Lords Sitting of 19 January 2004

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

Zimbabwe: British Food Aid
Lord Watson of Richmond Lord Watson of Richmond asked Her Majesty's Government:
What arrangements exist for the distribution of British food aid in Zimbabwe now that the country has withdrawn from the Commonwealth.
The Lord President of the Council (Baroness Amos): My Lords, Zimbabwe's withdrawal from the Commonwealth has had no effect on the levels of humanitarian funding or the way in which British food aid is distributed. The UK Government remain committed to supporting the people of Zimbabwe, who are suffering as a result of their government's disastrous policies, erratic rainfall and HIV/AIDS. DfID continues to work in close collaboration with the UN World Food Programme and NGOs to ensure that food distribution is carried out in an apolitical manner and targets those in most need.
Lord Watson of Richmond: My Lords, I am most grateful to the Minister for that reply and for her clarification. Does the Minister not agree, however, that there is a real danger that Zimbabwe out of the Commonwealth can also be Zimbabwe out of the public eye? Given the complete apparent failure of all attempts to persuade Mr Mugabe to follow another course, including the so-called "too little, too late" sanction on his financial assets held abroad, has not the time now come for the international community in the Commonwealth and beyond to consider new and tougher measures with regard to Zimbabwe, if that country is to avoid ruin and the world is to avoid the danger that Zimbabwe seriously begins to destabilise South Africa itself?
Baroness Amos: My Lords, I totally agree with the noble Lord, Lord Watson of Richmond, and in particular the view that Zimbabwe out of the Commonwealth could mean Zimbabwe out of the public eye. We have a responsibility in the international community to ensure that that does not happen. Noble Lords have pressed the Government several times with respect to the issue of a UN resolution, and we have taken soundings on that. The temperature is not right for it at this point in time, but I agree with the noble Lord that the international community really has to continue to put pressure on Zimbabwe.
Lord Acton: My Lords, is my noble friend aware that the current appeal for vulnerable Zimbabweans by the UN World Food Programme has fallen short by 40 million dollars? Is she aware that, as a result, in this month the World Food Programme can feed a totally inadequate diet to only 3.2 million people and cannot feed a further 300,000 people at all? Britain has been very generous in this matter, but can the Government try to find some more money? Can they encourage Germany, Japan and other countries to do the same thing?
Baroness Amos: My Lords, my noble friend is quite right. The WFP appeal for Zimbabwe is currently 80 per cent funded, with a shortfall of some 39 million dollars. However, I have to tell my noble friend that we are hopeful that the shortfall will be reached, in the sense that we expect an announcement from the European Commission shortly. We are continuing to monitor the situation and, if it continues to deteriorate, I assure my noble friend that we shall look again at our own contribution.
The Lord Bishop of Southwark: My Lords, is the Minister aware that the local churches in Zimbabwe were disturbed at the directive last year that gave local councillors a leading role in deciding who would get food aid? Does she know whether the subsequent understanding negotiated with the Zimbabwean government, which precludes such political interference, has been honoured?
Baroness Amos: My Lords, my understanding is that that memorandum of understanding between the World Food Programme and the Government of Zimbabwe has been honoured. There have been one or two minor incidents that have been dealt with promptly, but the kind of political interference that the Government of Zimbabwe tried to introduce into the system has not occurred.
Baroness Billingham: My Lords, will the Government give particular support to the women of Zimbabwe on 14 February, St Valentine's Day, when they take to the streets to protest at the situation in which their families find themselves? On that particular day, very vocal and high-profile government support would be enormously helpful and supportive to them.
Baroness Amos: My Lords, my noble friend is quite right. The women of Zimbabwe are under particular pressure. We all know how difficult it is to see families and children go hungry. We shall continue to do all we can with respect to the humanitarian situation. Of course, we are one of the only countries that continues to give support with respect to HIV/AIDS problems in Zimbabwe.
Lord Laing of Dunphail: My Lords, does the noble Baroness accept that Mr Mugabe, considering the destruction that he has caused in that great country, could be embraced by the title of a "weapon of mass destruction"?
Baroness Amos: My Lords, we have all agreed that Mr Mugabe's policies have been disastrous for Zimbabwe and for the people of Zimbabwe. I am not sure that I entirely agree with the way in which the noble Lord has phrased his question.
Baroness Northover: My Lords, has the Minister read the reports about the collapse of the currency in Zimbabwe and the difficulty of paying local aid workers there? Could she elaborate on what is happening to ensure that aid workers who are trying to get food aid into the country are being paid and that the food is, therefore, getting through to the people?
Baroness Amos: My Lords, the noble Baroness, Lady Northover, is quite right. Inflation is rife and this is one of the reasons behind the increase in the number of Zimbabweans who require additional food support. People can no longer afford to buy food in the shops. With respect to the impact on the pay of aid workers, I was not aware that this is a particular problem. I shall take this information away and write to the noble Baroness.
Lord Hughes of Woodside: My Lords, the House will be grateful to my noble friend Lady Amos for confirming that the situation is kept under constant review. Is she aware—I am sure that she is—of the reports over the weekend of grave food shortages in South Africa itself? A drought is affecting the whole of the region and we must not allow distaste for the Mugabe regime to deflect us from making sure that the aid programme is carried out to the fullest extent.
Baroness Amos: My Lords, my noble friend is quite right. This is an issue that affects southern Africa as a whole, although Zimbabwe has suffered disproportionately because of disastrous economic policies. We are keeping the situation across the whole of southern Africa under review.

Iraq War: Strategic Communications Networks
2.43 p.m.
Lord Chalfont Lord Chalfont asked Her Majesty's Government:
Whether strategic communications networks functioned satisfactorily during the Iraq war.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach): My Lords, overall our communications equipment worked well in Operation TELIC, as outlined in the recent National Audit Office report. The Bowman personal role radio was a great success. However, the rigorous lessons process conducted by my department has identified that the very high level of information exchange requirements between the United Kingdom and the Gulf, coupled with the very dynamic operational situation, meant that there were occasions on which
836
the maintenance of strategic communications links proved challenging. However, these difficulties did not significantly affect the overall outcome of operations.
Lord Chalfont: My Lords, I thank the Minister for that Answer. Does he not agree that if the strategic tasks set out in Essay 2 of the last Defence White Paper are to be discharged, effective—indeed, perfect—strategic communications are essential? Can he now give an answer to the question posed by the noble Lord, Lord Clark of Windermere, in the recent defence debate? Will there be someone in the Ministry of Defence who is specifically charged with ownership—that is to say, responsibility—for communications between home and expeditionary forces?
Lord Bach: My Lords, I agree with the noble Lord, Lord Chalfont, about the importance of strategic communications in a conflict such as this. It is important to realise what the NAO said. which was that,
"the majority of communications equipment worked well on the operation, although the force sometimes had difficulty maintaining strategic communications between United Kingdom and units in theatre".
There was a difference between the Gulf conflict of 1991 and last year's conflict. The total information exchange requirement was increased by a factor of at least eight. It is not surprising that things did not go perfectly, but I repeat that, on balance, they went entirely satisfactorily and I can confirm that there will be a position in the Permanent Joint Headquarters that will be responsible for dealing with the issue of strategic communications.
Lord Burnham: My Lords, the Minister has said that the Bowman personal radio worked well. When are the Bowman's other functions going to come on line?
Lord Bach: My Lords, the personal role radio worked extraordinarily well. That, as the noble Lord knows, is for platoon level. It was a huge success; so much so that our American allies bought a large number for their own soldiers' use. The noble Lord refers to the Bowman tactical secure voice and data system and I am happy to say that, as I speak, the in-service date of 31 March this year will be met.
Lord Redesdale: My Lords, although the NAO report is favourable, can the Minister say whether this is due mainly to the terrain in Iraq, which is extremely favourable to radio communications? If we were in an area such as the Balkans the Clansman would not have performed as well. What is being done to improve the range of the Clansman?
Lord Bach: My Lords, I am not in a position to talk about terrain. I do not have the noble Lord's intimate knowledge of the difference of terrain between Bosnia and Iraq. All I can say is that communications worked well.
Lord Vivian: My Lords, will the Minister explain why there was no training and initially no cryptographic equipment accompanying the OSCA strategic communications system? What problems were encountered in fitting the strategic communications systems into the current communications structures?
Lord Bach: My Lords, as I understand it, there was training. A considerable amount of training was put into effect before the OSCA system began to be operated. Prior to deployment, personnel received training on all elements of OSCA, which as the noble Lord knows, is the operational and strategic communications architecture, which covered the strategic communications in this case. The training was conducted by a mixture of civilian and military courses and was supplemented by having subject matter experts available in theatre. As the noble Lord knows, we had some experience of using similar equipment in other theatres such as Bosnia and Afghanistan.
On the second part of the noble Lord's question, we are planning to introduce the Cormorant system from May 2004, which will provide, crucially, an in-theatre command and control information infrastructure, thus avoiding the need for what is described as flubbing in the United Kingdom.
Lord Elton: My Lords, the Minister has emphasised the importance of strategic communications. Can he tell us the extent to which those communications are dependent on satellites that are neither owned nor controlled by the British Government? To what extent does that influence our strategic policy?
Lord Bach: My Lords, we do of course rely on satellite communications, and we have for many years. The satellite communications that we relied on in this case worked well, and their strategic links were enhanced by using a combination of military and commercial resources. We are content that we have as much control over these satellites as we require for military purposes.
The Earl of Onslow: My Lords, the Minister said that strategic communications were multiplied by eight times compared with those for the previous Gulf War. Surely the one thing that commanders want is not people from Downing Street or the Ministry of Defence chattering up the lines; they want to get on with it. What possible use can there be in increasing communications eight times, except possibly looking for body armour?
Lord Bach: My Lords, I do not think that it was people chattering from Downing Street or wherever else the noble Earl said; I think it was commanders on the ground and commanders at headquarters in theatre wanting to talk to and exchange information with those who commanded the Armed Forces in this country. The reason why there is so much more communication now than before is that it is now so
838
much easier. It is critically important, as I hope the noble Earl will agree, that at a time of expeditionary warfare, many thousands of miles away from the United Kingdom, we should be able to use all modern technology to enable commanders to talk to commanders.

Anti-terrorism, Crime and Security Act 2001
2.51 p.m.
Lord Dubs Lord Dubs asked Her Majesty's Government:
When they will respond to the report of the Privy Counsellor Review Committee on the Antiterrorism, Crime and Security Act 2001, in particular regarding the recommendation that the powers which allow foreign nationals to he detained potentially indefinitely should be replaced as a matter of urgency.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, I refer my noble friend to the reply which I gave to the noble Lord, Lord Burlison, on 18 December:
"The Committee has used the provisions"—
within the Act—
"to specify that the whole of the Act be considered when we come to debate its renewal. We will, of course, provide the House with the opportunity to do that".—[Official Report. 18/12/03; col. WA171.]
While we are considering the report's recommendations carefully, we believe that the Part 4 powers are a necessary and proportionate response to the current threat.
Lord Dubs: My Lords, the whole House will of course welcome the Government's tough stance against terrorism. However, does my noble friend accept that detaining people indefinitely without charge is a denial of many of this country's most important traditions? Will the Government consider as a matter of urgency dropping the ban on the use of intercepted communications material in courts, as has been done in the United States, as the best way forward in dealing with this aspect of a very difficult problem?
Baroness Scotland of Asthal: My Lords, I say straightaway to my noble friend that we have never at any stage suggested that the situation in which we find ourselves is ideal; it is not. However, by using this legislation we have tried to behave in a proportionate and appropriate way so as to ensure that the interests of the people of this country are put first. I hear what my noble friend says about intercepted information and the best way of dealing with that. Noble Lords will know that we are considering the response to the committee's report. We shall in due course take these matters into consideration also.
The Lord Bishop of Portsmouth: My Lords, while appreciating the way in which the Minister has replied

839
to the noble Lord's Question, I am struck by the fact that the Question is not just about procedure; it does indeed concern human rights. Is the Minister able to give reassurances that any legislation on detaining foreign nationals will be matched against that wider arena of human rights? Will she also reassure us that that valuable, even golden quality of restraint will figure in the way in which this government policy is worked out?
Baroness Scotland of Asthal: My Lords, I am certainly more than happy to reassure the right reverend Prelate on that golden quality of restraint, and I hope that noble Lords will have seen clear evidence of it in the way in which we have approached the SIAC proposals. The monitoring of that procedure has been absolutely rigorous, and we shall continue to ensure that that is right. Noble Lords will know that consideration has been given also to whether any of the foreign nationals can be sent back to their own country, because we consider the issues in relation also to Article 3 and so on. All those matters are extremely complex and difficult. The Government will continue to be proportionate and appropriate in the way that we respond to them.
Lord Holme of Cheltenham: My Lords, in declaring an interest as a member of the review committee, I wonder whether the noble Baroness is aware that the Government—in the shape of her right honourable friend the Home Secretary—attacked the committee's conclusions almost simultaneously with its publication in respect of Part 4, which is the subject of the Question from the noble Lord, Lord Dubs. Does the Minister agree that as well as fixing an early debate in the House to discuss the committee's conclusions, a preceding period of quiet consideration by the Government might be appropriate?
Baroness Scotland of Asthal: My Lords, of course I hear what the noble Lord says in relation to attacks on the committee. However, my right honourable friend's comments should not be thus interpreted. My right honourable friend was quite clear. He complimented the committee for its sterling work. He made it clear that we are going to consider all the recommendations. However, it was only right and proper that we should indicate in relation to Part 4 that the reasons that caused us to create this legislation, regrettably and somewhat tragically, still pertain. The security of this country and its citizens will always remain at the forefront of the Government's consideration.
Baroness Trumpington: My Lords, is the Minister aware that I worked at Bletchley Park during the war? One of the good things about Bletchley is that we never cackled. I hope that she will bear that in mind before adopting the suggestion of the noble Lord, Lord Dubs.
Baroness Scotland of Asthal: My Lords, I can certainly assure the noble Baroness that we will be as careful as she would wish.
Baroness Hayman: My Lords, I, too, declare an interest as a member of the committee. Does my noble
840
friend agree that, in relation to her previous remark, nothing in the committee's report suggested that security should be downgraded in any way whatever? However, there were recommendations about whether Part 4 was the appropriate way in which to safeguard the security of this country. I should be grateful for her confirmation of that. Equally. perhaps she could clarify something that she said in her reply regarding the Section 123 provisions which many noble Lords will remember. I think she suggested that the committee said that we would want the other provisions of the Act—many of which have nothing to do with terrorism—debated at the time of renewal. In fact the report specifies very clearly that it should be separate from that. Can she confirm that the Home Office recognises that?
Baroness Scotland of Asthal: My Lords, first, I am very happy to confirm to my noble friend that the committee did not suggest that the security of this country should be jeopardised in any way. The committee made various comments about Part 4. I hope I made it clear that in his response my right honourable friend did not fail to take the committee's recommendations into consideration, but made it clear that, from the Government's point of view, the level of threat that pertained in the past had not decreased so as to make us confident that the changes which my noble friend suggests are appropriate.
As for Section 123, I take on board what my noble friend says—that the committee recommended that there should be two separate debates on those matters. Those matters are for the usual channels to determine, as I know she knows only too well.
Lord Hylton: My Lords, is it not clear that risks of terrorism can arise both from citizens of this country as well as from foreign nationals? Does the Minister agree that both categories should be dealt with by due process of law, which is not the case at present?
Baroness Scotland of Asthal: My Lords, I join issue with the noble Lord—certainly both categories need to be determined appropriately. However, I hope that no one in your Lordships' House will forget that the whole reason why we have Part 4 of the ATCS Act is to provide an immigration power that allows the Home Secretary to detain a foreign national whom he reasonably believes to be suspected as an international terrorist, whose presence in the United Kingdom is a risk to national security, but who cannot currently be removed from the United Kingdom. Those individuals fall into a very specific category. and that is our difficulty.
As for ensuring that those individuals have access to legal representation, I hope that noble Lords will accept that they have very generous access to legal representation and can make proper challenges to their detention, as they have in fact done.
Lord McNally: My Lords, perhaps I can ask the Minister and indeed the Home Secretary to reread the committee's report and the debate on the Bill's Third

841
Reading in this House. They will see that there were considerable misgivings in the House about letting through Part 4. It was passed only because of assurances that such a committee would conduct such a review. In the light of that, does she not think that the Government should give proper consideration to these recommendations and realise that, as when the Bill was passed, there are very real concerns that, in the war against terrorism, we may indeed be losing the liberties that we are supposed to be defending?
Baroness Scotland of Asthal: My Lords, we have taken those matters into consideration. Each and every recommendation of the committee's review will be considered, so noble Lords can rest assured on that matter.

Head Teachers: Recruitment
3 p.m.
Baroness Perry of Southwark Baroness Perry of Southwark asked Her Majesty's Government:
In view of the shortage of well qualified applicants for head teacher posts, what action they propose to take to ensure that these posts are appropriately filled.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, in January 2003, over 99 per cent of head teacher and deputy head teacher posts in maintained schools in England were filled. The vacancy rates for both heads and deputies were lower than at any time since the Government came to power. Through the work of the National College for School Leadership, professional headship training is now being offered to more serving and prospective school leaders than ever before.
Baroness Perry of Southwark: My Lords, I thank the noble Baroness for that reply, but is there not something seriously wrong when Education Data Surveys has just reported that 40 per cent of all headships in the south-east had to be re-advertised—they were advertised at least twice and some of them more often—and that in the country as a whole 30 per cent of all primary headships and 25 per cent of all secondary headships had to be re-advertised? Do not the Government recognise that their own policies of interfering in the day-to-day management of schools, the heavy bureaucratic burden that they have placed on schools with regulations as well as a punitive regime of naming and shaming have meant that good and creative people are no longer willing to come forward for the job?
Baroness Ashton of Upholland: My Lords, not surprisingly, l do not agree with the noble Baroness's final statements regarding the role of government. It is very important that we see our relationship with schools as a partnership working together to ensure that our children get the best possible education. I have
842
said many times in your Lordships' House that I make no apology for wanting that outcome. It is very important in so doing to recognise schools that need additional help. As the noble Baroness will know from the report, there is a reduction in the re-advertisement ratio for deputy heads and, indeed, for primary heads. There are issues concerning secondary heads and specialist schools in particular which we have noted and will be looking at.
Lord Dearing: My Lords. I wonder whether the Minister is aware that while the new framework of inspections by Ofsted is widely welcomed. there are concerns that the interpretation of the new framework has led a minority of inspection teams to concentrate on weaknesses to the detriment of producing a balanced assessment of a school, and that that can damage education. Will she confirm that possibility with the Chief Inspector and the adequacy of the means of appeal against an inspection report?
Baroness Ashton of Upholland: My Lords, we are aware of the issues that have been raised in the Times Educational Supplement and elsewhere. Her Majesty's Chief Inspector and my honourable friend David Miliband are looking at that. Some noble Lords may have picked up that Mr Miliband said on 8 January that we are looking to a new system of better focused inspections which will be introduced from this year. That will shift the emphasis towards self-evaluation— something that I believe the noble Lord, Lord Dearing, would welcome, as, indeed, would other noble Lords. Detailed proposals on that will be published by Her Majesty's Chief Inspector next month.
Lord Pilkington of Oxenford: My Lords, is the Minister happy regarding the qualifications of teachers who teach modern languages, physics and mathematics? I gather from statistics that many do not have qualifications in those subjects. Is the Minister happy that such teachers should teach those complicated subjects without having qualifications in them?
Baroness Ashton of Upholland: My Lords, the noble Lord, Lord Pilkington, will appreciate that his question is slightly wide of the Question on the Order Paper. However, as he indicated, it is very important to ensure that our children get the best possible teaching. That is, indeed, why we have introduced a series of measures to support those students who may go on to teach what we describe as shortage subjects. I am sure that the noble Lord will support us in doing that.
Baroness Sharp of Guildford: My Lords, is the Minister confident that the new national professional qualification for head teachers that has recently been introduced is on the right lines? I believe that its reception has been somewhat mixed and that some head teachers are rather unhappy about it.
Baroness Ashton of Upholland: My Lords, I cannot confirm what the noble Baroness said about teachers

843
being unhappy about the qualification. However, I am sure that in considering the qualification we are very mindful of the feedback that we get. Some 11,300 teachers have completed the qualification and 6,600 are currently undertaking it. I believe that that in itself speaks volumes about those teachers who recognise its value and importance. It constitutes a critical opportunity to ensure that we have good leadership. Were I to discover that the kind of remarks the noble Baroness mentioned were reported in the feedback, I should, of course, ensure that we acted upon them.
Baroness Howe of Idlicote: My Lords, to what extent, if at all, do arrangements exist for the enhancement of salaries payable for headship posts in deprived areas, which should take account of the extra work and responsibility involved? Is not that a very important principle to affirm and one which might well lead to more suitably qualified applicants coming forward?
Baroness Ashton of Upholland: My Lords, it is very important to ensure that we incentivise people to be head teachers. As regards areas, it is perhaps worth saying that the average secondary head teacher's pay in inner London is £61,013.
The Lord Bishop of Portsmouth: My Lords, is the Minister aware that many issues lie behind the appointment of head teachers and include such questions as the price of houses, particularly in the south-east? Recently, a Church school head was appointed who is a Muslim. Many of us who are concerned about the appointment of good head teachers look for many wider qualities of spiritual strength. Will the Minister give us some encouragement in that regard?
Baroness Ashton of Upholland: My Lords, as regards the recruitment and retention of head teachers it is important to look at all the possibilities in terms of support. Home loans for teachers are a critical part of that, particularly in our inner cities.

Business
3.6 p.m.
Lord Grocott: My Lords. I wish to make a brief announcement. With the leave of the House, my noble friend Lord Davies of Oldham will repeat a Statement on the railways. It is intended that that Statement will be repeated after the Clause 7 stand part debate.

Planning and Compulsory Purchase Bill
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That it be an instruction to the Committee of the Whole House to which the Planning and Compulsory Purchase Bill has been committed that they consider the Bill in the following order:

Clauses 1 to 39,

Schedule 1,

Clauses 40 to 53,

Schedule 2,

Clauses 54 to 77,

Schedule 3,

Clauses 78 to 87,

Schedule, 4

Clause 88,

Schedule 5,

Clauses 89 to 114,

Schedules 6 and 7,

Clause 115,

Schedule 8,

Clause 116,

Schedule 9,

Clauses 117 to 121— (Lord Rooker.)

On Question, Motion agreed to.

Justice (Northern Ireland) Bill
3.8 p.m.
The Attorney-General (Lord Goldsmith): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Goldsmith.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 6 [Duty of Director of Public Prosecutions to refer certain matters to Police Ombudsman]:
Lord Goldsmith Lord Goldsmith moved Amendment No.35:
Page 3, line 29. leave out "follows" and insert "set out in subsections (2) to (5)"
The noble and learned Lord said: I wish to speak to Amendments Nos.35 and 41 standing in the name of my noble friend the Lord President of the Council and to Amendment No.40 in the names of the noble Lords, Lord Maginnis and Lord Rogan. These amendments all deal with retrospective investigations by the Police Ombudsman and it seems right to deal with them together.
I start by thanking the noble Lord. Lord Laird, who at Second Reading alerted us that this clause was out of keeping with the Government's policy in relation to time limits on investigations by the Police Ombudsman. Amendments Nos.35 and 41 seek to ensure that referrals under the new clause will be treated consistently with any referrals to which the RUC (Complaints etc.) Regulations 2001 currently apply.
Subject to the exceptions contained in those regulations, they limit the ombudsman to investigating complaints about matters that are no more than 12 months old. The proposed amendments allow the Secretary of State for Northern Ireland to make similar regulations in respect of proposed new subsection (4A) of Section 55 of the Police (Northern Ireland) Act 1998, which will be inserted by Clause 6 of this Bill.
Similarly, Amendment No.40, tabled by the noble Lords, Lord Maginnis and Lord Rogan, is intended to prevent retrospective investigations. I thank them for raising that important issue in Committee, but I hope that they will be satisfied that the Government amendments deal with the substance of the issue. I beg to move.
On Question, amendment agreed to.
Lord Hylton Lord Hylton moved Amendment No.36:
Page 3, line 33, leave out "shall" and insert "may"
The noble Lord said: The amendment concerns the independence of the Director of Public Prosecutions, whose duty is to see that those who should be prosecuted are brought promptly to court where evidence exists to justify a prosecution. I want prosecutions of police officers, as well as others, to go ahead whenever there is sufficient evidence. If that is the case, I do not want prosecutions to be postponed to allow the police ombudsman to investigate. The noble Baroness the Leader of the House said at Second Reading:
"The DPP has no power to conduct investigations".— [Official Report, 16/12/03; col.1118.]
He does, however, have power to bring prosecutions and should not be prevented using that power promptly. If the Attorney-General can assure me that fully justified prosecutions will not be held up as a result of the Bill. I will happily withdraw the amendment. Of course, I do not object to cases that fall into grey areas, especially those justifying only disciplinary proceedings, being looked into by the ombudsman. I want clear cut cases, backed by evidence, to be prosecuted promptly. I beg to move.
Lord Glentoran: I have some sympathy with the amendment tabled by the noble Lord, Lord Hylton. As I understand it, if the clause stands unamended it will, according to the Explanatory Notes:
"place a duty on the director to refer matters to the ombudsman and Clause 6 makes the necessary amendments to ensure that the recommendation is fully implemented in line with the undertaking of the Government in the Joint Declaration".
I am not fussed about that. What concerns me is that the amendment would retain the current discretion for the DPP, rather than having the requirement, as the Bill proposes, for the DPP to refer to the ombudsman any matter in which it appears to him,
"that a police officer may have committed a criminal offence or, in the course of a criminal investigation"
"may",
"have behaved in a manner which would justify disciplinary proceedings".
846
Removing the discretion of the DPP is taking a step too far in the judicial process. Consecutive DPPs have served the Province and the public extraordinarily well and I am sure that they will continue to do so. We will now have a prosecution "department". That will strengthen the hand of the DPP and will increase the clarity and the transparency of the operation of the DPP. Therefore, I am inclined to support the amendment.
Lord Smith of Clifton: I shall speak to Amendment No.37, which is a probing amendment, to ensure that the language is correct in implementing the intention of the updated implementation plan. Clause 6(3), on the duty of the DPP to refer matters of police malpractice to the ombudsman, also falls short of the review and of the promise in the updated plan. The wording confers an excessive degree of discretion on the director to decide whether a matter is one which must be referred to the ombudsman. That degree of subjectivity in assessment could make it difficult for a judicial review of the director. Will the Attorney-General elucidate on that?
Lord Rogan: I, too, have more than a degree of sympathy for Amendment No.36, tabled by the noble Lord, Lord Hylton. If it were pressed to a vote, I would find it impossible not to support the protection of the DPP.
3.15 p.m.
Lord Goldsmith: All the amendments in the group deal with the Director of Public Prosecutions making referrals to the police ombudsman. Amendment No.36, table by the noble Lord, Lord Hyltor, would increase the level of discretion on the part of the DPP. I am grateful to him for his explanation of what lies behind the amendment. He does not want any proper prosecution to be delayed while an investigation by the ombudsman takes place and he seeks my assurance that that is not our intention. I am happy to give that assurance that, where a proper prosecution ought to be pursued in the view of the DPP, then it will be pursued. That must be the priority and I hope that my explanation and assurance will satisfy him.
Responding to the comments of the noble Lord, Lord Glentoran, the decision to table the clause does not reflect in any way on the professionalism of the DPP. I agree wholeheartedly with the noble Lord that the director and, particularly, his predecessor and others have served with distinction, absolute professionalism and objectivity. As I work closely with the director, I know that to be true. I am happy to endorse fully his independence and impartiality, in which I have full confidence. The simple reason for the clause is that it is more appropriate for the police ombudsman to make decisions regarding police conduct, as is the case when matters are raised by the general public. Questions of prosecution will be for the director to decide, as they should be. Questions of disciplinary investigations would be left to the discretion of the police ombudsman. That would be more appropriate and more closely reflect recommendation 21 of the Criminal Justice Review.

847
I note that the noble Lord, Lord Rogan, has spoken, but not particularly to advance Amendments Nos.38 and 39, which go in rather the opposite direction. I see that he wishes to intervene and I am happy that he should do so.
Lord Rogan: Perhaps I have misunderstood procedure. I was going to speak on those two amendments later. Should I have done so earlier?
Lord Goldsmith: Yes, they are grouped together. I am happy for him to speak to them now.
Lord Rogan: That is extremely kind. Indeed, I wish to speak to Amendments Nos.38 and 39. Amendment No.38 replaces "may have" with "has". It is a different approach to restoring the input in terms of the discretion of the DPP. First, if the DPP is going to direct a prosecution there must be a degree of evidential sufficiency. All matters in which it is possible that an offence has been committed are not necessarily proceeded with. Similarly, with this procedure, there should be something more than a possibility before a referral.
Secondly, the role of the Director of Public Prosecutions is to determine, first, whether an offence has been committed and then to apply tests such as interests of justice and evidential matters before instigating a prosecution. If it does not appear to the DPP that a criminal offence has been committed, why should the matter be referred to the ombudsman for consideration by virtue of new subsection (4A)(a)(i)?
Amendment No.39 removes the disciplinary criteria for referral for one simple reason. The duty of the DPP is to consider criminal offences and criminal matters and one would think that there must be an element of expertise. For example, in terms of knowledge of stop-and-search procedures, the DPP is not and should not need to be an expert on internal police disciplinary matters. It is not the duty of the DPP to be an expert on police disciplinary proceedings. What behaviour would merit such proceedings? This section of the Bill presupposes that he is. I look forward to hearing the Minister's reply.
Lord Goldsmith: I am grateful to the noble Lord for his observations.
The effect of the two amendments would be that the DPP would refer cases to the police ombudsman only where a police officer had been convicted of a crime. It would exclude the alternative limb where in the course of a criminal investigation it appears to the director that an officer may have behaved in a manner which would justify disciplinary proceedings and would limit the power and duty to refer cases where it appeared to the director that the officer had committed a criminal offence and not just might have done so.
If the amendments were accepted, that would move a long way from what the Criminal Justice Review envisaged. Recommendation 21 stated that a duty should be placed on the prosecutor to ensure that any
848
allegations of police malpractice were fully investigated. Amendments Nos.38 and 39 would very much constrain what the director would refer to the police ombudsman.
The noble Lord, Lord Rogan, makes an important point in saying that the director is not necessarily an expert in what would constitute disciplinary conduct on the part of police. But the director is not required to reach a definitive conclusion on that. He is required to consider whether the conduct, when one looks at it, may mean that an officer has behaved in a manner that would justify disciplinary proceedings. I know that the director will want to provide to his staff guidance with assistance from those who are more expert in what those matters would be, but experienced prosecutors who deal with police conduct in the course of investigating and considering prosecutions day in and day out form a view as to what may be conduct that justifies disciplinary action.
Of course, the decision is in no way final and the whole point is that the matter is then referred to the ombudsman. The discretion will lie with him and the expertise will be with the ombudsman to decide whether the conduct merits disciplinary activity. The provision therefore delineates the respective roles of the DPP and the police ombudsman by ensuring that any decisions which might need to be taken about the conduct of the police are referred to the appropriate authority; that is, the police ombudsman.
I hope that that provides a sufficient explanation of what lies behind the clause and the justification for it and that therefore the amendments will not be pressed.
Lord Glentoran: I have a comparatively small point to make. We are slightly at odds because I asked the noble and learned Lord whether we want to be in a situation in which every suspicious case is referred to the ombudsman by the DPP. I suggest that the DPP has other things to do in respect of criminal investigations and processing a potential prosecution, instead of looking over his shoulder at whether the policemen involved in the investigation have performed directly according to the rules and regulations. If it hits him in the face that they have clearly done something wrong, that is a good reason why the case should be referred to the ombudsman.
I am concerned that if the Bill remains as drafted, there will evolve a way of life within the DPP's department where one is always looking to see whether the police have done something slightly wrong and whether one ought to be pushing everything on to the police ombudsman.
I should have mentioned a small point in relation to Amendment No.40 and perhaps the Committee will allow me to do so. I am afraid I was talking to my Chief Whip on a detail of timing. Amendment No.40 relates to timing. It asks that only conduct which took place after the Act has achieved Royal Assent will be

849
referred. Will the noble and learned Lord be good enough to comment on that? We do not want to go back in time in these situations.
Lord Rogan: Perhaps I, too, may comment on Amendment No.40 which stands in my name. As printed, it states:
"No reference shall be made in subsection (4A) if the conduct giving rise to the intended referral took place after the coming into force of this section".
I understood that I had—
Baroness Farrington of Ribbleton: We have dealt with the first group of amendments, but it is open to a noble Lord to speak to an amendment in its place on the Marshalled List. If we now go through the amendments in the second group, noble Lords can raise their points when we reach Amendment No.40. I think that that would be helpful.
Lord Goldsmith: The noble Lord, Lord Rogan, will be able to make his points on Amendment No.40 in a few moments and I will defer my response to the points made by the noble Lord, Lord Glentoran, on that amendment.
I see that the noble and learned Lord, Lord Mayhew of Twysden, wants to intervene, but perhaps I may deal with the first question raised by the noble Lord, Lord Glentoran. He asked whether we want a situation in which every suspicious case is referred to the ombudsman. The burden on the DPP and his staff—and I am grateful for consideration of them—is the lesser under the drafting of the clause. No one has to make a decision about whether, in accordance with criteria that have been laid down, a case is the right kind or not. The only question is: is it one in which it appears that a criminal offence may have been committed? Is it one in which it appears in the course of a criminal investigation that the officer has behaved in a manner which would justify disciplinary proceedings?
That threshold being established, all that needs to be done is to hand the papers, or whatever, to the ombudsman and the burden of considering whether it should be the subject of time and investigation falls to him. Therefore, this may be a more desirable approach in terms of burden on the DPP so that he and his staff can get on with the important job of prosecuting cases.
Lord Mayhew of Twysden: It is the important job of the DPP to prosecute important cases and I suggest that it is his sole job. I am a little perturbed by the provision which gives an administrative, or quasi-executive, function to the DPP and in a case where there has not been a complaint. As I understand it, the jurisdiction of the ombudsman in Northern Ireland—I may be inaccurate about this—derives from a complaint of maladministration. If the DPP is or has been considering a matter of criminal prosecution but there has not been a complaint—there is no shortage of people to make complaints about anything under the sun in Northern Ireland—I need to be persuaded
850
that a duty should be imposed on him to refer such a matter to the ombudsman in case the ombudsman believes that something has gone wrong.
The position of the DPP, as the noble and learned Lord the Attorney-General knows so well, is a very delicate one. I entirely endorse the graceful comments that have been made about the holders of that office. It is important that they should not be given anything to extend the duty that they have to prosecute cases and to bring an entirely independent and judicial mind to bear on matters. I realise that it is Recommendation 21 of the Criminal Justice Review, but in itself that is not decisive. I should like to hear a little more about the Government's thinking on that matter before the issue is concluded.
3.30 p.m.
Lord Goldsmith: The experience of the noble and learned Lord, Lord Mayhew, in the office that I am privileged enough to hold, and otherwise in Northern Ireland, gives him particular knowledge of how the DPP operates.
It is right to record that we are not proposing for the first time that the Director of Public Prosecutions should refer matters to the police ombudsman. We have already taken that step because under Section 55 of the Police (Northern Ireland) Act 1998, as amended by the Justice (Northern Ireland) Act 2002, the director is already empowered, along with the policing hoard and the Secretary of State, to refer certain matters to the police ombudsman. Perhaps I may put the point in this way: the proposition that it is wrong that the director should do anything outwith the business of prosecuting is a bridge that has already been crossed. Here we are concerned with whether, following Recommendation 21 to a large extent, although not precisely, he should be under a duty to refer matters that come to his attention.
As I said in answer to the noble Lord, Lord Glentoran, it seems to me that one advantage of phrasing the clause in this way is that it makes a clear distinction between the jobs. It does not leave the director in a position of having the job of deciding what the criteria are by which he should decide that something needs to be investigated; for example, for a disciplinary matter. It simply says that if he comes across something in the course of his primary work, he should refer it to the ombudsman for the ombudsman to take on the job of examining it and deciding whether there is anything further with which to deal.
I hope that that explanation helps to show that the director will not be put in a position that is difficult for him—I certainly would not want that—that it does not cast doubt in any way on his independence or professionalism and essentially that it leaves him to get on with the principal job of prosecuting.
Lord Rogan: I appreciate the indulgence of the Committee in allowing me to speak.
Baroness Farrington of Ribbleton: I am sorry, but we need to deal with the group of amendments before us

851
now. If the noble Lord, Lord Rogan, seeks to speak to Amendment No.40, he should do so when Amendment No.40 is called. Although the amendment will not be moved, I am sure that the Committee will be indulgent enough to allow noble Lords to speak to it.
Lord Hylton: I am grateful to the noble and learned Lord for his reply to me. I particularly appreciated his assurance that there will be no delays in prosecuting serious, solid cases when there is plenty of evidence. I believe that the noble and learned Lord went on to say that overall the discretion that now resides with the Director of Public Prosecutions will be preserved. If I am wrong, I am sure that he will correct me. If I am right, I ask the Committee to give me leave to withdraw Amendment No.36.
Lord Goldsmith: If I do not intervene, the noble Lord will have put me in the position of appearing to accept what he has said. When he talks of the discretion that remains with the director, I believe he means the discretion of the director whether to prosecute or not. I see the noble Lord nodding. If that is so, I can certainly give that assurance. That remains unchanged.
Amendment, by leave, withdrawn.
[Amendments Nos.37 to 39 not moved.]
Lord Rogan Lord Rogan had given notice of his intention to move Amendment No.40:
Page 3. line 41, at end insert—
"( ) No reference shall be made in subsection (4A) if the conduct giving rise to the intended referral took place after the coming into force of this section."
The noble Lord said: Amendment No.40 as printed on the Marshalled List contains the words,
"took place before the coming into force of this section".
I actually tabled the word "after". I apologise if that is my error.
Clause 6 makes yet another structure within our society—the office of the Director of Public Prosecutions, which should be independent and immune from interference—subject to conditions that will be dictated by the police ombudsman and it interferes with the chief constable's right to set, modify and impose appropriate standards of discipline.
There is a practical aspect to my amendment. Already we have seen the so-called Bloody Sunday inquiry moving at enormous cost towards a conclusion that I predict will satisfy no one in Northern Ireland. It has impinged on police resources. Now in the aftermath of the Corrie report we are bound for four more major inquiries.
In terms of police resources, neither manpower, money nor time are geared to cope with those huge extra burdens which I predict will be fruitless and inconclusive exercises that will satisfy no one. How, then, can we seriously consider adding another police
852
ombudsman requirement for use of scarce police resources to what is already potential organisational mayhem?
Lord Glentoran: I am not sure that I follow or agree with the noble Lord, Lord Rogan. Perhaps I missed what he said in relation to what is printed as the amendment. As I understand it, the amendment states:
"No reference shall be made in subsection (4A) if the conduct giving rise to the intended referral took place after the coming into force of this section".
My notes say, "Only conduct that took place after the Act has received Royal Assent will be referred". I believe that is the same thing. I believe we are trying to say that if we pass Amendment No.40 only conduct that took place after this Act has received Royal Assent will be referred to the ombudsman. May I have clarification on that point?
Lord Goldsmith: The amendment of the noble Lords, Lord Maginnis and Lord Rogan, as it appears on the Marshalled List, states that:
"No reference shall be made in subsection (4A) if the conduct giving rise to the intended referral took place after the coining into force of this section".
I understand that to mean that only conduct that took place before the coming into force of the Act or this section could be the subject of a reference. Although the record may suggest that the noble Lord, Lord Rogan, expressed the wording the other way round. it may be that when he used the word -after" rather than "before", or "before" rather than "after", he meant the amendment to include the word "before".
In those circumstances. the intention is as I understood it, which is what I said when I spoke to this amendment during debate on the first group of amendments—that is, to prevent retrospective referrals, or referrals of things which happened previously. I see that the noble Lord, Lord Rogan, nods his head. I intervened in order to clarify the noble Lord's amendment, but I leave the noble Lord, Lord Glentoran, to complete his remarks unless he has already done so.
Lord Glentoran: I thank the noble and learned Lord. I had completed them; I simply wanted clarification.
Lord Goldsmith: The amendment concerns the issue of retrospection. As I said in moving government Amendment No.35, we accept, and were grateful to the noble Lord, Lord Laird, for pointing out, the need to deal with the possibilities of full retrospection. The way in which we propose to do so—indeed, it is the way that the Committee has accepted because we have now agreed to the amendment—is through Amendments Nos.35 and 41.
Those amendments would provide the same approach to time and retrospection in this situation as any referrals to which the RUC (Complaints etc.) Regulations 2001 apply. I shall simply repeat what I said then: that is. subject to certain exceptions contained in them, the regulations limit the ombudsman to investigating complaints about

853
matters that are no more than 12 months old. The amendments which the Government propose would allow the Secretary of State for Northern Ireland to make similar regulations in respect of this new subsection.
Therefore, the government amendments are also intended to deal with retrospection. They do not deal with it in the same way as the noble Lord, Lord Rogan, proposes. They provide for greater consistency with the RUC complaints regulations than does his amendment. However, perhaps I may respectfully point out that his amendment could not be passed in the form in which it presently stands as it would do the opposite to what he seeks.
[Amendment No.40 not moved.]
Lord Goldsmith Lord Goldsmith moved Amendment No.41:
Page 4, line 4, at end insert—
"(6) In section 64(2A)(b) of the Police (Northern Ireland) Act 1998 (Ombudsman not to investigate matter referred under section 55(1), (2) or (4) if it took place more than the prescribed period before the date of referral) for "or (4)" substitute ". (4) or (4A)"."
On Question, amendment agreed to.
On Question, Whether Clause 6, as amended, shall stand part of the Bill?
Lord Rogan: I have been trying to outline the iniquity of this entire clause, which legislates for something that is unnecessary, unproductive and, I believe, unachievable. Perhaps I may give an example of a potential outcome regarding Clause 6 where subsection (3) inserts new subsection (4A)(a)(ii). A police officer investigates a crime and the result of the investigation is considered for prosecution by the Director of Public Prosecutions. The DPP somehow becomes aware that the investigation was delayed by a week when the officer concerned took sick leave but was, in fact, watching a football match in Europe.
That matter would justify disciplinary proceedings and, I imagine, would be dealt with fairly severely through internal police procedures. But it does not affect the outcome of the investigation; nor does it impede the prosecution in any way. Therefore, why should the independent Director of Public Prosecutions be obliged to inform the ombudsman and thus precipitate a welter of work for other hard-pressed officers, whose primary responsibility is to serve the public?
I hope that Members of the Committee realise that this provision can be retrospective and that that would place an even greater demand on police time and resources. The police have an obligation to meet every request made by the ombudsman.
On Thursday last, my noble friend Lord Maginnis, as I have done today, sought not to allude to other political parties as villains of the piece. However, I suggest that Clause 6, the intent of which was rejected by the Minister, Des Browne, is designed by the Government merely to help the nationalists. Your Lordships will neither want to legislate for the unachievable nor allow anyone to impinge on the
854
efficiency and independence of the offices of the Director of Public Prosecutions or the chief constable. That is why I oppose the clause.
3.45 p.m.
Lord Goldsmith: As we discussed during debate on the preceding amendments, the purpose of the clause is to place a duty on the DPP to refer all cases of suspected police malpractice to the police ombudsman. I also indicated that the d rector is already empowered to do that under the Justice (Northern Ireland) Act 2002.
I make clear, first, that I very strongly support the independence and professionalism of the director and his staff. I have made that clear already and f shall make it clear in debate on subsequent clauses, too. As the superintending Minister for the director's work, I feel that very strongly. I recently had the great pleasure of being able to commend his work and that of his predecessor when talking about the steps that were being taken to develop the new Public Prosecution Service for Northern Ireland. I believe that it will he an independent, professional and efficient service which will serve the people of Northern Ireland extremely well.
I make a second point clear. I do not consider it likely that, where the director has taken a decision about prosecution and where there has been a thorough and complete police investigation, the ombudsman will consider a new investigation to be necessary. Of course, as I indicated to the noble Lord, Lord Hylton, previously, a decision to prosecute or not to prosecute remains a matter for the director.
The noble Lord, Lord Rogan, was concerned that the director's independence might somehow be affected by having to judge certain questions, and he gave an example of what might have been a disciplinary offence by an officer pretending that he was on sick leave when he was, in fact, watching a football match. However, the merit of the clause as it stands is that the director does not have to judge such questions; he simply has to form a view on whether or not it may mean that the officer has behaved in a manner that would justify disciplinary proceedings. If he comes to such a decision, he passes the case to the ombudsman. Whatever difficult decisions may arise for the ombudsman in considering whether further disciplinary investigations should take place, those decisions are for the ombudsman and not for the director. Therefore, I hope that the assurances that I was able to give previously will satisfy noble Lords that opposition to the clause standing part of the Bill can be withdrawn.
Lord Glentoran: Before the noble Lord, Lord Rogan, makes a final decision on what to do about the clause, can the noble and learned Lord the Attorney-General give us an assurance that, before we reach the Report stage, one or two small parts of the clause can be softened somewhat so that a little more discretion is allowed? I think of changing "shall" to "may" and other similar single-word changes. I hope that the noble and learned Lord may be able to encourage us

855
that, before Report stage, the Government will consider one or two small areas; for example, those such as in Amendment No.38, which states:
"line 35, leave out 'may have' and insert 'has'".
Lord Goldsmith: As noble Lords who take part in debates on this legislation know, the Ministers concerned with Northern Ireland business are always happy to meet noble Lords to discuss any aspects of the Bill and to give further assurance or explanation. Of course I am happy to do that, but I would not like to hold out hope that any changes are likely to be made to the clause. Essentially, the clause simply says that where we come across conduct in the director of this sort or that sort—or which may be conduct of this sort or that sort—one should send the matter to the ombudsman for him to exercise his statutory discretion on whether to pursue it.
There is a discretion as to whether the matter should be pursued; but it is a better discretion for the ombudsman to operate than the director. It avoids the director being directly involved in questions of whether a matter is worthy of further consideration and helps to preserve his independence. That is as far as I am able to go, but I hope that the noble Lord finds at least my last remarks of some comfort.
Lord Glentoran: I thank the Minister. I hate to inject an element of real Northern Ireland politics into this very cultured debate, but I suspect that in various parts of the police force there are those who might start to look on the DPP as a spy on them.
Clause 6, as amended, agreed to.
On Question, Whether Clause 7 shall stand part of the Bill?
Lord Glentoran: I have opposed the inclusion of Clause 7 in order to probe the Government on its purpose. According to the Explanatory Notes, Clause 7 creates an offence of seeking to influence prosecution decisions without legitimate cause. We are told that the measures were suggested in the Criminal Justice Review at recommendation 46.
New Section 32A(1) and (2) make it clear that guilt depends on intention to pervert the course of justice. Thus it would appear that an offence would already be committed under common law. The Minister knows far more than I about these matters, but my advisers ask what is added by the Bill. Is it an offence for which the Director of Public Prosecutions for Northern Ireland has been calling? What sort of examples have prompted it?
Lord Mayhew of Twysden: I support the comments of my noble friend Lord Glentoran. Paragraph 19 of the Explanatory Notes states:
"Case law concerning the common law offence of perverting the course of public justice is likely to be of use in the interpretation of this new offence".
That strikes me as a polite way of saying that the provision is not necessary, but it simply applies the existing law explicitly to this set of circumstances. If
856
that is the case, it seems superfluous to legislate in particular for this context. We should be trying to avoid unnecessary legislation. If I am wrong, I should be glad to hear why.
Lord Phillips of Sudbury: I identify with the remarks of the two Members of the Committee who have spoken. I wait to hear the Minister's persuasive explanation. Subject to that, the public is growing a little dissatisfied and anxious about the plethora of new criminal offences created by the Government—some 600-plus offences since they came to power. Do we really need to create a new offence where a common law offence already exists?
Lord Rogan: It is a wise principle that in legislation one does not over-legislate; nor does one legislate unless the current legislative provision is insufficient. I can see no need for legislation in relation to Clause 7. Obviously I shall defer to Members of the Committee who are experts in law, but I ask the Minister where the offences created by Clause 7 differ from the common law offence of perverting the course of justice. The provision limits the sentence for the offence, unlike the common law offence, which carries a greater term of maximum imprisonment.
Furthermore, the common law offence can be tried only in the Crown Court. Will the Minister tell the Committee in which circumstances attempting to influence a prosecutor with the intention of perverting the course of justice is not an act tending or intended to pervert the course of justice? Interference with jurors or witnesses at common law in an attempt to persuade them to change their evidence is sufficient to constitute an act; therefore, so must be attempting to influence a prosecutor.
The Minister will know that common law offences do not activate only after the instigation of proceedings, as may apply, for example, to a police officer's activities before the commencement of proceedings. Unless substantial justification is forthcoming, this clause should not remain in the Bill. If the explanation is that it was an undertaking given to the SDLP at Hillsborough, that is not sufficient justification for its inclusion in the Bill.
Lord Goldsmith: One thing stood out in our discussions on the previous amendments: a view shared on all sides of the Committee that the independence of the DPP and his staff was critical to the functioning of the justice system in Northern Ireland. Changes to the justice system in Northern Ireland will mean that that independence is even more warmly to be cherished. The role of Attorney-General will be changing: the director will be standing as an independent person with a different relationship to the new, local Attorney-General for Northern Ireland and indeed the Advocate General for Northern Ireland, which the English Attorney-General will continue to be.
In those circumstances I am sure all Members of the Committee would agree that it is extremely important that we send a clear message that the director's

857
independence shall not be interfered with without proper reason. In Clause 7 we seek to make it abundantly clear that improperly seeking to influence the Director of Public Prosecutions will be an offence.
I can envisage many circumstances in which providing information to the director, even making representations, perhaps on behalf of a relative—I do not constrain the examples—would be perfectly proper and it would be proper for the director and his staff to be able to take them into account. But there will come a point at which an attempt to influence a decision will cross a boundary and begin to move into the area in which the director's independence is being subverted.
At that point we believe that an offence should be created. We found it useful in those circumstances to have regard to an existing body of law in relation to the common law offences of perverting the course of justice, which help to identify what the point is. To my mind—I hope that Members of the Committee will agree—given that the director's independence will be at the heart of his role in the criminal justice system in Northern Ireland, it is right and desirable that we should specifically underline that through the creation of an offence.
We have not followed precisely the proposals of recommendation 46 of the Criminal Justice Review, which proposed the creation of an offence, because we wanted a clearer provision that had regard to existing law that would enable people to judge whether conduct would break the law. I have consulted the Director of Public Prosecutions closely on this clause to ensure that it is workable and fair, and he is content with it.
I invite noble Lords to view this as an important protection. One thing on which we are all agreed is the need to safeguard as much as possible the independence of the Director of Public Prosecutions. That independence is the bedrock on which prosecution decisions will be made and accordingly of a fair and effective justice system for the people of Northern Ireland. That is why I shall ask that Clause 7 stand part of the Bill.
Lord Mackay of Clashfern: Can the noble and learned Lord the Attorney-General illustrate circumstances in which there would be a breach of this clause and yet not of the common law provisions?
Lord Goldsmith: I am disinclined to speculate on all the kinds of circumstance in which someone might attempt to form a view as to what would constitute a common law offence. The noble and learned Lord, Lord Mackay of Clashfern, will know perhaps better than anyone that the surrounds of the common law can be a little imprecise. However, I can say that it will be clear both in terms of a message and an offence that if, with the intention of perverting the course of justice, someone seeks to influence the director, the deputy director, a public prosecutor, a barrister or a solicitor to whom certain matters have been assigned, that will be an offence. Stating that clearly on the face of the statute will send a clear message to everyone as to the
858
need to safeguard the independence of the Director of Public Prosecutions and will be very beneficial in that regard.
Lord Glentoran: I thank the noble and learned Lord for that clear explanation as to where the Government stand. It is clear that they have sound reasons. However, listening to my noble and learned friend Lord Mackay of Clashfern and to others, the legal debate could go on for a long time. I think it would be wise on this occasion to beg leave to withdraw my opposition to the Question that Clause 7 stand part.
Clause 7 agreed to.
Baroness Farrington of Ribbleton: I beg to move that the House be resumed in order to take a Statement on railways.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Railways
4.3 p.m.
Lord Davies of Oldham: 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 Transport, on the railways. The Statement is as follows:
"Last year Britain's railways carried over 1 billion passengers for the first time in 40 years. That is a significant measure of success and one that has been achieved despite all the well-known difficulties facing the industry. Because in those 40 years the railways have suffered from substantial underinvestment, year after year. That was especially so in the years leading up to and immediately after privatisation under Railtrack.
"The Government will set out their spending plans through to 2008 in the spending review this summer. In advance of that, we need to look at the progress made through the increased investment already being put in place but at the same time to look at the structural and organisational changes we need to allow the railways to improve performance. This will enable us, as the spending review decisions are made, to publish proposals in the summer for a new structure and organisation for Britain's railways.
"Because of the history of underinvestment, as a first step it was necessary to put in place increased investment. In July 2000, therefore, the Government announced public investment of £33 billion over 10 years, doubling railway investment over a five year period. Total investment in the four years to 2006 will be almost three times the investment at the time of privatisation.
"That investment is now beginning to make a difference. But since that time it has become very clear that the scale of underinvestment and

859
inefficiency in our railways, which built up over decades, was far greater than anyone believed at that time.
"The Hatfield accident in October 2000 exposed the poor state of much of the railway infrastructure and when Network Rail took over from Railtrack in October 2002 and started to go through the books, it became increasingly clear that Railtrack either did not know or did not admit to the sheer scale of the problems it was building up.
"It also became very clear that Railtrack had lost control of its costs. It had farmed out much of its decision making on what work was done, and therefore on costs, to private contractors. And, as everyone knows, forecast costs on the West Coast Main Line were totally unrealistic, rocketing from £2 billion to £13 billion in some five years.
"The recent regulatory review published last December confirms that the cost of upkeep of Britain's railways is £1.5 billion per year more than was thought necessary just three years ago. The review implied that Network Rail inherited a business from Railtrack with unit costs substantially higher than they ought to be. Network Rail is now tackling these inefficiencies and working hard to bring costs down.
"Taxpayers and fare-paying passengers alike need to know that their money is being well spent and that increased spending will improve performance. Cost control is essential.
"The £64 billion public and private investment announced in 2000 is making a difference. Over one third of train rolling stock is being replaced—half on London commuter lines. Major projects are being delivered, like the West Coast Main Line upgrade and the power supply south of the Thames. There is track and signal renewal going on all over the country and there are now 1,500 more services every weekday than there were in 1997. There has been a 20 per cent increase in passengers since 1997.
"Reliability, which is highly dependent on track and signalling maintenance, and which fell dramatically after Hatfield, is now improving, but it still has a very long way to go.
"But there remains a further and very serious difficulty facing this industry; that is, its structure and organisation. The way in which it was privatised has led to a fragmentation, excessive complication and dysfunctionality that have compounded the problems caused by decades of underinvestment.
"There are too many organisations, some with overlapping responsibilities. It has become increasingly clear that this gets in the way of effective decision making and frequently leads to unnecessary wrangling and disputes. That is no way to run a railway.
"The Government are committed to a partnership between public and private sectors. It happens on railways throughout the world. But the long-term inefficiencies and costs of the privatisation
860
settlement have, as time has passed, become an even bigger barrier to the success of the railways. So, within the spirit of partnership between private and public sectors, we need to put right the problems that the authors of privatisation left behind.
"So we now need to build on the investment we have made and on the structural changes we have already put in place, not only to put the railway on a sound financial footing, but at the same time to provide it with the right structure and organisation to take it through the next 20 to 30 years.
"The Government will set out their spending proposals for transport at the conclusion of the spending review in the summer but that money must be well spent now and in the future. It is essential, therefore, that the railways establish far greater cost control so that the public and investors know that it is efficiently and effectively run. Before it takes on new projects we need to be satisfied that there is proper control over existing costs and a significant improvement in performance. The public expect no less.
"The Government remain committed to increasing spending on the railways because it is needed and because the railways are an essential part of the economic fabric of the country—millions of people depend upon it—but the public rightly expect rigorous cost control. After all, we pay for the railways through taxes and fares.
"That work has already started. For example, Network Rail is taking maintenance back in-house to control costs. It is also looking at other areas in which they can do things more cost effectively. The regulator's review, which I welcomed in my Written Statement on 15 December, identified substantial cost reductions. But more can and must be done.
"As a country we must be able to make informed choices and decisions about rail and other forms of public transport. Too often these costs are far from transparent. The Government also believe that the opportunity should be taken to consider how to devolve more decisions on public transport — including rail—to the Scottish Executive and the Welsh Assembly, and at a regional level to PTEs within a nationally coherent framework.
"Local transport decisions are often best taken by the people who provide the service and who pay for it. They can be better placed to know what is needed and how best to provide it, as well as being able to make sensible and informed decisions as between bus, light rail and heavy rail, for example.
"Structural change is needed not just to make better spending decisions. It is also needed if rail is to operate effectively and to meet the needs of passengers and other customers.
"Privatisation had some disastrous and far-reaching consequences for the railway, such as Railtrack's performance, for example. But the private sector has brought considerable increased investment. In many cases, train companies have provided some innovation that was conspicuously lacking in the past. We want to build on that, which

861
is why the Government believe that renationalisation would not solve the problems that the railway faces. It is essential to put in place a structure that works and which can deliver not just cost control, but a safe, reliable railway that works efficiently.
"Since 1997. we have put in place reforms to deal with some of the worst effects of privatisation. Richard Bowker and the Strategic Rail Authority have worked extremely hard with the industry, bringing greater leadership and strategic direction to the railway. They do so with our full support. The SRA is making much needed changes to the franchising, planning and route development.
"The Government remain committed to the minute that I laid before the House on 3 February 2003 covering obligations to the SRA, other financial obligations and the Government's other contracts. As the House expects, we shall remain at least as closely involved in expenditure decisions, financial commitments to the industry and those who finance it.
"We need a railway that makes the most of what both the private and public sectors can offer. The first stage of reform was to set up Network Rail, a private sector company operating in the public interest. It is already making significant progress improving the performance of the track and signalling, and is getting a grip on costs. It has a clear focus to operate in the public interest and to build a safe, reliable and efficient railway, and it will continue to do so. We now need to build on that with more fundamental reform.
"The second stage is, therefore, to streamline the remaining structure of the railway, and to examine the way in which the industry works together. The Government will be publishing their proposals in the summer.
"There are two key principles to underpin these reforms. First, the railway must operate in the public interest, while protecting the legitimate interests of investors. It must be for the Government to decide how much public money is spent on the railway and to determine priorities. Of course, no government department can, or should, attempt to operate the railway. However, the Government can put in place a structure and organisation so that it operates effectively and efficiently, and with a single point of decision making. Rail privatisation failed to recognise that there are some things that only government can determine in the public interest that cannot be left purely to commercial interests.
"Secondly, the principle of public and private partnership is right for the railway and it will continue. It brings in money from two sources, which is important. We are spending £73 million every week on the railway, and a similar amount from the private sector is levered in. That is why the principle of independent economic regulation for the railway is essential, and will be central to our proposals.
862
"The train operating companies have, in many cases, brought innovation to services that was lacking in the past. But we need to put in place the right organisation and structure so that both the public and private sectors can focus on meeting passengers' needs and delivering value for money. As rail also makes a valuable contribution to keeping lorries off the roads, we want to ensure that freight operators have access to the rail network on fair terms.
"We need the right framework to ensure that the railways operate effectively, so that key decisions can be taken in the best interests of passengers to provide a more reliable service.
"Our objective is a streamlined structure and organisation with clear lines of responsibility and accountability. Network Rail is already operating in the public interest, and with the right franchising arrangements so should the train operators But we have a clear responsibility to examine the roles and relationships of all the other organisations with a view to streamlining the present structure.
"The review will, therefore, also look at regulation of safety which, at the moment, is the responsibility of the Health and Safety Executive, Health and Safety Commission and the Railway Safety and Standards Board. Safety is of paramount importance. All those involved undoubtedly work hard to ensure a safe railway. But there are now a plethora of industry standards, some of which are over-cautious, or which are being applied in an overcautious way. Safety regulation needs to focus on the real risks to passengers and employees. It should not be an obstacle to providing reliable services. We need the right organisation to do that.
"Our reforms have to make the structure as simple and as straightforward as possible. The complex structure at privatisation has contributed to the daily frustrations of the public. Many of those frustrations are shared by the dedicated and committed people across the country who are working to improve the railways and deliver better services. There are many in the railway industry with ideas for reform. I am asking Richard Bowker and the SRA to evaluate ideas as they come forward, and then to let me have advice based on industry views, so that we can take them fully into account in reaching conclusions on the review.
"In the mean time, the priorities for the industry must be to focus continually on driving up performance and reliability and getting a grip on costs. Passengers are rightly impatient. Improvements have been made but more needs to be done. We are determined to bring to an end the problems caused by decades of under-investment, which have been compounded by an ill-thought-out privatisation. Rebuilding Britain's railways needs a long-term commitment, which we are determined to deliver. I commend this Statement to the House".
My Lords, that concludes the Statement.
4.17 p.m.
Viscount Astor: My Lords, I thank the Minister for repeating that Statement. I am afraid that it is another nail in the coffin of the 10-year transport plan that the Government published in 2002. It is a government policy that is caught between political dogma and Treasury concerns—a conflict between the two about public spending restrictions.
At least the Minister admitted that privatisation works for the train operating companies. We need only look at the huge investment. It should have worked for Railtrack. I have always admitted that we did not get the interface between Railtrack and the train operating companies right. But the Government did nothing for six years—before it was too late
and then they renationalised it. Did that work? No. Network Rail has abandoned expansion plans and cut investment. Fares are rising and one in five trains runs late. The Government want to change it again, after only three years.
The Strategic Rail Authority was the brainchild of the Deputy Prime Minister, John Prescott, and Network Rail was the brainchild of Stephen Byers. Let us not forget the creation of the Rail Regulator, the Health and Safety Executive, the Health and Safety Commission and the Railway Safety and Standards Board.
We said from the beginning that there were too many bodies with conflicting interests. Who set them up? This Government. At least the current Secretary of State now agrees with us that the bodies set up by his predecessor do not work. They conflict with each other.
What is rather surprising about the Statement is that in September Alistair Darling, Secretary of State, said to the Transport Select Committee:
"I am loathe to start spending overmuch time on structural changes when I really want everybody in the railway industry to concentrate on delivery".
What has happened since September to change his mind? Why the change of policy? Is the reason that the Secretary of State had to block the SRA strategic plan, which is due to be published this month, that he did not like its findings? When will it be published? Is it going to be published soon? If not, we shall begin to wonder why. What are the Government covering up?
Almost the only important sentence in the Statement was in paragraph 39, which talked about the structure and organisation,
"with a single point of decision making".
What does the Minister mean by that? Will it be the Secretary of State, the SRA or some new person making decisions? Does it mean that the Government or someone else will be taking control? What is,
"a single point of decision making"?
We cannot respond to a rail Statement without saying that it is always the poor long-suffering fare-paying travelling public who suffer from government policy. The one good thing about the Statement today is that, after seven years of government, they will be in no doubt who to blame—this Government and this
864
Secretary of State. It was not really a Statement but a softening-up for further admissions of failure. It was a long Statement—13 minutes—which said very little. It could have said: "We have got it wrong; we shall go back to the drawing board and return to you in the summer".
4.21 p.m.
Lord Bradshaw: My Lords, perhaps I may start by apologising for having missed the first few paragraphs of the Minister's Statement, but I was urgently called away.
We had looked forward to today's Statement with some enthusiasm, but I am afraid that we are very disappointed indeed. We are first disappointed that the Minister did not refer to the railways being in a deplorable state and that they have suffered from 40 years of substantial under-investment—year after year. That was not the case before privatisation. There were low levels of investment but a management system which had learned to cope with them.
The railways were in a very good state when they were handed over on privatisation. The fact that Railtrack subsequently failed to invest, to control its contractors and to put the interests of its shareholders first lies at the heart of the problem. That is the fault not of the Government but of the previous administration.
We need to act radically and quickly if the Government are to salvage something from the deplorable state that the railways are now in—and which are in fact getting worse rather than better. I suggest that the Minister must go for some simple solutions. He must combine the regulator—who by the way was not invented by the Labour Party or its previous Ministers, but by the previous Conservative administration—with some kind of oversight body that contains the economic regulator. That is the model under which the CAA has worked, and has worked extremely successfully. I doubt whether anyone knows the name of the economic regulator of the CAA—Harry Bush—but they certainly know the name of Tom Winsor very well because almost every statement is preceded by the personal pronoun.
We should make franchises longer. They should roll forward subject to meeting performance criteria, and they should be more comprehensive. In order to get the railways back into a manageable form, Network Rail should gradually surrender to the franchisees its responsibilities for timetables, for signal operations, for possession and planning, and then, in the fullness of time, it should surrender track and signalling in order to get the railway back into a manageable form. It was a fundamental error to split the track away from the trains, which were so deeply ingrained. Alone of the regulated industries, the railways have proved absolutely unsuitable for the form of nationalisation which was chosen—mainly by people who did not know what they were doing.
All the safety responsibilities to which the Minister referred should go to the newly created Railway Inspectorate and not the Health and Safety Executive

865
with its "safety case" culture. While I agree that safety is paramount, it does not need layer on layer of bureaucrats supervising and interpreting responsibility, so that what goes for the fastest part of the railway is applied willy-nilly to the smallest branch line.
The Minister should tell the OFT that combined ownership of bus and rail is not objectionable and that bus and train companies should be allowed to cooperate in the public interest.
The rumours we have read in newspapers about the appointment of eight tsars may or may not be true. What I would say is that if there are eight good people available to direct the railways, they are needed to run the railways and not to direct them. If there are eight not so good people then the result will be more, rather than fewer, turf wars.
The SRA, the railway directing body, or whatever it is called, should be small and clearly aware which are its responsibilities and which belong to the Department of Transport. There should be no doubt in anyone's mind. Perhaps the Minister can clarify that issue.
I conclude by saying that we on these Benches are very willing to help rescue the railways. The Government should not rely simply on advice filtered through Richard Bowker, who, despite the Financial Times describing him as an experienced railway manager, is in fact nothing of the sort. We are keen to see that the lot of the passenger and freight-user is put first.
Lord Davies of Oldham: My Lords, I am grateful for the two Front-Bench contributions. It is a function of the Official Opposition, I suppose, to criticise and never at any stage either to admit mistakes of the past when it was in government or to advance a proposition that is remotely constructive in relation to our present problems. The noble Viscount, Lord Astor, fulfilled that role admirably. He referred to the issues with regard to Network Rail and its difficulties as though Hatfield had never happened. He must surely appreciate that the enormous problems which have engulfed Network Rail are a reflection of what the Hatfield accident threw up, and that the problems, therefore, of the railways were far greater than even the worst analysis had shown at the time of the botched privatisation.
The noble Viscount asked me one specific question. He asked what will be the single point of decision making. He will recognise that the Statement's purpose is to make clear to the industry and to all those with a contribution to make in improving our rail performance that in the summer we intend to reform the railways' organisation to have this crucial single point of decision taking. We are aware that the plethora of competing points of decision is causing enormous problems in the railways by failing to produce a structure to tackle these outstanding issues.
866
Of course we are consulting on this issue. We expect the industry, and all those interested in it, to put forward ranges of proposals so that we can arrive at the right structure to stand the country in good stead for the decades ahead.
I am grateful to the noble Lord, Lord Bradshaw. He addressed some crucial areas where he thought there were points that we should take on board. In his comments regarding safety, I accept that we need to rethink the position. It is quite clear that that has been one of the railways' significant problems. We all put the highest priority on safety, but we cannot run the railways solely on the presumption that safety takes predominance over every other factor. Otherwise, no train would ever move at any speed at all. We are aware that we need to look at the safety side. I am grateful for the noble Lord's constructive point.
On combined ownership, the Statement indicated that we are looking at how we can devolve some areas of decision taking down to local passenger transport executives and local structures. The Scottish Parliament and Welsh Assembly can play their part on a rather more significant scale. The concept of seeking to devolve some aspects of decision taking to a more local level would fit in with the proposition that the noble Lord advanced. That needs to be considered further. I also accept that we cannot get this single point of decision right if we lack a clear definition of the responsibilities between such a body and the Department of Transport. That is absolutely critical to the effectiveness of the review.
I conclude on the obvious point. If we had come along with a cut-and-dried solution to a very difficult problem, no doubt we would have been challenged about giving insufficient signals for consultation on what should be done. We are allowing five months which will ensure that we hit our intended objectives for the railways.
4.32 p.m.
Lord Peyton of Yeovil: My Lords, the Front Bench speakers have had a long time. I am glad that Back-Benchers at last have their chance. Is the Minister aware that if he had gone further back into the past then his criticisms of privatisation would have been much more valid? The past is important in the railways. First, they were run into the ground by six years of war, very intensive use, and nothing was spent on them. After the war, the railways had the colossal misfortune—visited on them by the party opposite—of having the Treasury as a banker. That is an untold misfortune. I am sure the noble Lord, Lord Marsh, will be the first person to agree with that.
The Minister has to understand that words will not help. A major casualty is that the morale and pride of railwaymen has been lost. That is the first thing to restore and only then will there be a competent organisation. I am quite conscious of the fact that privatisation as an attempt to get the railways off the hack of the Treasury was flawed in many respects. There cannot be that confusion of responsibility and one cannot have too many players in the game. The

867
whole thing becomes too complex. It was a rather long Statement. I hope the Minister will lend himself not to words but to action.
Lord Davies of Oldham: My Lords, I assure the noble Lord that the Front Benches had the time they were allocated for questions. If anything, they were slightly economical. If we did run over-run I did not notice that we had—then the blame rests with me in my answers and not my two inquisitors from the Opposition Front Benches.
On the more general issue of history, I bow to the greater knowledge of the noble Lord. He used to occupy a very significant position in transport and I have no doubt that he studied the history of the railways at that time. I agree with him that the present situation is too complex. There need to be clear points of decision and we need to get the relative rail responsibilities sorted out accurately. That is what we intend to do. I emphasised the other point that he will recognise; the future of the railways will not just be dependent on what the taxpayer contributes through the Treasury. There will also be additional investment from the private sector.
Lord Faulkner of Worcester: My Lords, I agree with every word said by the noble Lord, Lord Peyton, whose time as Transport Minister is still viewed by many people in the rail industry as perhaps the golden age in the post-war period. His comments about morale are ones that the Government must take very seriously.
I say to my noble friend that there is a huge amount in the Statement today that will be welcomed by the travelling public and by the industry. There are aspects of it which are long overdue and very sensible. I particularly welcome the full support that it gives to the Strategic Rail Authority and its chairman, Richard Bowker. I hope that, contrary to the mendacious reports appearing in the press over recent days, he will have a long-term role in the industry and play a part in the new structure that emerges from this process. My noble friend's comments about safety in the industry will be welcomed. It is grotesque that there is such an imbalance between the way in which road safety and rail safety are treated. If that leads to a more satisfactory consideration in the future, that will be very welcome indeed.
Finally, does my noble friend agree that while the review is underway the industry should not take its eye off the ball and lose sight of the need to continue with improvements and cut costs?
Lord Davies of Oldham: My Lords, I am grateful to my noble friend for reminding me that the noble Lord, Lord Peyton, introduced that very important concept of the morale of the workforce. There is no doubt that morale can lift with investment in the railways with people then driving and serving on vastly superior rail stock. One should bear in mind the speed with which the rail stock is being improved. However, as any railwayman will tell any passenger at any time, morale
868
is only as high as the punctuality of that train. Passengers wish to travel on a comfortable train but, above all, they want that train to arrive on time. Those are the issues that we have to address if we wish to raise morale of the rail workers who have such an important role to play.
I would not go quite as far as my noble friend Lord Faulkner in suggesting that the press were mendacious over the weekend. I have too many friends in the media to accuse them in quite those trenchant terms—inaccurate, certainly, wide of the mark and speculative in the extreme. He asked whether we will ensure that there will be no loss of activity on improvements while decisions are taken on the new streamlined arrangements. We are talking only in terms of four to five months. There is no intention on anybody's part to let up the drive towards improving the railways.
Lord Marsh: My Lords, I apologise for losing a few minutes at the beginning of the Statement. The encouraging aspect is the speed at which a massively dangerous financial situation is now confronting whichever party is in power, not whether trains run five minutes late or 10 minutes late. In my view, the current organisation is financially totally out of control. Both parties have played a real role in that. Against advice from many people in the industry, the Conservative Party decided that not only would it seek to privatise the railway—despite people arguing that it was not like the electricity board or the water board—but also that it would separate the track from the operation of the organisation. That was a fundamental mistake. What has happened now is that there is such a multiplicity of management points that it is impossible to decide who is responsible for what.
At the previous general election I was encouraged when reading through the Labour manifesto. I came to the conclusion that 99 per cent of it should be disregarded. Then I fixed on a small part which said it was the intention of the Labour Party to bring the railway system back under public control. I have the greatest respect to the noble Lord, Lord Peyton, whom I regard—I have never made any secret of it—as the best of six Ministers I encountered, not least because the two of us, whenever we met, cursed his colleagues with equal enthusiasm. However, there is no way that a passenger railway system of this size can escape a position where the Government are the ultimate bankers. That dogs the whole thing.
This is a complex subject. I hope that nobody really believes that this problem will be solved in the next four or five months. There is a need to take what urgent action can be taken, but I think it would be perfectly sensible to have an outside commission go back to the drawing board and provide a number of options, because there is no simple solution to the problem.
I know of no major passenger railway system in the world which breaks even, let alone makes a profit. The cosmetics of railway accounting are wondrous, but the realities are that ultimately they require very large subsidies for a number of reasons, one of which is the most simple and powerful of all. The passengers never

869
come in a nice neat flow—they come in peaks and troughs throughout 24 hours. That requires a massive infrastructure investment for the whole of the 24 hours which could never be met by passenger fares.
Many of these problems are fundamental and basic. I congratulate the Government on at least saying that they recognise that there is a serious problem. I think it will take longer; there is a need for a long-term look at the problem, because railways can be a very, very hungry beast.
Lord Davies of Oldham: My Lords, I am grateful to the noble Lord, with his vast experience, for emphasising just how investment in the rail industry is such a costly burden for both taxpayers and farepayers, who are the only other source of revenue. The figures in the Statement about investment over the next decade are very substantial indeed.
On staff morale, the noble Lord is also right that so long as crucial resources appear to be ebbing away because of a loss of control over crucial costs, morale in the railway industry will of course be low. By taking the projects in-house, Network Rail has set about getting a grip on those costs. I assure the noble Lord that the timescale of four to five months will give all those who have a clear interest in the industry—all who have imagination and perspective—the time to go hack to the drawing board and present the Government with how the crucial decisions should be taken and what structure is necessary for that to happen. I am sure that we will benefit from that consultation over the next five months.
Baroness Scott of Needham Market: My Lords, I welcome the fact that the Government have, albeit belatedly, agreed with what we on these Benches have been saying for some time—that the structure of the rail industry is at the heart of the problems we face today. Indeed, the highly fragmented nature of railway decision-making and provision has resulted in a system which is far more costly than need be, and far more heavily regulated and bureaucratic. Most seriously of all, it has ended in a sort of institutional paralysis, so that the Government's efforts to invest more and Network Rail's efforts to cut costs have, to a large extent, been wasted because the structure is wrong.
Can the Minister be a little more specific about the nature of the consultation and how it will take place? We should also like to pin him down a little more on the question of four or five months. I suggest that, on the subject of railways, it is not unreasonable to have a timetable.
Finally—and I say this with every respect for Richard Bowker and the Strategic Rail Authority, although I know it is not always shared—I question whether the Strategic Rail Authority is the right body to carry out this study. I say that not least because it is crucial that whatever comes out at the end has, if not the agreement of all the players, the respect of all the players. I am nervous that the SRA will be seen as a partial body, and that we may start off doing the right
870
thing for the right reasons but end up with something that does not command the respect of the rail industry. That would be nothing short of tragic.
Lord Davies of Oldham: My Lords, I am grateful for the noble Baroness's comments. I emphasise that of course the SRA will have a role to play with regard to this review. However, it is a Government-led review, and we intend to get the position clarified and the new structure proposed by the summer. So we are working to a tight timetable, with ministerial drive behind the review. As the noble Lord, Lord Marsh, indicated, a number of quite radical concepts may come forward in the review. The Government have made it quite clear what principles they will be working on for the new streamlined organisation. However, I emphasise again that this is a Government-led review and Ministers will take responsibility for the outcome.
Lord Berkeley: My Lords, I welcome the Statement, which is very positive. It is a positive commitment to freight—I declare an interest as chairman of the Rail Freight Group—and to the principle of economic regulation, which is so important in attracting private sector finance. I am sure that all noble Lords will agree on that point.
I particularly welcome the review and its attack on costs. Several noble Lords have mentioned costs; we need to move on to the question of the causes of costs—standards, regulations, and so on. There is a general feeling that costs in the railways are about four times what they were for the same output with British Rail. That is quite unsustainable.
Back in the summer, when we were debating the Railways and Transport Safety Bill, my noble friend Lord McIntosh of Haringey spoke about common values for preventable fatality on safety between road and rail, which was very positive. The Minister of State for Transport, my honourable friend Kim Howells, has been saying similar positive things about road and rail safety since then. However, I do not see any leadership or action from the SRA, the Rail Safety and Standards Board or Network Rail on this issue. I urge my noble friend to ensure, in the five-month period, that the message continues to come from Ministers and that these organisations do what they should be doing with regard to leadership and action. When they report and the Government finally decide, at the end of July, what will happen, the industry will already have taken a lot of action.
Lord Davies of Oldham: My Lords, I am grateful to my noble friend. I want to reassure him that the point he makes is central to government thinking. It came up a little earlier in this question and answer session in terms of the morale of the industry. While costs were escalating under Railtrack, this was deeply demoralising for the industry because scarce resources were clearly not being invested where they needed to be— in improvements to the industry—but were being wasted. I assure my noble friend that that is an important principle behind the structure of the outcome of the review. I also emphasise that, against

871
this background, he will recognise that we must not only get costs under control, but also that we need to build upon the much increased investment which the Government have pledged and are committed to over this 10-year period and which we are also deriving from private sector resources. Once the right structure and leadership are in place, that will give the industry real hope for the future.
Viscount Goschen: My Lords—
Lord Shutt of Greetland: My Lords, there are 57 paragraphs in this Statement—no wonder there are varieties. Two paragraphs have been referred to specifically. In paragraph 39, the Statement refers to,
"a single point of decision making".
That, in my view, is centralising. Paragraph 27, however, talks about devolving more decisions. That is devolutionary. Which way are the Government travelling? I hope that they could be travelling in a devolutionary way by devolving to the Scottish Executive and the Welsh Assembly and also at regional level to PTEs. Often the most important places where rail can make a contribution, particularly with congestion, is 10 miles further than the PTE boundaries. I worry that two-tierism is happening with that as well as the Government facing in two directions.
Lord Davies of Oldham: My Lords, I emphasise that parts of the Statement envisage greater participation by passenger transport executives. We have already seen illustrations in places such as Liverpool, Manchester and several other of our great cities of the integration of transport modes where rail plays a crucial part. It is right that local PTEs should make an increased contribution to that work. However, that in no way collides with the central thrust of the review, which is to guarantee that decisions affecting investment strategies, the shape of the railways and the obligations of the big players—who account for a substantial amount of public money—are taken along clearer lines than is now the case by a plethora of agencies. The railway industry is of overwhelming concern to our fellow citizens. The clearer decision-taking process will enable Ministers to exercise their proper judgment about the development of the railway and be answerable to the nation through Parliament.

Justice (Northern Ireland) Bill [H.L.]
4.51 p.m.
Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.— (Baroness Farrington of Ribbleton.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Lyell) in the Chair.]
Clause 8 [Guidance for criminal justice organisations on human rights standards]:
Lord Lyell: I advise the Committee that if Amendment No.42 is agreed to, I will not be able to call Amendment No 43.
Lord Smith of Clifton Lord Smith of Clifton moved Amendment No.42:
Page 4, line 27. leave out subsection (I) and insert—
"(1) The Attorney General for Northern Ireland shall issue, and as he thinks appropriate from time to time revise, a list of international human rights standards relevant to the criminal justice system."
The noble Lord said: In moving Amendment No.42, I shall speak also to Amendments Nos.44 to 51. The amendment relates to another area where the Bill has failed sufficiently to reflect the review and the guarantee in the updated plan about the role of international human rights standards in the reform process. The updated plan stated that all criminal justice agencies would be under a duty to have due regard to international human rights standards. That has translated rather differently, however, to the published Bill.
The Bill proposes a curious and convoluted formulation whereby it would be for the Attorney-General for Northern Ireland to issue guidance, as and when he thinks fit, to the listed criminal justice agencies on the exercise of their functions in light of relevant international standards. That raises doubts over the genuine commitment of the Government to finding a greater role for the application of international human rights standards in the criminal justice system in Northern Ireland.
Amendment No.50 is slightly different. Clause 8(8) of the Bill exempts the prosecution service from having any regard to human rights guidance issued by the Attorney-General for Northern Ireland where that guidance would be inconsistent with a code of practice issued under Section 37 of the Justice (Northern Ireland) Act 2002. Our amendment simply asks why. It is difficult to foresee how the new and first-ever code of practice for the prosecution service, which is due to be published in draft form this month—long before the operation of the Bill—would be inconsistent with international human rights standards. Will the noble and learned Lord the Attorney-General explain why the Bill has deviated from what was expected in the review and the updated plan? I beg to move.
Lord Glentoran: I tend to rely on noble Lords from the Liberal Democrat Party on human rights matters. There are many experts among them. However, I wonder if the amendment would achieve what we would all hope for. If it replaces guidance, are we not losing some flexibility that might prove valuable? While guidance would appear to be more open to interpretation than a set of standards, I wonder whether it really is. I suspect that one could argue equally convincingly that it is not.
Lord Goldsmith: In speaking to the amendment, I too shall speak also to Amendments Nos.44 to 51. The amendments would give me the power to produce only a list of the relevant conventions and standards in criminal justice for organisations in Northern Ireland, rather than a more comprehensive document. In that respect, the noble Lord, Lord Glentoran, is absolutely right.
The guidance that we envisage would be given under Clause 8 would help interpret and explain the conventions and standards, as well as their effect on the criminal justice agencies, and not simply present them with a bare list. It would be significantly more helpful to the agencies for them to be provided with some kind of commentary and analysis of the relevant conventions and standards rather than with that simple list. In that way, the agencies would find it easier to accord with the conventions and standards and to do so consistently.
That is important because the great differences that exist between the status and effect of some of the conventions and standards do require some degree of comment. Some are binding on UK and international law and some are not. Where only parts of a particular instrument or standard are relevant, it would not be helpful simply to list the standard. That is our principal reason for resisting the burden of the majority of the amendments.
I note that the noble Lord, Lord Smith of Clifton, did not refer specifically to Amendment No.44. That would change "regard" in Clause 8(3) to "due regard". Having sought the view of Parliamentary Counsel, we believe that that amendment would not be helpful.
Amendment No.50 would remove a safeguard in the legislation. I respond specifically to the question that the noble Lord, Lord Smith, put to me. The safeguard would allow the Public Prosecution Service to disregard so much of the guidance as may be inconsistent with the code of practice for prosecutors to be published by the Director of Public Prosecutions for Northern Ireland as required by the Justice (Northern Ireland) Act 2002.
I agree that it is unlikely that the two will be inconsistent. I hope that they will not be so. I am sure that great effort will be made to ensure that they are not. It is still right to prepare for the possibility of that event, particularly if the guidance relates to a significant number of instruments. In those circumstances, unlikely though they may be, it is important to provide a clear steer as to which should take precedence. I assure noble Lords that in those circumstances we would want to move swiftly to address any apparent anomalies. With those explanations, I invite the noble Lord not to press his amendment.
Lord Smith of Clifton: I thank the noble and learned Lord for his explanation and for his assurance at the end of his remarks. In light of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5 p.m.
Lord Glentoran Lord Glentoran moved Amendment No.43:
Page 4. line 27, after "shall" insert "by order"
The noble Lord said: In moving this amendment, I shall also speak to Amendment No.64. These amendments are intended to meet the proposals of the Delegated Powers and Regulatory Reform Committee in its report on the Bill. I see that my noble and learned friend Lord Mayhew, who takes part in that committee, is present.
We support the principle behind Clause 8, which places a duty on the Attorney-General to issue guidance on relevant international human rights standards to certain specified criminal justice organisations in Northern Ireland, as referred to in subsections (4) and (5). The organisations are required to have due regard to the guidance in carrying out their functions. The guidance must be published and laid before Parliament.
The Delegated Powers and Regulatory Reforrn Committee is not altogether happy with that. On page 4, paragraphs 18 and 19 of the report say:
"The guidance must be laid before Parliament, but it is not subject to further scrutiny. The delegated powers memorandum mentions the precedents of the Code for prosecutors under section 37 of the 2002 Act and the Code of Ethics of the police under section 52 of the Police (Northern Ireland) Act 2000. Those codes are addressed to one category of recipient only, though they have a wide effect. The guidance under clause 8(1) will apply both to the organisations listed under clause 8(4) and also to any other organisations added by order under clause 8(5) Those organisations could include any organisation with a role in the criminal justice system.
We recognise that human rights issues are highly sensitive in Northern Ireland and, for this reason, we conclude that the guidance should be brought into force by an order subject to negative procedure, so allowing Parliament an opportunity to have some control over its issue".
I hope that the noble and learned Lord will take on board that sensible suggestion from the committee. It would be an added safeguard that would put a good many minds at ease. We are asking here only for the negative rather than the affirmative procedure. With such important guidance, I see no reason not to have some degree of parliamentary scrutiny. I beg to move.
Lord Goldsmith: For the guidance of the Committee, it may assist at this stage of the debate if I say that I will undertake to the House that the Government will table a suitable amendment on Report that will reflect the advice given by the committee. It has not been possible to prepare a suitable amendment in time. That may help noble Lords who want to speak on the amendment.
Lord Smith of Clifton: I simply say that we on these Benches support the amendment proposed by the noble Lord, Lord Glentoran, and are grateful for the advice given by the noble and learned Lord.
Lord Mayhew of Twysden: I have nothing to add, but I am certain that my colleagues will be gratified by the position taken by the Government.
Lord Glentoran: I thank the noble and learned Lord and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos.44 to 51 not moved.]
On Question, Whether Clause 8 shall stand part of the Bill?
Lord Rogan: Much of the language of this clause has been debated before in various guises, through both the Northern Ireland policing legislation and the criminal justice legislation. To see that, one need only cast one's eye over the Hansards for the Commons Committee debates on the Police (Northern Ireland) Act 2000 and the Justice (Northern Ireland) Act 2002.
The first question to consider is whether the guidance is necessary. We have a Human Rights Act that places a duty on public bodies. Is it the case that the Government consider that Act itself deficient in some respects, given that subsection (1) contains the words,
"consistent with international human rights standards"?
Subsection (6) places a duty on the Chief Constable and the Policing Board to have regard to guidance from the Attorney-General. It is already obliged to consult the police association, the Secretary of State, the ombudsman, the Northern Ireland Human Rights Commission, the Equality Commission and any other person who may have an interest. What additional input is the Attorney-General going to provide that may be lacking?
In terms of subsection (7), the Director of Public Prosecutions is already under a duty to be guided by the general principles of the guidelines on the role of prosecutors adopted at the eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Havana between 27 August and 7 September 1990. He is also under a duty to consult the Attorney-General in relation to guidance by virtue of Section 42 of the 2002 Act. What other additional international guidance or standards do the Government have in mind in relation to the provision? Most importantly, the role of the Attorney-General was debated in 2002. Why is the proposal coming before us now and why was it omitted then? What has given rise to the proposed change?
Lord Goldsmith: The clause provides for my office, and for me, to issue guidance to the listed criminal justice agencies and for the listed agencies to have regard to such guidance as is issued.
Human rights were a key theme of the Criminal Justice Review, and the purpose of the clause is to enshrine human rights awareness even more emphatically in the criminal justice system. However, there is a difficulty, which the review recognised, in enshrining human rights duties in law, which is why it is better to produce guidance on human rights rather than placing a direct duty. We discussed the issue earlier, under another amendment.
Noble Lords have asked what value the guidance would have. It will have to be taken into account in any revision of the code of ethics of the Police Service of
876
Northern Ireland, and in the making or alteration of the code of practice for prosecutors, to be issued by the Director of Public Prosecutions. We have already discussed the question of consistency between the guidance and that code of practice.
Parliament will have some control over the publication of guidance, as a result of the undertaking that I gave in relation to an earlier amendment that we would introduce an amendment that would take account of the recommendation of the Delegated Powers and Regulatory Reform Committee.
The noble Lord, Lord Rogan, asked why the measure was not introduced as part of the 2002 Act. The Criminal Justice Review did not specifically recommend legislation on human rights, but the issue was revisited during the Hillsborough discussions. The Government's view is that the provision of guidance to criminal justice agencies on the relevant human rights instruments will help them to ensure that respect for human rights is kept at the heart of the justice system, while avoiding the difficulties that the review anticipated.
I presumed to suggest before that the independence of the DPP and the prosecutorial discretion was something that all Members in the House and in Committee could agree. I hope and believe that the same would be true in relation to respect for human rights for all peoples in Northern Ireland. This clause will help to underline that importance.
Clause 8 agreed to.
Clause 9 agreed to.
Clause 10 [Prosecution right of appeal against grant of hail by magistrates' court]:
Lord Rogan Lord Rogan moved Amendment No.52:
Page 6, line 30, leave out from "bail" to "the-in line 31 and insert "in proceedings in connection with an offence triable on indictment,"
The noble Lord said: In moving Amendment No.52. I shall also speak to Amendments Nos.53 to 57. These amendments bring the procedure for the Crown appealing bail refusal into line with the current practice in England and Wales. They are, in a sense, probing amendments. I invite the Minister to justify that different approach. I have three simple questions. Why should appeals from the magistrates' court go to the High Court and not the Crown Court? Why should there be an automatic second bite of the cherry, rather than concentration on new information? Why should it read "imprisonable" rather than "triable on indictment"? I shall be grateful for the Minister's reply. I beg to move.
Baroness Farrington of Ribbleton: It may assist the Committee if I confirm that we are now taking as a group Amendments Nos.52,53, 55,56 and 57, to which the noble Lord. Lord Rogan, has spoken.
Lord Goldsmith: I shall take these five amendments together. They broadly relate to the same issue.
Amendments Nos.52,56 and 57 would have the effect of restricting the new prosecution right of appeal against the grant of bail to those cases where the

877
accused is charged with an offence triable on indictment. As the clause stands at present, its scope is wider, allowing an appeal in any case where the accused is charged with, or convicted of, an offence that can attract a sentence of imprisonment. As the clause stands, it would create a prosecution right of appeal to the High Court where prosecutors have concerns about a grant of bail by a magistrates' court.
At the moment, unlike in England and Wales, there is no mechanism for the prosecution to challenge any grant of bail by magistrates. Having had the opportunity of discussing this with the chief constable and other senior officers of the police force, I am confident that it is an important new power. As to the detail, the clause provides that where a magistrate grants bail in a case where the defendant is charged with or convicted of an offence punishable by imprisonment, the prosecution can appeal the grant of bail to the High Court.
There are important safeguards. First, an appeal can be made only if the prosecution opposed bail in the first instance. Secondly, oral notice of an intention to appeal must be given to the court before the person concerned is released from custody. Thirdly, written notice must then be given to the court and the person concerned within two hours of the conclusion of proceedings. The hearing of the appeal itself has to be commenced within 48 hours, subject to limited exceptions.
The noble Lord, Lord Rogan, asked three questions. The first was why the appeal should go to the High Court. That is dealt with by his Amendments Nos.53 and 55. In Northern Ireland it is the High Court which has jurisdiction in bail matters. It is that court which currently has jurisdiction to hear appeals by the accused against refusal of bail by a magistrates' court. So it makes sense that the new prosecution right of appeal should also go to the High Court in Northern Ireland. It is a difference from the position in England and Wales where the appeal goes to the Crown Court, but this clause is tailored to the conditions in Northern Ireland.
The noble Lord's second question was why there should be a second bite of the cherry, as he put it; that is to say, a right to appeal even though there is no fresh information. It is important that there should be the opportunity for a higher court to review a decision of bail, where that decision may have been erroneous. It can be very important. The consequences of granting bail where bail ought not to have been granted may be that the public are put at risk of further offences, of the defendant absconding or of interference with witnesses. This is an important decision and to limit the ability to appeal simply to the case where there is fresh information would render it a very limited power indeed.
Thirdly, the noble Lord asked why the opportunity to appeal should apply to cases where there is the possibility of imprisonment, rather than some different category. I draw noble Lords' attention to the fact that, when it is commenced, Section 18 of the Criminal Justice Act 2003 will amend Section 1 of the
878
Bail (Amendment) Act 1993. That will mean that prosecution appeals against grants of bail England and Wales can be made in relation to offences punishable by imprisonment.
In short, once Section 18 is commenced, the position in this respect will be the same in Northern Ireland and in England and Wales; that is to say, the same formula of applying it to offences punishable by imprisonment will apply in both jurisdictions. If the noble Lord's amendment were carried that would not be the case. It seems to us that the reasons that led to that extension in England and Wales apply equally to Northern Ireland.
I hope I have given satisfactory answers to the noble Lord's three questions and invite him not to press his amendments.
5.15 p.m.
Lord Rogan: I thank the Minister for his reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos.53 to 57 not moved.]
Clause 10 agreed to.
Clause 11 [Bail under section 67 of the Terrorism Act 2000]
Lord Cooke of Islandreagh Lord Cooke of Islandreagh moved Amendment No.58:
Page 7, line 39, leave out subsection (4).
The noble Lord said: This, too, is a probing amendment, seeking justification for this particular provision. It seems fair to have something fall on a particular date if the substantive Act has a renewal aspect, as we have been familiar with in Northern Ireland over many years. However, is it not fair to say that this is less so when one considers procedures?
Secondly, why would one seek to permit the Secretary of State to remove bail provisions simply by order? Surely it should take something more substantial. Surely as we debate this as primary legislation its removal before a fixed date should also be debated? I beg to move.
Baroness Amos: I shall try to address the question which has been raised by the noble Lord, Lord Cooke, in relation to the justification for this aspect of the Bill.
Clause 11 and Schedule 2 are clearly contingent on the Diplock bail arrangements set out in Section 67 of the Terrorism Act 2000 which, in accordance with Section 112 of that Act, will expire on 19 February 2006. Section 112 of the Terrorism Act would also allow Section 67 to cease to have effect by order before February 2006, hence the second limb of Clause 11(4). Clause 11(4) is simply a reflection of the status of Section 67. It is right that provisions that can have no effect should be removed from the statute book in the interests of clarity of legislation.
As for the Secretary of State's ability to do this by order, the power to make an order, with the effect that the provisions will cease to have effect, is included to cover the situation in which Section 67 ceases to have

879
effect before 19 February 2006, either by virtue of an order under Section 112(2) of the Terrorism Act 2000, or because it is allowed to lapse under Section 112(1) of the 2000 Act.
I hope that, with that explanation, the noble Lord will feel able to withdraw the amendment.
Lord Cooke of Islandreagh: I thank the noble Baroness for that explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11 agreed to.
Schedule 2 agreed to.
Clause 12 [Bail to which Part II of the Criminal Justice (Northern Ireland) Order 2003 applies]:
Lord Glentoran Lord Glentoran moved Amendment No.59:
Page 8, line 20, after "court— insert "and at end insert—
"in order to carry out an arrest under this paragraph, a constable may enter any premises where he has reasonable grounds for suspecting that person to be""
The noble Lord said: This amendment was prompted—I think that that is the best way of putting it—by discussions that I and colleagues had with the chief constable's office, the PSNI. It focuses on Clause 12, which makes very positive changes to the bail provisions in the Criminal Justice (Northern Ireland) Order 2003. Subsection (4) of Clause 12 amends Article 6 of that order, which deals with arrest for absconding or breaking conditions of bail.
At present, police may arrest a person for breach of bail conditions, but they have no power of entry to effect the arrest. A person may have been released on bail and have been told, as a condition of that bail, to stay away from witnesses. Police may have reasonable grounds to believe that that person has been visiting witnesses, but officers would be unable to enter a private dwelling without consent to use their new power of arrest. The suspect can remain in his house or another's house and officers are powerless to do anything until they catch him in a public place. While the power of entry is not found in the English Bail Act 1976, there seems no valid reason to give a constable a greater power of arrest but to withhold the lesser power to enter.
The criminal justice department has raised this matter with the Northern Ireland Office, I understand, but there seems to be no prospect of change at the moment. However, I understand that the noble Baroness the Lord President of the Council will tell me shortly that she will perhaps take another look at it. I therefore ask whether she will explain whether the Government are willing to concede the point and respond to the wishes of the police. There seems little sense in allowing powers of arrest when the police would not be able to enter a building to effect an arrest.
The police have obviously found the status quo an impediment to their work and are frustrated about this loophole, which may allow those who have absconded or broken bail to escape arrest. This change seems a prudent one. I hope that the noble Baroness the Lord
880
President will not merely respond by saying that the amendment would be inconsistent with English practice. I am sure that she will not. I beg to move.
Baroness Amos: As the noble Lord, Lord Glentoran, has already made reference to my response, it might help the Committee if I gave that response now. He will be pleased to know that I have no reference in my notes to what is happening in the English courts.
Our concern is that the power sought in Amendment No.59 may be inappropriate and indeed disproportionate to the problem in hand. However, in the light of the comments made by the noble Lord, Lord Glentoran, I undertake to go away and reflect on the principle behind the amendment, with a view to deciding whether there should be a power of entry to effect an arrest where there has been an actual breach of bail. I have to say to the noble Lord that, in looking at the amendment, I have a concern about a provision to enter premises on "reasonable grounds for suspecting". I think that we really do need to reexamine that issue and the phrasing of the amendment. However, I undertake to talk to him and to return to the issue on Report if that is appropriate.
Lord Glentoran: In thanking the noble Baroness the Lord President I also wish to apologise. It was pointed out to me that I did not address her completely correctly when I was speaking before. I beg leave to withdraw the amendment.
Amendment, byleave, withdrawn.
Clause 12 agreed to.
Clause 13 [Transfer of prisoners]:
Lord Hylton Lord Hylton moved Amendment No.60:
Page 8, line 38, at end insert "because of his serious misconduct, or, with his consent, for his own protection"
The noble Lord said: I return to a point that I raised at Second Reading. The fact that Northern Ireland has only one maximum security prison now, whereas it used to have two or three, of itself makes prison management somewhat more difficult. There is nowhere in the jurisdiction that a difficult or disruptive prisoner can be moved to. I can therefore understand the need for a clause along the lines of this one. I was glad when the noble Baroness the Leader of the House said in reply on Second Reading that transfers, of the kind we are discussing, would,
"not be used if the particular prisoner could be dealt with in another way".—[Official Report, 16/12/03; col.1119.]
Despite that assurance I still think that the clause as drafted gives the Secretary of State powers to make compulsory transfers that are too sweeping. That is why I am suggesting that the power should be usable only as a result of an individual's "serious misconduct". "Misconduct" may not be exactly the right word and "misbehaviour" might be better. I am trying to cover serious or repeated violence against prison staff or other prisoners, persistent threats of death or injury, arson and other serious breaches of prison rules and discipline. Appendix A of the Steele review of prison safety at Her Majesty's Prison Maghaberry covered such serious cases.
As to the expression "for his own protection", prisoners sometimes have to be segregated. That can be harmful, as well as protective, for the individual concerned. I am therefore suggesting that if the prisoner agrees, he might be moved to England or Scotland to avoid having to be placed in long-term segregation. I beg to move.
Lord Smith of Clifton: We on these Benches support the amendment and the reasoning behind it. As the noble Lord, Lord Hylton, said, this clause comes out of the report into the disturbances at Maghaberry last summer. Again as he reminded us, at Second Reading we were reassured that this clause would be used very much as a last resort. However, we would feel much more comfortable if the reasons for using this clause were more than just,
"in the interests of maintaining security and good order in prisons".—[Official Report, 16/12/03; col.1094.]
We think that that is too wide. We believe that there should be a specific connection to a prisoner involved. Therefore, we support Amendment No.60.
Baroness Amos: I understand the concerns raised by the noble Lords, Lord Hylton and Lord Smith of Clifton. I hope that my comments on the amendment will reassure them.
The concern has been expressed that the proposed amendments to Clause 13 are drawn too widely. However, I think that the test is in fact quite a strict one. The noble Lord, Lord Smith of Clifton, referred to the fact that the power can be used only if it appears to the Secretary of State that, in the interests of maintaining either security or good order in any prison in Northern Ireland, the prisoner should be transferred. However, transfer is not something that will be undertaken lightly. Each case will be considered on its individual merits. I think that the noble Lord, Lord Smith of Clifton, asked for a specific connection in relation to the prisoner. We are looking at each case being considered on its individual merits by the Secretary of State or, in his absence, by a Minister. Transfer will be directed only as a last resort after all other methods of dealing with the threat posed to security or good order have been considered.
The transfer power is required for the protection and safety of prison staff and other prisoners. The amendment would seriously reduce the effectiveness of the power and would mean that action could not be taken until there had been serious misconduct by a prisoner or until he was at risk of harm and consented to the transfer. It is important that where the Secretary of State has credible information that a prisoner is planning any action which will pose a threat to security or good order of a prison he can act to protect the lives of prison staff and other prisoners. The making of a transfer order might be an appropriate and proportionate response in extreme cases. If this amendment is accepted, such pre-emptive action could not be taken.
The noble Lord, Lord Hylton, spoke about the case where a prisoner agrees to a transfer. Where a prisoner consents to transfer this can be effected under the
882
existing provisions of the Crime (Sentences) Act. Therefore, the Government take the view that the part of the amendment dealing with transfer with the consent of the prisoner is unnecessary.
The new power set out in this clause is part of a package of measures required for the protection of prison staff and other prisoners and to prevent slippage from the new separated regime into full Maze style segregation. I believe that concern has been expressed. This amendment would seriously reduce the effectiveness of the provision and I ask the noble Lord, Lord Hylton, to withdraw it.
5.30 p.m.
Lord Hylton: I am grateful to the noble Baroness for what she has said. I undertake to study it carefully but add that I am not sure that I am entirely satisfied. It may be necessary to come back to the matter on Report. However, for the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hylton Lord Hylton moved Amendment No.61:
Page 8, line 42, after "Wales" insert "or Scotland"
The noble Lord said: I believe that this amendment is straightforward. It simply opens up the possibility for the Secretary of State to transfer prisoners to Scotland in addition to England and Wales. If one looks at this matter from the point of view of the families of the prisoner, it is almost certainly very much easier for them to visit across the water in southern or central Scotland as compared with the long and complicated journeys that are frequently necessary when travelling from Northern Ireland to England.
In the nature of things, this amendment, if approved, would be likely only to deal in a more humanitarian way with a very small number of prisoners. The noble Baroness the Leader of the House said when replying on Second Reading that,
"a Sewel Motion in the Scottish Parliament would be required".—[Official Report, 16/12/03; col.1119.]
I do not doubt that at all but surely it is within the capability of the Government to get such a Motion passed in the interests both of prisoners and their families. I beg to move.
Lord Smith of Clifton: On this occasion I cannot support the noble Lord, Lord Hylton. The amendment would allow the Secretary of State to transfer a prisoner to a gaol in Scotland as well as to one in England and Wales. I am a little concerned about the amendment as Scotland also has a sectarian problem whereas Wales, so far as I know, does not.
The noble Lord touched upon the devolution issue. I am not sure that the measure would work as justice matters are devolved to Scotland but not to Wales. I do not know whether the Secretary of State for Northern Ireland would have the ability to transfer a prisoner to Scotland without the agreement of his opposite number in the Scottish Parliament. I believe that that adds a further complication, but primarily

883
my concern is that the sectarian problem, although, thankfully, not as bad as in Northern Ireland, is nevertheless still present in Scotland. Therefore, I believe that it would not be conducive to the well-being of transferred prisoners if they were transferred to Scotland.
Baroness Amos: This matter was raised at Second Reading by the noble Lord, Lord Hylton, and by the noble Lord, Lord Fitt, who is not present. The noble Lord, Lord Smith of Clifton, is quite right. Prisons and prison transfers fall into the devolved field. Therefore, before the Westminster Parliament can legislate in that regard, the consent of the Scottish Parliament must be obtained by way of a Sewel Motion. The noble Lord, Lord Hylton, said he did not think it would be beyond the bounds of possibility that the Government could ensure that that happened. A Sewel Motion is being considered. If it is approved by the Scottish Parliament, the Government will bring forward an amendment to provide for compulsory transfer to Scotland as well as to England and Wales. In the light of that, I hope that the noble Lord, Lord Hylton, feels able to withdraw the amendment.
Lord Hylton: That is as much as I could possibly hope for. I am grateful to the Government but slightly disappointed at the lack of Liberal support. However, in the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Glentoran Lord Glentoran moved Amendment No.62:
Page 9, line 4, at end insert—
"(2B) Where a prisoner is transferred under subsection (2A), the jurisdiction which imposed the length of the sentence will be responsible for determining the date of the release of the prisoner except where the prisoner's release date is delayed by reason of his misconduct or for other reasons relating to the maintenance of prison discipline.""
The noble Lord said: To some extent this amendment concerns the same topic. It is intended to probe some of the practicalities of a transfer order made under Clause 13. What we are concerned with here are any potential discrepancies between the length of the sentence a prisoner serves due to his transfer from Northern Ireland to England or Wales. Which jurisdiction is responsible, for example, in determining the release date of the prisoner? We are thinking in particular about early release or parole and the issues of good behaviour and misconduct. Will the noble Baroness the Lord President of the Council tell us whether the decision will be for the Northern Ireland system or the English/Welsh system to decide?
Our amendment attempts to clarify this issue. As we have already discussed in earlier debates on this clause, transfer is envisaged as a consequence of misconduct. In such circumstances we think it right that the prisoner's release date remains as that which was originally set by the Northern Ireland jurisdiction when the sentence was imposed with one exception: that is, where the release date is later than that which
884
was first set due to the misconduct or bad behaviour of the prisoner. In those circumstances the English/Welsh prison in question may exercise its own disciplinary rules to delay the prisoner's release. The benefit of the amendment is to make clear that there would be no advantage to a prisoner in terms of release date if he were to be transferred. I beg to move.
Lord Smith of Clifton: These Benches support this amendment. We believe that there must be consistency within the jurisdiction even if the prisoner is moved outside.
Lord Hylton: I have some sympathy with the amendment. However, the elegance of its drafting might be improved. As an attempt in that direction I offer the following:
"Where a prisoner is transferred under subsection (2A), the jurisdiction which imposed a custodial sentence will be responsible for determining the date of release of the prisoner except where this is delayed by reason of his misconduct et cetera".
Baroness Amos: I hope that I can demonstrate to the Committee that the amendment is not necessary and that what Members of the Committee are looking for is already available, despite the elegance of the drafting of the noble Lord, Lord Hylton.
I can understand that the Committee wants to be clear that prisoners will not benefit from any transfer. I can assure your Lordships that any transfer under the new power will be on a restricted basis and the prisoner's release date will be determined according to the laws of Northern Ireland.
The need for the prisoner to remain in England and Wales will be reviewed on a regular basis and he or she will be returned to Northern Ireland as soon as it is assessed that his or her transfer is no longer necessary in the interests of maintaining security or good order in any prison in Northern Ireland. It is highly unlikely that any prisoner will be released while still held in a prison in England and Wales, because of the regular review and assessment.
At present there no provision to delay the release of a prisoner in Northern Ireland because of his misconduct. Noble Lords may be aware that the Prison and Young Offenders Centre (Amendment) Rules (Northern Ireland) 2004 were laid before the House on 9 January 2004. They seek such a power in respect of breaches of prison discipline by separated prisoners only. If that power comes into force I can assure your Lordships that any transferred prisoner awarded loss of remission would have to serve out the period of that award before his or her release. Any prisoner transferred to England and Wales on a restricted basis remains subject to the law of Northern Ireland in relation to the loss of remission.
The intention behind the amendment will be achieved as a consequence of our policy decision that all transfers will be restricted. I ask the noble Lord, Lord Glentoran, to withdraw the amendment.
Lord Glentoran: I thank the noble Baroness for that response. I should like to take time after the

885
Committee stage to study Hansard. The issue is complex and clarity is essential. Some seriously heavyweight lawyers helped me prepare for the Bill and, if your Lordships agree, I would like to consult them again. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 agreed to.
Clauses 14,15 and 18 agreed to. Schedule 4 agreed to.
5.45 p.m.
Clause 19 [Commencement]:
Lord Glentoran Lord Glentoran moved AmendmentNo.63:
Page 10, line 6, at end insert—
"( ) Any order under subsection (1) bringing into force any of sections 1 to 5 shall not be made before the end of the period of 12 months beginning from the date on which this Act achieves Royal Assent."
The noble Lord said: The amendment is one of the main contentions that we have with the Bill. I shall not make another Second Reading speech, but inevitably I will go over some ground that we have covered before. The amendment proposes a sunrise provision which would delay the commencement of Clauses 1 to 5 for 12 months after Royal Assent. Throughout our discussions, both at Second Reading and in Committee, we have heard concern from all sides of the House about the timing of the Bill. We firmly believe that no changes should be made to judicial appointments for Northern Ireland before we have seen the Bill that brings forward legislation to tackle the same issues in England and Wales.
The main Bill should be considered before this Bill and, therefore, we have asked for a 12-month delay in commencement. Our fear is that if this Bill is pushed through hastily and without due thought we will need in 2005 a third justice Bill relating to Northern Ireland. It would be a farcical situation. I remind the House that the previous occasion was in 2002—not long ago—and the Police Bill before that was in 1998. There is already deep disillusionment about the changes made in this Bill which were emphasised when we discussed Clauses 4 and 5.
First, Clause 5 cannot come into effect because the Assembly is still suspended; so we currently have no First and Deputy First Ministers to give recommendations to the Prime Minister about appointments to the position of the Lord Chief Justice and the Lords Justices of Appeal. Secondly, Clause 5 takes away the right of veto of the Lord Chief Justice even though when the 2002 Act was being discussed, the Government claimed that they were happy with such a veto. The fear is that we will have a new Justice (Northern Ireland) Bill every year, because the Government change their minds every year with each new Criminal Justice Review and kowtows to pressures from certain political parties.
The timing of the changes on judicial appointments are fundamentally wrong, due to the impending constitutional Bill with which we will be faced later in the year and the current suspension of the Assembly.
Now is not the time to destabilise the system by five clauses that would fundamentally undermine the current impartial system of judicial appointments in Northern Ireland. We see nothing but trouble as a consequence and the politicisation of the judicial appointments system which, we believe, will ensue. Clauses 1 to 5 are not needed. They will only negate and ruin a good and successful judicial system. There is no rhyme or reason, sense or logic in why the Government should have the clauses passed now. I beg to move.
Baroness Amos: I hope what I have to say will reassure the noble Lord, Lord Glentoran. In our earlier debates on the Bill we dealt with two of his specific comments
on undermining the impartiality of the system in Northern Ireland and the politicisation of the system. The Government made it absolutely clear that it is their intention to maintain the impartiality and independence of the judicial system in Northern Ireland.
Regarding the practicality of the amendment, Clauses 1 and 2 relate to the Judicial Appointments Commission. The practical steps to create a commission will necessarily take a little time and we will want to work in consultation with stakeholders. Our aim is to have the commission in place by spring 2005.
Regarding the debate on a constitutional reform Bill, we expect some overlap between discussion of this Bill, which will have to go to the other place, and the constitutional reform Bill, which we expect to be introduced to the House quite soon. If it proves possible to have the Judicial Appointments Commission in place by spring 2005 we see no reason why the establishment of the commission and the start of its work should be delayed.1 hope the fact that we expect some overlap between the two Bills will help the noble Lord.
Clauses 4 and 5, which amend provisions in the 2002 Act and are linked to senior judicial appointments and removals from listed judicial offices respectively, come into effect only after the devolution of criminal justice. I hope that my clarification will help the noble Lord and that he will withdraw the amendment.
Lord Glentoran: I thank the Minister for those explanations. First, I believe that the Government have got it wrong in relation to impartiality and politicisation and I will take a great deal of persuading otherwise. There is no way that Clauses 1 to 3 will improve that. They will open all kinds of doors, as will be seen in the next five years, to both impartiality and politicisation becoming apparent.
I am happy to hear that there will be an overlap between the passage of the constitutional reform Bill and the completion of this Bill. I hope that in practice, should things change during the progress of the constitutional reform Bill, we will he able to implant the changes into this Bill. I am looking for that because it would be a sound and more comfortable basis on which to go forward.

887
I am also relieved to hear that Clauses 4 and 5 will not come into effect until after devolution of the judicial processes. I suspect that that will be at least 12 months after the enactment of this Bill.
I intend to take the amendment away and to review it before bringing it back at the Report stage. I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 19 agreed to.
Clause 20 agreed to.
Clause 21 [Statutory rules]:
[Amendment No.64 not moved.]
Clause 21 agreed to.
Clauses 22 and 23 agreed to.
House resumed: Bill reported with amendments.

Industrial Training Levy (Construction Board) Order 2004
5.52 p.m.
Lord Davies of Oldham Lord Davies of Oldham rose to move, That the draft order laid before the House on 18 December 2003 he approved [4th Report. from the Joint Committee].
The noble Lord said: My Lords, I beg to move that the draft Industrial Training Levy (Construction Board) Order 2004 be approved and, with the leave of the House, I shall speak also to the draft Industrial Training Levy (Engineering Construction Board) Order 2004.
The proposals before the House seek authority for the Construction Industry Training Board and the Engineering Construction Industry Training Board to impose a levy on employers in the industries they cover.
Industrial training boards—or ITBs as we know them—are non-departmental public bodies that operate under the provisions of the Industrial Training Act 1982. Their role is to ensure that the quantity and quality of training are adequate to meet the needs of the industries for which they are established.
They provide a wide range of services, including setting occupational standards and developing vocational qualifications, delivering modern apprenticeships and paying direct grants to employers who carry out training to approved standards.
The Act contains provision for a levy on employers to finance an ITB's activities and to share the costs of training more evenly between companies in an industry. It is for the employer members of a board to make proposals for the rate of levy for the industry it covers and for the Secretary of State to make an order giving effect to the proposals.
The order before the House would give effect to proposals submitted to the CITB and the ECITB for their 2004 levy. Each proposal involves the imposition of a levy in excess of 1 per cent of payroll on some classes of employer. The Industrial Training Act 1982
888
requires such orders to be approved by affirmative resolution of both Houses. In each case, the levies are based on employers' payrolls and net payments for sub-contract labour.
For both boards, the proposals involve levy rates in excess of 0.2 per cent with no exemption other than for small firms. In such cases, a levy order can be made only if the proposals are necessary to encourage training in the industry and that one of three conditions is satisfied.
The first condition is that proposals have the support of organisations representing more than half the employers who together are likely to pay the majority of the levy. The CITB proposals meet that first condition.
The engineering construction proposals are supported by the industry's employer organisations. However, currently those organisations represent fewer than half the employers, although together those employers are likely to pay the vast majority of the levy. The first condition in this case, therefore, has not been fully met. In this case, an order can be made only if one of the other two conditions is satisfied.
The second condition is that the order is made less than two years after the making of the former levy order giving effect to proposals in respect of which the first condition was satisfied. An order was made in 2003 that had the support of the employer associations representing more than half the employers. Those employers also paid the majority of the levy. This means that for the current proposals, the second condition is satisfied.
The Act requires ITBs to exclude small firms from the levy, but it does not set the minimum size threshold. Each of these proposals contains an exclusion provision that the industry considers to be appropriate.
In the order before your Lordships, the CITB proposes that both its levy rates should stay the same as those approved by the House last year; that is, 0.5 per cent of payroll for direct employees and 1.5 per cent of net expenditure on sub-contract labour. Employers whose combined payroll and net expenditure on sub-contract labour is less than £61,000 will not have to pay the levy. That equates to an employer who employs three people full-time throughout the year. It is estimated that the exemption will effect about 60 per cent of employers.
There is a higher levy rate on sub-contract labour because, according to the industry, the vast majority of training is carried out by those employers with a directly employed labour force. Employers who opt to use sub-contract labour tend to have a transitory arrangement with their sub-contractors and are not normally involved in their training.
The ECITB proposes to impose the same rate as last year on site contractors; that is, 1.5 per cent of total payroll and net expenditure on sub-contract labour. Contractors whose combined payroll and net expenditure on sub-contract labour is £75,000 or less will not have to pay the levy. This equates to an

889
employer who employs four to five people full-time throughout the year. It is estimated that the provision will exempt 37 per cent of the sites.
This year, however, there will be no levy on head offices. This is in response to recommendations from the board's recent quinquennial review and its own strategy review, which was carried out by external consultants. Both reviews recommended that, for the short term, the board should focus its activities at craft, supervisory and first-line management levels. These are currently the areas of greatest skills shortage. The proposals are expected to raise for the CITB between £116 million and £120 million and for the ECITB £8 million to £9 million.
Your Lordships will know from our annual debates that the CITB and the ECITB exist because of wide support from employers and employer interest groups in these sectors. There is a firm belief that without them there would be a serious deterioration of training in these cyclical, peripatetic and project-based industries, leading to a real fear that their skill needs would not be met. That was again confirmed by the recent reviews of both boards, carried out by the Department for Education and Skills last year. The reviews found that the principle of the levy is still strongly supported in each industry. They recommended that CITB and the ECITB should continue to act as statutory industrial training boards with levy-raising powers.
The draft orders will enable the two boards to carry out their vital training responsibilities in 2004, and I believe that it is right that the House should agree to approve them. I commend the order to the House.
6 p.m.
Baroness Seccombe: My Lords, I thank the Minister for outlining the measures in the orders. I understand that there is a general acceptance within the construction industry of the work done by industrial training boards and, as a consequence, there are no significant objections to the levy charged. We agree that boards are necessary because of the nature of the industry. Left to themselves employers are reluctant to take on the significant burden of training their employees. Therefore, in order for there to be a well trained workforce, the costs of training must be met collectively.
I am pleased to hear that the boards do a good job setting standards, developing qualifications, facilitating modern apprenticeships and paying grants to employers. Today I have received a letter from CITB Construction Skills which says that,
"in 2002 for every £1 of levy received, 93p was paid out directly in training grants, allowances and college fees, and the industry received £1.61 in total benefits, payable from the total income from CITB-Construction Skills and not just the levy".
That is indeed worthy of congratulation.
Small businesses are exempt from paying the levy, and the orders set out the maximum net expenditure on subcontract labour possible for a firm before it has to pay the levy. It is obviously important to get the amount right. Too high or too low would have a
890
negative impact and distort the market. On the figures of £75,000 and £61,000, I ask the Minister whether there is consensus on this issue. In addition, is the issue of a firm falling within the remit of the two industrial training boards a contentious subject? What consultation has the Minister had with the industry or any part of it in the past year regarding a possible change in the definition of a firm covered by the order?
I would also like to take this opportunity to ask the Minister about the progress of sector skills councils, of which one, out of only four that have been fully licensed so far, is for construction. Can he reassure the House that the progress made over the past year represents value for money, given the fact that £12 million has been paid out of public funds for all sector skills councils, and the chairman is quoted as saying—this is a little unnerving—
"we have the power because we have this big budget"?
The benefits that training brings to the economy and to the country in general is hard to underestimate and any measure that serves to enhance the number and quality of skilled workers must be welcomed. However, it is essential to keep an eye on the benefits that industrial training boards bring to the construction industry because we must avoid the levy becoming yet another tax on business. For the mean time, I am satisfied that the benefits are significant. They will justify the levy charged and, as a consequence, I will not be resisting the orders.
Baroness Sharp of Guildford: My Lords, I, too, thank the Minister for introducing the two orders which come up regularly at this time of year. From these Benches we regularly welcome them. Both the Construction Industry Training Board and the Engineering Construction Industry Training Board represent what, in our eyes, is in many senses an ideal situation. The levy imposed is voluntary and it has the support of all sides of the industry. It enables the cost of training to be spread evenly across the industry with the exception of very small firms, whose turnover is, as the noble Baroness, Lady Seccombe, identified, respectively £75,000 and £61,000.
Revenues obtained from the levy are used by the industry to provide a wide range of training. I particularly welcome initiatives that have been taking place within the industry to make employment in the industry contingent on all employees meeting minimum standards of training and commitment on the part of the major employers to ensure that that is so and to ensure that all employees are offered opportunities to upgrade their qualifications when appropriate.
It seems to me that the differential levy on direct and subcontract labour, which has been a source of some contention within the industry, is justified. Within the industry there are the continuing problems of the cowboys who pay nothing for training and poach from others who have contributed to training. The great advantage of the levy is that it limits the degree of poaching; it limits the free-riders in the industry.

891
I have very few questions because we have seen such orders on previous occasions. However, I would like to ask about the progress of sector skills councils. The construction industry is an area where we have seen a sector skills council established but it would be interesting to know whether other sector skills councils are in the wings waiting to be launched and how far progress is being made. I also wonder whether any other sector is showing an inclination to have an industrial training levy along the same lines. It is within the ambit of the Employment Act that was enacted some two years ago. It was left to each of the sector skills areas to decide whether they wished to go for a levy grant system of this kind. I wonder whether any other sectors are interested in moving in that direction.
Lord Davies of Oldham: My Lords, I am most grateful for the response of both noble Baronesses who have spoken in this short debate. As they have both indicated, we have been here before. Exceptionally, this year there is no change to the levy. We feel that we are going over well tilled ground. None the less, it is essential as the levies are subject to the affirmative procedure and, therefore, we are duty bound to consider them with all the seriousness that we bring to such debates.
I am extremely grateful to the noble Baroness, Lady Seccombe, for the figure of 93p in the pound. It was not contained in my notes. I have various measures of value for money, as I believe that we hold these boards in high regard for the work that they carry out, but I cannot think of a more graphic illustration than that given by the noble Baroness. I am grateful for it. I have no doubt that, if I am in the privileged position of addressing these issues again at the Dispatch Box, I shall keep an eye on that figure
an excellent measure.
The exemption criteria for small firms is not government-imposed. The industry itself brings forward a proposal for the cut-off point for levies. Therefore, it is the industry that has produced the figures of £75,000 for employers with about four employees and about £61,000 for employers with three employees. The noble Baroness asked whether there was consensus on that and the answer is that there is. As to whether everyone would agree with that, I can think of some on the margin who would clearly not agree. As with any other concept of this kind, there is bound to be fairly lively debate on the margin. However, this exemption formula has held for a number of years and has been considered to be representative of what the industry expects.
With regard to sector skills councils, we have made considerable progress. It will be recognised that the Construction Industry Training Board was the first to get off the ground. We know the reasons for that. We know the way in which the industry is organised and how its specific skill needs have to be met from within the industry. That is one reason that the industry has a training board when so many other industries do not.
On the question of what wider progress has been made, 10 sector skills centres have been established. We are on course for the majority of them, if not all,
892
to be set up by the summer of this year. Therefore, considerable progress has been made in that respect, although it has not happened as rapidly as we might have liked. As soon as one sees one such skills centre in operation, one always thinks that everyone else is being a little tardy in getting on board. Nevertheless, within the realistic expectation that they would all be up and running this year, we are just approaching the half-way stage in terms of the numbers established and we are confident that we shall meet the target over the course of this year, as was the original expectation.
I am grateful that the two boards receive the plaudits that they do. They carry out very valuable work. It is not surprising that the CITB is a trail-blazer in terms of the sector skills proposals. If our whole industrial life were organised to the patterns of these two bodies, I believe we should feel a good deal more optimistic about the general skills levels in our society. However, we also know the needs of these two areas and why they match up in such an excellent way. Therefore, I am grateful for the support expressed in the contributory speeches today.
Baroness Sharp of Guildford: My Lords, before the noble Lord concludes, I want to point out that there is a real concern among larger employers about the lack of training by small employers in the industry. Clearly such training must be carried out at a local level. However, these days, many small employers do not take on apprentices in the way that they used to do, and it is being left largely to the larger employers to do so. One reason for that is the sheer bureaucracy and the amount of paperwork involved in having apprentices. I believe it should be placed on the record that there is considerable worry in the industry about the lack of training by small employers.
Lord Davies of Oldham: My Lords, I accept what the noble Baroness says. She is well experienced in this area. This is one of the perennial debates that take place in any organisation. The larger employers usually blaze the trail for all the obvious reasons. However, the noble Baroness is right to call attention to the fact that all employers need to be alert to the fact that, without investment in their workforce and without the necessary training, they will render themselves vulnerable in the rapidly changing industrial and economic environment that we all face. We all know that we compare ill with many other advanced countries in relation to skill levels. Of course, the Government must take responsibility for their role in these issues. That is why it is an important priority for this Administration. However, it is also the case that employers in other countries are often far more committed to the concept of training than is the case here.
I hear what the noble Baroness says about bureaucracy. Form-filling is irritating but I believe that, if it leads to effective training, it is both necessary and something to be desired. I am sometimes conscious of the fact that upbraiding bureaucracy is an easy way to shelve one's responsibilities, and I believe that that has been the case in certain areas of training.

893
That is why, when we have models that work quite well. and particularly where some employers do very well indeed, we should build upon that. On that basis,
I commend the order to the House.
On Question, Motion agreed to.

Industrial Training Levy (Engineering Construction Board) Order 2004
Lord Davies of Oldham: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That the draft order laid before the House on 8 January be approved [4th Report from the Joint Committee].—(Lord Davies of Oldham.)
On Question, Motion agreed to.

Disability Discrimination
A message was brought from the Commons that they concur with this House that it is expedient that a
894
Joint Committee of Lords and Commons be appointed to consider and report on the draft Disability Discrimination Bill presented to both Houses on 3 December 2003 and that the committee should report on the draft Bill by the end of April 2004, and have ordered:
That a Select Committee of six Members be appointed to join with the committee appointed by the Lords to consider the draft Disability Discrimination Bill.
That the committee shall have power:

(i)to send for persons, papers and records;

(ii)to sit notwithstanding any adjournment of the House;

(iii)to report from time to time;

(iv)to appoint specialist advisers; and

(v)to adjourn from place to place within the United Kingdom.

That the quorum of the committee shall be two.
House adjourned at a quarter past six o'clock.