, my noble friend Lord Campbell of Alloway can be reassured that the principle is already established, as the noble and learned Lord told us, in the Learning and Skills Act. So the noble Earl, Lord Russell, can be reassured that this is no new introduction in law of proselytization for marriage; it is a repetition.
Earl Russell: My Lords, I am well aware of that. I think I made the point in 1996.
Lord Elton: My Lords, I regret that I was not perhaps awake at the moment that the point was made, or perhaps my memory is not as good as the noble Earl's. As it is not a new point, there is no point in objecting to it as though it were. The noble and learned Lord, Lord Brightman, has achieved what he
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set out to do—to remove an ambiguity. If that were not removed there would be an inequality of treatment between different potential lifestyles. I am glad that there is a prohibition, subject to the provision in the first line of paragraph (2), for the promotion of particular lifestyles, because nobody has talked about the lifestyle of young people who count sexual conquests as Red Indians used to count scalps.
This is a heterosexual as well as a homosexual matter. There are all sorts of lifestyles which are bad, not merely medically—as covered by paragraph (3) —but spiritually, and I would not wish to see them promoted. Therefore, to prevent all such promotion, subject to the general principle that the institution of marriage is to be supported, is an admirable clarification of the intention of the law.
Lord Rooker: My Lords, this has been a useful debate and many noble Lords have contributed. I hope that my notes will cover all of the issues raised. This amendment comes a little late in the day. That is not a criticism, but just in the sense that we are at Third Reading. The arguments on this amendment seem to have changed since Committee stage.
Amendment No. 19 concerns the repeal of Section 28 as we know it. It seeks to place a broad duty on local authorities to prevent them from, with the exception of supporting the principle of marriage, promoting any particular sexuality across any of their functions. The noble and learned Lord, Lord Brightman, said quite clearly in Committee that his only purpose in tabling the amendment was to avoid a difference of opinion between this House and the other place, which would delay the Bill and mean further argument about Section 28. I am very glad to say that that is not the situation in which we find ourselves.
I remind noble Lords that we saw at Report that the view of this House is quite clear on the repeal of Section 28. The amendment to repeal was defeated by 180 votes to 130. In view of such a majority, it seems odd that we are again debating the noble and learned Lord's amendment given that it was originally put forward as a compromise. However, I shall turn now to the substance.
Over the summer we have considered the amendment carefully, but as we explained in Committee, we do not believe that it offers advantages beyond the straightforward repeal of Section 28, which is currently enshrined in the Bill in Clause 120. Indeed we believe that the amendment has some disadvantages.
As we made clear in Committee, the new clause is unnecessary as far as sex education is concerned. The main responsibilities fall to schools and we have in place an adequate framework of protections. Indeed, the approach in the new clause with regard to sex education closely reflects that of the existing sex relationship education guidance which says, in paragraph 1.21, that:
"pupils should be taught about the nature and importance of marriage for family life and bringing up children, but that there are strong and mutually supportive relationships outside marriage".

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Paragraph 1.30 states that,
"teachers should be able to deal honestly and sensitively with sexual orientation, answer appropriate questions and offer support and that there should be no direct promotion of sexual orientation".
There are, however, wider considerations. The noble Earl, Lord Russell, pointed out one of the problems with the proposal in his contribution in Committee when he questioned what he described as the "monopolistic provision" for marriage in the proposed new clause. I appreciate that the promoters consider that the new clause simply repeats provisions in the Family Law Act passed under the previous administration, to which reference has been made. I also recall that in Committee the noble and learned Lord, Lord Brightman, said that his intention was to avoid causing offence to anyone. I believe him entirely. However, it is clear to us that this new clause would in fact be offensive to many people—not just homosexual couples but unmarried heterosexual couples as well.
It is also worth pointing out—this reinforces the points that have been made—that the Family Law Act had as its primary purpose dealing with the fallout from breakdown and disputes in marriage and domestic relationships. The general principle regarding the institution of marriage is arguably relevant in dealing with divorce and separation and legal aid for mediation—the matters with which the 1996 Act deals. It does not follow that it is a "freestanding" provision that should underpin all of a local authority's functions, which is what the intent of the amendment appears to be.
Baroness Blatch: My Lords, I am grateful to the Minister for giving way. My understanding is that the Family Law Act has never been implemented. Is that right?
Lord Rooker: My Lords, I cannot answer that question: I shall take advice on it.
Earl Russell: My Lords, I believe the position is that Part 3 of the Act has not been implemented.
Lord Rooker: My Lords, I was just about to say that several Acts have parts that are never implemented. I shall certainly check whether that is the case with the Act we are discussing. However, that does not alter the point that I am making and does not obviate the paragraph that I have just read out which I shall repeat. As I said, it is worth noting that the Family Law Act had as its primary purpose dealing with the fallout from breakdown and disputes in marriage and domestic relationships. The general principle regarding the institution of marriage is arguably relevant in dealing with divorce and separation and legal aid for mediation—the matters with which the 1996 Act deals. But it does not follow that it is a "freestanding" provision that should underpin all of a local authority's functions, which is what the intent of the amendment appears to be.
I also appreciate the efforts that the promoters have taken in order to ensure that the measure would not obstruct local authorities in their responsibilities for
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sex education and sexual health. However, the very fact that they have done so in the second limb of the amendment indicates the main problem associated with their approach. It is a recipe for confusion and uncertainty for local government about what would fall inside or outside the prohibition. That is very important. There is a seductive argument that would lead us along the path of saying that if we accept that authorities should not be promoting a particular lifestyle choice—and we do—we should not object to the law saying so. As I say, it is a seductive argument but I believe that it is one we should resist.
We have given local authorities the powers to be community leaders—a role that we have asked them to develop for the benefit of all the people living in and using their areas and services. Local authorities know that they should act responsibly. They should, indeed, not be promoting any specific lifestyle choice. But equally they should be able to provide services that meet the needs of all members of their communities, including those who may already feel quite marginalised. We should be wary of inadvertently making that task more difficult. We believe that despite its good intentions the amendment has the capacity to cause unnecessary confusion about exactly those kind of issues. For those reasons I hope that the noble and learned Lord will feel able to withdraw the amendment.
9 p.m.
Lord Brightman: My Lords, one lesson that I have learnt this evening is the danger of leaving a drafting amendment to Third Reading. Then, there is no possibility of meeting by means of a few words objections to the actual terminology involved. Leaving a drafting amendment to Third Reading means that you have burnt all your boats except the one that you are in, which is sinking. So, in future, I shall always introduce my drafting amendments on Report, whatever your Lordships may say about it.
I did think of doing that during the debate on Report, but the clock said 11 o'clock and there had just been a Division which had taken up a great deal of time. I felt that it would be unfair to burden your Lordships with a debate on drafting at that stage. I intimated, as your Lordships can read in Hansard, that I intended to introduce this proposal al. Third Reading. I have learnt my lesson.
I said again and again in introducing the amendment that I was not wedded to any particular wording. I made it absolutely clear, as the noble Baroness, Lady Blatch, pointed out, that my only purpose was to get the amendment to another place so that Members there could put their skilled draftsmen on to it and achieve a terminology that would suit both Houses.
If the amendment were rejected, as I said earlier, that would be a vote in favour of ambiguity. If I divide the House, a vote in favour of the amendment will at least be a vote in favour of certainty, because the whole of this can be put right in the Commons.

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I know that there have been innumerable Divisions already and it is nine o'clock, but I think that I would be letting down many of my friends if I did not seek the opinion of your Lordships. I wish to press my amendment.
9.2 p.m.
On Question, Whether the said amendment (No. 19) shall be agreed to?
Their Lordships divided: Contents, 25; Not-Contents, 100.

Division No. 7

CONTENTS

Blatch, B.

Kimball, L.

Brightman, L. [Teller]

Kingsland, L.

Brooke of Sutton Mandeville, L.

McCarthy, L.

Brougham and Vaux, L.

Marlesford, L.

Byford, B.

Masham of Ilton, B.

Cooke of Thorndon, L.

Northbourne, L.[Teller]

Dixon, L.

O'Cathain, B.

Dixon-Smith, L.

Palmer, L.

Elton, L.

Seccombe, B.

Fookes, B.

Waddington, L.

Glentoran, L.

Warnock, B.

Hylton, L.

Wedderburn of Charlton, L.

NOT-CONTENTS

Acton, L.

Gould of Potternewton, B.[Teller]

Addington, L.

Alderdice, L.

Graham of Edmonton, L.

Alli, L.

Greengross, B.

Archer of Sandwell, L.

Grocott, L.

Ashton of Upholland, B.

Hamwee, B.

Barker, B.

Harris of Haringey, L.

Bassam of Brighton, L.

Haskel, L.

Berkeley, L.

Hayman, B.

Bernstein of Craigweil, L.

Hilton of Eggardon, B.

Blackstone, B.

Hogg of Cumbernauld, L.

Borrie, L.

Hollis of Heigham, B.

Brooke of Alverthorpe, L.

Holme of Cheltenham, L.

Burlison, L.

Howells of St. Davids, B.

Campbell-Savours, L.

Hoyle, L.

Carter, L.

Hughes of Woodside, L.

Chandos, V.

Hunt of Kings Heath, L.

Cohen of Pimlico, B.

Jones, L.

Corbett of Castle Vale, L.

Layard, L.

Craigavon, V.

Lea of Crondall, L.

Crawley, B.

Livsey of Talgarth, L.

Lofthouse of Pontefract, L.

David, B.

Macdonald of Tradeston, L.

Davies of Coity, L.

Mclntosh of Haringey, L.

Davies of Oldham, L.

Mclntosh of Hudnall, B.

Dean of Thornton-le-Fylde, B.

MacKenzie of Culkein, L.

Desai, L.

Mackenzie of Framwellgate, L.

Dubs, L.

McNally, L.

Elder, L.

Maddock, B.

Evans of Parkside, L.

Mallalieu, B.

Evans of Temple Guiting, L.

Mar and Kellie, E.

Farrington of Ribbleton, B.

Massey of Darwen, B.

Filkin, L.

Miller of Chilthorne Domer, B.

Gale, B.

Mitchell, L.

Gibson of Market Rasen, B.

Morgan, L.

Golding, B.

Norton of Louth, L.

Goldsmith, L.

Parekh, L.

Goodhart, L.

Pendry, L.

Goudie, B.

Peston, L.

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Pitkeathley, B.

Smith of Leigh, L.

Radice, L.

Symons of Vernham Dean, B.

Ramsay of Cartvale, B.

Temple-Morris, L.

Rea, L.

Thomas of Walliswood, B.

Rendell of Babergh, B.

Tomlinson, L.

Richard, L.

Tordoff, L.

Turner of Camden, B.

Richardson of Calow, B.

Walmsley, B.

Rooker, L.

Whitaker, B.

Roper, L.

Whitty, L.

Russell, E. [Teller]

Williams of Crosby, B.

St.John of Bletso, L.

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

Shutt of Greetland, L.

Resolved in the negative, and amendment disagreed to accordingly.
9.12 p.m.
Clause 126 [Commencement]:
Lord Rookermoved Amendments Nos. 20 to 24:
Page 77, line 33, after "71," insert "72,"
Page 77. line 33, after "103," insert "109,"
Page 78, line 17, leave out "sections 22(2) and" and insert "section"
Page 78, line 30, leave out "109 to" and insert "110,"
Page 78, line 38, after "67" insert ", 67A"
On Question, amendments agreed to.
Lord Rookermoved Amendment No. 25: Page 79, line 6, after "58," insert "65A(2),"
The noble Lord said: My Lords, with this amendment we will briefly debate Amendment No. 27, which inserts the words on the Order Paper into Schedule 6, page 114, line 10.
During the conclusion of the Report stage in the summer I indicated that the statement being made that day by the Secretary of State for Education and Skills on education funding would include a proposal relevant to this Bill, involving a minor amendment to education legislation. I wrote subsequently to the noble Baronesses, Lady Hanham, Lady Hamwee and Lady Maddock, and to the noble Lord, Lord Hanningfield, explaining the Government's intention in more detail, and my letter was placed in the Library of the House. The amendment as now presented for consideration by your Lordships' House has since been extended, as I shall explain. Representatives of local education authorities and head teachers have also been consulted about the amendment over the summer.
The amendment is concerned with Sections 45A and 45B of the School Standards and Framework Act 1998, as amended by the Education Act 2002. Under those provisions, the Secretary of State for Education and Skills and the National Assembly for Wales have a reserve power to set a minimum schools budget for a local authority where the authority's proposed schools budget is considered inadequate in all the circumstances.
First, as advised in my letter, the amendments bring forward by one month to 31st December the schools budget deadline by which local education authorities in England are required to notify the Secretary of State for Education and Skills and their schools of their proposed schools budget for the following financial

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year. We intend to announce the provisional local government finance settlement in the middle of November. That will make it possible for local authorities to decide by the end of December what schools budget they will propose. The effect will be to give schools much greater certainty about their funding earlier in the year, so that they can plan more effectively for the following year.
Secondly, these amendments change the deadline by which the Secretary of State for Education and Skills or the National Assembly for Wales must give notice of their intention to use the reserve power, to 14 days from the schools budget deadline instead of 14 days from the date of each individual authority's notification of its proposed schools budget. That will ensure a common timetable for the consideration of all authorities' proposed schools budgets.
In short, it is a technical adjustment to the calendar for making the very important decisions on the large expenditure— by both central and local government—of the schools budget for this country. I beg to move.
Lord Hanningfield: My Lords, I thank the Minister for his comments. Unfortunately, I missed the first part of his speech. We have reservations about the timetable. All governments—there is no difference between Conservative and Labour governments—often give promises about the timetabling of announcements of the grant to local authorities. There have been many years when, for example, Parliament has closed for a week before the Queen's Speech in the middle of November—that is very likely to happen—so announcements for local government finance are made 10 days later than originally planned. I gather from officers of the Local Government Association that already there are discussions about the statistics used in making the grant announcements.
Given such factors, it could be early December before the announcement is made—for reasons that the Government might say they cannot control. It will then he impossible to deliver school budgets by the end of December. We all want to support schools as much as possible. But a 1 per cent increase in expenditure in local authorities means a 4 per cent rise in council tax. Most authorities are determined to do all they can to avoid increasing council tax. That might mean not being able to pass money to schools, because it depends on how the grant settlement works out. In Essex last year, council tax had to be increased by 5 per cent virtually to reach the target for schools alone. We are not prepared to do that again, so the schools budget will depend very much on the settlement.
There is also a technical problem as regards local authorities: their budget meetings do not take place until early February. Although they might indicate what they will give schools, they must decide the rest of the budget, and it will not become council policy until early February. Although there will be government indications of what they expect to give schools, it will not be a cast iron guarantee unless the Government expect all councils to change the dates of their total budget processes before Christmas.
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We would like those issues clarified. What happens if the Government cannot give the grant settlement at the time that has been mentioned? What happens if the grant settlement means huge increases in council tax, which councils will not agree easily? What happens to legal procedures in councils when the final budget decisions are not taken by a full council until early February? I see that the Minister has been joined by a Minister from the education department and I would be grateful for some clarity about how the system will operate, especially if the Government cannot keep to the deadlines that they have announced.
Baroness Hamwee: My Lords, the Minister is lucky that the noble Lord, Lord Peston, is not behind him waving the Companion.
The noble Lord, Lord Hanningfield, raised important points about the practicality of the policy, which I shall not repeat. We have always opposed this reserve power for the Secretary of State to intervene in the education budget. However, in the light of what the noble Lord, Lord Hanningfield, said, I acknowledge the additional time that local authorities will have to prepare their budgets. Perhaps the key issue is the one that has not been addressed—whether the Government will follow through on their assurance to give local authorities more guaranteed, longer-term funding and fewer year-to-year changes.
Lord Rooker: My Lords, I will read this. It says,
"For use if pressed only. Question: How can this amendment work if there is a delay to the provisional local government financial settlement? Local authorities will not have time to decide their proposed schools budgets",
which is exactly the point made by the noble Lord, Lord Hanningfield.
I will now read the three paragraphs that follow:
"The Government is firmly committed to bringing the date of the provisional local government finance settlement earlier. We will be doing everything possible to ensure that the provisional settlement for 2004–5 is made as early as possible this year. We plan to announce the provisional settlement by the middle of November.
In addition, well in advance of the provisional settlement, we will also be providing local authorities with key information on the minimum increase in funding per pupil to be provided and the floor increase in resources for local authorities which will underpin that guarantee.
By bringing these announcements forward, we will be providing authorities with adequate time to set their proposed schools budgets by 31st December".
I cannot make it any clearer than that. That is as firm a commitment as I can possibly give and I think that it answers the question asked by the noble Lord, Lord Hanningfield.
Lord Hanningfield: My Lords, as I said, what happens if the opening of Parliament happens at that crucial time? The figures are crucial. They must be available in mid-November; otherwise it will not he possible to set budgets.
Lord Rooker: My Lords, as I have discovered in the past six years, Parliaments may recess, but

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governments never do. However, the noble Lord, Lord Hanningfield, raised a fundamental issue—I am now thinking on my feet. He made a point about the proximity of the announcements and the Queen's Speech, the date of which I do not have a clue about. It is right that these announcements are made to Parliament; otherwise, there is a row, because large amounts of public expenditure are involved. I would hope that in a commonsense world, with the type of change that we are proposing—bringing information to school heads and local authorities earlier—we could make whatever announcements were necessary to the relevant people at the right time to enable them to do their job of budget planning.
I am not saying that we would usurp Parliament, because that would be ridiculous, but I quite understand the problem of proximity. I would hope that it would not stand in the way of wrecking what would be a new system. Obviously, getting the information by the middle of November is crucial for local authorities making their budgets by the 31st December deadline. I fully accept that December is not a full working month because of Christmas and the New Year. However, these are practical problems for which the Government are duty bound to find solutions, rather than saying, "We couldn't do it".
If the information is available, we have to make sure that it is published. We must do that for the sake of the 24,000 or so schools in this country, so that their heads have more certainty and clarity and so that the budget planners in the local authority can organise their budgets. I fully accept that.
I have taken the problems on board. I will make sure that I put to my colleagues in the ODPM responsible for this side of local government—as opposed to the education department—how fundamental it is that we keep to the points that I made in the three paragraphs earlier, which were headed,
"For use if pressed only".
On Question, amendment agreed to.
Lord Rookermoved Amendment No. 26:
Before Schedule 6, insert the following new schedule—

SCHEDULE SECTION (REGULATION OF COSMETIC PIERCING AND SKIN-COLOURING BUSINESSES): TRANSITION
Commencement not to affect existing application of section 15 of the 1982 Act
1 The coming into force of section (Regulation of cosmetic piercing and skin-colouring businesses) shall not affect the descriptions of person in relation to whom section 15 of the Local Government (Miscellaneous Provisions) Act 1982 (c. 30) applies in an area in which that section is already in force.
Commencement not to affect pending resolutions about the application of section 15 of the 1982 Act
2 (1) This paragraph applies where immediately before the coming into force of section (Regulation of cosmetic piercing and skin-colouring businesses)—

(a) there is in force a resolution under section 13(2) of the Local Government (Miscellaneous Provisions) Act 1982 (c. 30) that section 15 of that Act is to apply to an authority's area, and

(b) the resolution specifies as the day for the coming into force of that section the day on which section (Regulation of cosmetic piercing and skin-colouring businesses) comes into force, or any later day.

(2) The coming into force of section (Regulation of cosmetic piercing and skin-colouring businesses) shall not affect—

(a) the validity of the resolution, or

(b) the descriptions of person in relation to whom section 15 of that Act applies in pursuance of the resolution.

Additional powers of commencement in relation to section 15 of the 1982 Act as amended
3 (1) This paragraph applies where an authority has before the coming into force of section (Regulation of cosmetic piercing and skin-colouring businesses) passed a resolution that provides, or resolutions that between them provide, for section 15 of the Local Government (Miscellaneous Provisions) Act 1982 (c. 30) to apply to the authority's area in relation to all of the existing descriptions of person.
(2) Section 13 of that Act shall have effect for the purpose of enabling the authority to bring section 15 of that Act into force in its area—

(a) in relation to persons carrying on the business of cosmetic piercing, and

(b) in relation to persons carrying on the business of semipermanent skin-colouring.

(3) In sub-paragraph (1), the reference to the existing descriptions of person is to the descriptions of person specified in section 15(1) of that Act immediately before the coming into force of section (Regulation of cosmetic piercing and skin-colouring businesses).
Effect of existing ear-piercing registrations following extension of control to cosmetic piercing
4 (1) This paragraph applies where, immediately before section 15 of the Local Government (Miscellaneous Provisions) Act 1982 (c. 30) comes into force in an authority's area in relation to persons carrying on the business of cosmetic piercing—

(a) that section is in force in the area in relation to persons carrying on the business of ear-piercing, and

(b) a person is registered under that section by the authority to carry on a business of ear-piercing at premises in the area which are registered under that section for the carrying-on of that business.

(2) From the coming into force of that section in that area in relation to persons carrying on the business of cosmetic piercing, the registrations of the person and the premises in respect of ear-piercing shall have effect as registrations in respect of cosmetic piercing, subject to sub-paragraph (3).
(3) Sub-paragraph (2) ceases to apply when the business of cosmetic piercing carried on by the person at the premises subsequently first involves cosmetic piercing other than ear-piercing.
Interpretation
5 In this Schedule, except paragraph 2(1)(a) and 3(1), any reference to section 15 of the Local Government (Miscellaneous Provisions) Act 1982 (c. 30) includes a reference to section 16 of that Act so far as it has effect for the purposes of that section."
On Question, amendment agreed to.
Schedule 6 [Minor and consequential amendments]:
Lord Rookermoved Amendments Nos. 27 and 28:
Page 114, line 10, at end insert—
"School Standards and Framework Act 1998 (c. 31) and Education Act 2002 (c. 32)
65A (1) Sections 45A and 45B of the School Standards and Framework Act 1998 (which provide for the setting of a local education authority's schools budget) are amended in accordance with sub-paragraphs (3) to (6).
(2) In sections 41 and 42 of the Education Act 2002, the sections 45A and 45B inserted into the School Standards and Framework Act 1998 are amended in accordance with those sub-paragraphs.
(3) In section 45A(5) (authority to set, and give notice of, its schools budget before the end of January), for "end of January" there is substituted "schools budget deadline".
(4) In section 45A, after subsection (5) there is inserted—
"(6) For the purposes of this section and section 45B "the schools budget deadline" is—

(a) the end of December in the case of an authority in England, and

(b) the end of January in the case of an authority in Wales."

(5) In section 45B(1) (appropriate person may serve counter-notice within period of fourteen days beginning with giving of notice), for "day on which the notice was given" there is substituted "schools budget deadline in the financial year preceding that financial year".
(6) In section 45B(2) (power of appropriate person to act where authority has not given notice under section 45A(5) by the end of January)—

(a) for "end of January" there is substituted "schools budget deadline", and

(b) for "the end of that January" there is substituted "that deadline"."

Page 114, line 17, at end insert—
"67A (1) Section 52 (meetings of the London Assembly) is amended as follows.
(2) After subsection (4) there is inserted—
"(4A) There must be at least 21 clear days between a meeting under subsection (3) above and the last such meeting before it, but this does not apply to the gap between the first such meeting after an ordinary election and the last such meeting before that election."
(3) In subsection (6)(b) (notice of meeting under subsection (3) to be given at least 28 clear days before meeting), for "28" there is substituted "14".
(4) Subsection (7) (notice of meeting not to be given during currency of a notice already given) is omitted."
On Question, amendments agreed to.
Schedule 7 [Repeals and revocations]:
Lord Rooker: moved Amendment No. 29:
Page 118, line 46, column 2, after "Sections" insert "52(7),"
On Question, amendment agreed to.
On Question, Bill passed, and returned to the Commons with amendments.

European Union (Accessions) Bill
9.26 p.m.
Baroness Symons of Vernham Dean: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Baroness Symons of Vernham Dean.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause I agreed to.
Clause 2 [Freedom of movement for workers]:
Baroness Symons of Vernham Deanmoved Amendment No. 1:
Page 2, line 16, leave out from "instrument" to the end of line 17 and insert—
"(5A) Regulations may not be made under this section unless a draft has been laid before and approved by a resolution of each House of Parliament.
(5B) But, in the case of regulations other than the first set of regulations under this section, subsection (5A) does not apply if it appears to the Secretary of State that by reason of urgency they should be made without being approved in draft.
(5C) Where by virtue of subsection (5B) regulations are made without being approved in draft, the regulations—

(a) must be laid before Parliament, and

(b) cease to have effect at the end of the period mentioned in subsection (5D) unless they are approved during that period by resolution of each House of Parliament.

(5D) The period referred to in subsection (5C)(b) is the period of 40 days—

(a) beginning with the day on which the regulations are made, and

(b) ignoring any period during which Parliament is dissolved or prorogued or during which both I-louses are adjourned for more than four days.

(5E) The fact that regulations cease to have effect by virtue of subsection (5C)—

(a) does not affect the lawfulness of anything done before the regulations cease to have effect, and

(b) does not prevent the making of new regulations."

The noble Baroness said: This is the Government's sole amendment to the Bill. It is the response to the reports by the Select Committee on Delegated Powers and Regulatory Reform. I am grateful to the Select Committee and, in particular, to its chairman, the noble Lord, Lord Dahrendorf, for the committee's work on the Bill. The Committee will see, in the Select Committee's 21st and 23rd reports, that we have had several courteous and reasonable exchanges about the appropriate level of parliamentary control of regulations made under Clause 2 on freedom of movement for workers.
The amendment is a compromise between the Government's position and the Select Committee's original recommendation. The amendment takes up directly a suggestion made by the noble Lord, Lord Dahrendorf, in his letter to me dated 9th July. Because of that, I hope that the Government's amendment will be generally acceptable to the Committee. For the benefit of those who may not be familiar with the issues, I shall briefly explain the Government's position on the compromise suggested by the noble Lord, Lord Dahrendorf, and accepted by me in the form of the amendment.

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It is the Government's intention, in line with our declared policy, to bring regulations under Clause 2 into force on 1st May next year. The regulations will grant the right to freedom of movement for work to nationals of all eight states affected by the treaty's transitional provisions. The regulations will take the form of an amendment to the Immigration (European Economic Area) Regulations 2000.
The Government took the view that the negative procedure was the appropriate level of parliamentary control for two reasons. First, the EEA regulations were adopted under the negative procedure, and, secondly, Parliament will have the opportunity during the passage of this Bill to debate the issues of principle underpinning the regulations. Nevertheless, the Government are willing to accept the Select Committee's judgment that the freedom of movement of workers will continue to be an issue of political interest. In turn, that justifies a greater degree of parliamentary control over the regulations than the Government originally envisaged. However, as I made clear in my published response to the Select Committee's recommendation, the Government are concerned that the procedure chosen should not impair our ability to react appropriately, if it becomes necessary—contrary, of course, to expectations—to apply safeguards. If we encounter disturbances in the labour market or find that the regulations are being abused, the Government may need to act swiftly. The affirmative procedure is not compatible with that swift action.
Public and parliamentary interest is likely to be most acute when the regulations are first made, since these will fully liberalise access to our labour markets for citizens of the eight states concerned. Subsequently, regulations are likely to be of a technical nature. Even if those subsequent regulations were used to apply some form of safeguard, that safeguard could only be temporary. I am sure that your Lordships will recall that the accession treaty limits the application of safeguards to a maximum period of seven years after the date of accession.
At its most extreme form, the safeguard would simply return us, for a temporary period, to the immigration regime operating today for workers of the eight states concerned. However, a safeguard might well take a more limited form than that. It is for that reason I suggested, in my response to the Select Committee, that the first regulations might be subject to affirmative procedure with subsequent regulations subject to the negative procedure. The most important incidental effect of this would be to allow the Government to apply those safeguards swiftly should the need arise.
Although the noble Lord, Lord Dahrendorf, was not attracted to this compromise proposal, his letter to me conceded that some account could be taken of situations where that swift action might be necessary. The mechanism that he suggested—the so-called delayed affirmative procedure—is acceptable to the Government. It is embodied in my amendment, which proposes that regulations under Clause 2 would be
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subject to the affirmative resolution of both Houses. However, where, by reason of urgency, the Government need to act swiftly, my amendment would allow the Secretary of State to bring regulations into force prior to the resolutions of both Houses. The Secretary of State would then need to secure resolutions within 40 days. Without them the regulations would lapse at that point.
In drafting the amendment, we have followed closely the recent precedents in the European Parliament(Representation) Act 2003, Sections 13 and 18. Subsection 5(B) of my amendment makes clear that the urgency procedure cannot be used for the first set of regulations. In proposing the amendment, I have sought to meet fully the concerns of the Select Committee while retaining in situations of urgency the ability of the Government to apply safeguards swiftly. That is a good compromise. I am grateful to the noble Lord, Lord Dahrendorf, for suggesting it. I beg to move.
9.30 p.m.
Lord Howell of Guildford: We are agreeable to this amendment with just one or two caveats which I should like to explain. The Minister has helpfully set out the background, which is that they want to allow nationals from accession states to come here and work freely. They expect that there will be no considerable impact from that decision. However, the Government are prudent. Just in case they are wrong—I refer to the explanatory memorandum and the Minister's letter—and the proposed regulations give rise to market difficulties, they want powers to make new regulations. The excellent Select Committee on delegated legislation examined the issue closely and said that at first flush these powers should be by affirmative resolution.
The Minister has explained that flexibility is needed "to act swiftly". Hence, this compromise, with the first regulations being subject to affirmative procedures and subsequent regulations being subject to the negative procedure. However, I notice that the chairman of the Select Committee, in his last letter to the Minister, suggested a late approval formula. I am unsure as to whether that coincides exactly with what the Government are now proposing, but it sounds near to it.
That is how we have reached this position and why the amendment has been proposed. I just need to ask about the word "swiftly". Will the Minister describe the circumstances of "urgency" and "swiftly"—she has used those words several times—in which suddenly it becomes necessary for the Secretary of State to say that there are market difficulties, and so forth? It is quite a difficult situation to envisage and I just wonder how it would shape up. We hope that the Government's relaxed attitude is the right one even though other countries are not following it. An influx of skilled workers is enormously welcome and greatly helps the growth and dynamism of this country.
The general view seems to be that numbers will not be large. However, some elaborate research by reputable think tanks is coming to different views.

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Lombard Research says that the UK could become the target destination for a wave of East European workers and that there would be surging immigration, which it welcomes. So do I, if they are skilled people. They are less welcome if they turn out to be the Mafia. The Government are taking a bold view and one that we support. However, I hope they turn out to be right and that they are also right to have these prudent backup arrangements. They are right to monitor closely the situation as it unfolds.
In agreeing to this amendment I would like reassurance that the monitoring will be real and constructive and that Parliament will have an opportunity to see how things unfold. My wish would be that regular reports from this monitoring should extend not only to job movements and job flows but also to trade flows and investment. I say that not to hinder or protect our own arrangements against the new accession states. I say it to encourage and reinforce their position so that we do not forget their interests and do not allow them to be too battered down by the European Commission's rather threatening intention to monitor them to see that they have complied with the 80,000 page acquis.
We should be their friends and their supporters. I have always wanted this country to be much more of a champion of the smaller states than it has been so far. We do need to be kept informed. There needs to be real monitoring to justify the powers given and taken under this Bill. In order to keep the Government up to the mark and to fulfil these aims we may need to put down an amendment at Report. In the mean time, we are content with this compromise. We believe it is a sensible one and should go forward.
Lord Roper: From these Benches we have already welcomed the Government's imaginative decision to ensure that the nationals of the states which accede next year will have freedom of movement into the UK. This is something of a gamble but we believe it is an intelligent one which will benefit this country. Quite clearly though, as the Minister has indicated and the noble Lord, Lord Howell of Guildford has suggested, things could go wrong. Therefore we understand why the Government put forward a safeguard.
I am not sure how the monitoring to which the noble Lord referred would be undertaken given the flow of people across the boundaries of the European Union after accession. I am not sure what sort of statistical information the Government will get as to flows from the new member states. It may be that the Minister can tell us something about that today or will write to us to give us some indication to enable us to think about this before we return at Report.
I wish to commend the Minister and our own Delegated Powers Committee on the way in which the interaction between the committee and the Government in the last few months has led to this amendment. It is to the credit of the House, to its committee and to the Government that we have been able to find a solution which has ensured a safeguard but which has also
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ensured that a proper measure of parliamentary control shall remain. That is why I have great pleasure in supporting this important amendment.
Baroness Symons of Vernham Dean: I thank both noble Lords for their welcome of the government amendment. The fact is that we want nationals to he able to move freely; we do not believe that there will be a considerable impact, but if something unexpected were to happen, we have to have the ability to act quickly.
The noble Lord, Lord Howell, asked whether I had met the point made by the noble Lord, Lord Dahrendorf. The answer is yes. When the noble Lord, Lord Dahrendorf, said that he wanted affirmative procedures, the Government felt that it was appropriate to have those procedures initially but that we might find it more appropriate to have negative procedures should we need to reimpose any restrictions. The noble Lord, Lord Dahrendorf, believed that that would represent a loss of parliamentary control, and it was he who suggested the so-called delayed affirmative procedure. The Government accepted the suggestion made by the noble Lord, as the chair of the committee.
I take the liberty of telling your Lordships that I have spoken to the noble Lord, Lord Dahrendorf, on the matter. Although he was unable to speak on behalf of his whole committee, on an individual basis he believed that the Government had met the points that he raised. Of course, he has not been able to consult his committee on the matter.
The noble Lord, Lord Howell, wanted to know in what circumstances the problems we are discussing might occur, and raised a point about monitoring. Research suggests that it is very unlikely that there will be a large-scale influx following enlargement. The establishment of new formal mechanisms to monitor the labour market is probably disproportionate; instead, it is proposed to make use of existing sources of data and information, and to use largely informal mechanisms to consult stakeholders inside and outside government.
I understand that the Department for Work and Pensions will continuously monitor a range of existing statistics of labour market performance—of GDP, numbers claiming benefits and other such relevant material—which would indicate a possible disturbance to the UK labour market that might be sufficient to justify considering reintroducing restrictions. I hope that that answers the points made by the noble Lord, Lord Howell. If there were a real disturbance in our labour market, we would monitor it through those mechanisms and we would hope to track it in that way. If necessary, we would then be able to use the suggestion of the delayed affirmative procedure.
I do not have any specific examples for the noble Lord. I hope that he will forgive me, but specific examples might be taken to represent a definitive list, whereas I hope that the indications that I have given are sufficiently broad and flexible to meet the exigencies that might arise. I hope that the House

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agrees that the Government have done their best to meet the points made by your Lordships' committee, and that the amendment will be acceptable to your Lordships.
On Question, amendment agreed to.
Clause 2, as amended, agreed to.
Clause 3 agreed to.
House resumed: Bill reported with an amendment.
Baroness Symons of Vernham Dean: My Lords, I beg to move that the House do adjourn during pleasure until 10.5 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 9.45 p.m. to 10.5 p.m.]

Fire Services Bill
10.5 p.m.
Report received.
Baroness Turner of Camden: moved Amendment No. 1.
Before Clause 1, insert the following new clause—
"ORDERS MADE UNDER THE ACT

(1) The powers of the Secretary of State to make orders under this Act concerning conditions of service or directions to fire authorities shall be exercised only after a declaration published by him that an emergency exists or is likely to exist.

(2) In this section, "emergency" means a natural disaster or other event or series of events affecting the fire service or its operation which is or may be, in the opinion of the Secretary of State, likely to disrupt supplies of energy, or which presents any other serious threat to human welfare, the environment, the political, administrative or economic stability or the security of any place or locality, or in which the use of troops is permitted.

(3) In his declaration the Secretary of State shall state the nature of the emergency."

The noble Baroness said: My Lords, I regret having to deal with this rather important issue at five minutes past 10 tonight. I believe it is a very important amendment.
My noble friends and I would like this new clause included in the Bill at the very beginning. The Minister is well aware of the fact that I and a number of other noble Lords do not much like this Bill. The Minister knows perfectly well why we do not like it. That was made very clear on Second Reading. As it stands, the Bill gives the Secretary of State power to impose terms and conditions of employment on members of the fire service workforce. These powers are required, apparently, despite the fact that the recent dispute has been settled by an agreement acceptable to both sides.
On Second Reading the Minister referred to Article 6 of the European Social Chapter, which requires states to take steps to ensure the effectiveness of the right to bargain collectively. He also referred to Article 8 of the ILO Convention 151 which states that settlement shall be sought through negotiation between the parties. He argued then, and has since
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argued throughout the passage of the Bill, that although its terms do indeed give powers to the Secretary of State to impose terms and conditions— something which my noble friends and I regard as a breach of the Government's commitment under the European Social Chapter and ILO conventions—the Government would use these powers only in extreme emergency if, as he put it, it was necessary to do so in order to maintain or enhance public safety.
Moreover, the Bill has a sunset clause: it is time-limited. At the end of the time it will be consigned, as he put it, "to the rubbish bin".
I say at the outset that while I may not like this Bill I have no doubt at all about the right of the Government to get their legislation through Parliament. In the light of what the Minister said in Committee, we acknowledge that in certain circumstances it could well be necessary for the Government to have powers of the kind envisaged in the Bill.
Despite our concern to try to maintain workers' rights—particularly the hard fought-for and won right to have terms and conditions decided by collective bargaining by the union to which most belong—we are not endeavouring to wreck the Bill. We believe the Minister when he says that the Government hope never to have to utilise the powers in the Bill; that it is entirely a temporary measure and simply will not be there when the sunset is reached.
The problem is that that is nowhere stated in the Bill except for the sunset clause. We want to ensure that the Government have the emergency cover that they need while at the same time ensuring that there is adequate protection for the rights of the workforce. It seemed to us that the best way of doing that would be to spell out the circumstances in which the powers in the Bill would be used. So our amendment says that the powers will only be exercised after a declaration is published by the Secretary of State that an emergency exists or is likely to exist. In his declaration he would state the nature of the emergency. Subsection (2) of our amendment spells out as clearly as we can, utilising wording which I believe exists in other legislation, precisely what is meant by an emergency such as,
"a natural disaster or other event or series of events affecting the fire service or its operation which is or may be, in the opinion of the Secretary of State, likely to disrupt supplies of energy or which represents any other serious threat to human welfare",
and so forth.
That seems to me to give the Secretary of State the emergency cover that he needs and is in line with what the Minister said in Committee was required. As I have said, we do accept what the Minister has said about the limited nature of the Bill and the extreme reluctance of the Government to utilise the exceptional powers that it gives the Secretary of State.
Good intentions may be fine, but nothing like that appears in the text of the Bill. This is legislation and governments and Ministers change. A future Minister, perhaps not of this Government, may feel quite differently and he would then have at his disposal powers which he possibly would be only too happy to use. An external event plus media clamour and the

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sunset clause could disappear. These seem very unlikely events, but we are concerned to safeguard employee rights while at the same time meeting the valid points that the Minister made in Committee. I beg to move.
Lord Campbell of Alloway: My Lords, I apologise to the House for not being here earlier. I had forgotten where my speaking notes were; fortunately I happened to find them. In opposing the amendment, the sincerity and motivation of the noble Baroness, Lady Turner of Camden, who is perhaps the only Member of your Lordships' House with extensive practical experience of the bargaining procedures and who has sat judicially under the chairmanship of the High Court judge on the Central Arbitration Committee, is not called into question; nor indeed is that of any noble Lord disposed to support the amendment.
At the outset, may I seek to establish common ground? The Government must have their business—yes—but only after due scrutiny by both Houses. There was no due scrutiny of the Bill in another place, as was spoken to with total accuracy by the noble Lord, Lord McCarthy, on Second Reading. None of the amendments on the Marshalled List was considered in Grand Committee, at which the usual attendance—apart from the odd Minister—was six for three days, which is not a very satisfactory method of due scrutiny.
There will be insufficient time today, through no one's fault, for due examination of the amendments. Clause 1 as drafted fails to express, as the noble Lord, Lord Rooker, sportingly and fairly recognised in Grand Committee, the true intention of government as he explained it to the House regarding the exercise of powers of the Secretary of State. It is therefore common ground that Clause I cannot stand unamended. If not amended, must it be left out under Amendment No. 27, which, if moved—which I hope will not be necessary—could well attract the support of noble Lords in favour of Amendment No. 1?
The question arises—to which I shall not speak at this stage—whether Clause I should be amended to apply only to emergency situations as proposed by Amendment No. 1, or whether two regimes should be set up: one for an immediate emergency and another where there is no such emergency, as proposed by Amendments Nos. 2 to 7, and Amendment No. 13, to which I do not speak. But the conflict between those disparate approaches inevitably involves my opposition to Amendment No. 1.
Putting that aside for a moment, let us deal with the substantive objections to Amendment No. 1. As such they are serious, and, with respect, they warrant your Lordships' attention. The amendment limits the powers of the Secretary of State to make orders and give directions only in an emergency situation. It heralds the introduction of a novel, intricate, complex structure of amendments—Amendments Nos. 10 to 18, 14 to 18, 20, 22 to 25—which would inhibit the due exercise of requisite, plenipotentiary powers of a Secretary of State having instant effect in the event or likely event of a terrorist attack, and that is not
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acceptable. It also heralds Amendments Nos. 28 and 29, which inhibit enforceability of orders and directions given by the Secretary of State in a state of emergency, which is wholly inept. Of course they must have immediate effect. It precludes the Secretary of State from giving directions on the essential reorganisation and restructuring of the fire brigade services which must ensue when there is no state of emergency, to prepare against the state of emergency of terrorist attack or the likelihood of such attack, when one day it shall inevitably arise.
The requirement as to a declaration of an emergency such as a terrorist attack or the likelihood of such attack to be made by the Secretary of State, based on advice and intelligence which may not he disclosed, would not be in the public interest. In such a Situation, which could occur at any time and any place, the Secretary of State must retain plenipotentiary, emergency power and must be trusted. Speaking for myself, I trust him or his successor, whoever that may be, of whatever party, to exercise such powers in good faith and with propriety.
Amendment No. 1 and the implementation proposed in the amendments under the name of the noble Lord, Lord Wedderburn of Charlton, afford no effective means and no attempt at any effective means to seek to avoid disruption of the fire brigade services by collective action in any emergency situation as defined by subsection (3).
I said that I would make a shortish speech. I end with one question which I believe is a fair one. On any objective analysis, could any government accept Amendment No. 1 as it stands or as proposed to be implemented?
10.15 p.m.
Lord McCarthy: My Lords, we clearly failed dismally in Committee to make clear to the Government how unusual and unique we find this Bill. This Bill is presented almost as though it were an extension or a return to the 1947 legislation passed by the 1945 Labour government. It is not that in any way. It introduces into industrial relations a set of particular and special provisions which are at this moment to apply to a section of the fire service. That is again something unique. As far as I know, all previous general restrictions of this character, for example in the First World War and the Second World War, applied across the board. However, the Government are selecting the fire service—members of the National Union of Fireworkers—for these special provisions. It is that argument, as much as anything else, which we have been trying to press upon the Government. We have dismally failed.
The amendment is one of a series which asks the Government to look more closely at what they are doing, and to see if they cannot postpone the measure, giving a general consideration to their purpose, which is what we tried to do at Second Reading. Will the Government look at particular aspects of the Bill and limit its application in various ways? The Minister, when talking about the Bill at various stages, made a

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number of replies in answer to our attempts to make him describe the circumstances in which the powers under the Bill would be invoked. It might be that he would rule out certain circumstances, if not rule them out on the face of the Bill, but that was not the case; or he might say that the Government were thinking more of using the Bill in certain areas.
The Minister made a number of statements. We are asking him to think again about those statements. Most of those responses suggested that there would be some kind of emergency in existence before the Government would use the Bill. We have taken from his statements to that effect—if one looks at subsection (2)—a range of circumstances which cover virtually every kind of emergency. If we have left some out, then let the Minister tell us, and we shall put them in. We say:
"In this section, 'emergency' means a natural disaster or other event or series of events affecting the fire service or its operation which is or may be, in the opinion of the Secretary of State, likely to disrupt supplies of energy, or which presents any other serious threat to human welfare, the environment, the political, administrative or economic stability or the security of any place or locality, or in which the use of troops is permitted.".
So we try in this amendment to spell out what would be the broad circumstances in which one could reasonably argue, in the light of what he had said, that there was an emergency situation. I asked the Minister to look at that, and he said that he was thinking that,
"a crisis situation will have required the Bill to be used".
Unfortunately, at that stage I thought that he might continue and define what that crisis would be, but he clearly reflected on the awful matters that he had in his mind and thought that he should not tell us. He said:
"If I started thinking aloud and giving examples of what might happen, I could be accused of giving horror stories".—[Official Report, 3/7/03; col. GC 266.]
That is extreme, is it not?
Lord Campbell of Alloway: My Lords, is the noble Lord, when he refers to the observations of the noble Lord, Lord Rooker, referring to col. 50 of the Grand Committee, where, from memory—I have it noted somewhere—the Minister said, "Look, it isn't the intention to use this Bill, other than in a state of emergency. We don't want to have to use it".
Lord McCarthy: My Lords, I am talking about col. 262 of the Grand Committee Hansard. The noble Lord, Lord Rooker, stated that the Bill was about taking,
"prompt action in order to protect the public".—[Official Report, 3/7/03; col. GC 262.]
He also stated at col. 265:
"I am not saying that there is a legal use of the word 'emergencies', but the Bill is a temporary measure. It is time-limited and would be used only"
in a crisis situation.
I do not suppose for a moment that the noble Lord, Lord Rooker, would deny that most of the circumstances in which he considered the Bill might be used fit our definition of an emergency. The trouble is
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that that is not the only thing he said. In responding to the question of whether the use of the Bill was to be confined to an emergency, he said that,
"it is a long stop designed for a quite specific purpose of dealing with the recent dispute … if the timetable that has been negotiated is not maintained".—[Official Report, 3/7/03: col. GC 261.]
In other words, such a situation could occur next week or the week after if the Government decided that the union was not co-operating sufficiently with the timetable of negotiations for the next stage of the 2003 agreement, or if the Audit Commission decided that insufficient savings were being made. That seems to me to be a quite different set of circumstances. There might not be a dispute. There certainly might not be industrial action. I say all this in the hope that the noble Lord, Lord Rooker, will reassure me. The Bill could be invoked because the Government considered that insufficient savings had been gained in the next stage of the productivity deal. That is a quite different set of circumstances from a crisis.
The amendment is an attempt to get the Minister to tell us something more about the extent to which, in any meaningful sense of the term, the Government intend to invoke the Bill solely in an emergency. If that is the case, why cannot they accept our amendment?
Lord Wedderburn of Charlton: My Lords, I should like to say four things about the nature of this amendment, which has been very carefully thought about and, in fact, argued about, among the movers of it. First of all, on our express wishes, it stands alone in the groupings because it has nothing to do with most of the other amendments to Clause 1. It is nothing to do with ballots. It is nothing to do with abolishing the right to strike and so on. It stands alone and it refers to a series of defined emergencies, disasters or crises—whatever one likes to think of them as—which have been built on a certain amount of study of previous statute. It refers to disasters which in the opinion of the Secretary of State are likely to occur, which we thought included terrorism but also a whole series of other things. We ask in the third part of the amendment for a declaration which need state only the nature of the emergency in general terms. I am happy to give way.
Lord Campbell of Alloway: My Lords, how can it stand alone if it makes no provision for resolution of a terrorist attack? How can it stand alone without the means of resolution?
10.30 p.m.
Lord Wedderburn of Charlton: My Lords, I am much obliged to the noble Lord. He will understand the point when he reads Hansard and will see that the amendment stands alone. It covers threats of terrorism, but a great many other things too:
"any … serious threat to human welfare, the environment, the political, administrative or economic stability or the security of any place"
in the jurisdiction, or a situation in which the use of troops is permitted.

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The reason why the amendment contains those various elements is as follows. The Water Act 1989 gives emergency powers where there is a threat of disruption of energy. The civil contingencies Bill which the Government are gradually putting into the processes of Parliament—and which I hope will be enacted fairly soon—includes the serious threats referred to in the amendment, very carefully set out; and the position in which the use of troops is permitted is covered by the Emergency Powers Act 1964, and indeed by powers under the prerogative. Those, we thought, were proper precedents to which we could implicitly refer in building up some description of emergency. Some of us thought—I am not sure that we all agreed on this—that the restructuring of the fire service was for the big Bill that is to follow the White Paper, although it will be in the Government's mind. The White Paper having been published, it cannot be absent from the Government's mind and policy.
Having reached a broadly common position on those matters, we then looked with enormous care at what had been said in Grand Committee—about which the populace at large is, unhappily, largely ignorant—and at what happened in the other place, which to us is in a way the most important.
When the Bill was presented for Second Reading in another place on 8th May, my right honourable friend the Deputy Prime Minister said that he was reluctant to produce it. I want to refer to government statements in another place and in this House, because the amendment is a genuine attempt to understand the Government's position in the light of what they have said about their wishes—not from snippets; if I quote any matter which is thought not to be in context I shall be happy to read out the context. The Deputy Prime Minister said, quite naturally at the time, that although he would have preferred not to introduce the Bill,
"after 12 months of negotiations and three separate pay offers, the fire dispute has reached deadlock. Legislation is therefore necessary in the public interest and to protect public safety".—[Official Report, Commons, 8/5/03; col. 856.]
On 1st May, he wrote to the Joint Committee on Human Rights:
"I would even now prefer the matter to be settled by agreement and without my intervention. However this appears unlikely …. I am seeking the powers in the Bill because settlement cannot be achieved through negotiation".
That was the first position.
The second position, when the Bill came to this place, was that a settlement had been reached. Government spokesmen—if I may put it in this phrase—accentuated the fact, which in our view is a normal fact of life in collective industrial agreements, that a large number of matters still had to be worked out under the settlement. It would be a remarkable settlement that did not have to have matters worked out under it. The settlement referred to the procedure for doing that in the national joint council Grey Book.
I want as fairly as I can to quote what has been said by my noble friend the Minister in this connection. I shall not repeat at length the quotations cited by my noble friend Lord McCarthy. My noble friend Lord Rooker
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has been the government spokesman on this Bill on all important matters, and therefore I can only quote him. At Second Reading on 19th June, he said that the Government preferred a negotiated settlement. He went on:
"This is so that they can move forward in partnership to help deliver a modern fire service, which can prevent fires from starting in the first place and save more lives when responding to fires that occur".—[Official Report, 19/6/03; col. 1015.]
We entirely accept that statement of policy. My noble friend went on to say that the settlement was dependent on further negotiations on some key issues. He later said that one primary object was to,
"ensure that the public is properly protected. That is why we intend to proceed with the Bill".
Then he put the issue slightly more widely, as my noble friend Lord McCarthy said:
"I can assure the House that the Government would exercise the powers that the Bill would confer in respect of conditions of services only if we considered it necessary to do so in order to maintain or enhance public safety; and if negotiations failed to produce an agreement". —[Official Report, 19/6/03; col. 1015–6.]
When the issue came to Committee my noble friend Lord Rooker made the two propositions that my noble friend has referred to. I want to quote him exactly. He said:
"I am not saying that there is a legal use of the word 'emergencies' but the Bill is a temporary measure. It is time-limited and would be used only in circumstances that would almost amount to an emergency".—[Official Report, 3/7/03; col. GC 265.]
Then at col. 266 he referred, as my noble friend said, to the Bill being used and orders being made in,
"a crisis situation which will have required the Bill to be used".
Then he said:
"I have to repeat the fact that it would be quite exceptional circumstances in which we had to operate the Bill. We make no bones about it. I have used the words that the Secretary of State would have to impose a solution to a dispute because he would consider that to be in the public interest".
He said that if the parties agreed to arbitration,
"it would be extremely unlikely that the Secretary of State would want to intervene at that point to exercise his powers to fix or modify conditions of service if there was a realistic prospect that the parties could, by seeking arbitration, resolve their differences".—[Official Report, 3/7/03; col. GC 282–31.]
Then in col. 204 on 14th July, he said:
"The point I am making is that the Bill would be activated only if a disaster arose of another dispute occurring with no sign of being settled in which case the Secretary of State—he has made this absolutely clear and we make no apology for it so there is no surprise in that regard—would impose a settlement as a way of drawing a line under the dispute".
I pause to point out that the likelihood of a disaster arising is quite clearly covered by our amendment. We took account of that passage when we drew it up.
In col. 205 the Minister said that,
"it would take several months to process the current agreement so that it becomes fully operable. Therefore, we need this as a backstop. I am not saying that there are any blank cheques here. It is not an agreement just because two parties agree that we pay the Bill; that is a conspiracy against the public. To that extent, we would not actually foot the Bill".

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That passage came after—and this is what I think the noble Lord, Lord Campbell of Alloway, was perhaps implicitly referring to; I apologise if I am wrong, but I thought it was—an intervention by the noble Lord, Lord Campbell of Alloway. He said:
"But if the parties do not agree with what we"—
meaning the Government—
"want them to do, we shall impose the Bill".
My noble friend Lord Rooker said:
"That is entirely the case. The noble Lord expressed the matter perfectly".
He said that,
"parties could have a sweetheart agreement",
and that if they did and that it offended government financial arrangements they would say,
"Sorry, we are not paying the bill".
But in that same context he said that,
"if they reached an agreement which was absolutely contrary to the financial settlement for the department and went against what had been agreed previously, we would say, 'Hang on a minute'. As I say, the Bill is intended for use in an emergency situation".—[Official Report, 14/7/03; GC 204.]
He also added they would allow the Secretary of State to ensure fire authority assets paid for by the public are available to those providing emergency fire cover in the event of further strikes.
I appreciate the point that the Minister of course had a view about the serious matter of the parties reaching an agreement of which the Government did not approve. We come to that in a later amendment. In that sense, there is a link with that later amendment but no other. Most of those passages rely on the intimation that the Government would wish to use their orders under the Bill in a crisis or emergency or—to use the exact words—"almost an emergency" situation. If we have got it wrong in subsection (2) of our amendment and the description of likely emergencies or forthcoming emergencies is inadequate, I will be happy to accept any manuscript amendment now from the Government, or indeed to have them put down their own form of words on Third Reading.
I think that the amendment is a fair representation of, at least, the core of the Government's position. We do not think—we will come to this on later amendments—that that being absent from the Bill is satisfactory. Nor do we think, especially in the light of a decision, to which I shall refer, in your Lordships' Judicial Committee on 10th July, that statements of Ministers as to the Government's intention, however genuine, proper, honest and straightforward, are the same as legislation. The House of Lords judicially has recently had great moment, in a constitutionally vital case, to refer to that difference. I do not go further with it now; it will come later. I support this amendment and I hope it will be taken seriously as an attempt to bridge a gap which otherwise makes the Bill a very dangerous precedent as far as industrial peace is concerned.
Lord Northbrook: My Lords, I support my noble friend Lord Campbell of Alloway in his opposition to
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this amendment. It seems to be restricting the powers of the Secretary of State in the Bill to an emergency situation. This is unnecessary in this particular case and therefore I support my noble friend.
Lord Rooker: My Lords, without seeking to wind anybody up, this is the second time today, on the second Bill today, that words I have used in Hansard are not taken at face value and there has therefore been an attempt to put them on the face of the Bill. The previous attempt was by the noble Lord, Lord Jenkin of Roding, on business improvement districts. It is exactly the same point: "Minister's words are not worth tuppence ha'penny; we are all not serious; and what is more, we come and go, other people take our places, and therefore our words are worthless".
I want to be able to address the points in the amendment, which I do not think is necessary at all. We have looked hard at this over the summer—or what has passed for a summer. We cannot see any justification for amending Clause 1 in this way. I recognise that the amendment responds to some of the discussions in Grand Committee. Inevitably it would, because of the quotes that have been used. Obviously the amendment introduces a trigger that would mean the powers in the Bill under Clauses 1(1)(a) and 1(1)(b) could be used only after the Secretary of State had declared that an emergency existed or was likely to exist. The definition of emergency runs wide, as we have heard explained: natural disasters, threats to human welfare, administrative or economic stability, and circumstances in which the use of troops is permitted. I can see that there is a common thread and I acknowledge that the definition would cover many, some might even claim all, of the circumstances we have faced over the past year.
However that points up the problem with that kind of provision. It is difficult to be really sure that it covers all eventualities and therefore it inevitably leads to uncertainty and the opportunity, I might add, for unreasonable arguments and challenge at the time it is used. That is what is at the root of this amendment: it provides an opportunity for unreasonable arguments and challenge to stop the operation of the Bill. The Government have been quite clear: we want to be able to take practical action if the dispute flares up again. Good progress has been made in the negotiations, so far as I am aware. I checked today: there are amicable discussions going on. That is good; that is what we expected from professionals on both sides. However, we believe that it is in the public interest for us to be able to take action if it does flare up again. There are strong arguments against allowing any dispute to drag on without conclusion—arguments that run from the possible effect on public safety to the demands placed on those in the Armed Forces who have been deployed to provide alternative emergency cover. We believe that it is not necessary to put those issues in the Bill.
There are strong arguments for allowing the Government to determine the terms on which a dispute of the kind that we saw earlier this year should be settled. That is not to say that the Government know best, but that it is they who must pick up the bill.

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We have responsibility for public safety and public finances. That is why we think the Government are in the best position to determine the kind of situation in which a dispute could be settled.
Only in a very serious situation, taking all those factors into account, will we use the powers. As my right honourable friend the Deputy Prime Minister said, we do not want to use the powers in the Bill, but we feel that we need to have them just in case. We have said all along that we hope we will not have to use them. We have no secret plans to use them; nor have we plans to bring about circumstances causing us to use them. We have no agenda whatever, but we think it would be irresponsible not to have the powers, in the light of the circumstances of the past 12 months
Defining in advance every possible circumstance that might constitute a sufficiently serious situation—what the amendment calls an emergency—is a step too far. We do not want to get anywhere near an emergency before taking action. If there were an emergency, people would ask us why we had not taken action sooner. I cannot therefore accept the amendment and I invite my noble friends to withdraw it.
10.45 p.m.
Lord Wedderburn of Charlton: My Lords, I do not know whether my noble friend has sat down, but perhaps I may ask him a question. He said that the words of the amendment would allow for a successful challenge in the courts. If, in the terms of the amendment, the Secretary of State made a declaration, which may be no more than one or two lines, about the likely disaster, emergency or crisis that he foresaw—that is all he has to do—what would be the nature of the likely successful challenge in the courts? I am sure that my noble friend has had advice on that.
Lord Rooker: My Lords, first, I do not know, and, secondly, I had already sat down.
Baroness Turner of Camden: My Lords, I thank the noble Lords who contributed to this short debate on what I regard as one of the most important items of the Bill's Report stage.
In response to the noble Lord, Lord Campbell of Alloway, I would have thought that the wording that we have produced, particularly in subsection (2), entirely meets his problem about the possibility of a terrorist attack. The amendment was deliberately worded to do precisely that.
I am very disappointed by the Minister's response. He says that the amendment indicates that we do not take the Minister seriously, but we tabled the amendment in the first place because we have taken him seriously. I moved similar amendments—perhaps not so precise—in Committee. When the Minister told the Committee that it was necessary to have these emergency powers, I said quite precisely that I understood that it was necessary to have emergency powers but that was nowhere stated in the Bill. I said that for that reason my noble friends and I would
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consider the matter and try to table an amendment to meet the valid argument that there must be powers to deal with an emergency.
Throughout the Committee, the Minister referred repeatedly to the possibility of a crisis or emergency. It was in order to meet those points that we drafted this amendment and decided to proceed on that basis. I am very sorry to learn that, although our intentions were clearly to meet the Government's position, they have not been acknowledged by the Minister. However, I fear that there is no point in pressing the issue further at this stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Campbell of Allowaymoved Amendment No. 2:
Page 1, line 3, at end insert "if requisite in the public interest of immediate implementation in a state of emergency"
The noble Lord said: My Lords, I will also speak to Amendments Nos. 3 to 7 and Amendment No. 13 as a package. I acknowledge with gratitude the support of my noble friend Lord Northesk on this occasion from these Back Benches.
The object of this package of amendments is to set up two regimes, as already explained. The first regime, in a state of immediate emergency, affords plenipotentiary powers to the Secretary of State to impose conditions of service and to give directions to fire authorities. It also removes inhibitions as to the exercise of such powers under subsections (3) and (8) of Clause 1 of the Bill. In other words, it makes a more extensive exercise of power in an emergency than exists at present. In that context, Amendment No. 9 would appear to delay the exercise of such powers in an emergency and could well appear to warrant clarification.
In the other regime, when there is no such state of emergency, conditions of service may be imposed only by virtue of Amendment No. 6 in implementation of the regime proposed by Amendments Nos. 4 to 7, and the powers to make orders under Clause 1(5) are removed. The giving of directions to the fire authorities is made subject to consultation as provided by proposed new paragraph (b) in Amendment No. 4.Of course, that is when there is no state of emergency. When there is a state of emergency, there is plenipotentiary power.
Why the need for these amendments? The main objection to Clause 1 is that, when there is no state of emergency, the Secretary of State may impose or threaten to impose conditions of service by decree without having had any resort to collective bargaining. According to the report of the Joint Committee on Human Rights—not when I was a member of it—House of Lords Paper 118, a significant risk of violation of Article 6 of the European Social Charter and Article 8 of the ILO Convention No. 151 is involved, of which the Deputy Prime Minister was informed by letter on 8th April this year. That is the main objection.
The subsidiary objection is a matter more within the remit of my noble friend Lady Hanham than myself. It arises from the giving of directions to the fire authorities, if there is no state of emergency. My noble friend Lord Dixon-Smith said at Second Reading that, since the 1970s,

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"the fire service has ossified".—[Official Report, 19/6/03; col. 1035.]
It is wholly requisite that directions be given as to reconstruction of those services in the public interest, if only to ready ourselves for the inevitable attack that, one day, shall come.
There is a muddle. It is no fault of the noble Lord, Lord Rooker, that there is a muddle, but the fact is that it relates to the means of implementation under this Bill and the Local Government Bill. The noble Lord, Lord Rooker, frankly conceded on the second day in Grand Committee that he could understand that,
"from a reasonable standpoint we are open to criticism". —[Official Report, 7/7/03; col. GC 49.]
He said that the Local Government Bill stood on its own and that the Government did not wish to use the Fire Services Bill. I hope that the noble Lord will understand that paragraph (b) of Amendment No. 4 is designed merely to try to avoid that muddle by introducing consultation before such directions are given, when there is no state of emergency.
It is late at night, but if noble Lords take the Bill in one hand, they will see that Amendment No. 2 would limit the emergency situation by inserting the phrase,
"if requisite in the public interest of immediate implementation in a state of emergency".
Amendment No. 3 would remove the inhibiting provisions of subsections (3) and (8) of Clause 1, which should not apply in a state of emergency but should apply if there is no state of emergency. Amendment No. 4 makes it plain that,
"Save and except in a state of emergency to which subsection (1) applies, the Secretary of State may not by virtue of this Act fix or modify conditions of service"
other than as provided in the exceptional situation set out in Amendment No. 6. In that event, the inhibiting provisions in subsections (3) and (8) should not apply. Amendment No. 6 relates to the only situation in which the Secretary of State may make an order by decree, if there is no state of emergency—that is if,
"collective bargaining has failed and no application has been made to a mandatory arbitral tribunal for the resolution of the dispute, or the award of the tribunal established under subsection (1C)" —
Amendment No. 7—
"has been ignored or rejected".
Those are requisite enforcement provisions for the orders of the Secretary of State where, in those exceptional circumstances, there has been no actual immediate emergency.
In order to provide effective means to avoid disruption of these services, Amendment No. 5 states:
"Collective action, whether primary or secondary, taken at the instigation of a trade union which—
(a) disrupts fire brigade services, or
(b) inhibits due performance of an order of the Secretary of State under subsection (1),
or Amendment No. 6—to which one returns again—
"shall be unlawful".
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That is requisite for the judicial enforcement of the regime of the orders of the Secretary of State.
Amendment No. 7 states:
"(1C) There shall be established a mandatory arbitral tribunal … independent of government, for the resolution of disputes concerning the conditions of service of members of the fire brigades.
(1D) No dispute shall be referred to the tribunal unless there has been a failure of collective bargaining, and such failure has been certified either by—

(a) the parties to the dispute, or

(b) ACAS".

Indeed, the origins of subsection (1D) in Amendment No. 7 really stem from an intervention made by the noble Baroness, Lady Turner of Camden, who has some experience in these matters, which I do not have.
Subsection (1E) states:
"Any award of the tribunal shall be binding on the parties and on government".
That is the essential essence of the proposals as a package, which are made in support of the proposal to set up two distinct regimes. In other words, the proposal is to strengthen the powers of government—totally plenipotentiary powers—in an emergency without qualification, but, with the sole exception of Amendment No. 6, if there is not an emergency, to put it simply, to retain the excellent bargaining structure. That is the simple idea. I am afraid that it was not quite so easy to draft simply.
I shall conclude. One must accept that Clause 1, as drafted, does not truly represent the Government's intention and may not stand unamended. Intentions of government as to implementation must be set out in the Bill. Of course, we all accept what the noble Lord, Lord Rooker, says in good faith. There is no question of that. I am not getting at that. We have here a duty of due scrutiny. We must take a Bill as we find it. I do not think that we need to bother very much about what any other Secretary of State would do. To be perfectly frank, I think that whatever they did they would do it very well, honestly and fairly. We have got a job to do. The Bill must be drafted to represent the actual and true intention of government. The main reason why I am insisting on this, is not for the purity of draftsmanship, it is because of the putative resort to the imposition of conditions of service where there is no immediate emergency. It is against my whole erstwhile professional background of appearing sometimes for trades unions, sometimes against them. It just will not do as it stands. Although it may not be used, the threat is a form of a Sword of Damocles hanging over the whole process of collective bargaining. This is why I assert that the Bill must be amended.
I just want to say one more thing. The broad sense of the debate in the other place on the 20th March which heralded the introduction of this Bill, would appear to favour further consideration of amendments, of arguments deployed in your Lordships' House. If one reads it carefully, inevitably there was unease about this. This is no exercise in confrontation with the Government or with the other place. One has to accept that the Bill has not yet commended itself to the

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Opposition parties in either House or to old Labour in either House. Let us not forget old Labour; it is still a very honourable and important force. They are not all determined to wreck the economy or to do this or that. They are perfectly ordinary people and their views have not been sufficiently attended to for quite some time.
No informed representative opinion has been as yet discussed. We have had this rather odd Grand Committee sparsely attended and largely occupied with very esoteric academic discussions most of which I did not understand and which went on for three days. I do not wish to take the opinion of this House before having read what is said in this debate and entertained consultation so that at least when we come back, a representative opinion may be achieved. I apologise for taking rather a long time. I beg to move.
Lord Rooker: My Lords, I shall seek to do justice to the noble Lord's group of amendments. I am not seeking to jump the gun, but I may touch on Amendment No. 5, to which he referred and which is linked with Amendment No. 8, although that amendment is the property of the Conservative Front Bench.
This group is largely concerned with placing conditions on the Secretary of State's power to make orders under the Bill. Noble Lords will be aware that the purpose of the powers is that in the event of a further dispute the Secretary of State can take action to remove the cause of the argument. If it becomes necessary for the Secretary of State to use the powers—and we very much hope that it will not—he must he able to intervene decisively and without undue delay so that the argument does not drag on, as it did in the past 12 months. Placing preconditions on the powers, however well intentioned, would make that more difficult and could even call into question the Secretary of State's ability to exercise the powers, as I shall explain.
Amendments Nos. 2 and 4 are in part concerned with restricting the use of Clause 1(1) to states of emergency. They would allow the Secretary of State to use his powers under that subsection in a state of emergency, but the recent fire service pay dispute was not deemed a state of emergency, even when the country was at war. Local disputes that may stem from the dispute are certainly unlikely to constitute a state of emergency.
The Emergency Powers Acts 1920 and 1964 allow the Queen to issue a proclamation of a state of emergency if it appears to Her Majesty that there have occurred, or are about to occur, events of such a nature,
"as to be calculated, by interfering with the supply and distribution of food, water, fuel, or light, or with the means of locomotion, to deprive the community, or any substantial portion of the community, of the essentials of life".
Lord Wedderburn of Charlton: My Lords, will my noble friend read the rest of the Act, which is only a very short paragraph?
Lord Rooker: My Lords, no. I am sticking to the notes that I have.
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We do not want a state of emergency to exist at all. If it were to do so, for example, as the result of a chemical, biological, radiological or nuclear attack, I would hope and expect firefighters to act responsibly regardless of whether they were engaged in an industrial dispute and to protect the public. I know from his remarks on Second Reading that the noble Lord, Lord Campbell of Alloway, shares that view. Noble Lords will recall that there were numerous occasions during the dispute when firefighters left their picket lines to attend emergency calls when lives were in danger. We would expect nothing less, and we pay tribute to the work done in that respect.
The noble Lord, Lord Campbell of Alloway, has previously indicated that he believes that powers such as those in Clause 1(1) should be exercised only in a state of emergency. During the Second Reading debate, he recalled the emergency legislation passed during the Second World War and indicated that the Bill could have been justified by the circumstances pertaining at the time of its introduction in the other place—that is, the conflict in the Gulf. Circumstances have clearly changed since the Bill's introduction in the other place, although our Armed Forces are of course still at risk.
As I said in Grand Committee, it would not he right for us to have to wait for a state of emergency before the powers in the Bill could be exercised. It would not be acceptable to the House or to those outside this place if the dispute were to flare up again, further strikes were threatened, and all that the Government could say was, "We can't sort this out because there isn't a war on". As I have explained repeatedly, this Bill is to tackle a specific circumstance, which is not a state of emergency.
With respect to collective bargaining, in relation to Amendments Nos. 4 and 6, the other conditions under which the Secretary of State may make an order under Clause 1(1)(a) are when collective bargaining has broken down and mandatory arbitration has either not been applied for or the results of the tribunal have been ignored or rejected.
The difficulty with the proposition that collective bargaining would have to have failed before the Secretary of State could exercise his powers is that it is a matter of judgment whether collective bargaining has failed. There is not necessarily one single point in a dispute that marks with absolute certainty the point at which collective bargaining can be considered to have failed. For example, it could be argued strongly that collective bargaining did not fail during the recent dispute, given that the two parties eventually reached an agreement. Most reasonable people would accept that there were a number of occasions during the long dispute when the prospect of a negotiated settlement seemed extremely remote and where the sort of decisive intervention that the Bill will allow would have been appropriate.
Amendments Nos. 6 and 4, if accepted, would theoretically provide an opportunity for the employers or the union to challenge the Secretary of State's exercise of power on the grounds that in their view

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collective bargaining had not failed. At the very least that could delay the Secretary of State's intervention with the result that a potentially damaging industrial dispute could drag on or that firefighters would not get a pay rise.
As regards the other conditions suggested in Amendments Nos. 6 and 4, namely, the issue of the award of a mandatory arbitral tribunal, that should have been ignored or rejected before the Secretary of State can use his powers. Amendment No. 6 refers to Amendment No. 7, which would provide for the establishment of an independent mandatory arbitral tribunal for the resolution of disputes concerning the conditions of service of members of the fire brigade. Disputes would be referred to the tribunal only if collective bargaining had failed. The failure of collective bargaining would be determined by the parties or ACAS. The award of the tribunal would be, as the noble Lord said, binding on all parties and the Government.
The issue of arbitration was raised by a number of noble Lords during Second Reading debate and in Grand Committee. We indicated then that the Government had some difficulty with it. That is still the case. It would go against the whole purpose of the Bill. If the two parties to negotiation cannot agree, the democratically elected Secretary of State with responsibility for the provision of an effective fire service and for the public funding of that service, should step in and make a settlement. I agree that that would require some hard decisions and those could not and should not be handed over to a third party.
The issues which caused the most difficulty in the fire dispute are those such as how the fire service should move from a prescribed national fire cover standard to a locally risk-based approach to fire cover; and what are the implications for staff, especially shift patterns? These are not necessarily issues for arbitration. Ultimately, one cannot arbitrate about policy questions such as the right basis for fire cover. One can arbitrate about some of the implications, but it is hard to see how even the best independent arbitrator would be better placed to make informed judgments than those directly involved in managing the fire service or those in government who have the policy responsibility for it. We are prepared to make the hard decisions ourselves if we have to, not just hand them over to someone else.
Amendment No. 7 also states that any award of a tribunal would be binding on the Government. That raises the question of whether the Secretary of State would still be able to discharge his powers under Clause 1(1)(a) to fix or modify conditions if this interfered with the decision of a tribunal and the award of the tribunal was binding on the government. However, as the Government are not a party in the resolution of disputes concerning the conditions of service of members of the fire brigade, it would be impossible for the award of a tribunal to be binding on them. The drafting in this respect is flawed.
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As regards Amendment No. 4, it also requires the Secretary of State, save in states of emergency, to consult before directing fire authorities in the disposal and use of their facilities and property under Clause 1(1)(b). If it became necessary for the Secretary of State to use the powers, he must be able to intervene decisively and without undue delay so that lives are not put at risk. He may need to do that in circumstances which do not amount to a state of emergency as defined in other legislation mentioned earlier, but where the public are still at risk. However well-intentioned, and I accept the good intentions on this point, placing pre-conditions on the powers would make that much more difficult.
Amendments Nos. 3 and 13 would effectively remove the provisions in subsection (3) which require the Secretary of State to submit any proposals on the conditions of service for fire brigade members to any negotiating body that appears to exist. I assume that the noble Lord wishes us to read this amendment in conjunction with Amendments Nos. 2 or 4, which makes it impossible for the Secretary of State to use these powers in subsection (1) save in a state of emergency.
I explained earlier why we cannot accept the amendment, which restricts order-making powers to a state of emergency, and, as Amendments Nos. 3 and 13 would not be desirable without this pre-condition, I regret that I cannot accept them either.
I have a final point to make about Amendment No. 5, to which the noble Lord referred. It takes a different, more direct approach. It seeks to make collective action taken at the instigation of a trade union unlawful, first, if it disrupts fire brigade services, and secondly, if it inhibits performance of an order made under the Bill.
I can only repeat what I have said on numerous occasions. We do not intend to change the general law on industrial action in relation to the fire service. Whatever the cause of any collective action, if the proper steps are taken the existing legislation will offer some protection for those taking the action. That will remain. The Government do not intend to use the Bill, which we have consistently said is limited in its purpose, to make changes to industrial relations law. With that in mind, I hope that the noble Lord will reflect on the matter and withdraw his amendment.
Lord Wedderburn of Charlton: My Lords, since the matter has been mentioned in your Lordships' House both on my part and elsewhere, Section 2 of the Emergency Powers Act 1964 states—most commentary regards this as perhaps the most important part of the Act—
"The Defence (Armed Forces) Regulations 1939 in the form set out in Part C of Schedule 2 to the Emergency Laws (Repeal) Act 1959 (which regulations enable the temporary employment in agricultural work or in other work, being urgent work of national importance, of members of the armed forces of the Crown to be authorized) shall become permanent".

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That should be placed on the record when the Emergency Powers Act 1964 is being discussed. The powers under the defence regulations that were then made permanent are extremely extensive.
Lord Campbell of Alloway: My Lords, I am grateful to the noble Lord, Lord Rooker, for the care with which he dealt with the amendments. Assuredly I would wish to reflect on much that he said. There is one matter where it would have been right on an old brief. but the question of whether collective bargaining ends has been dealt with as a result of a discussion some time ago.
Amendment No. 7 states:
"(1D) No dispute shall be referred to the tribunal unless there has been a failure of collective bargaining, and such failure has been certified".
That is a small point, but the noble Lord, Lord Rooker, took it. If it is not certified by the parties, as I am told is the usual practice in collective bargaining, it could be certified by ACAS. I am taking that small point to correct it.
Of course I wish to consider the substance of the Minister's remarks. I will withdraw the amendment on that basis so that I may return to the matter if so advised at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 3 to 7 not moved.]
Baroness Hanhammoved Amendment No. 8:
Page 1, line 6, at end insert—
"( ) The provision that may be made by virtue of subsection (1)(a) includes the power to make provision about conditions of service relating to—

(a) membership of trade unions by fire brigade members: and

(b) disciplinary offences by fire brigades members."

The noble Baroness said: My Lords, I hope that I can be reasonably brisk. The Minister will know from our discussion in Grand Committee that we have a number of considerable concerns about the Bill, not least of which is how it would be implemented if it had to be implemented in the face of some considerable intransigence from the Fire Brigades Union. If the Bill has to be used it will not be used with co-operation but as a result of lack of co-operation.
At the end of the day it seems that there is nothing to stop the unions from striking yet again. Nothing in the Bill gives the Government any comfort at all about how to react if the worst comes to the worst and no one pays any attention to what the Bill says.
It has long been argued that the fire service ought to be in the same position as the police and the armed services. There ought to be no-strike clauses in relevant procedures or legislation to reinforce the Government's hand if they have to use this legislation. Perhaps the Bill is currently not the right place for such provision. I know that the matter has been considered and may be dealt with in the White Paper, but that will not help if this legislation has to be used. The two provisions in Amendment No. 8 specify that there should be no-strike
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provisions in this legislation and that disciplinary offences concerning those who breach not only these but other regulations should be included.
Amendment No. 5, moved by my noble friend Lord Campbell of Alloway, was never part of my proposals but it neatly complements them. My amendment is effectively more extreme than his, but it foresees the possibility of a more disastrous situation than the Government may have envisaged in the Bill. I beg to move.
Lord McCarthy: My Lords, before the, noble Baroness sits down—and I hope that she will not follow the earlier innovation of saying, "I have sat down already"—does she agree that if the Government introduced an order and an employer were to say, "I can't carry out that order because the workers are on strike; they are not co-operating", and if it were taken to the point where the employer sacked those workers, and if they went to an industrial tribunal and said, "But this is unfair dismissal", that tribunal would be bound to say that they were not protected if they were sacked on the grounds that they were frustrating the performance of a statutory duty? That is the first way—there are other ways—in which it is not true that the measure does not affect the right to strike. They could be sacked and a tribunal could say that it was fair to do so. Breach of contract will apply and that will he the end of that.
Baroness Hanham: My Lords, I cannot answer any of that. What I am trying to build into the Bill is a means of dealing with the reality of the situation. It is currently a completely toothless tiger.
Lord Wedderburn of Charlton: My Lords, I put this not as a question but as two clear points. First, we now have repeated on Report what was said in Grand Committee—that the Opposition's official policy is to militarise the fire service, place it in the same position as the Armed Forces and abolish its right to strike.That is now clear and I am grateful that it has been made clear because it is a distinct difference from the Government, whose intention is not to affect the right to strike—although, as we shall later argue, unhappily, their Bill does not reflect that intention. However, the Opposition are clear: they want to conscript the fire brigade. That is the first point.
The second point is very serious for the noble Baroness. She made very similar points in Grand Committee—where we had a jolly little debate on one of her amendments. I asked her then more or less the following: "Does that mean that you denounce the ILO conventions which plainly state that, apart from the police and the Armed Forces, it is an offence against international law to abolish the right to strike of other groups of workers?" It is true that there is extensive ILO jurisprudence on the matter—jurisprudence in the sense of the Committee on Freedom of Association.
I asked that question some time ago, and the noble Baroness has had time to think about it. Yet she does not mention the ILO. Presumably, however, impliedly, she

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now confirms that it is Opposition policy to denounce that right in international law under the ILO. And it is not just under the ILO; it is also the Council of Europe, the European charter and a number of United Nations documents as well.
The noble Baroness has also had the chance to do some reading. It just so happens—and I want to refer to this work later, not in extensor but in general terms—that she has had the opportunity to read a piece of scholarship that sets this all out in enormous detail. I refer to the book, published this July by Oxford University Press, which seems to take the Minister's fancy, by Dr Tonia Novitz, called The International and European Protection of the Right to Strike. I do not suggest that the noble Baroness should have read it. One of the marks of these debates is that people do not read things. It is not her fault and she is not alone, but she might have considered the point. She wants to militarise the fire service and denounce the ILO. That is a clear distinction from government policy and, whatever I say about this Bill, I recognise that distinction. I think it deplorable that the Opposition of this country, who believe—well, they may not believe it, but who think—that they may one day form a government, come out with that stuff. It is disgraceful.
11.30 p.m.
Lord Campbell of Alloway: My Lords, the noble Lord refers to the concept of my party, or the party to which I adhere, of conscripting the fire brigades. I know of no such policy. I have always made it plain that the individual right to withhold or withdraw labour would always be maintained and preserved. I made it plain, although it may not have suited the noble Lord to understand, that I was referring to collective action taken within this union because of the danger to the public and the public interest. It had nothing to do with conscription and I was totally prepared to accept the imposition of service in any time of emergency because it would be necessary—but not otherwise. It is not fair of the noble Lord, Lord Wedderburn, to have read out all sorts of passages from the Oxford book on the matter to my noble friend Lady Hanham. Neither she—I suspect but do not know—nor I know of any policy of our party as was suggested by the noble Lord.
Lord Rooker: My Lords, I shall concentrate on Amendment No. 8. I dealt with Amendment No. 5 in the context of the noble Lord's views, but as the noble Baroness said, Amendment No. 8 is the key amendment. It provides that an order under Clause 1(1)(a) could include provision about membership of trades unions and about disciplinary offences. Since firefighters currently enjoy an unfettered right to join a trade union, this amendment could only constrain that right. I understand that the intention behind this amendment is to put members of fire brigades on the same or similar footing as police officers.
Police officers are prevented joining a trade union by virtue of Section 64 of the Police Act 1996. Police officers are also subject to the Police (Conduct)
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Regulations 1999, which include a code of conduct covering various matters such as attendance at work. Any breach of the code—for example, taking strike action—could ultimately lead to dismissal. The central issue here is the so-called right to strike. I remind noble Lords that there is no statutory right to strike in the UK. However, there is no practical way to prevent someone withdrawing their labour or to force them to work. So a ban on strike action would be pointless. The so-called right to strike is given by the Trade Union and Labour Relations (Consolidation) Act 1992. This provides statutory immunity for striking workers and their trade unions so that they are protected from legal action for breach of contract provided the industrial action is in response to a trade dispute and has been subject to the proper balloting and notification procedures. In addition, the ability to strike is seen as an important part of the freedom to associate under Article 11 of the European Convention on Human Rights.
I accept that it is a matter of judgment whether firefighters, like the police, perform a role which makes it necessary to interfere with the basic right of any working person to withdraw their labour. Our judgment remains that they do not. We have made our views on this point absolutely clear in our White Paper, Our Fire and Rescue Service, which stated in paragraph 7.25 that,
"employees' ability to take lawful strike action should only be withdrawn in exceptional circumstances. While some may well argue that the experience of the recent fire strikes provide precisely such circumstances, the Government has no plans at present to remove from employees in the fire and rescue service existing freedoms under the law to take industrial action. But it will keep the position under close review".
Under any circumstance, I do not think the kind of powers that would be conferred by Amendment No. 8 would be an appropriate way to deal with these matters. I could certainly not support the idea of the Secretary of State legislating in an order about such fundamental things as trade union membership.
So far as the second limb of this amendment is concerned, the Secretary of State already has the power to make regulations about discipline in the Fire Services Act 1947 (Section 17). The recent White Paper explained that we intend to abolish the current military style regulations and replace them with a new framework based on ACAS best practice guidance. We do not need another power here. Therefore, Amendment No. 8 is unnecessary and I hope that, on reflection, the noble Baroness will not press it.
Lord Wedderburn of Charlton: My Lords, on a point of information I ask about a straight question of fact. Are the Government planning to abolish those regulations and the promotion regulations before the end of the year?
Lord Rooker: My Lords, we shall legislate following the White Paper. We have produced a White Paper which precedes legislation. There will be a Bill but I do not know when it will come before the House.
Baroness Hanham: My Lords, I thank the Minister for his reply and the noble Lord, Lord Wedderburn,

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and my noble friend Lord Campbell of Alloway for their interventions. Irrespective of what happens with this amendment, the question still remains of how the Government will implement their legislation if they have to. The right to strike remains and therefore a strike can take place whether or not the Government decide to implement the Bill. A strike can take place if the Government decide to implement the Bill. Therefore, the Bill remains unimplementable in the face of intransigence. That is one of the big flaws in the legislation. If people do not agree with what the Government are saying and do not want to go along with that, it is almost impossible for the Government to have their way.
However, I hear what the Minister says—
Lord Rooker: My Lords, the Bill is a means for the fire-fighters to get the money in the event of a dispute. In certain circumstances we want to pay them the money. The argument that the Bill is unimplementable is abject nonsense. It will give the Secretary of State the power to get the payments to the fire-fighters.
Baroness Hanham: My Lords, I did not intend to end on a note of disagreement. However, under the Bill the Secretary of State could put forward any scheme at all. The Bill states that he can impose pay and conditions of service, but it does not say what they are unless there are to he further Explanatory Notes attached to the Bill stating that the Secretary of State would implement only the pay as agreed at the present time. However, that is not stated in the Bill. As I read the Bill, the Secretary of State could decide not to accept a pay deal and to impose a completely different pay deal and try to implement other conditions of service. That might not he at all acceptable to the Fire Brigades Union, but that is how I read the Bill.
Lord Rooker: My Lords, the whole point is that if there was a deal, there would not be a dispute. We laboured this point in Grand Committee. I said that the Secretary of State would not be using the power to reduce firefighters' pay. We discussed this. It would be a means of his being able to get money to the firefighters which the dispute was stopping.
Baroness Hanham: My Lords, on the basis of what the Minister has said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hanhammoved Amendment No. 9:
Page 1, line 6, at end insert—
"(1A) Before making an order under subsection (1), the Secretary of State shall conduct a postal ballot of all fire brigade members on his proposals.
(1B) In relation to subsection (1A) above, it shall be the duty of any fire authority to supply the Secretary of State with any information he requires to enable a ballot to be conducted."
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The noble Baroness said: My Lords, I hope that I can introduce this amendment even more briefly. Again, it goes to the heart of whether, and how, the provision would be implemented. It is clear that the Bill will he implemented only at the end stage, when everyone is exasperated and has lost the plot.
At the end of the day, it would be worth the Secretary of State testing the views of the Fire Brigades Union by a postal ballot before implementing the deal. That is what the amendment suggests. I beg to move.
Lord Campbell of Alloway: My Lords, I am worried about this amendment. I have let my noble friend know my views. Irrespective of whether my amendments hold or fail, this amendment has to be qualified. As it stands, it would delay plenipotentiary powers of immediate effect in the event of a terrorist attack. So it would require a drafting qualification to make certain that these provisions should not apply in the event of an emergency.
Then, we are getting again towards the two regimes, which at the moment the Government are not willing to accept. But if the Government are not willing to accept that, I suggest that they have to take on hoard my concern about the amendment.
Lord Evans of Temple Guiting: My Lords, I am most grateful to the noble Lord, Lord Campbell of Alloway, for his intervention. That is precisely the Government's argument: that the postal ballot would take time without getting anywhere.
The powers in the Bill, as we have said on many occasions, are designed to deal speedily with a situation in which the normal process of negotiation has broken down. We also made the point in Grand Committee that the Office of the Deputy Prime Minister does not have available the up-to-date information to carry out such a detailed ballot. Although the latter part of the amendment requires fire authorities to supply the Secretary of State with relevant information to carry out a postal ballot, the amendment gives no time limit within which the fire authority should comply. Should the tire authority wish, it could delay the process to such an extent as to render it useless.
Even if the Secretary of State did carry out a postal ballot on an order modifying or fixing conditions of service, it is not clear what we would do with the results of the ballot. The amendment does not say what should be done with the results, and to that extent it has little meaning.
If the purpose of Amendment No. 9 is to seek consultation from fire brigade members, that is already provided for through consultation with the negotiating body, which will include representatives of fire brigade members, under Clause 1(3).
As I have explained previously and as we have said on many occasions, the powers in the Bill are not for generalities but to deal with a specific set of circumstances surrounding the strikes earlier this year. Against that background, I hope that the noble Baroness will feel able to withdraw her amendment.
11.45 p.m.
Baroness Hanham: My Lords, if one gets to the stage of needing to use this Bill, it is possible that negotiating bodies will no longer be the people with whom one is considering doing any deals. That will have all broken down. It might very well be that what the Secretary of State wants to introduce could be perfectly acceptable to members of the Fire Brigades Union. There has always been a question about how many people support the action. The only way that the Secretary of State will ever be able to find that out is in a non-emergency situation. I accept that it is technically a fault on that basis, if we are now accepting that there are two sides to the Bill.
The fact of the matter is that one might get very different results from postal ballots than from negotiators. It seems to me perfectly proper for the Secretary of State to have that ability if he wishes. One could easily limit the period in which the information had to be provided about the personnel. If that is a technical hitch, it could easily be amended. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCarthy movedAmendment No. 10:
Page 1, line 6, at end insert—
"(1A) The Secretary of State shall publish a code of guidance explaining the conditions under which or situations in which he is likely to wish to make use of his powers to make orders under this Act, and such code of guidance shall create no legal rights or duties but shall be taken into account by the courts in relation to any order."
The noble Lord said: My Lords, we now change the emphasis. We have been trying to get the Government to say a little about the circumstances when they would bring the Bill into action and when they would say that it was an emergency. We have been concentrating on emergencies. Now, we shall try a slightly different approach in the hope that we might get somewhere. The amendment talks not of limitations but of a code of guidance, explaining the conditions in which the Secretary of State is likely to make use of his powers to make orders under this Act and that,
"such a code of guidance shall create no legal rights"—
so it is different in that respect—
"or duties but shall be taken into account by the courts".
That is an attempt to transfer into the field of the fire service the concept of guidance, advice or statutory codes of practice.
There are many statutory codes of practice which specify all kinds of things. For example, there is the code of practice that deals with how to conduct legal ballots or what to do to comply with the health and safety law or to avoid discrimination. Many codes of practice tell the parties, the individuals, the employers and the workers concerned what their legal rights and liabilities are and a very great deal about how the Act is designed to work.
Strangely enough, so far as I know—and I should be very pleased for the Government to get up and say that we have this wrong—the Government do not propose to provide guidance to the parties on this quite
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unusual, if not unique, experiment in legislation. Therefore, we are suggesting that they might like to do that. For example, they might like to say something. They might reprint the words of the noble Lord, Lord Rooker, about what an emergency situation is. I was very surprised to learn that he did not think that the last fireman's strike was an emergency. I do not know what an emergency would be. The way the Government criticised the union—and of course they are perfectly entitled to do that—one would have thought that it was an emergency situation. After all, there was a sense in which the country was at war. The problem, the Government said at the time, was that it was time that the soldiers who had been sent to Iraq came back or that it was time they were circulated around. We could not go on like that. That was a very large part of the Secretary of State's argument.
Therefore, if we could have a return to those themes and be told the circumstances in which the Government would think it was an emergency, that would be extremely useful for the parties. It would certainly be of use to the parties if there was something—not on the face of the Bill—about the circumstances in which the Government would use these orders if there was no sign of industrial action. I had thought, before the Minister made his speech in Committee, that we could more or less assure ourselves that government would not use this Bill, which is to deal with an emergency situation, if there had been no sign of a strike. In most of the ways in which he developed the argument, there is a strike, the strike has been going on for quite some time. They may even have got to the point where they have made a settlement, but that is not enough. We would like to know why it should be that, when there is no industrial action in prospect, this legislation should be introduced. Would it be introduced only in the sense that the Minister might propose something, but would not necessarily bring out an order until he could size up the situation?
There is, of course, the question that has been raised—and again I think it would be very useful for the parties involved to be told—as to how far and in what circumstances the Secretary of State might bring out his orders, even if there was an agreement. I know that the Minister referred in Committee to circumstances where the parties had got together and there was some settlement that was a carve-up, in which the two sides were agreeing things and expecting the Government to pay. But surely something more could be said about the kinds of ways in which an agreement would produce not peace, quiet, placidity and acceptance, but an order?
As I said in Committee, there can be occasions, very often there are, when the parties to a complex negotiation agree two-thirds of it, but they cannot get the last bit done, they cannot get the words done. Those words are not necessarily critical, they may be thought to be more important by one side or the other, but what they really want is time, and they might take that dispute, that issue, out of the negotiations. They might say, "We will come back to that in six months. It is something that we do not want to discuss any

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further. We will sign what we have got." Is that the kind of situation—surely not—in which the Secretary of State could suddenly say, "Well because you have not agreed everything, I will introduce my order."? I would not have thought so, but maybe it is, and if it is, then I think it is possible that we ought to have an understanding.
I go back to the point that I made in answer to the previous amendment. The Government go on about the fact that this is not changing the right to strike. You can argue about whether it is changing the right to strike and the extent to which it is changing the right to strike in relation to the trade union. We are talking about whether the trade union is inducing a breach of contract. But as I say, think of the worker. How can the Minister say this, if he is paying attention?
Suppose the employer says, "I will sack these people. This is a statutory duty. I can sack people if it is a statutory duty because it is not a breach of contract. It is unlawful. They are preventing me from carrying out the statutory duty." He sacks them. They then have to crawl all the way to an industrial tribunal. It takes a long time with conciliation and mediation. They are on the stones. You cannot say these people have not had their right to strike abridged. They are on the stones, they have lost their jobs. Eventually they go to a tribunal and the tribunal says, "That is perfectly true, we have authority for this, after all Lord Denning said that there is no immunity for an authority to break its statutory duty. So if that is the case then there is no immunity for the workers who forced it to fail in its statutory duty." So the union loses. So the union goes to the EOC and the union goes to the Court of Appeal and it keeps going and all this time the workers are sacked and if more workers come out in support of these workers they are sacked as well. The strike has been broken by dismissals, by sequential, growing dismissals. How can you say that that does not abridge the right to strike? That problem does not arise for any other group of workers in England. Of course you cannot say that.
A Noble Lord: My Lords, what about the Armed Forces and the police?
Lord McCarthy: My Lords, yes, but are we saying that they are in the same category as the Armed Forces and the police? If that is the case, then say tonight that you are putting them in the same group as the Armed Forces and the police, but do not dare to tell me that you have not abridged their right to strike. Of course you have.
One could go on finding things on which something should be said, and about which the Government ought to come clean. In particular, the Government should come clean about how the Bill seriously undermines workers' right to take industrial action. I do not think that they are prepared to say anything, or to put anything in the Bill, but surely they ought to say
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that they will produce some explanation—call it a code of guidance or something else—that will tell those poor devils what is in train for them. I beg to move.
Baroness Turner of Camden: My Lords, I support my noble friend's amendment. As I am sure the Minister is well aware, it is usual to have codes of practice issued in connection with legislation. That is all that the amendment proposes. As he is well aware, the legislation is not terribly popular. I have received letters from the FBU opposing it. If a code of practice is issued indicating how the Government see their powers under the Bill and how they intend to proceed, it might render the whole exercise slightly more acceptable, which needs to happen.
Lord Wedderburn of Charlton: My Lords, I support the amendment. However, the problem that my noble friend put involving industrial action will be very simply remedied, because the Government can easily accept Amendments Nos. 11 and 25—I hope that the Minister will—and put the matter right. It is a very simple point, but we shall come to it then.
I wish to address the golden thread of merit in the amendment that appears in the last few words:
"such code of guidance shall create no legal rights or duties but shall be taken into account by the courts in relation to any order".
I hope that the Government and their Chief Whip will understand the importance of those words. They are the normal formula that has appeared in many statutes. I shall not go over the same ground as my noble friend; there are all sorts of merits in a code of guidance. He outlined perfectly well the role that they can usefully play in negotiation. To be "taken into account by the courts" is the normal formula that means the court can take judicial notice of the code and solve any evidential problem, just as it does with the ACAS code.
The thread of merit goes further in view of what the Minister has said earlier about challenge in the courts. He said that Amendment No. I could be challenged in the courts. When I asked him how that could he done, he said that he did not know. This is a very important constitutional moment. If I were a critical chap, and if the Minister were paying attention to the point, I might say that when a Minister of the Crown tells the House that a form of words could be challenged in the courts and is then asked how that would be, to which he replies, "I do not know"—of course I have sympathy with him as it was not in his brief—that would usually be the occasion for a Statement at a later stage.
The great merit of this amendment is that it cannot possibly meet that objection. It has been well recognised that such a code of guidance is not creating rights or duties, which means that it is not legally binding on the Minister, but that the courts may take judicial notice of it. Therefore, there is no question of a challenge in the courts for the code of guidance and it would, as has already been said by both my noble friends, also have the great merit of being able to resolve situations that might otherwise lead to a more provocative dispute.

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I therefore hope that the Minister will take very seriously the idea that, once again, instead of merely telling us the Government's intentions, all of which we totally believe, they will put something about those intentions in the Bill. What the Government say is not law, but what the Bill or Act states is. We shall return to that in other amendments.
I very much hope that on this occasion my noble friend the Minister will give a favourable view towards doing something of the kind suggested by the amendment.
Midnight
Lord Evans of Temple Guiting: My Lords, I am afraid that I am going to disappoint my noble friend Lord Wedderburn of Charlton, because we believe that the amendment is unnecessary.
The Secretary of State is under a general duty to act reasonably and proportionately and the Secretary of State has made it clear—as have we, on many occasions—that the powers the Bill would confer are designed for a very specific set of circumstances. The Secretary of State is not going to decide suddenly to use the powers for an alternative purpose. Even if he did, the Bill places a duty on the Secretary of State to consult with either the negotiating body for orders under Clause 1(1)(a) or with persons affected by an order under Clause 1(1)(b) before using his powers. So the Secretary of State can respond to new, developing or unforeseen circumstances but no one can be taken entirely by surprise.
As the code of guidance suggested in Amendment No. 10 would create no legal right or duty, if the Secretary of State decided he did want to exercise his powers outside the code of guidance, he could simply amend the code. So the amendment would introduce a very blunt and ineffectual tool in curtailing the use of his powers—which I assume is what is intended—compared to the existing duty to consult.
The amendment states that the code could be taken into account by courts in relation to any order made by the Secretary of State, but as noble Lords know, any order made by the Secretary of State under this Bill would be open to judicial review anyway, whether a
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code of guidance existed or not. It is right that judicial review remains the ultimate safeguard against an unreasonable use of this power.
We suggest that this amendment adds nothing helpful to this Bill and request that the noble Lord withdraw it.
Lord McCarthy: My Lords, that is not entirely a surprise, but it is remarkable. The Minister says that the amendment is unnecessary because the Secretary of State is a reasonable man. Are we not all reasonable men? However, he cannot tell us the criteria that he will use to apply his reasonability. He is just a reasonable man. If he were unreasonable, he could be taken to court. However, people want to know what is going to happen before it happens. They do not want suddenly to be told that this or that is happening.
The Minister says that people will not be taken by surprise entirely, and that they will have some idea, because the Bill has a specific purpose. We have often been told that in the course of this debate, but we are not told whether that specific purpose comes in when there is a strike, when there is no strike or when any of the many and variable situations that will take people entirely by surprise occur.
So I do not see how, when the Bill is an Act, the Government, whether or not they accept the amendment, will not have to produce something. Every Bill that I have ever got involved with has had something from some ministry—itis usually highly glossy and expensive—telling us what the Bill will do and giving some guidance. This will be a unique—and reasonable, of course—Bill. Not only will there be no code of practice, for the first time; there will be nothing but silence, while we wait for the reaction of the reasonable man.
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Rooker: My Lords, I beg to move that consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at six minutes past midnight.