Lords Sitting of 1 April 2004

Preamble
The House met at eleven of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Peterborough): The CHAIRMAN OF COMMITTEES on the Woolsack.

Armed Forces: Gallantry Medals
Lord Beaumont of Whitley Lord Beaumont of Whitley asked Her Majesty's Government:
Whether they will review the rule that members of the Armed Forces recommended for gallantry medals must be shown to have employed their weapons.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach): My Lords, there are no plans to review the rules for the award of gallantry medals. To be considered for an award, specific and verifiable acts of gallantry are required, but there is no specific stipulation, and never has been, that requires a weapon to have been employed.
Lord Beaumont of Whitley: My Lords, I thank the Minister for that Answer. In the tragic case of the military police murdered in Iraq, when there were no witnesses and therefore gallantry could not be verified, did not his department say that one of the problems was that one of the rifles that was recovered had not been fired? Would he not agree that in today's rather odd forms of fighting, it may be more gallant not to fire one's rifle than to fire it?
Lord Bach: My Lords, all kinds of circumstances occur in war time, including the one that the noble Lord mentioned at the end of his question. However, he will be relieved to know that whether weapons have been employed or not is not a criterion of an award for gallantry.
In the case of the tragic event in which six members of the Royal Military Police died, we have to await the board of inquiry before decisions are taken. I want to emphasise to the House, and I am sure that the House will agree, that that in no way lessens our respect or gratitude for those who died in the service of their country. The sacrifices made by those men have been honoured by their regiment and acknowledged by Ministers and Army commanders alike—and, of course, by their fellow countrymen.
Lord Astor of Hever: My Lords, in general, should this not be a matter for the Armed Forces and not left for politicians to decide?
Lord Bach: My Lords, that is absolutely right. I should make it absolutely clear that the process that is involved is entirely separate from Ministers, as it should be. It would obviously be inappropriate for any Minister to
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seek to influence it in any way. What happens is that the chain of command decides whether someone should be put forward in given circumstances; that goes up the chain of command until eventually Her Majesty, on the advice of the Secretary of State—who himself receives advice from the Ministry of Defence service honours committee—makes the announcement.
Baroness Strange: My Lords, may I agree with my noble friend the Minister in all the things he has said? Is he aware that my noble and gallant friend Lord Bramall told me, just before he left for a memorial service, that he had recommended many people for gallantry and that not many of them had used weapons? Many of them were doctors, rescuing people.
Lord Bach: My Lords. I am grateful to the noble Baroness. I had an opportunity to speak to the noble and gallant Lord before he left, and he made the same point to me.

Stansted Airport
11.3 a.m.
Baroness McIntosh of Hudnall: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as a resident of north-west Essex.
The Question was as follows:
To ask Her Majesty's Government whether the scale of the British Airports Authority's plans to expand the site of Stansted Airport is in keeping with the White Paper The Future of Air Transport.
Lord Davies of Oldham: My Lords, the White Paper supports the development of a new wide-spaced runway at Stansted. It is for BAA to decide how to take forward plans for expansion in the light of the White Paper.
Baroness McIntosh of Hudnall: My Lords, I thank my noble friend for that reply. He saves me to some extent the trouble of reminding the Government of their own policy on expansion at Stansted. However, if I might be permitted to remind him exactly what the Government said, they said that the first new runway in the south-east should be at Stansted but that:
"Noise should be strictly controlled, and loss of heritage and countryside kept to a minimum. We do not support options for two or three new runways at Stansted".
That was in the White Paper that was published last December.
Is my noble friend aware that BAA's current plans for the expansion show an increase in size of the site from 9.5 square kilometres to 16.5 square kilometres? Apart from the devastating impact that that would have on local communities, that naturally gives rise to the suspicion that BAA's ultimate aim is, indeed, to build yet more runways. Could he say what the

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Government will do to ensure that their own policy is not thwarted by transparently ambitious land-grabs by BAA?
Lord Davies of Oldham: My Lords, the White Paper does not authorise or preclude any development; it merely sets out policies on how we respond to the obvious demand for increased air travel. It is for the British Airports Authority to pursue planning authorities in the usual way, through the planning system. I understand—and this may be a welcome indication for my noble friend—that 74 properties fall within the boundary published by BAA. Further work is being carried out in the coming months to see if it is possible to reduce the size of the area required.
Lord Rotherwick: My Lords, in the event of a second runway at Stansted, will the Government work with BAA to ensure that they will be satisfied with the provisions for generalised blight compensation? Will they ensure that that compensation is adequate?
Lord Davies of Oldham: My Lords, as the noble Lord will know, the White Paper draws the parameters of airport development. The development of the airport is then dependent on the planning process which British airports need to go through. The issue with regard to compensation falls within those requirements.
Lord Bradshaw: My Lords, does the Minister agree that the effect on the residents around Stansted will depend very much on the surface access to the airport? While he has passed to BAA certain things, in the remarks that he made to the noble Baroness who raised the Question, would he ensure that proper planning is put into the development of surface access? I am referring to access not only from London but also from Birmingham and elsewhere—and, possibly, from the west of London, from where it is very difficult to reach Stansted. If that is done in good time, the effects of the enhancement there will be mitigated. I am sure that the Minister will need no reminding that the Strategic Rail Authority must turn its attention to this sort of thing, rather than spending all its time with its head down, embedded in the wretched project to enhance the West Coast Main Line.
Lord Davies of Oldham: My Lords, I was about to rise in almost full agreement with the noble Lord, apart from with his last jibe. However, let us concentrate on the issues that surround Stansted. He is absolutely right, of course, that it is necessary for plans to be developed to extend the rail communication between London Liverpool Street and Stansted. Work needs to be done and heavy investment made on that issue. With regard to roads, he will recognise that there has been significant improvement to the road structure of the M11 and its surrounding roads, in anticipation of the already developing expansion of passenger numbers at the airport. However, he is right that
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the infrastructure that supports and sustains air travel needs careful attention and investment. He is also right that that is the Government's responsibility, not the airport's.
Lord Faulkner of Worcester: My Lords. did my noble friend see the reports in the press last week about research carried out by OAG, the timetable experts? It showed that last year, for the year up to March, the number of flights to Europe carried out by the low-cost no-frills airlines fell by 5 per cent and the number of domestic flights by those airlines fell by 21 per cent. Is it not time for the Government to take a rather more realistic view on airline expansion and demand when planning for airport expansion?
Lord Davies of Oldham: My Lords, it is important that the Government take a realistic perspective on these matters. My noble friend has identified some interesting figures. The projected expansion of Stansted airport is based not only on no-frills airlines but also on more extensive demand for air travel. He will recognise that, although the figures he quoted represent a slight check on the rapid expansion over the past decade, we dare not underestimate the demand for air travel. As noble Lords will recognise, it is clearly very buoyant. Our citizens choose to travel by air within the United Kingdom and to go abroad.
Lord Boston of Faversham: My Lords, I declare an interest as chairman of the Sheppey Group, which seeks to safeguard east Essex and Kent from the adverse effects of airport development. Does the Minister accept that many thousands of people in east Essex and Kent, including Kent County Council, are delighted that the Government have chosen to expand at Stansted rather than pursue a grandiose scheme of airport development in the Thames estuary area—at places such as Cliffe Marsh, Sheppey and Foulness—which, as was found at the time of the Roskill commission, 30 to 35 years ago, would have been an environmental, economic and transport disaster?
Lord Davies of Oldham: My Lords, the noble Lord reminds the House that the question of airport expansion is one of tough choices. Had the noble Lord, Lord Hanningfield, been in his place, I am not so sure that he would have had the same perspective on Essex. The noble Lord has indicated that one part of Essex is gaining, whereas someone else may think that it is losing.
Lord Clinton-Davis: My Lords, are we to understand from the Minister that BAA is at liberty to thwart the Government's declared intention with regard to airport policy?
Lord Davies of Oldham: My Lords, the White Paper, which is based on very extensive prior consultation. is quite clear on the position regarding the south-east. The British Airports Authority has clearly indicated that it is following the broad strategy of the White Paper, as we expect it to do.
Lord Beaumont of Whitley: My Lords, does the Minister agree that, now that a Bill has passed through

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your Lordships' House drawing attention to the necessity for limiting emissions and airport building on good agricultural land, and now that a committee of another place has recently reported along the same lines, it is time that the Government abandoned the "predict and provide" method of dealing with airports, just as they abandoned it for roads?
Lord Davies of Oldham: My Lords, the Government are not following "predict and provide". We are taking into account the point which the noble Lord has put forward both today and in his Bill. He will recognise that the question of expansion at Heathrow depends on Heathrow's ability to meet clear environmental requirements, which on present predictions it is not able to do. Any expansion is contingent on improvements in that respect.
Lord Dixon-Smith: My Lords, I declare an interest as an Essex resident although I live at a distance from Stansted. BAA is currently operating in agreement with many of the property owners in the airport vicinity and is purchasing property. That is a commercial decision with which it and the vendors will have to live. However, if at the end of the planning process there is any question of' there being a designated site for Stansted to expand, will the Minister assure the House that the designation will include only land to be used for purposes of airport development, and not land which might be used for other forms of commercial development that, although indirectly related to the airport, would more properly not be on the airport site? There is otherwise a risk that land might be designated and bought at one price but then sold on at a very high profit.
Lord Davies of Oldham: My Lords, everyone is aware that Stansted airport is located in an area of considerable architectural merit and attractive countryside. We have sought to identify the limitations in order to protect those features as much as we possibly can. The noble Lord will recognise that the White Paper identifies the broad area for airport expansion. It is now for the planning authorities to deal with BAA's proposals.

Tobacco Growing: Subsidies
11.15 a.m.
Lord Renton Lord Renton asked Her Majesty's Government:
Whether they will continue to subsidise the growing of tobacco within the European Union; and, if so, what that subsidy will cost the United Kingdom in 2004.
Baroness Farrington of Ribbleton: My Lords, proposals for further CAP reform, which include full decoupling of tobacco support, are before the Agriculture Council. If agreement is reached on the proposal as it stands, then direct subsidies for tobacco will be phased out completely by 2007.
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Member states contribute to the EU budget as a whole and not to individual programmes. In 2004, the UK contribution is estimated to be around 13.3 per cent. To help the noble Lord, although the figures cannot be exact because of the global contribution, we estimate that the cost to the UK for the tobacco subsidy within the total budget is about £88 million.
Lord Renton: I thank the Minister for her full and helpful reply. Does it not reveal that there is a good deal of chaos in the European Union? This still considerable subsidy for growing tobacco is a contradiction when the European Union hopes to spend a much smaller sum to stop tobacco smoking. Does the Minister realise that this financial year's commitment of £642 million has to be compared with the much smaller total amount of food subsidies? The subsidy on wheat is only one-twentieth of the tobacco subsidy.
Baroness Farrington of Ribbleton: My Lords, I share the obvious concern of the noble Lord, Lord Renton. We fully support the Commission's proposal for complete decoupling in the tobacco sector and welcome his support in that matter. The Government also support his comments about the deleterious effects of smoking tobacco.
Lord Marsh: My Lords, does the Minister agree that this has become a scandal over the years? What conceivable moral difference is there between governments subsidising the growing of tobacco and governments all over Asia subsidising poppy growing to produce heroin?
Baroness Farrington of Ribbleton: My Lords, I am afraid that the noble Lord, Lord Marsh, has come up with a question I did not contemplate in considering the questions that might be asked. At the moment, smoking tobacco is legal but the Government share his concern that we should not be subsidising tobacco growing. We must reach agreement on achieving what appears to be the united aim of noble Lords.
Lord Tomlinson: My Lords, does my noble friend not agree that, in the agricultural negotiations this year, the United Kingdom was outvoted? We took a positive view in relation to the abolition of agricultural subsidies, yet we failed to carry a majority. Therefore, will she not say in quite unequivocal terms that there is a most obtuse sense of priorities given that we have £642 million spent on tobacco subsidies when the European Union, at the Madrid Donors Conference, managed to donate only £200 million for the reconstruction of Iraq?
Baroness Farrington of Ribbleton: My Lords, I cannot but agree with my noble friend. However, I would point out that, in terms of progress, the Commission has now put forward the proposal. It is anticipated under the Irish presidency that there will be a meeting at the end of April, and that the issue will be pursued with all vigour then.
Lord Addington: My Lords, have the Government considered that tobacco is actually a very unsuitable

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crop for the ground on which it is grown? It requires huge amounts of chemical intervention to produce it. Will the Government indicate how much thought they have given to choosing crops suitable to the ground in which they are grown, quite apart from the obvious health problems associated with the crop?
Baroness Farrington of Ribbleton: My Lords, it is very difficult for the Government to have a specific policy, because those countries within the EU, and the accession countries to the EU, have very different circumstances in terms of climate, soil and the alternatives. However, as part of our commitment and very successful achievements in terms of decoupling, we want to see the maximum amount of help and advice given to farmers who, were the decoupling agreed, would need an opportunity to look at alternative crops.
Lord Dixon-Smith: My Lords, although the reform of the CAP decouples the payment from production, as the Minister rightly says, it does not decouple the payment from the land. Is there any sign that the EU will work to subsume the tobacco payments into the general land payments, which would have the desirable effect of stopping tobacco production?
Baroness Farrington of Ribbleton: My Lords, the noble Lord is exactly right; that would be the result of the policy that I have tried to outline.
Baroness Strange: My Lords, will the Minister confirm that the government tax on tobacco is sufficient to pay for what we contribute to the EU as a subsidy for tobacco growing and for what we use in advertising against smoking tobacco?
Baroness Farrington of Ribbleton: My Lords, I do not have an answer for the noble Baroness in terms of the amount of money raised in tobacco taxation within the EU. I will write to her.
Lord Renton: My Lords—
Baroness Byford: My Lords—
The Lord President of the Council (Baroness Amos): My Lords, we should move on to the next Question.

Abu Qatada
11.23 a.m.
Lord Ahmed Lord Ahmed asked Her Majesty's Government:
Whether they can confirm recent media reports that the Al'Qaeda cleric Abu Qatada has provided information to the British security services.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, the Security Service had three meetings with Abu Qatada during 1996 and 1997.
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Information on that is provided in the open determination handed down by the Special Immigration Appeals Commission on 8 March 2004.
Lord Ahmed: My Lords, I thank my noble friend for her reply. Will she confirm whether Omar Bakri and Abu Hamza are also providing information to security services? If not, why have they not been deported to their countries of origin, as they are working against the interests of our community in our country, inciting hatred between communities and encouraging the recruitment of young people into militancy? Is she aware that any threats of terrorism to Britain—London or anywhere else—are also threats to the British Muslim community? Does she agree that reports of Islamic terrorism and bombs are offensive to mainstream Muslims, who are law-abiding citizens of the United Kingdom, proud to be British and proud to be Muslims?
Baroness Scotland of Asthal: My Lords, I very firmly endorse what my noble friend said about the mainstream Islam view, and reinforce what he said about the need and desire for people to be proud of being both Muslim and British. He will understand that it would be quite improper for me to comment on any information in relation to the security services, and I am not able to do that. However, I can say that any action taken by the services or in terms of police enforcement has to come within our law.
Lord Avebury: My Lords, is the Minister aware that the open judgment by Mr Justice Collins, to which she refers, does a great deal to enhance public confidence in the SIAC process, except that he made some adverse remarks about the failure of the special advocates to attend? He said that he could not see any reason for that. Does she not think that the SIAC procedure rules need to be amended to oblige the special advocates to attend in all such cases?
Baroness Scotland of Asthal: My Lords, of course I noted the comments made by Mr Justice Collins in relation to the case. I do not believe that the rules need to be amended. It was clear that, in that case, the advocate came to a view that their continuance would not inure to the benefit of their client. We are not entitled to know why they came to that view. It is also right to remind the House that the SIAC made it clear that the evidence in the case against the appellant was so strong that no special advocate, however brilliant, could have persuaded us that reasonable suspicion had not been established so that the certification was justified.
Lord Biffen: My Lords, is it not high time that the work of the British security services was restored to the secrecy that it once enjoyed?
Baroness Scotland of Asthal: My Lords, noble Lords will know that there is a tension between what is necessary to keep us safe and what is necessary to keep us fair. We have that difficult balance about right.
Lord Campbell-Savours: My Lords, does my noble friend accept that there are circumstances in which it would not be in the interests of British security and intelligence to exclude people?
Baroness Scotland of Asthal: My Lords, that may be the case, although of course we cannot in this House explore what those circumstances may be.
Viscount Bridgeman: My Lords, in view of the very helpful published findings of the SIAC and the remarks of Mr Justice Collins, to which the noble Lord, Lord Avebury, referred, will the Minister assure the House that all legitimate steps are being taken to monitor any contacts that Mr Abu Qatada may have from within Belmarsh with persons or bodies hostile to the security of the realm?
Baroness Scotland of Asthal: My Lords, once again I cannot make any specific comments, but noble Lords should be reassured that our services and police forces are taking all appropriate, proper and legal steps to make sure that the citizens of this country are made as safe as can be contrived.

Business
Lord Grocott: My Lords, there will be a repeated Statement later today, which will follow the Report stage of the Energy Bill. It will be made by my noble friend the Leader of the House and will be on the publication of the Cory report.

European Parliamentary and Local Elections (Pilots) Bill
11.29 a.m.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): My Lords, on behalf of my noble and learned friend Lord Falconer of Thoroton, I beg to move that the Commons amendment be now considered.
Moved accordingly, and, on Question, Motion agreed to.

European Parliamentary and Local Elections (Pilots) Bill
  COMMONS AMENDMENT IN LIEU OF AN AMENDMENT ON WHICH THE LORDS HAVE INSISTED
  [The page and line references are to HL Bill 14 as first printed for the Lords.]

  LORDS AMENDMENT
  1 Leave out Clause 1 and insert the following new Clause—
  "Piloting conduct at European and local elections

  (1) An election to which this section applies (a pilot election) must be held—

  (a) only by postal voting, and (for that purpose)

  (b) in accordance with provision made by the Secretary of State by order (a pilot order).

  (2) These are the elections to which this section applies—

  (a) the European Parliamentary general election of 2004 in a pilot region;

  (b) a local government election in England and Wales if the poll at such an election is combined with the poll at an election mentioned in paragraph (a).

  (3) These are the pilot regions—

  (a) North East;

  (b) East Midlands.

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  (4) Postal voting is voting where no polling station is used and a person entitled to vote in person or by proxy must deliver the ballot paper by post or by such other means as is specified in a pilot order.

  (5) A pilot order—

  (a) may modify or disapply any provision made by or under a relevant enactment;

  (b) may contain such consequential, incidental, supplementary or transitional provision or savings (including provision amending, replacing, suspending or revoking provision made by or under any enactment) as the Secretary of State thinks appropriate;

  (c) may make different provision for different purposes."

  The Commons agree to this amendment with the following amendment—
  1A Line 15, at end insert—

  "(c) Yorkshire and the Humber;

  (d) North West."

  The Lords disagree to Commons Amendment No. 1A to Lords Amendment No. 1, for the following reason—
  1B Because it is appropriate to make provision for no more than two pilot regions, as recommended by the Electoral Commission.
  The Commons do not insist on their Amendment No. 1A to which the Lords have disagreed, but propose the following amendment to the Lords amendment in lieu of that amendment—
  1C Leave out lines 16 to 18 and insert—

  "(c) Yorkshire and the Humber;

  (d) North West.

  ( ) Postal voting is voting where no polling station is used and a person entitled to vote in person or by proxy must deliver by post or by such other means as is specified in a pilot order—

  (a) the ballot paper, and

  (b) the completed declaration of identity form.

  ( ) The declaration of identity form is a form which is delivered along with the ballot paper and which is completed by being signed—

  (a) by the person to whom the ballot paper is addressed, and

  (b) by a witness to that signing whose name and address are clearly marked on the form."

  The Lords agree with the Commons in their Amendment No. IC in lieu of Commons Amendment No. 1A, but propose the following amendment thereto—
  1D Line 3, at end insert—
  "but, in the case of either region specified in paragraph (c) or (d) above, a pilot may only take place if it is specifically recommended by the Electoral Commission in a report which is laid before both Houses of Parliament after the coming into force of this Act."
  The Commons disagree to Lords Amendment No. 1D to Commons Amendment No. 1 C, for the following reason—
  1E Because it is not necessary to seek further advice from the Electoral Commission.
  The Lords do not insist on their Amendment No. 1D to Commons Amendment No. 1C to which the Commons have disagreed for their reason numbered 1E hut propose the following amendment to Commons Amendment No. 1C in lieu of Lords Amendment No. 1D—
  1F Line 3, leave out—

  "(d) North West."

  The Commons disagree to Lords Amendment No.1F to Commons Amendment No. 1C, for the following reason—
  1G Because it is appropriate to pilot postal voting in four rather than three regions.
  The Lords insist on their Amendment No. 1F to Commons Amendment No. 1C, for the following reason—
  1H Because it is appropriate to pilot postal voting in three rather than four regions.
  The Commons insist on their disagreement to Lords Amendment No. 1F to Commons Amendment No. 1C, but propose the following amendment to Commons Amendment No. 1C in lieu of Lords Amendment No. 1F—
  1J Line 13, at end insert—
  "( ) The declaration of identity must contain a statement advising the voter that the ballot paper should be completed by him—

  (a) outside the presence of any other person. or

  (b) in the case of a voter who requires assistance, in accordance with such advice as is provided for in the pilot order."

  Lord Filkin: My Lords, I beg to move that the House do not insist on its Amendment No. IF and do agree with the Commons in their Amendment No. 1J in lieu thereof.
  I respect and like this House. It is a privilege to come to this place and to put the Government's case before it. But, on this issue, we cannot go on meeting like this. Time is against us. I shall not speak at length, but first, for those who may be new to these rather repeated discussions, let me reiterate why the Bill matters and why, after this House has done its best to scrutinise this issue vigorously, I believe that now is the time to listen to the other place. However, I hope to leave some points of clear comfort to the House that the issues that lie between us on these matters will be the subject of study, monitoring and report hack at a later date.
  Why does it matter? It matters because essentially we are addressing whether it is possible to increase the turnout of the public who vote in European and local elections in June. I do not need to go on about why that matters given how poor turnouts have been at both the European and local level: 24 per cent at the last European election.
  We have a substantial measure of agreement across the House on this Bill. That may not be apparent to the outside world, but there is a keen interest—I use words no stronger than that—in all parties to see whether postal voting can raise turnout in a sustained way. There is a consensus that at least the three regions should be piloted and the argument is about whether or not a fourth region is suitable. When asked for its advice, the Electoral Commission signalled that the fourth region, the north-west, was potentially suitable. The commission identified some areas of concern which it was open to the Government to explore further. The Government have explored those issues further. The regional returning officers and electoral
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  registration officers for the region have told us clearly that they believe they can carry out an election in the north-west safely and securely.
  There are also benefits in undertaking a pilot in the north-west, in particular to focus on some of the issues of complexity and to address the concerns that have been expressed about whether all-postal ballots can be done safely, without fraud. Therefore we ought to undertake a pilot in the north-west to test whether the strengthened measures that we have put in the Bill—with due acknowledgement of the effort of some Peers to bring forward those strengthened measures—have, as we hope, a desired effect.
  As I have expressed on previous occasions, the Government have made the judgment that, on balance, it is desirable to have these four regions. The Commons have supported that opinion not once but on numerous occasions, and I believe that it is right for the Government and the Commons to have their way on this issue. It has been said on previous occasions, and I respect it, that one should seek consensus on electoral or constitutional issues. That is right in principle, but cannot be—how shall I put it?—an absolute veto on change. If it were an absolute veto on change and we did not make any movement on electoral or constitutional issues until all views, all voices and all parties were unanimous on both the measures and the timing, we would have constitutional arrangements that were fossilised and out of date. On that issue, I would expect that there is a consensus at least between some parties. Progress has to be made on constitutional issues and sometimes that necessitates having to move forward faster rather than slower.
  I shall not go into great detail, but there have been occasions in the past when previous governments have changed our constitutional and electoral arrangements such as, for example, in the abolition of the GLC. There was no trace of consensus on that issue whatsoever. I disagreed with the absolute abolition of the GLC, but I did not think that the government of the time were acting unconstitutionally in terms of doing so.
  Let us focus on the present rather than on history. The position is that I am afraid that this issue is now as much about the powers of the House as about the Bill itself. But, as I said during a previous debate, the Government have 28 per cent of the vote in this House. I make no complaint about that. It is not good, I believe, for any government to have an overall majority in this House, and that is the Government's position. However, certain implications flow from that.
  It is also right that this House can and should ask the other place to think again. That is what a scrutinising and revising Chamber is all about. I would hate a situation in which this House did not do that powerfully and strongly. Moreover, it is beneficial that at times it does so twice, because it forces a government to think, "Are we right on this issue? Could improvement be made? Should we make adjustments? How can we develop consensus?" Going through such a process twice has a further benefit: it draws the attention of the media and the public to the issue and it allows the potential for public opinion to swell around an issue if that public

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  opinion wishes to do so. Although this is not part of any written constitution, it is a part of our processes and is beneficial. Therefore I respect and value the way in which this House is able to challenge government to think again.
  But the situation we are in seems to me to be at risk of going further than that. Opposition parties, because of what I have said about the turnout, have a majority over the Government in this House. We do not have absolute and rigidly clear procedural rules. Some would say that they wish never to see them. In that situation, a responsibility is placed on all of us, government Ministers or others, to consider what is the limit of our legitimacy. Does the issue merit it and how far should we go? Ultimately, that is a decision that each individual Member must make for themselves. In a sense one is asking, "Is this an issue of such constitutional importance that we ought to take this beyond the limits of anything that we have ever seen before in terms of the relationship between the two Houses?"
  As I have signalled previously, I have respected the opinions of other Members on these issues and I have been saddened that we have not always been able totally to agree, but I am a realist and I would not have expected that. On this issue, however, it is inconceivable how the matter of four regions rather than three regions could be seen as a constitutional issue that justifies going to the extent that we have. Time is against us and today we have to try to find in this House some way of moving forward with the good grace and spirit normally exhibited in this place.
  All I would say in conclusion is that this Bill is about a decent endeavour. It concerns an endeavour to increase turnout. I cannot believe that all noble Lords do not share that endeavour. The Bill is an experiment; it will die one day after the elections. It does not put something into the constitution permanently, rather it is about trying something once, and once only, and seeing whether it works. The process will be researched, evaluated and reported on by the Electoral Commission, and I hope that at some stage this House will have the opportunity to debate the report so that, in a sense, we can rerun our debates based on what the commission has to say. No doubt we shall point fingers at each other according to how we interpret the evidence that is presented.
  This issue has to be resolved. While I am not expecting Members to change their views as to what they would prefer to happen, I do ask the House to think seriously about whether this is an issue on which we should provoke something that will feel close to a disproportionate constitutional tension—I use no stronger words—between this House and another place. If these four regions carry out pilots, some 2 million more people will vote in the European and local elections to be held in June. That in itself is a good endeavour that I would wish this House to support. For these reasons, I ask the House to support the Commons and to resist the amendment which has been tabled by the Liberal Democrat Party.
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  Moved, That the House do not insist on its Amendment No. 1F and do agree with the Commons in their Amendment No. 1J in lieu thereof.—(Lord Filkin.)
  Lord Rennard rose to move Amendment No. 1K, as an amendment to the Motion that the House do not insist on its Amendment No. 1F and do agree with the Commons in their Amendment No. 1J in lieu thereof, leave out from "House" to end and insert "do insist on its Amendment No. 1F but do agree with the Commons in their Amendment No. 1J".
  The noble Lord said: My Lords, as ever, the Minister has been most reasonable in making his case. It is my sincere belief that if all Ministers in this Government were as reasonable, we would not be where we are today. Gerrymandering is a serious charge to make against a government and one that should not be made lightly, but it is one to which the Government have opened themselves up by rejecting the opinion of the independent Electoral Commission that there should be only three all-postal pilot schemes in the elections on 10 June, and its opinion that there should not be one in the north-west on that day.
  Those of us who have attended the debates on this issue will know that the Government sought the advice of the Electoral Commission on which three regions were most suitable for experimentation with all-postal voting. The amendment I have tabled today will give the Government what they said they wanted: all-postal pilots in the three regions deemed most suitable by the Electoral Commission. So why is there such controversy over my amendment, which gives the Government what they said they were asking for when they introduced this Bill?
  The problem arises from the strange sequence of events surrounding the sudden and publicly inexplicable change of mind by the Government over the number of all-postal pilots that there should be for the European and local elections and, in particular, their disregard for the advice of the independent Electoral Commission, established by Parliament to be the referee in such issues.
  Those who have followed these debates will know that the commission first found only two regions suitable for all-postal pilot experiments. The position of this House, therefore, was that only two pilots should take place. Sadly for some in the Government, those were not the two regions they most wanted.
  Throughout most of the time that we have debated this issue, the government position has been simply that the Electoral Commission left it open to see whether a third region might prove suitable. When the Government went back to the Electoral Commission for advice, it said in a letter dated 23 March that,
  "if a third region were to be chosen on the basis of the criteria that we used it should be Yorkshire and the Humber".
  So this House moved a compromise and suggested that three regions were appropriate, as recommended by the independent Electoral Commission. Sadly, that was still not good enough for someone in the Government who wanted the whole of the more Labour-inclined north of England included but nowhere in the less Labour-inclined south of England.
  In this House, we have stuck by the position of the independent Electoral Commission: that the Government are trying to have more pilots than are necessary for testing and that the risks of fraud, particularly in the council elections, where a handful of votes in a handful of wards may well sway the outcome of those elections—
  Lord Hoyle: My Lords, I was not intending to interrupt because nearly every argument has been used. However, as one who has always believed that the Liberals believe in democracy, surely the noble Lord must agree that the higher the poll, the more representative it is. It is unprecedented for an unelected House to refuse not once, not twice, but six times on this issue. Why do the Liberals want to have a low turn-out? Is it because they see that they might lose councils such as Liverpool?
  Lord Rennard: My Lords, there are many ways of improving turn-out. Perhaps we should have had weekend voting—I think that would have been a better experiment. Perhaps in the local elections we should have proportional representation so that councils would be more representative of the people who vote in those elections and are more enthusiastic about taking part. I am in favour of experimentation. We are supportive of the pilots, but the principle at stake is who should decide this issue. Should it be one party using its majority or should there be an attempt to reach consensus? If there is failure to achieve consensus, should the independent Electoral Commission arbitrate? I believe that it should.
  The commission says that the risks of fraud outweigh the benefits if there are four experiments. It says that the north-west is not suitable. It says in its most recent letter that the position has not changed since December.
  Lord Davies of Coity: My Lords, does the noble Lord realise what he has just said? He asked who should decide. Surely the decision is made by the elected government of the day. They represent the British people. The Liberals should acknowledge that the governments of 1911 and 1949 were not Tory. This House had at that time a built-in vast majority of Conservatives yet they opposed both the Liberal and Labour governments elected in the other place. But their strategic retreat on both occasions enabled legislation to be passed. This must happen now otherwise the validity of this House is even more disrespectful.
  11.45 a.m.
  Lord Rennard: My Lords. I ask the noble Lord to consider what I have to say on the constitutional issues. I understand the precedents of previous practice and the 1911 and 1949 Acts. I believe that what I am arguing is entirely consistent with what Parliament decided in 1949 in relation to the power of this House, but I urge the noble Lord to hear me out.
  Our debate is not about the principle of all-postal voting in elections or elections in which people have a choice whether to vote by post or at a polling station.
  1446
  No doubt in future we will have debates about which systems are appropriate for which elections. But the constitutional issue now is whether a government should be able to hand-pick which regions they want for different voting systems.
  If the amendment is carried, not a single person will be denied the right to vote by post. Every voter in the north-west will have the right to choose to vote by post or at their usual local polling station. But we will at least know that they want to vote in that way and that they really exist. We will know where they want their ballot paper delivered to and we will be much more certain that the individual who is entitled to receive that ballot paper will be returning it.
  If the amendment is carried, voters in the north-west will be in exactly the same position as the Government want voters to be in the West Midlands, the south-west, the south-east, Scotland and Wales. If the Government genuinely wanted more experimentation in defiance of the Electoral Commission, surely they would not simply have picked places in the north of England and none in the south. Surely a better experiment would have been one east of the Pennines and one west. So this amendment is not about denying anyone the right to vote by post. It is about denying a government the potential to abuse their large majority in one House in order to pick and choose which regions have which voting system according to the interests of their party. That cannot be right.
  It is an established constitutional principle that governments should not interfere with the findings of the boundary committees, whose work has now been overtaken by the Electoral Commission—important work in relation to the redrawing of Westminster constituencies. I referred on Tuesday to the role of the House in defeating attempts by the then Labour government to do so in 1969. That is an important constitutional precedent. It highlights the importance of having two Houses of Parliament—one may have primacy in almost every area but the other one must prevent an elected House abusing our democratic mechanisms, whether by blocking the introduction of new constituency boundaries or by changing the mechanisms of voting in only the places that suit the party in power at the time.
  It is a principle accepted in many countries that there should be a bipartisan approach on electoral issues and independent advice to give guidance where there is deadlock. Some noble Lords may recall the dispute in Texas last year, when Democratic members of the Texas legislature left to stay in a hotel in a neighbouring state so they could not be present to permit the Republican members redrawing all the boundaries in Texas in favour of the Republican Party. If I could suggest that we on these Benches could adjourn to France for a few days and block this measure, I would most readily do so—but I cannot.
  A number of noble Lords opposite told me after the vote on Tuesday that they knew that my amendment and the principle were entirely right. I know that many Members in another place who might also have spent

  1447
  their time working on and debating other issues have told me that their view is that the Government should have compromised on three regions.
  So I appeal now to all parts of the House to continue acting against an over-mighty Minister in charge of local elections who should, in my view, be supporting the Electoral Commission in this matter and making a compromise that safeguards the integrity of our democratic system and the electoral processes instead of acting, as if in a football match, as though it is all right to over-rule the referee while acting as manager for one of the teams. I beg to move.
  Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 1F and do agree with the Commons in their Amendment No. 1J in lieu thereof, leave out from "House" to end and insert "do insist on its Amendment No. 1F but do agree with the Commons in their Amendment No. 1J".—(Lord Rennard.)
  Baroness Hanham: My Lords, at this stage of these rather extended proceedings I do not propose to rehearse again the reasons why we are here still discussing this issue, as they have been rehearsed adequately by the noble Lord, Lord Rennard. They have been aired on at least five previous occasions and prior to that in Committee and on Report, and they relate primarily to the difficulties that the Government have created for themselves by not accepting the strongly held and now settled view of the Electoral Commission, that the north-west is an unsuitable region in which to pilot all-postal voting; and the Government have ignored their original decision to hold the pilots in up to three electoral regions. That is a position that could have been achieved if the Government had accepted the amendment, agreed by a majority in this House, several sittings ago.
  I say with some temerity that it is the Government's own obduracy which has created this situation. It was not the opposition parties that set up the Electoral Commission; it was this Government. The opposition parties have not twisted the arm of the chairman of the Electoral Commission to maintain his position about the north-west. How could we? The one consistency that there has been through all of these proceedings has been the view of that commission. The chairman has held firmly to that despite the enormous pressure to come to heel that has clearly been put upon him by the Government.
  We have confidence in the chairman, and the Government should be satisfied that in him they have a public servant who is truly independent of them and has demonstrated that. We have confidence in his views on this matter and are deeply concerned that the Government have chosen to try to go against the commission on this significant electoral issue. It is a significant issue. If the Government succeed today, they will do so against the advice of their own advisers. Over one-third of the electorate will take part in the pilot—a huge number—and we have questioned on many occasions as to how a third of the electorate could be deemed as a "pilot". It will put in place a procedure that separates the electorate from both its
  1448
  candidates—since it is hard to campaign when voters are completing their ballot papers over several weeks—and the ballot box, which is a symbolic and practical representation of our democratic principles. It paints on too large a canvas the possible difficulties associated with that experiment.
  The Minister has pointed out on several occasions that the four regions in which the Government wish to hold the pilots are those which will be voting in the regional referendums. I welcome the Minister's comment today that there will be a report on the pilots and that it would be discussed in this House. But can the Minister say if the Government expect that the Electoral Commission will be able to produce a report on the pilots in good time for them to be taken into account before the referendums are set up and take place? It is essential that, if the pilots are to be informative for the regional referendums, the information that comes from them is in the public domain and has been considered by Parliament long before those referendums are undertaken.
  There will be elections on 10 June. That gives us a very little parliamentary time in which the Electoral Commission can reach its views within that time and before the referendums take place. I would be grateful if the Minister would enlighten us on that aspect.
  The Government bear responsibility for the position they find themselves in. Electoral changes, as my noble friend Lord King said on Tuesday, and as has been alluded to today by the noble Lord, Lord Rennard, should have all-party support. Any government who tamper on their own with the democratic constitution of this country do so at their peril. We need unanimity of view. It is clear that there is no unanimity of view on this matter. It is also clear that the Government, in their original intention, long since could have had the Bill passed. Any consequences of the delay up to today for the four regions which will ultimately carry out the pilots will lie firmly in the Government's lap. I will recommend that my colleagues again support the Liberal Democrats' amendment.
  Lord Clark of Windermere: My Lords, I hesitate to intervene in the debate. I am conscious that I have been a Member of this House for only a little under three years, although I have had almost 30 years' experience as a Member of Parliament in one capacity or another.
  I intervene to address the narrow problem that we are debating, which is also a critical problem. In a sense, the original issues have now been escalated to a much higher level. I am referring to the issue of the principle of the primacy of the elected Chamber; also, the right of this House to express a view, to delay and to ask the elected House to think again. Those are the two concepts which I find difficult to reconcile. They are not incompatible but their relationship is delicate. When we are discussing the matter for the sixth time, it becomes even more delicate.
  When we are trying to balance those two concepts, we have to examine a number of principles—one of those concerns whether the House is really being evenhanded on this issue. It might be argued that that is a

  1449
  matter of opinion. But I tried to harden that up and took the trouble of examining every vote in this House since 1970 to see how many times, under different governments, this House overturned a decision of the other House. It might be helpful to your Lordships if I briefly highlighted them—there are only five sets of figures, but they make my point.
  Under the Conservative government of 1970–74 this House voted against the government on only 5.9 per cent of occasions. In the following Labour government of 1974–79 that figure was not 5 per cent—the House voted against that government in 80.4 per cent of the votes. I stress that the figure is not 18 but 80 per cent. Under the Conservative government of 1979–97 that figure of voting against the government fell from 80.4 per cent to 8.4 per cent of all votes. In the Labour Government of 1997–2001, this House exercised its right to vote against the government in 21.4 per cent of votes. Since 2001 this House has voted against the Government on 38.2 per cent of occasions. So far in this Session, that figure is above 51 per cent. I am trying not to be controversial, but I believe that fair-minded citizens who look at those figures will draw their own conclusions.
  Lord Elton: My Lords, I would like to address the same point and make clear that the comparisons made by the noble Lord, Lord Clark, are not entirely fair. For most of the time from which he took those figures, the Conservative Party nominally had an enormous majority in this House and could act virtually as a free agent. However, that majority was independent because it did not require to be elected, it had not been put in place by anyone to whom it owed a duty and therefore, as regards a Conservative government, it was unreliable.
  I can illustrate that from personal experience. In 1985, I was in charge of the Local Government Bill to abolish the Greater London Council. During the proceedings on the Bill, my Leader, Lord Whitelaw, put to me the proposition that the opportunity should be taken in the Bill to abolish the Inner London Education Authority. That proposal to abolish a democratic body—which this House was not—was to be made in a Bill which had been through the other place. I was able to tell Lord Whitelaw that much as I wished to support him, I would certainly not be able to get it through our own ranks or this House and would probably lose the Bill too. That does not appear on the radar screens put up by the Minister. The figures relating to the period in office of the Conservative government conceal a significant influence on government policy which is not apparent in the figures.
  Noon
  Lord Holme of Cheltenham: My Lords, we had a most interesting introduction from the Minister about constitutional issues, which have been dwelt on by the noble Lord, Lord Clark. Traditional arguments were advanced about the respective powers of the two Houses and how, since 1999, they should operate. I
  1450
  want to raise a different constitutional issue. It was raised 30 years ago by Lord Hailsham; that is, the danger of elective dictatorship.
  To be fair to the Government, they have done a great deal in their period in office to mitigate the danger of elective dictatorship and to put in place proper checks and balances. What they have done on devolution to Scotland and Wales and on the Human Rights Act are good examples of checks upon the unrestrained will of a government with a large majority in the House of Commons—a majority which I need hardly remind your Lordships from these Benches rests on a minority of the electorate.
  One of the Government's most valuable reforms has been the creation of the independent Electoral Commission to ensure that electoral matters are dealt with objectively in the public interest, rather than forced through Parliament in the interests of partisanship, separating the players from the referee. No one in either House would want to question the care and competence with which the Electoral Commission has approached its work.
  It is therefore all the more sad that the Government have been prepared to use their majority in the Commons to try to override the clear advice of the Electoral Commission. Even at this eleventh hour, I hope that the Government will think again. What kind of signal will be given about the health of our democracy if the advice of the Electoral Commission is disregarded, if its authority is therefore undermined, and if this is done in the perceived short-term interests of the governing party? At the least, it would be a dangerous precedent.
  Lord Peyton of Yeovil: My Lords, if the noble Lord, Lord Filkin, were alone in the argument—if it were not for the forces arrayed behind him elsewhere—I would be persuaded by him. He was sweetly reasonable, accommodating and courteous. We have come to associate those virtues with him and I respect him for them.
  On the other hand, he has not answered the question asked by the noble Lord, Lord Rennard: what on earth would the Government lose by accepting the amendment? My suspicion is that they would lose a certain amount of face. On the other hand, they might take credit for being generous. But I suspect that the face which will be lost if the amendment is carried today will not be that of the noble Lord, Lord Filkin, but that of the Deputy Prime Minister.
  The Deputy Prime Minister is not a man given to accommodation—not a man given to a ready understanding of the point of view of the other side. Here we are, dealing with the electoral machinery and it is dangerous that a well established convention should be waived aside at the will of a Deputy Prime Minister to suit himself and his belief in regional government.
  I would find it difficult to do anything other than support the amendment moved by the noble Lord, Lord Rennard.
  Lord Greaves: My Lords, unlike most noble Lords who have taken part in today's debate, I have clung

  1451
  doggedly to the Bill, having been present during every minute of every stage as it has gone through this House. I share one thing in common with the Minister; that is the sincere hope that this is the last time we have to debate it in this House and that we can reach a conclusion. It is vital that those responsible for the arrangements can organise the elections.
  I should declare that I am likely to be on the ballot paper on 10 June in the north-west. Perhaps I may say to the noble Lord, Lord Hoyle, who intervened in the speech of my noble friend Lord Rennard, that the people in the north-west who are running scared about these elections are not us and not even the Conservatives, but those in the Labour Party in the region. They are petrified by the prospect of being slaughtered in these elections. That is what this is all about.
  I agree with the Minister, who said when we debated the Bill two days ago that an all-postal ballot will not make much difference to the results. He pointed out that no academic research has shown that there is a difference. In practice, there has been no academic research on the question at all. The general view of our party is that all-postal ballots will make no difference to the results in any part of the region. But that is not the view of the Labour Party in the region and that is the motivation behind the proposal.
  I have had great respect for the noble Lord, Lord Clark of Windermere, since I first met him some 40 years ago. Like him, I came into this House after the first stage of its reform. The situation here is now very different indeed from what it had been in perpetuity before that time—for as long ago as anyone can remember. Yesterday, the Leader of the House quoted Lord Rosebery on the matter. I did not think that there was British politician left who quoted Lord Rosebery in evidence on anything, but we know that the Leader of our House now does so—and she is welcome to him.
  But the present situation is different. The previous Leader of the House, the noble Baroness, Lady Jay, said that this House now has more legitimacy. Those were her words. If that means anything, it means that occasionally we have the right to insist, at least within the parameters of the Parliament Acts, which are the laid-down legal frameworks.
  I am no expert on the British constitution—I merely observe what happens to those aspects of which I have been part over the years. In this House, I observe that after the passage of a Bill most disagreements between this House and the House of Commons are not resolved by this House conceding 100 per cent. They are resolved by a sensible compromise being reached between the two Houses. That is what usually happens. It is a matter of fact.
  The truth is that on this Bill, the sensible compromise has had to come from this House. It is the compromise between four areas, which the Government suddenly decided they wanted having first said none and then three, and the two areas which the Electoral Commission said were possible. We have compromised on three areas with the commission. I want to know why that compromise was not accepted by the House of Commons.
  1452
  Perhaps some of what has been going on in the undergrowth should be put on the record at this stage. After this House first voted for two regions to take part in the pilot, a number of informal approaches were made, mainly to members of the Conservative Party in different places, to ask whether we would compromise on the issue of three regions. I understand that the message sent back at that time was, "Not at this stage".
  Nearly three weeks ago, informal approaches were made by some of the more sensible people in the Labour Government and by people associated with them to the opposition parties in this House to ask whether we would compromise on the issue of three regions. As I understood it, the deal was that we would have to choose three regions because the Government could not decide.
  Lord Filkin: My Lords, I regret interrupting the noble Lord's interesting speech but, as a point of truth, I invite those with whom I had those conversations to confirm that the two propositions set out by the noble Lord, Lord Greaves, were never, in fact, put. There was never a proposal from the Government that the opposition parties should put forward the option of three regions or choose that. Meetings were arranged to hold discussions, but at each of those meetings with the noble Lords, Lord Cope and Lord Rennard, I made it clear that I was not in a position to have any discussion whatever.
  Lord Rennard: My Lords, I am happy to confirm that, in all my conversations with the Minister, no such agreement was suggested with the noble Lord opposite on any occasion.
  Baroness Gould of Potternewton: My Lords, may we ask the noble Lord—
  Lord Cope of Berkeley: My Lords, I can also confirm what the noble Lord, Lord Filkin, said so far as concerns the meeting that he held with me.
  Noble Lords: Withdraw.
  Lord Greaves: My Lords, of course, I am perfectly happy to accept what the noble Lord, Lord Filkin, has said. I never suggested that the discussions had taken place with the noble Lord, Lord Filkin. It is my understanding that informal discussions took place at senior levels and I shall stick to that. I am not suggesting that the noble Lord, Lord Filkin, took part in those discussions.
  We all know that the reason that the Government have not been able to compromise on the issue of three regions is that some senior members of the Government in the north of England were not able to reach an agreement. People in Yorkshire, led by the Deputy Prime Minister, put their foot down in relation to Yorkshire, and people in the north-west, led by some of the equally extremely able politicians in the north-west, including, I believe, the chairman of the Labour Party but many others too, some of whom have spoken in this House, were not prepared to compromise on the matter of the

  1453
  north-west. That is why we have not been able to achieve the kind of sensible compromise which would have resolved this matter at least a fortnight ago and which could have allowed the elections to be organised far more quickly than has been the case.
  If there is a problem between the Houses, that is not the fault of this House, which has sought to compromise; it is the fault of the Government, who have been obstinate and who, for whatever political reasons of their own, have refused to understand that the compromise was on offer and that it was a sensible thing to do. I shall say one final thing.
  Noble Lords: Oh!
  Lord Greaves: My Lords, who knows? This may be the last occasion that we debate the Bill in this House. But this will not be the last time that these matters are raised because the question of compulsory postal voting—the substantive issue that we are discussing—is a matter of fundamental constitutional importance. It puts at risk the whole question of the free vote, based on the secret ballot, and unless—I am sorry; my phone is ringing. There are times when one would like to curl up and crawl under a bed. Unfortunately, there is not room under my Bench.
  The whole question of compulsory postal voting puts at risk the fundamental constitutional matter of the free vote and the secret vote, as entrenched in the Ballot Act 1872. Until answers to those questions are provided, those of us who are concerned about these matters will continue to raise them and to complain and object to what some of us see as the Government playing fast and loose with the most important and fundamental matter underlying our democracy. The fact that noble Lords opposite believe that this is a matter for hilarity is something which shows—
  Earl Ferrers: My Lords, perhaps I may interrupt the noble Lord for one moment. He has made some very impressive points but, whatever one may think of them, does he realise that the longer he goes on, the more he is destroying them?
  Lord Greaves: My Lords, the noble Earl will be very pleased to know that I have finished.
  12.15 p.m.
  Lord Filkin: My Lords, I shall be brief. I want to respond to only one or two of the points raised in the debate. The noble Lord, Lord Rennard, with whom we have worked on the Bill vigorously for quite some time, suggested that the Government might have chosen some regions in the south rather than all the regions being in the north. I believe that it is important for the House to understand the process by which the regions were considered.
  The Electoral Commission was asked to give advice on which regions might be suitable for pilots. It identified two that were suitable. It then identified Scotland and, I believe, two others that were potentially suitable. The
  1454
  remainder, it said, were not suitable. In deciding which regions should be piloted, the Government worked strictly down the list in the order in which it was given to us by the Electoral Commission. I do not believe that it would have been open to us, in wisdom, to have gone outside that list in the way that was suggested.
  Secondly, I mark the point that has infected this debate at times—that is, whether there is a party-political advantage. I shall repeat what the noble Lord, Lord Greaves, said; I am sure that that will be welcome. There is no academic research that I know of that indicates that postal ballots favour one party or another. Agents become massively excited about this issue but I believe that, at this stage, the evidence is particularly inconclusive and uncertain.
  I also want to address the question raised by the noble Baroness, Lady Hanham. It was a good question concerning whether evidence from the Electoral Commission on how the pilot had worked in the four regions would be available in time to inform practice on the regional referendums in October. As the Bill states, the commission must report within three months of the election. Therefore, its report would be available before September. If there are any early lessons to be learnt in advance, I believe it is particularly important that we try to receive them if they would help to improve electoral practice. Where such information can be shared, we would share it with opposition parties, as one would expect.
  I shall cut to the end. The noble Lord, Lord Holme, said that there was a danger of elective dictatorship. That is an important issue, and it is partly the reason for having this House. Clearly, one recognises that that is partly what we do: we balance the majority in another place. But there is also a danger of an unelective dictatorship. The situation that I sought to signal to noble Lords was that the current situation—that is, with the Government having no overall majority in this House—is likely to be the status quo in the future. I consider that to be good. But the implication that flows from that is that a coalition of two opposition parties—either in substance or on any particular issue—could always, always block the will of the other place. We must reflect on that because of its serious constitutional importance.
  I was simply signalling that where an issue has massive constitutional merit, this House will no doubt take it to the line. But the question whether four or three regions take part in a regional pilot is a third division, rather than a first division, issue. I find it astounding that we might wish to test our conventions beyond any previous limits. For those reasons, while I respect, and do not expect to change, the views of other Members, I believe that now is the time for us to cease our resistance in this respect.
  Lord Rennard: My Lords, I thank the Minister and all who have worked with him on the Bill for the careful consideration given to much of what I have said. I know that they now believe that closure must be brought to the matter. On what the Minister has just said about which region should have all-postal pilots, the original government brief given to the Electoral

  1455
  Commission did not consider any regions in the south at all. It looked only at regions in the Midlands and further north. Scotland was a third choice of the commission, Yorkshire and Humber the fourth and the north-west the fifth. The Electoral Commission remained of the view that four pilots would be too many and that the fifth choice—the north-west—was no longer suitable.
  The issue is not about whether to have three or four pilots, nor is it about the unelected House of Lords or the elected House of Commons; the issue is whether an independent body should decide the matter and whether Parliament collectively should act upon the will of that independent body. For that very important reason I want to test the opinion of the House.
  12.21 p.m.
  On Question. Whether the said amendment (No. 1 K) shall be agreed to?
  Their Lordships divided: Contents, 108; Not-Contents, 138.

  Division No. 1

  CONTENTS

  Addington, L.

  Howell of Guildford, L.

  Alton of Liverpool, L.

  Hunt of Wirral, L.

  Ampthill, L.

  Jenkin of Roding, L.

  Anelay of St Johns, B.

  Jopling, L.

  Astor of Hever, L.

  Kingsland, L.

  Avebury, L.

  Knight of Collingtree, B.

  Baker of Dorking, L.

  Lester of Herne Hill, L.

  Barker, B.

  Liverpool, E.

  Beaumont of Whitley, L.

  Livsey of Talgarth, L.

  Bradshaw, L.

  Maclennan of Rogart, L.

  Bridgeman, V.

  Maddock, B.

  Brooke of Sutton Mandeville, L.

  Mar and Kellie, E.

  Brougham and Vaux, L.

  Methuen, L.

  Byford, B.

  Miller of Chilthorne Domer, B.

  Clement-Jones, L.

  Molyneaux of Killead, L.

  Cockfield, L.

  Monro of Langholm, L.

  Coe, L.

  Monson, L.

  Cope of Berkeley, L. [Teller]

  Moynihan, L.

  Crickhowell, L.

  Newby, L.

  Cuckney, L.

  Noakes, B.

  Denham, L.

  Northesk, E.

  Dholakia, L.

  Northover, B.

  Dixon-Smith, L.

  Oakeshott of Seagrove Bay, L.

  Elles, B.

  O'Cathain, B.

  Ezra, L.

  Park of Monmouth, B.

  Falkland, V.

  Pearson of Rannoch, L.

  Ferrers, E.

  Perry of Southwark, B.

  Fookes, B.

  Peyton of Yeovil, L.

  Freeman, L.

  Phillips of Sudbury, L.

  Gardner of Parkes, B.

  Pilkington of Oxenford, L.

  Geddes, L.

  Plumb, L.

  Glentoran, L.

  Razzall, L.

  Goodhart, L.

  Redesdale, L.

  Greaves, L.

  Rennard, L.

  Hamwee, B.

  Renton, L.

  Hanham, B.

  Rodgers of Quarry Bank, L.

  Harris of Richmond, B.

  Roper, L.[Teller]

  Henley, L.

  Rotherwick, L.

  Higgins, L.

  Russell-Johnston, L.

  Hodgson of Astley Abbotts, L.

  Saatchi, L.

  Holme of Cheltenham, L.

  Saltoun of Abernethy, Ly.

  Hooper, B.

  Sandberg, L.

  Hooson, L.

  Sanderson of Bowden, L.

  Howe, E.

  Seccombe, B.

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  Sharples, B.

  Tordoff, L.

  Shutt of Greetland, L.

  Wade of Chorlton, L.

  Skelmersdale, L.

  Wallace of Saltaire, L.

  Smith of Clifton, L.

  Walmsley, B.

  Soulsby of Swaffham Prior, L.

  Watson of Richmond, L.

  Stevens of Ludgate, L.

  Wigoder, L.

  Strathclyde, L.

  Williams of Crosby, B.

  Thomas of Gresford, L.

  Windlesham, L.

  Thomson of Monifieth, L.

  Wright of Richmond, L.

  Tope, L.

  Young of Graffham, L.

  NOT-CONTENTS

  Acton, L.

  Howie of Troon, L.

  Ahmed, L.

  Hoyle, L.

  Allenby of Megiddo, V.

  Hughes of Woodside, L.

  Alli, L.

  Hunt of Kings Heath. L.

  Amos, B. (The Lord President of the Council.)

  Irvine of Lairg, L.

  Janner of Braunstone, L.

  Andrews, B.

  Jay of Paddington, B.

  Archer of Sandwell, L.

  Jordan, L.

  Ashton of Upholland, B.

  King of West Bromwich, L.

  Bach, L.

  Kirkhill, L.

  Barnett, L.

  Laming, L.

  Bassam of Brighton, L.

  Lea of Crondall, L.

  Bernstein of Craigweil, L.

  Levy, L.

  Blackstone, B.

  Lipsey, L.

  Boothroyd, B.

  Listowel, E.

  Borrie, L.

  Lockwood, B.

  Brennan, L.

  Lofthouse of Pontefract, L.

  Brooke of Alverthorpe, L.

  McCarthy, L.

  Brookman, L.

  Macdonald of Tradeston, L.

  Brooks of Tremorfa, L.

  McIntosh of Haringey, L.

  Burlison, L.

  McIntosh of Hudnall, B.

  Campbell-Savours, L.

  MacKenzie of Culkein, L.

  Carter, L.

  Marsh, L.

  Chandos, V.

  Masham of Ilton, B.

  Christopher, L.

  Massey of Darwen, B

  Clark of Windermere, L.

  Merlyn-Rees. L.

  Clarke of Hampstead, L.

  Mitchell, L.

  Clinton-Davis, L.

  Morgan, L.

  Cohen of Pimlico, B.

  Morgan of Huyton, B.

  Crawley, B.

  Morris of Manchester, L.

  David, B.

  Ouseley, L.

  Davies of Coity, L.

  Palmer, L.

  Davies of Oldham, L. [Teller]

  Patel, L.

  Desai, L.

  Paul, L.

  Dixon, L.

  Pendry, L.

  Dubs, L.

  Peston, L.

  Evans of Temple Guiting, L.

  Pitkeathley, B.

  Falconer of Thoroton, L. (Lord Chancellor)

  Ponsonby of Shulbrede, L.

  Prys-Davies, L.

  Farrington of Ribbleton, B.

  Ramsay of Cartvale, B.

  Faulkner of Worcester, L.

  Randall of St. Budeaux, L.

  Filkin, L.

  Rendell of Babergh, B.

  Freyberg, L.

  Richard, L.

  Fyfe of Fairfield, L.

  Richardson of Calow, B.

  Gale, B.

  Robertson of Port Ellen, L.

  Gibson of Market Rasen, B.

  Rooker, L.

  Golding, B.

  Sainsbury of Turville, L.

  Goldsmith, L.

  Sandwich, E.

  Gould of Potternewton, B.

  Scotland of Asthal, B.

  Greengross, B.

  Sewel, L.

  Grenfell, L.

  Simon, V.

  Grocott, L. [Teller]

  Simon of Highbury, L.

  Hannay of Chiswick, L.

  Smith of Gilmorehill, B.

  Harrison, L.

  Smith of Leigh, L.

  Haskins, L.

  Southwell, Bp.

  Hattersley, L.

  Stone of Blackheath, L.

  Hayman, B.

  Strabolgi, L.

  Hilton of Eggardon, B.

  Sutherland of Houndwood, L.

  Hollick, L.

  Symons of Vernham Dean, B.

  Hollis of Heigham, B.

  Taylor of Blackburn, L

  Howarth of Breckland, B.

  Temple-Morris, L.

  Howe of Idlicote, B.

  Tenby, V.

  Howells of St. Davids, B.

  Thornton, B.

  1457

  Tomlinson, L.

  Warwick of Undercliffe, B.

  Triesman, L.

  Weatherill, L.

  Turnberg, L.

  Whitaker, B.

  Uddin, B.

  Wilkins, B.

  Walpole, L.

  Williams of Elvel, L.

  Warner, L.

  Williamson of Horton, L.

  Warnock, B.

  Woolmer of Leeds, L.

  Resolved in the negative, and amendment disagreed to accordingly.
  Motion agreed to.

Higher Education Bill
12.32 p.m.
Brought from the Commons; read a first time, and ordered to be printed.

Public Audit (Wales) Bill [H.L.]
Report received.
Clause 3 [Studies for improving economy etc in services]:
Baroness Noakes moved Amendment No. 1:
Page 4, line 41, leave out "(other than a registered social landlord in Wales)"
The noble Baroness said: My Lords, I am disappointed to see a mass exodus from the Chamber because we have one of the most interesting Bills that the House will consider.
Amendment No. 1 deals with whether the Auditor General for Wales may carry out value for money studies of registered social landlords when he thinks it appropriate or whether he must have permission to do so. The amendment deletes the words,
"other than a registered social landlord in Wales",
from subsection (4)(c) of new Section 145A of the Government of Wales Act which is inserted by Clause 3 of the Bill. New Section 145A is important because it gives the Auditor General wide powers to conduct value for money studies but it explicitly excludes from its ambit registered social landlords. Our amendment is designed to remove that exclusion.
We debated the issue in Grand Committee in connection with different amendments to Clause 5. The Government were unconvincing in their response to those amendments, which is why we have returned to the fray.
One of the Government's arguments was that it is an important principle that an existing Assembly power should not be taken away. Our earlier amendments were to Clause 5, which gives the Auditor General power, with the Assembly's agreement, to carry out value for money studies of registered social landlords. We have not touched that clause. It will remain possible for the Auditor General to agree studies with the Assembly on the terms provided by Clause 5; namely, that the Assembly agrees to meet the full costs.
Our amendment to Clause 3 thus adds to the ability of the Auditor General for Wales without touching the Assembly's existing power to agree a programme of
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value for money studies. If the Government do not accept our amendment, it is tantamount to saying that the Assembly has a veto on the work that the Auditor General may carry out. I do not believe that the Government can seriously defend that as a sound principle of public audit.
Another argument deployed by the noble Lord, Lord Davies of Oldham, was that,
"it would not be appropriate to give the Auditor General a free hand in undertaking studies related to bodies for which he does not have wider statutory audit functions".—[Official Report, 23/2/04: col. GC 27.]
I respectfully submit that that is not a valid argument either. Under new Section 145A the Auditor General may carry out studies of various bodies within new Section 146A, which is inserted by Clause 1. We debated the scope of the clause in Grand Committee, and while it is by no means clear precisely which bodies it covers, it is clear that it extends beyond registered social landlords. So, if the Government were consistent, they would say that value for money studies under new Section 145A should not extend to any bodies within new Section 146A. But that is not what they have done. They have singled out registered social landlords.
The Government's position is illogical. Of course illogicality is not a fatal objection to the provisions of Bills—if that were so we would have precious little legislation. Much more importantly, the Bill as drafted adds an unnecessary restriction on the role of the Auditor General, who should be able on an unrestricted basis to follow public money for audit purposes. Large amounts of public money go into registered social landlords. To fetter the Auditor General would be a grievous mistake. I beg to move.
Lord Evans of Temple Guiting: My Lords, Amendment No. 1 would give the Auditor General discretion to undertake economy, efficiency and effectiveness studies—known as 3Es studies—in respect of registered social landlords under Clause 3 of the Bill. The Auditor General could undertake the registered social landlord studies if at some future stage the Assembly were to transfer to him, or ask him to exercise on its behalf under Clause I, supervisory functions in respect of them.
Clause 3 as currently drafted excludes registered social landlords. There is a more appropriate power for undertaking comparative studies on social landlords in Clause 5. Clause 5 enables the National Assembly and the Auditor General to agree on a programme or programmes of study designed to enable the former to make recommendations for improving the economy, efficiency and effectiveness in the sector.
There are sound reasons why agreement between the National Assembly and the Auditor General is the most effective way to progress 3Es studies in this sector. There are more than 100 registered social landlords in Wales. The Assembly provides more than £50 million in social housing grants a year to the sector. At any one time, however, the majority of these organisations—around 75 per cent—do not receive funding from the National Assembly in respect of new building development. They meet their

1459
administration costs, including maintenance costs, from rental income and other sources independently of the Assembly.
The differing, and potentially changing, financial relationship of registered social landlords in relation to the Assembly should be taken into account in planning participation in such studies. The Assembly has statutory responsibilities which mirror those of the Housing Corporation in England to fund and regulate the registered social landlord sector in Wales, and in particular to ensure that registered social landlords in Wales are financially viable, properly governed and properly managed.
The exercise of those responsibilities includes the determination of standards of performance, the issue of guidance on the management of housing, the approval of the constitutions and rules of the registered social landlords, and powers of intervention to ensure that regulatory requirements are complied with.
The work can inform in a positive way the direction and emphasis of the programme of studies which can be agreed between the Auditor General and the Assembly. The programme of studies agreed would complement and inform the Assembly's statutory responsibilities. Agreement would give focus and direction to the studies in a sector where the financial relationship between individual bodies and the Assembly differ.
The noble Baroness, Lady Noakes, raised the question of whether the Assembly has a veto over the Auditor General. What would happen if there was a disagreement, or no agreement? This question is predicated on the presumption that the Assembly would in some way be resistant to the Auditor General's ability to undertake such studies. The contrary is in fact the case. Such study programmes are already agreed with the Audit Commission under the Audit Commission Act, and they are valued by the Assembly as a means of informing policy. Clause 5 makes provision for the results of such a study and the Auditor General's recommendations to be laid before the Assembly. In the extremely unlikely event that agreement could not be reached between the Auditor General and the Assembly, the Auditor General would be free to report this fact and the reasons for it in his annual report, which is laid before the Assembly and published. I hope that in the light of what I have said, the noble Baroness, Lady Noakes, will withdraw her amendment.
Baroness Noakes: My Lords, I thank the Minister for that comprehensive reply and for explaining the financial context of registered social landlords and the relative financial contribution made by the Assembly. My main concern was to ensure that the Auditor General was not fettered. I do not accuse the current Assembly of wishing to withhold consent for such studies at the moment, but supposing they became politically inconvenient for some reason, we would have to rely on the Auditor General being able to report ex post facto. That is, I suppose, some form of backstop ability to air the issue. On that basis, I am content with what the Minister said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 [Studies at request of educational bodies]:
Lord Evans of Temple Guiting moved Amendment No. 2:
Page 5, leave out lines 22 and 23.
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 3, which stands in my name. Amendment No. 2 is the first of 19 government amendments tabled as a direct result of the discussions in Committee. I thank the noble Baroness, Lady Noakes, and the noble Lord, Lord Thomas of Gresford, for airing these issues in Committee, which have now resulted in amendments which, in the Government's view, will improve the Bill.
The effect of Amendments Nos. 2 and 3 is that the National Council for Education and Training for Wales and the Higher Education Funding Council for Wales will not be able under Clause 4 to ask the Auditor General for Wales to undertake an economy, efficiency and effectiveness study into themselves. The Government are of the view that their inclusion in Clause 4 is not needed. The National Council for Education and Training for Wales and the Higher Education Funding Council for Wales are both Assembly-sponsored public bodies. The Auditor General has statutory responsibility for their audit. He is already able to undertake economy, efficiency and effectiveness examinations into the way they have used their resources under Section 145 of the Government of Wales Act. In addition, the proposed new Section 145A of the Government of Wales Act—in Clause 3 of the Bill—will enable the Auditor General to undertake forward-looking economy, efficiency and effectiveness studies in respect of them. I beg to move.
Baroness Noakes: My Lords, I recognise that the Government have tabled many amendments in response to our discussions in Grand Committee, for which I thank the Minister.
On Question, amendment agreed to.
Lord Evans of Temple Guiting moved Amendment No. 3:
Page 5, leave out lines 28 and 29.
On Question, amendment agreed to.
12.45 p.m.
Clause 5 [Studies relating to registered social landlords]:
Baroness Noakes moved Amendment No. 4:
Page 7, leave out lines 1 to 5.
The noble Baroness said: My Lords, in moving the amendment, I shall speak also to the other amendments in this group. At one level, these amendments concern the sanctions that are attached to non-compliance with the Auditor General's access rights, but on another level these amendments highlight inconsistencies that still permeate the Bill.
Some of these amendments are alternatives. Amendment No. 4 takes out the criminal sanctions that attach to non-compliance with access rights for

1461
registered social landlords. The criminal law is a blunt instrument for a public audit regime, and the amendment is along the right lines. I am reinforced in this by the absence of criminal sanctions attaching to Clause 11, which is the substantive clause dealing with the Auditor General's access rights for bodies other than local authorities within the new arrangement for public audit in Wales.
The other side of Amendment No. 4 is Amendment No. 12, which would create criminal sanctions for a breach of the Clause 11 access rights, so that if the Government stick to their guns in respect of Clause 5, there will at least be consistency across the Bill. In Grand Committee, the Minister told us that criminal sanctions were not appropriate to bodies that were covered by the accounting officer conventions. I hope that the Minister does not repeat that argument, because I do not think that it is valid. First, Clause 11 already goes beyond the bodies that are covered by the accounting officer conventions. That is the effect of paragraphs (b) and (c) in new Section 95(1) introduced by Clause 11. Secondly, the Audit Commission audit regime for the NHS, which currently applies in Wales and will continue to apply in England, has criminal sanctions attached to access rights, despite the fact that accounting officer conventions apply throughout the NHS.
In Grand Committee, the Minister also told us that Clause 11 was all right, because the Auditor General could use judicial review or apply for a mandatory injunction. Why is that good enough for Clause 11, but not good enough for Clause 5? Since Clause 11 applies to many public audits, including that of registered social landlords by virtue of paragraph (b), can the Minister explain the purpose of the Clause 5 provisions?
It is also the case that where the Bill includes criminal sanctions, it has different versions in different parts of the Bill. Clause 5 has one version, while extended versions of the sanctions exist in Clause 18 and Clause 53, which deal with local authority access rights. So, Amendments Nos. 5 and 6 in this group largely replicate the Clause 18 and Clause 53 provisions, again to try to achieve consistency.
In Grand Committee, the Minister made much of the Bill's consistency with England. He elevated this to a grand principle underlying the Bill, so as to justify the patchwork nature of the Bill. The audit regime in England is not exactly a shining light of consistency. The way in which it has grown up, with different bodies and sporadic legislative reform, has resulted in something that is not coherent. This principle of keeping Wales the same as England is just another way of saying that the Government are ignoring an opportunity to create a coherent public audit regime for Wales. We think that is the more important principle.
In Grand Committee, the Minister also talked about consistency between criminal law in England and Wales. That is an irrelevance. The Assembly already has power to create criminal sanctions in different circumstances by order and, under Clause 39, this Bill creates another such opportunity.
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The amendments offer the Government the chance to repent of their apparent determination to create an illogical public audit regime in Wales. I hope that the Government will seize the opportunity. I beg to move.
The Deputy Speaker (Lord Tordoff): My Lords, I should point out to the House that were this amendment to be carried, I should not be able to call Amendments Nos. 5 and 6, because of pre-emption.
Lord Thomas of Gresford: My Lords, we support the amendments. They set out a series of options so as to achieve consistency in the Bill, as the noble Baroness, Lady Noakes, has said. It is for the Government to choose which option they wish to follow and whether they wish to create new criminal sanctions in Wales that do not exist in England, or vice versa. It is for them to achieve internal consistency in order to have an effective regime.
Lord Evans of Temple Guiting: My Lords, the noble Baroness, Lady Noakes, asks the Government to repent. Given the number of government amendments in my speaking notes today, I think that we have shown a great deal of repentance. I am afraid that we shall not be able to repent on this amendment.
Amendments Nos. 4 to 6 reinforce the views expressed by the noble Baroness, Lady Noakes, and the noble Lord, Lord Thomas of Gresford. in Grand Committee that the Bill should provide an opportunity to rationalise audit-related criminal sanctions in Wales. Amendment No. 4 would remove the existing criminal sanctions set out in Clause 5. Those relate to failure to comply with certain of the Auditor General's access requirements in respect of undertaking a study programme.
As an alternative, opposition Amendments Nos. 5 and 6 would align these criminal sanctions with those on the access rights relating to local government bodies in Wales—Part 2 of the Bill. Following Grand Committee, officials checked with the Audit Commission, which has indicated that it cannot recall an instance where those criminal sanctions have been invoked. However, it is difficult to assess the efficacy of a sanction until such time as it is no longer in place.
The level of the penalty in respect of registered social landlords in Wales is the same as that which currently applies to the sector in England and Wales under the Audit Commission Act 1998. The Government continue to consider that to be the most appropriate approach.
I fully acknowledge that where functions have been devolved to the Assembly there is scope for secondary legislation in respect of criminal offences to diverge. The provision in Clause 39 for Welsh accounts and audit regulations, currently made under the Audit Commission Act 1998, is an example, although in practice the provisions in the respective regulations are consistent.
The Government believe that it is right that there should be consistent sanctions in England and Wales, an issue that we have discussed in debating this clause and others. Should those sanctions be subject to future review, it would be on a consistent, cross-border basis.

1463
Amendment No. 12, if accepted, would apply criminal sanctions to non-compliance with Clause 11 access rights. That would apply to the National Assembly, its sponsored public bodies, NHS bodies in Wales, and other public bodies funded by the Assembly. It would also apply to those who hold documents or information relating to the exercise of the Auditor General's functions.
The noble Lord, Lord Davies of Oldham, in Grand Committee set out the accounting officer conventions that exist in relation to governmental bodies for which the Auditor General has statutory audit responsibilities and which would apply to any instance of non-compliance with the access provisions of Clause 11. In the first instance, the matter would be brought to the attention of the relevant body's accounting officer, then to the National Assembly's audit committee. The committee could call witnesses to seek an explanation and could issue and publish a report on the matter.
Ultimately, an instance of non-compliance could result in the removal of accounting officer status. Withdrawal of accounting officer status could well result in the individual concerned not being able to continue in his or her job. There is no equivalent to accounting officer conventions in the local government sector.
I am not aware of any instance in Wales where the imposition of criminal sanctions would have led to a more satisfactory resolution of access difficulties in the context of Clause 11 bodies. Criminal sanction provisions were not incorporated into the Auditor General's original access right provisions in the Government of Wales Act 1998. The noble Lord. Lord Sharman, also did not recommend the creation of criminal offence provisions in that context.
The Government are satisfied that the extended rights of access to documents and information under Clause 11 could be secured either under the accounting officer conventions or by way of an application for judicial review, where available—for example, by way of a mandatory order compelling the person or body to comply. Alternatively, the Auditor General could apply in the ordinary civil courts for a mandatory injunction to compel the performance of the duty to provide access. These remedies have teeth.
The Government are of the view that those are formidable weapons in the Auditor General's armoury, should it be needed. A person, for instance a subcontractor, would think twice about refusing to comply with the Auditor General's rights of access if faced with the prospect of litigation and the costs that would inevitably ensue. On that basis, the Government remain of the view that it would not be appropriate or necessary to apply criminal sanctions generally in respect of the provisions in Clause 11.
I was asked what were the circumstances in which the Auditor General would invoke criminal sanctions in Clause 5. Even when faced with difficulties about access to documents and information in the registered social landlord sector, the Auditor General will also have the option of going to the courts to seek a mandatory injunction requiring the recalcitrant landlord to comply with the duty to provide the information and documents.
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Under the Bill, the accounting officer of the NHS in Wales would be subject to the accounting officer conventions. The Auditor General would be the statutory auditor for the NHS bodies in Wales. They would be subject to Assembly audit committee procedures.
In the light of that explanation, I invite the noble Baroness, Lady Noakes, to withdraw the amendment.
Baroness Noakes: My Lords, I thank the Minister for that reply, which I found disappointing. So far as these Benches are concerned, there is never too much repentance from government Benches. We shall continue to raise such points.
The Minister repeated largely what we covered in Grand Committee. In particular, he repeated the issue about accounting officer conventions, whereas I had tried to point out in my introductory remarks that Clause 11 goes beyond those bodies to which the accounting officer convention applies. I think that I can understand why the Government may not want criminal sanctions attached to those where accounting officer conventions apply, although I can see no harm in it, if that is the consistency that they want to achieve. However, the clause already goes beyond that, so that does not seem a knockdown argument.
I am glad that the Minister has ascertained the position on the use of criminal sanctions, and that none has been involved. That was the position that we thought had existed.
I remain troubled by the Government's approach to the Bill, which is to ignore opportunities for consistency. The explanations that we have received do no more than try to cover up the inconsistency rather than explain it. I shall want to reflect further on what the Minister has said when I have read it in Hansard. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 5 and 6 not moved.]
Clause 7 [Fees]:
Baroness Noakes moved Amendment No. 7:
Page 7, line 37, at end insert "and any such fee shad cover the full cost of providing the audit"
The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendment No. 9 in this group. Both amendments deal with Clause 7. which inserts a new Section 93A into the Government of Wales Act 1998. The purpose of' the amendment is to clarify the relationship between the fees that the Auditor General charges and his costs.
We shall not oppose governments Amendment No. 8, which is in the group. It seeks to delete subsection (2), which we did not understand when we debated it in Grand Committee. However, a consequence of that amendment will be to focus more attention on the basic approach taken by the Auditor General to charging, so we have tabled Amendment No. 7, which would ensure that all fees charged by the Auditor General covered his costs.

1465
If the Auditor General does not cover his costs for an audit, it means either that other audits will have to bear more cost or that the Assembly will have to pick up the tab, under Section 93 of the Government of Wales Act 1998. I accept that there can be valid policy reasons for charging less than cost, but complete freedom such as that given to the Auditor General by the Bill means that the policy is not open and transparent. Under the Bill, he can do what he likes, and we are concerned about that.
I also have a specific concern that the Bill will allow the Auditor General to indulge in unfair competition with the private sector. The Minister wrote to me on 24 March—I thank him for that letter and for his comprehensive letter of 23 March—explaining government Amendment No. 8 in terms of the need to cover audits of bodies such as charities or voluntary organisations. That set alarm bells ringing. If the Auditor General has the power to set whatever fees he likes for the bodies who might chose to be audited either by the Auditor General or by private sector auditors, that could allow him to gain work by unfairly depressing fees below cost. That is not acceptable. Can the Minister give any assurances that the Auditor General will not use the power to undercut the market? I do not suggest that the current Auditor General would dream of such a thing, but the Bill must be proof against the actions of future Auditors General.
Amendment No. 9 deals with fees charged for certain services. Under subsection (3) of new Section 93A, the Auditor General has to set fees that do not exceed the full cost of the services. That contrasts with the formulation in the soon-to-disappear subsection (2) and the surviving subsection (4). We have focused our amendments on the use of the latter formulation for subsection (3).
Under subsection (3), there are two sorts of work that can be charged at less than cost. The first is value for money audits with the agreement of the Assembly. That is not a problem, because, if the Auditor General charges the Assembly less, it will have to pick up the tab. The second kind of audit is one done under new Section 145A, requested not by the Assembly but by some other person. The Minister's letter of 23 March said that that would allow the Auditor General to take the view that such a study could contribute to,
"a wider programme of forward-looking cross-sectoral studies".
My answer to that is that it would be open to him to allocate some of the costs not to that study but to other studies. The ability to charge less than costs is not a real issue; it must relate to giving some other power to make sure that costs are not covered in circumstances in which they cannot realistically be allocated to other sorts of work. As the consequence of not charging the people who have requested the study will be that the cost will fall on the Assembly, the Assembly ought, as a minimum, to have a say. I beg to move.
1 p.m.
Lord Evans of Temple Guiting: My Lords, I shall speak to Amendment No. 8 and respond to Amendments Nos. 7 and 9. I will deal first with Amendments Nos. 7 and 9.
Amendment No. 7 would seriously and unacceptably reduce the flexibility available to the Auditor General. The effect would be that if he decided to charge a fee for auditing he would have to charge the full cost. He would not have the power to charge, if he considered it appropriate, less than the full cost. The result would be that the Auditor General would either decide not to charge at all or decide to charge but be required to charge the full cost. There would be no flexibility, and we think that a bad thing.
In practice, the Auditor General charges full cost for audit work. That includes the direct cost of the work plus a reasonable attribution of central overheads. I hope that that statement will reassure the noble Baroness, Lady Noakes, that the Auditor General will not undercharge to depress market rates. If an audit involves more work than originally envisaged, his original cost estimate may have to be amended. If a small surplus occurs, it is taken into account in subsequent audit work. That does not affect, however, the general principle that the Auditor General charges full cost and only full cost. He is subject to audit by external auditors appointed by the Assembly. His practice on fee charging can also he considered by the Assembly's Audit Committee. Flexibility, as I said, is essential and was considered desirable when the Government of Wales Act 1998 was drafted.
There may be circumstances in which the Auditor General may wish to charge less than the full cost for the audit of a body or a person's accounts. Amendment No. 9 would arguably mean that the Auditor General could charge only a fee that covered the full cost of the service. The only alternative would be for him to charge no fee. As drafted, the proposed Section 93A(3) of the Government of Wales Act, to be inserted by Clause 7, would not prevent the Auditor General from charging full cost but allows him to charge less than full cost, if he wishes to do so.
Section 96(3)(b) of the Government of Wales Act 1998 relates to economy, efficiency and effectiveness examinations undertaken by way of an agreement between a person who is the subject of the examination and the Assembly or a Minister for the Crown. In such circumstances, it may be appropriate for the Assembly or relevant Minister to meet some or even all of the cost of the examination, rather than the person to whom the examination relates. In the case of a study requested under the proposed new Section 145A, to be inserted by Clause 3, the Auditor General may take the view that the study would contribute to a wider programme of forward-looking cross-sectoral studies that he may be undertaking or contemplating. For that reason, he may consider that the recovery of full costs may not be appropriate.

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On the Section 145A studies and adding cost to other studies, where, in relation to previous studies, he has done the work at less than full cost, it must be remembered that the Auditor General is a public body and must act reasonably, or he may be subject to legal challenge. In addition, the studies would be by agreement; the later body could not agree to meet the fees, if the body felt that the fees were excessive.
With that explanation, I hope that the noble Baroness will withdraw the amendment.
Baroness Noakes: My Lords, I thank the Minister for that reply. I had not intended my amendment to mean that the Auditor General would charge either nothing or full cost. I merely sought to prevent the Auditor General charging less than full cost.
I think that I still have a concern about the Auditor General undercutting the market. The Minister said that the allocation of overheads would mean that he would not undercut the market, but the point is that he has the power to charge a fee at less than cost. Having ascertained costs through the normal cost allocation methods, he might then say that he wanted to charge less. I do not believe that there is any remedy for that, except that the Audit Committee of the Assembly might realise that that was an issue, if it amounted cumulatively to quite a high overall cost.
Much will ultimately depend on the degree of scrutiny that the Auditor General receives from his external auditors, who would not normally cover costing systems and cost recovery, and—and therefore more importantly—the scrutiny that the Assembly's audit committee can provide. I hope that the Assembly's audit Committee will read the proceedings of your Lordships' House in considering the clause and therefore be alert to the possibility that costs are perhaps not being allocated correctly. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Evans of Temple Guiting moved Amendment No. 8:
Page 7, line 38, leave out from beginning to end of line 4 on page 8.
On Question, amendment agreed to.
[Amendment No. 9 not moved.]
Clause 11 [Access to information, etc by Auditor General]:
The Deputy Speaker: My Lords, before calling Amendment No. 10, I should draw the attention of the House to the fact that were it to be carried, it would pre-empt Amendment No. 11, which I should not therefore he able to call.
Lord Evans of Temple Guiting moved Amendment No. 10:
Page 10, line 38, leave out from beginning to end of line 10 on page 11 and insert—
"(3) The Auditor General for Wales may require a person whom he thinks has information of the kind mentioned in subsection (3A)—
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(a) to give him any assistance, information and explanation which the Auditor General for Wales thinks necessary for any of the purposes mentioned in paragraphs (a) to (c) of subsection (1);

(b) to attend before him in person to—

(i) give the assistance, information or explanation, or

(ii) produce any document which is held or controlled by the person and to which the right conferred by subsection (1) applies;

(c) to provide any facility which the Auditor General for Wales may reasonably require for any of the purposes mentioned in paragraphs (a) to (c) of subsection (1).

(3A) The information is information which relates to—

(a) a relevant person;

(b) a document to which the right conferred by subiect ion (1) applies; or

(c) a person who holds or controls such a document.

(3B) The Auditor General for Wales may, for the purposes of his examination of any auditable accounts, require a relevant person to provide him, at times specified by him, with accounts of such of the person's transactions as he may specify."
The noble Lord said: My Lords, I shall speak also to Amendments Nos. 22 to 27.
Amendment No. 10 fulfils the commitment in respect of the Auditor General's access rights given at Grand Committee. It extends the Auditor General's powers of access to information, and so on, by enabling him to obtain information and the provision of facilities from a person regardless of whether that person holds or controls, or had held or controlled, a document covered by the clause. His principal right of access to every document relating to a relevant person remains.
The extended right of access to information will apply where the Auditor General thinks that any person has information about a relevant person. The right of access is to information relating to a relevant person: that is, a person being audited or subject to a study or examination; persons who hold or control a document relating to a relevant person; or about the documents themselves. The Auditor General can require from that person any assistance, information or explanation that he thinks necessary. He may also require personal attendance before him for that purpose.
The Government clearly wish to ensure that the exercise of the extended powers does not impose any unnecessary new burden on bodies to which they may relate. The Auditor General has confirmed that he will ensure that that is the case through the use of appropriate protocol arrangements.
Amendments Nos. 22 and 25 have been tabled to ensure consistency and achieve the same purpose in respect of a local authority-appointed auditor's power of access under Clause 18 and the Auditor General's powers of access in respect of a local government body under Clause 52.
Amendments Nos. 23, 24, 26 and 27 are consequential amendments to the provisions of Clauses 19 and 53 that reflect the changes in access provisions to Clauses 18 and 52. I beg to move.
Baroness Noakes: My Lords, I thank the Minister for fulfilling the undertaking given in Grand Committee by the noble Lord, Lord Davies of Oldham, in response to my amendment to Clause 11. I tabled Amendment No. 11 for Report to ensure that the Minister did not forget the undertaking, and I am pleased to confirm that I shall be supporting the Government amendments and withdrawing mine. I regard the government amendments as a more than satisfactory replacement. I merely remark in passing that it is curious that whenever a meritorious amendment is proposed by the Opposition, Parliamentary Counsel must always at least double it with a version of his own.
I also welcome the fact that the Government have dealt with Clauses 18 and 52, which I invited them to do when we debated the matter in Grand Committee. I have just one question for the Minister. When I was preparing for Report stage, I realised that Clause 18 was not on all fours with Section 6 of the Audit Commission Act. After other government amendments, it is made even more different.
The Government have made much during our discussion of the Bill of their desire to keep the English and Welsh audit regimes in step. Now we have an instance where the Government are making the Welsh local authority audit arrangements different from those in England—and sensibly so; we fully support that. But that leaves England and the Audit Commission trailing behind. My main concern in the Bill is obviously the Auditor General's powers. I shall weep no tears for the Audit Commission, but I hope that the Minister can explain what is the Government's approach to the corresponding powers for the Audit Commission in England and Wales and whether they have any plans to change them to bring them up to date with the new, modern formulation, which we would all agree is much better.
Lord Elis-Thomas: My Lords, I declare an interest as the Presiding Officer of the National Assembly for Wales. I welcome the amendments and assure the noble Baroness that my colleague, Janet Davies AM, the chair of the Audit Committee, is certainly reading our proceedings; she may be listening to them as we debate.
This set of amendments is a fine example of the effectiveness of pre-legislative scrutiny—and, indeed, of legislative scrutiny in this House. There is a series of stages. The Assembly's own ad hoc committee, which has been referred to in previous debates on the Bill, recommended in its report the extension of the provisions of Clause 11,
"to enable the Auditor General to track public money passing from local government to end users, such as contractors and grant recipients, to ensure that it has been properly and appropriately spent".
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That was the subject of a full debate in the Assembly. which I shall not quote at length, on 24 September 2003, when several colleagues—I cite Ann Jones AM in particular—emphasised the importance of strengthening Clause 11. The Welsh Affairs Select Committee in another place, in a particularly fine turn of phrase, referred in one of its recommendations which the Government subsequently accepted to making Welsh audit a beacon of good audit practice. I suppose that that is the style of the other place.
The point of the amendments, and the reason I welcome them, is that they will ensure a proper public sector trail to follow public money to end recipients and that the basic principles of propriety, regularity and value for money can be effectively pursued. I know that I speak on behalf of the Audit Committee of the Assembly and the potential members of the new body in very much welcoming the strength to their arm that the amendments will provide. I am grateful to the Government.
Lord Thomas of Gresford: We on these Benches also welcome the amendments and are grateful to the Government for listening in Grand Committee and tabling the amendments accordingly.
Lord Evans of Temple Guiting: My Lords, I am delighted that our amendments have met such approval. I am especially grateful to the noble Lord, Lord Elis-Thomas, for his words. I have received advice on the question asked by the noble Baroness, Lady Noakes. The feeling is that the question is not really within the purview of the Bill. and the suggestion, which is made with great sincerity, is that she may want to table a parliamentary Question, so that we can discuss it in that context rather than this one.
On Question, amendment agreed to.
[Amendments Nos. 11 and 12 not moved.]
Clause 14 [Appointment of auditors]:
Baroness Noakes moved Amendment No. 13:
Page 12, line 32, leave out subsection (3).
The noble Baroness said: My Lords, I start by saying that I hope that the Minister will not respond to all my questions in future by inviting me to table parliamentary Questions, because he may not get such a calm response next time.
In moving the amendment, I shall speak also to Amendments Nos. 16 and 17, all of which amend Clause 14, which deals with the appointment of auditors to local authorities. Amendment No. 13 is important because it would remove subsection (3) and, with it. the prohibition on appointing the Auditor General for Wales as the auditor to a Welsh local authority. That prohibition is a curious one because on the one hand the Government are setting up a new public audit regime for bodies in Wales. including transferring the audits of NHS bodies from the Audit Commission to the Auditor General, but on the other hand they have drawn back from the logic of the new audit regime to make the Auditor General only the appointer for auditors to local authorities.

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The Auditor General will be able to appoint his own staff to the auditors to local authorities—I believe that is implicit in the transfer of significant numbers of Audit Commission staff to the new office in Wales—but he cannot appoint himself. The logic of that defeats me. I am sure that local authorities will see there is no difference of substance between having a member of the Auditor General's staff as the auditor rather than the Auditor General himself because the Auditor General will be able to direct his staff and it would be a fiction to think otherwise. It is also rather insulting to the Auditor General to say that he is not up to being a local authority auditor.
In Committee the Minister put forward an argument about conflict of interest. However, I do not believe that argument stands up to close examination. If the Auditor General is conflicted in the case of a local authority audit, he is also potentially conflicted in any other non-Assembly audit he carries out, including the NHS in Wales and other bodies that receive significant amounts of Assembly funding. I do not think that it has ever been suggested that the Auditor General is conflicted in any of his work at present. Indeed, as I have argued separately, "conflict of interest" is an odd term to use for a public auditor. The real issue is whether his independence would be impaired. I cannot believe that anyone would suggest that.
The Minister also put up a practical argument about how the Auditor General could not issue codes of practice he would then have to comply with. However, there is little of substance in those points that a little drafting would not sort out. I argued in Grand Committee that some of these convoluted issues of codes and so forth arise in the local authority sector only because the Auditor General is not the appointed auditor. I do not think that we should be hidebound by the English Audit Commission model because we have an opportunity to break away and create a new model for Wales.
I turn to the other two amendments in this group, Amendments Nos. 16 and 17. I had rather hoped that they would attract the Minister's name as he wrote to me on 23 March saying that the paragraphs that it was proposed would be deleted were not needed. Both the noble Lord, Lord Thomas of Gresford, and I challenged the Minister in Grand Committee to say what practical effect the paragraphs had. In light of the Minister's letter, I hope that when we reach those amendments, the Government will not oppose them as that would be perverse. I beg to move.
Lord Evans of Temple Guiting: My Lords, I have made a note never to invite the noble Baroness, Lady Noakes, to table a Parliamentary Question.
Amendment No. 13 tabled by the noble Baroness, Lady Noakes, and debated previously in Grand Committee would, if agreed, enable the Auditor General to appoint himself in a personal capacity as the auditor of a local government body. I am very sorry that the noble Baroness was not persuaded by the Government's view on this. That view is that, given the Auditor General is already the statutory external
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auditor of the National Assembly. there would be the potential for a very real or perceived conflict of interest if the Auditor General could appoint himself.
For example, suppose an issue arose concerning financial management where the Assembly government and a local authority took opposing views. Would it be fair to put the Auditor General into a position where he could arguably be pulled in two directions? In such circumstances, local government could take the view that the Auditor General was an instrument of the Assembly. Such a perception would damage the Auditor General's reputation for impartiality. Also, a key role of the Auditor General would be to monitor the performance of the auditors he appoints. Who would monitor his performance as an auditor?
Local government is constitutionally independent of the National Assembly. Although it receives very considerable funding from the National Assembly, it also raises a significant proportion of its revenue from local electorates to which it is responsible. The Bill sets out to safeguard the constitutional independence and democratic accountability of local government. That was made clear when the Bill was published for pre-legislative scrutiny last April. The Government's intention that the Auditor General would not be able to appoint himself as the auditor was given as one important means of demonstrating that. The principle was not questioned during the extensive pre-legislative scrutiny that the Bill enjoyed.
The Government, therefore, remain firmly of the view that there is a compelling argument for ensuring that the Auditor General cannot fulfil the dual role that this amendment would permit. I therefore invite the noble Baroness, Lady Noakes, to withdraw the amendment.
Amendments Nos. 16 and 17 would delete two of the criteria listed for being eligible to be appointed as a local government auditor. Both relate to approvals given by the Secretary of State under the Audit Commission Act 1998 and the Local Government Finance Act 1982 respectively. The criteria were included in the Bill as a failsafe to ensure that no person was inadvertently debarred from continuing as an appointed auditor.
During the debate in Grand Committee the noble Baroness, Lady Noakes, questioned whether any appointed auditors were still practising solely by virtue of the "approval" criteria.
Since Grand Committee the position has been considered further and the Audit Commission has been able to confirm that no appointed auditor is now operating under these approvals and that no auditor would be appointed for the future if they did not have an appropriate professional qualification. On this basis, and having reflected on the views of the noble Baroness, the Government have concluded that paragraphs (c) and (d) of Clause 14(4) could be safely deleted from the Bill. We thank noble Lords opposite for their very helpful amendments that the Government have great pleasure in accepting.
Lord Elis-Thomas: My Lords, I support the Government, not that they need any support, in opposing the amendment which would delete Clause 14(3).

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I emphasise something that I mentioned in Grand Committee; that is, the special relationship which has developed—it is a statutory one—in terms of the Government of Wales Act, our constitution and the standing orders of the Assembly, between the Auditor General, his staff and the Audit Committee. Linked to that is the whole issue of the scrutiny of local government spend and local government activity on the part of the Assembly. These are very sensitive areas. One of the matters that we continually try to protect in our proceedings is the recognition that local authorities are independent elected democratic representations in their own right in the same way as the Assembly is. We have arrived, as it were, as a "new kid on the block" at the intervening level of intermediate government. This is an issue that could apply in the regions of England but I shall not go down that line today. However, if there were assemblies in England, the same issue would arise. How does an intervening level of government—in this case a national Assembly—relate to other existing levels of democratic governance, especially when funding issues are involved? The independence of local authority operation is clearly an important principle here. Related to that is the independence of the Auditor General both as regards local government and as regards his position as a statutory authority alongside the Assembly's Audit Committee. Anything that would upset those delicate balances would not be helpful when the new public audit structure for Wales is established. I oppose the amendment.
Baroness Noakes: My Lords, I thank the noble Lord, Lord Elis-Thomas, for that contribution. I wish to ask the Minister one question before I decide what to do with the amendments. Why is it not right, or constitutes a conflict of interest, or the upsetting of a special delicate relationship, if the Auditor General audits a conventional financial audit when he is the named person who carries out value for money studies under Clauses 41 and 42 and best value studies under Chapter 3? I am struggling with the logic of how the Auditor General can be the named person who carries out all of that work in relation to local government but is not able to carry out financial audits. Can the Minister explain?
1.30 p.m.
Lord Evans of Temple Guiting: My Lords, at the moment. I cannot explain that inconsistency. If I do not obtain an answer within five or 10 seconds, I shall write to the noble Baroness within the next two or three days—well before Third Reading.
Baroness Noakes: My Lords, I shall have to accept that. The Minister will therefore see that I am still a trifle concerned about the Government's response to my Amendment No. 13. For today, I beg leave to withdraw the amendment.
Amendment. by leave, withdrawn.
Lord Evans of Temple Guiting moved Amendment No. 14:
Page 12. line 33, leave out "An individual" and insert "A person"
The noble Lord said: My Lords, in moving Amendment No. 14, I shall speak also to Amendments Nos. 15, 18 and 19, which are a direct consequence of the Government's acceptance of Amendments Nos. 16 and 17, which were tabled by the noble Lord, Lord Roberts, and the noble Baroness, Lady Noakes, after Grand Committee. The deletion of paragraphs (c) and (d) of Clause 14(4) has the practical effect of making the eligibility requirements for individuals to be appointed as auditors the same as those for a firm. Government Amendments Nos. 14 and 15 replace the reference to "individual" in subsection (4) with a reference to "person"; a word that covers both individuals and firms. As a result the separate definition of eligibility for the appointment of firms in subsection (5) is not required, nor is the definition of "firm" in subsection (10). Government Amendments Nos. 18 and 19 seek to address that. The amendments simplify further Clause 14.
On Question, amendment agreed to.
Lord Evans of Temple Guiting moved Amendment No. 15:
Page 12, line 34, leave out "individual" and insert "person"
On Question, amendment agreed to.
Baroness Noakes moved Amendments Nos. 16 and 17:
Page 12. line 40, leave out paragraph (c).
Page 13, line 1, leave out paragraph (d).
On Question, amendments agreed to.
Lord Evans of Temple Guiting moved Amendments Nos. 18 and 19:
Page 13 line 4, leave out subsection (5).
Page 13, leave out line 29.
On Question, amendments agreed to.
Clause 17 [General duties of auditors]:
The Deputy Speaker (Viscount Allenby of Megiddo): My Lords, I have to advise the House that if Amendment No. 20 is agreed to, under the pre-emption rules, I shall not be able to call Amendment No. 21.
Lord Evans of Temple Guiting moved Amendment No. 20:
Page 14, line 41, leave out subsections (3) and (4) and insert—
"(3) An auditor must comply with any provisions of a code of audit practice issued under section 16 which—

(a) are applicable to the audit of the accounts being audited. and

(b) are in force.

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(4) At any time before there arc provisions of a code of audit practice with which an auditor is required to comply under subsection (3), the auditor must comply with any provisions of a code of audit practice issued under section 4 of the Audit Commission Act 1998 (c. 18) which—

(a) are applicable to the audit under that Act of the accounts of bodies of a corresponding description to the body, and

(b) are in force."

The noble Lord said: My Lords, in moving Amendment No. 20, I shall speak also to Amendment No. 32. In response to the helpful comments made by the noble Baroness, Lady Noakes, in Grand Committee, the Government have given further consideration to Clause 17. We have identified the need for an amendment to clarify that the Audit Commission's code of practice, issued under Section 4 of the Audit Commission Act 1998, will continue to apply to Wales in the transitional period until the Auditor General for Wales issues his own code under Clause 16. That was the intention of the clause, but parliamentary counsel has confirmed that it would benefit from greater clarity on that point. Amendment No. 20 achieves that.
Amendment No. 32 in respect of Schedule 1 provides a comparable clarification in relation to the code of practice for the audit of best value performance plans under the Local Government Act 1999. Section 8 of the Local Government Act 1999 requires the Audit Commission to prepare such a code. Section 8A, to be inserted under Schedule 1 of the Bill, enables the Auditor General to prepare a code of practice for Wales. Amendment No. 32 provides that, until the Auditor General does so, auditors of best value authorities in Wales must still have regard to the Audit Commission code. I beg to move.
Baroness Noakes: My Lords, I am grateful to the Minister and his officials for considering this matter. When I tabled my modest probing amendments in Grand Committee, little did I know that the issue eventually would be dealt with by six new subsections and 34 lines of amendment. But I am glad, and I am sure that the Bill is much improved.
On Question, amendment agreed to.
[Amendment No. 21 not moved.]
Clause 18 [Auditors' rights to documents and information]:
Lord Evans of Temple Guiting moved Amendment No. 22:
Page 15, line 22, leave out subsections (4) and (5) and insert—
"(4) An auditor may require a person whom he thinks has information of the kind mentioned in subsection (4A)—

(a) to give him any assistance, information and explanation which the auditor thinks necessary for the purposes of his functions under this Chapter;

(b) to attend before him in person to—

(i) give the assistance, information or explanation, or

(ii) produce any document which is held or controlled by the person and to which the right conferred by subsection (1) applies.

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(4A) The information is information which relates to—

(a) a local government body in Wales in relation to which the auditor has functions under this Chapter;

(b) a document to which the right conferred by subsection (1) applies;

(c) a person who holds or controls such a document.".

On Question, amendment agreed to.
Clause 19 [Auditors' rights to documents and information: offences]:
Lord Evans of Temple Guiting moved Amendments Nos. 23 and 24:
Page 15, line 45, leave out "or (5)"
Page 16, line 12, leave out subsection (5) and insert—
"(5) An appropriate person is a person who controlled the document referred to in section 18(4A) at the time the requirement was imposed."
On Question, amendments agreed to.
Clause 52 [Rights of the Auditor General for Wales to documents and information]:
Lord Evans of Temple Guiting moved Amendment No. 25:
Page 34, line 41, leave out subsections (4) and (5) and insert—
"(4) The Auditor General for Wales may require a person whom he thinks has information of the kind mentioned in subsection (4A)—

(a) to give him any assistance, information and explanation which the Auditor General for Wales thinks necessary for the purposes of his functions under this Part;

(b) to attend before him in person to—

(i) give the assistance, information or explanation, or

(ii) produce any document which is held or controlled by the person and to which the right conferred by subsection (1) applies.

(4A) The information is information which relates to—

(a) a local government body in Wales;

(b) a document to which the right conferred by subsection (1) applies;

(c) a person who holds or controls such a document."

On Question, amendment agreed to.
Clause 53 [Rights of Auditor General for Wales to documents and information: offences]:
Lord Evans of Temple Guiting moved Amendments Nos. 26 and 27:
Page 35, line 32, leave out "or (5)"
Page 35, line 44, leave out subsection (5) and insert—
"(5) An appropriate person is a person who controlled the document referred to in section 52(4A) at the time the requirement was imposed."
On Question, amendments agreed to.
Clause 54 [Restriction on disclosure of information]:
Lord Evans of Temple Guiting moved Amendment No. 28:
Page 36, line 47, at end insert—
"(6) The Secretary of State may by order made by statutory instrument amend or repeal the preceding provisions of this section.

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(7) An order under subsection (6) may be made only if—

(a) section 49 of the Audit Commission Act 1998 (c. 18) (restriction on disclosure of information) has been amended or repealed in the same Session as that in which this Act is passed or in any later Session;

(b) the Secretary of State thinks that the amendments or repeals to be made by the order under subsection (6) will (subject to paragraph (c)) have the same effect as the amendments to or repeal of section 49 of that Act;

(c) the order would not have the effect of imposing any further restriction on the disclosure of information under this section.

(8) An order under subsection (6) may not be made unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament."
The noble Lord said: My Lords, government Amendment No. 28 has been tabled in fulfilment of the commitment given by my noble friend Lord Davies of Oldham in Grand Committee. Noble Lords will also know that the Government laid a ministerial Written Statement in the Libraries of this House and another place on 24 March setting out their intentions with regard to Section 49 of the Audit Commission Act—the current disclosure provision that applies to England and Wales—and Clause 54.
Government Amendment No. 28 incorporates an order-making power in the clause which enables the Government to repeal or relax the restriction on the disclosure of information in Clause 54 in the light of the outcome of the DCA review. The amendment makes clear that the order-making power can be used only for the purpose of repeal or relaxation: it cannot be used to impose any further restriction. An order could not be made unless a draft has been laid before and approved by a resolution of each House of Parliament.
The Statement tabled on 24 March explains that Section 49 is already within the remit of the DCA Review. The DCA currently plans to publish a final report on its review in the autumn. It also intends to bring forward the first order to be made under Section 75 of the Freedom of Information Act implementing its findings before the end of December this year. Following preliminary consideration and consultation, the Government's preferred treatment for Section 49 is to amend it so that it is consistent with the freedom of information legislation, which has an overall presumption in favour of disclosure. The Government will include the proposed amendment to Section 49 in the first order.
When Section 49 is amended, the Government amendment to Clause 54 will allow the relaxation of the restriction on disclosure to apply to Wales as well as to England. When this Bill is enacted, the Auditor General for Wales's action will be governed by Clause 54 as amended. The noble Baroness, Lady Noakes, and the noble Lord, Lord Thomas of Gresford, were concerned to know what exceptions to disclosure will be included in the amended Section 49 of the Audit Commission Act. The detailed work on amending Section 49 has not started yet. However, the Auditor General for Wales's office has indicated that he may envisage exceptions to the presumption of disclosure in two areas first,
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the ad hoc leaking of personal information about individuals by auditors, where it is only right and proper that such delicate information is treated with respect; and, secondly, the premature leaking of information contained in reports that are intended for publication but being circulated in draft for the agreement of factual information.
Section 49 has been used very rarely in the past and the Auditor General for Wales has no expectation that he would increase the frequency of its usage. Nor can he, at the moment, envisage needing to apply it in any situations other than the two I have explained.
Of course the Government cannot, and would not wish to, fetter the discretion of the Auditor General for Wales to act as he might consider appropriate and necessary, but we understand that he would take account of the changes being proposed to Section 49 of the Audit Commission Act and the consequent changes intended for Clause 54 of the Bill, as amended by government Amendment No. 28, in the extremely unlikely event that a situation arose in which he might have to consider prosecuting under the powers granted by the clause.
If the Auditor General for Wales or an appointed auditor considers that it is necessary to his or her functions for him or her to publish an audit report. they should have an unfettered ability to do so. It is not the intent, nor could it be the effect, that Clause 54, as amended, could be used in any way to prevent this from occurring. This is fully in line with the principles of public audit which the new Wales Audit Office being created by the Bill will seek to uphold. I should like to affirm that an auditor of a local government body will have the power to issue a public interest report under the Bill, and Clause 54 does not make the issue of such a report conditional on the consent of the local government body concerned.
The Government have listened very carefully to the many concerns expressed with regard to Clause 54. They have done, and will do, their utmost to address and to take account of those concerns properly, in a consistent and responsible way, and in the light of the wider work that they are currently undertaking to introduce the freedom of information legislation.
Government Amendments Nos. 30 and 31 to Clause 57 are technical amendments and are consequential on the amendment to Clause 54. I beg to move.
1.45 p.m.
Baroness Noakes: My Lords, the Minister is aware, I know, that this is the most contentious area of the Bill. I thank him and his honourable friend in another place, Mr Don Touhig, for the efforts that they have made to move the issue forward since Grand Committee.
The Minister has proposed an amendment to Clause 54 which would allow, but not require, the Secretary of State to amend Clause 54, but only if Section 49 of the Audit Commission Act is amended, and then only in the same way. The question that we

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on these Benches have to ask ourselves is whether that is sufficient to allay the widespread concerns about Clause 54 and its potential use against whistle-blowers.
The Minister will be aware that the deletion of Clause 54 is the aim of Amendment No. 29, which is to be considered after this group of amendments. It would be helpful if the Minister would regard this debate as covering both groups of amendments.
Let me restate our position, which is line with all who have looked at the Bill, other than the Government. We believe that applying criminal sanctions in the wide-ranging prohibitions on the disclosure of information in Clause 54 is wrong in principle. The Assembly committee which considered the draft Bill came to that conclusion, as did the Welsh Affairs Committee of another place, and the Auditor General has not requested these provisions.
We were pleased to see the Minister's written statement on 24 March to the effect that the Government recognised the concerns about Clause 54. That was a significant improvement on their position of denial when they responded in December of last year to the report of the Welsh Affairs Committee of another place. The solution proposed is to amend Section 49 of the Audit Commission Act in the first of the Freedom of Information Act orders—which is a helpful indication of timing—and then to proceed to amend the Act which will result from the Bill.
We are still being invited to take a great deal on trust. I accept that the Government intend to amend the Audit Commission Act and then what will become the Welsh audit Act, but we do not know in what ways these Acts will be amended. We are in the unfortunate position in relation to the Bill of being apparently dependent on the decisions of those who guard the interests of the Audit Commission. I believe that the Audit Commission has in the past expressed a wish to keep Section 49, or at least as much of it as possible.
The Minister outlined what the Auditor General for Wales would expect to see in an amended Clause 54 but, as I have just analysed, it is not the Auditor General for Wales who will be in the driving seat on this; as I understand it, the Office of the Deputy Prime Minister will consider what amendments should be brought forward in respect of Clause 49. I understood the Minister to say that it has not started on that process.
So it is one thing to say that the sections will be amended, but the nature of the amendments is crucial. We have a real concern that we are being invited to leave an unacceptable clause in the Bill against a promise of unspecified amendments in the future. It will be left on the statute book against a promise that the Auditor General will take account of potential changes—none of which we know—in deciding whether or not to use that power until such time as an amendment is brought forward by order under the Freedom of Information Act.
I hope the Minister understands that we are still struggling with whether or not the substance of what the Government are putting forward will turn out to be adequate to meet the real concerns that exist among a
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number of sources in respect of Clause 54. Can the Minister say any more about how these concerns might be resolved?
Lord Elis-Thomas: My Lords, to be even handed, as I supported the Government previously, I now take the opportunity to support the noble Baroness who leads for the Opposition on this matter. As she has emphasised, all who have been involved in the scrutiny of the Bill have expressed concern about this clause, its impact and the powers within it. I should like to add one other comment on the government amendments. This seems to me a very strange way to proceed in the making of primary legislation in relation to Wales.
I obviously accept that there has to be consistency in freedom of information legislation—I am not arguing on that issue—but it is not a satisfactory way to proceed where, on the one hand, we are creating a new public audit regime for Wales but, on the other hand, we are not able to establish a coherent primary legislative base on which to do so. Of course. I would say this, would I not, after the publication of the report of the Richard Commission yesterday?
Lord Thomas of Gresford: My Lords, the Government are still following English precedent whereas we were hoping that they would create something new in the Bill. I pay tribute to the Minister and to his colleague, Mr Don Touhig, for seeing us and for discussing our concerns. I hope that the noble Baroness, Lady Noakes, and myself have been able to emphasise that the concerns go much wider than ourselves and include the National Assembly and all those who have scrutinised the Bill.
At the moment, fitting for the season, I see some flowering, some blossoming, but I do not see the fruit. Before we leave this topic we ought to have a little more of the fruit in view before we decide what we should do.
Lord Evans of Temple Caking: My Lords, I thank the House for that short, interesting debate. In an otherwise good-natured discussion, and for the first time, the noble Baroness, Lady Noakes, made a point that was unfair. She said that everyone dislikes the clause with the exception of the Government. I had hoped that, following her meetings with Don Touhig and myself, as well as with others, she would know that the Government are worried about the clause and wish to solve the problem. As I described, the only way to solve it is to place before both Houses towards the end of the year an order that gives us, we hope, the result that I suspect that we all want. However, it is perfectly fair for the noble Baroness, Lady Noakes, to say, "You can't give me an absolute guarantee that what will be in the order will be what we want". As we are all heading in the same direction and all trying to find the "fruit" that the noble Lord, Lord Thomas of Gresford, mentioned, it is perhaps best for us to continue to think about the problem and come back to it at Third Reading. I cannot guarantee that we will be able to give a different response, because we are talking about the drafting of all order. It is not surprising that, on the first day of April, work has

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not started on an order that is due to be tabled at the latest by the end of December. However, we understand the problem and we will return to it at a later stage, but, as I said, I cannot give any guarantees that we will be able to go any further than I have today.
On Question, amendment agreed to.
Baroness Noakes had given notice of her intention to move Amendment No. 29:
Leave out Clause 54.
The noble Baroness said: My Lords, I shall speak briefly to Amendment No. 29, which would delete Clause 54, in light of the generous remarks of the Minister. He said that he would continue dialogue with the noble Lord, Lord Thomas of Gresford, and me between now and Third Reading. I hope that he is in no doubt that we are very concerned about the clause. We are concerned that we will be left with an English model that we do not like. We are trying to create a model for Wales. That is why we shall try hard to make some progress in finding out what the Government's intentions really are for Clause 54. That is also true for Section 49 if the Government wish to proceed with it, but our concern is Clause 54. I intended no disrespect to the Minister and to Mr Touhig, but it is true that the Government as a whole are clinging on to Clause 54. However, I recognise the considerable effort that the Minister and his colleagues have made.
[Amendment No. 29 not moved.]
Clause 57 [Orders and regulations]:
Lord Evans of Temple Guiting moved Amendments Nos. 30 and 31:
Page 37, line 30, leave out "The power" and insert "Any power conferred on the Assembly or the Secretary of State"
Page 37, line 32, after "Assembly" insert "or the Secretary of State"
On Question, amendments agreed to.
Schedule 1 [Best value audit and inspections]:
Lord Evans of Temple Guiting moved Amendment No. 32:
Page 45, leave out lines 30 to 32 and insert—
"(1) An auditor appointed by the Audit Commission who is carrying out an audit of an authority's performance plan under section 7 shall have regard to any provisions of a code of practice under section 8 which—

(a) are applicable to the audit, and

(b) are in force.

(2) An auditor appointed by the Auditor General for Wales who is carrying out an audit of an authority's performance plan under section 7 shall have regard to any provisions of a code of practice under section 8A which—

(a) are applicable to the audit, and

(b) are in force.

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(3) Subsection (4) applies at any time before there are provisions of a code of practice under section 8A to which an auditor appointed by the Auditor General for Wales is required under subsection (2) to have regard in carrying out an audit of an authority's performance plan under section 7.
(4) The auditor shall have regard to any provisions of a code of practice under section 8 which—

(a) are applicable to an audit of a performance plan published by an authority of a corresponding description to the authority, and

(b) are in force."

On Question, amendment agreed to.
Schedule 2 [Minor and consequential amendments]:
Baroness Noakes moved Amendment No. 33:
Page 55, line 32, at end insert ", or
( ) the functions of the Auditor General for Wales under sections 41 and 42 of the Public Audit (Wales) Act 2004"
The noble Baroness said: My Lords, I have the privilege of moving the final amendment on Report. In Grand Committee, I tabled both the equivalent of this amendment and one that would have given the Auditor General much wider powers to extend his examinations into England. I hope that the Minister will be pleased that I have chosen to take forward only the more modest of the two amendments on Report.
Amendment No. 33 would amend paragraph 34 of Schedule 2, which, in turn, amends the Audit Commission Act 1998. Specifically, it would confer an extra duty of co-operation on the Audit Commission. It would have to co-operate with the Auditor General in his value-for-money studies of Welsh local authorities under Clauses 41 and 42.
I explained in Grand Committee that the Auditor General will be the poor relation when it comes to local authority value-for-money audits. He has no right to examine English authorities, in contrast to the Audit Commission's right to examine Welsh authorities. Nor has the Audit Commission any duty to co-operate with him in respect of his functions in Wales. He can of course have access to data that the Audit Commission has published, but he has no right to unpublished data and the Audit Commission needs to make no effort to assist the Auditor General in his Welsh value-for-money studies.
I am concerned that that will weaken value-for-money studies in Wales. There may well be many issues that are important in Wales, but that are low on the priority list in England. If the Government will not give the Auditor General powers to investigate matters that go wider than Wales, they must surely ensure that he has sufficient access to data and other forms of co-operation that are relevant to his Welsh studies. The most natural source of that co-operation is of course the Audit Commission. I hope that the Government will be prepared to strengthen the regime for the Auditor General for Wales. I beg to move.
Lord Evans of Temple Gaffing: My Lords, Amendment No. 33, which affects the Audit Commission Act 1998, would require the Audit Commission to co-operate with the Auditor General, where appropriate, for the efficient and effective discharge of the latter's functions in undertaking studies under Clauses 41 and 42 of the Bill.

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As drafted, the Bill places a reciprocal duty to co-operate on both the Auditor General and the commission for the efficient and effective discharge of their own—I emphasise that it will be their own—functions in respect of those kinds of studies. The requirement to co-operate is placed on the initiator of the study. Our intention is to minimise the burden on the bodies subject to the study and to rationalise the efforts of the commission and the Auditor General. The duties are intended to ensure that, in proposing a study, each would consult and co-operate with the other on timing and exchange of relevant information, as well as explore the potential for joint working. That seems to be common sense.
The amendment would extend the duty placed on the Audit Commission. It would be obliged to co-operate with the Auditor General in studies initiated by him. It would not, however, extend a reciprocal duty to the Auditor General in respect of the commission's cross-border studies.
The Government have not sought to impose a duty on the Audit Commission or the Auditor General to co-operate with each other's studies. The firm expectation of the Government is that regulatory and audit bodies such as the commission and the Auditor General will collaborate closely on work of cross-border interest. The Bill encourages them to do so and pre-legislative scrutiny of the draft Bill demonstrated a clear willingness of both parties to do so. A duty could create operational difficulties in areas such as forward work planning. Ultimately, it may have a restrictive effect.
The Government agree, however, that there could be a benefit in a mutual duty, but it would need to be drawn more tightly than that proposed by the noble Baroness, Lady Noakes. For instance, a duty to provide relevant information to the other body for comparative use could be beneficial. The Government will give further consideration to that in discussion with the Auditor General and the Audit Commission. It will also look again at other co-operation duties in the Bill in the same light, such as those linking the Auditor General and the Commission for Healthcare Audit and Inspection. After that explanation, I hope that the noble Baroness will withdraw her amendment.
Baroness Noakes: My Lords, I am extremely grateful to the Minister for that very constructive response. I look forward to debating the issue again at Third Reading. I might perhaps point the Minister to the Health and Social Care (Community Health and Standards) Act 2003, which deals with mutual duties of co-operation between CHAI—the Commission for Healthcare Audit and Inspection—and the equivalent in Wales, which is the Health Inspection Unit for Wales, which is part of the Assembly. That may well provide a model for what we are seeking to achieve here. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

Education (Pupil Exclusions) (Miscellaneous Amendments) (England) Regulations 2004
2 p.m.
Lord Lucas rose to move to resolve, That this House calls on Her Majesty's Government to amend paragraphs 4 to 6 of the Education (Pupil Exclusions) (Miscellaneous Amendments) (England) Regulations 2004 (S.I. 2004/402), laid before the House on 23 February, to offer a greater degree of justice to the pupils concerned.
The noble Lord said: My Lords, I would like to start with a thank you and an apology. The thank you is to Mr Mark Stockdale and his team at the DfES, who have been extremely helpful in enabling me to understand all the systems and documents that lie behind the order. The apology is for even suggesting that paragraph 6 of the order represents a diminution of the rights of the pupil, when on a proper and careful reading of the instrument that it amends, it is clear that it provides an additional right for the pupil. It makes it less likely that the tribunal that sits in judgment on him will be in hock to the school or, at least, to the education system.
That said, paragraphs 4 and 5 continue to concern me. The original Bill did not really discuss what the standard of proof was to be in exclusion cases; that came to be something that was covered by case law. Probably the most relevant case was R v Headteacher and Independent Appeal Committee of Dunrayen school. Basically, relying on previous judgments in cases to do with anti-social behaviour orders, it said that when what the child was accused of was in effect a crime, the appropriate standard of proof was the criminal one. In paragraphs 4 and 5 we have a reduction of that standard of proof to a civil one.
In its raw form, that will not do—and it will not do for two reasons. First, a child and a school are essentially unequal: if it is a question of a word of a teacher against that of a child, the balance of proof favours the teacher every time. A child does not find himself in equal circumstances. Secondly, the consequences of exclusion can be extremely severe, particularly if the child has been accused of something that is really nasty, such as theft, racism or assault. It is hard to defend the idea that under those circumstances the simple balance of proof should be what governs the way in which a tribunal, an appeal panel or a headmaster reaches their decision. It needs to be something stronger to be fair and just. As the department has explained to me, it is intended that that should be so; that is set out in the current version of guidance that covers these things. However, it will lead to some problems.
First, there may be some human rights angles to the matter, although it may be some while before anyone decides to try their luck under the Human Rights Act. It is a question at base of whether, if a child is accused of something like theft and permanently excluded front school, whether it is a criminal or civil action. it seems to me to lie between the two. It is civil in that it was initiated by a civil process, and the proceedings

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were civil in nature. None the less, the child is charged with a crime, the consequences are punitive rather than preventive and it results in a form of conviction. Somewhere in between is probably where that will be adjudged to lie in Europe. I suspect that there will be a case one day, especially if we continue on the basis that the right standard of proof is the pure civil one.
Secondly, there is the question of how it will work out in practice if we adopt the Government's proposal that this should be the civil standard of proof, as ameliorated by guidance. The present wording of the guidance is as follows:
"The standard of proof to be applied is the balance of probabilities, i.e. if it is more probable than not that the pupil did what he or she is alleged to have done, the head teacher may exclude the pupil. However, the more serious the allegation, the more convincing the evidence substantiating the allegation needs to be".
In other words, we do not have a definite test but a sort of sliding scale. That is what the judges in the cases relied on in Dunraven were trying to avoid; they were trying to get to a simple test that would apply in all cases. Their feeling was that the criminal standard of proof was one that was, in practice, not far removed from the civil.
I am not sure that I share that view. If one expresses the criminal standard of proof as that the headmaster or the appeal panel have to be sure that the child has done something, that may in practice impose a higher standard than is appropriate. I believe that everyone would agree that, certainly at the lower levels of punishment—for example, in the case of a child being excluded for a few days then welcomed back into the school afterwards, having learned his lesson—-if a child is unfairly treated in such a case, it is just life. They may have been lucky to get away with half a dozen things beforehand—and then, of course, the one that they were caught for, they did not do. There is a certain level of rough justice in life that has to be accepted, in the ordinary process of a simple tribunal such as an exclusion hearing.
As an aside, it is well acknowledged that there is some improvement necessary in the standard of such tribunals. The Council of Tribunals already has this very much on its menu, to ensure that the standards of justice apply. In some of the cases that come through, there are some truly astonishing lapses. That is rather outside the course of this regulation, but it is something that needs to be improved in other ways.
People will be faced with a decision, first, on how serious the matter is. Depending on how serious the alleged offence is, they will have to decide where on the scale of civil to criminal the balance of proof should lie. There is a formulation in one of the cases, which introduces the word "distinctly". It says that the appeal panel should consider that it was "distinctly more likely" than not that a child had done what he was said to have done. In other words, that shifts the balance. That is what might be called the "enhanced civil standard of proof". To my mind, that sounds to be the right level to aim at. It is understandable; is clearly doing something to offset the inherent bias against a child; and
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is producing something that can be used consistently. I should like to see regulations that have that on their face, rather than relying on the rather indefinite graduated scale that is currently in guidance—and which I believe will lead quite quickly to litigation as to whether the appropriate point on a scale has been reached in a particular case.
It is an underlying principle of common law that if one is accusing someone of something really serious, one must have a decent standard of proof to go with it. I do not believe that, in secondary legislation, the Government are going to be able to avoid that. I believe that the judges will come back at them in a different way. Therefore, I urge the department to consider again the wording in paragraphs 4 and 5 and go for the enhanced standard. I do not believe that that will cause problems in the ordinary little matters that might lead to someone's exclusion. If a child has been a consistent misbehaver and there was a lot of evidence of it, it would appear distinctly more likely than not that he or she had done something in a particular instance. One is still in a world where hearsay, precedent and previous actions can all be brought into account. However, I think that it will produce something that is likely to be much fairer when you get to the more serious incidents.
However, if you are going to deal with the guidance as it is, that will have further problems. As a governor on an appeal panel, I would find that wording extremely difficult to deal with. I would be dealing with a parent and a child who have presumably been the cause of some trouble in the past and who certainly do not have an unblemished record, which is why the head has decided to throw the book at them. I am entirely uncertain where on this scale the standard of proof should lie. In the context of the kind of relationships that governors have with heads, it becomes very difficult to argue the case fairly.
If one is going to take a position against a head and say that he has not got it right, that he must look again at the matter and take the child back, he will have to be given somewhere to stand. He will need something to rely on, something which is set out explaining how the particular case should be treated. If we are going down the guidance route, I would urge the Government to provide governors on appeal panels with some kind of toolkit so that they have something to point to which says, "In cases like this that level of proof should be adopted". The word of a teacher against the word of a child is not a fair comparison in cases of severe import.
Let us take an example. A seven year-old boy with a statement of special educational needs who had not been receiving the support specified in the statement, and was presumably somewhat out of control, was accused of standing on a teacher's hand. He was excluded for 25 days. He was actually accused of "assault" on the teacher. He was accused of something very serious when it was just an incident between a boisterous seven year-old and a teacher. There were no other witnesses.
In those circumstances the right thing is not to accuse someone of "assault" but to accuse them of "inappropriate behaviour", which would merit a lesser sentence. If the accusation and sentence are that serious then the proof ought to be greater. There ought to be some clement suggesting that one could say, "For one reason or another. I believe that the child intended to hurt the teacher". In other words, there should be additional evidence going beyond the incident in question. That could be picked up by illustrations or by more generalised wording. Personally, I find illustrative cases helpful. However, they can become too specific, so that one tries to relate one case to another when one should be taking a more general judgment. But I am sure that producing a toolkit is something that the department would find itself able to do with its customary skill.
Indeed, if we are going down that route, there are other areas that could also be covered, such as how to prepare witness statements and school incident reports. The use that might be made of anonymised statements has come up in appeals a number of times. That was a relevant issue in the Dunraven case where the pupil concerned had no means of cross-examining or questioning and no access to anonymous statements that the appeal panel had from other pupils.
One could also look at the procedures to be followed in interviewing pupils, both alleged perpetrators and possible witnesses, and how to deal with the reintegration of permanently excluded pupils. Other such matters might usefully be dealt with in guidance to provide governors, who have to stand up for the public rights of the child, with sufficient material to be able to argue against the head without having to get personal about it, without having to say, "On this occasion I have to distance myself-, and with the head understanding that that is the case. If we are going down the guidance route, some such sorts of supports would make a great difference. However, I return to my basic point. I would like to see in regulations the enhanced civil standard of proof. That would make things much simpler, much cleaner and much fairer. I beg to move.
Moved to resolve, That this House calls on Her Majesty's Government to amend paragraphs 4 to 6 of the Education ( Pupil Exclusions) (Miscellaneous Amendments) (England) Regulations 2004 (S.I. 2004/402), laid before the House on 23 February, to offer a greater degree of justice to the pupils concerned.—(Lord Lucas.)
2.15 p.m.
Lord Shutt of Greetland: My Lords, I rise to speak to my later Motion to pray against Statutory Instrument 2004/402. As my noble friend Lady Sharp of Guildford cannot be here today, I am speaking in her place. I declare an interest as a former member of Calderdale Council education committee. I have also been a governor of the Brooksbank School. Elland, since 1974. I stood down as chairman shortly after coming to this place but am now an associate governor.
I shall try not to be too repetitive, bearing in mind the comments of the noble Lord, Lord Lucas. The statutory instrument mainly concerns the regulations
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in respect of pupil exclusions and the qualifications required for membership of appeals committees in respect of such exclusions. It comes at a time when school exclusions are rising again. From a peak of 12,668, in 1996–97, they decreased to 8,323, in 1999–2000. The last available figure, for 2001–02, was an increase to 9,535. I need not say much about the downside to exclusion, which can place one on the road to unhelpful behaviour throughout life.
Regulation 4 provides that where the head, school governors or appeals committee are moving towards excluding a pupil, when the facts are established, the case should,
"be decided on a balance of probabilities".
In 2003 the Court of Appeal considered the case of R (on the application of S) v the Governing Body of YP School. The pupil concerned was accused of an offence that would normally be a criminal offence. It was decided that the head and governors had to ensure that the standard of proof used was that which applied in a criminal case—beyond reasonable doubt—rather than the standard of "on the balance of probabilities". It is therefore important to ask why there is a change in the regulations and guidance notes.
I have had some involvement with difficult and challenging pupils and I know that exclusion can be the precursor to a pupil's start on the road of an antisocial lifestyle. Although I am sure there are more than four elements in a case, there are four main elements: the pupil, the school, the parents and the wider community. The pupil could be quite happy to be excluded, whereas the parents and the community want to see him in school. The position of the school is crucial. I have looked carefully at the 65 pages of guidance notes. Guidance Note No. 17, on page 7, states:
"The standard of proof to be applied is the balance of probabilities, i.e. if it is more probable than not that the pupil did what he or she is alleged to have done, the head may exclude the pupil".
It continues:
"However, the more serious the allegation, the more convincing the evidence substantiating the allegation needs to be".
I would turn that on its head. The less serious the allegation, the less convincing the evidence needs to be. However, the result could still be that that pupil is excluded. I therefore do not believe that that guidance note is very helpful.
If the potential exclusion is alongside a criminal investigation, should not the school's procedures and the criminal procedures be the same? Perhaps school law and criminal law are not the same, but they will have to deal with the same alleged offence. Is it not therefore reasonable that heads, governors and appeal committees work on the same basis as that on which the jury will have to work at a later stage? It is for those reasons that I pray that the statutory instrument be annulled. The regulations reduce the burden of proof, and the guidance notes are not as helpful as they should be.
I am sure that my second point can be disposed of quite quickly. Those concerned about those matters have also been concerned about the make-up of the

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committees. Of course, the committees apply only if there is an appeal to the heads and governors' exclusion. Does the Minister agree that the make-up at the moment is that there is an independent chairman, one or two serving heads, and governors who actually could be teachers or heads? Under the regulations, that becomes an independent chairman, one or two serving heads, and one or two experienced governors—but those experienced governors must not have been teachers or heads in the preceding five years. If I am right in that, that group of people might look less like what we might call a heads support group, and more like a balanced team of people with relevant experience. There has been some concern about that, and I should be grateful for clarification.
The Earl of Listowel: My Lords, I have considerable concerns. Yesterday in the Chamber, in response to a Question on the imprisonment of Mrs Valerie Amos—
Noble Lords: Oh!
The Earl of Listowel: I am sorry, my Lords; I did not mean that. In response to a Question on the imprisonment of Mrs Amos, a Minister said that there was justification in imprisoning parents for not sending their children to school, because when children miss school it can have terrible consequences in their future lives. I appreciate what the Government have done in terms of improving the alternatives to mainstream school for children who are excluded. However, very often, that is still not a full school day. The time is shorter, and they do not necessarily get the full school timetable. I watch the matter very carefully, and hope to see that the Government are consistent in what they do on it.
I also note that, in the Children Bill, there is a new and very welcome duty on local authorities to promote the education of children in care. We know in the past how poorly they have been catered for. Children in care contribute highly to the number of children excluded from schools, so I watch that matter with very great concern, too. I recognise the difficulties involved. I welcome the reduction overall in exclusions from school since the Government took power, but I am concerned about the current rise.
Baroness Seccombe: My Lords. I thank my noble friend Lord Lucas for bringing the matter before the House today, and for the very useful debate that has followed.
The question of discipline in schools and expulsion is one that is particularly timely when one reflects on the case of Abdul Ali reported in the newspapers this week. The Opposition are concerned by the number of legal challenges to schools and the teaching profession. They are not only hugely costly in financial terms but, more importantly, undermine the ability of teachers to exert authority in the classroom and within school grounds. Many teachers have found their careers and reputations undermined and in some cases ruined by
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what could be termed trivial lawsuits. We would like to see a root-and-branch review of the law so that it works with teachers rather than against them.
School trips and excursions are under threat in case people claim compensation when things go wrong. I consider it a gross waste of public resources for accidents that in my day were considered par for the course. I feel that there should be a return to the commonsense position that accidents do happen and should be settled by mediation, not dragged through the courts. Can the Minister assure us that she will carry out a comprehensive review of how legal challenges, often introduced with the best intentions. have simply made teaching more difficult, worrying and expensive? In all probability, the only winners in such situations are the lawyers; everyone else is a loser.
Abdul Ali was expelled for suspected arson, and now stands to be awarded £10,000 due to the hard work of Cherie Blair as counsel. Whatever the merits of the case, where will the money come from? What will all the other students have to forgo to settle the bill? The decision has left teaching unions aghast, and leaders have warned that the case could open the floodgates to other claims. The National Association of Head Teachers has said that it is merely,
"another example of the way in which schools are being battered by legal claims".
Will the Minister please provide us with the figures of money lost from school budgets in such a way for the past year compared to 10 years ago?
Of course I understand the points made by my noble friend Lord Lucas regarding the raising of the standard of proof before a pupil can be expelled. It is essential that no pupil is expelled who should not have been, but I believe that we need a more fundamental revision to ensure that we have the right balance between the rights of pupils and head teachers.
A basic right to education under the European Convention on Human Rights is all very well, but when just one pupil's actions disrupt the education of all the others, or when they limit the teachers' authority and ability to teach—as in, for example, the case of two teenagers expelled from Glyn Technology School in Surrey for sending death threats to a teacher in 2002—head teachers should be able to exercise authority. Children will not comply with rules unless they know where the boundaries are and that rules will be enforced by disciplinary action. Schools cannot be efficient and provide sound education unless children and their parents respect the rules that apply.
Baroness Andrews: My Lords, I am extremely grateful to all noble Lords who have spoken. As always, they brought a wealth of experience, from the associate governor to the close connections that other noble Lords have with the education system, and with certain groups of children in the case of the noble Earl, Lord Listowel. The noble Lord, Lord Lucas, opened the debate with very thoughtful remarks in terms of the rights of the child, and we must concentrate on getting the balance right, as the noble Baroness, Lady Seccombe, concluded in her remarks, between the absolutely legitimate rights

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of teachers in school and the concern and care that we must have for the proper environment of the school, in which teaching and learning can take place with proper behaviour and discipline.
The regulations and Motions give us an opportunity to reflect on some of those issues, but the burden of my remarks this afternoon will be to address the issues raised specifically by the noble Lords, Lord Lucas and Lord Shutt, in relation to the regulations themselves.
I am always impressed by the care taken to ensure that pupils should be seen to have a fair deal. That certainly came out very strongly in what the noble Earl said. Let me also stress that the Government are equally concerned that pupils should be treated fairly and that head teachers can apply the law fairly and consistently to all pupils and staff. I hope that I will be able to give the reassurance the noble Earl seeks. All we are doing in the regulations being brought forward is to restore the status quo. There will be no reduction in rights for pupils or in the fairness with which they are treated. Rather, the right balance will be struck between those rights and the rights of head teachers to make proper judgments which only they, as professionals, can make.
The noble Lord, Lord Shutt, remarked on the rather "heavy" expression used in paragraph 17 about exclusion. It is very important to stress, as does the whole tenor of the guidance itself, that exclusion—in particular permanent exclusion—is an extremely serious matter for both the child and the school. No head teacher can or would want to take it lightly. The 64 pages of guidance referred to make it clear that, for example, exclusion is not a decision to be taken in the heat of the moment. The decision is not to be taken off the cuff. Often it is taken only after many other avenues have been explored and exhausted. It is taken after investigation and the consideration of evidence which children themselves can bring to support their own cases. Moreover, people can speak on their behalf. There is no inherent bias against the child. Only in exceptional cases would a head teacher think it better to exclude a child than to work even harder to try to keep that child in the learning environment of school.
When considering the regulations, we need to think about the chronology which has led to this development. The regulations before us seek to define for the first time in legislation the standard of proof that should be used in exclusion cases. Until recently, our guidance has advised that decisions should be made on the "balance of probabilities" which, I should say to the noble Lord, Lord Shutt, is not a new term. It has been in use for many years. However, previously it has been set out only in guidance.
Exclusion decisions on this basis have long been made successfully; they are tried and tested. Head teachers know what the term means and are able to apply it successfully. It has also been defined in decisions of the courts over a number of years, including in exclusion cases. The concept was set out in guidance issued by the Secretary of State in January 2003 and all who make decisions on exclusion are required to have regard to it.
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Turning to the cases cited by the noble Lord, I would be interested to know whether the guidance in those cases had been followed properly.
However, as noble Lords are aware, last summer the Court of Appeal considered an exclusion case related to the theft of a school guitar. The judgment arrived at was whether the pupil was accused of an act which is also by definition a crime. It was advised that the head teacher should apply the criminal standard of proof; that is, he or she should be satisfied beyond all reasonable doubt that the pupil actually did what he was accused of. Since July 2003, rather than by abiding by the previous standard of the balance of probabilities, head teachers have had to apply a different standard of proof, although the balance of probabilities has continued to apply for other cases. I should say that this change in the law has caused considerable concern to the Government and, just as important, to head teachers as well.
To deal with the change brought about by the judgment, the Government issued temporary guidance advising head teachers and panels of the change in the standard of proof. However, we made it clear at the time that we recognised that the change was liable to create practical difficulties and that new regulations would be required. The effect of the amending regulations before the House would be simply to return us to the standard of proof that has long been familiar and well understood. It has been tried and tested without complaint, a point which I cannot stress too much. The changes proposed are supported by nearly everyone who responded to our informal consultation earlier this year, including head teacher associations and, significantly, the Council on Tribunals.
Before I deal with the reasons for restoring the status quo and outline the difficulties that have been created, I shall take this opportunity to respond to the points raised by noble Lords who have addressed wider issues than exclusion in the context of schools. I shall explain briefly the better strategies that we are employing in managing school behaviour. I want to pick up in particular on the concerns expressed by the noble Earl, Lord Listowel, and the noble Baroness, Lady Seccombe. We are always aware of the need to support teachers and pupils and to provide a balance of support. We are investing £470 million in a wide-ranging Behaviour and Attendance Strategy which will improve standards of behaviour and develop and encourage the use of alternatives to exclusion. This is an extremely important investment, providing a more positive way of approaching the whole subject of behaviour and discipline in schools.
However, exclusion has to continue to be one of the sanctions for serious misbehaviour of the kind referred to by the noble Baroness. It must be available to head teachers who need to be able to arrive at appropriate decisions. They need to strike a balance between the interests of the excluded pupil and the wider interests of the school community.
Undoubtedly we are making significant progress. The noble Earl referred to the reduction in the number of exclusions. Although we are seeing a slight rise at

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the moment, we have to set that in the context that exclusions are now 25 per cent below the peak reached in 1996–97, at which point the rate was unacceptable. We set a target to reduce the level by one third, which was achieved a year early. However, we have not set any more national targets because, to be frank, we believe that those targets have fulfilled their purpose. It is time to move on to a more proactive, preventive and inclusive policy. One element of that has been the effort to bring local education authorities together in workshops so that they can share the policies that are currently working in schools, those that help to prevent exclusions.
Another part of the strategy is to provide support for pupils themselves through learning mentors, whereby we can help to diagnose the difficulties that cause such frustration not only to children's learning, but also in their social and personal lives both in and out of school. Alongside that—given the noble Lord's interest in statistics, I am sure he will be pleased by this—we have made progress in establishing the reasons for exclusion. We have started to collect information about fixed periods of exclusion, for which no figures were available. From the summer term of 2003 we have been collecting termly exclusions data from local education authorities and we will be able to publish that information for the first time this May. We hope that the data will be interesting and helpful.
We have also made further progress on strengthening the rights of parents to appeal, along with the rights of excluded pupils to receive an education. Over the past year, 1,100 have taken advantage of the right to appeal, with the result that one quarter of schools' decisions were overturned. Equally, all noble Lords will agree that even when pupils are excluded from school, they are not excluded from education. Since September 2002, all local education authorities have been committed to providing all permanently excluded pupils with a full-time education. I am delighted to say, because it is a great credit to LEAs, that all but two are now delivering against that commitment. Moreover, the DfES is working closely with those authorities which are experiencing difficulties.
We are also supporting schools in their efforts to achieve a better balance between the interests of the individual pupil and those of the school by reforming the legislation relating to exclusions, which moved from primary into secondary legislation in January 2003.
The noble Lord, Lord Shutt, asked about the composition of the appeal panels, a point which I shall address in detail later, but let me say for now that they are made up of a serving or recently retired head teacher, a school governor and a lay person. That restores the kind of balance we want to see. Moreover, panels cannot overturn decisions purely on a technicality. As long as the head teacher has excluded a pupil for good reason, the decision cannot be overturned. Finally, we are working with the Council on Tribunals. The noble Lord, Lord Lucas, said that he felt that the council was beginning to be satisfied with what is being achieved.
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We very much want to improve the standard of procedures and decision making in appeals panels. Training material is available for panel members and we are developing further materials for clerks and the chairs of governing bodies, along with independent appeal panels, which will become available in May. Those materials will stress the need for panel members to be trained. I take the point made by the noble Lord about the form of information and training that might be useful. It is one that I shall take back to the department to think about. However, it is not enough to provide material and training; it is vitally important to be interactive. We are planning to provide clerks with guidance on arranging workshops to follow up on and reinforce those messages.
I have taken a little time to stress the positive because to discuss exclusion without putting it into context is slightly misleading. I turn now to the regulations and the arguments which have been put forward. As I have said, we are concerned that pupils should be treated fairly and that head teachers are able to apply the law equitably to all pupils. The problem is, frankly, that the Court of Appeal judgment in 2003 made it more difficult, and our instincts were confirmed by the teaching associations. These regulations, which have been challenged, return us to the common-sense standard of proof—the balance of probabilities. As I have said, this concept is, for the first time, firmly within the statutory framework. backed up by guidance, so that everyone is clear how it operates. This should guarantee consistency.
Let me explain why we see it as so important to restore this in terms of the responsibilities upon head teachers. All decisions on exclusions are serious and need to be based on evidence and to be fair and proportional. Head teachers have no formal legal training, but they have long experience of dealing with bad behaviour, and they can distinguish between bad behaviour and criminal behaviour. They know what is serious in terms of the experience of the child and the school. In terms of their own experience, head teachers need to be able to make prompt and fair decisions in response to bad behaviour which warrants removal from the school site. But schools are not courtroom settings. We think it is unreasonable to expect head teachers, governors and independent appeal panels—none of whom has the powers of the police or courts—to apply the criminal standard of proof of "beyond all reasonable doubt" to exclusion cases.
First, head teachers are unable to gather evidence from court witnesses in the way that a court of law can. But they need to be able to make prompt and fair decisions. Secondly, we need to remember that these are head teachers dealing with badly behaved schoolchildren. If they have to apply alternative standards depending on the nature of the incident. anomalies can arise. Good practice over many years supported by guidance has shown that it is relatively simple to exclude a disruptive pupil on the balance of probabilities. A more stringent criminal standard of proof would sometimes mean that a head teacher, even with evidence that would be extremely convincing, would be unable to exclude a pupil who was accused of something much more serious in the context

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of school life and behaviour. These are the very pupils, regrettably, who sometimes need to be excluded from school for a short or even a long time.
If we had not amended the regulations, we would have left head teachers, governing bodies and appeal panels in a confused and untenable position. They would not be clear whether the judgment applied to permanent exclusions or all exclusions or whether it applied to acts by children of all ages or only those above the age of criminal responsibility.
In summary, it introduced the standard of proof for cases of serious misbehaviour which we sincerely believe, with the support of head teachers, cannot reasonably be expected to apply. In the exclusions context, the balance of probabilities means, as has been said, that to justify exclusion it must be more probable than not that a pupil has done what he or she is suspected of, but this is not a one-dimensional test.
Serious misbehaviour is more rare than trivial misbehaviour, so it is inherently less probable that a pupil has done something serious than something trivial. In the case of serious misbehaviour, this means that a head teacher needs to take account of wider evidence of behaviour patterns and attitudes in general to establish the balance of probability.
So alongside the regulations, we have decided to issue new guidance. Let me assure the noble Lord, Lord Lucas, that we have not been complacent in working out this guidance. Like the 2003 guidance, it reflects the Court of Appeal's judgment in 2000—R v Dunraven School—which applied guidance from the House of Lords Judicial Committee in the case of Re H in 1996. Subsequent cases clarified that by explaining that within the balance of probabilities standard, most serious cases required more evidence. I say to the noble Lord, Lord Shutt, in particular, that our 2004 guidance, which he has quoted, goes beyond the guidance we published in 2003. It advises that the more serious the allegation, the more convincing the evidence needs to be.
The noble Lord, Lord Lucas, spoke about his concern at some length. He feels that it might lead to injustice for some pupils. We do not want our new guidance to leave any teacher in any doubt about how to apply the law. Although the guidance has been published online, we are happy to have yet another look at it and expand further on what establishing the balance of probabilities involves in relation to the nature and the scope of the evidence. I am happy for the noble Lord to have sight of that. I hope that that will reassure both him and the noble Lord, Lord Shutt. When we have done that, the guidance can be amended online and in hard copy.
With those reassurances, I hope that both noble Lords feel that we have not only understood their concerns but have also responded to them in the spirit they want. This has been an extremely useful debate—we have had an opportunity to think again. Taken together. the measures enable head teachers to make decisions on exclusions more simply and fairly.
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If the noble Baroness, Lady Seccombe, will excuse me, I will not pursue her reference to the case of Abdul Ali. We certainly take her point and note her concerns about that.
I hope that noble Lords are also convinced that our approach of putting this difficult and sensitive area of exclusion within a very positive context of improving behaviour is the right one. I hope that they will therefore be able to withdraw their Motions.
Lord Lucas: My Lords, I am greatly encouraged by what the noble Baroness has said. There are still some points of disagreement between us, but I think they can be left to work out in time.
Many of these troubles arise from bad procedure and had behaviour in the process of exclusion. The work that the Government are doing to improve and to continue the education of appeal panels will work back down to heads. No one likes to be overturned on appeal, so heads will also follow the procedures. I think that that was the problem with the Ali case. The governors did not follow the proper procedure, though not in the original exclusion; they did so by continuing the exclusion when there was no longer a case. It should be possible to see much less of that sort of basic, idiotic injustice. I hope that we will see a great deal of gradual and consistent progress.
I absolutely welcome what the noble Baroness said about collecting information on the reason for exclusions. If you know what is happening in a system, it becomes possible to see trends and to focus on what can be done better. Using other routes to support pupils so that they stop short of committing the crimes or doing the things which will cause exclusion must be the right way to go.
I entirely support what my noble friend Lady Seccombe said about the ideal circumstances. That does, however, depend on a basic fairness in the system and on a very good system for picking up pupils who have been excluded and doing other things with them. I can think of several close friends who were expelled one, two or three times in the course of their schooling. That, though, was in independent schools. There is a very strong parental resource in that case—an ability to do something about expulsion. Among good schools there is a recognition that you may have got chucked out for breaking the rules but they will do everything they can to get you into another school on the basis that you will have learned your lesson, or will find a school where the rules are more suited to your particular bent.
We need, as a state, to provide the resources to make up for pupils in state education so that they can find themselves on a constructive path. If that system was on song, it would be thoroughly constructive and would work really well. It would remove a lot of the worries that lie at the base of the concerns that I had—and still have, to some extent—with the regulations. However, the noble Baroness has done enough to assuage my concerns. I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.
Lord Shutt of Greetland had given notice of his intention to move, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 23 February, be annulled (S.I. 2004/402).
The noble Lord said: My Lords, I thank the noble Baroness for the fulsome response she has given to the debate. I look forward to the further refining of the draft guidance notes that have been produced.
Motion not moved.

Energy Bill [H.L.]
2.49 p.m.
Lord Triesman: My Lords, on behalf of my noble friend Lord Whitty, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Triesman.)
On Question, Motion agreed to.
Debate resumed, after Clause 157, on Amendment No. 217H.
[Amendment No. 217L, as an amendment to Amendment No. 217H, not moved.]
Lord Triesman: My Lords, in the debate on Report on 30 March I said all that needed to be said about Amendment No. 217H. Two amendments were made to Amendment No. 217H on that occasion. I have already moved the amendment.
On Question, Amendment No. 217H, as amended, agreed to.
Clause 158 [Payments of sums raised by fossil fuel levy]:
Lord Triesman moved Amendment No. 218:
Page 122, line 16, leave out from "question" to "and" in line 18.
The noble Lord said: My Lords, Clause 158 enables Scottish Ministers to make use of the Scottish Fossil Fuel Levy surplus to promote the use of renewables in Scotland. Subsection (3) as currently drafted provides that Scottish Ministers, in making budget proposals to Parliament in respect of the surplus, should subtract any amount that has already been spent in the year in question. However, since the budget proposals were made to Parliament before the start of the financial year in question, that subtraction becomes redundant. Amendment No. 218 simply tidies up Clause 158(3) by removing an unnecessary calculation. It is a simple amendment for that simple purpose. I beg to move.
On Question, amendment agreed to.
Baroness Miller of Chilthorne Domer moved Amendment No. 218A:
After Clause 158, insert the following new clause—
"MONIES RAISED FROM NON-FOSSIL FUELS OBLIGATION CONTRACTS
(1) The Sustainable Energy Act 2003 (c. 30) shall be amended as follows.
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(2) In section 7 (use of certain money held by Gas and Electricity Markets Authority)—

(a) In subsection (2) omit from "total" to end of subsection and substitute with "amounts directed each year to be paid under this section shall be divided between Renewable Energy projects and Energy Advice and Demonstration Centres."

(b) After subsection (2) there is inserted—

"(2A) Subsection 2 shall apply for six years following commencement of this section, after which the matter will be subject to review by Parliament.""
The noble Baroness said: My Lords, I notice that the Minister has made a small adjustment to the clause that is of interest to us. The amendments that I have brought back in a different form from those proposed in Grand Committee address the issue of the moneys raised from the non-fossil fuel obligation contract. When we discussed this in Grand Committee we learned, first, that the total amount in the pot was £122 million, of which the Sustainable Energy Act 2003 has made provision for up to £60 million to be spent on renewable energy projects. It remained unclear from the Minister's reply how the rest, given that it is now the greater part of that amount, would be spent.
As we have a large amount of money, either doing nothing or about to be redeemed by the Treasury, and, particularly, given that in between our consideration in Grand Committee and on Report the results of the Powergen survey were released—they showed that 86 per cent of consumers were aware of the environmental impact of CO2 but that only 39 per cent were ready to change their domestic energy decisions—it is clear that a large number of people need much more help with making practical decisions on saving energy.
In addition, since Grand Committee, there has been a debate in this House and a television programme which showed that we should be worried about the energy gap. For those reasons I have decided to combine the surplus moneys that the Government have not allocated from the non-fossil fuels obligation contract with the need for energy advice and demonstration centres, so that there is easily accessible, practical advice on what people can do in their homes to save energy and invest in new technology—such as microgeneration—which, as a result of amendments in your Lordships' House we now have on the face of the Bill. My amendment proposes that easy access to much more than Internet advice, which is all that is available now, needs to be provided in the high streets of towns with a population of more than 40,000—not every high street in every village and small town can have an energy advice centre.
In Grand Committee we observed that the Energy Saving Trust offers admirable advice as do the power suppliers, to some extent. However, that advice is not comprehensive, it is not available on the high street and is not readily available beyond the Internet.
The noble Lord, Lord Triesman, when he replied on 1 March, said, at col. GC 198, that he could not accept the amendment in that form and that, in any event, legal advice was that the provisions of the Sustainable Energy Act do not permit the use of further moneys beyond the purposes that are specified. Therefore, my current amendment seeks to free up the purposes of the

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money in that pot, as long as it achieves the Government's ultimate aim, which is the reduction of CO2 emissions. Rather than always concentrating on the means of achieving, as the Government have done—perhaps they have been further complicated—I am interested in the end result. The success of that end result is largely dependent upon consumers. If they are unable to access sufficient advice regarding the availability of technology and how that might be applied in their own homes, given that most people do not live in newly built homes, the Government have no hope of achieving what we need—a dramatic reduction in CO2 emissions. Therefore, I beg to move.
Lord Ezra: My Lords, I have no hesitation in supporting my noble friend's amendment, particularly as it is an essential part of the Government's energy policy that there should be energy saving in the home. If there are no advice and demonstration centres of the type that she has recommended, how can people be properly advised, given that the old gas and electricity showrooms have nearly all disappeared and that there are now no major centres where people can be informed about energy saving? Independent arrangements that could be financed out of the funds that are now available would be an important part of the Government's plan to improve energy efficiency in the home, on which they are shortly due to be producing a report. If it does not include advice and demonstration centres, it could, in my opinion, be extremely deficient.
3 p.m.
Lord Jenkin of Roding: My Lords, there is a great deal to be said for the amendment. Now that most appliances are bought otherwise than through electricity or gas showrooms—for example, department and cut-price stores—it is difficult for people to obtain the information they need. They may buy a new washing machine and ask, "How can I be sure that it will use less energy?". The message is slowly getting across that there is a great need to reduce energy consumption.
I welcome what the noble Baroness said about keeping one's eye on the main ball, which is the reduction of carbon dioxide emissions. As I have said several times during proceedings on the Bill—-and it is good to hear it from the noble Baroness—the Government need to pay more attention to the objective of the exercise, which is to reduce CO2 emissions, than on the number of windmills to be erected.
I want to ask the Minister the same question I asked in Grand Committee. If the fund is to be available in the terms of the amendment for renewable energy projects as well as for advice centres, is there not a case for it being available as a last resort if the hole in the buy-out fund cannot be filled in any other way? It has been accepted by all that the buy-out fund is deficient because of the insolvency of firms which need to contribute to it so that the money can be distributed as subsidy for the renewable fund. Therefore, in the interests of promoting renewable energy, the fund should be available for that purpose.
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We have not yet had the Government's final answer on how the problems relating to that will be dealt with. We have had various amendments to the Bill and they have been welcomed as far as they go. However, the Government have not found a way of filling the hole. To have the fund available for such a purpose would ensure that those investing in new renewable energy projects will receive the payments which they believed they would receive when they embarked on the investment.
The fact that there was a hole in the fund has reduced the ROC payments, and that has not been resolved. Why cannot this fund be used for that purpose?
Baroness Byford: My Lords, I thank the noble Baroness for tabling the amendment. I referred to the demonstration centres at Second Reading and I still believe that they have a valuable role to play. However, I am sure that the noble Baroness will be disappointed to hear me say that the amendment as it stands is too specific. I would rather it had been wider, but the noble Baroness can return to the matter at a later stage.
I apologise to noble Lords that I was not present in the Chamber when today's debate began. I was in my office when suddenly the business collapsed. I have not come down the stairs so quickly in a long time and now nearly all my energy is used up.
I have great sympathy with the need and drive to save energy. We have shared that objective during the passage of this Bill and the waste and water Bills. The noble Lord, Lord Whitty, is not in his place, but I believe that the noble Lord, Lord Triesman, is getting the impression that whenever we take Bills through the House we want to try to conserve the precious gifts that we have—in this case, water.
Baroness Miller of Chilthorne Domer: M y Lords, I thank the noble Baroness for giving way. I apologise if in introducing the amendment I did not sufficiently express the fact that I do not intend that the surplus money should go only into energy advice centres. It should be divided between renewable energy projects and such advice and demonstration centres. I wonder whether on that basis she feels more inclined to support it.
Baroness Byford: My Lords, I had read the amendment and that was the conclusion to which I had come. I am pleased that the noble Baroness has clarified the position with other Members of the House.
Like my noble friend Lord Jenkin, I firmly believe that the energy gap is real and that in some ways moneys will be made available to us. It is a missed opportunity if we do not encourage people to realise that there are other ways of using energy efficiently. In theory, I support that, but even accepting what the noble Baroness said, I have reservations about the amendment. However, that does not stop me supporting the sentiments which lie behind it and adding weight to them.

1501
I want to pose two questions. It was suggested that the current position is not comprehensively spread. In other words, the ways in which we inform the general public are not sufficiently strong. First, if that is so, do the Government have any thoughts on how they could be improved? Secondly, if the money is not to be used to facilitate that, what is it to be used for?
Lord Davies of Oldham: My Lords, I am grateful to the noble Baroness, Lady Miller, for introducing the amendment. She will recognise that the Government have considerable sympathy with the objectives for which she is striving. I recognise support in other parts of the House for the amendment.
Let me make it clear that we have only recently legislated, through the Sustainable Energy Act, on the use of £60 million of the England and Wales fossil fuel levy surplus, which is the subject of the amendment. We allocated that £60 million for the promotion of energy from renewable sources. This meets the commitment the Government made in the Energy White Paper to increase funding for renewables capital grants by a further £60 million. The noble Baroness will therefore see that it is difficult for us to accept the amendment because we have already allocated a substantial part of the sums and are largely fulfilling her broad objectives in the amendment.
We appreciate fully the value of local centres advising on energy efficiency. The burden of the noble Baroness's remarks and those of the noble Lord, Lord Ezra, was the importance of spreading among householders an understanding of the way in which they can make a contribution to the advancement of energy efficiency.
The Government already fund the Energy Saving Trust to manage a network of energy efficiency advice centres. There are already 52 such centres throughout the United Kingdom—44 in England, Wales and Northern Ireland and eight in Scotland. The centres provide free, impartial advice on energy efficiency to households. A number already receive funding from the DTI's renewable energy advice service in England and from the Scottish Executive in Scotland to provide advice on renewables.
The programme is a dynamic one because consideration is being given by both Defra and the Energy Saving Trust on how best the advice the centres provide may be extended. Defra is already discussing the way in which local sustainable energy advice centres may evolve to cover energy efficiency, renewable energy and transport.
We are also tackling energy efficiency in a range of ways. We went through many of these points in Committee but perhaps they bear elaboration at this stage. We have, for example, the Market Transformation Programme; Action Energy, run by the Carbon Trust; the Carbon Trust's Innovation Programme; and the Enhanced Capital Allowance Scheme, introduced by the Government in April 2002 as part of the climate change package, offering tax incentives to firms investing in an approved list of energy-saving technologies. In addition,
1502
we shall soon publish our combined heat and power strategy to 2010. I know that it will be of some comfort to the noble Lord, Lord Ezra. that the strategy will underline our belief, which we have sought to reiterate at various stages in the Bill, that combined heat and power has an important role to play in moving the UK towards a new energy-efficient economy. The noble Lord has constantly reminded the House of the importance of that. The support measures set out in the strategy will significantly help combined heat and power and will reaffirm the Government's commitment to their target of at least 10 gigawatts of installed good-quality CHP by 2010.
Similarly, we have demonstrated our commitment to renewables through our renewable energy policies and programmes and we continue to do so. The £60 million that I mentioned in my opening remarks is mainly for capital grants, which will help to drive forward renewables deployment. Some of the funding will be used to support offshore wind developments. These have an extremely important role to play in the achievement of our 10 per cent renewables electricity target by 2010. Thus, we shall obtain real added value for renewables from that additional funding.
In Committee, we explained extensively the fossil fuel levy. At present, the fund for England and Wales stands at £134 million, and there is now a £60 million limit on amounts that the Secretary of State can direct for use on renewables. I want to point out that no decisions have yet been taken on the use of the remainder of the fund in England and Wales, apart from the need to keep a £30 million reserve. Further additions to the fund from the future auctions of NFFO ROCs are expected, and consideration will be given to the use of future sums in the fossil fuel levy fund in due course.
The noble Lord, Lord Jenk in, asked—not for the first time in the House—whether some support could be given to the renewables obligation. We do not believe that we should take the steps he recommends to make good the shortfall. The renewables obligation is a market-driven mechanism. Any intervention by the Government in this way would be a direct intervention in the free market in relation to ROCs, and that might have serious consequential effects on the perspective which might develop in respect of the ROCs market. The noble Lord outlined with great force the gap which occurred some months ago and which caused real difficulties, as we recognised at the time. But we would be concerned about the precedent that would be set if the Government intervened in the way that he recommends with what would effectively be a direct subsidy. Therefore, I do not believe that that is a way forward.
I hope that the noble Baroness, Lady Byford, has been reassured that we are committed to making an extensive, geographically wide-ranging provision of energy efficiency advice. I emphasise that, out of the fund of £60 million, £30 million is to be held in reserve. There is a whole range of potential demands, but it will be recognised that the Government are at one with everyone who has spoken in this debate. We shall need to concentrate significant resources on 1providing

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support for, and understanding of, the role which renewables can play in the energy market if we are to hit the targets that we set for 2010. I hope that, with those reassurances, the noble Baroness, Lady Miller, will feel able to withdraw her amendment.
3.15 p.m.
Baroness Miller of Chilthorne Domer: My Lords, I thank noble Lords who have spoken in this debate: my noble friend Lord Ezra, the noble Lord, Lord Jenkin, and the noble Baroness, Lady Byford. I also thank the Minister for his reply. I agree that the DTI is already doing a considerable amount to change the potential for renewables and their development on the ground. However, the department is not doing enough to stem the increase in CO2 emissions that we have seen this year. Those emissions are no longer going down and this country is no longer meeting its Kyoto targets. This year, the emissions went up by 1.5 per cent. Therefore, I again emphasise that the key is to change consumer habits and consumer technology and to show people that they can have the same standard of living while using less energy.
I do not believe that that is an open-ended commitment: my amendment allows for the provision to take place over a six-year period. I believe that six years will be long enough for the energy advice and demonstration centres to have a considerable impact on everyone's energy consumption habits.
In his reply, the Minister referred to the 52 energy advice centres that already exist. I agree that they exist but I challenge anyone in your Lordships' House—perhaps with the exception of the Minister, who may have made an official visit—to tell me whether they have seen one and, if so, whether they have visited it. I notice that the Minister's noble friend is nodding but I do not notice any other noble Lord rising to his feet. Those advice centres are not obvious; they are hidden and, unless they are obvious and on the high street, they simply will not work.
The Minister also said that Defra is discussing how to encourage more local action. However, as the Minister knows, the bald fact is that, unless Defra has the resources to back that up, very little will result. My amendment proposes a simple mechanism by which that resource can be found.
The Minister has said a great deal about what the DTI is doing, but he has not said much about what the DTI planned to do but is no longer doing. I can give him the example of the Smart Metering Working Group which was set up in 2001. It recommended a pilot study of a completely different way of metering, which the DTI working group suggested would have a number of outcomes, including making consumers far more aware of the energy that they use. Deciding not to continue with such a study is regrettable. By now we might have had net metering, encouraging consumers to be aware of the energy that they use. I had in mind the fact that the DTI is not carrying out that kind of work when drafting the amendment. The Minister may or may not feel convinced by what the department is doing.
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I appreciate that the noble Baroness, Lady Byford, does not feel that my amendment is perfect, but I hope, with the rise in CO2 emissions and the fact that action on the ground is failing in that respect, that she will feel the amendment is worth supporting. Therefore, I would like to test the opinion of the House.
3.19 p.m.
On Question, Whether the said amendment (No. 218A) shall be agreed to?
Their Lordships divided: Contents, 44; Not-Contents, 102.

Division No. 2

CONTENTS

Addington, L.

Northover, B.

Alton of Liverpool, L.

Norton of Louth, L.

Avebury, L.

Oakeshott of Seagrove Bay, L.

Blaker, L.

Plummer of St. Marylebone, L.

Bradshaw, L.

Razzall, L.

Chalfont, L.

Reay, L.

Dholakia, L.

Rennard, L.

Eden of Winton, L.

Renton, L.

Ezra, L.

Rodgers of Quarry Bank, L.

Falkland, V.

Roper, L. [Teller]

Forsyth of Drumlean, L.

Russell-Johnston, L.

Goodhart, L.

Shutt of Greetland, L.

Greaves, L.

Smith of Clifton, L.

Harris of Richmond, B. [Teller]

Southwell, Bp.

Howe of Aberavon, L.

Taverne, L.

Howe of Idlicote, B.

Thomas of Gresford, L.

Livsey of Talgarth, L.

Thomson of Monifieth, L.

Lucas, L.

Tordoff, L.

Maclennan of Rogart, L.

Trumpington, B.

Methuen, L.

Wallace of Saltaire, L.

Miller of Chilthorne Domer, B.

Walmsley, B.

Newby, L.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Desai, L.

Ahmed, L.

Dixon, L.

Amos, B. (The Lord President of the Council.)

Donoughue, L.

Dubs, L.

Ampthill, L.

Evans of Temple Guiting, L.

Andrews, B.

Falconer of Thoroton, L. (Lord Chancellor)

Archer of Sandwell, L.

Ashton of Upholland, B.

Farrington of Ribbleton, B.

Bassam of Brighton, L.

Faulkner of Worcester, L.

Berkeley, L.

Filkin, L.

Bernstein of Craigweil L.

Gale, B.

Blackstone, B.

Gibson of Market Rasen, B.

Blackwell, L.

Golding, B.

Bledisloe, V.

Goldsmith, L.

Borrie, L.

Gould of Potternewton, B.

Brooke of Alverthorpe, L.

Grocott, L.[Teller]

Brookman, L.

Harrison, L.

Campbell-Savours, L.

Hayman, B.

Carter, L.

Hilton of Eggardon, B.

Christopher, L.

Hollis of Heigham, B.

Clark of Windermere, L.

Howells of St. Davids, B.

Clarke of Hampstead, L.

Hughes of Woodside, L.

Clinton-Davis, L.

Hunt of Kings Heath, L.

Cohen of Pimlico, B.

Irvine of Lairg, L.

Condon, L.

Janner of Braunstone, L.

Cooke of Islandreagh, L.

Jay of Paddington, B.

Crawley, B.

Jordan, L.

Davies of Oldham, L. [Teller]

Lea of Crondall, L.

Dearing, L.

Lipsey, L.

Denham, L.

Listowel, E.

1505

Lockwood, B.

Rooker, L.

Macdonald of Tradeston, L.

St. John of Bletso, L.

McIntosh of Haringey, L.

Scotland of Asthal, B.

McIntosh of Hudnall, B.

Sewel, L.

MacKenzie of Culkein, L.

Simon, V.

Maginnis of Drumglass, L.

Slim, V.

Marsh, L.

Stone of Blackheath, L.

Masham of Ilton, B.

Strabolgi, L.

Massey of Darwen, B.

Symons of Vernham Dean, B.

Mitchell, L.

Tanlaw, L.

Molyneaux of Killead, L.

Temple-Morris, L.

Monson, L.

Tenby, V.

Morris of Manchester, L.

Triesman, L.

Murray of Epping Forest, L.

Turnberg, L.

Patel, L.

Walton of Detchant, L.

Pendry, L.

Warner, L.

Pitkeathley, B.

Warwick of Undercliffe, B.

Ponsonby of Shulbrede, L.

Weatherill, L.

Rea, L.

Whitaker, B.

Rees-Mogg, L.

Wilkins, B.

Rendell of Babergh, B.

Williams of Elvel, L.

Richard, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
3.29 p.m.
[Amendment No. 218B not moved.]
Lord Ezra moved Amendment No. 218C:
After Clause 162, insert the following new clause—
"GAS AND ELECTRICITY DISCONNECTIONS
The Authority shall with the passing of this Act, and in consultation with relevant agencies, review, and within six months publish its findings, of—

(a) the rules surrounding the disconnection of domestic premises from the supply of gas and electricity for debt in order to minimise the level of disconnections for debt;

(b) as far as is reasonably practicable disconnections in error;

(c) increase protection for vulnerable groups; and

(d) expand the definition of what constitutes a vulnerable group."

The noble Lord said: My Lords, Amendment No. 218C concerns gas and electricity disconnections. Currently disconnections run at the rate of 20,000 a year. In Grand Committee my noble friend Lady Miller of Chilthorne Domer and I tabled an amendment that would have ended the right of companies to disconnect in these circumstances because of all the social problems that can be created. None the less, for various reasons there was opposition to the move. However, it was agreed that the number of people being disconnected each year remained alarmingly high, as did the number of those cut off in error, and that something needed to be done about it.
Amendment No. 218C does not take away the right of energy companies to disconnect consumers for debt. Therefore, we had regard to the views expressed in Grand Committee. However, it ensures that the regulator Ofgem reviews the rules surrounding disconnections in order to minimise disconnections for debt and ends, as far as reasonably practical, disconnections in error. The amendment will also ensure that the regulator looks to increase protection for vulnerable groups in the disconnection process.
I was very pleased to receive a communication from the Energy Retail Association after the amendment had been tabled. It told me that it has assumed responsibility for the disconnection issues raised in the amendment. On behalf of the energy suppliers the Energy Retail Association is conducting a consultation to agree a definition of vulnerable groups that can be applied to all work streams designed to help vulnerable customers. Its intention is to work with government agencies, Energywatch, citizens advice bureaux and charities to identify how current billing and debt prevention procedures can link up with support offered by social services.
At the end of the exercise it hopes to have proposals for new processes and a list of early action to prevent disconnection that can be taken before the winter months. It states that it shares the aim to end all disconnections of vulnerable customers and believes that identifying them early and providing a range of support is the best way to achieve that.
I regard that as very valuable support for the proposals in the amendment. In those circumstances, I hope that we can give further support to the endeavours of the Energy Retail Association by agreeing to the amendment. I beg to move.
Lord Jenkin of Roding: My Lords, everyone must have sympathy with the problems faced by households who find themselves with energy bills that, for one reason or another, they are unable to pay. The temptation is to argue that—the noble Lord, Lord Ezra, has not done so—if it is right to avoid disconnecting such households from the water supply for non-payment of debt, surely it is right to avoid disconnections in the case of energy.
The argument from the water industry is quite conclusive that when the law was changed and it was not allowed to switch off a person's water supply for non-payment of bills, bad debt rose in the sector by 17 per cent and debt recovery costs rose by 28 per cent. So, I am glad that this time around the amendment does not suggest that we should avoid disconnection.
However, one must look at the context. There is no doubt about it that the retail price of electricity is going to go up. Ofgem has warned us about that. All the pressures are now in that direction. People must become used to the fact that over the next few years power supplies to their homes and offices will become more expensive. I do not want to go over the ground of a previous debate, but that is much the best way to encourage people to save energy. To have energy that is artificially cheap is not a good incentive to save it. However, if electricity is going to become more expensive, as we are being warned that it will, the number of people on low incomes facing difficulties in paying their bills may well increase.
I have knocked about a bit in politics. My earliest memories of taking an active part—although not in the Palace of Westminster—were in relation to the Churchill government of 1951. That government came into office facing a very substantial bill for food subsidies inherited from their predecessors, the postwar Labour government. The argument was, "Well

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you cannot possibly cancel the food subsidies because that would be a great hardship to the people on the lowest incomes". R A Butler—later Lord Butler in this House—as Chancellor of the Exchequer, over a period of two or three years very skilfully phased out all the food subsidies and used much of the money saved to increase social security payments to the people who might otherwise have suffered.
Therefore, I argue in this case that if, indeed, there are categories of people who find paying their energy bills difficult, it makes no sense to keep the price down for all of us in order to protect them. The price for electricity and gas should be the proper economic price that produces a return for the companies that generate and the companies that transmit the supply. That has not happened in the past two or three years. The effect of the NETA—the new electricity trading arrangements—meant that prices were driven right down; several substantial generators were driven out of business; and the British Energy problem made life extremely difficult for the Government because they were unable to maintain their payments without government support.
It seems to me that the Government should now be looking to do what R A Butler did 50 years ago and recognise that we are going to face higher energy costs. It makes no sense to try to keep them down artificially and protect everybody. They should be looking at ways in which vulnerable households can be helped. That could be done through any number of channels in the social security network. I find it quite ridiculous that both my wife and I are going to get £100 to help to pay our community charge. Perhaps I may say that that is absolutely barmy. Why not concentrate that help on the people who really need it? The Government seem to be terrified of doing that. However, I am sure that it is the right answer for dealing with the issue.
I have difficulty with the last two paragraphs of the amendment, which contain the requirement to,
"increase protection for vulnerable groups: and … expand the definition".
The noble Lord, Lord Ezra, has been quite unspecific as to what that means. I certainly could not support an amendment with those very general and vague phases. There are other ways that vulnerable households could be helped. I hope I have said enough to indicate what I think they should be.
Lord Monson: My Lords, although the amendment is obviously well intended, I suggest that the drafting is seriously flawed. Indeed, the noble Lord, Lord Jenkin of Roding, hinted at that in his closing remarks.
Paragraph (a) is essentially fine, although in order to avoid ambiguity it would be better if a comma were to be inserted after the word "debt" in that paragraph's second line. However, in order to make sense, paragraph (b) needs to be prefaced by a phrase such as "the number or, "the frequency of" or "the pattern of". Even more importantly, paragraphs (c) and (d) need to be prefaced by, for example, "ways to", so that they refer to,
"ways to increase protection for vulnerable groups; and … ways to expand the definition of what constitutes a vulnerable group".
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This is not a question of being pedantic; the point is that if the clause is to be incorporated into the Bill, it will impose strict obligations upon the authority. The authority will not be able to fulfil those obligations unless they know precisely and unambiguously what they are.
Baroness Byford: My Lords, I rise to echo the wise words of my noble friend Lord Jenkin of Roding. We all realise and accept that there are families that struggle to pay their bills. Let us agree that in the first place. When I read the amendment, I had picked up paragraph (d) as the one that was particularly worrying me. I will not add to what my noble friend has said, or go over it again. When the Minister responds, and the noble Lord moving this amendment responds, will they address the question of errors? Errors are made, and people are disconnected when they should not be. We perhaps need to have something in the Bill to address that. As it stands, I could not support the amendment fully. I highlight this issue, because it has not been addressed, and it should be.
Baroness Miller of Chilthorne Domer: My Lords, I rise to support the amendment proposed by my noble friend Lord Ezra, to which my name is also attached. I accept that the drafting of our amendment is not perfect, for reasons that the noble Lord laid out when discussing paragraphs (b) and (c). However, the Conservative Benches found the last amendment too specific, but they find this amendment too general. They will obviously not be content with anything this afternoon.
The spirit of this amendment is extremely important. All that it is asking is that the authorities shall, with the passing of this Bill, and in consultation with the relevant agencies, review and publish their findings on disconnections. There are certainly some issues there. While this amendment may not be perfectly drafted, it is surely entirely reasonable. All it is asking is that the authority should review and publish its findings about what will be done to ensure that those who are classified as vulnerable groups are correctly classified, so that we are not leaving groups out of the classification who are vulnerable, and that the present rules and regulations with regard to those groups are reasonable. Surely, the publication of such a study would be in everyone's interests.
Lord Davies of Oldham: My Lords, we do not legislate in spirit, but in words. I am grateful to the noble Baroness for identifying that fact, and for supporting the burden of the remarks made by the noble Lord, Lord Monson, and the noble Baroness, Lady Byford, that there were conspicuous weaknesses in the amendment, which, if we sought to translate them into a law, would cause us real trouble.
This is an important debate, and I do not want it to look as though I am merely nitpicking about the text of the amendment when important issues are at stake. Lest noble Lords think that the Government come under pressure only when issues are debated in this House, with

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our combined wisdom, there is an Early-Day Motion in the other place signed by 100 Members of my party seeking far more dramatic action against disconnection—in fact, action against disconnection—whereas this amendment only expresses a general hope.
Let us not delude ourselves. What the noble Lord, Lord Ezra, did in introducing the amendment was highlight an issue that should, and does, concern us all. I assure the House that what the amendment seeks to achieve in the Bill is already being done. Ofgem already closely monitors disconnection activity. Where there are any unexpected trends in that activity, it seeks explanations. It has recently, with the encouragement of the DTI, been in extensive discussion with suppliers about all aspects of disconnection activity. These discussions are firmly in line with the expressions that have been made on all sides of the House today, and are also to be heard with some fervour in the other place. In particular, the discussions have focused on improved processes for identifying and dealing with vulnerable customers, and clarification of procedures for notifying relevant agencies where vulnerable customers were in payment difficulties. We expect this to lead to proposals for improved arrangements right across the industry, which will be the subject of consultation with key relevant bodies and the wider public.
The noble Lord, Lord Jenkin, mentioned water. He accurately identified the reason why water has significant consequences, when the issue of water disconnection came to the fore. Water is different from electricity and gas, because it is not just the consumer and the company that are affected by the disconnection of the utility. We all potentially suffer, in public health terms, if there is a suspension of water supply. Therefore, it fits into a different category, although the noble Lord has provided some help to the House in identifying what the consequences may be of pursuing a straightforward ban on disconnection. I emphasise that this short debate has highlighted a matter that greatly concerns the Government. It is clearly an issue that must be tackled.
When it comes to the general issue of support on fuel, it may be that we can go further down that road with regard to energy prices. The noble Lord, Lord Jenkin, did not mention the winter fuel allowance, but that perhaps was a slip. He did not recognise that some help is given with regard to increased prices and increased usage of fuel during the winter. I heard what he said about potential strategies with regard to energy prices, although that is a little remote from this amendment. Nevertheless, I hope that it will be recognised that the Government take the issues raised in this debate seriously. I hope that the noble Lord will see fit to withdraw the amendment.
3.45 p.m.
Lord Ezra: My Lords, we have had an extremely useful debate on this important issue. Although a number of noble Lords have queried the wording of the amendment, I do not think that any have queried the motivation behind it. Reference has been made to
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the identification of vulnerable groups and to disconnections made in error. I am reassured by what the noble Lord, Lord Davies, said about the work already being done. I am also reassured that his colleagues in another place are being much more vigorous on this than we are, in our relatively tentative approach. I wish them every success in their endeavours.
It is satisfying to note that Ofgem, the Government, and other bodies are taking this extremely seriously. I have referred to the Energy Retail Association, which is also moving in this direction. I am satisfied that this matter is being taken seriously. I am glad that my amendment has led to this discussion, that there is a unanimous view that this issue must be taken with great concern, for the benefit of our compatriots who are not in a position to pay their bills for vital commodities, and that this is being looked at very carefully indeed. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Byford moved Amendment No. 219:
After Clause 167, insert the following new clause—
"ENVIRONMENTAL CONSIDERATIONS
In this Act—

(a) all powers of exploration, exploitation, collection, transmission, distribution and connection to any other network shall be constrained by an overriding requirement to care for the natural environment;

(b) in this context the doing of anything that will cause, or causes, major lasting damage to the natural environment creates an offence: and

(c) an offence under this section will fall within section 77 of this Act."

The noble Baroness said: My Lords, I hesitate to rise and move the amendment standing in my name on the Order Paper, having been accused of not being able to be persuaded by the noble Baroness, Lady Miller of Chilthorne Domer, and the noble Lord, Lord Ezra. This amendment is hugely important. I accept that our wording might not be perfect, but I wanted to return to this issue.
In response to the amendments that I moved in Committee, the noble Lord, Lord Triesman, said:
"The amendments would not achieve their objective, as they propose introducing environmental considerations too early in the process, when the REZ is established".—[Official Report, 3/2/04; col. GC 320.]
I am trying again. As we know, environmental damage is of primary importance to our planet and the survival of its inhabitants. To say that it does not matter at a particular stage in a development rather misses the point. Exploration and the proving of reserve and geological structures can cause damage. It varies only in extent from operational damage.
Since we debated the issue in Committee, the House of Commons Environment, Food and Rural Affairs Select Committee has published its sixth report on the marine environment. It is hot off the press, having been published on 21 March. That is why I wanted particularly to refer to it. In the introduction of its report, the committee says that its predecessor, the

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Environment, Transport and Regional Affairs Committee, in a report on UK biodiversity, concluded that,
"the Government must address the range of problems and inadequacies in their approach to marine biodiversity. As an island nation, the conservation of marine biodiversity should be paramount and the Government should consider whether a new statutory agency is required to deal with marine biodiversity issues".
I raise that to provide background.
Item 10 cm page seven, entitled "Lack of joined-up Government.", states:
"Although Defra takes the lead on marine conservation, other departments (including the Ministry of Defence, Office of the Deputy Prime Minister, Department for Transport, Department of Trade and Industry) are responsible for many of the activities that can affect the marine environment".
Item 12 on page eight is entitled:
"Lack of mechanisms to assess and manage cumulative impacts of different human activities at sea".
Under that heading, the report states:
"The consenting procedures for developments and activities at sea are generally handled on a sector-by-sector basis by the relevant sponsoring Department. Environmental groups express concern that the cumulative and 'in-combination' effects of industries such as oil and gas extraction, wind farms, coastal developments and fishing are not assessed under the present system".
Page 13 deals with the review of development in marine and coastal waters, for which the noble Lord, Lord Rooker, is the Minister responsible. The report concludes:
"The review has taken longer than expected to reach a conclusion, which has caused concern, but is due to report this year".
As I have said, we are considering the Bill now, not later in the year.
On page 20, paragraph 4 of the conclusions and recommendations states:
"At present, the different Departments involved do not appear to have a common approach to sustainable development in the marine environment and there is no formal arrangement allowing them to come together. Given the complexity of this area of policy, the Government should put in place a clearly defined co-ordinating mechanism to bring together, on a regular basis, the key parties with a role in protecting the marine environment".
The last extract that I wish to quote is paragraph 8 on page 21, dealing with the strategic environment assessment directive. It states:
"Wherever in Government the authority was based, it would need to ensure that the concerns of all users of the sea were taken into account".
During the passage of this Bill we have raised issues about fishing and protecting the seabed environment. This is my last chance to raise the issue again on Report. I am sure that the noble Lord, Lord Davies of Oldham, will not dismiss the issue, because we have talked about it at length. In some way, particularly as it has now been highlighted and supported by the recently published Select Committee report, there should be something in the Bill to deal with the issues raised.
We are concerned that the possible consequences of wind turbine construction at sea may be appreciated only after the damage becomes apparent, and that it
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may be some considerable time after it happens. Proposed paragraph (b) of my amendment refers clearly to,
"in this context the doing of anything that will cause…major lasting damaging".
We are trying to address lasting damage.
If developers know that they have a legal duty to avoid major lasting environmental damage, and that there is a penalty if they fail, they should build environmental protection into their plans from the very beginning. That is what we are trying to do. If there is no such provision in the Act then no case could be brought against those who did not take care of the environment, even if the effects are mostly hidden from all but a very few eyes.
If the Government cannot accept my amendment as drafted at this stage, I hope that they will give it serious consideration before Third Reading. I beg to move.
Baroness Miller of Chilthorne Domer: My Lords, throughout the Bill's passage I have expressed—particularly to the noble Lord, Lord Whiny, who is not in his place—what a pity it is that it was introduced before the Government had brought forward a marine Act. That would have laid the framework for marine spatial planning and protection. I believed that the Government intended to introduce such a Bill. but that has not been forthcoming. We now face development at sea without any planning framework or adequate protection.
I was, however, cheered to see that recently the Joint Nature Conservancy Council has made a substantial proposal for a pilot in the Irish Sea, which should result in the introduction of a marine Bill very soon. I urge the Government to keep a close eye on the pilot's progress.
As regards the amendment, the marine environment is critically important, as I have said throughout. However, my concern is that throughout the passage of the Bill Conservative Members have expressed considerable reservations about land-based and marine-based wind power in general. The amendment would place on wind-power developers an onus that does not apply to current producers of lasting damage. Notable among such producers is Sellafield, which recently withdrew from a position that until now has upset our Irish neighbours considerably—it had been continuing to release unacceptable levels of radioactive material that affected the marine environment.
Although I fully support action to protect the marine environment, it is against the context that I have outlined that I do not support the amendment. Although perhaps unintentionally, the amendment would adversely affect wind power developers. Those on the Conservative Benches agree that we need more renewable energy, and we should not try to undermine its development in this way.
4 p.m.
Lord Jenkin of Roding: My Lords, I am tempted to say that we have come nearly full circle with the noble Baroness's final remarks. She may remember that I

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opened my Second Reading speech with a description of the episode over which I had to preside as Secretary of State for the Environment relating to the discharge of radioactive material from Sellafield into the Irish Sea. I made the point that, in the past 30 years, discharges from that plant have been cut to about one thousandth of what they were at the beginning. I recognise what the noble Baroness says about the continuing complaints from the Irish Republic, but I am sure that I will have the Ministers with me when I say that they are almost wholly without foundation now.
I have one point to make about the amendment. If one reads the press and the correspondence columns and hears what is said, one can be in no doubt that there is growing opposition in this country to land-based wind farms. They are seen as unsightly and, if sited near local inhabitants, noisy. They are seen as a danger to wildlife, especially birds. For those and other reasons, such wind farms arouse a good deal of hostility. The Government say, "Don't worry. We are going out to sea. We will establish our renewable energy zones right out beyond territorial waters, where none of those things will apply". Lo and behold, what do we find? The Royal Society for the Protection of Birds becomes extremely concerned at the likely damage to bird life.
In her amendment, my noble friend has rightly pointed to the fact that this is yet another threat to the marine environment. By hanging their hat so firmly on their targets for wind power and turning away from the primary objective—the saving of carbon—the Government delude themselves and delude a declining number of members of the public. I am sure that they are beginning to realise that supporting the idea that our energy gap can be closed by a combination of wind power and energy saving is living with the fairies. It will not happen like that.
As my noble friend so eloquently said, when we are faced with the growing concern about the impact of wind farms and all the other things on the marine environment, the policy becomes hopelessly unbalanced. We have discussed those matters at some length during the Bill's passage, and I have no doubt that they will be discussed in another place. My noble friend has done us a valuable service in tabling the amendment to remind Ministers once again that there is an environmental cost with their policy of building wind farms on the Continental Shelf.
Lord Davies of Oldham: My Lords, I am grateful to all who participated in our short debate, particularly to the noble Baroness, Lady Byford, who moved the amendment. It is the last amendment before the Government's amendments, which, I trust, will not cause much controversy, so it is appropriate that our last debate should cover the broad issues with which the Bill is concerned. I can think of no amendment that has greater breadth. The noble Lord, Lord Jenkin of Roding, took us back to Second Reading: he could have taken us through Committee as well, when all the issues were discussed at considerable length.
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I make the obvious point that, of course, we share the sentiments behind the amendment. If we did not share the sentiments behind an amendment requiring us to take care of the natural environment, why would the Bill be the kind of Bill that it is? It is concerned with reducing carbon emissions and encouraging the development of an electricity supply from more benign sources.
The noble Lord, Lord Jenkin of Roding, is right to remind us that nothing in this difficult world is cost-free. There are some environmental costs with any aspect of new development. I have not the slightest doubt that, if we were able to produce all the wind energy that we wanted from one turbine, the people who lived closest to that turbine would have identified for us the environmental costs to their neighbourhood. That is in the nature of such issues. We cannot have an entirely cost-free proposal, but it is clear that the development of energy in this way will go some way towards our broad objective of meeting the Kyoto targets and will be in line with our general position on energy generation. The inspiration behind the Kyoto targets is concern about the natural environment on the whole planet. We are all aware of the consequences of doing too little, too late in that regard.
The only powers in the Bill to which the amendment relates in practice are the powers that enable the development of renewable energy installations in the renewable energy zone. In Committee, we had a lengthy debate on the decision-making process concerned with giving developmental approval to renewable energy installations. We considered the importance of ensuring that the process gave proper and adequate consideration to the impact on the natural environment. We continued the debate earlier on Report, when we discussed some key amendments. Throughout those debates, the Government have sought to provide genuine reassurance that the decision-making process will ensure, through the incorporation of strategic environmental assessment and site-specific environmental impact assessments, that there is protection and concern for the natural environment. Our argument today is unchanged from those advanced by myself and, most forcefully, by my noble friend Lord Whitty, who, regrettably, is not present to produce a summation of the debate.
I remind the House of our need to recognise the bigger environmental picture. It goes beyond even the local marine environment and ecology, which is why we need to create the renewable energy zone. In developing renewable energy installations, we seek to achieve net environmental benefits by reducing our dependence on carbon-based fuels that not only deplete the planet's limited natural resources but, as we all know, pump damaging carbon into the atmosphere, a major factor in global warming.
I cannot do justice to all the issues raised in our short debate, but neither could the noble Baroness who moved the amendment or others who spoke. We are considering the broad, general issues that we all face

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with regard to protecting the natural environment. I emphasise that, obviously, substantial sections of the Bill are concerned with the natural environment and how we meet the necessary targets for protecting it and the health of the planet as a whole. I hope that, on that basis, the noble Baroness, having once again raised a very important issue, will be able to withdraw the amendment.
Baroness Byford: My Lords, I am grateful to the Minister for that full response. I am not satisfied with his answer, and I think that he will understand that.
Before I return to the Minister's answer, I thank the noble Baroness, Lady Miller of Chilthorne Domer, for her overall support in our concern for marine protection. We agree on that issue. We too would like to find out from the Government what they are going to do in the long term. Will they publish a marine Bill? Perhaps, that is for another day.
I particularly thank my noble friend Lord Jenkin of Roding. He is right to point out that there is growing opposition to wind farms—not not just to the wind farms themselves but to the fact that they will not produce what was initially hoped. It is certainly true that the RSPB has been in touch with us and, I suspect, other noble Lords, because of its concern about the deaths caused to wildlife, especially birds, on existing wind farms.
The noble Lord, Lord Davies of Oldham, said that I had not gone over the track to the full extent. I have borne his words of warning during our earlier days on Report in mind and made sure that I came back only with additional information, which he must have been pleased to have. That is why I find his answer very unsatisfactory. I wonder whether the officials who briefed him on the matter have read the report, because it was, as I said, published only on 21 March. His response to my questions did not deal with any of them. One thing that is clear from the report is that the present process is totally inadequate.
I feel strongly that the issue is important and will look carefully at what the Minister said. I am not prepared to put the matter to a vote at this stage, but I urge the Minister and his officials to have a good look at the report and my amendment to see whether they can come back with an amendment acceptable to the Government. I recognise that, in the short term, there may well be damage, as there is with other business conducted in the sea. We are trying to protect it from long-term damage.
For noble Lords who are quietly sitting listening to the debate, the Government acknowledged earlier on Report that some wind farms offshore could consist of 200 windmills. They are not one-offs; they are big areas. So it is all the more important that we get it right, which is what we are trying to do.
So I thank the Minister for his response. In particular. I thank my noble friend Lord Jenkin of Roding for his input. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 168 [Repeals]:
Lord Triesman moved Amendment No. 220:
Page 131, line 26, leave out paragraph (b) and insert—
"( ) section 11(1) to (3) (provisions as to shares in BNFL and the Radiochemical Company).
( ) In section 11(4) of that Act (subscription for shares by the Secretary of State) for "either of the companies" substitute "the Nuclear Fuels Company".
( ) In section 12(1) of that Act (loans to BNFL and the Radiochemical Company), for "either of the companies" and "the company to which the loan is made" substitute, respectively, "the Nuclear Fuels Company"" and "that Company"."
The noble Lord said: My Lords, Amendments Nos. 220, 221, 225 and 226 are tidying provisions which have emerged recently. Noble Lords will appreciate that the legislative background of nuclear matters is long and complicated. Roughly speaking, there is about 30 years of legislation in this area and much of it is now redundant. This may be a case of redundant legislation decommissioning—an opportunity to correct some of those matters.
The amendments relate to Amersham plc, formerly known as the Radiochemical Company. and allow the Government to acquire shares in, and make loans and guarantees to, the company. Since the company was privatised in 1982, those powers are no longer necessary or appropriate. Having spotted those redundant provisions, we concluded that it was sensible to use the opportunity provided by the Bill to make this minor tidying up of the statute book. We have informed the company, which has no objection to our proposals.
This is the last of the amendments before we go through some formally. I was reflecting that there have been 11 days in Grand Committee, six days on Report and something in the order of 500 amendments and we still look forward to the joys of Third Reading. As this is the first substantial Bill which I have had the privilege of debating with your Lordships, may I observe that many have brought great wisdom from their long and distinguished careers to the debate. Others of us have simply come to the point of retirement during our lengthy deliberations. We are all, if a little older, somewhat wiser.
I thank noble Lords, including those who have disagreed so profoundly with us and especially the noble Baroness, Lady Miller of Hendon, who was not in her place today, but who has played such an important, leading role in the debate. I thank all noble Lords for the thoroughness of the attention brought to vital issues for the United Kingdom for its nuclear legacy and its possible nuclear future, which is not excluded, and to its obligations to the world environment through the promotion of renewables.
The amendment concerns a much smaller matter, one worth correcting. I beg to move.
Lord Jenkin of Roding: My Lords, on behalf of my noble friend Lady Miller of Hendon, I am sure that she would very much appreciate the kind remarks of the noble Lord, Lord Triesman. In all parts of the House, we have been full of admiration for the way in which she handled a hugely complex Bill. It was extremely

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kind of the noble Lord, Lord Triesman, to say so. I must also say that the noble Lord has whetted my appetite: a redundant legislation decommissioning Bill? I cannot think of anything better. It would be a very fat Bill.
On Question, amendment agreed to.
Lord Triesman moved Amendment Nos. 221 and 222:
Page 131, line 29, at end insert—
"( ) In section 11A(10) of the 1989 Act, in paragraph (b) of the definition of "relevant licence holder", the words "(by virtue of anything done under section 33(2) of the Utilities Act 2000)" shall cease to have effect."
Page 131, line 29, at end insert—
"( ) In section 1(1) of the Nuclear Industry (Finance) Act 1977 (c. 7) (Government guarantees for BNFL and the Radiochemical Company), the words "or The Radiochemical Centre Limited (`T.R.C.L.')" shall cease to have effect.
( ) In subsection ( 1) of section 2 of that Act (financial limits)—

(a) for the words from "financial limits" to "B.N.F.L.," substitute "financial limit applicable to B.N.F.L. is";

(b) paragraph (b) and the word "and" immediately preceding it shall cease to have effect; and

(c) for "either company" substitute "the company".

( ) In subsection (2) of that section for "either of the two companies" substitute "B.N.F.L."."
On Question, amendments agreed to.
Schedule 23 [Repeals]:
Lord Triesman moved Amendments Nos. 223 to 227:
Page 246, line 40, column 2, at beginning insert—
"Section 2(2)(d)."
Page 246. line 40, column 2, at end insert—
"In Schedule I, paragraph 4."
Page 247, line 30, column 2, leave out "(3)" and insert "(1) to (3)"
Page 247, line 35, at end insert—

"Nuclear Industry (Finance) Act 1977 (c. 7)

In section 1(1), the words "or the Radiochemical Centre Limited (T.R.C.L.')" and "concerned".

In section 2(1), paragraph (b) and the word "and" immediately preceding it."

Page 248, line 11, column2, at end insert—

"In section 11A(10), in paragraph (b) of the definition of "relevant licence holder", the words "(by virtue of anything done under section 33(2) of the Utilities Act 2000)"."

On Question, amendments agreed to.
Clause 169 [Short title, commencement and extent]:
Lord Triesman moved Amendments Nos. 228 and 229:
Page 131, line 41, after "paragraphs" insert "A1,"
Page 131, line 42, after "4," insert "5A,"
On Question, amendments agreed to.

Royal Assent
4.16 p.m.
The Deputy Speaker (Baroness Gould of Potternewton): My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Act:
European Parliamentary and Local Elections (Pilots) Bill.

Cory Report
Baroness Amos: My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Secretary of State for Northern Ireland. The Statement is as follows:
"At Weston Park in the summer of 2001, the British and Irish Governments announced their intention to appoint a judge of international standing to look at six cases: the murders of Chief Superintendent Harry Breen and Superintendent Bob Buchanan, Pat Finucane, Lord Justice and Lady Gibson, Robert Hamill, Rosemary Nelson and Billy Wright. Both Governments acknowledged that those were the source of grave public concern. The two Governments are determined that where there are allegations of collusion, the truth should emerge. Those murders were horrific events, causing pain to the families which still continues today.
"In May 2002, the two Governments announced the appointment of the honourable Justice Peter Cory, a retired member of the Canadian Supreme Court, to conduct the investigation. Justice Cory presented separate reports to the British and Irish Governments on 7 October.
"I am grateful to Justice Cory and his team for their hard work and commitment. In undertaking that important task he has laboured long hours at significant personal cost. I am grateful to the families who spoke to him and to all those who made submissions to him.
"In presenting his reports to the Governments, Justice Cory expressed the hope that his investigation would contribute to the very difficult task of achieving peace and reconciliation in Northern Ireland. I share that wish.
"I want to make clear at the outset the unequivocal view of the Government that, without the professional and steadfast work of the police, Army, Prison Service and many others in the wider public service over many years, we would not have achieved the progress that we have made towards securing a permanent peace and enduring reconciliation. That is, I believe, both a justified and a necessary acknowledgement which I warmly give to the House.
"I am today publishing the four reports which were presented to the British Government: those relating to Pat Finucane, Robert Hamill, Rosemary Nelson and

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Billy Wright. In line with Justice Cory's terms of reference, the only redactions which have been made are those which were necessary to ensure that the privacy and right to life of individuals is protected, and that the Government's obligations in relation to ensuring justice and protecting national security are maintained. Redactions are clearly shown in the text. As agreed with the judge, redacted text will be placed in secret sealed appendices.
"Justice Cory presented his reports on 7 October. The reports are extensive and in total are about 500 pages long. Since we received the judge's reports. we have had to consider most carefully a number of important issues—as we said we would in the judge's terms of reference: national security, the protection of life, the criminal justice process and fairness to those named in the reports. In two of the four cases police investigations or prosecutions continue, and in a third prosecutions were pending until very recently. We have kept in touch with Justice Cory throughout this process.
"We have considered carefully our obligation to ensure fairness to individuals. At our request, Justice Cory has added a foreword to the reports which makes clear that it was not his task to make final determinations of fact or attributions of responsibility. His findings are necessarily provisional.
"I would, of course, have liked to be able to publish the reports sooner, but the Government have a duty to ensure that they meet all their obligations, including fairness not only to the families hut also to those who could be identified in the reports.
"Justice Cory's approach has been to adopt a very wide definition of collusion that covers both inaction as well as actions, and patterns of behaviour as well as individual acts of collusion. On this basis, the judge has decided that there are instances in each case where it could be provisionally found that there was collusion. He recommends in each case that these questions should be examined and tested further in the course of inquiries.
"For that reason the Government have not taken a view on the provisional findings which Justice Cory has reached as a result of his wide definition of collusion. However, his reports raise matters that will cause serious concern. I agree wholeheartedly with Justice Cory's view that the public must have confidence in public institutions.
"The Government stand by the commitment we made at Weston Park. In the Wright case there are no outstanding investigations or prosecutions and the inquiry will start work as soon as possible. It will be established under the Prison Act (Northern Ireland) 1953.
"In the Finucane case an individual is currently being prosecuted for the murder. The police investigation by Sir John Stevens and his team continues. It is not possible to say whether further prosecutions may follow. The conclusion of the
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criminal justice process in this case is thus some way in the future. For that reason we shall set out the way ahead at the conclusion of prosecutions.
"In the Hamill case there are now no outstanding investigations or prosecutions. The public inquiry will be set up as soon as possible under the Police (Northern Ireland) Act 1998.
"The police investigation in the Nelson case continues but is expected to end in the next few months. The Chief Constable has advised me that the establishment of a public inquiry would not prejudice the investigation. The inquiry will therefore begin work as soon as possible, also under the Police (Northern Ireland) Act 1998. It will examine the actions of the police and the Northern Ireland Office.
"I recognise that the requirement in the Finucane case to wait until criminal proceedings are complete will cause disappointment to some. However, public interest demands that prosecutions should be pursued to their conclusion and wrongdoers punished. As Justice Cory says,
'Society must be assured that those who commit a crime will be prosecuted and if found guilty punished'.
The inquiries that I am announcing will have the full powers of the High Court to compel witnesses and papers. These are the same powers as inquiries set up under the Tribunals of Inquiry (Evidence) Act 1921, under which the Bloody Sunday inquiry is operating. In addition, the police and prison Acts enable me as Secretary of State to make provision for certain matters, for example about costs and expenses.
"I know that concern has been expressed in this House and elsewhere about the length and cost of some public inquiries. In particular, there are concerns about the cost of the Bloody Sunday inquiry—£129.9 million to date, with a predicted final cost of £155 million.
"Of course, I understand this unhappiness. But setting up that inquiry was the right thing to do. I commend the work of Lord Saville and his team. Having established the inquiry, it must run its course if it is to be fair to individuals and the truth is to emerge.
"We shall, of course, take all reasonable steps to control costs in the inquiries I have announced today, including capping legal costs as appropriate. We shall ensure that the inquiries have the maximum powers, as well as aiming for better, quicker inquiries.
"Even so, these inquiries will inevitably mean the commitment of significant resources. The Government recognise the desire of people to see public funds spent on delivering better public services and effective policing. I recognise public concern about further expenditure on inquiries into the past.
"This Government have shown repeatedly that the state is open to scrutiny for its actions. We established the Bloody Sunday inquiry. The investigation by Sir John Stevens continues and has yielded prosecutions. We appointed Justice Cory, with the Irish Government. Wrongdoers will be brought to justice.

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"I firmly believe that the only way we can put the past behind us in Northern Ireland is by seeking to establish the truth, but that must be the truth about the actions of all those who have been involved in the tragedy of the past 30 years.
"I started this Statement with a warm tribute to the police, Army, Prison Service and public service in general. I underline that again. Too many of them have lost their lives to terrorism. Their sacrifice is not forgotten.
"However, Justice Cory's reports raise serious questions that it is right to address further. I am under no illusions that confronting the past is a difficult and painful process. The Government and their agencies are ready to play their part. We need to find a way of remembering the past while at the same time not allowing it to hinder progress in the future. Northern Ireland needs greater reconciliation between the communities. That is where all our attention needs to be directed. We should ensure that we do not concentrate on divisive issues from the past at the expense of securing this".
My Lords, that concludes the Statement.
4.27 p.m.
Lord Glentoran: My Lords, first, I thank the noble Baroness the Lord President of the Council for repeating the Statement made by the Secretary of State in the other place. I also wish to thank the Secretary of State and his officials for making the Statement available early and for making himself available this morning to brief my honourable friend David Lidington and myself.
For 30 years or thereabouts consecutive governments have attempted to maintain law and order and to protect the people in Northern Ireland against loyalist and republican terrorists, in particular, the IRA—the founders of modern terrorism and one of the most ruthless of terror organisations in modern times.
Throughout that time the terrorists operated wholly outside the law. British Ministers, and their security forces—many brave men and women have lost their lives serving—were fastidious in their efforts to operate at all times within the law. With the best will in the world and in the finest organisations things sometimes go wrong. When they go wrong they should be properly investigated and, if appropriate, prosecutions should follow. We in the Conservative Party would never at any time or under any circumstances condone members of the security forces acting outside the law. However, investigations and prosecutions in all cases must be allowed to take the course of natural justice. The Cory report was a politically motivated report and demonstrates more clearly than anything so far the dreadful mistake which was the Weston Park commitments. Furthermore, Cory has gone far beyond his brief in one aspect and not conformed to it in another.
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Paragraph 19, line 3 of the Weston Park proposals states that,
"the appointed judge will be asked to review all the papers, interview anyone who can help establish the facts and report with recommendations for any further action".
These reports direct criticism at both soldiers and police officers who are clearly identifiable.
Will the Minister confirm that none of those people were interviewed and none were given any chance to explain themselves, despite the clear instruction to the judge to interview anyone who can help establish the facts and report with recommendations for any further action? Now, of course, they will be tried by media, but because they are still under the Official Secrets Act, they cannot reasonably defend themselves. I suggest that the whole procedure is devoid of fairness, unjust to the people concerned and shows a complete neglect of the Government's duty of care.
Does the Minister agree that had the judge fulfilled his remit to interview all those who he thought could help him establish the facts as he saw them, without inferring guilt regarding certain people, and reported a recommendation that a public inquiry was advisable, he would have fulfilled his remit?
I wholeheartedly concur with the Secretary of State's tribute to our police, prison officers and Armed Forces for the brave and steadfast way in which they have upheld the rule of law and defended our citizens. However, I do not believe that these reports will help one jot to bring peace and reconciliation any closer to Northern Ireland; in fact, quite probably the opposite.
I have noted what the Secretary of State said in relation to his interpretation of the word "collusion". I have also noted that the Secretary of State asked for the foreword in order to clarify the status of the opinions of the report. I further note the ongoing police investigations and prosecutions under way relating to the cases that are the subject of these reports.
Does the noble Baroness really believe that after these reports and the public inquiries that are to follow, a fair trial would be possible for anyone concerned with these affairs? Does she think that, in the case of Finucane, a public inquiry is appropriate after a judicial court has reached a guilty or a not guilty verdict on the person currently accused, especially as there have already been three investigations into this murder? Is the noble Baroness aware that there are 1,800 unsolved murders resulting from terrorism in Northern Ireland? What of the families of all those victims? What is so special about the four murders that are the subject of these reports?
The Government have now been forced to set up further inquiries. Does the noble Baroness agree that in this context Her Majesty's Government find themselves between the devil and the deep blue sea, in a no-win situation, with all parties wanting something different and the costs for the inquiries spiralling out of control as they inevitably will, similar to the Bloody Sunday inquiry?

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Finally, does the noble Baroness agree that these affairs must not be allowed to tarnish the fine reputation of the police or the Army in Northern Ireland, which have served and continue to serve our country with the greatest courage, skill and professionalism?
4.33 p.m.
Lord Smith of Clifton: My Lords, I, too, thank the noble Baroness the Lord President of the Council for repeating the Statement. Many of us are very grateful for Justice Cory's painstaking investigation. I agree with the sequence of events outlined in the Statement. Can the Minister give clearer details of how the costs of the inquiries will be contained? Clearly, we cannot have a repetition of the Bloody Sunday inquiry costs. Will lawyers be offered a set-price deal or what? The Statement is tantalisingly scarce on how the Government will deal with that issue.
As the noble Lord, Lord Glentoran, said, there are many more unsolved murders in Northern Ireland. When will the Government come forward with a peace and reconciliation forum on the South African model, which could deal with this large and outstanding residue of unsolved murders once and for all? That would enable Northern Ireland to get on wrestling with its future, which will be difficult enough without being dogged and impeded continually by this particular, and ghastly, element of its past.
The Statement is rather minimalist and deliberately short on details. Is there likely to be a future opportunity for this House to discuss the precise working of the inquiries, how the costs will be controlled and provision for a peace and reconciliation forum?
In conclusion, the appointment of Justice Cory and the Government's response in readiness to proceed with the inquiries, whose subject matter is delicate, painful and complex, is a feature of a free and open society. It is an answer to those who practice or give comfort to terrorism, whether in Northern Ireland or elsewhere.
4.35 p.m.
Baroness Amos: My Lords, I thank the noble Lords, Lord Glentoran and Lord Smith of Clifton, for their remarks. I shall try to address the specific questions that have been asked. I do not accept the statement made by the noble Lord, Lord Glentoran, about Weston Park. The Government absolutely stand by their Weston Park commitments. As regards the publication of the reports and individuals within the reports, Justice Cory conducted an independent inquiry. The process that he followed was a matter for him.
I have made clear that the Government have considered very carefully their obligation to ensure fairness for individuals. That is specifically why we asked Justice Cory to add a foreword to the reports, making it very clear that it was not his task to make final determinations of fact or attributions of responsibility. The forewords of the reports are all very clear on that point. His findings are provisional. It is
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for that reason that we do not consider that publication is contrary to natural justice. The reports pose questions that Justice Cory believes need to be explored further.
We gave individuals notice of our intention to publish the reports. We offered them the opportunity to receive the relevant report in advance in confidence. A number have taken the opportunity to make representations, to which we have responded. Clearly, this is a very complex issue. The Government have had to balance a range of different factors in reaching their conclusion to publish the reports. Noble Lords will know that there was some pressure to publish the reports earlier. We have had to take account of the interests of the families and the commitment made at Weston Park to publish the report.
Of course, I am aware of the number of unsolved murders in Northern Ireland. In response to the question posed by the noble Lord, Lord Smith of Clifton, about a peace and reconciliation forum, we have made two things—clear. First, it is very important that in Northern Ireland we try to move beyond the past. I recognise that that will be very hard. Perhaps I may repeat what my right honourable friend the Prime Minister said today at his monthly press conference in relation to the truth and reconciliation process:
"I do not know whether necessarily a Truth and Reconciliation Commission is the right way to do it but I think there needs to be some way of trying to both allow people to express their grief, their pain and their anger in respect of what has happened in Northern Ireland without the past continually dominating the present and the future and that is what we will try to do".
Currently, how we do that is not clear, but there is a clear commitment that we have to work with all the parties in Northern Ireland to try to get to that point.
The noble Lords, Lord Glentoran and Lord Smith of Clifton, raised the issue of costs. One of the reasons that the inquiries will be carried out under the police and prison Acts is to ensure that the Secretary of State has control over the costs. Of course, we will look at capping legal costs as an element of that.
Finally, as regards the reputation of the police, the Army and others in Northern Ireland, I underline again the warm tribute paid by my right honourable friend the Secretary of State for Northern Ireland to the police, the Army, the Prison Service and the public services in general. That is something with which we all agree. At the same time, we have to recognise that Justice Cory's report raises some very serious questions. It is right that we should address them further.
4.40 p.m.
Lord Maginnis of Drumglass: My Lords, in thanking the noble Baroness the Lord President for bringing the Statement to the House, perhaps I may express my disappointment that this far-reaching but sadly inaccurate and inadequate report is being debated so briefly at this stage. In the light of its possible consequences, I ask that we should have a proper debate at a later stage.

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By way of justification of my use of the words "inadequate" and "inaccurate", I refer to paragraph 1.304, which states that the Good Friday accord and the Weston Park agreement would set out the selected cases as an integral part of the accord. I was one of the negotiators of the Belfast agreement and at no stage was there any reference to any of these cases. Nor, indeed, as was confirmed by the late and greatly missed Lord Williams of Mostyn in response to a question in the House from me, was there any agreement at Weston Park. I notice that even the Secretary of State in his Statement suggests that somehow this was announced at Weston Park. It was not. It was a subsequent announcement as a consequence of that meeting.
In paragraph 1.304 it is indicated that Justice Cory could get it wrong. One has to ask: what else has he got wrong? I do not have time to go through the report in detail, but is it not a good argument that we should not engage retired justices who are chronologically, geographically, socially and politically detached from Northern Ireland on future inquiries? Will the Minister give me that assurance?
I notice that the noble Baroness, Lady Farrington, is intimating that my two minutes are up. I am sorry—I apologise to the House—but this issue is too serious for me to be curtailed to that extent. I know she will try, but if she will let me proceed I shall endeavour to be quick.
Baroness Farrington of Ribbleton: My Lords, there is not an allocation of two minutes. I am seeking to ensure that all noble Lords who wish to speak will be able to do so within the 20 minutes allocated.
Lord Maginnis of Drumglass: My Lords, I shall certainly endeavour to ensure that I do not take more than an adequate time. I find it tiresome that on an important issue such as this, which deals directly with Northern Ireland, I am the first to have a finger pointed at the clock.
I return to the foreword, which is supposed to ameliorate some of the difficulties presented by Justice Cory's report. In the second paragraph he states that he had the preliminary role of looking to see whether there is a case to be answered as to possible collusion "in a wide sense". As someone who soldiered in Northern Ireland for 12 years, I simply say that if there had been collusion in a wide sense the Gerry Adams's and the Martin McGuinness's would not be alive today. More importantly, the innocent Roman Catholics who were killed by loyalists would not be dead today. I do not believe that there was collusion in a wide sense.
Finally, perhaps I may inquire about the apparent confusion over the issue of the cost of subsequent inquiries. How will that be met? I heard the Secretary of State for Northern Ireland in another place state that it would not come out of departmental budgets but out of the Northern Ireland budget. I take that to
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mean that it will come out of the block grant. If it does, the knock-on effect will be that, ultimately, it will come out of the departmental budgets.
More importantly, what will happen to the retired police officers and retired military personnel who are required to give evidence? Where will the funding come from for them? Or will they, after all their service in Northern Ireland—to which the Government and everyone else pays tribute—have to look to their own resources and fund themselves?
Baroness Amos: My Lords, I shall address the questions as quickly as I can. I apologise to the noble Lord, Lord Smith of Clifton, who also asked about a future opportunity to discuss the inquiry. Obviously that issue needs to be discussed through the usual channels. This is a matter of considerable interest, I know, and I and others will consider what possibilities there may be for taking it further forward.
As regards Weston Park, let me quote the commitment made by the Government. We stated:
"If the appointed judge considers that in any case this has not provided a sufficient basis on which to establish the facts, he or she can report to this effect with recommendations as to what further action should be taken. In the event that a Public Inquiry is recommended in any case, the relevant Government will implement that recommendation".
That is the commitment that the Government stand by.
As to the issue of judges, of course we are very grateful to Justice Cory for the work he has done. In the Bloody Sunday inquiry the tribunal members combined both international and UK perspectives and expertise. We would aim to do the same for these inquiries. Costs will be met from the Northern Ireland budget.
Lord Mayhew of Twysden: My Lords, the report into the Finucane. investigation seriously impugns the conduct of four soldiers and other servants of the state. Is it not very unfair on these people that the report has not been much more extensively redacted than it has been?
If it is going to be published now—the noble Baroness was asked this question but I did not hear her reply to it—is it not the case that the judge never interviewed or consulted any of these soldiers, nor gave any of them any opportunity to deal with any ground for criticism which the judge was minded to identify? And yet had not the judge been expressly instructed by the Government in June 2002 that,
"Your task will be … to interview anyone you think can assist your examination"?
In the view of the noble Baroness, will it not be only a matter of days before the media uncover, if they do not know them already, the identities of all these individuals referred to by cipher initials in the report? Will not the media immediately go to town on them? Will not the individuals be precluded under the Official Secrets Act, to say nothing of the threat held over them of further prosecutions, from defending themselves? Will not they be foreseeably exposed to the risk of physical danger? How can this possibly be a fair

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procedure and how can the publication of this unredacted report in that regard possibly be said to fulfil the duty of care that all governments owe to those who serve or have served the state?
Baroness Amos: My Lords, I repeat what I said before. We considered very carefully our obligation to ensure fairness to individuals. There are parts of the report which are redacted, as the noble and learned Lord knows, but we had to make a balanced judgment. As I said, we gave individuals notice of our intention to publish the report and offered them the opportunity to receive the relevant report in advance in confidence.
As to the point about individuals being interviewed, Justice Cory has made it absolutely clear in his foreword the procedure that was followed. He states:
"Given the preliminary and provisional nature of the task assigned to me, and the desirability of arriving at recommendations expeditiously, it was not necessary or appropriate for me to hear any oral evidence from the individuals referred to in my reports. Obviously, before any final findings of fact or determinations of responsibility could be made, it would be necessary for individuals to have an opportunity of answering any potential criticisms which may he made of them".
On that basis, the Government have agreed that there should be inquiries into the three cases.
Lord Brooke of Sutton Mandeville: My Lords, I hope that the House will understand if I quote a sentence from a speech of the Secretary of State for Constitutional Affairs and Lord Chancellor in winding up the debate on the Hutton report. The noble and learned Lord said:
"The Government fully accept, and must learn from the fact, that much more care could have been taken in relation to Dr Kelly and we apologise unreservedly for that".—[Official Report, 4/2/04; col. 788.]
In the context of those cases, how have the Government demonstrated that they have learnt from their confessed omissions in the case of Dr Kelly, for which the noble and learned Lord, Lord Falconer, apologised unreservedly in the debate?
Baroness Amos: My Lords, the Northern Ireland Office, the Northern Ireland Prison Service, the Ministry of Defence and the Police Service of Northern Ireland have taken a number of steps to ensure that staff are properly supported. Letters were sent to individuals in recent weeks to alert them to the publication of the report and to offer them the opportunity to receive it in confidence the day before publication. Individuals have been reminded by their organisations of the support that is available: for example, through trade unions, the welfare services and personnel departments. At publication, letters were sent to individuals to inform them of the Secretary of State's decisions and to seek to answer any questions that they might have.
Lord Mayhew of Twysden: My Lords, since there is a little time left, perhaps I may draw a further point to the attention of the noble Baroness in the light of her assertion, in justification of the Government's action, that individuals had been sent in confidence copies of the report. The point is that they had no opportunity to comment on any ground of criticism discerned by
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the judge before the report was finalised. That is an absolutely essential element of fairness in any procedure of this character.
Baroness Amos: My Lords, that is precisely why the foreword of the report makes it absolutely clear that its determinations are not final, nor are they attributions of responsibility. That is why a decision has been taken to have inquiries into those cases.
Lord Brooke of Sutton Mandeville: My Lords, since we are allowed a little further time, in the light of the answer that the Leader of the House has just given, it should be stated that issues about the identity of the people becoming known are absolutely on a par with the case of Dr Kelly, where the problems of care emerged. On the basis of both the answers of the noble Baroness, I cannot agree that proper care has been provided.
Baroness Amos: My Lords, I do not agree with the noble Lord, Lord Brooke. We have taken care. We made a balanced judgment. We looked at the support that is available to those individuals. We did that very carefully indeed.
Baroness Park of Monmouth: My Lords, I have three points. First, are we to see the reports sent to the Irish Government as well, since they address cases that are of great interest to them? Secondly, at Weston Park, the OTR promise was made. Will that he stuck to? Al that time, the on-the-runs were told that there would be a minimal judicial inquiry and process. I hope that the Government will now apply the same rules as they appear to be applying in the report. Thirdly, the two governments signed an agreement on "the disappeared", which accepted the IRA condition that there should be no serious inquest that could reveal, through DNA or otherwise, the identities of the murderers of the people who disappeared. Two bodies were returned after that. Does the Minister expect that a number of families, like the McConville family, may now come forward with an equal right to demand the kind of inquiry that is now been considered?
Baroness Amos: My Lords, in answer to the first question of the noble Baroness, yes, the reports have been published. I am afraid that I did not hear the second point of the noble Baroness. She spoke about promises, but promises to whom?
Baroness Park of Monmouth: My Lords, a commitment was given to Sinn Fein/IRA that the on-the-runs who were responsible for the Enniskillen outrage would be offered the opportunity to return home, to give themselves up, to go through a minimal judicial process and then to rejoin their families in a happy way. That was my second point. I hope that the noble Baroness understood my third, which concerned the commitments given to the IRA about "the disappeared".
Baroness Amos: My Lords, I am still not entirely sure about the point that the noble Baroness is trying

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to make. I shall write to her and I shall put a copy of my letter in the Library of the House. I shall look at Hansard carefully.
Lord King of Bridgwater: My Lords, in failing to rise to my feet I should not be construed as in any way disagreeing with my noble and learned friend Lord Mayhew and my noble friend Lord Brooke. A number of the murders to which the reports refer occurred during my time as Secretary of State for Northern Ireland—the tragic killing of Patrick Finucane and the brutal murders of Chief Superintendent Breen and Superintendent Buchanan.
The argument that the Minister adduced—that the findings are only provisional—seems only to underline the point that has been made; namely, that Justice Cory himself is accepting that his is not the final determination. Other facts may come to light and, in the mean time, a number of people will be represented in an unfavourable light—maybe an unfair one.
I entirely understand the difficult position that the Government are in. They insist that wrongdoing cannot be tolerated. It is a pride of our country that we have sought to fight terrorism at all times under the law, and a number of brave people have lost their lives in seeking to preserve that principle at all times. However, the last paragraph of the Secretary of State's Statement that the Minister has repeated says:
"Northern Ireland needs greater reconciliation between the communities. That is where all our attention needs to be directed".
Events will now proceed and claims will undoubtedly follow from many other people who have a genuine grievance that they think is equally worthy of attention. The hope that all our attention will be devoted to reconciliation is a pretty vain one.
Baroness Amos: My Lords, I entirely accept the point of the noble Lord, Lord King. There is no hierarchy of victimhood. I totally understood that some families will be concerned that attention has been given to particular cases and not to their own. In the context of questions about a possible truth and reconciliation forum, we must try to work with all the key players in the Northern Ireland community. Neither the British Government, the Irish Government nor the key players in Northern Ireland can solve the problem alone. We need to work together for the good of the people of Northern Ireland while recognising the deep historical sensitivities that will dog us along the way.

Business
Lord Grocott: My Lords, before we start the Second Reading debate, I remind the House of the timings for the rest of the day. If Back-Bench contributions were around eight minutes, allowing for the Second Reading debate, the order and the Unstarred Question that follows, the House would rise by about half past eight. That is rather later than we would normally rise
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but is none the less acceptable to everyone with whom we have discussed the matter. I hope that that helps noble Lords.

Traffic Management Bill
5 p.m.
Lord Davies of Oldham: My Lords, I beg to move that this Bill be now read a second time. This a Bill to cut out the unnecessary congestion that motorists and other road users encounter. Decades of under-investment coupled with rising prosperity and mobility mean that the pressures on our road network are greater than ever before. The Government are committed to improving the reliability of journeys for business and individual road users. Some £180 billion of public and private money is being invested in transport over the 10-year plan period. That is 45 per cent more than over the previous decade. But we cannot build our way out of all our problems. The financial, social and environmental costs would be too high and, in some places, there simply is not the space for new infrastructure.
The Bill will help the Highways Agency and local authorities to manage existing road space more effectively, so that, for all the investment, the public gets value for money. Turning the Bill into action will give the Highways Agency and local authorities the powers that they need to manage roads in the interests of the people who use them—clearing up quicker after accidents and managing roadworks better, to give just two examples. There will be a sharper focus on reducing congestion. Local traffic authorities will have a new duty to secure the expeditious movement of traffic. Ministers have tasked the Highways Agency with becoming a network operator, managing traffic and responding quickly to incidents.
On trunk roads a quarter of congestion is caused by incidents, but that is only one part of the picture: 65 per cent of it is a result of lack of capacity. We are investing in more capacity where the need is greatest, widening motorways like the M1, M6 and M25, and completing 17 new trunk road schemes last year. With the right safety procedures in place we will also be piloting hard-shoulder running, and new powers will help the agency to minimise the disruption caused by works.
Part 1 of the Bill will help to reduce the amount of congestion that incidents cause. Before the end of this month, there will be a uniformed traffic officer service helping to keep the network clear, working with the police to get traffic moving again after incidents, so that people are not held up any longer than necessary. Once the Bill receives Royal Assent, traffic officers will be able to do more, such as divert traffic away from incidents. The service will be developed in tandem with new regional control centres, which will manage on-road resources and provide motorists with more accurate information to help plan their journeys. In time there will be 1,200 traffic officers—additional, dedicated resources freeing up the equivalent of 540 police officers. Police forces will be free to redeploy that officer time to focus on tackling serious crime.

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On local roads the challenges are slightly different. Capital funding for local transport authorities has more than doubled in the past five years. We announced another £1.9 billion in December: a package including funds for new roads, such as the A354 Weymouth relief road and the A509 Isham bypass, as well as major public transport schemes such as guided busways in Cambridgeshire and Luton. We are providing both new capacity where that is sensible, and attractive, sustainable alternatives to the private car.
In our cities, it will be recognised that there is little space for new roads. But our cities are thriving centres of economic activity, attracting lots of people and traffic. Existing capacity has to be managed properly. There are many potential obstacles to free-flowing traffic on local roads. The new network management duty, together with the new powers elsewhere in the Bill, will help authorities to identify and tackle those obstacles, such as roadworks, inefficient junctions, skips, drivers ignoring box junction rules, and so on.
Desperately needed powers will help authorities to manage road works better—an issue that the House has addressed on a number of occasions. Utilities provide vital services, but the disruption that their works can cause creates a very significant cost for the wider economy. Works need to be co-ordinated effectively, and completed as quickly as possible, at less disruptive times. In 1985, the cost to the economy of the disruption caused by street works was about £35 million. Now that cost runs into billions of pounds every year. Authorities have a duty to coordinate all works, including their own, but, until now, legislation has not even allowed them to tell a utility not to carry out its works on a particular day.
Parts 3 and 4 will put effective powers in place. Those carrying out works will comply with stricter conditions to limit the negative impact on road users. There will be longer digging embargoes after major works to help co-ordination and protect the public from endless disruption. A tougher enforcement regime will ensure that the new measures are taken seriously. Much of the detail will be in regulations. Working groups are looking at what form those regulations should take. They will report to us in the summer, after which there will be public consultation, so that key regulations can be in place as soon as possible.
In Part 6 there are new civil enforcement powers to bring more aspects of traffic management under the control of local authorities. Minor offences can cause congestion and safety problems: people blocking box junctions, making banned turns, or driving into pedestrianised areas. These are all offences, and have to be enforced if roads are to work well for the people who use them. But the police, understandably, have more obvious priorities. It is quite understandable that many forces are focusing more and more acutely on serious and violent crime, including serious traffic offences, such as drink-driving.
If we are clear that traffic offences should not be committed, then we have to be clear that they should be enforced. Part 6 allows for that, giving local
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authorities powers to enforce parking, bus lanes and a range of moving traffic offences. These powers will be used sensibly. Authorities will be expected to comply with guidance. To take the example of yellow box junctions, it may be that in many places an authority will want to enforce only one or two key junctions. But doing that might be an important step towards keeping traffic moving. London authorities have these powers already and will be piloting them soon. We will learn from what happens in London before extending the powers to other authorities.
But we are not just creating new powers. Often the right powers are already in place. They need to be used effectively. So many activities can affect traffic flows: management of junctions; public transport; winter maintenance; on street parking; roadworks; and street works. The new duty to keep traffic moving can be a stimulus for authorities to revisit some of those activities. We are working with local authorities and others to develop the guidance on the network management duty, and will make a draft available in Committee.
Authorities will identify the causes of congestion or disruption, now and in the future, and find appropriate ways to respond to them, minimising or preventing adverse effects on road users Local authorities are well placed to know what is happening on their network and can use the additional funding that they are being given to implement the right solutions. Many authorities are doing this already and we have been pleased to see more authorities adopting this kind of approach, even with the Bill before Parliament. In future, we expect all authorities to meet the standards set by the best. But it would not be prudent to take this for granted. The Bill contains powers for government to intervene if faced with a clear case of an authority that was failing local road users and unable to turn things around.
The Bill will see effective management of our roads by all local authorities and by the Highways Agency. Reducing congestion and making journeys more reliable is at the heart of our transport objectives and policies. The Bill will put the right powers in place and create the right environment for these policies to be delivered. I commend the Bill to the House.
Moved, that the Bill be now read a second time.—(Lord Davies of Oldham.)
5.10 p.m.
Viscount Astor: My Lords, I thank the Minister for introducing the Bill. There is much in it that we welcome and support. However, like many Bills that arrive in this House, there is still more work to be done—rnore work to be done so that the Bill does not become a greater burden for those it affects but brings about improvements. We are pleased with the few changes that were made in another place, where the Government did listen to the concerns of the Opposition and promised to come forward with changes in this House. I am always prepared to give the Government credit when it is due, but it does not happen very often.

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Sadly, this Government have not been a friend of the motorist. In their first Parliament they cancelled new road building, cut road spending and cut road improvements. They have only just begun to concentrate on how to catch up with the vital work needed to maintain our road network. But today we hear that the Highways Agency has admitted that 10 major road improvement schemes are under threat due to cuts as the money will have to be diverted into the rail network. Only last year, the Secretary of State Alistair Darling announced the revival of the road projects cancelled by John Prescott. I wonder whether the Minister will tell us if they have been cancelled again.
The Bill is about traffic management and easing congestion. Congestion does not just irritate the motorist; it has far more serious implications. Congestion has economic and environmental effects. It raises costs for industry, it delays those involved in road haulage, it makes us less competitive and it increases pollution. The motorist in this country is unloved by the Government, overtaxed, harassed and often abused. A revenue of £45 billion is raised every year from the British motorist.
Let me turn to the proposals for the Highways Agency to take over responsibility for getting traffic moving on the motorway network. There is a risk that this new army of enforcers will end up competing with the AA and the RAC. The result will be that motorists who break down will be charged twice, once by the Highways Agency to shunt them off the motorway and then charged again by the breakdown services to get them to a garage or to get them home. Why not use the existing service providers rather than create a new bureaucracy?
Traffic officers should be directing, not being operators. The Bill as it stands creates a monopoly roadside recovery service, funded by charges levied on the motorist. There will be 1,200 traffic officers who will theoretically free the police from some of their duties but who will come under the police. As most incidents on motorways are the result of accidents, the police will still have to be there taking evidence. They will need to be at the scene of the accident anyway. In the proposals, there are therefore recipes for further delay rather than improvement. They could result in doubling up of resources. We will want to examine that in Committee.
As the Minister said, congestion is largely caused by road traffic use. In the Government's transport plan, published in 2000, they foresaw a drop in car use; in fact, car use has grown and road spending has not kept up. The Transport Research Laboratory report shows that 66 per cent of all congestion is caused by road traffic, a figure that has increased every year that the Government have been in office. Accidents cause 24 per cent of congestion, a percentage that has remained about the same during the period, and 10 per cent of all congestion is caused by roadworks, split equally between local authorities and utilities. That figure has halved in the period.
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We are all amazed, however, when we see how often streets round us are dug up—it is sometimes almost weekly by different operators. Just as they have finished, or sometimes half-way through or before they have started, along comes a local authority and resurfaces the road. Then one again wonders when the next person will come along. We welcome the idea behind London Works, a database of all work by local authorities and utilities, which we hope will improve planning and management of our capital's roads. However, it costs money for utilities to dig up roads and provide the services that most of us take for granted. Utility companies do not dig up roads for fun. The longer the job takes, the more it costs them. Very often they undertake the work because of an emergency or problem with their utility.
The question that we must address is whether the proposals in the Bill will make a difference for the better. Will additional costs to the utilities be passed on to the consumer—to you and me? The jury is still out. In the pilot schemes operated in Camden and Middlesbrough, in spite of the charges made on utilities, delays were just as bad. We all want improvements. Local authorities are as responsible for the delays as the private sector. Should they not also be brought under the charging scheme, or at least suffer the same penalties? That is something that we will want to examine in Committee.
We shall also wish to see draft regulations and guidance that the Government intend to issue. The devil is always in the detail, and in this case the details are particularly important. Various groups have also raised concerns that the regulations will be accepted without proper consultation. Therefore, I expect that the Minister would welcome the chance to calm those fears by saying that he will be able to publish the draft documents in time for Report in this House at the very latest, enabling scrutiny and discussion to take place on the details.
A particular concern is the charging element, and we want to ensure that local authorities can charge only reasonable fees and not use the new regulations as a way of gaining extra revenue. We fear that it could become another stealth tax, as the costs will be passed on to the consumer. It could cost every household £55 million, a total of £1.2 billion a year.
Lord Faulkner of Worcester: My Lords, I think that the noble Viscount means £55 per household, not £55 million.
Viscount Astor: My Lords, £55 per household totals £1.2 billion a year. We will consider whether the Bill should include statutory powers of arbitration to avoid any disputes arising from the operation of the permit scheme.
If there is one aspect of driving that infuriates us all, it is the uneven and sometimes dishonest way in which the public are treated by those responsible for the administration of parking. Wardens are often driven by commercial considerations—simply greed—to catch as many motorists as they can, because they are under pressure from above to meet quota targets that

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affect their pay and bonuses. Widely ranging practices are currently applied to decriminalised parking enforcement contracts from one council to another. We all have our own horror stories. I had a recent one when I tried to take on Westminster Council over improper clamping. I failed miserably; I suddenly realised that my appeal had no chance of succeeding, however much I was in the right.
The Government have conceded that there is a problem. On Report in another place, the Minister there offered that his department would issue guidance to all local authorities. That was very welcome; we must give him credit and welcome that here. However, I must tell the noble Lord that we will require to see at least draft guidance before the Bill leaves this House, otherwise we might be tempted to amend it here.
We will want to ensure that local authorities show some consistency. Will the Minister explain why only 80 local authorities outside London have acquired decriminalised parking enforcement powers under the Road Traffic Act 1991? I would also like to look at the law governing rogue private dampers, if I may call them that, who often hold the innocent hostage, demanding exorbitant fees. Their business seems to be not parking enforcement but extortion, and there is no appeal apart from a rather long, complicated and expensive process through the court.
The Bill will allow Transport for London to coordinate traffic management between the boroughs and other traffic authorities. We approve, and the Bill also allows for a single London-wide permit scheme to cover all types of works in the street. However, we are concerned with the clause that allows a traffic director to be appointed to intervene if the boroughs fail. On what basis exactly would they fail, and against what criteria will that failure be judged? I would be interested if the Minister could help us on that.
I understand that there is no requirement for local authorities to publish their policies and objectives for road management. Can the Minister confirm this? Does he think that they should publish their objectives and policies?
There is much that should be better co-ordinated in London. A simple example is that every London borough has its own gritting policy. Some do it well while some do it badly. Has the noble Lord's department considered issuing guidance on such policies to ensure that pavements and roads are made safe and kept free of ice and snow?
The new network management duty is crucial and I understand that the Government plan to issue guidance. We will want to consider whether Transport for London should be given the power to issue supplementary guidance for the capital.
I turn briefly to the issue of bus lanes. Different councils have different policies for bus lanes, and this subject was debated at length in another place. Bus lanes operate at different times and varying rules. While it is clear that we need bus lanes during the rush hours, do we need to keep them almost empty for the remainder of the day and night? I think that we should explore a sensible policy on their use.
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We will also want to debate why this Government feel so strongly about not moving closer to Europe when they consider speed limits. Why do we not operate the same speed limits as some of our European neighbours? Does the Minister think that our drivers behave worse on our motorways than do our continental neighbours on theirs? The argument that the Government have always used is that we have a better safety record. However, does that really stand up to scrutiny? Can the Minister provide us with a breakdown of figures for road accidents showing not only what they are generally, but also making a comparison between incidents on motorways, ordinary roads and minor rural roads? I think that those statistics may change the argument somewhat.
I have touched on some of the issues that we will all get to know well. But let me end with a plea for the British motorist. Most drivers do not use the roads for pleasure; they do so out of necessity. We need to make sure that this Bill makes life better for them.
5.22 p.m.
Lord Faulkner of Worcester: My Lords, I am pleased to join in what I suspect will be a general welcome for this Bill because there is no doubt that there is much public irritation at road delays and congestion caused by what are seen as unnecessary street works.
I should have thought that few people could take exception to the proposal to establish traffic officers to manage traffic on the roads, to monitor the condition of roads and to report on defects and problems. Equally sensible are the new duties to be placed on each traffic authority to manage its roads in a way that secures the movement of traffic and to co-ordinate the digging up of roads by utilities and local authorities. There is nothing more irritating than to see one lot of road works undertaken by one utility being followed immediately by those of another.
However, I do have a number of concerns about the Bill which I think are more of emphasis than substance, and it may be that my noble friend will be able to answer some of these when he responds. We shall certainly be able to come back to them in Committee. The most important of my concerns centres on road safety, and I declare an interest as president of the Royal Society for the Prevention of Accidents. I am proud indeed to follow my noble friend Lord Davies of Oldham, who is my distinguished predecessor in that role.
I can understand why the Government would like to speed up the clearance and reopening of highways after an accident, and that is obviously what lies behind the transfer of a range of traffic management powers from the police to Highways Agency officers, including responding to road incidents. But there is a worry that an apparently streamlined procedure could delay matters, because if it appears that a criminal offence has been committed in the cause of an accident, the police would have to become involved alongside the Highways Agency people. The temptation to clear a crash site and get traffic moving at the risk of losing important evidence always needs to be resisted. Whether the Bill needs to be amended to take account of this concern is something we can look at later.

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Looking at Clause 16(1). it is fine for the Bill to place a duty on local traffic authorities to secure,
"the expeditious movement of traffic on the authority's road network'',
as long as keeping traffic moving is not achieved at the expense of road users other than motorists. I am reassured that the Government's response to the report of the Select Committee in another place made it clear that the term "traffic" applies to cyclists and pedestrians as well as motorised vehicles. In view of that, I hope that they will give the assurances that the All-Party Group on Transport Safety is seeking that this definition of traffic is contained in the guidance accompanying the Bill and that indicators for measuring congestion will include the safety and ease of transit of pedestrians and cyclists.
I also hope that the Bill will not in any way be used to weaken the important road safety initiatives which have had such an effect in reducing casualty figures, particularly in London. Traffic calming, for example, is an extremely effective way of saving lives and preventing injuries. The 20 miles per hour zones in London have achieved huge reductions in the numbers killed and seriously injured in those areas where they have been introduced. These include 61 per cent fewer child pedestrian casualties, 60 per cent fewer child cyclists killed and seriously injured, 47 per cent fewer child car occupants killed and seriously injured, a cut of 50 per cent in the number of pedestrians and cyclists killed and seriously injured, and a reduction of 68 per cent in the number of motorcyclist casualties.
Those figures provide the answer to local authorities such as the London Borough of Barnet, which is adopting fanatically pro-motorist policies. Perhaps the noble Viscount approves of them, but I do not think many other people do. These measures involve ripping out sensible traffic-calming and safety measures such as speed humps and bus and cycle lanes and allowing pavement parking.
In that context, I commend to your Lordships the very helpful brief which I, and I imagine other noble Lords have been sent, by the Royal National Institute of the Blind. On pavement parking, it makes the point that illegally parked cars block the footway, causing people to knock into them and force pedestrians on to the road to get past them—a dangerous and frightening experience for visually impaired people. The RNIB would like the law changed so there is a universal presumption against pavement parking, as there is in London.
A further area which requires clarification is the new network management duty. This is obviously a crucial element in the Bill, and it will be necessary for the Government to publish rather more guidance on this than has appeared so far. From what my noble friend said earlier. I am sure this will be forthcoming. But I wonder whether particular concern has been taken of the special requirements of London in this regard.
On Tuesday I was one of a number of Members of this House who visited the London Traffic Control Centre which Transport for London runs in
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partnership with the Metropolitan Police. Apart from being the engine room of the congestion charge—which, happily, continues to have a beneficial effect on the volume and movement of traffic entering central London—the control centre monitors congestion through the use of 1,000 closed circuit television feeds. It has the potential to spot congestion building up and then do something about it.
In common with virtually everyone else, TfL supports the Bill. It does, however, believe that the Mayor of London should be empowered to give additional guidance to London authorities in relation to strategic roads. This, I suspect, is a matter to which we shall want to return in Committee. We might also look at the possibility of establishing in London a single system for the granting of permits to carry out street works.
The needs of local authorities in relation to digging up the roads are pretty similar to the needs of the utilities. It would certainly seem to make sense for there to be a uniform approach, perhaps, as TfL suggests, in the hands of the borough traffic manager. provided that he or she is independent of the highways department.
I gather that the utilities are worried that the Bill would allow different permit systems to be developed by the various traffic authorities, thus imposing a significant extra burden on them. One way round this, as far as London is concerned, is to have a single system in the capital.
Finally, I promised my noble friend Lord Puttnam, as he cannot be with us today, that I would raise one issue on his behalf, which he intends should be the subject of an amendment in Committee. This concerns the closure of roads for the purpose of filming. His amendment would allow local authorities specifically to classify film as an event, by amending the Road Traffic Regulation (Special Events) Act 1994, thereby giving them the power to close roads to allow filming to take place. My noble friend has kindly provided me with a comprehensive briefing paper on the matter, but it would be better if we waited until Committee before going into detail.
In essence, the aim of the Bill is to achieve a consistency of approach across the country. However, that is an issue for Committee, along with a number of other matters, which I am sure will be raised at that stage. I look forward to further discussion and, meanwhile, wish the Bill well.
5.30 p.m.
Lord Sheppard of Didgemere: My Lords, I wish to comment on the Bill with particular regard to its impact on London. I probably should declare various interests—I was born a Londoner, I am a Londoner, and I was the founder and am now president of London First.
Business is particularly concerned about the inadequacies of most of London's transport, but congestion is a particular problem, as we have heard, not only because of the cost impact but because the

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variability of journey times makes any matters such as planning meetings impossible. The situation has improved with congestion charging in central London.
If London's economy is to prosper—and without the prosperity of London the UK will suffer—an effective road system is vital. We could bore each other with statistics, so I shall give the House only a couple. For example, the 16 per cent worsening in average off-peak speeds in inner London during the 20 years ending 2002, compared with the 31 per cent improvement in morning off-peak speeds that took place on red routes in the second half of the 1990s, shows that effective road management can improve matters.
It is important that we do not talk about "cars versus public transport"—85 per cent of commuters to central London use public transport. Efficient use of roads is essential, not only for cars but for the emergency services, deliveries and buses. As we know, London, like other cities, cannot build its way out of the road congestion problem. To that extent, I welcome the approach of the Bill, because it attempts to manage the existing road network better. Of course there are some details to be examined, to which I shall return.
We have just heard about Transport for London's traffic control centre near Victoria Station, which I also visited earlier this week. There, one can see at a glance how complex the problem is, both in terms of traffic flow monitoring and road works systems. One is also struck by the determination and professionalism of the people there who work with the boroughs and the police to achieve improvements. Many of the computer systems that they are examining are just about beginning to work. They look as if they are heading in the right direction—let us hope that they make it.
With 35 different highway authorities in London, any one of them can cause havoc by interacting badly with another—whether it is TfL or one borough with another borough. The Bill's encouragement of greater co-operation and co-ordination is essential for both road works and traffic flow. We must discuss in Committee whether the balance between the boroughs and TfL is correct and whether TfL is being given slightly too passive a role, although that is an emotive subject. Local residential roads and high streets are best managed by local knowledge of the boroughs. However, London needs a single authority to manage its main roads. The problem is where to draw that line and how to distinguish a main road, in terms of being strategic, from a local road. The current position is not satisfactory.
The fact that the Bill lays the basis for attempting to define a wider strategic road network in London is welcome. I shall not name the few boroughs that deliberately discriminate against traffic on main roads by setting traffic lights to give more time to minor roads. They are probably trying to benefit the people that vote for them, who live on minor roads.
Under the Bill, TfL will be able to stop that kind of interference. The question is: is that realignment enough? Co-operation between TfL and the boroughs is obviously vital. It cannot be only one-way co-operation
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and needs to be based on a more coherent strategy for managing the strategic road network in London. TfL has not yet produced such a strategy. Once it does, the Bill should give it fractionally more powers than those being proposed to avoid deadlock with the boroughs. The Bill should require boroughs to implement the strategy, and it should give TfL powers to ensure that its implementation of the strategic network which are similar to those which existed for the operation of red routes.
I also welcome powers in the Bill to co-ordinate street works and set time limits. If what currently happens were not deadly serious, it would be a joke. The comment that this should extend to the roadworks carried out by highway authorities is right. It is critical to avoid digging up parallel routes. Different authorities may control river crossings, for example, and it would be crazy if there were no co-ordination. We all know examples of that.
Should there be a single scheme for Londoners so that utilities do not have to provide 35 authorities in different formats of input? From reading the 200 pages of text I was given, naively having asked to be briefed on the Bill from all types of sources, I was not clear whether the penalties would be hypothecated back to transport. Clearly, TfL fines will come back to a transport authority, but could they be spent in another way in the boroughs? I do not know what happens outside London but I believe that the fines should be hypothecated.
A controversial issue that is not covered in the Bill is lorry control. A London-wide scheme was introduced by the GLC in the mid-1980s banning the movement of HGVs in London at night and weekends—unless a specific permit had been issued. But the world has moved on since then. The M25 has stopped many lorries driving through London on their journey from the north and the Midlands to the southern ports. Lorries are now quieter and have fewer emissions than was the case 20 years ago, although I am sure they could do better. So should we be looking at a lorry ban? The ALG is doing so, but it seems to be doing so slowly. Is this costing business—and therefore all of us—money? Certainly it is. Taking one example, Sainsbury's reckons that when operating its fleet within the GLA area, the lorry ban, with its predetermined routes which must be followed, annually adds 750,000 kilometres to its fleet operation. That cannot be too good for Sainsbury's and it is not good for the rest of us who are trying to breathe the air. This is a London-wide issue. Should the Bill be amended to transfer this role to TfL in order to achieve a pan-London approach to the lorry ban?
My view, on behalf of London, is that the Bill is to be welcomed. However, we have much to discuss in Committee because much detail needs to be debated to make the Bill even more effective. Furthermore, I here must be a great deal of regulation behind the Bill. It is vital that there is full consultation with all interested parties on that, including the business community, if we are to have legislation that works and makes London a better place in which to live and operate.
5.39 p.m.
The Earl of Erroll: My Lords, I welcome the idea of keeping traffic moving fast because I get fed up sitting in traffic jams while the road is being dug up in front of me. I want to concentrate on the implications in the Bill that might hinder the Prime Minister in achieving his stated aims to make Britain the best country for e-business in the near future—by 2005 or 2008. The problem arises with minor works because under the proposals it could take time to obtain a permit.
It is not the telecommunications companies that are now digging up the major roads. The vast majority of the long-distance, or trunk, capacity for the telecoms backbone is now complete, but we still need to connect businesses to that backbone. That can be a minor job, often taking less than a day, and yet it will still probably come under these regulations. Minor swift repairs and servicing also need to be carried out to ensure that things do not get worse and lead to an emergency. We should bear in mind the old saying, "A stitch in time is worth nine".
At present, telecommunications companies have a major incentive to work speedily, partly for commercial reasons but also because they can be fined heavily under current legislation. Interestingly, the Commons Transport Select Committee did not believe that a new system was required. I note that there is some concern that the new system penalises the private sector utilities while favouring the public sector local authorities and highways agencies, which are responsible for 50 per cent or more of the roadworks. That balance is perhaps not fair.
I believe that the real problem is the increase in bureaucracy implied in trying to obtain a permit for small works. I am told that the system in Scotland—Susiephone—has been in use for some time and has worked terribly well. It is not a musical instrument but a telephone line and information centre. People can ring up to find out about networks that are planned in the future and dovetail their own works with those. That system was also used in Northern Ireland. I should have thought that something along those lines would achieve far more, particularly in relation to minor works, than any heavy-handed regulation. I draw the Government's attention to the Better Regulation Task Force recommendation that the Cabinet Office should use its report to promote awareness of the alternatives to classic regulation. I believe that there is certainly a case for that.
I want to highlight another problem relating to the regulations. Their drafting will not be subject to parliamentary scrutiny and, in that case, the assurances from the Minister that the utilities will be consulted might count for little. I am briefed that it is already becoming clear in the meetings of the working groups which are tasked to draw up the regulations that the DfT is attempting to backtrack on some of the commitments made in the Commons. That is slightly concerning.
One other aspect that rather worries me is the potential liability on business to be responsible for the future costs of resurfacing. So far as I can make
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out, that liability can lie on a company's balance sheet for some time. I do not think that that provides for good business planning in companies and it should be given careful consideration.
That is all on the IT side. The other point that I was unsure about concerned the Highways Agency being able to operate recovery services in some areas. Personally, I should prefer to use the recovery service to which I subscribe. It is well set up and well organised, and it knows how to get my vehicle out of a difficult situation and transport me to my final destination because that is what I have paid for. Dealing with two sets of people who are trying to recover vehicles could cause greater complexity and would be less efficient, and the public would become very cross, which would not help at all.
5.43 p.m.
Viscount Simon: My Lords, I thank my noble friend for comprehensively introducing this Bill which, like the curate's egg, is good in parts.
Later this month, on the M42, the Highways Agency will commence a trial to see how its roles and responsibilities in the transfer to it of certain duties carried out by police officers will proceed in practical terms.
The most common incident on motorways is the routine breakdown. Ministers in the other place have stressed that it is not their intention to prevent breakdown services continuing to operate. However, lawyers acting for the AA have advised their client that the Bill could enable the Highways Agency to establish a monopoly roadside recovery service funded by charging motorists.
A friend of mine overheard a conversation only yesterday which might confirm the fears of the AA, other breakdown and recovery organisations and the noble Viscount. Lord Astor. That conversation was to the effect that the Highways Agency will be able forcibly to remove a broken-down vehicle from any part of the trunk roads, including the hard shoulder, and then charge the victim at least £105 for so doing. The poor motorist will then he taken to a designated area—probably a recovery yard—where he will have to make onward removal arrangements or face storage charges. I am led to understand that a simple amendment to the Bill, consistent with the ministerial assurances, would ensure that such powers will not be given to the Highways Agency without intent. Once people understand what the Highways Agency can and cannot do, there will be vociferous complaints from justifiably aggrieved motorists if the overheard conversation proves to be correct.
Further as the Bill is drafted, it would not only enable the removal of motorists' existing right of choice of commercial provider, but also remove the right of one motorist to stop and offer assistance to another—usually family and friends. Consumer protection issues also appear to have been overlooked because the Bill gives powers for charges to be set to create a revenue stream in the financial interest of the Highways Agency or contractors—those who are empowered to remove vehicles.

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The Disabled Drivers Association draws attention to the special needs services provided by the major roadside recovery organisations and that it would neither make sense nor be acceptable to the association to put these national services under threat. Going one stage further, what would be the knock-on effect on those millions of drivers who currently benefit from recovery services sold with new cars? I am delighted that duly authorised people will be given power to inspect disabled drivers' blue badges and I hope that that could be extended to inspections of vehicles in supermarket car parks and in other places where abuse regularly takes place.
The blocking of box junctions has been mentioned and such junctions are mentioned in the Bill. I have a vague recollection that there is an anomaly concerned with box junctions. A box junction is exactly that. It is a yellow painted box at a junction. However, some box junctions painted yellow are on roundabouts. Under current legislation my understanding is—I hope I am wrong—that it is not clear whether a roundabout is a junction. Perhaps we can have clarification about whether a roundabout is a junction.
The current edition of the Police Federation of England and Wales has a couple of excellent articles on the demise of roads policing. I will, as always, advise your Lordships that I passed the Class 1 advanced police driving course in the early 1960s and that I am encouraged by a number of constabularies to take further advanced driving courses, despite, in their eyes, my advancing years. I am the president of the Driving Instructors Association and a council member of GEM Motoring Assist.
Almost two years ago I passed the traffic police fast road and motorway procedures course which concentrated not only on various necessary actions to be taken but also on health and safety implications. In basic terms it is considered that two sets of eyes are better than one where fast-moving traffic is present. Having two traffic officers in a vehicle has, regrettably, not stopped sonic of them being killed on our motorways and dual carriageways. That should not happen.
None the less, I was surprised to learn that because of the falling numbers of specialist traffic officers, some constabularies are to introduce single-crewed traffic vehicles patrolling fast roads and motorways. We are told that the Highways Agency will ensure the smooth movement of traffic by coning off the sites of collisions and that they will be comprehensively trained. Consider this: if the police officer of a single-crewed vehicle is required by the Highways Agency to attend the scene of a collision and thinks that he or she needs assistance, what will happen if the vehicle called to attend is at the scene of another collision and so will be unable to proceed for some hours? The lone officer may consider it absolutely necessary to close the road—motorway or dual carriageway—until the other vehicle arrives.
The Highways Agency traffic officers will have to follow the instructions of the police officer and traffic would come to a standstill simply because some senior
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officers consider it safe for a lone officer to attend in dangerous situations. That, of course, is a situation that is forced on to the shoulders of senior officers—mainly due to cost considerations—but the well-being of their officers should come first. I can see the scenario of a single officer refusing even to get out of his car until another arrives.
There was a time, not so long ago, when one could not travel on a motorway without seeing a motorway patrol car. That offered a significant deterrent to all manner of offenders, from the speeding motorist to the violent criminal. That is no longer the case and criminals feel free to use the motorway and trunk road network to ply their trade: they can travel long distances, away from their homes, with little fear of being stopped and found to have stolen goods in the vehicle.
The reliance on camera enforcement, while being effective in catching offenders with a current V5, is no deterrent to somebody using a car registered to no one or with its identity disguised by false registration plates. However, these actions would spark the interest of a road policing officer, who may well go on to detect or prevent more serious crimes.
The Highways Agency officers will have limited powers given to them and will not have criminal actions on their minds. First, let us consider moving traffic. A police officer has the power to stop a suspect vehicle or one that has committed an offence. He is able to do a search on the police national computer, to search the vehicle for stolen goods, drugs or offensive weapons and to inspect the vehicle to see if it is roadworthy. The police vehicle may well be fitted with ANPR—a very useful bit of equipment—enabling the officers to determine ownership of the vehicle stopped, among other matters. The Highways Agency officer cannot do any of that.
Let us now consider the scene of a collision. The Highways Agency officer can cone off the scene and sweep up debris. Will that person sweep away important evidence, as mentioned by my noble friend Lord Faulkner? Will that person know that important evidence is being swept away before the arrival of a traffic officer, who will need to investigate the collision where death or serious injury has happened? The last time I attended a road death was on a motorway and there was debris all over the road, which needed thorough investigation before being swept up.
If the intention is for the Highways Agency to police motorways at some time in the future they will have to be given the same powers as police officers, otherwise they will not be able to work effectively. I wonder if these proposals are intended as a cheap form of roads policing? Is this the precursor to a separate traffic police force?
The arrest rate for non-traffic offences by specialist traffic officers is very high; they have a feel for the imperceptibly studied driving of somebody who is trying to hide something. It is not only detectives who arrest offenders, but those arrested by the traffic officer are usually ignored. As I frequently say, a burglar will not carry stolen goods on the top of a bus.

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No, that person will travel by car, as quickly as possible. We should not forget that traffic officers are in the front line of stopping other crimes. Some 80 per cent of disqualified drivers have a criminal record, while almost half of convicted dangerous drivers have other convictions.
This highly observant body of specialist officers is being reduced little by little, with scant recognition of the implications. They should not be cast into obscurity. Criminals' cars break down; criminals get involved in all sorts of collisions; and drunk drivers stop to urinate on the hard shoulder. Without the police dealing with such incidents, these people would be allowed to continue undeterred—sometimes with fatal consequences.
A loss of expertise has been accelerated by safety cameras, which, I hasten to say, perform the sole but good job of filming those motorists who commit the criminal offence of exceeding the speed limit. But the cameras will not detect the dozens of other offences that motorists commit—both minor and major. If we are to reduce the level of collisions, we need more traffic police in addition to the role proposed by the Highways Agency, and the public should be convinced that the carnage has to stop. With drivers assuming that traffic police are so few that they can usually deal only with scenes of collisions, they will completely ignore legislation in respect of motor vehicles. The number of people killed and seriously injured on our roads will increase and the Government's clear intention of reducing the KSI figures will be in tatters. This must not happen. The pendulum will, eventually, swing in the direction of more police traffic officers—I hope.
I wonder why 540 police traffic officers are to be replaced by 1,200 Highways Agency traffic officers. Surely, that is not financially viable. Every time they get an awkward situation they will have to call the police, of whom there will be very few that are health and safety trained, to do their work on main roads. I find it somewhat ironic that I have these qualifications but that there are many police traffic officers who do not. Of course, by the time one of the few qualified officers gets to the scene of a collision the offenders might have left or, even worse, the situation could have escalated.
The potential problems posed by the Highways Agency doing certain things leading to warrant-holding specialist officers in patrol cars being withdrawn is, I think, fraught with problems which might have been discussed but which are not and will not be appreciated until collisions occur.
Finally, the most dangerous place on a motorway is the hard shoulder. To make use of this as an additional lane seems to me—I cannot say mad, because that is the wrong word, but the implications have not been thought out. Despite my misgivings about certain areas of this Bill, I hope that it proceeds smoothly.
5.55 p.m.
Viscount Goschen: My Lords, like other noble Lords who have spoken in this debate this afternoon, I
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believe that the objectives behind this Bill are certainly admirable. There are a number of provisions here that we can all support wholeheartedly. Indeed, I recognise some of the issues that this Bill seeks to address from days gone by, from a different era, in the latter part of the last century, when I and my noble friend Lord Astor sat on the other side of the House. I may well return shortly to address the point that the noble Lord, Lord Berkeley, made in a sedentary intervention.
I will confine my remarks to two parts of the Bill, the first of which, Part 6, allows for the civil enforcement of certain driving and parking offences. We have already heard some remarks about that this afternoon. We already have private contractors operating as parking attendants as a result of the Road Traffic Act 1991 and subsequent legislation. We now have a real problem in terms of the degree of respect that the average motorist holds for parking attendants. They are performing their duties in a different way from how traffic wardens used to. We are seeing practices whereby parking attendants are paid a low basic wage, and they are highly incentivised through bonus schemes to dish out tickets.
That has resulted in motorists feeling victimised. All too often, one has seen parking attendants going up and down roads, noting when parking meters are due to expire and hiding round the corner, only to come out and pounce when the clock has gone one second past the due time. This is a good way of raising revenue, and that is what all this is about—at least, that is what the motorist thinks it is about. There is little belief that this has anything to do with getting traffic flowing by discouraging illegal parking. It is about being overly aggressive towards motorists. That is unhealthy and unnecessary.
That is just the current situation. I note in Clause 73(5) that parking attendants appointed under Section 63A of the Road Traffic Act will be designated as civil enforcement officers. The idea of parking attendants who are carrying out their duties in the way that they are—certainly in London—with little training, making judgments on road craft fills me, for one, with utter horror.
Schedule 7 defines the many traffic contraventions that will be subject to Part 6 of the Bill. Section 10 of Schedule 7 gives a substantial Henry VIII clause, to allow the addition of new offences and new contraventions to be put in, with the proviso that they are not offences that would result in automatic endorsement. If this is to be the way that these minor offences will be prosecuted, we must be convinced that there will be proper training for civil enforcement officers. I would appreciate it if the Minister could address that point in his closing remarks. My noble friend Lord Astor talked about the guidance that the Secretary of State said would be given to local authorities. Again, I would certainly endorse his desire to see that at the earliest possible stage.
If one is pulled over by a policeman, for example for turning right when there is a no right turn sign, certainly one has the opportunity at least to discuss the

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matter with the officer before he decides whether or not to issue a ticket. A considerable degree of discretion applies. However, I should feel very differently if I was talking to an official who I knew would be remunerated according to the number of tickets that he or she issued. I am genuinely very concerned that the enforcement of traffic violations could earn the disrespect of the public, as has the parking system.
I wish to comment briefly on charges. I understand that the penalty for a parking contravention can be as high as £100. That could be awarded to someone who was one second over the limit of the parking time he or she was allowed. I suggest that is an entirely disproportionate amount of money when one considers that the road fund licence for a car for a year is, I believe, £165. A fine of £100 could be awarded for a moment's inattention or perhaps for a moment's delay in returning to one's vehicle that arose through helping someone on the street. That is a wholly excessive amount of money. Perhaps the Minister will say something about the level of charges that will be imposed and whether it will be any different from those that currently apply.
I echo the remarks of the noble Viscount, Lord Simon, in making a plea for police not to withdraw from traffic management. We need only to think of what is alleged, or reported, to have happened with the people who are suspected of causing the Madrid bombings to realise the importance of having high profile policing on the streets and to have people looking at vehicles. A number of terrorist outrages have been foiled due to stolen vans having "dodgy" lights that attract attention. That is a significant point. We need to see a transparent declaration of the sources and applications of the funds that are raised.
Part 1 relates to the establishment of traffic officers. Few people here would argue against a body of civil servants or contractors who would be able to help get traffic moving quickly on motorways and other trunk roads by cleaning up after accidents. That all sounds admirable and, of course, it is, but again we come back to the point that was very well put by the noble Viscount, Lord Simon, that we need to maintain a high traffic police presence on our roads. It is all very well for traffic officers to be tasked with clearing up after accidents, but despite their uniform and powers to stop and direct, they will not be policemen. Motorists need to know that they will still be vigilantly protected by the police. A reading of Clause 1 would seem to define a national traffic police force, or something that is one step away from it. Will the Minister comment on whether he sees that as a long-term objective?
I am concerned by Clause 8 which states that the national authority may,
"by statutory instrument confer further special powers on traffic officers".
That is a substantial Henry VIII clause enabling the Secretary of State to say, "Oh, no, we wish traffic officers to have not just the power of stopping but further powers that are currently exercised by the police". Further safeguards need to be established in that regard.
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There should be no confusion about these officers. We are now seeing on our streets a proliferation of people in uniform. There is genuine public confusion about who is responsible for what. We now see community police officers. There are many of them on the streets around Westminster, for example. I would be very surprised if the average man in the street knew what powers and responsibilities those officers had and whether they could stop and search people and so on. I have a residual concern about another group of uniformed sub police officers. For example, will they be able to travel with blue lights on their cars? Will traffic be required to give way to them? If they do not have blue lights, what happens at the scene of a major accident when those officers are the first to arrive? I suggest that without blue lights on their vehicles, they would find it difficult to perform the functions with which they are charged. I would like to know more about their interaction with the police; to have a clearer definition of their roles and responsibilities; to know about their training regimes; and to know how they deal with complaints, investigations and disciplinary proceedings.
Those are just two aspects of the Bill to which I should like to return in Committee. Overall, there is a great deal to be welcomed and I support much of the Bill. My final disappointment concerns the regulatory impact assessment of the Bill. The Department for Transport is rather good at analysing costs: for example, it costs road deaths and can say how many road deaths are needed in order to get a junction improved, and so forth. If any department is equipped to produce an impact assessment, that department would be. However, we are still rather vague on the costs and, more particularly, on the benefits that would flow from the Bill. It seems to be rather difficult to perform a cost/benefit analysis without a grasp of the costs or benefits.
6.6 p.m.
Lord Borrie: My Lords, as I go about my daily activities in London or outside London, I am as conscious as anyone of the inconvenience caused by obstacles making it difficult to exercise one's common-law right to pass and re-pass on the Queen's highway. So I am in favour of stringently enforced regulations for parked vehicles. From the outset, I have been keen on the Mayor of London's congestion charge. Like my noble friend Lord Faulkner of Worcester, I am impressed by its initial success. Therefore, I welcome, too, the general thrust of the Bill to restrict and limit the bad effects of breakdowns, accidents and road works of all kinds.
I imagine that one of the most popular provisions in the Bill will be Clause 41, which will extend the duty of street authorities to co-ordinate the street works of statutory undertakers. and of themselves. Clause 49 extends the authorities' powers to restrict new works on roads where works have recently been carried out: I expect that clause will be popular too. As the noble Viscount, the noble Lord, Lord Sheppard, and, I think, my noble friend Lord Faulkner said, the public

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have to put up with different bodies digging up the road in an apparently unco-ordinated manner in disregard of the public good.
However, balanced against those points, it is important that the obvious public interest of reducing obstruction in our streets, of which I have been speaking, is balanced with the less obvious, but none the less at least as important, public interest in the safety and efficiency of our gas and water mains. Certainly, the public ought to have as much concern about what goes on under and over our roads in terms of sewers, supplies of gas and water, telecommunications and so forth, as in the flow of traffic along the roads.
I do not have any current interests to declare, but for many years until last year I was a non-executive director of a water company. I became very aware of our responsibilities as a provider—both now and in the future when greater demands for water will undoubtedly emerge—of sustainable supplies of good quality water. I am sure we all know that the local media often voice the outrage of local people when there are frequent leakages from mains causing justifiable concern at wastage and sometimes disruption and damage to property.
Major programmes of mains renewal are needed in many parts of the country—probably most especially in London, I say to the noble Lord, Lord Sheppard. Those renewals programmes cannot be carried out except with some—albeit as temporary as possible no doubt—obstructions of the highway. Many people do not realise that half of London's water mains are more than 100 years old. Thames Water, the main supplier in greater London, has carefully worked-out plans—after the practicalities and the costs have been piloted—for the replacement of more than 1,000 miles of mains in the next five years. All our major cities and elsewhere have the same kind of problem.
While I accept the purpose of the Bill is to regulate—and I am all in favour of regulating such works—I ask that those who administer the permit schemes provided for in Part 3 should do so sensitively and with the public need for mains renewal and replacement firmly in the front of their minds. It is important that conditions imposed on the utilities are not unduly harsh—requiring, for example, that work be done only at night—and the charges imposed should not be as high as to suggest that they are generating revenue rather than being fair impositions on the utilities and their customers.
The utilities are quite reasonably concerned about the Bill but, because local authorities and highway authorities will not be charged for permits, utilities may in effect be providing subsidy to the works of those authorities.
As with so many Bills, a great deal depends on what will be in the regulations, and I agree with what the noble Viscount, Lord Astor, said earlier in the debate.
We should look at Clause 36, the permit regulations, and Clause 54, the resurfacing regulations. On the face of it, Clause 53, which precedes the clause about resurfacing regulations, imposes a very extensive obligation on utilities to resurface roads after they have dug them up
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and worked upon them. However, they not only have to resurface the part that has been opened up, but the whole of the road. In the meantime, of course, that will lengthen the process of traffic disruption. Regulatory uncertainty arises and there is a risk of one or more local authorities taking advantage of the position and funding their obligations by making unreasonable demands upon the utilities and their customers.
This is a good Bill but, as others have said, it will need detailed scrutiny in Committee.
6.12 p.m.
Lord Berkeley: My Lords, I, too, welcome the Bill and I congratulate the Government on seeking to get more out of our road system. I shall concentrate on Parts 2 and 6 of the Bill and suggest a few improvements, particularly from the point of view of pedestrians and cyclists. I remind the noble Lord, Lord Sheppard, that if he used a bicycle in London he would never be late for a meeting. You always know when you are going to arrive because you do not get stuck in traffic.
My first question to the Minister is whether "traffic" in this context includes pedestrians and cyclists. I think it does but it is not quite clear. Where the Bill refers to "roads", does that include pavements? We have had this discussion many times before but it needs clarification.
I certainly look forward to receiving the guidance that my noble friend Lord Davies mentioned in his remarks, as does the noble Viscount, Lord Astor. I understood my noble friend to say that it will be available at Committee stage, but the noble Viscount seems to think that it will be available at Report stage. Perhaps my noble friend will clarify the position. It may be that I did not hear him correctly.
Behind all this, many cyclists and pedestrians feel threatened by heavier bits of machinery clunking around the road and they feel a need for inclusion and consideration in the Bill. I think they have got it, but they need a little encouragement and confidence building.
I have to question whether the duty of network management on a local authority applies to cyclists and pedestrians as well as to road vehicles. There is a suggestion in the Bill that the duty is the primary consideration, but what about the other obligations in regard to the environment and road safety? Are they secondary or equal considerations?
I would go a little further than my noble friend Lord Faulkner of Worcester and suggest that the definition of rights and duties should come from Section 122 of the Road Traffic Regulation Act 1984. I could go into that in more detail, but it is probably a matter for another time.
In London, as my noble friend Lord Faulkner said, it is clear that the Mayor needs to be able to issue supplementary guidance to local authorities. Perhaps an appropriate amendment could be made to Clause 18. Given that Transport for London is trying to manage the traffic, it was therefore odd to hear in the briefing to which other noble Lords have referred that

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one comes over Westminster Bridge and drives along the Embankment on a TfL road, but that the parallel Whitehall—which carries most of TfL's buses, it seems—is a local authority road. It is crazy. That needs to be resolved. TfL suggests that it should oversee 2,000 kilometres of road, which take two-thirds of the traffic in London, even though they make up only one-sixth of the total road length. That seems sensible.
How can the Royal Parks in London be incorporated into the new arrangements? Maybe the Government have done that already, but I do not understand how. It would be odd if the Government were effectively giving themselves instructions in connection with traffic management in the Royal Parks. It would seem logical if TfL were to give guidance to the Royal Parks, and they sure need it.
My noble friend Lord Faulkner mentioned that our noble friend Lord Puttnam wanted to be able to close routes for filming. Somebody closed the Wellington Arch for filming a few months ago for 24 hours. That is used by many hundreds of cyclists a day. They were told to go around the roundabout or to get off and walk in the subway. No diversion was provided. I discovered in a Written Answer that English Heritage had earned about £1,000 for closing the arch. If there are to be cycle routes across the Royal Parks, they need to be continuous. At the moment, one goes up Constitution Hill and the cycle lane is closed. Cyclists are told to go on the road, with people shooting by probably at 50 mph. No speed cameras ever appear there and it is very dangerous. One cannot have gaps in cycle routes, because cyclists feel frightened.
TfL has done a great job with its London Cycling Action Plan. Let us hope that that improves, but the Royal Parks have a great deal to learn from TfL. I would not go so far as to suggest that London parks such as Hyde Park should be transferred to Westminster City Council, but it might be an idea in the long term. A lot could be learnt from it not just in terms of cycling, but in relation to other road management issues also. That matter will probably return to us later on.
I turn to my final point on this section of the Bill. Would it be a good idea to look again into the question of road hierarchy, as is suggested by the Government's road safety strategy, Tomorrow's Roads? The question has come up in your Lordships' House many times, and I shall not go into it further.
I turn to Part 6 of the Bill. Widening civil enforcement is a good idea. I know that many people, including the RAC, believe that it is a way to print money. However, whether my noble friend Lord Simon is right or wrong about the lack of police officers, a civil offence is much more likely to be detected and fined in practice. The offender will not do it again. It may be speeding or turning right when one should not have done. If one obeys the law, one has nothing to worry about. That applies to cyclists as well. I am not trying to defend cyclists who go through red lights and nearly hit me when I am on a green light. Everybody should be involved with civil enforcement. There is nothing to worry about, although the special enforcement areas need to be looked at.
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Several noble Lords have spoken about road signs. I discovered in the Printed Paper Office today Statutory Instrument 2002/3113, which is a lovely book of nearly 500 pages of all kinds of traffic signs in full colour. It would be quite interesting to see which ones should be added to the list in Schedule 7 of offences for which civil penalties would apply. I would certainly propose to include the advance stop lines for cyclists, which are usually painted green and occupied by large lorries, taxis or cars when they should be occupied by cyclists. I would also include the continuous cycle lanes that are appearing with welcome frequency around cities nowadays. Of course, one likes Henry VIII clauses if one likes what they are trying to achieve, but I believe that we should examine the matter further. There are also anomalies in the way in which cycle lane and cycle track contraventions are proposed to be looked at, compared with the way in which motorists are being dealt with—but that is something that we can explore.
I have quickly summarised my concerns about the Bill, but it is really a very good Bill. I am sure that we can improve it by discussing it at greater length in Committee and later stages. However, I congratulate the Government on introducing it, and I wish it well.
6.21 p.m.
Lord Bradshaw: My Lords. I give a general welcome to the Bill and assure the Minister that it will have the support of these Benches. I have a number of questions, which I hope that we can address either now or later in Committee.
Congestion is no doubt the greatest cause of the unreliability and unattractiveness of bus services. As the noble Lord, Lord Sheppard, said, it costs business and commerce a huge amount of money, in London in particular but elsewhere as well. This Bill includes measures to deal with those problems—and, I believe, it can truthfully he said to be friendly to the law-abiding motorist.
Here I would draw something to the attention of people such as the noble Viscount, Lord Astor, who criticised the provisions, referring to "profit-seeking private contractors" being employed by local authorities to do the work. Who forced local authorities, when the party opposite was in government, to make us employ those contractors? That was the absolute leitmotif of Conservative policy, and we suffer from it. If those people are not properly controlled, I believe that traffic officers and civil enforcement officers, as described in the Bill, should have some police training. Perhaps the Government should consider the isolated examples of those people exceeding their powers, but I do not believe that the commentary of people such as Jeremy Clarkson or the Daily Mail should stand for the experience of most people.
I agree with the noble Lord, Lord Borrie, that the highway is for the conduct of traffic, not for the general storage of vehicles, heaps of rubbish and all sorts of other things. I want to see highways used for that primary purpose, which is what most law-abiding motorists want.

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I want to know whether traffic officers, as described at the beginning of the Bill, will have the necessary powers to set up diversions. The motorways are plagued with accidents and, more particularly, broken-down vehicles, which I do not class as accidents. We hear lots about them every morning on the "Today" programme. I hope that the traffic officers will not only take action but also direct traffic on to the alternative network quickly and competently.
I wonder whether traffic officers and civil enforcement officers will have powers to enforce the payment of vehicle excise duty and to require production, when necessary, of insurance documents. We know that there is a huge problem with avoidance of vehicle excise duty, and it is time that the Government took effective steps to deal with the problem. Will civil enforcement officers have powers to stop vehicles for the purposes of traffic surveys and the necessary tests for air pollution? Will they be allowed to issue fixed penalty notices for such transgressions as pollution?
The noble Lord, Lord Berkeley, has raised the point that the Bill is very strong on its reference to roads but less so in what it says about footways. In Part 1, it defines roads as:
"any other road to which the public has access".
Does that include pavements and footpaths? Does it include rights of way? If it does, it opens the possibility of civil enforcement officers being able to enforce traffic regulation orders on rights of way. I would like an answer to that question.
Clause 34 requires permanent schemes to be submitted to the national authority. That will mean a huge, devastating amount of bureaucracy as each local authority submits its scheme. I wonder why local authorities cannot be trusted to abide by the guidance if it is properly drawn up and comprehensive. One cannot make fun of the differences between local authorities, which the noble Viscount, Lord Astor, did, and at the same time criticise the Government for centralising everything. One wants local responsibility or one does not want it, but one cannot have both. One either trusts the local authorities or one does not. I, for one, would trust local authorities, most of which are quite responsible and answer to their electorates.
Viscount Astor: My Lords, the noble Lord, Lord Bradshaw, has given two options and I do not think that it is a fair analogy. What we want is local authorities all coming under the same regulations and treating them in the same way, giving uniformity to the way that a motorist is treated throughout the country. That is not taking away local authorities' powers to manage. It just means uniformity in the way that they behave to the motorist.
Lord Bradshaw: My Lords, it may appear that there is uniformity but the circumstances in each local authority are likely to be different. Some local authorities—the county council of which I am a member, for example, which owns all the car parks—choose to impose a punitive car-parking regime. I know that other local
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authorities do not do so. That is something that they can choose to do, as long as they do not subsidise the car park out of the council tax, which is wrong. Local authorities should be allowed some discretion. Motorists cannot expect to be treated absolutely the same everywhere.
In Clause 82, an exception is allowed to double-park,
"where the vehicle is being used in connection with … undertaking any building operation, demolition or excavation".
While I can accept that double-parking might exceptionally be allowed when a vehicle is being towed away or the refuse men are down the street, I find it difficult to accept that building work should be used as an excuse to double-park, and effectively to block the road in many cases, except in a great emergency.
Will the Minister confirm that camera enforcement of bus lanes outside London will be allowed under the Bill? I have had answers from the Government over the past three years saying that bus lane enforcement outside London will happen "shortly", "next month", -next year", "around Easter". I have had all sorts of answers but it is never going to happen. I would like to know from the Minister's answer that it will happen. Local authorities need to enforce bus lanes, and they need to put bus lanes where they are most use.
The noble Viscount, Lord Simon, asked whether the power to inspect blue badges actually included the power to inspect the badge of anyone using a disabled parking space. It is not quite clear in the Bill that, if someone uses a disabled parking space, they would on challenge by a civil enforcement officer be required to produce a blue badge. Will the permit regulations generate sufficient funds to meet the cost of issuing permits and the necessary inspection of works? It will be necessary for local authorities to employ officers who go round like clerks of the works to see that the permits are observed.
Reference has been made by the noble Lords, Lord Faulkner, Lord Sheppard and Lord Berkeley, to the anomalies in London, which certainly need to be sorted out. Transport for London needs some sort of oversight about what goes on on the strategic bus network.
We heard from the noble Viscount, Lord Simon, and others about the importance of the traffic police in catching ordinary criminals. From my experience on the police authority, I can say that that is a vital role, perhaps more so at this time. Many active criminals—many people engaged in serious criminal activity—are caught by the traffic police, which is not surprising in that the motorway and trunk-road network is extensively used by criminals. I would like an assurance from the Minister that the appointment of traffic officers will not see a further rundown of 550 traffic police. That would be a very serious loss.
There is a provision for preventing parking where the kerbs have been dropped, but it appears to apply only in London. It is something to which we will need to come back. It is extremely annoying to find people parked across those places where the local authority

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has dropped the kerb for disabled people, yet the person in the wheelchair or ladies with buggies have to bounce up and down the kerb.
Generally, we welcome what is in the Bill. We hope that its provisions will extend to cyclists and pedestrians, as mentioned by the noble Lord, Lord Berkeley, and to footways and footpaths. Subject to certain clarifications and minor amendments, we will give the Bill our support.
6.33 p.m.
Lord Rotherwick: My Lords, by way of introduction, I congratulate the Government on attempting to tackle the ever-increasing problem of congestion on our motorways and trunk roads and in our towns and cities. I wholeheartedly welcome the measures to ensure the smooth and safe movement of traffic, and to increase the effectiveness of street works. We have to be careful, however, that the legislative solution does exactly that and does not add to the heavy yoke round the neck of motorists. I feel that it is a duty of the Opposition to fight the corner of the persecuted motorist. For instance, £45 billion of revenue was raised from motorists in 2000, yet drivers do not see the road building or improvement schemes yet. Legislation can only be second-best compared to investment in an improved road network.
There has been a reduction of 12 per cent between 1997 and 2000 in the numbers of traffic police. How will 1,200 traffic officers rectify the loss of those traffic police? After what the noble Lord, Lord Bradshaw, said about a large amount of our crime being picked up by the traffic police, one has to ask what has been the result of that 12 per cent diminishment in their numbers, in terms of crime being detected.
Members on these Opposition Benches consider it our duty to protect the law-abiding motorist from additional stealth taxes and red tape. The Government have adopted a peculiar tactic in pushing forward such a key issue without full consultation and pre-legislative scrutiny. A cohort of various professional bodies has lined up to bemoan the lack of discussion and consultation. While welcoming the Bill, the AA has noted:
"There is much that is unsettling, unclear or risky".
The National Joint Utilities Group is worried about the Government's limited evidence and the possibility that detailed regulations will be pushed through without full public consultation.
As we have heard, the newly created role of traffic officers has raised significant cause for concern. Their less than well defined role may lead to a reduction of policing on the road network on the one hand, and a doubling-up of breakdown rescue resources on the other. We have heard that traffic officers are to have the primary responsibility of ensuring the expeditious movement of traffic. When accidents occur, they will be responsible for the removal of wreckage and restoring the regular flow of traffic as quickly as possible. However, it will not be their function to collect evidence or take statements. Indeed they will have neither the powers nor the specialist training necessary to arrest or detain people. All that is to
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remain the sole province of police forces. As such, if traffic officers alone deal with scenes of accidents, criminal behaviour may go undetected and evidence may be lost. The noble Lord, Lord Faulkner of Worcester, and the noble Viscount, Lord Simon, touched on this point.
A further worrying situation is that the creation of new traffic officers threatens further to dilute the presence of fully trained police officers on our strategic road network. The RAC envisages that traffic officers will create a needless doubling-up of resources, and thus traffic officers threaten to complicate incident management rather than ensuring a speedy resolution.
The RAC has noted that between 70 and 80 per cent of its customers call for help from a mobile phone. This means that in many cases breakdown organisations will already have sent a recovery vehicle before the Highways Agency becomes involved. In those circumstances, the Highways Agency is likely to dispatch a breakdown recovery vehicle in addition to the patrol vehicle already on its way to the same incident. Such a situation might be amusing to the motorist in question if it were not for the sobering thought of the £105 charge to be made by the Highways Agency if its vehicle attends first, regardless of whether the motorist has already called their own breakdown service. My noble friend Lord Astor referred to this in his remarks.
Not only will that constitute another charge on the motorist, but it will replace their choice of using a variety of private breakdown services with the expensive monopoly of the Highways Agency. Again, the noble Viscount, Lord Simon, touched on the problem of monopoly.
I return to the duty of care to the motorcyclist. Like my noble friend Lord Goschen I declare an interest as a motorcyclist and, like the noble Lord, Lord Berkeley, as an avid bicyclist. This topic is of particular interest to me. The provisions for motorcyclists and bicyclists within the management of our road network mean that currently, police conducting traffic duties owe no duty of care to protect road users from hazards of which police officers are aware, but were not created by them.
Spillages or spilt diesel fuel, however small, can present a serious hazard to motorcyclists and bicyclists. If you have not experienced it, it is difficult to describe the terror of the loss of control suffered at even a moderate speed when one's two-wheeler comes into contact with spilt diesel fuel. I have suffered on two such occasions. On one occasion, going at a moderate speed round a roundabout, I ended up in a petrol station, some considerable distance away. By virtue of going round a roundabout, I was obviously not going at excessive speed. I therefore ask the Minister if he will use the Bill to take greater account of the two-wheeler perils that we face in our day-to-day pedalling or motorcycling.
In the Bill's new permit scheme for street works, local authorities gain more control over works carried out by utility companies. One naturally supports the idea of redress when works stretch out over weeks and weeks on vital sections of roads, aggravating congestion. However, in the process, the Government look like creating a lose-lose situation for utilities and motorists.

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My noble friend Lord Astor touched on my next point. The Ha'crow report on the Government pilot schemes in Camden and Middlesbrough showed no significant change in practices, despite utilities having to fork out substantial charges for merely occupying the highway. It also noted that journey times had not been reduced and that the additional cost for the utilities in the 11-month pilot scheme was £1.18 million in Camden. The NJUG has pointed out that the Highways Agency is responsible for the same proportion of unavoidable street works as it is, yet the agency is not subject to the same exacting penalties. Not only are the utility companies denied a level playing field with the Highways Agency but all motorists are threatened by an additional stealth tax. If the permit scheme were to be rolled out nationwide, the NJUG estimates, as my noble friend Lord Astor said, that if the cost were passed on to customers, it could be as high as £55 per household per annum.
As I drive home tonight, I will cogitate carefully on how we might improve this Bill in Committee.
6.42 p.m.
Lord Davies of Oldham: My Lords, I am grateful to all noble Lords who have participated in this debate. I recognise that we have some significant issues to discuss in Committee. It is not possible to reply to every detailed point that has been raised this evening, but I certainly want to respond to several very important ones.
I turn first to an expression of concern from several noble Lords who are worried about the way in which the Highways Agency will operate in relation to the police. The noble Viscount, Lord Astor, set the ball rolling, with some fairly trenchant remarks in this direction. The noble Earl, Lord Erroll, also commented on these points, and my noble friend Lord Simon expressed some concern. My noble friend speaks from his considerable experience of the way in which the police operate in their traffic role, and I want to give him some assurances.
There is no doubling up with the police in these circumstances. The traffic officer will deal with organising repairs; clearing the crashed vehicles off the highway; keeping drivers informed so that people can circumnavigate the incident as best they can; controlling traffic flow; and setting up closures and diversions where they prove to be necessary if the incident is serious enough. The police will, of course, be in control of the necessary investigation of the accident's cause—they will deal with the crime issues, witness statements and evidence, and they will manage the emergency services. So there will be a clear separation of roles.
The Association of Chief Police Officers has responded to this against a background of recognising that this separation of function can be readily defined. It gives a broad welcome to the role that will be played by traffic officers. There will be clear lines of responsibility and, in broad terms—we will debate these issues in more detail in Committee—I have not
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the slightest doubt that we will be able to defend the Bill and its provisions in the crucial area of division of responsibility.
There is also no intention for traffic officers to provide an alternative breakdown recovery service, which was mentioned by the noble Viscount, Lord Astor, and others. Traffic officers cannot exercise an aggressive policy of vehicle removal in the way that he indicated—creating revenue-raising potential by clearing vehicles off the road. The Minister in the other place was clear that the Bill simply paves the way for traffic officers to exercise the removal powers available to the police.
In any event, there will be full consultation. The noble Viscount, Lord Astor, will be aware that we have consulted recently with the RAC and other motoring organisations on the matter. I am sure that all noble Lords will value the efficiency of the breakdown organisations over their many years of motoring, when motoring became unhappy, rather than happy, when breakdowns and accidents occurred. We are not setting up a rival to those organisations at all. On the contrary, we are merely concerned with making the highway clear. The issue of recovery relates mainly to the private motorist and the organisations that provide those services.
The noble Viscount, Lord Astor, also asked about the criteria for intervening in failing authorities. Although that is a question that should be debated in Committee, I shall make an obvious point for which the noble Lord, Lord Bradshaw, provided the introduction. We intend to intervene in local authorities as a matter of last resort. We recognise that local authorities have important roles to play in traffic management issues and the organisation of their local roads. We need to work with them. Therefore, the concept that there is an enormous drive towards a national authority that would control every conceivable road in the country is not feasible, and it would not be meaningful to have a national plan in those terms. We will require local authorities to shape up to their responsibilities, as defined in the Bill, and show good use of the extra resources that we are channelling towards them.
I refer in passing to the comments of the noble Viscount, Lord Astor, on resources. He berated the Government for their roads policy. He may have forgotten that when we first came to power we inherited plans from the previous administration and stuck to them. Our commitment to expenditure since then has been the subject of fierce criticism from Opposition Benches, who can just about restrain themselves from attacking our health service provisions but have few reservations about returning education to the benighted days. If the noble Viscount is suggesting that a future Conservative government would bring new benefits to the country by spending more on roads, he should talk to his shadow Chancellor, before he drops him further into the political mire as regards adding up sums.
My noble friends Lord Faulkner and Lord Berkeley and the noble Lord, Lord Bradshaw, asked about safety and the definition of "road user". That term

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includes all road users. Therefore, cyclists and pedestrians are part of the process. Effective road management means that on behalf of all road users we must try to create the best possible environment, given that difficulties occur from time to time.
I shall not be quite so helpful to my noble friend on the point which he generously raised on behalf of my noble friend Lord Puttnam, who is not present. Not only is he well able to look after himself when he is here, but he seems to be able to get points across when he is not. I cannot he helpful on that front—and it is not because I am inimical to the concept of filming taking place on roads. My noble friend Lord Puttnam wants that to take place, which at times would cause road blockages, and to come within the framework of the Bill. We can see no way in which the Bill can be amended in those terms. However, my noble friend Lord Puttnam is an extremely persuasive Member of this House and he may be able to deal with the authorities of the House more effectively than we have been able thus far. I will wait upon that event and say only that I wish him well. At present, we have no answer to the point he has raised.
My noble friend asked about a national pavement parking ban and how we can keep our pavements as free as possible for pedestrians. They are not intended for parked cars or cyclists, but for pedestrians. The issue is classically one which must be tackled at a local level. The authorities have the powers and we have commissioned a research project with the aim of drawing up best practice guidance for local authorities in dealing with the problem. However, we cannot make direct national provision for it.
I have considerable sympathy with the arguments put forward by the noble Lord, Lord Sheppard, on TfL having a more strategic role with regard to London. Other noble Lords inevitably emphasised London's crucial role. We recognise that, which is why in certain areas we intend to carry out pilot studies promoted in London to see how schemes work here before we expect other local authorities to follow through. There is no doubt that London is a challenging environment, but many of us would recognise, despite the disparagement in some quarters, that the congestion charge has had notable success. But there are other ways in which we can improve traffic usage in London and its environment for all who live and work here.
The noble Lord, Lord Sheppard, asked in particular whether fines on utilities could be hypothecated for transport activities. He must know that that verb is outside the lexicon of normal government behaviour. But we have a working party of local authorities, utilities and the Department for Transport looking at how the fines regime will work. The department will also be exploring with the Treasury what proportion of the money raised in fines can be kept for exactly the purpose the noble Lord identified. I am not one to go to the Treasury and demand hypothecation in quite those terms, nor are many of my colleagues. And that
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is not merely because this Chancellor tends to be in redoubtable opposition to the concept—all his predecessors have been, too.
Lord Sheppard of Didgemere: My Lords, with the introduction of the congestion charge, the Treasury recognised the term for the first time after about 100 years of discussion, although we have not seen too much of the benefit, and I hoped that the idea was catching.
Lord Davies of Oldham: My Lords, the noble Lord has made a significant point and we shall see what progress can be made. I merely indicated that there is a framework within which we can progress these discussions, but he will forgive me if I do not anticipate 100 per cent success at this stage.
The noble Viscount, Lord Simon, emphasised aspects of the relationship between traffic officers and the police. I hope that I have given him some reassurance on that point. Perhaps I may say again that, both in the context of this group of officers and others, the crucial question has arisen of what calibre of people they will be. Noble Lords are right: we shall need to train people effectively. They will not be police officers or have the enforcement powers of police officers. Nevertheless, it is important that we identify clear areas of responsibility which the traffic officers will hold. They will need to understand the parameters of their power and how they should conduct themselves.
I take fully on board all the points made in the debate. We shall need a comprehensive training programme for traffic officers; they will need full accreditation; and they will need to be checked by the Criminal Records Bureau. I am looking particularly at the noble Viscount, Lord Goschen, because I believe that he emphasised those points in relation to traffic officers. I also want to assure him that there will be a full complaints procedure should any officer transgress the boundaries of his power when dealing with a member of the public who will have the right to contest the position.
A number of noble Lords raised questions about the regulations. They asked about the timescale and how we are to obtain sight of the regulations. We shall do our best to make progress on them. However, it will be recognised that those which relate, in particular, to local authorities will be the subject of considerable consultation. I cannot promise that the regulations will be fully drafted in time for the Committee stage of the Bill or even for the Report stage in the way that noble Lords would wish. However, we have clarified some matters today and, as we move through the Committee stage, we shall identify key issues which impact upon the regulations, and that will aid the process of getting them right.
My noble friend Lord Borrie and other noble Lords raised the question of the utilities. We are not intending that local authorities will have their roads resurfaced on the cheap by exploiting the position of the utilities. That is an important area in which we must get the framework right with regard to the

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relationship between the two. The proper costs involved will need to be identified, and it is clear that we shall need to ensure that they are shared fairly between the local authorities and the various undertakers involved.
However, I stress again that our objective in the Bill is to seek to ensure that we are able to use our road space to maximum advantage. That is why co-operation will be necessary and why we shall need to ensure that progress is made on effective consultation in those terms.
The noble Lord, Lord Bradshaw, asked me a number of precise questions, some of which I shall hope to deal with in Committee where we shall be able to air the issues further. I mentioned the question of the definition of a "road". I am not sure that I can follow the noble Lord to quite the extent that he would wish on the subject of trails and other aspects of byways, highways and rights of way. But I have no doubt that he will be active in Committee and that he will explore that matter further then. We shall need to discuss the enforcement of rights of way more fully.
On the use of blue badges, the power in Clause 90 for civil enforcement officers to inspect blue badges will help to reduce improper use. Many noble Lords were shocked the other day by the information indicating how badges for the disabled are the subject of abuse. In parts of the country, particularly in London, there is considerable trafficking in the badges. This clause will ensure that the person to whom the badge has been issued is in the vehicle when the badge is displayed.
The new power will not prevent the forging of badges, but the fact that they will be subject to close inspection should take us some way down the road towards dealing with what we all recognise as a shocking abuse of a facility that we offer to the disabled, but which is used by others to evade parking restrictions.
We have not made as much progress as we would have liked in regard to bus lane enforcement in authorities outside London. That is partly because we have legal restrictions on the ability to make progress. I assure the noble Viscount that we are considering the matter actively. I have no doubt that he will return to it in Committee.
The major point made by the noble Lord, Lord Rotherwick, was his anxiety about whether the introduction of traffic officers would reduce the emphasis on law enforcement. The opposite will pertain. We expect the introduction of the traffic officer service to mean that the police will spend less time managing traffic, and therefore have more time to deal with crime. If some of that crime relates to rapid get-away transport used by criminals on our motorways, the police will have an important part to play.
Lord Rotherwick: My Lords, I am sorry to interrupt the Minister, but my main point was that there had been a reduction of 17 per cent in the number of traffic police between 1997 and 2000, which presumably had resulted in a certain amount of crime going
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undetected, as the noble Lord, Lord Bradshaw, mentioned. I am doubtful whether putting in place traffic managers will result in any change in that.
Lord Davies of Oldham: My Lords, it will free up police time. We all know the demands on the police and that they have to concentrate on their priorities. The noble Lord will recognise that a major purpose of the Bill is to try to free up essential police time.
In general, views have been expressed about consultation on the issue of control of local roads. I want to reassure noble Lords that we expect full consultation on such processes with regard to the utilities and others affected adversely by work on the roads. That may mean, for example, that passenger transport executives need to be aware of and consulted on such issues so that they can provide the best service to the community.
We have had an interesting debate. I give way to the noble Lord, although I shall be exceeding my time limit.
Lord Sheppard of Didgemere: My Lords, sadly, the Minister may be right that I should not be ambitious about hypothecation. Perhaps I can look forward to a government amendment on who will deal with the London lorry ban.
Lord Davies of Oldham: My Lords, powers in regard to that already exist and so the matter is not strictly related to the Bill. I have no doubt that the noble Lord, with his ingenuity, will be able to press us a little in Committee on the matter. He will see how we are able to respond.
We have had a most interesting debate. It has taken me 21 minutes to respond in very general terms just to the points that have been raised. I look forward to a lively Committee stage. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Grand Committee.

Merchant Shipping (Convention on Limitation of Liability for Maritime Claims) (Amendment) Order 2004
7.4 p.m.
Lord Triesman rose to move, That the draft order laid before the House on 24 March be approved [14th Report from the Joint Committee].
The noble Lord said: My Lords, the aim of the order is to enable the United Kingdom to enact the 1996 protocol to amend the 1976 Convention on Limitation of Liability for Maritime Claims as intended in the Merchant Shipping (Convention on Limitation of Liability for Maritime Claims) (Amendment) (Order) 1998. There is a small, but important, error in the 1998 order, which must be corrected before the protocol enters into force internationally on 13 May of this

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year. The order aims to correct the error. The enabling power for the order is provided by the Merchant Shipping and Maritime Security Act 1997.
The 1996 protocol to the 1976 Convention on Limitation of Liability for Maritime Claims, which is commonly referred to as LLMC, was negotiated at the International Maritime Organization in 1996. The 1996 LLMC protocol increases the amount of any limitation fund, which is set up by a ship owner to meet liabilities for general maritime claims arising from a shipping incident. The limitation limits are a significant increase on those set by the 1976 convention. Such increases are necessary to reverse the effect of nearly 30 years of inflation.
The UK ratified the 1996 LLMC protocol in 1999, and became only the second state to do so. However, it has taken another five years for the entry into force requirements of the protocol to be met.
The 1996 LLMC protocol entitles ship owners to limit their liability for certain general maritime claims. The applicable limit depends on the type of claim and the gross tonnage of the ship.
Overall, the order will increase the limitation amount that a ship owner will be entitled to seek in respect of general maritime claims by about two and a half times. Higher increases will be made for small ships. These increases, like most of the provisions of the order, are determined by the terms of the 1996 LLMC protocol. There are three areas, however, where the 1976 convention and the 1996 LLMC protocol give states discretion. The 1998 order has enabled the United Kingdom to take advantage of these three freedoms. The most important relates to passenger claims. This is where the error exists that the order seeks to amend.
The 1976 convention sets a global limit on all passenger claims arising from any particular incident. A separate international convention—the 1974 Athens convention relating to the carriage of passengers and their luggage by sea—sets a per capita limit; that is, a separate limit for each passenger.
The 1996 LLMC protocol provides an opt-out from the limit set by the 1976 convention. The 1998 order gives effect to that opt-out for seagoing ships, ensuring that such claims will be subject to limitation of liability under the Athens convention. The 1998 order will continue to apply limitation of liability for passenger claims for other ships.
That ensures flexibility to make appropriate changes to the legislation implementing the Athens convention in future. These changes could result from the international work on the revision of the Athens convention. The International Maritime Organization (IMO) adopted a protocol to the Athens convention in 2002 that provides for increased financial protection for passengers through increased limitation of liability of the carrier for death or personal injury claims and a requirement on the carrier to maintain insurance cover, with a right of the claimant to take direct action against the insurer.
The Government are currently considering the options for the implementation of the Athens protocol. However, the 1998 order could have the unintended consequence of depriving a ship owner of the right to a limitation limit for death and personal injury claims in the event of a collision between a passenger vessel and a non-passenger carrying ship. This is contrary to the intention of the 1996 LLMC protocol of applying limitation of liability for such claims, and could result in unlimited liability of the ship owner in such instances. This order will correct that error, and ensure that limitation of liability continues to apply for such claims on all sea going ships, as originally intended.
Consultation with interested parties undertaken at the time for the 1998 order indicated that the implementation of the 1996 LLMC protocol should not, in itself, increase insurance premiums paid by owners whose ships were engaged in international trade. Ship owners' insurers set their premiums according to the quality and track record of the insured ship, and not by reference to the liability limits or limitation rules established under the national law of any one state. The consequence of the existing error in the 1998 order, if it is not corrected by the order that is in front of your Lordships this evening, may affect ship owners' insurance cover because of the difficulties in seeking insurance cover where unlimited liability would apply.
The Government believe that the long-standing principle of limited liability for general maritime claims remains valid, as it has been over a long period historically, as long as the limits are set at appropriate levels, and the right to limitation is covered by the ship owner maintaining effective insurance cover. Entry into force of the 1996 LLMC protocol is good news for both the maritime industry and for those who may have claims arising from shipping incidents. I beg to move.
Moved, That the order laid before the House on 24 March be approved [14th Report from the Joint Committee].—(Lord Triesman.)
On Question, Motion agreed to.

Stoke Heath Prison: Joseph Scholes
7.12 p.m.
Lord Dholakia rose to ask Her Majesty's Government whether they will establish an independent inquiry into the circumstances surrounding the death of Joseph Scholes al Stoke Heath Prison.
The noble Lord said: My Lords, I first offer my apologies for detaining your Lordships' House for longer than is normal on a Thursday, when most people expect to go home by about 7.00 p.m. The subject is important. This is about a child's death in custody. The purpose of my Unstarred Question is to ensure that the state will never again fail in its duty to protect those in its care. We failed Joseph Scholes.
I do not wish to apportion blame, but I want to ensure that one death is one too many. It should never happen again.
Joseph hanged himself from the bars of his cell in Stoke Heath young offender institution, on 24 March 2002, a month after his 16th birthday, just nine days into a two-year sentence for street robbery. His death is an example of how society failed to protect a vulnerable young boy.
Joseph had an unsettled childhood, and became a disturbed young boy. His parents had gone through an acrimonious divorce in 1997, and there had been a bitter custody battle. From the age of six, he had allegedly suffered repeated and severe sexual abuse by a member of his father's family. At the time of his arrest, Joseph had been seeing a psychiatrist for some months and had been prescribed medication. He was exhibiting clear signs of depression, periodic suicidal thoughts, and had begun to self-harm.
Joseph had one previous conviction—for affray in November 2001. This was the result of an altercation with ambulance staff when he was disoriented and disturbed and had tried to kill himself by taking an overdose and jumping from a window. The ambulance workers were struggling to prevent Joseph taking his own life, and Joseph fought back. On this occasion, he was given a community sentence.
As November progressed, Joseph became increasingly disturbed and on the 30th of that month, he was taken into the voluntary care of social services and placed in a children's home. Six days later, on 6 December, he went out with a group of children from the home who had decided to rob mobile phones. They were caught and subsequently charged with street robbery.
As the trial due nearer, Joseph became even more depressed and agitated. Two weeks before his court appearance, he disappeared into his room at the children's home and, taking a knife, slashed his face 30 times. The deepest wound across his nose cut right down to the bone. The walls in his room had to be completely repainted as they were covered in blood.
On 26 February 2002, Joseph pleaded guilty to three offences of street robbery. There was no suggestion that Joseph had used or threatened violence and his involvement was accepted, both by the victims and other witnesses, as peripheral. In his fragile mental state, Joseph thought that a guilty plea would result in less time in court and result in a more lenient sentence.
The judge, to his credit, deferred sentence for 19 days while he read the case file. Joseph was unfortunate to have been tried at a time of heightened public anxiety and political posturing over street crime and he was sentenced to a two-year detention and training order. During the sentencing hearing, on 15 March 2002 in Manchester Crown Court, the judge stated in open court that he wanted the warnings about Joseph's self-harming and history of sexual abuse,
"most expressly drawn to the attention of the authorities".
On sentencing—responsibility for Joseph's care transferred from the local social services to the Youth Justice Board. The Youth Justice Board was informed
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of Joseph's vulnerability, his history of anxiety and depression and, importantly, his attempted suicide and self-harming behaviour. A number of people who had worked with Joseph urged the Youth Justice Board to place him in local authority secure accommodation, where the facilities and staffing levels were more conducive to the provision of the care that he needed.
Despite that, and the concerns expressed by all those with the most knowledge and information about Joseph, the Youth Justice Board made the decision to place him in Prison Service accommodation at Stoke Heath young offender institution. We want to know why.
On arrival at Stoke Heath, Joseph was initially put into strip clothing and placed in a cell with surveillance camera, reduced ligature points and high levels of observation. His mother, Yvonne, telephoned Stoke Heath young offender institution to ensure that it was aware that Joseph had been a victim of rape and to inform staff that he was depressed and unstable, with a history of self-harm and suicidal behaviour. But within days of his arrival, Joseph was moved to a single cell with no surveillance camera, with ligature points and with reduced observation. He was deeply anxious about the imminent prospect of being moved to one of the main wings. Given his history of sexual abuse, not wanting to be in the close proximity of other young men was hardly surprising.
On 24 March 2002, Joseph retired to his cell, where he was later found dead, hanging from a sheet attached to the bars of his cell window. The case obviously calls for a public inquiry. An inquest into Joseph's death will shortly be held. But Inquest, the National Association for the Care and Resettlement of Offenders—I must declare that I am president of that organisation—and a range of other organisations believe that that case should lead to a public inquiry.
Joseph's death raises a number of questions about the treatment and care of children in the criminal justice system and the accountability of those agencies responsible—in particular, the Youth Justice Board, the Prison Service and social services departments. It also raises issues that fall outside the remit of the youth justice system. The issues raised include: why Joseph was not allocated a place in a local authority secure unit; the effectiveness of suicide prevention policies and training of staff in young offender institutions; the adequacy of care provided for vulnerable young prisoners in young offenders' institutions; and any systemic failings that may have contributed to Joseph's death.
There is another, wider issue which relates to sentencing practice. Joseph Scholes should not have been given a custodial sentence. When he was given a custodial sentence, he should not have been placed in Prison Service custody; he should have been held in local authority secure accommodation, which is a more suitable environment for vulnerable and disturbed young people.
Joseph had a history of anxiety and depression, had disclosed a history of alleged sexual abuse, had been in local authority care, had a history of serious self-harm

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and had threatened suicide. Sadly, a combination of such problems is common among young people held in young offender institutions.
In a study, Wasted Lives, published in 1998, in which NACRO researchers interviewed a sample of children under 18 in young offender institutions, they drew up a list of 11 risk factors often associated with young people's offending such as physical abuse, sexual abuse, parental neglect, unstable living conditions, misuse of alcohol or drugs, school exclusion, family conflict et cetera, and found that, on average, the children in the sample had six of the 11 risk factors.
Most of the young people who are now sentenced to custody should be sentenced to supervision programmes in the community—in some cases intensive supervision programmes—that can tackle the problems and attitudes which are at the root of their offending. The minority of young offenders who do need to be detained in some form of custody should not be held in Prison Service institutions but in secure local authority childcare establishments.
Why does that not happen? It is because this country has adopted punitive attitudes and punitive sentencing policies which mean that we lock up more young people than our European neighbours and absurdly regard a two-year sentence as appropriate for a vulnerable child such as Joseph without any significant previous criminal record who had been involved in stealing mobile phones. The country's over-use of custody for young people means that a place in the limited stock of local authority secure places for young people is often not available for vulnerable and disturbed young people like Joseph who desperately need one.
We need to end this country's fruitless punitive approach to sentencing young people. We need to ensure that intensive sentences of community supervision are not just available for young people but are used by the courts. We need to ensure that sentencing guidelines positively encourage courts to use them for young people whom they now jail. We need to ensure that a sufficient supply of local authority secure places is available for those young people who genuinely need to be held in some form of secure custody. We also need to examine the issues in cases such as this one that fall well outside the remit of the youth justice system.
Joseph's death begs questions of society and how it should respond when children show clear signs of being disturbed and in need of professional intervention. It raises questions about how agencies and individuals could have intervened in Joseph's case and how we can ensure that we have better systems and better practice in the future.
These are issues of policy that no inquest, however well conducted, can cover in the way a public inquiry could, as did the Stephen Lawrence inquiry. It took five years of knocking on the door of the Home Office to convince it of the need for an inquiry into the death of Stephen Lawrence. The results of that inquiry helped to regulate a large number of policies, particularly those that affect members of minority communities in this country.
We need to ask ourselves very simple questions. We should examine the fundamental flaws in our system for dealing with children who break the law—flaws that have led to 25 children aged 15 to 17 taking their own lives in custody since 1990.
The call for the public inquiry was motivated by our concerns that the inquest, however well conducted, cannot deal with all the issues that I have identified. Taking into account the state's obligations under Article 2 of the Human Rights Act and the recent House of Lords judgments in Middleton and Sacker, we maintain, as we have from the outset, that due to the circumstances of this particular case, the inquest, however well conducted, is wholly unsuited to satisfy the state's human rights obligation to investigate this death.
I appreciate that the issue of sentencing is not a matter that should normally concern an inquest. The decision to give Joseph a custodial sentence is central to our concerns about his death. As well as being a matter relevant in its own right, the issue of sentencing of children is also very relevant.
In conclusion, in December 2003, Inquest, Yvonne Scholes and her MP attended a meeting with Paul Goggins MP about the need for a public inquiry. He gave no commitment to setting up a public inquiry, but he said that he would review the case following the inquest. If the coroner is to reach a decision about why Scholes took his life, he should know the circumstances surrounding his death. I do not think that the inquest is capable of reaching a decision unless all the facts are available to him or her.
I hope that the Minister will agree to such an inquiry. For my part, I shall ensure that the coroner is in receipt of the facts that I have outlined. I offer my condolences to Joseph's family and assure them that we shall get to the root of our failings.
7.25 p.m.
Baroness Howe of Idlicote: My Lords, I wholeheartedly support the request made by the noble Lord, Lord Dholakia, for an inquiry. I shall attempt to be relatively brief. Any death of a young person, whose life lies before them, is devastating for his or her family. It should leave every one of us with a clear feeling of guilt. Even a death that occurs in the tragic circumstances in which Joseph Scholes took his life—at just 16 years old—would not perhaps of itself necessarily warrant this kind of public inquiry. It is the wider issues and the unanswered questions surrounding the death of Joseph Scholes that make an even stronger case for such an inquiry. Noble Lords have ably outlined those issues and questions.
I turn first to the personal aspects. Of course, there was some bad luck involved. Joseph's conviction for three offences might not have led to a prison sentence but for the alarming epidemic of mobile telephone thefts at that time. It was a sad enough comment that the offence took place while he was temporarily in the care of the local authority.
Was a prison sentence rather than medical treatment the answer, given the young man's background? By all accounts, Joseph was a highly

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disturbed young man and, as we know, had a history of being sexually abused by a member of his father's family. Prior to the offence, he had been seeing a psychiatrist. At that time, his behaviour was especially worrying, with a tendency to self harm already apparent.
However, one lesson that I learnt from many years as a magistrate is that one should not make judgments on sentences passed unless one was present throughout the whole trial and heard all the evidence. In Joseph's case, the judge was sufficiently concerned when imposing a two-year sentence to ask that Joseph's abused and self-harming background be drawn "most expressly" to the attention of the authorities.
We know that the judge's message got through to the prison—we have heard that already. So had his mother's warnings about his depressed state and suicidal behaviour. Initially, Joseph was under constant surveillance before being moved, inexplicably, to an unsupervised single cell where he hanged himself.
Whether the Youth Justice Board, to which responsibility for his well being had passed, and Stoke Heath Prison failed in their duty of care to Joseph clearly must be thoroughly investigated and the appropriate lessons learnt. However, as we have also heard, both NACRO and Inquest's view is that the inquest system is unsuitable for this purpose. That is another reason to set up an inquiry to look at the wider public interest issues involved.
We know that no fewer than 25 young men aged 17 and under in prison in this country have killed themselves since 1990; eight of them were aged 16 and three were as young as 15. In 2002 alone, 12 young people under 20 years old took their own lives. That is an appalling record for all of us to have on our conscience.
Earlier this week, my noble friend Lord Listowel mentioned that we currently have 2,500 children in prison, while the French have 755 and the Danes have just 12. While we continue with this policy, there is a growing body of opinion that does not believe that prison is the appropriate place for children, even if the offence would merit a prison sentence if it had been committed by an adult. My noble friend Lady Stern has also reminded us that the 10th report of the UN Joint Committee on Human Rights has recommended that prison should no longer be used for children under 18 years.
If we add to that the growing criticism by the Prison Inspectorate itself in the past decade, and that of individual judges such as Mr Justice Munby, who recently reported that conditions in such institutions should "shock the conscience of every citizen"—I have seen many such institutions over the years; they certainly do not appear to have changed very much; it is in such institutions that we are holding some of this country's most vulnerable and damaged children—then surely the time has now come to reassess the whole situation.
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What I found particularly rewarding sitting as a juvenile court chairman for more than 20 years was that if we had a potentially delinquent/disturbed child before the court early enough, there was still time to put in place support services and opportunities that would end such offending behaviour. With the Children Bill currently before your Lordships' House, early opportunities to change such behaviour should begin, and already have begun, to increase.
For older children, too, there is still time to make that transition if they are held within a specifically child-centred setting where training and education can also be given. It can hardly be argued that a prison setting, where all too often further and more sophisticated criminal techniques are learned, will enhance the chances of that happening.
For those wider reasons which vividly highlight the need to assess the effectiveness of how we deal with serious child offenders, and for meeting the immediate, legitimate concerns of the Scholes family, who need to understand fully what took place, I hope the Minister will agree to the request of the noble Lord, Lord Dholakia, for a full, independent inquiry.
7.32 p.m.
The Earl of Listowel: My Lords, I shall speak very briefly. I must leave your Lordships' House at 8.20 p.m. I very much regret that that is so but I hope that by speaking briefly we shall finish by that time. I have a long-standing family engagement.
My goodness, what a tragic issue we have to consider today. If Joseph Scholes had been French or German, he would probably have found himself in a residential care establishment in which the staff had had about three years' training for work with troubled children. In this country he found himself in an establishment where prison officers are trained basically for nine weeks and then have two or three days' training to work with children. Can that possibly be acceptable?
The noble Baroness, Lady Howe, pointed out that 12 young people under 20 killed themselves while in the care of the Prison Service during 2002. I shall not repeat further anything else that she said.
There was no suggestion that Joseph had used or threatened violence in his crime and it was accepted by both the victims and other witnesses that his involvement was peripheral. I am left speechless when I consider the response that we made to this child.
I very strongly support the call by the noble Lord, Lord Dholakia, for an inquiry. Several noble Lords have referred to the question that I asked earlier this week in regard to juveniles in custody, and one of the Ministers in the Home Office told me that he was very pleased that I had asked the question because it highlighted the disparity between this country and our continental neighbours.
I hope that the Government will consider that an inquiry will be helpful in moving things forward in much the same way as the Victoria Climbié inquiry

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provided such an important impetus to the current welcome reforms outlined in the Children Bill. I look forward to the Minister's response.
7.35 p.m.
Baroness Stern: My Lords, I thank the noble Lord, Lord Dholakia, for deciding to ask for the debate and for his persistence in ensuring that our concerns about the death of Joseph Scholes are heard in this House. It is a terrible thing for a mother to lose a child, particularly when it is widely felt that the death might have been prevented and was a result of a failure somewhere in the system. I know that we all want to express our sympathy to Mrs Scholes and her family in her loss.
It is a great strength of this House that it feels that it is its responsibility to make time to discuss failings of public administration that have serious consequences for a fellow citizen, even when it is past seven o'clock on a Thursday night. I thank all those who have so willingly given up some part of their evening to stay late for this debate.
Nothing will bring Joseph back, but we can try to ensure that the mistakes are not repeated. I want to concentrate not on what was wrong, but on what we should do to put it right, as well as on which matters should be looked at by a public inquiry, which there certainly must be.
I shall look quickly at the whole process, from the basis, I admit, of imperfect knowledge, as I have not had access to the decision-making processes at any point. I shall look at how a series of decisions, made by well-meaning people—and I have no doubt whatever that they were—led to such a tragic outcome. I shall make an analogy with the case of Adele Price, a severely disabled woman who was sent to prison. The European Court of Human Rights found that her treatment in prison violated Article 3 of the European Convention on Human Rights, which forbids inhuman and degrading treatment or punishment. That case was Price v the United Kingdom, 10/7/01. One of the judges expressed the following opinion, which, although it applies to physical disability rather than mental illness, seemed to provide a lens through which we should look at the case of Joseph. The judge said:
"The applicant's disabilities are not hidden or easily overlooked. It requires no special qualification, only a minimum of ordinary human empathy, to appreciate her situation … In my opinion, everyone involved in the applicant's imprisonment—the judge, police and prison authorities—contributed towards this violation. Each of them could and should have ensured that the applicant was not put into detention until special arrangements had been made".
I shall begin with the incident where Joseph tried to kill himself by taking an overdose and jumping from a window. He then became involved in an altercation with the ambulance staff who came to help him. It was decided after that to charge him with an offence. I can see why. Ambulance staff do a magnificent job and have to be protected, but whether charging a very sick boy with affray helps to protect them is open to question. The case shows once again how hard it is to
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draw a clear line between victims and offenders and then proclaim that victims must see justice done. It is more complicated than that. The ambulance workers might have been better served by some time off to recover, and good management support and recognition for the work that they do, rather than the prosecution of a suicidal teenager.
The first point at which a different decision might have been made would have been where that first prosecution was taken out. Maybe guidelines for prosecutors on dealing with mentally disturbed young people would be a good idea. Maybe prosecutors have them already or they have been produced since Joseph's death. No doubt the Minister can tell us the answer to that.
I turn to the judge and his decision in the case of the mobile phone robbery. From the information that I have, it seems to me that the judge was caught between the guidance of the Lord Chief Justice about the right sentence for robbery of mobile phones. He was confronted, do not forget, with a "persistent offender", as Joseph is now described because of his first offence. He was also caught by his anxiety that prison might not be in the best interests of the child, which the Convention on the Rights of the Child required him to consider. He did consider, for 19 days, and then pronounced a sentence of two years, and urged that the authorities take note of Joseph's history and problems.
We can hope that the new Sentencing Guidelines Council will make it clear that sentencing must take place within the legal framework of the Human Rights Act and the protection of the right to life, and that when the judge cannot order an appropriate placement in a mental health unit or other safe place, the protection of life should come before punishment.
Here I should like the House to take note of the view of the European Court of Human Rights when considering the Younger case. It said:
"Not every claimed risk to life therefore can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise in the context of where the risk to a person derives from self-harm, such as a suicide in custody, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual and, if so, they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk".
I hope that the Minister will agree that this debate, and the concerns of this House, will be put before the Sentencing Guidelines Council.
Then we have, most crucially, the decision of the Youth Justice Board officials about placement. I understand that the social workers working with Joseph did not expect Joseph to be given a prison sentence and were therefore not well prepared for that outcome, and that there were no vacancies in secure units and no other suitable placement was available. The Youth Justice Board has no powers to require the National Health Service to find a suitable place, nor had it the power to send him back to the children's home where he had been living while on remand.

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It would require but a small change in the law to allow the Youth Justice Board that leeway—the leeway to find a more suitable placement than a prison when all those involved, including the judge, are concerned about safety. Will the Minister seriously consider using the Children Bill, which we discussed here two days ago, to introduce such an amendment into the law? I am sure that it would have very wide support and would certainly sit within the framework of a White Paper called Every Child Mutters.
I turn to the last stage of this sad tale. Why was Joseph not moved the next day from the prison establishment to somewhere more suitable? I understand that that was tried on the next day, but that the secure units were full of even more vulnerable children. Perhaps the Minister could confirm whether that was indeed the case. So Joseph stayed in Stoke Heath young offender institution until he died. That raises in my mind a question about the role of the medical services in prison, and their powers. At the moment, as I understand it, they have no powers but can only advise. Have the Home Office and the Department of Health, in considering this case, as I am sure that they have done, thought of giving the medical authorities in prisons the power to require the Youth Justice Board to move juvenile prisoners when the placement is clearly inappropriate?
Finally, let me say that this time I hope that we shall act. I first became concerned about the tragic cases of children killing themselves in prison when Simon Willerton hanged himself in Leeds Prison on the very day that the European Committee for the Prevention of Torture made its first visit to the United Kingdom in 1990. I remember the details of many of these children since.
I also remember that, after a spate of such suicides and attempted suicides by hanging, those responsible had a series of meetings to discuss what to do. They knew the causes of such suicides: despair and misery, the accumulated experience of fractured and unloving childhoods. They knew what ought to be done—these young people should not be in prison establishments, they should be in proper adolescent mental health units. But they also knew the limits of their power. Since many of these incidents had been hangings on upturned beds, they made a big decision. They screwed the beds to the floor. I hope that never again will we respond to the tragedy of a child killing himself in one of our prisons by simply screwing the beds to the floor.
7.45 p.m.
Baroness Walmsley: My Lords, first of all, I thank my noble friend Lord Dholakia for introducing this important debate and congratulate him on his excellent speech and for the way he has taken up this case and those of the many hundreds of other people who have come to him for help over the years. They have found a listening ear and a willing advocate.
I add my condolences to those that have already been expressed to the Scholes family. Noble Lords have heard my noble friend's justification for a public inquiry and I agree with him. I am sure that Anne
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Owers, the Chief Inspector of Prisons, would also agree with him. She has suggested that the most serious incidents of self-harm and deaths in custody should be investigated so that lessons can be learnt. Joseph Scholes was not alone. Sadly, there are hundreds like him. No inquest can explore the fundamental problems relating to young people in prison that a public inquiry could uncover. An inquiry could look into the complex reasons why so many children are harming and killing themselves in prison. I have my own ideas. I think that it boils down to three basic issues: sentencing policy; the lack of mental health services; and the fact that prison is not a suitable place to keep children. I shall say more about each of these.
However, before I do, I shall make one overarching point. The noble Baronesses, Lady Howe of Idlicote and Lady Stern, have reminded us that the UK has for many years been a signatory to the UN Convention on the Rights of the Child. Under Article 3, the UK Government are under an obligation to ensure that in all actions concerning children the best interests of the child should be the primary consideration. Article 40 of the convention requires the Government to establish a separate and distinct system for the treatment of children in trouble with the law.
For many years we have been severely criticised for the poor way in which we carry out our obligations under the convention. For example, the primary objective of our youth justice system is not the welfare of the child but the reduction of re-offending. I argue that, if you pay primary regard to the welfare of the child, you will inevitably cut re-offending. Children who offend are usually very damaged and vulnerable children, many of them victims themselves. They are children who have been failed by society and we fail them again when we lock them up in prison without addressing their fundamental problems. That is not the sentimental talk of a woolly Liberal. It is a fact and it is actually in all our hard-nosed self-interest to put it right. Adhering closely to our obligations under the UNCRC is in the interests of the child's human rights and is in the interests of taxpayers.
I shall now expand on the three problems I listed earlier. First of all I shall say a word about sentencing. Joseph Scholes had committed only two minor offences; my noble friend has given us the details. Why he should have been sentenced to two years' custody beats me, and it clearly beats other noble Lords. It has been claimed that the reason was the climate of political posturing about being tough on crime at the time of his trial. If that is the case, it is an outrage and those responsible for such posturing and for the reporting of such posturing should be ashamed of themselves. The sentencing of children is a critical point at which their welfare needs to be properly considered, as the noble Baroness, Lady Stern, pointed out. Without that focus it is hard to see how re-offending can be prevented, especially when you look at the profile of children in custody: 60 per cent have been looked after by a local authority; 25 per cent of males have suffered violence at home; and 85 per cent exhibit signs of personality disorder.

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No one is suggesting that there should be no punishment of young offenders but, in its own interest, society needs to pay a good deal more attention to whether the sentence is appropriate, and to whether it will rehabilitate the offender so that he does not burden society with any more offending. Justice costs and, although the cost is justified, I would like to see less need to spend money on the criminal justice system by being a lot more effective in the way in which we deal with offenders, with a rigorous programme of education and rehabilitation during custody and after release.
Spending money on that and on families with very young children is an excellent investment and saves money on the criminal justice system later. The problem that flows from sentencing practice is the number of people, especially young people and children, in prison. Adult prisons are overcrowded, impeding education programmes, and the rates of child imprisonment have almost doubled over the past decade. That increase has occurred during a period when recorded crime by children has been declining. Article 37 of the UNCRC states that imprisonment of children should be used only as a measure of last resort. That was clearly not the case with Joseph Scholes, and nor is it the case with many hundreds of others.
The second problem that a public inquiry would uncover is the lack of mental health services for young people. Research by Young Minds concludes that more than a million children have a mental disorder, including half of all the children who have been involved with the police. That is not to say that all children with a mental disorder offend, of course, but it is important to expand children's mental health services rapidly as a preventive strategy to help such vulnerable children. I welcome the fact that the Government have invested heavily in child and adolescent mental health services, but some of the problems that we face might not be quite so desperate if that investment had come earlier.
Why have prisons and young offender institutions become such dumping grounds for the mentally ill, young and old? The answer is simple. According to the mental health charity Mind, 50,000 psychiatric beds have been lost over 20 years. There is nowhere for people to go when they have a mental breakdown and that often leads to prison for people who commit minor offences. The courts are remanding increasing numbers of mentally ill offenders in custody to await pre-sentence psychiatric reports, because there are not sufficient places available in bail hostels.
So much offending by mentally ill people is really a public health issue. The problem will certainly not be solved by cramming more people into gaols or by investing in another prison-building programme. The solution is to provide more resources for mental health care, drug and alcohol treatment and mental health support and supervision centres throughout the country. Why should we continually throw money at our prisons when the more we build, the more demands to send people to gaol seem to fill the tabloids?
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The third conclusion that a public inquiry might reach is that prison is not a suitable place for children and that our age of criminal responsibility in this country is far too low. My noble friend Lord Dholakia referred to that in his excellent speech at Second Reading of the Children Bill on Tuesday. Joseph Scholes was only 16. He was a child and we failed him. We are criminalising children too young and putting them into the care of an overstretched Prison Service that cannot possibly respond to their needs.. Prison officers, however well meaning, are not trained to deal with the numerous mental health and personality disorders of their young inmates. Children who offend, as the UNCRC says, should be dealt with by a completely different service focused on their care, welfare, education and rehabilitation.
The problem is compounded in the case of girls in prison, who seem to suffer even more than boys if the rates of suicide and self-harm are anything to go by. The Howard League recently published a report on girls in prison to celebrate the fact that no 15 year-old and 16 year-old girls are kept in prison any more, a matter on which the Government are to be congratulated. The Howard League studied 111 teenage girls, who it helped while in custody and beyond. Fifty-five of them had experienced family breakdown; 40 had drug or alcohol problems; 19 self-injured; 9 had children; and 11 were pregnant. All those facts illustrate the multiple problems to which I have already referred and which could have been nipped in the bud before a pattern of offending was established and there was any question of custody.
So, what solutions might a public inquiry recommend? We have heard some suggested by the noble Baroness, Lady Stern. I would second guess at least five. First, listen to children. Nobody listened to Joseph or his mother. Nobody listens to a great many children who land up in custody or dead. The Howard League report tells the story of one girl, Gabby, who was listened to only at a very late stage by the Howard League, a voluntary organisation. Gabby was 17. She had been beaten up by her father and abused by her sister's boyfriend. She took an overdose at 15. Nobody listened. Social services sent her to live with her sister and the boyfriend who had been abusing her. She slit her wrists in the bath. Nobody listened. She went to a children's home and was moved 14 times. Nobody listened. The noble Earl, Lord Listowel, told us how that situation might have been different if she had been French of German. She became mixed up with drug users, was convicted of robbery and sentenced to an 18-month detention and training order with a care order. Still nobody was listening, because she received little support. At last the Howard League listened and helped. That girl could have landed up dead like Joseph Scholes, as so many girls do, had it not been for the intervention of the Howard League.
Secondly, we need much greater access to children's advocates, not just for children in care, but for all children who come into contact with the authorities. If there is someone there to ensure that the voice of the child is heard, or to speak for him if necessary, a better quality of decision making will take place at all levels.

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Thirdly, we need even more resources for children and young people's mental health services both before and during custody. Martin Narey, the head of the National Offender Management Service, says that at any one time in the general prison population 5,000 prisoners should immediately be transferred to secure psychiatric settings. The problem with young offenders is likely to be at least as bad. Anne Owers has suggested not only that help be focused on suicidal inmates but should identify inmates who are so mentally ill that they should not be in prison at all, but in a new network of mental health units to provide the support they need. Again, that should be doubly available for young people.
Fourthly, there should be much less custody and more focus on community sentences. Opportunities abound for meaningful community sentences which include reparation, rehabilitation, education and care, so that we can be tough on the causes of offending.
Finally, it is vital that children who offend are treated as children, first and foremost by a separate system in the context of care, rather than in the Prison Service. This has been an excellent, but short and important debate and I look forward to the Minister's answer to the issues raised.
7.58 p.m.
Viscount Bridgeman: My Lords, in view of the previous excellent and informed speeches, I shall be brief. I must thank the noble Lord, Lord Dholakia, for instigating the debate, and, with others who have spoken, express our condolences to Mrs Scholes at this continuing sad time. I also pay credit to the efforts of her local Member of Parliament, Chris Ruane, and to NACRO and Inquest, who have diligently taken up the case.
Many noble Lords have referred to various aspects of the case and I have noted three, all of which have been covered. I refer to the landmark judgment by Mr Justice Munby, in a case successfully brought by the Howard League against the Home Office and the Department of Health over the treatment of young offenders. We have also heard about the judge who passed sentence on Joseph Scholes. I appreciate the difficulty that he was in, because the Lord ChiefJustice had made at that time very recent guidelines that sentences should be between 18 months and three years—Joseph Scholes was given two years. The judge should also be given credit for at least doing his best to alert the authorities to the previous disturbed history of Joseph Scholes.
We have also heard that there was no secure accommodation available for Scholes, so he was sent to Stoke Heath young offender institution. We have also heard that he was placed on suicide watch for the first few days. No reason being given, and without consultation with his mother, he was transferred to a special cell with normal ligature points, reduced observation and no surveillance cameras. The rest—as the noble Lord, Lord Dholakia, said in last week's excellent debate introduced by the most reverend
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Primate the Archbishop of Canterbury—is history. Whatever the crime, it resulted in a death. In fact, the crime involved no violence and no robbery.
The case underlines the need for a much closer examination of the place of children in prisons. In the overwhelming number of cases, they have come from disturbed family backgrounds and they are particularly vulnerable if for no other reason—and this is not meant to be cynical—they have not had the time to pick up the prison survival techniques of their older counterparts.
Prison officers, particularly in YOI, are frequently inadequately trained in dealing with young offenders, treating them simply as younger versions of adults but with a greater capacity to make a nuisance of themselves. And certainly they do not recognise the different problems and pressures they face. Witness an anecdotal remark by a young offender in a report in the Times of 17 February:
"I did not ask for any complaint forms because I was terrified. I was worried about repercussions if officers thought I was informing on them".
That is typical of the particular pressures on young offenders and one should not overlook the problems of bullying at that age.
The Joseph Scholes case was not unique. The NACRO inquest helpfully lists the number of juvenile deaths in custody since 1990. The verdicts on such deaths, which amount to 25 since 1990, are listed as: self-inflicted; accidental; one or two open verdicts; and misadventure. However, one entire column of the report lists the cause of every death as hanging. Sadly, we must assume that some of those were from beds not screwed down.
We strongly urge the Government to bear in mind that the treatment of children in prisons has been the subject of successive reports by Her Majesty's Inspectors of Prisons. Miss Anne Owers has been quoted on several occasions today and perhaps I may take the liberty of quoting her again. In her report for 2004, she states:
"There are a number of areas where prison service orders drawn up for adults are simply inappropriate for children and do not reflect child protection principles. Routine strip-searching, and the use of force if this is resisted, can be extremely damaging for children, particularly those who have suffered abuse in the past. It is our view that strip-searching should be done only after risk assessment and force used only as its last resort when all other methods have failed. The use of force in general needs to be consistently recorded and carefully monitored".
Could that be clearer?
We strongly support the noble Lord, Lord Dholakia, in his request that the Government set up a public inquiry into the circumstances of the death of Joseph Scholes. I am pleased that we do not appear to have a blanket refusal, which I thought was the case. If, however, the Government remain adamant in their refusal to do so, will they give urgent consideration to the setting up of an inquiry at the highest level and with the widest powers which will address many of the issues raised by the Scholes case?
The noble Baroness, Lady Walmsley, has spoken in greater detail, but I have four points for such an inquiry. The first is the availability of suitable

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accommodation for young offenders, which was so clearly lacking in the Joseph Scholes case. The second is the roles and responsibilities of local authorities, the Youth Justice Board and other bodies, particularly following the Munby judgment. The third is for an increasing role for the NHS in the cases of disturbed children—a point made by the noble Baroness, Lady Stern. The fourth and not least is a review in consultation with the Law Officers and the Sentencing Council of sentencing policies for children.
This debate takes place on an auspicious day, as from today the prison ombudsman will be responsible for investigation into all deaths in prisons, which will include those of young offenders. While that by itself, since it is ex post facto, will not prevent any direct deaths, it is earnestly to be hoped that any lessons learnt from what we are confident will be thorough investigations will be well received and acted upon.
I also refer to a Written Answer at col. 92WS of Commons Hansard for 31 March from Mr Paul Goggins outlining some very welcome steps that the Government intend to take, with help and advice from the Ministerial Roundtable on Suicides on which the Prison Reform Trust and the Howard League sit together with other appropriate prison bodies. That Answer is very much to be welcomed but, in a total of two columns, there is no mention of the words "children", "young person" or the like. The nearest that we come to it is a passing reference to targeting the most vulnerable.
All that highlights what tonight's debate has been about—the very special factors which apply to children and young persons. This is the message that I hope all who have spoken will wish to convey to the Minister.
Again, I express my thanks to the noble Lord, Lord Dholakia. I hope that this debate can be the catalyst for a wide and effective review of the enormously important subject of the treatment of children in custody, hopefully with a public inquiry into the Scholes case.
8.6 p.m.
Lord Bassam of Brighton: My Lords, I, too, add my thanks to the noble Lord, Lord Dholakia, for bringing this sad and tragic case to the attention of the House. As the noble Lord said, one death in custody is one death too many. It is a sad case when a young mother outlives her son in such circumstances. I know that the whole House will share that sentiment.
The noble Lord told us how he attended the launch of the campaign by Inquest and NACRO for a public inquiry into the circumstances surrounding Joseph Scholes's death last November. As I understand it, he stated then that he wished to instigate a debate into the case.
The sudden death of any person in prison custody is tragic, whether it is due to natural causes or apparently self-inflicted, and it can have a huge impact on the prisoner's family and friends and the staff who come into contact with them. It is entirely understandable that bereaved families need to know how their loved ones died, and Mrs Scholes has received strong hacking from support and campaign groups and Members of both Houses. That support has been
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echoed very ably this evening. I simply want to add my voice to the expressions of sorrow and unhappiness at Joseph's death and, as others have done, I offer my sympathies to his family.
This has been a valuable debate and all the contributions to it have been particularly telling. independent of their length and the issues raised. I was much impressed by the comments of the noble Lord, Lord Dholakia. In making his case for an independent inquiry, he put his finger on some of the important issues that will need to be addressed in the forthcoming inquest, as did others.
The passion of the noble Earl, Lord Listowel, is well known in these cases. The noble Baroness, Lady Howe of Idlicote, also raised important points, particularly in relation to when the sentence was given and the moral panic surrounding the issue of mobile phone thefts. I thank the noble Baroness, Lady Stern, for her contribution, which I considered to be most important, focusing as it did on the unravelling complexities of the case and the issues that it threw up. The noble Baroness, Lady Walmsley, in her customary way, made a very powerful plea. I listened with great interest, in particular to the points that she made on behalf of girls and young women in prison custody. The noble Viscount, Lord Bridgeman, also drew attention to important points, and I am grateful to him for acknowledging the value of Paul Goggins's Written Statement in yesterday's Commons Hansard.
I turn to some of the specifics of Joseph's death. The inquest into his death has yet to be resumed. Regrettably, I am unable to provide great detail at this stage, although much detail has been provided to your Lordships' House. Joseph was 16 years old and in the voluntary care of Trafford social services when, on 15 March 2002, he was sentenced to a two years' detention training order, having already been convicted of three street robberies. As there were no local authority secure unit places available, Joseph was allocated to Stoke Heath young offender institution. It was, as has been noted, his first time in custody.
Nine days later, during the afternoon of 24 March, Joseph was found hanging from his cell window bars. Staff and paramedics attempted to resuscitate him, but Joseph was pronounced dead on arrival at North Staffordshire Hospital. A prison service investigation was commissioned by the West Midlands area manager soon after and conducted by a senior governor from another establishment. It was one of the first to be overseen by an advisory panel, which included representatives from the Youth Justice Board, the Prison Ombudsman's office and social services. The contents of that report have been disclosed to Joseph's parents and to the coroner.
All deaths in prison custody are subject to police investigation and a coroner's inquest held before a jury. The inquest into Joseph's death was opened and adjourned, as is routine in such circumstances. A three-week hearing is scheduled to begin later this month, on 19 April. Another investigative element to this is the serious case review under Part 8 of Working Together to Safeguard Children, more commonly

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referred to as a Part 8 case review. That has been carried out by Trafford social services. Its report will be finalised after the inquest into Joseph's death has been held.
Following the launch of the campaign to request a public inquiry into the wider circumstances surrounding Joseph's death and other juveniles in prison in the House of Commons in November last year, Paul Goggins, the Minister for correctional services, met Mrs Yvonne Scholes, Joseph's mother, in December. During the meeting the Minister stressed that Home Office Ministers and the Prison Service are committed to reducing the numbers of apparent self-inflicted deaths in custody, and provided information on the Prison Service safer custody programme, to which I shall turn in a moment. While that was welcomed by Mrs Scholes, she reiterated her request for a public inquiry so that other, more wide-ranging questions—many of which have been raised this evening—about the wider criminal justice system and how it deals with juveniles can be explored.
I have to make it clear that there are no plans at this stage, however sympathetic we may be, to hold a public inquiry. The inquest will resume later this month and over 50 witnesses have been called to give evidence. This in itself will be a thorough inquiry, providing the opportunity for independent public scrutiny, and it is hoped that many of Mrs Scholes's questions will be answered. The Minister has, however, already given his assurance to Mrs Scholes that there will be a comprehensive summary of the lessons learned by the various agencies involved and that the results will be shared with both her and her MP, Chris Ruane.
While improvements have been made to the way in which deaths in prison custody have been investigated since the late 1990s, Ministers and the Prison Service recognised that other options needed to be considered. After considering a number of alternatives, the Minister announced earlier this year that Mr Stephen Shaw, the Prisons and Probation Ombudsman, would be taking over that responsibility, as the noble Viscount, Lord Bridgeman, said, from today, 1 April. He will have the power to investigate all deaths, whether they are deemed to be self-inflicted, or due to accidents or natural causes. His role will also extend to deaths of probation hostel residents and immigration detainees.
However, I must make it clear that the reasons for strengthening investigations into deaths in prison custody go beyond issues such as Article 2 compliance. The main reason is to contribute to improving suicide prevention strategies to ensure a better focus on what went wrong and why, and to extract learning so as to minimise recurrences. Reducing prisoner self-inflicted deaths and managing self-harm is a key priority for Ministers and the Prison Service. A large number of prisoners who are taken into custody are already struggling to cope with a wide range of problems. These can include drug and alcohol abuse, difficult family backgrounds, as has been mentioned this
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evening, and problems with relationships, social disadvantage or isolation, histories of sexual or physical abuse and mental ill-health.
There have been no apparent self-inflicted deaths of juveniles since that of the 17-year-old Ian Powell at Her Majesty's Prison Parc on 6 October 2002. The recent reduction in self-inflicted deaths of juveniles may be attributed to a number of key improvements for the care of juveniles. These are increased safety and a more controlled estate, coupled with increasingly active regimes, including more time out of cell and higher levels of purposeful and structured activities.
There have also been improvements to first-night reception arrangements, identified as the most important single initiative. All juvenile establishments are provided with two extra staff and an extra healthcare worker to ensure all receptions are properly assessed and staff have time to talk to them, to reduce anxieties and to help them to settle in.
Other improvements have been made to reception processes that focus on identifying vulnerability; and there have been measures to improve the healthcare centres. Better child protection arrangements are now in place, including child protection training as a priority, something which I know the noble Lord, Lord Dholakia, is particularly keen to see carried forward.
There is, we like to think, a more caring staff culture. There is an acceptance of need to support mental health and well being of young people in prison, including induction procedures and advice for prisoners on how they can cope with imprisonment.
Of course there are, regrettably, no simple solutions. The reasons for self-inflicted deaths are, as I think we have learned this evening, highly complex. Despite the Prison Service's best efforts, some prisoners will not easily disclose their feelings and intentions regarding any possible self-harm. We hope that by ensuring that those who are most vulnerable receive all appropriate care and support during their most susceptible periods, we shall be able over the longer term to reduce the number of such tragic incidents.
The current three-year Prison Service programme to develop policies and practices to reduce prisoner suicide and manage self-harm in prisons ends this month, although much key project work and evaluation runs well beyond that. That has been developmental and focused primarily on the riskiest prisoners in the riskiest prisons. Its key elements have included projects to improve pre-reception, reception and induction arrangements; to improve the exchange of information between agencies; to develop safer prison design, including "safer cells"; and an investment of over £21 million on improvements to systems and the built environment at six "safer local" pilot sites.
Over recent months a wide-ranging review of this programme has taken place in consultation with a range of partner agencies and outside organisations. Account has been taken of the evaluations of the pilot projects and the emerging findings from commissioned research. Future strategy as announced yesterday by Paul Goggins

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will—as the noble Viscount made clear earlier—be broader and more closely integrated with other approaches, seeking to find the balance between policies that target the general prison population and policies that target those most at risk. It will be based on clear research-founded links between levels of prisoner distress and levels of self-inflicted deaths, and can be summarised as, "reducing distress and promoting the well-being of all that live and work in prisons".
This broader approach will form an important part of the Prison Service's decency agenda. The strategy encompasses a wide spectrum of the work of the Prison Service through integration with other agendas that have overlapping aims, such as resettlement, drugs, detoxification, staff care and welfare, health, purposeful activity, staff and management attitudes—
Baroness Stern: My Lords, I am grateful to the Minster for giving way. Since his time is nearly up and he has not answered any of my questions, perhaps I may ask him if he intends to or whether he proposes to write to me about them.
Lord Bassam of Brighton: My Lords, I think it is important that the response in general covers the issues that have been raised. That is why I have dealt with the issues in the way that I have. I have made a careful note of the questions that I have been asked, and they deserve a fuller response than I could possibly make in 12 minutes of summarising. This is an important debate, and the issues that have been raised in it are wide ranging and go further than the individual case. I hope that the noble Baroness will accept that I will
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put together a full response to the different questions and points. I could not have covered them all this evening.
In conclusion, the future strategy will encompass specific suicide prevention strategy for juveniles. It is important that is understood. The noble Viscount, Lord Bridgeman, made the point about Paul Goggins's statement yesterday, and I want to make it clear that that strategy is most important. This has been a useful discussion and debate in your Lordships' House. It is sad that it has been occasioned by such a tragic case. I hope that lessons can be learned, certainly from the outcome of the inquest that is to start shortly. No doubt the Minister—because of the high profile that this case has achieved, the important representations that have been made to him, and this debate—will follow the outcome of that inquest very carefully indeed.
Finally, it is time for us simply to reflect on this and express our deepest sympathy to the family and all those involved—
Lord Dholakia: My Lords, before the Minister sits down, did he mention whether a large number of witnesses will be available to the coroner'? Does this include those people who were responsible for sentencing? That seems to be outside the scope of the coroner. Perhaps he could look into it, rather than reply to me now. I will appreciate the reply, so that I can get in touch with the coroner.
Lord Bassam of Brighton: My Lords, I do not have the response to that question to hand. It is an important question, like the other questions raised. I will make sure that the noble Lord, and other noble Lords involved in this debate, get a response.
House adjourned at twenty-two minutes past eight o'clock.