Lords Sitting of 14 July 2004

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

Lord Dykes
Hugh John Maxwell Dykes, Esquire, having been created Baron Dykes, of Harrow Weald in the London Borough of Harrow, for life—Was, in his robes, introduced between the Lord McNally and the Lord Dholakia.
Lord Haworth
Alan Robert Haworth, Esquire, having been created Baron Haworth, of Fisherfield in Ross and Cromarty, for life—Was, in his robes, introduced between the Lord Dubs and the Lord Elder, and made the solemn Affirmation.

European Higher Education Area
2.48 p.m.
Lord Quirk asked Her Majesty's Government:
What implications for their higher education policy are presented by the Bologna process to create a European higher education area.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland):My Lords, we welcome the increased potential for mobility, of both students and researchers, afforded by creating a European higher education area. The structure and international merit of the UK's higher education system is already reflected in the Bachelors/Masters/PhD cycle envisaged by Bologna. We are actively involved in influencing the debate. Key action areas currently include developing the diploma supplement and contributions to discussions on qualifications frameworks and quality assurance systems.
Lord Quirk:My Lords, I am grateful to the Minister for that reply. Clearly, with events such as the Edinburgh seminar a couple of weeks ago, the Glasgow summit next May and the ministerial plenary session just after, not to mention the plans for a European research council, the pace is growing, as are the costs. She referred to the diploma supplement. Will the Government help universities with the additional costs to which they have already signed us up, such as the issue of a diploma supplement from next year?
More broadly, I wonder about the possibility of a culture clash between a British focus on outcomes and a continental fixation with inputs such as time of study. Now that 25 of the 40 Bologna countries are part of the EU, will the Government resist any
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pressures under which they may come from the European Commission towards a harmonisation that could interfere with the flexibilities of the UK system, such as our one-year Masters degree and quality control provisions?
Baroness Ashton of Upholland: My Lords, a focus on outcomes is absolutely critical. There is no conflict on the one-year Masters degree, which is something of which we are very proud. We continue to work with it, and there is no conflict with Bologna. There are no plans for a research council at present; the DTI is consulting on the subject, but no proposals have been put on the table. The diploma supplement is very much about additional information for students, which is important. We are talking to the universities, but I cannot make any commitments on funding. In general, it is to be welcomed that Bologna offers real opportunities for mobility.
Lord Wallace of Saltaire:My Lords, I invite the Minister to comment on the statement made by the president of Universities UK last night that:
"The UK Government, and most universities it must be said, have largely stood aside from the Bologna Process",
so far. Do the Government now plan to have a much more serious and sustained engagement in the negotiations as they warm up?
Baroness Ashton of Upholland:My Lords, I was sorry to miss the speech of the president of UUK last night, but I have a copy. We have not stood aside. Our contribution in Bologna, Berlin and Bergen next year will be critical. We are very committed to the process, working closely with UUK to ensure that we provide the energy and support that it needs.
Lord Dearing:My Lords, I do not recall the Minister answering the question asked by the noble Lord, Lord Quirk, on whether the Government would strive to ensure that awards were based on outcomes rather than processes. Does she see scope within the framework of Bologna for recognition of an award such as a foundation degree, a distinct form of degree that serves to give standing to vocational awards throughout Europe?
Baroness Ashton of Upholland:My Lords, I said that there would be a focus on outcomes; I am sorry if the noble Lord did not hear me. The foundation degree is important, and we are the only country currently offering it. There is no conflict with Bologna, and we wish to see the foundation degree recognised fully for its contribution to lifelong learning.
Lord Harrison:My Lords, does my noble friend recognise that the one-year MA courses in this country are important for encouraging overseas students to take advantage of the British university system, and that it would be a mistake if we moved to the two-year MA system of some of our continental colleagues?
Baroness Ashton of Upholland:My Lords, we believe that our one-year Masters system is strong and rigorous

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and is highly valued by international students. We would not wish to see a two-year requirement for a European Masters degree as that would leave us out of step.
Baroness Seccombe:My Lords, can the Minister tell us the Government's policy on the further European integration of education?
Baroness Ashton of Upholland:My Lords, we see processes such as Bologna—where we have the opportunity to think about our higher education system and opportunities for mobility between researchers, teachers and students—as a good example of how best to develop the right kind of links in both a European economy and a global economy. Such opportunities are important also for schools.
Baroness Warwick of Undercliffe:My Lords, in expressing my support for the concerns expressed by the noble Lord, Lord Quirk, perhaps I can declare an interest as chief executive of Universities UK. As the Bologna process moves on, it is clear that the Government's involvement needs to be very much increased. Can my noble friend the Minister confirm the Government's support for the work of the UK-wide Europe unit and confirm that she will ensure that there is appropriate ministerial participation at Bologna summits; high-level official representation in Bologna forums; and practical support for the introduction of Bologna reforms in institutions?
Baroness Ashton of Upholland:My Lords, I can indeed offer my support to the work of the Europe unit—which I did not know about until yesterday, as I am not the Minister with responsibility for this policy area. However, I was delighted to hear of the work being done by Universities UK and the funding councils and the contribution that our senior officials are making to the committees involved. I can confirm ministerial involvement in the work that has gone beyond Bologna, for Bergen next year. We will continue to be in dialogue on the issues surrounding universities' involvement. However, I believe that the UK is already well placed.
Lord Sutherland of Houndwood:My Lords, can the Minister assure us that there is no further likelihood of an additional level of quality assurance regulation being imposed as a result of this? If she cannot do so, can she assure us that she would resist such an imposition?
Baroness Ashton of Upholland:My Lords, although I can assure the noble Lord that we would resist such an imposition, there are no such plans. Quality assurance is being worked on in the sense of collaborative approaches across Europe, not with any view to an over-arching European quality assurance system.
Baroness Sharp of Guildford:My Lords, can the Minister tell us whether there is any problem in
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accommodating the MEng degree—Master of Engineering—which is commonly taken in the United Kingdom by engineering students?
Baroness Ashton of Upholland:My Lords, I know that concern has been expressed about the MEng degree. Nothing in the Bologna agreement or process should impinge on that in any way whatever.

Prisoners: Right to Vote
2.56 p.m.
The Lord Bishop of Worcester:My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare my interest as the Bishop to Her Majesty's Prisons.
The Question was as follows:
To ask Her Majesty's Government why they referred to the Grand Chamber of the European Court of Human Rights the judgment of that court in Hirst v United Kingdom concerning a violation of Article 3, Protocol 1 of the European convention in the matter of the denial to all sentenced prisoners of the right to vote.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin):My Lords, it has been the view of successive governments, including this Government, that persons who have committed crimes serious enough to warrant a custodial sentence should forfeit the right to have a say in how the country is governed while they are detained. The judgment of the European Court of Human Rights in the Hirst case challenges this position. We wish to ensure that the issues in relation to this important and long-standing policy are fully considered.
The Lord Bishop of Worcester:My Lords, I thank the Minister for that reply, particularly for the fact that he has not sought to suggest that the present blanket disenfranchisement of convicted prisoners serves any useful purpose. Would it not be better now for the Government, given the unanimous ruling of the court, to proceed to the drafting of legislation that would allow the courts to impose a sentence of disenfranchisement as an additional penalty when they thought it appropriate? Would not such legislation mean that there were voters in our prisons and, therefore, that prospective and present Members of the other place would have an incentive to have considerable interest in what goes on there and support the Government's rehabilitation policies? Might not those rehabilitation policies be further advanced by the teaching of citizenship in relation to the right to vote?
Lord Filkin:My Lords, my answer is no to the first question and probably no to many of the subsequent ones. The central question concerned whether we should start drafting legislation. The answer to that is no, because we believe that we have an arguable case. We think that it is an important issue. It has been part

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of the tradition of this society for very many years. It has also been a policy that has been tested by the opinion of both Houses of Parliament as recently as 2000, under the Representation of the People Act, when we introduced a modification to allow prisoners held on remand to vote—but not wider than that. Therefore, we, along with many other member countries in the Council of Europe, think that we are right in our policy position.
Lord Lester of Herne Hill:My Lords, perhaps I may make a prediction, which is that the Government will now be humiliated by the Grand Chamber if they insist on taking this case before that court. As the right reverend Prelate has indicated, this was a unanimous decision. It included Sir Nicolas Bratza, the British judge; and it was a balanced judgment. The Minister has not yet told the House—I should be grateful if he would—why the Government disagree with the decision that legislation is disproportionate if it disqualifies 70,000 convicted prisoners of the right to vote, irrespective of sentence and irrespective of the nature and gravity of the offence. How can that demonstrate a proper sense of proportion?
Lord Filkin:My Lords, now is not the time to engage in the hearing that will go before the Grand Chamber. I shall refer to a specific issue. One of the central arguments given by the court was the recognition of a large measure of discretion for nation states in this respect. While recognising that, the judgment did not appear to apply that test to its own judgment. It did not in any way indicate the limits of the discretion that the court thought would be appropriate.
Lord Dholakia:My Lords, does the Minister accept that the right to vote is fundamental to our democratic values? It is accepted that those who are convicted lose certain rights, but that has nothing to do with control and discipline in prisons. Therefore, it is important that those democratic rights are valued so far as concerns our inmates.
Lord Filkin:My Lords, it is in part because we believe that active participation in democracy is important in our society that the state takes the view, as have many previous governments, that people who, by their actions, have breached that contract should for the limited period that they are in prison lose that right. Of course, the nature of imprisonment is that a person loses a range of rights. That is an unfortunate but necessary part of the prison process.
Lord Avebury:My Lords, does the noble Lord agree that it is not in the nature of imprisonment that a prisoner should lose his rights because, otherwise, that principle would be applied to remand prisoners as well? Can he say which other western European countries adopt a blanket ban on prisoners' voting rights?
Lord Filkin:My Lords, it would take too long to give the full list but I shall write to the noble Lord.
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However, perhaps I can summarise it. Eighteen out of 51 Council of Europe countries have no restrictions; nine have a prohibition on all prisoners; some, like Ireland, while having no legal prohibition, offer no practical rights and therefore, in practice, prisoners are not able to vote; and others have a range of restrictions according to the severity of the sentence. I shall write with full details of all such countries.
Baroness Stern:My Lords, is the Minister aware that the Canadian Supreme Court decided that Canadian prisoners must retain their right to vote because that helps to train them in citizenship and it helps their social reintegration? Does the Minister see any merit in those arguments?
Lord Filkin:My Lords, we are aware of that debate and our position in this respect is quite clear, as is that of both Houses of Parliament. These are not simple issues. Nevertheless, for many years it has been part of our society's tradition that, when people are imprisoned, they lose a range of rights, one of which is the right to participate in elections.

Haskins Report
3.2 p.m.
Lord Renton of Mount Harry Lord Renton of Mount Harry asked Her Majesty's Government:
When they will implement the recommendations in the Haskins report.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty):My Lords, my right honourable friend the Secretary of State hopes to announce shortly our decisions on the report by my noble friend Lord Haskins. It will include how and when the decisions will be implemented.
Lord Renton of Mount Harry:My Lords, I thank the noble Lord for that Answer and declare an interest as chairman of the Sussex Downs Conservation Board. If behind his reply is the fact that the Secretary of State is, as is widely thought, to announce her decisions on the Haskins report on 22 July, the last day on which Parliament meets, I consider that to be quite disgraceful.
The Government had 10 months in which to consider the recommendations of the noble Lord, Lord Haskins, and they gave them a warm welcome at the start. Does the Minister accept that at present no one in either the agricultural or environmental industries knows who is to be responsible for delivery in the years ahead? Is it to be the Countryside Agency, Defra or English Nature? Surely, if they believe in rural proofing, the Government have a duty to respond to the report quickly and not on the last day of the parliamentary Session.
Lord Whitty:My Lords, the noble Lord will be aware that over the decades governments have made

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Statements during the last days of any Session of Parliament. Such Statements have equal validity and carry equal accountability, and noble Lords have the ability to query Statements made at any time during the parliamentary Session. Therefore, I do not think that the word "disgraceful" is appropriate here. These are complex issues. We gave a clear and broad indication of how the delivery structure would be altered in the light of the recommendations from my noble friend Lord Haskins, and the details of that will be conveyed in a Statement shortly.
Lord Livsey of Talgarth:My Lords, will the Minister admit that one reason for the delay is the Chancellor's Comprehensive Spending Review? What impact will the CSR have on the implementation of the Haskins report, given that Defra is subject to cuts in the CSR? How are both the CSR and the Haskins report to be integrated into future government policy?
Lord Whitty:My Lords, Defra is not subject to cuts in the CSR. I thought that it was Liberal Democrat policy, and possibly Tory policy, to cut Defra's budget, but it is certainly not the Government's. The Government have provided additional resources to Defra but the implementation of the Haskins report was not delayed because of the CSR decisions. Through the efficiency arrangements, the CSR provides some additional implementation resources but that is not central to the timing of the decision. It has been a complex matter, involving both serious discussions with staff and very serious discussions with many stakeholders, the details of which will be revealed shortly.
Lord Grantchester:My Lords, does the Minister agree that the most important aspect is to put in place the correct framework for the long term and not to rush ahead with a short-term fix? Is not the best way to approach this matter to put delivery in the context of the rural strategy, reflecting all the changes that the agricultural industry is presently undergoing?
Lord Whitty:Indeed, my Lords. The announcement will be made in that broader context and will not simply be about the mechanisms. The other dimension to the issue, and the most complex, is the need to look at all the funding streams, as well as the machinery, so that we can rationalise and simplify for the benefit of all rural stakeholders the way in which government support rural industry, including agriculture.
Baroness Byford:My Lords, if the Minister cannot agree with my noble friend that the handling of this matter has been disgraceful, will he not at least agree that the Government and his department have dragged their feet on it? The noble Lord, Lord Haskins, hoped that the report would be put before us in April, but we are now in July. I should like to know what is meant by "shortly". Will the Minister tell the House how farmers are supposed to deal with cross-compliance issues when no agency is already set up?
Lord Whitty:My Lords, with regard to the last point, I think that the noble Baroness completely misunderstands the issue. Neither the specialist agencies nor the Rural Payments Agency are affected by the change of structure that we are talking about in relation to cross-compliance, on which an announcement will also be made shortly. As to when "shortly" will be, I cannot say precisely, but the noble Lord, Lord Renton of Mount Harry, was not a million miles away from what noble Lords will find out definitively next week.
The Countess of Mar:My Lords, can the Minister say whether Defra has got past the discussions-about-discussions stage and whether it is now taking part in practical discussions?
Lord Whitty:Yes, my Lords, we are in practical discussions. Clearly, setting up any institutional change within Whitehall also requires ongoing discussions, but they are ongoing discussions aimed at a result.
Baroness Miller of Chilthorne Domer:My Lords, does the Minister agree that local authorities are very well placed to deliver the social and economic side of many of the things that need to be delivered? I think that that point was accepted by the noble Lord, Lord Haskins. Does the Minister also accept that some local authorities in parts of the country where there are many small family farms and people who are particularly affected by CAP reform will need considerably more in the way of resource and government freedom to deliver than perhaps those in the eastern half of the country, which will have a far easier time of it?
Lord Whitty:My Lords, the report of my noble friend Lord Haskins suggests that local authorities and regional bodies should have a greater say and a greater role in delivering policies and guidance to rural business as a whole. However, I shall not be tempted, as the noble Baroness wishes, into suggesting a wholesale redistribution of resources between the east and west of the country, much as I might desire to do so. That is well beyond my remit.
Lord Carter:My Lords, will next week's Statement include an indication of how much will need to be done through primary legislation and, if so, what the likely timescale will be?
Lord Whitty:My Lords, my noble friend really should not ask me a question on the timescale of primary legislation. He is the last person to demand that from the Front Bench. Certainly the full creation of an integrated agency would, at some point, require primary legislation, but much can be done in advance of that.
Lord Renton of Mount Harry:My Lords, perhaps I may make a final point to the noble Lord. I fully understand that, in his position, he is bound to defend the decision to make the announcement on the last day that Parliament sits. However, does he accept that at

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present it looks as though there will inevitably be confusion between the different agencies over the next three years when no one knows precisely who is doing what? This comes at a particularly bad time when the interim review of the common agricultural policy is being implemented, and that is causing enough confusion and doubt in the agricultural industry already.
Lord Whitty:My Lords, I think that the agricultural sector is probably clearer than the noble Lord implied on the direction of change in agricultural policy. Nevertheless there are still details which require clarification and much of that will be done over the next few days and the summer.
The Haskins reforms do not impact on the nature of the CAP reform. They deliver broader measures of support, and to some extent guidance and regulation, to the rural industry as a whole, whereas the CAP reform is primarily about how we support financially land management and farming within this country. Dramatic changes are involved and the agricultural sector is fairly clear about what they are. As I said, the full details will be dealt with separately. However, the decisions on the Haskins report will be announced shortly. I do not think that we will have several months—certainly not years—of uncertainty as to who does what. I hope that clarity will be an objective of the announcement.

City Academies
3.11 p.m.
Baroness Sharp of Guildfordasked Her Majesty's Government:
Whether there is any evidence that city academy status will help regenerate failing inner-city schools.
Baroness Ashton of Upholland:My Lords, academies are addressing deep-seated and longstanding educational failure. It will take time for the new leadership, buildings and curriculum to turn things round. However, of the three academies with GCSE results in 2003, the number of 5A* to C grades rose in two to 21 per cent and 35 per cent respectively from 7 per cent and 25 per cent in 2002, and the other had results broadly comparable with its predecessor schools. Academies are also improving behaviour and attendance.
Baroness Sharp of Guildford:My Lords, I thank the Minister for her reply. Is she aware that in the evidence that he gave to the Select Committee last week, the Secretary of State admitted that with only 12 academies up and running, there was, in his own words, very little evidence to support the success or otherwise of such academies? Is she further aware that an evaluation is promised later this year on the 12 pilots that are up and running? Does she not agree that for a government who pride themselves on evidenced-based policy, it would
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have been sensible to await that evaluation before embarking on a £5 billion expansion programme of city academies?
Baroness Ashton of Upholland:My Lords, I believe that in my reply I agreed with the comments of my right honourable friend the Secretary of State. I gave the evidence to the noble Baroness as we have it. It is important that we have the PricewaterhouseCoopers review and evaluation, but children cannot wait. We have deliberately developed a policy of putting academies into areas of the country where we have the kind of deep-seated educational failure which means that what is offered to our children is simply not good enough. Here is a new mechanism which we believe could inspire greater leadership and better academic attainment and which is important for children now.
Lord Corbett of Castle Vale:My Lords, is my noble friend aware that Castle Vale School in Erdington, my former constituency in Birmingham, which a few years ago became a specialist performing arts college, is now one of the most successful schools among many successful schools in the City of Birmingham? That has been under the inspiring leadership of Mrs Janet Putman, who has been headteacher there for about 11 years and is now to retire. Will my noble friend join me in celebrating that success and agree that inspiring leadership and commitment among the management of any school, whatever is nailed to the front gate, is the key to success?
Baroness Ashton of Upholland:My Lords, I think that all noble Lords will join in the celebration of Mrs Putman's achievements with the school. Every survey that we or Ofsted have undertaken indicates that the quality and strength of leadership is one of the most critical factors in determining the success of a school. It is something to be celebrated and something that every school should have.
The Lord Bishop of Salisbury:My Lords, in view of the withdrawal of the partnership initiatives which have been promised to Church secondary schools, what will the Government offer the Churches in support of their continuing commitment to serving the inner cities' educational needs?
Baroness Ashton of Upholland:My Lords, that is slightly wide of the Question before me. The relationship between Church of England and Church schools and the way in which the Government take forward education policy is a critical factor. I am happy to pursue that with the right reverend Prelate and with the right reverend Prelate the Bishop of Portsmouth in his role as chairman of the Church of England Board of Education.
Baroness Miller of Chilthorne Domer:My Lords, I declare an interest as a Somerset county councillor, although I make it clear that Somerset has no failing schools. What is the rationale employed by the

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Government in enabling someone to take over, for a proportionately small sum of £2 million, a multimillion pound school building and a subsequent school running project, especially as it seems that it will be free from government control? What rationale are the Government following?
Baroness Ashton of Upholland:My Lords, that is not the most accurate description of the way the academies programme will work. I should be happy to give the noble Baroness a more lengthy description. This is about bringing in creative, entrepreneurial aspects to enable schools such as those I have indicated, which have had a succession of failure, to offer something different to help our children to succeed. There is a funding agreement—I have placed a copy in the Library of the House—to ensure that the Government play a key role in ensuring that such schools are run effectively and properly. The academies are inspected, and we have advisers working with them. We have very high aspirations and we expect them to achieve.
Baroness Seccombe:My Lords, have the Government received any representation on the effects of city academies on social deprivation in inner-city areas?
Baroness Ashton of Upholland:My Lords, I do not believe that we have had any representations. I shall write to the noble Baroness if I discover that we have. The academy programme is run in schools in areas of highest deprivation, and therefore provides a new asset for schools. The academies which are open and those which are about to open have received many applications from parents who wish their children to attend. We hope that the academies will succeed in providing a first-class education for our children.
Baroness Carnegy of Lour:My Lords, can the Minister confirm what I believe about city academies; that is, that the secret is not just setting free leadership but enabling the leadership of the school to set free the professionalism of staff in the school to run things in the way they want? I wonder whether the Minister is as sorry as I am that the Liberal Democrats are not keen on that.
Baroness Ashton of Upholland:My Lords, I understand all political views in your Lordships' House and I understand that people may feel nervous about something new in the system. However, we know that uniformity is not always the best approach for our children. We have some very good schools in our system and some excellent teachers. However, over the years some schools have consistently failed our students. We have to ensure that we bring to bear all of the best in our society to support them. The academy model is but one part of the toolkit available to the department to try to support children in all settings.

Private Finance Initiative: Contractor Insolvency
3.18 p.m.
Lord Newbyasked Her Majesty's Government:
What contingency plans they have for the continued provision of public services by a major private finance initiative contractor in the event that such contractor becomes insolvent.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey):My Lords, there are provisions included in PFI contracts that are specifically designed to safeguard the public sector against situations such as contractor insolvency. Where a private sector party cannot meet his obligations, it is the responsibility of other shareholders or credit providers to replace him. In the last resort, the Government have the right to terminate failing PFI contracts with substantial losses to the consortium concerned.
Lord Newby:My Lords, does the Minister agree that if a major PFI contractor such as Jarvis were to go under, some combination of government and other public bodies would have to pick up the pieces; for example to secure the completion of student halls of residence currently under construction for the next academic year? Does that not demonstrate that in reality the Government continue to bear much of the risks of those contracts?
Lord McIntosh of Haringey:No, my Lords. If Jarvis or any other contractor were to fail in its obligations, it is, as I said in my Answer, the responsibility of the other members of the consortium to, as the noble Lord said, pick up the pieces. Of the schools contracts which Jarvis has, only one is Jarvis alone. That is for only three schools and is worth £19 million. All the others have at least Barclays behind them. I do not think that the noble Lord, Lord Newby, will suggest that Barclays will not be able to take up the responsibilities which are imposed on it by the PFI contracts.
Lord St John of Bletso:My Lords, are not most PFI contracts through special purpose companies, which, if properly managed, should isolate 90 per cent of the problem if the contractor becomes insolvent?
Lord McIntosh of Haringey:Yes, my Lords. But it is not 90 per cent; it is 100 per cent. The worst that could happen is that if one member of a consortium became insolvent, there could be delays before the other members of the consortium took up his obligations, which they must do and which is in their interests. The purpose is that all the shareholders in a special purpose vehicle, to which the noble Lord, Lord St John, refers, have the incentives to complete on time and to adequate quality built in upfront in the contract.
Baroness Noakes:My Lords, given that the number of contractors involved in major PFI contracts is

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relatively small, do the Government have procedures for monitoring their financial health so as to be ahead of the game? If not, why not?
Lord McIntosh of Haringey:My Lords, value-for-money analyses are made. I see the point behind the question of the noble Baroness, Lady Noakes. It is true that in previous years we had a public sector comparator which was an assessment of the kind the noble Baroness seeks. But that was brought in rather late and therefore it was not the kind of evaluation for which she rightly asks. The value-for-money studies which are now carried out, and which continue to be carried out by the National Audit Office, give exactly the assurance the noble Baroness seeks.
Lord Oakeshott of Seagrove Bay:My Lords, in view of the widespread public concern about the financial position of Jarvis plc, can the Minister tell us what, on a look-through basis, is the total exposure of the public sector to Jarvis plc contracts?
Lord McIntosh of Haringey:My Lords, it would not be appropriate for me to comment from the Dispatch Box on the finances of Jarvis Plc. On the issue of public exposure, my answers have made it clear that the exposure is of the other members of the consortiums, rather than of the public sector.
Lord Bradshaw:My Lords, is the Minister really satisfied that the refinancing of PFI deals, which is quite common, amply safeguards the public sector, and that it receives a fair share of the better refinancing, which is available when a scheme is completed?
Lord McIntosh of Haringey:Yes, my Lords. The financing of a private finance initiative contract is a matter of legitimate risk. They are about risk management and those who undertake such contracts undertake a risk. If they can then lessen their risk by refinancing, it is legitimate that they should take some part of the benefit of that. But the contracts that have been in place since 2002 ensure that the public sector takes 50 per cent of the benefit of any refinancing.
Lord Selsdon:My Lords, how many PFI projects have been successfully completed and how many have failed? May I remind the Minister that the Government have done a good job because they have succeeded in what we would call "risk transfer"?
Lord McIntosh of Haringey:My Lords, I am grateful for the final remark of the noble Lord, Lord Selsdon. If I were to give the detailed answer to his question, I would keep the House for a very long time. The answers are available on the Treasury website.

Mental Health
3.23 p.m.
The Lord President of the Council (Baroness Amos):My Lords, I beg to move the Motion standing in my name on the Order Paper.
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Moved, That it is expedient that a Joint Committee of Lords and Commons be appointed to consider and report on any draft mental health Bill presented to both Houses by a Minister of the Crown, and that the committee should report on the draft Bill by the end of March 2005.—(Baroness Amos.)
Lord Renton:My Lords, I wonder whether the noble Baroness would be so good as to explain why Clause 217, Schedule 11 and Clauses 218 to 222—
Baroness Amos:My Lords, the noble Lord, Lord Renton, is asking about the next business on the Order Paper.
On Question, Motion agreed to; and a message was ordered to be sent to the Commons to acquaint them therewith.

Housing Bill
3.24 p.m.
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.
Perhaps I can try and pre-empt the question of the noble Lord, Lord Renton. The Government are proposing this order for the sake of convenience. Since the Bill left the other place, and following discussions, we have announced considerable concessions such as the introduction of a tenancy deposit scheme. It will take time for parliamentary counsel to draft that provision. As the Bill will start its passage in this House next week but not finish its Committee stage until September or October, the Bill will have to be reordered. It is therefore convenient to consider the Bill in the proposed order and not to wait on parliamentary counsel to draft the provisions to which we have committed ourselves.
Moved, That it be an instruction to the Committee of the Whole House to which the Housing Bill has been committed that they consider the Bill in the following order:

Clauses 1 to 17,

Schedule 1,

Clauses 18 to 26,

Schedule 2,

Clauses 27 to 30,

Schedule 3,

Clauses 31 to 54,

Clause 217,

Schedule 11,

Clauses 218 to 222,

Clauses 55 to 66,

Schedule 4,

Clauses 67 to 70,

Schedule 5,

Clauses 71 to 115,

Schedule 6,

Clauses 116 to 148,

Schedule 7,

Clauses 149 to 155,

Clauses 157 to 167,

Clauses 172 to 182,

Clause 156,

Clauses 168 to 171,

Clauses 183 to 188,

Schedule 8,

Clauses 189 to 193,

Schedule 9,

Clause 194,

Schedule 10,

Clauses 195 to 216,

Clauses 223 to 226,

Schedule 12,

Clause 227,

Schedule 13,

Clauses 228 to 231.—(Lord Rooker.)

Lord Renton:My Lords, I thank the noble Lord for his explanation. However, taking clauses and schedules out of the order in which they appear in the Bill nearly always creates some confusion. It is much easier to take them in the order in which they appear in the Bill.
Lord Rooker:My Lords, it may be easier, but it is difficult to have proper scrutiny if the content of the clause is not in place when one reaches that point in the Bill. I pay tribute to the noble Lord's work on the conduct and proper design of legislation in the other place and his report of some 30 years ago, and I look forward to his contribution to our debates next week on the matters that we will have ready for debate. However, for good reasons which we have agreed across the House and with the other place, we will not be ready to deal with the concessions that we announced since the other place finished its consideration of the Bill.
On Question, Motion agreed to.

Weapons of Mass Destruction: Intelligence Review
3.26 p.m.
Baroness Amos:My Lords, I should like to repeat a Statement made in another place by my right honourable friend the Prime Minister. The Statement is as follows:
"Lord Butler's report is comprehensive, thorough; and I thank the members of his committee and their staff for all their hard work in compiling it. We accept fully the report's conclusions.
"The report provides an invaluable analysis of the general threat in respect of WMD; of the potential acquisition of WMD by terrorists; and though it devotes much of its analysis to Iraq, it also goes into detail on the WMD threat posed by Iran, Libya, North Korea and AQ Khan. Some of the intelligence disclosed is made available for the first time and gives some insight into the reasons for the judgments I and other Ministers have been making. I hope the House will understand if I deal with it in some detail.
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"The hallmark of the report is its balanced judgments. The report specifically supports the conclusions of Lord Hutton's inquiry about the good faith of the intelligence services and the Government in compiling the September 2002 dossier. But it also makes specific findings that the dossier and the intelligence behind it should have been better presented, had more caveats attached to it, and been better validated.
"It reports doubts which have recently arisen on the 45 minute intelligence and says in any event it should have been included in the dossier in different terms; but it expressly supports the intelligence on Iraq's attempts to procure uranium from Niger in respect of Iraq's nuclear ambitions.
"The report finds that there is little, if any, significant evidence of stockpiles of readily deployable weapons. But it also concludes that Saddam Hussein did indeed have: first,
'the strategic intention of resuming the pursuit of prohibited weapons programmes, including if possible its nuclear weapons programme, when United Nations inspection regimes were relaxed and sanctions were eroded or lifted';
secondly,
'in support of that goal, was carrying out illicit research and development, and procurement, activities, to seek to sustain its indigenous capabilities';
and, thirdly,
'was developing ballistic missiles with a range longer than permitted under relevant United Nations Security Council resolutions'.
"Throughout the last 18 months, throughout the rage and ferment of the debate over Iraq, there have essentially been two questions. One is an issue of good faith, of integrity.
"This is now the fourth exhaustive inquiry that has dealt with this issue. This report, like the Hutton inquiry. like the report of the Intelligence and Security Committee before it and of the Foreign Affairs Committee before that, has found the same thing.
"No one lied. No one made up the intelligence. No one inserted things into the dossier against the advice of the intelligence services. Everyone genuinely tried to do their best in good faith for the country in circumstances of acute difficulty. That issue of good faith should now be at an end.
"But there is another issue. We expected, I expected, to find actual usable, chemical or biological weapons shortly after we entered Iraq. We even made significant contingency plans in respect of their use against our troops. UN Resolution 1441 in November 2002 was passed unanimously by the whole Security Council, including Syria, on the basis that Iraq was a WMD threat.
"Lord Butler says in his report:
'We believe that it would be a rash person who asserted at this stage that evidence of Iraqi possession of stocks of biological or chemical agents, or even of banned missiles, does not exist or will never be found'.

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But I have to accept, as the months have passed, it seems increasingly clear that at the time of invasion Saddam did not have stockpiles of chemical or biological weapons ready to deploy.
"The second issue is therefore this: even if we acted in perfectly good faith, is it now the case that, in the absence of stockpiles of weapons ready to deploy, the threat was misconceived and therefore the war was unjustified?
"I have searched my conscience, not in a spirit of obstinacy but in genuine reconsideration in the light of what we now know, in answer to that question. And my answer would be this: that the evidence of Saddam's weapons of mass destruction was indeed less certain and less well founded than was stated at the time. But I cannot go from there to the opposite extreme. On any basis, he retained complete strategic intent on weapons of mass destruction and significant capability. The only reason he ever let the inspectors back into Iraq was that he had 180,000 US and British troops on his doorstep. He had no intention of ever co-operating fully with the inspectors; and he was going to start up again the moment the troops and the inspectors departed or the sanctions eroded. I say further that had we backed down in respect of Saddam, we would never have taken the stand that we needed to take on weapons of mass destruction, never have got the progress, for example, on Libya that we achieved and we would have left Saddam in charge of Iraq, with every malign intent and capability still in place and every dictator with the same intent everywhere immeasurably emboldened.
"As I shall say later, for any mistakes made, as this report finds, in good faith I of course take full responsibility, but I cannot honestly say that I believe getting rid of Saddam was a mistake at all. Iraq, the region and the wider world is a better and safer place without Saddam.
"The report begins by an assessment of intelligence and its use in respect of countries other than Iraq. It points out that, in respect of Libya, the intelligence has largely turned out to be accurate, especially in respect of its nuclear weapons programmes; and those are now being dismantled. In respect of Iran, the report says that Iran is now engaged with the International Atomic Energy Authority, though there remain,
'clearly outstanding issues about Iran's activities'.
"About North Korea the report concludes that it,
'is now thought to be developing missiles capable of delivering nuclear weapons as far away as continental US and Europe'.
The report goes on at paragraph 99:
'North Korea is a particular cause for concern because of its willingness to sell ballistic missiles to anyone prepared to pay in hard currency'.
The report also discloses the extent of the network of A Q Khan, the Pakistani former nuclear scientist. This network is now shut down, largely through US and UK intelligence work, Pakistani co-operation and the dialogue with Libya.
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"The report then reveals, for the first time, the development of the intelligence in respect of the new global terrorism that we face. In the early years, for example, in the Joint Intelligence Committee assessment of October 1994, the view was that the likelihood of terrorists acquiring or using chemical, biological or nuclear weapons was, while theoretically possible, highly unlikely.
"However, as the name and activities of Osama bin Laden became better known, the JIC started to change its assessment. In November 1998, it said this:
'[UBL] has a long-standing interest in the potential terrorist use of CBR materials, and recent intelligence suggest his ideas about using toxic materials are maturing and being developed in more detail … There is also secret reporting that he may have obtained some chemical and biological material—and that he is interested in nuclear materials'.
And in June 1999:
'Most of UBL's planned attacks would use conventional terrorist weapons. But he continues to seek chemical, biological, radiological and nuclear material and to develop a capability for its terrorist use'.
By mid-July 1999, this view hardened still further. Again, I quote:
'There have been important developments in [Islamist extremist] terrorism. It has become clear that Osama Bin Laden has been seeking chemical, biological, radiological, and nuclear materials … The significance of his possession of CB materials is that, in contrast to other terrorists interested in CB, he wishes to target US, British and other interests worldwide'.
A series of further assessments to the same effect was issued in January 2000, again in August 2000, and in January 2001.
"To anyone who wants to know why I have become increasingly focused on the link between terrorism and weapons of mass destruction, I recommend reading this part of the report and the intelligence assessments received. It was against this background of what one witness to Lord Butler called the 'creeping tide of proliferation' that the events of September 11 2001 should be considered. As the report says, quite rightly, following September 11 the calculus of the threat changed.
"I said in this House on 14 September 2001:
"we know that the terrorists would, if they could, go further and use chemical, biological or even nuclear weapons of mass destruction. We have been warned by the events of 11 September. We should act on the warning'.
"I took the view then, and I stand by it now, that no Prime Minister faced with this evidence could responsibly afford to ignore it. After September 11 it was time to take an active, as opposed to reactive, position on the whole question of weapons of mass destruction. We had to close down the capability of the rogue states, usually highly repressive and unstable, to develop such weapons and the commercial networks such as those of A Q Khan helping them. Again, my clear view was that the country where we had to take a stand was Iraq.
"Iraq was the one country to have used WMD recently. It had developed WMD capability and concealed it. Action by UN inspectors and the International Atomic Energy Authority had by the

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mid to late 1990s reduced this threat significantly; but, as the Butler report shows at paragraphs 180 to 182, by the time the inspectors were effectively blocked in Iraq (at the end of 1998) the intelligence assessments were that some CW stocks remained hidden and that Iraq remained capable of a breakout chemical weapons capability within months, a biological weapons capability, also with probable stockpiles, and could have had ballistic missiles capability in breach of UN resolutions within a year. This, of course, was the reason for military action, taken without a UN resolution, in December 1998.
"Subsequent to that, the report shows that we continued to receive the JIC assessments on Iraq's WMD capability. For example, in respect of chemical and biological weapons, in April 2000 it said:
"Our picture is limited. It is likely that Iraq is continuing to develop its offensive chemical warfare (CW) and biological warfare (BW) capabilities'.
"In May 2001, the JIC assessed, in respect of nuclear weapons:
'Our knowledge of developments in Iraq's WMD and ballistic missile programmes since Desert Fox air operations in December 1998 is patchy. But intelligence gives grounds for concern and suggests that Iraq is becoming bolder in conducting activities prohibited by UN Security Council Resolution 687. There is evidence of increased activity at Iraq's only remaining nuclear facility and a growing number of reports on possible nuclear related procurement'.
"In February 2002, the JIC said:
'Iraq … if it has not already done so, could produce significant quantities of BW agent within days'.
"The report specifically endorses the March 2002 advice to Ministers, which states that though containment had been partially successful and intelligence was patchy, Iraq continues to develop WMD. It said:
'Iraq has up to 20 650km range missiles left over from the Gulf War. These are capable of hitting Israel and the Gulf states. Design work for other ballistic missiles over the UN limit of 150km continues. Iraq continues with its BW and CW programmes and, if it has not already done so, could produce significant quantities of BW agents within days and CW agent within weeks of a decision to do so'.
"The report goes on:
'We believe it could deliver CBW by a variety of means, including in ballistic missile warheads. There are also some indications of a continuing nuclear programme'.
"The point I would make is simply this. The dossier of September 2002 did not reach any startling or radical conclusion. It said, in effect, what had been said for several years based not just on intelligence, but on frequent UN and international reports. It was the same conclusion, indeed, that led us to military action in 1998; to maintain sanctions; and to demand the return of UN inspectors.
"We published the dossier in response to the enormous parliamentary and press clamour. It was not, as has been described, the case for war, but it was the case for enforcing the United Nations' will. In retrospect, it has achieved a fame it never achieved at the time. As the report states at paragraph 310:
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'It is fair to say at the outset that the dossier attracted more attention after the war than it had done before it. When first published, it was regarded as cautious, and even dull. Some of the attention that it eventually received was the product of controversy over the Government's further dossier of February 2003'.
"It goes on to say:
'Some of it arose over subsequent allegations that the intelligence in the September dossier had knowingly been embellished, and hence over the good faith of the Government. Lord Hutton dismissed those allegations. We should record that we, too, have seen no evidence that would support any such allegations'.
"The report, at paragraph 333, states that in general the statements in the dossier reflected fairly the judgments of past JIC assessments. The report, however, goes on to say that, with hindsight, making public that the authorship of the dossier was by the JIC was a mistake. It meant that more weight was put on the intelligence than it could bear and put the JIC and its chairman in a difficult position.
"It recommends in future a clear delineation between government and JIC, perhaps by issuing two separate documents. I think that is wise, though I doubt it would have made much difference to the reception of the intelligence at the time. The report also enlarges on the criticisms of the ISC in respect of the greater use of caveats about intelligence both in the dossier and in my foreword, and we accept that entirely.
"The report also states that significant parts of the intelligence have now been found by SIS to be in doubt. The chief of SIS, Sir Richard Dearlove, has told me that the SIS accepts all the conclusions and recommendations of Lord Butler's report that concern the service. The SIS will fully address the recommendations that Lord Butler has made about its procedures and about the need for the service properly to resource them. The service has played, and will continue to play, a vital role in countering worldwide the tide of proliferation of weapons of mass destruction. Indeed, its successes are evident in Lord Butler's report.
"I accept the report's conclusions in full. Any mistakes made should not be laid at the door of our intelligence and security community. They do a tremendous job for our country. I accept full personal responsibility for the way the issue was presented and therefore for any errors that were made. As the report indicates, there is no doubt that at the time it was genuinely believed by everyone that Saddam had both strategic intent in respect of WMD and actual weapons.
"I make this further point. On the sparse, generalised and highly fragmented intelligence about Al'Qaeda prior to September 11, it is now widely said that policy-makers should have foreseen the attacks that materialised on September 11 2001 in New York. I only ask: had we ignored the specific intelligence about the threat from Iraq, backed up by a long history of international confrontation over it, and that threat later materialised, how would we then have been judged?

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"I know some will disagree with that. There are those who were opposed to the war, remain so now and will forever be in that position. I only hope that now, after two detailed parliamentary committee reports, a judicial inquiry more exhaustive than any has ever been in examining an allegation of impropriety against government, and now this voluminous report, people will not disrespect the other's point of view, but will accept that those who agree and those who disagree about the war in Iraq hold their views not because they are warmongers on the one hand, or closet supporters of Saddam on the other, but because of a genuine difference of judgment as to the right thing to have done.
"There was no conspiracy. There was no impropriety. The essential judgment and truth, as usual, does not lie in extremes. We all of us acknowledge Saddam was evil and his regime depraved. Whether or not actual stockpiles of weapons are found, there was not and is not any doubt that Saddam used weapons of mass destruction and retained every strategic intent to carry on developing them. The judgment is this: would it have been better or more practical to have contained him through continuing sanctions and weapons inspections; or was that inevitably going to be at some point a policy that failed? Was removing Saddam a diversion from pursuing the global terrorist threat, or part of it?
"I can honestly say that I have never had to make a harder judgment. But in the end, my judgment was that after September 11 we could no longer run the risk; that instead of waiting for the potential threat of terrorism and weapons of mass destruction to come together, we had to get out and get after it. One part was removing the training ground of Al'Qaeda in Afghanistan. The other was taking a stand on WMD; and the place to take that stand was in respect of Iraq, whose regime was the only one ever to have used weapons of mass destruction and was subject to 12 years of UN resolutions and weapons inspections that turned out to be unsatisfactory.
"Though in neither case was the nature of the regime the reason for conflict, it was decisive for me in the judgment as to the balance of risk for action or inaction. Both countries, Afghanistan and Iraq, now face an uncertain struggle for the future, but both at least now have a future. The one country in which you will find an overwhelming majority in favour of the removal of Saddam is Iraq.
"I am proud and remain proud; was proud and remain proud of this country and the part it played, especially our magnificent Armed Forces, in removing two vile dictatorships and giving people who were oppressed, almost enslaved, the prospect of democracy and liberty. This report will not end the arguments about the war, but in its balance and common sense it should at least help to set them in a more rational light; and for that we should be grateful".
My Lords, that concludes the Statement.
3.50 p.m.
Lord Strathclyde:My Lords, first, on behalf of the whole House, I thank the noble Baroness the Leader of the House for repeating the Statement.
It is a long Statement, and much of it deals with various generalities, as well, of course, as the outstanding performance of our troops and the justification for war. We agreed with the justification for the war, and we still agree with it. I reiterate our support for removing Saddam. However, the issue before us is not the war but the conduct of government and whether proper use was made of intelligence. I shall not respond to the rhetorical bulk of the Statement. Much of it smacked of the idea that the end justified the means. That is never a safe doctrine for a parliamentary democracy. The tragedy is that, although the Government had a good case for war, the way in which it was argued—as exposed, once again, in this outstanding report, which has found serious flaws in intelligence and its uses—has weakened that good case and damaged the credibility of the Prime Minister in the country.
I said that it was an outstanding report, and I pay tribute to the noble Lord, Lord Butler of Brockwell, and his committee for their work.
The report demonstrates unequivocally—the Prime Minister has accepted this—that the Prime Minister went, in his certainties, far beyond what the intelligence would bear. I shall give one example. On 21 August 2002, the JIC said:

"We have little intelligence … and know little about Iraq's chemical and biological weapons work since late 1998".
On 9 September 2002, it said, "Intelligence remains limited". That is what the JIC told the Prime Minister. However, in his foreword to the September dossier, the Prime Minister said:
"I am in no doubt that the threat is serious and current".
He also said that,
"the assessed intelligence has established beyond doubt … that Saddam has continued to produce chemical and biological weapons".
Can the noble Baroness explain the contrast? What led the Prime Minister so to alter the emphasis? Was he told to write that, or were they his own words, written in full knowledge of the caveats and conditions surrounding the intelligence?
The conclusion reached by the noble Lord, Lord Butler of Brockwell, is stark:
"it was a serious weakness that the JIC's warnings on the limitations of intelligence underlying its judgments were not made sufficiently clear".
Does the noble Baroness agree with that conclusion? The noble Lord suggested at his press conference this afternoon that the Government wanted the dossier as a document to back up their evolving policy. That put the JIC under what the noble Lord called "strain". He said that the 45-minute claim should not have been included in the dossier without qualifications. Can the noble Baroness tell the House who took the decision that it should be highlighted by the Prime Minister in that way? We were told time and again that the dossier

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attracted little attention. It is strange, then, that I am the only one who recalls the splashed headlines and the diagrams showing the great ballistic threat.
The Prime Minister has said that he did not know until later that Iraq did not have ballistic weapons. He said that he acted in good faith over the 45-minute claim. But he was preparing our forces for war. Why did he not know that the adversaries that they were being sent against did not have the capability that he had told the country they had? Did he not ask?
Like many others, I am concerned about the picture of government presented in the report and about the informal nature of this Government. There were meetings without papers and meetings without minutes or recorded conclusions. The noble Lord, Lord Butler of Brockwell, said that he had found no evidence of the Government planning to exaggerate the case for war. In such a context, is it possible that there may have been meetings and conversations of which no record was kept?
I turn finally to the role of the Attorney-General, the noble and learned Lord, Lord Goldsmith, who is in his place today. The noble Lord, Lord Butler of Brockwell, makes it clear that he did not examine the legal aspects of the noble and learned Lord's advice. How many opinions did the noble and learned Lord give? That matter remains obscure, even after the Butler report. Paragraph 374 says that, before Resolution 1441 was adopted, the noble and learned Lord the Attorney-General said:
"on the basis of the information he had seen, there would be no justification for the use of force against Iraq on grounds of self-defence against an imminent threat".
Later, we are told that the noble and learned Lord had a meeting with the Prime Minister's chief of staff and the noble Baroness, Lady Morgan of Huyton, about his view of the legal position. They asked him to provide a further assessment. According to paragraph 379, he said that, in the absence of a second UN resolution, the Prime Minister must be satisfied that Iraq failed to take the final opportunity to comply with Resolution 1441.
We read of a further meeting with the noble and learned Lord, Lord Falconer of Thoroton, who was not, at that time, Lord Chancellor, and the noble Baroness, Lady Morgan of Huyton, on 13 March and then a formal request from the Attorney-General's office for the Prime Minister to say that it was unequivocally his view that Iraq had committed further breaches. On 15 March, No. 10 Downing Street replied:
"It is indeed the Prime Minister's unequivocal view that Iraq is in further material breach of its material obligations".
In other words, it appears that the Prime Minister himself certified the legal case for war.
The noble Lord, Lord Butler of Brockwell, did not examine in detail the legal aspects of the case. Is there any reason, given the partial light thrown on this by the Butler report, why the noble and learned Lord the Attorney-General should not come to the House tomorrow and explain the full background of the paragraphs? In particular, can the noble Baroness tell
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the House whether the intelligence evidence played any part in the Attorney-General changing the advice that he gave to the Government between January and March? If the noble Baroness cannot answer that today, perhaps she would help to persuade the noble and learned Lord the Attorney-General to offer some clarification to the House tomorrow. I know that the whole House would find that most interesting and welcome.
3.57 p.m.
Baroness Williams of Crosby:My Lords, I too thank the noble Baroness the Leader of the House for repeating the Statement made in another place by the Prime Minister. I also congratulate the noble Lord, Lord Butler of Brockwell, on a detailed and careful report. However, I must add, with regret, that once again, as with the Hutton inquiry, the terms of the remit given to the noble Lord's inquiry were so tightly drawn that the key questions that the House would like answered could not be answered by the noble Lord, Lord Butler of Brockwell, if he stayed within his remit. The key questions remain. Who made the decision to propose to Parliament that we should go to war? Who decided that shaky intelligence should be strengthened and firmed up, with all the conditions and qualifications left behind? Those are the key questions, and the noble Lord, Lord Butler of Brockwell, was precluded from answering them, as the noble and learned Lord, Lord Hutton, was before him.
First, I must draw the attention of the House to the remarkable change in the Prime Minister's stance between November 2000 and the autumn of 2002, a mere two years later. On 1 November 2000, the Prime Minister said:
"We believe that the sanctions regime has effectively contained Saddam Hussein in the last 10 years".—[Official Report, Commons, 1/11/2000; col. 511W.]
A year and a half later—24 September 2002—the Prime Minister said:
"The policy of containment is not working".—[Official Report, Commons, 24/9/02; col. 3.]
Between those two dates, two major things occurred: there was a report by UNMOVIC, the inspectors in Iraq, and a report by Hans Blix, both confirming that the threat had become less and not more.
Paragraph 427 of the Butler report states:
"The Government's conclusion in the spring of 2002 that stronger action (although not necessarily military action) needed to be taken to enforce Iraqi disarmament was not based on any new development in the current intelligence picture on Iraq".
First, what happened between autumn 2000 and autumn 2002? There was no change in Iraq's threat to the world or any change in the policy of containment. But, quite simply, there was a meeting between the Prime Minister and President Bush, of which we have not been told and of which we know little; either when it occurred or what occurred during it. Surely, that meeting must have had some influence on the quite remarkable change in the position not just of the Government but the whole of the government machine.

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Secondly, would Parliament have taken us to war in March 2003 if it had known that the intelligence was based on uncertain sources; if it had known that that intelligence was assessed in a very doubtful way; if it had known that some of those statements made on behalf of the Government were exaggerated and that qualifications and modifications had been removed? It is clear from paragraph 555 and other parts of the Butler report that those qualifications had gone.
Would Parliament have agreed to take us to war if it had known, as the noble Lord, Lord Strathclyde, pointed out, that the Attorney-General produced new and revised advice on 17 March following an unequivocal assurance from the Prime Minister that Iraq was in material breach of Resolution 1441? Would Parliament have taken us to war if it had seen the assessments made by no less a body than the Joint Intelligence Committee? There was assessment after assessment between October 2002 and March 2003 indicating that Iraq was not a serious and current threat. There were reports that were never published, never shown to MPs and never shown to Parliament as a whole; reports that very clearly undermine the case for war.
Finally, we turn to the question of who is responsible—that illusive question that the inquiry conducted by the noble Lord, Lord Butler, was unable to address. Who is responsible? Was it the virtual government of Mr Jonathan Powell and Mr Alastair Campbell? Was it the intelligence community? Was it perhaps the elected politicians in Cabinet, including the Prime Minister, who are meant to be responsible for the major policy decisions?
We still have not been told. To me it is a tragedy that we will now wait yet again on the Senate of the United States to show the clear line of accountability between how that decision to go to war was taken and how, thousands of lives and much destruction later, we have still not seriously addressed the question.
4.3 p.m.
Baroness Amos:My Lords, first, perhaps I may say to the noble Lord, Lord Strathclyde, and the noble Baroness, Lady Williams, that I am aware that they did not have access to the report until 12.30 p.m. Some of what is being said today is, in my view, partial. A complete reading of the document demonstrates that the report is comprehensive, balanced and thorough. Some of the views that have been expressed by the noble Lord, Lord Strathclyde, and the noble Baroness, Lady Williams, are not borne out by a thorough reading of the report. I would recommend to all Members of this House that they read the report from beginning to end.
With respect to the question raised by the noble Baroness, Lady Williams, in relation to the intelligence material and what had changed, the noble Baroness is well aware of what changed. The context in which we discussed those issues changed fundamentally after September 11. The Statement makes that absolutely clear. Indeed, a reading of the report and, in particular, the intelligence material in relation to that period
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makes that absolutely clear, as does the knowledge that terrorists were doing everything that they could to get hold of WMD. Again, that is factually borne out by the report.
The report and the Statement have tried absolutely clearly to put the discussions and decisions that were made in relation to Iraq in their proper context. That is something of which we should all be aware and something that we should all remember to do.
With respect to the issue of the legal basis for the war, I think that my noble and learned friend the Attorney-General has answered the questions that were asked of him in relation to that. I hope that in again asking those questions the integrity of my noble and learned friend was not being called into question.
To help the House, perhaps I may repeat where we stand. In the report, it is made very clear that the advice of my noble and learned friend was not based on WMD-related intelligence. I would direct noble Lords to paragraph 379 of the report. My noble and learned friend confirmed in this House, including on 21 March when he explained his view to the House, that it was his independent view that military action was justified.
The Butler report confirms, as my noble and learned friend has always maintained, that his advice, which the noble Lord's review saw, was based on the interpretation of relevant Security Council resolutions and negotiating history in the United Nations and, I repeat, not on WMD-related intelligence. So the lawfulness of the conflict is not undermined by the failure to find WMD or by any reassessment of the intelligence. It could not be clearer.
A question was also raised with respect to the use that was made of the dossier. When noble Lords look at the report in detail, I invite them to read the footnote on page 127 where the inquiry team makes it clear that it,
"wrote to some 60 Editors of national and regional print and broadcast media to ask them if they had been briefed by representatives of the Government about the dossier immediately prior to its publication or whether, post-publication, they were guided to report particular aspects, such as the '45 minute' story. All of those who replied said that they had not been guided to particular parts of the dossier prior to its publication … Some Editors noted that the '45 minute' story attracted attention because it was of itself an eyecatching item in a document containing much that was either not new or rather technical in nature".
Perhaps I may say to the noble Baroness, Lady Williams, that on 26 September 2002, in the Western Morning News, the Leader of the Liberal Democrats in another place, said:
"There is no killer fact in the dossier. It is more a confirmation of what we already knew".
Again, before the dossier was published, on 23 March 2002 the shadow Foreign Secretary said:
"The Iraqi threat is indisputable. Horrific weapons of mass destruction in the hands of a despot who will use them or give them to others to use in every part of the world. Our shared objective is the destruction of these weapons before they can be used. The means of achieving it must be effective and enduring. We cannot rule any option out".

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In conclusion, with regard to the comments which have been made about the nature of government, the so-called informality of the Government, and the fact that meetings are held which are not minuted, we all know that if you are to have effective government, you need to operate in a variety of different ways. Those noble Lords opposite who may remember a time when they were in government might recall occasions when it was necessary to hold informal meetings before they then had formal meetings.
I say this to the House: the Butler report makes it absolutely clear that the Cabinet discussed these issues on 24 occasions. As noble Lords know, the Cabinet is always minuted.
4.6 p.m.
Lord Lawson of Blaby:My Lords, this is a sorry occasion. Reverting to the last reply given by the noble Baroness the Leader of the House, I am among those who have been in government and served in a Cabinet for a considerable time. I can say that the strictures—which they are, albeit in restrained terms—made in the Butler report at paragraphs 6.06 to 6.11, although not exclusively there, on the way that this administration conducts the procedures and processes of government is something that did not apply to any administration in which I have served.
I ask the noble Baroness whether she is aware that this is a serious matter. Throughout the over-long Statement of the Prime Minister, repeated by the noble Baroness, there was no acknowledgment of that whatever. When is this very important issue going to be addressed, and how?
Baroness Amos:My Lords, perhaps the noble Lord did not hear everything I said in the Statement, where it was made absolutely clear that we accept the report and the recommendations made in it. Perhaps I may also say to the noble Lord that at his press conference this morning the noble Lord, Lord Butler, was asked a specific question about the style of government. I watched it. The noble Lord said that the overall effect of the way the Government operated in no way made them any less efficient. Noble Lords should read what is in the report and listen to the words of the noble Lord, Lord Butler.
Lord Wright of Richmond:Lord Wright of Richmond: My Lords—
Lord Archer of Sandwell:Lord Archer of Sandwell: My Lords—
Baroness Crawley:Baroness Crawley: My Lords, there is plenty of time for everyone to speak.
Lord Archer of Sandwell:My Lords, I declare an interest as a member of the Intelligence and Security Committee. Can my noble friend confirm that the only substantive criticism of the dossier made in the report is that it failed adequately to emphasise, for the benefit of those who did not already know, that intelligence by its very nature is incomplete and frequently tentative? Can
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she further confirm that this is the first occasion ever on which a government have made public information from the JIC? Would it not be surprising if this first attempt at transparency did not give rise to some lessons?
Baroness Amos:My Lords, my noble and learned friend is absolutely right. Perhaps I may say in relation to his final point about transparency that, having watched governments operate over many years, no government have sought to be as transparent and as open with their people as this Government have sought to be.
Lord Wright of Richmond:My Lords, I have not yet had the opportunity to read the Butler report in full, but as a former chairman of the Joint Intelligence Committee and as a Member of this House who has strongly questioned and still questions the case for going to war in Iraq, I should like to make a few brief points.
First, it is quite clear from what I have read of the Butler report that the process of assessing and publicising intelligence in the case of Iraqi weapons of mass destruction, and therefore of the imminence of an Iraqi threat, was flawed.
Secondly, the role and involvement of political advisers and No. 10 press officers in the process of intelligence assessment and in producing the flawed dossier was unwise and led to pressure, perhaps unconscious pressure or strain, on the intelligence services to support the case for war. I am surprised that neither the noble and learned Lord, Lord Hutton, nor, so far as I know, the noble Lord, Lord Butler, has drawn particular attention to Mr Jonathan Powell's e-mail, in which he is reported to have complained that the first draft of the dossier was inadequate to support the Government's case for going to war.
Thirdly, this House was repeatedly assured by Ministers that no decisions to go to war had been taken. Indeed, I was assured privately by a Minister, within weeks of military action, that we would not go to war without a second United Nations resolution. But it has long been clear from Bob Woodward's books, as I have reminded this House several times, that a decision had been taken by senior members of the United States Administration as early as four years ago, if not earlier, that an early and imminent invasion of Iraq was desirable and necessary, and that the events of September 11 in the following year were used improperly and dishonestly as a justification for going to war.
Little attempt has been made either by the United States Government or by the British Government to correct the widespread belief in the United States that Saddam Hussein was behind the attack on the twin towers. I share the regret expressed by the noble Lord, Lord Strathclyde, that the Attorney-General's confidential advice has still not been published, when a great deal of information has been revealed which in my day would have been—
Baroness Crawley:My Lords, perhaps the noble Lord, Lord Wright, could frame a question.
Lord Wright of Richmond:My Lords, I beg the pardon of the House. I do not deny that Iraq may now

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be a better place without Saddam, but let us not forget that the removal of Saddam was never given by Her Majesty's Government as the justification for war. On the contrary, we were told again and again that it was not the policy of Her Majesty's Government to change other people's governments. Is that still the policy of Her Majesty's Government?
Baroness Amos:My Lords, the noble Lord, Lord Wright, is correct. What the report does is to flag up places where the process is flawed. In his press report, the noble Lord, Lord Butler, spoke of the 45 minutes claim, saying that it was an uncharacteristically poor piece of assessment. The report makes it absolutely clear that there are some flaws in the process, that these need to be addressed urgently and that there is a great deal of learning to be done within that. The report goes into a great deal of detail. The four case studies used at the beginning of the report—in particular in relation to Iran, AQ Khan, Libya and North Korea—establish the context in which this work was being developed.
I cannot accept the point made by the noble Lord, Lord Wright, as regards pressure being put on the intelligence community or on the Joint Intelligence Committee, and the Butler report is absolutely clear on that point.
Turning to the issue of the second UN resolution, at the time I was myself a Minister at the Foreign Office. We worked assiduously to get a second UN resolution, but it was absolutely clear that a resolution which contained within it any kind of ultimatum with respect to the length of time that was going to be available to Iraq would not pass. That was the point at which our strategy needed to be revised.
Baroness Ramsay of Cartvale:My Lords, will my noble friend the Leader of the House join me in welcoming this very comprehensive and good report from the noble Lord, Lord Butler? In particular, will she join me in welcoming the fact that there was nothing in respect of this report which calls into question the legality of the war?
I draw attention to the fact that in paragraph 379 the report recognises that the Attorney-General's advice was,
"based on the legal interpretation of relevant United Nations Security Council resolutions and negotiating history in the United Nations, and not on WMD-related intelligence".
If the violation of 16 Chapter 7 UN resolutions is not legal justification for military action, I do not know what is.
Does my noble friend agree that, although the report found deficiencies in the validation process of some Iraqi intelligence, the fact that it concluded that the four case studies made of Libya, Iran, North Korea and AQ Khan were all success stories for the SIS demonstrates that the doubts cast on the overall efficiency and performance of the SIS are misplaced? Certainly that is not the opinion of the report.
Baroness Amos:My Lords, my noble friend is right. The report points clearly to the four success stories
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used as case studies. My noble friend is also right to point the House in the direction of recognising the professionalism and good work of our intelligence services.
Let me remind the House of UN Security Council Resolution 1441. It decided that,
"Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687 (1991), in particular through Iraq's failure to cooperate with United Nations inspectors and the IAEA, and to complete the actions required under paragraphs 8 to 13".
That resolution was passed unanimously by the Security Council.
My noble friend Lady Ramsay is quite right to say that the report in no way calls into question the legality of the war. Paragraph 379 sets out absolutely clearly the basis on which my noble and learned friend the Attorney-General gave advice.
The Lord Bishop of Salisbury: My Lords, if I am right about what the Minister said, the Prime Minister is quoted as saying,
"For my mistakes, I take full responsibility".
In a case such as this, where a considerable amount of damage has been done to our credibility as a country in terms of truth telling and the public accountability of our institutions, it is quite important to have those words in the report. There clearly is more to be learnt; I hope that in due course we shall have answers to some of the questions raised by the noble Lord, Lord Strathclyde, and the noble Baroness, Lady Williams.
However, at a fundamental level, it is most important that the House should hear unequivocal answers to major questions about the order in which events took place; just where people changed their minds and just where the Prime Minister was responding to invitations, not only from within our own intelligence services but from other parts of the world, to change his mind. I think it is always helpful if people can be persuaded to say whether they are going to change their minds. Can the Minister tell the House just when any of these changes of mind took place?
Baroness Amos:My Lords, as has been said by myself and my noble friend Lady Symons on many occasions when answering questions on Iraq, we are well aware that there are differing points of view about the war. It has been made absolutely clear in the Statement that we need to respect the fact that people come to this issue from different positions. We have now had four reports and everyone is looking for something to answer the questions that they have in their minds which they feel have not been answered by the Hutton report, by the Butler report, by the ISC report or by the report of the Foreign Affairs Select Committee.
It is clear from all four reports that there are lessons that the Government need to learn and take on board but, as regards the questions that have been raised about the integrity and honesty of the Government in respect of the case that we made to go to war in Iraq,

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it is absolutely clear that the Prime Minister and the Government acted with integrity. The Butler report and the Hutton report make that absolutely clear and the question was not raised in the parliamentary committee reports. When will the House and those who did not agree with the action that was taken accept that fact?
Lord Garden:My Lords, does the Leader of the House accept that, while we do not necessarily question integrity, we do question judgment? There is now an excellent report from the noble Lord, Lord Butler, which shows that containment in March 2003 was operating satisfactorily; Iraq was not at that time a threat to the United Kingdom, its citizens or even to the region. And yet we sent everything we had—
Baroness Gibson of Market Rasen:Baroness Gibson of Market Rasen: My Lords, I really do feel—
Noble Lords:Noble Lords: Order!
Lord Garden:My Lords, we sent 43,000 of our soldiers, sailors and airmen to kill or be killed into—
Baroness Gibson of Market Rasen:Baroness Gibson of Market Rasen: My Lords—
Noble Lords:Noble Lords: Order!
Baroness Gibson of Market Rasen:My Lords, noble Lords do intervene. I feel strongly about this issue.
Baroness Crawley:My Lords, as the House will know, it is absolutely in order to make a brief comment, followed by a question or a number of questions. I am sure that we shall be as brief as we can be.
Lord Garden:My Lords, we sent 43,000 troops to kill or be killed and yet the report makes it clear that we did not look again at the intelligence when Hans Blix was in the country and able to give us up-to-date information. Does the Minister think that we should have reassessed the intelligence before the eleventh hour in March 2003?
Baroness Amos:My Lords, the noble Lord will be aware that the JIC makes reassessments of its intelligence all the time. That is the way in which it operates. As to the wider question raised by the noble Lord, I draw his attention to paragraph 474 on page 116 of the report, which refers to the validation of the intelligence. The report states:
"we have reached the conclusion that prior to the war the Iraqi regime … Had the strategic intention of resuming the pursuit of prohibited weapons programmes, including if possible its nuclear weapons programme, when United Nations inspection regimes were relaxed and sanctions were eroded or lifted … In support of that goal, was carrying out illicit research and development … Was developing ballistic missiles with a range longer than permitted under relevant United Nations Security Council resolutions".
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That is the conclusion of the Butler report on the validation of intelligence.
Lord Judd:My Lords, does my noble friend agree that paragraph 584 of this excellent report deserves careful consideration? It states that,
"much of what was reliably known about Iraq's unconventional weapons programmes in the mid- and late-1990s was obtained through the reports of the UN Special Commission (UNSCOM) and of the International Atomic Energy Agency".
That paragraph goes on to say that the work of those agencies has perhaps been underestimated in the past and that due weight should be given to it in future. More support should be given to them with the support of our intelligence agencies. Does not my noble friend agree that that paragraph gives ground for considerable reflection on just how seriously we took the work of Hans Blix and the UN inspectors at the time or how far, rather, we chose to push it to one side because of our own priorities in government?
Baroness Amos:My Lords, I agree with one part of my noble friend's comment, but not with the other. I entirely agree with him about the importance of the UN mechanisms. The Government have always upheld them. However, I must tell my noble friend, with respect to the judgment made about containment, that it was at the time and remains our firm view—indeed, in the light of the paragraph from the Butler report that I cited about the validation of intelligence, it is clear—that containment was not working. Concern was being expressed not just by our Government or by that of the United States but by others around the world about what Saddam Hussein intended to do. In that respect, I do not agree with my noble friend.
Lord King of Bridgwater:My Lords, does not the noble Baroness recognise that her plea for the matter now to be closed will simply not be recognised by the general public, especially because of the limited, restricted terms of reference, to which the noble Lord, Lord Butler, properly stuck? I did not hear a clear answer to my noble friend's question from the Front Bench about whether the Attorney-General would come to make a statement on the matter. The noble Lord, Lord Butler, made clear that he had not pursued that matter; the committee did not consider the question of the legality of the war. Likewise, the role of government was likewise more circumscribed in the terms of reference.
Even given his limited terms of reference, the noble Lord, Lord Butler, found that there were serious failings for which there was collective responsibility. Who takes collective responsibility in this Government?
Baroness Amos:My Lords, first, I think that the noble Lord, Lord King, cannot have heard what I said. I in no way said that the issue is closed. I said that those who had not been in favour of action—indeed, even some of those who had been in favour of action—wanted any number of inquiries to address the particular points that they considered relevant, which

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they did not consider had been answered in the reports. The reports have collectively made it absolutely clear that in no sense did the Government act in bad faith. So those who are looking for some kind of ammunition will not find it. I did not say that the case is closed. I said that there have been four reports on the issue and that at some point we have to agree, when considering what has been said collectively through the reports, that the questions raised have been addressed.
I think that we have addressed the specific point about my noble and learned friend the Attorney-General. My noble and learned friend made a written Statement. My right honourable friend the Secretary of State for Foreign and Commonwealth Affairs elaborated on that Statement in another place, and that was repeated in this House. There will not be a further Statement from my noble and learned friend.

Asylum and Immigration (Treatment of Claimants, etc.) Bill
4.34 p.m.
Lord Filkin:My Lords, I beg to move that the Commons amendments be now considered.
Moved accordingly, and, on Question, Motion agreed to.

COMMONS AMENDMENTS
[The page and line references are to HL Bill 36, the Bill as first printed for the Lords.]

LORDS AMENDMENT
28 Clause 14, page 13, line 22, leave out subsections (6) and (7) and insert—
"(6) Before section 104 of that Act (pending appeal) insert—

103A Review of Tribunal's decision
A party to an appeal under section 82 or 83 may apply to the appropriate court, on the grounds that the Tribunal made an error of law, for an order requiring the Tribunal to reconsider its decision on the appeal.

The appropriate court may make an order under subsection (1)—

only if it thinks that the Tribunal may have made an error of law, and

only once in relation to an appeal.

An application under subsection (1) must be made—

in the case of an application by the appellant made while he is in the United Kingdom, within the period of 10 working days beginning with the date on which he is treated, in accordance with rules under section 106, as receiving notice of the Tribunal's decision, and

in the case of an application by the appellant made while he is outside the United Kingdom, within the period of 28 days beginning with the date on which he is treated, in accordance with rules under section 106, as receiving notice of the Tribunal's decision, and

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in the case of an application brought by a party to the appeal other than the appellant, within the period of 10 working days beginning with the date on which he is treated, in accordance with rules under section 106, as receiving notice of the Tribunal's decision.

But—

rules of court may specify days to be disregarded in applying subsection (3)(a), (b) or (c), and

the appropriate court may permit an application under subsection (1) to be made outside the period specified in subsection (3) where it thinks that the application could not reasonably practicably have been made within that period.

An application under subsection (1) shall be determined by reference only to written submissions of the applicant.

A decision of the appropriate court on an application under subsection (1) shall be final.

In this section a reference to the Tribunal's decision on an appeal does not include a reference to—

a procedural, ancillary or preliminary decision, or

a decision following remittal under section 103B, 103C or 103E.

This section does not apply to a decision of the Tribunal where its jurisdiction is exercised by three or more members.

In this section "the appropriate court" means—

in relation to an appeal decided in England or Wales, the High Court,

in relation to an appeal decided in Scotland, the Court of Session, and

in relation to an appeal decided in Northern Ireland, the High Court in Northern Ireland.

An application under subsection (1) to the Court of Session shall be to the Outer House.

103B Appeal from Tribunal following reconsideration
Where an appeal to the Tribunal has been reconsidered, a party to the appeal may bring a further appeal on a point of law to the appropriate appellate court.

In subsection (1) the reference to reconsideration is to reconsideration pursuant to—

an order under section 103A(1), or

remittal to the Tribunal under this section or under section 103C or 103E.

An appeal under subsection (1) may be brought only with the permission of—

the Tribunal, or

if the Tribunal refuses permission, the appropriate appellate court.

On an appeal under subsection (1) the appropriate appellate court may—

affirm the Tribunal's decision;

make any decision which the Tribunal could have made;

remit the case to the Tribunal;

affirm a direction under section 87;

vary a direction under section 87;

give a direction which the Tribunal could have given under section 87.

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In this section "the appropriate appellate court" means—

in relation to an appeal decided in England or Wales, the Court of Appeal,

in relation to an appeal decided in Scotland, the Court of Session, and

in relation to an appeal decided in Northern Ireland, the Court of Appeal in Northern Ireland.

An appeal under subsection (1) to the Court of Session shall be to the Inner House.

103C Appeal from Tribunal instead of reconsideration
On an application under section 103A in respect of an appeal the appropriate court, if it thinks the appeal raises a question of law of such importance that it should be decided by the appropriate appellate court, may refer the appeal to that court.

On a reference under subsection (I) the appropriate appellate court may—

affirm the Tribunal's decision;

make any decision which the Tribunal could have made;

remit the case to the Tribunal;

affirm a direction under section 87;

vary a direction under section 87;

give a direction which the Tribunal could have given under section 87;

restore the application under section 103A to the appropriate court.

In this section—
"the appropriate court" has the same meaning as in section 103A, and
"the appropriate appellate court" has the same meaning as in section 103B.

A reference under subsection (1) to the Court of Session shall be to the Inner House.

103D Reconsideration: legal aid
Subsection (2) applies where the appropriate court has made an order under section 103A(1), or a reference under section 103C(1), on the application of an appellant under section 103A.

The appropriate court may order that the appellant's costs in respect of the application under section 103A shall be paid out of the Community Legal Service Fund established under section 5 of the Access to Justice Act 1999 (c. 22).

Subsection (4) applies where the Tribunal has decided an appeal following reconsideration pursuant to an order made—

under section 103A(1), and

on the application of the appellant.

The Tribunal may order that the appellant's costs—

in respect of the application for reconsideration, and

in respect of the reconsideration, shall be paid out of that Fund.

The Secretary of State may make regulations about the exercise of the powers in subsections (2) and (4).

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Regulations under subsection (3) may, in particular, make provision—

specifying or providing for the determination of the amount of payments (which may, in particular, vary according to the result of the reconsideration or of the reference under section 103C);

about the persons to whom the payments are to be made;

restricting the exercise of the power (whether by reference to the outcome of the appeal, the circumstances of the appellant, the nature of the appellant's legal representatives, or otherwise).

Regulations under subsection (3) may make provision—

conferring a function on the Legal Services Commission;

modifying a duty or power of the Legal Services Commission in respect of compliance with orders under subsection (2);

applying (with or without modifications), modifying or disapplying a provision of, or of anything done under, an enactment relating to the funding of legal services.

Before making regulations under subsection (3) the Secretary of State shall consult such persons as he thinks appropriate.

This section has effect only in relation to an appeal decided in—

England,

Wales, or

Northern Ireland.

In relation to an appeal decided in Northern Ireland this section shall have effect—

as if a reference to the Community Legal Service Fund were to the fund established under paragraph 4(2)(a) of Schedule 3 to the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)), and

with any other necessary modifications.

103E Appeal from Tribunal sitting as panel
This section applies to a decision of the Tribunal on an appeal under section 82 or 83 where its jurisdiction is exercised by three or more legally qualified members.

A party to the appeal may bring a further appeal on a point of law to the appropriate appellate court.

An appeal under subsection (2) may be brought only with the permission of—

the Tribunal, or

if the Tribunal refuses permission, the appropriate appellate court.

On an appeal under subsection (2) the appropriate appellate court may—

affirm the Tribunal's decision;

make any decision which the Tribunal could have made;

remit the case to the Tribunal;

affirm a direction under section 87;

vary a direction under section 87;

give a direction which the Tribunal could have given under section 87.

In this section "the appropriate appellate court" means—

in relation to an appeal decided in England or Wales, the Court of Appeal,

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in relation to an appeal decided in Scotland. the Court of Session, and

in relation to an appeal decided in Northern Ireland, the Court of Appeal in Northern Ireland.

A further appeal under subsection (2) to the Court of Session shall be to the Inner House.

In this section a reference to the Tribunal's decision on an appeal does not include a reference to—

a procedural, ancillary or preliminary decision, or

a decision following remittal under section 103B or 103C."

The Commons agree to this amendment with the following amendments—
28A Line 14, leave out "10 working" and insert "5"
28B Line 24, leave out "10 working" and insert "5"
28C Line 36, after "to", insert—
"(a)"
28D Line 36, at end insert—
", and
(b) where rules of court permit, other written submissions."
28E Line 45, after "more", insert "legally qualified"
28F Line 131, leave out from "payments" to end of line 133
28G Line 136, leave out "the outcome of the appeal," and insert "the prospects of success in respect of the appeal at the time when the application for reconsideration was made, the fact that a reference has been made under section 103C(1),"
Lord Filkin:My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 28A to Lords Amendment No. 28. I shall speak also to Lords Amendment No. 62 and Commons Amendment No. 62A thereto, which cover substantially the same ground, as well as Amendments Nos. 28AA, 28BA and 62B in the name of the noble Lord, Lord Goodhart.
When I refer to the High Court, I am also referring to the High Court of Northern Ireland and the Court of Session in Scotland.
We are at that stage of our parliamentary process where we are hopefully approaching the end of consideration of the Bill. Let no one allege that the Government have not listened and reflected on what the House has said. My noble and learned friend the Lord Chancellor gave serious reflection to the arguments made in the House about the judicial review ouster and came back with an alternative which, in broad measure, the House has welcomed. Secondly, we previously considered the issue of legal aid success fees. I gave the noble Lord, Lord Kingsland, my undertaking that, within the terms in which he had put the issue to me, I would take the issue away and seek to address it in another place. I hope that he will find that we have done so.
The noble Lord will also know from Commons consideration that we also considered the issue of lay members, which we did not rejoice about, but we also listened to the House in that respect. So the House has been listened to, but we have not been persuaded by the House about this measure.
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New Section 103A in Amendment No. 28 allows a party to the appeal before the Asylum and Immigration Tribunal to seek a review of the tribunal's decision in the High Court, on the grounds that the tribunal may have made an error of law. The High Court may order the tribunal to reconsider the case. As those who have been following the Bill closely will know, there is also an interim process, a filter process—because there may be a large volume of such applications to the tribunal—whereby, if the transitional process in Amendment No. 62 is in place, the review will first be considered by a senior judge in the tribunal. He may also make an order for reconsideration of the case. If he chooses not to, the applicant may opt in for the case to be considered by the High Court anyway.
Amendments Nos. 28A, 28B and 62A restore the Government's intention that five-day time limits should apply to that process, both for the initial application, and the opting in, if the transitional filter process is in place—in the circumstances I just described.
The Bill originally contained an ouster of the jurisdiction of the higher courts. Having listened to opinions, we brought forward the new policy in Amendment No. 28. Under the new policy, the decisions of the single-tier tribunal are now subject to review in the High Court. We agree that it is important that the High Court has such oversight, but we cannot allow that to compromise our legitimate aims of speed and efficiency. Therefore, it is vital that limits are placed on the review to prevent applicants without meritorious cases using the process to cause delay and expense. One of those limits is the new system of legal aid for reviews, to which we shall return later, and another is the limit on the time in which an application can be made.
The Government are confident that five days is more than enough for an applicant to consult their legal representative, for the representative to prepare the application and for the application to be lodged. Similarly, five days is also entirely sufficient for the simple procedure of opting to have a review application considered by the High Court under the transitional provisions.
For the avoidance of doubt, five days means five working days—weekends and bank holidays are excluded. That does not need to be spelt out in the Bill, although new Section 103A(4)(a) points to the fact that that effect is already achieved by rules. I should also point out that after the decision is promulgated by the tribunal, two days are allowed for the determination to reach the representative through the post before the five days starts. Therefore, we are talking about five full days for the representative to work on the application.
The time limits in Amendments Nos. 28A and 28B apply when a party to the appeal wants to challenge the decision of the asylum and immigration tribunal. The applicant will therefore have already presented his case to the Immigration and Nationality Directorate and before an independent tribunal before reaching that stage. The grounds of appeal will already have been covered at the appeal and in the tribunal's statement of

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reasons. Furthermore, that review is not a rehearing, but is focused solely on errors of law made by the tribunal. Given that the legal representative will, in most cases, already be familiar with the case, the preparation for it should not prove onerous.
In order to test the assertion, and to test the realism of what we are putting before the House, we have asked the Legal Services Commission to look at the current statutory review process under Section 101 of the Nationality, Immigration and Asylum Act 2002. Based on this, we have looked at what, in practice, have been the submissions made by lawyers as part of the statutory review process. I have inspected some of those cases and solicitors have not always been—how shall I put it?—very fulsome in terms of the cases they have put forward. We would expect them to do around six hours' work on a review application, including reading through the papers, interviewing the client, taking instructions and, if necessary, briefing counsel. Counsel is not always briefed in such cases; if counsel is involved, he could be expected to take between two and five hours to draft the application. We are therefore talking about six hours for the solicitor and up to five hours for counsel. That is very achievable in five working days.
Of course, there will always be exceptions. We have made it clear from the outset that we would not want to see this lead to injustice. Therefore, Section 103A(4)(b) explicitly allows the High Court to accept out-of-time applications,
"where it thinks that the application could not reasonably practicably have been made within that period".
This will deal with all the exceptional circumstances—for example, if the usual legal representative of the applicant was unwell and unable to complete the application in time, or if specialist evidence needed to be collated to present a full review application. This will work by the applicant applying out of time and the High Court exercising its discretion to allow the out-of-time application.
Put at its simplest, we are confident that five days is adequate in the majority of cases. The legislation explicitly allows the High Court judge, who will clearly be charged with upholding the interests of justice, to grant further time when the case is put to him and he considers that that case could not reasonably practicably have been made within that period. The legislation could not be clearer or, we believe, fairer.
It would be even more absurd to allow more than five days for "opting in" under the transitional filter process. I do not want to bore the House with the detail, but this is essentially when a case has been considered by a senior judge in the AIT on a review application and has been found not to be valid. At that point, the applicant still has the further right to lodge a case to the High Court, but this will require little more than a fax or a letter to be sent to the High Court, indicating that the applicant wishes his case to be considered again, following consideration by a judge in the tribunal. That could be done in half an hour, so five days is somewhat generous.
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Why does all this matter? As I have set out on previous discussions on the Bill, it is important that we have a process that is no slower than necessary in the interests of justice. It is important that we send a message that this review process is for obvious errors of law, and not to allow legal representatives to trawl through obscure legal arguments and technicalities. And we will send that message clearly if we make sure that the opportunities for causing delay are minimised.
For these reasons, and not out of any stubbornness or obduracy—I hope that noble Lords will agree that we have exhibited neither characteristic in this House on the Bill—we do not think that there is any justifiable reason for resisting the views of the other place twice that five days is perfectly sufficient for either of these circumstances and, moreover, that that five-day period is protected by the direct discretion given to a High Court judge to grant more time when he thinks it was not reasonably practicable to put in an appeal in that case. What more, fairly, should be done? I ask the House not to resist the Commons amendment in this respect.
Moved, That the House do agree with the Commons in their Amendment No. 28A to Lords Amendment No. 28.—(Lord Filkin.)
Lord Goodhartrose to move Amendment No. 28AA, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 28A to Lords Amendment No. 28, leave out "agree" and insert "disagree".
The noble Lord said: My Lords, in moving Amendment No. 28AA, I wish to speak also to Amendments Nos. 28BA and 62B. These are intended to maintain the extension of time for making an application for reconsideration under the new Section 103A of the Nationality, Immigration and Asylum Act 2002 from five to 10 working days—that is, two weeks after receipt of the notice of decision.
4.45 p.m.
Five days is, frankly, a ridiculously short period of time. The applicant's lawyer will have to read the decision carefully; he or she will have to consider the legal issues involved in the decision; he or she may well have to consult the client, which is likely to involve arranging a meeting at which an interpreter must be present; he or she may have to consult counsel; and he or she will have to draft the application, a document requiring great care as it is the sole basis on which a judge of the appropriate court will decide the application. There is no chance to supplement that document at an oral hearing as there will be no oral hearing. It will also be necessary to get the application to the appropriate court before it closes for business on the last available day.
If the lawyer in question had little else to do, a five-day period might well be enough. But a competent immigration lawyer—and it is the objective of the Government, as it is of everyone else, to ensure that
these cases are handled by competent lawyers—will be handling other cases, perhaps many others, at the same

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time. He or she will not know in advance when the decision will be released by the tribunal. If it arrives when the lawyer is appearing in court, the lawyer cannot possibly drop everything else. The lawyer may have to hand over the case to a colleague in the same firm or organisation who is not familiar with it; or it may be impossible for the lawyer to find someone else and the applicant may have to find a new lawyer.
The noble Lord, Lord Filkin, said on Report when our amendment was accepted:
"The reason why we believe that the timetable is practical is that the grounds for appeal will already have been covered at the appeal before the tribunal".—[Official Report, 7/6/04; col. 19.]
I might rephrase that as, "It means you can draft your application in advance". That, frankly, is absurd. One ground for the application—and it is only one of many possible grounds—might be that the tribunal member in question failed to take into account evidence he should have taken into account. That comes within the description of an error of law. But how can you possibly know in advance that the member of the tribunal will have failed to take into account a particular piece of evidence? To make that application, you then have to say what the evidence was, show that it was not taken into account and why it might have made a difference it if had been. All those things will take a substantial amount of time.
The Joint Committee on Human Rights said in its 13th report of the current Session in paragraph 1.77:
"We consider the five day time limit to be far too short for the right of access to the High Court and beyond to be practically effective".
In the debate on 7 June, our amendment was supported by speakers from all Benches, including the noble Lords, Lord Clinton-Davis and Lord Plant of Highfield, from the Government Benches, and it was opposed by no one other than the Minister.
In the debate in the House of Commons on Monday of this week, the Government's amendment to restore the five-day time limit was described by Robert Marshall-Andrews as,
"a miserable, snivelling little amendment that has no valid reason behind it. It is entirely meretricious, and it smacks of petulance".—[Official Report, Commons, 12/7/04; col. 1177.]
I could not have put it better myself.
I am afraid that I simply cannot understand why the Government, totally without justification and with hardly any benefit to increasing the speed of the proceedings, continue to insist on this five-day limit. I beg to move.
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 28A to Lords Amendment No. 28, leave out "agree" and insert "disagree".—(Lord Goodhart.)
The Countess of Mar:My Lords, I support the noble Lord, Lord Goodhart, in his amendment. It seems to me nonsense to turn down a proposal to extend the time very briefly, when what is likely to result is a lot of out-of-time cases before the courts. How much time will that take and how much will it cost the taxpayer?
Lord Kingsland:My Lords, the noble Lord, Lord Filkin, was right in saying that there has been a considerable amount of beneficial flexibility as the Bill has moved through your Lordships' House and another place. The issue of time has been, in my submission, the one exception to that.
I agree with the noble Lord, Lord Filkin, that the time limits should be demanding. In Committee, we ourselves tabled an amendment suggesting a limit of seven days; but it is our view that setting a limit of five days goes too far.
There are many circumstances in immigration appeals in which it is necessary to switch from a legal adviser who has a general practice in immigration law to an adviser who deals with very special issues. It would be extremely difficult to make such a switch within as tight a timetable as five days.
Moreover, as the noble Lord, Lord Goodhart, said, although appeals can only be on the basis of an error of law, there are many occasions when, to make out an appeal on an error of law, a legal adviser has to study in considerable detail the factual structure of the case to determine whether a perverse decision was reached with respect to the evidence.
We must not forget, either, that, on occasions, the consequences of a wrong decision for an applicant are very serious if he is returned to a country that is determined to incarcerate him for a long period or to put him to death. We must remember that those applicants often do not speak any English.
In all those circumstances, it is our view that the limit of five days ought to be considered again by the Government and extended. We on these Benches will support the noble Lord, Lord Goodhart, in his amendment.
Lord Donaldson of Lymington:My Lords, in the early 1970s, it was my privilege to be the president of the National Industrial Relations Court. I claimed, rightly, that it was the fastest court in the West, which produced the reasonable comment from Michael Foot that I was "trigger happy". I mention that merely to show that I am not one who supports sluggardliness in court proceedings. It is terribly important to keep things moving. But—and this is an important but—it is no good fixing one's timetable at a point when there then must be numerous applications for extensions of time. That itself involves a waste of time.
The noble Lord, Lord Goodhart, rightly pointed out that people who are any good at any specialty in the law tend to be very fully employed. That is why they become experts and why they are so employed. That being so, I could not help thinking that the Minister believed that lawyers were concerned only with one case at a time. It would appear that he believes that they can pick up a case on a Monday and study it, not in a desultory manner but giving 11 hours to it, which is nearly two days, then have nothing else to do for the rest of the week. It is not like that. It may be that someone with a true specialty has only one case at a time and that case lasts for a couple of months—but that is very different. It is not the area that we are discussing.

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The Minister then talks about lawyers trawling through the law and seeking obscure technicalities. People do not do that, or certainly not in a field with which they are familiar. They know what the points are; without reference to any particular case, they know what they are looking for, and they look for it. They certainly will not try to find fancy points— unless, of course, they are satisfied that there is some real injustice occurring that is way outside the ordinary experience. Then they will look to see whether there is any way in which they can safeguard the true and real interests—not bogus interests—of their clients. I do not find that reprehensible at all, although there seems to be an assumption that it is.
I cannot understand what real difference there is between 10 days and five days. Looking at the whole period in which the proceedings are governed, I do not know quite what they are, but I am sure that an extra five days represents a very small increase in the time available. I am also tempted to wonder whether anyone has found out whether the judges can cope with that period. It is one of the features of judicial life and managing courts that there is a degree of ebb and flow. If one has no time to balance things out, one becomes either a bit slap-happy or inefficient.
I strongly support the amendment tabled by the noble Lord, Lord Goodhart, from a practitioner's point of view—meaning the point of view of a judicial practitioner.
Lord Ackner:My Lords, I, too, support the noble Lord, Lord Goodhart. The Government's approach is a recipe for half-baked cases. It means that people will be rushed in producing what should be a very important document, or they will be obliged to apply to the court to exercise its discretion—something which will add considerable delay. We are arguing about five days, which does not justify our spending more than a few seconds on this meritless opposition.
Baroness Park of Monmouth:My Lords, there is the further point, in support of the noble Lord, Lord Goodhart, that we all know that unfortunately many asylum seekers fall into the hands of unscrupulous lawyers who take on too many cases and have very little hope of delivering what they should deliver.
Lord Filkin:My Lords, I shall speak briefly, because this may be one of those occasions on which whatever one says, one is not certain of having a willing hearing.
Why go slower than necessary? That is, essentially, the Government's question. I have set out why we believe that five days is an adequate period of time. Therefore, yet again it appears that the House is always looking for reasons to make the process slower and more complex than is desirable.
I shall seek to explain why it matters that—
Lord Kingsland:My Lords, your Lordships' House might find the Minister's argument more convincing if he had taken seriously the amendments that we tabled at an earlier stage, introducing time limits to the beginning and the end of the asylum procedure—in other words, between the asylum application and the initial consideration by the Home Office; then, after the appeal process was over, between that point and the time of deportation. If the Government were prepared to entertain time limits at those stages, which cause far greater delay than the delays within the appeal procedure, your Lordships' House might find the Minister's argument more convincing.
Lord Filkin:My Lords, I shall make my own judgment on how the Government wish to put their case forward, but I am always grateful for the advice of the noble Lord, Lord Kingsland.
The essence of what we have said throughout this debate is that the Government must prevent unnecessary delay at every single part of the process. It is not a question of saying that we should bear down only on the initial consideration, although the noble Lord, Lord Kingsland, is right in saying that we should. We have made great progress on that in recent years and the process is vastly shorter and of higher quality than it was. But that is no reason whatever for saying, "What does another week matter? Let's have another week added on to the process for the avoidance of doubt". I remind the House that keeping a family on state support while a lengthy appeal process goes through costs several hundred pounds a week. The state should willingly support that expenditure if it is necessary but we should not get drawn into it if it is not.
The noble and learned Lord, Lord Donaldson, was clear in his argument that lawyers are busy people—many people are busy people—and that they are not just waiting for cases to come over the hill to be addressed. That is true, but, as I sought to indicate, on the best estimate we have been able to identify, we are talking about approximately one day's work by a lawyer. In the process that we are talking about, five days are provided for doing that one day's work and if there are reasonable grounds why that is not possible they can go to court and be granted more.
It also matters because the system is prone to abuse. I make no apology for coming back to that. We know that 50 per cent of all people who are refused by the adjudicator then appeal. The noble Lord, Lord Newton, who is in his place, will know that one gets nothing like those statistics in any other part of the tribunal system. The reason why is obvious: it runs the case long and reduces the time period when the individual might be removed from the country if he is found not to have a meritorious case.
I draw the attention of the House to the judgment by Mr Justice Collins, whose judgments have not always been met with rejoicing by the Government. He gave a clear example just last week of a case that had been run right through the process by the Refugee Legal Centre.

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It cost £60,000 and in his judgment Mr Justice Collins said that he found in it absolutely no merit whatever. We should not be party to supporting a system that runs cases long when there is no justification for doing so.
It is not proper for me to go into detail but, of course, the department has consulted the noble and learned Lord the Lord Chief Justice on this process. I am certain that he has a view that he does not want the High Court swamped with unmeritorious cases. We would be a foolish Government, particularly in the light of our recent experiences, if we had not consulted properly.
I shall say no more. We think that five days are perfectly adequate for this process. I do not think that we are going to have a meeting of minds on this matter so no doubt the House will decide the issue.
Lord Avebury:My Lords, before the Minister sits down, can he give us a reference to the judgment by Mr Justice Collins? The only recent case that I can recall in which a figure of £60,000 was involved was that of Jacqueline Konan who sued the Government for being unlawfully detained and was awarded damages of £60,000 by Mr Justice Collins.
Lord Filkin:My Lords, I looked for the details in my voluminous pack before I rose to speak but I could not put my finger on them. I shall write to the noble Lord with the answer very rapidly indeed.
Lord Goodhart:My Lords, I am grateful for the support that our amendment has received from other parts of the House. It has a great deal of logic and good common sense behind it. I wish to test the opinion of the House.
5.3 p.m.
On Question, Whether the said amendment (No. 28AA) shall be agreed to?
Their Lordships divided: Contents, 127; Not-Contents, 137.

Division No. 1

CONTENTS

Addington, L.

Colwyn, L.

Ampthill, L.

Cope of Berkeley, L.

Anelay of St Johns, B.

Craig of Radley, L.

Astor of Hever, L.

Crickhowell, L.

Attlee, E.

Cumberlege, B.

Avebury, L.

Denham, L.

Barker, B.

Dholakia, L.

Beaumont of Whitley, L.

Dixon-Smith, L.

Biffen, L.

Donaldson of Lymington, L.

Blackwell, L.

Dundee, E.

Bledisloe, V.

Dykes, L.

Bowness, L.

Eden of Winton, L.

Bradshaw, L.

Elliott of Morpeth, L.

Byford, B.

Elton, L.

Campbell of Alloway, L.

Falkner of Margravine, B.

Carnegy of Lour. B.

Flather, B.

Carr of Hadley, L.

Fookes, B.

Chan, L.

Fowler, L.

Clement-Jones, L.

Fraser of Carmyllie, L.

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Freeman, L.

Newton of Braintree, L.

Garden, L.

Northesk, E.

Glenarthur, L.

Northover, B.

Glentoran, L.

Norton of Louth, L.

Goodhart, L.

O'Cathain, B.

Goschen, V.

Onslow, E.

Hamwee, B.

Park of Monmouth, B.

Hanham, B.

Peyton of Yeovil, L.

Harris of Richmond, B.

Plumb, L.

Hayhoe, L.

Powell of Bayswater, L.

Henley, L.

Redesdale, L.

Hodgson of Astley Abbotts, L.

Rees, L.

Holme of Cheltenham, L.

Renton, L.

Hooson, L.

Roberts of Conwy, L.

Howe, E.

Rodgers of Quarry Bank, L.

Howe of Aberavon, L.

Roper, L. [Teller]

Howell of Guildford, L.

St John of Fawsley, L.

Inglewood, L.

Sandwich, E.

Joffe, L.

Seccombe, B.

Jopling, L.

Selborne, E.

Kimball, L.

Selsdon, L.

King of Bridgwater, L.

Sharman, L.

Kingsland, L.

Sharp of Guildford, B.

Knight of Collingtree, B.

Sharples, B.

Lamont of Lerwick, L.

Shaw of Northstead, L.

Lang of Monkton, L.

Shutt of Greetland, L.

Lawson of Blaby, L.

Skelmersdale, L.

Lloyd of Berwick, L.

Smith of Clifton, L.

Lucas, L.

Soulsby of Swaffham Prior, L.

Lyell, L.

Steel of Aikwood, L.

MacGregor of Pulham Market, L.

Stern, B.

Stewartby, L.

Mackie of Benshie, L.

Thomas of Gresford, L.

Maclennan of Rogart, L.

Thomas of Walliswood, B.

McNally, L.

Thomson of Monifieth, L.

Maddock, B.

Tordoff, L.

Mar, C.

Trenchard, V.

Mar and Kellie, E. [Teller]

Ullswater, V.

Marlesford, L.

Waddington, L.

Mayhew of Twysden, L.

Wade of Chorlton, L.

Miller of Chilthorne Domer, B.

Wallace of Saltaire, L.

Montrose, D.

Walpole, L.

Morris of Bolton, B.

Warnock, B.

Naseby, L.

Williams of Crosby, B.

Neuberger, B.

Windlesham, L.

NOT-CONTENTS

Acton, L.

David, B.

Ahmed, L.

Davies of Coity, L.

Alli, L.

Davies of Oldham, L. [Teller]

Amos, B. (Lord President of the Council)

Dean of Thornton-le-Fylde, B.

Desai, L.

Andrews, B.

Dixon, L.

Archer of Sandwell, L.

Donoughue, L.

Ashton of Upholland, B.

Drayson, L.

Bassam of Brighton, L.

Dubs, L.

Berkeley, L.

Elder, L.

Bernstein of Craigweil, L.

Evans of Parkside, L.

Blackstone, B.

Evans of Temple Guiting, L.

Blood, B.

Falconer of Thoroton, L. (Lord Chancellor)

Borrie. L.

Boston of Faversham, L.

Falkender, B.

Bramall, L.

Farrington of Ribbleton, B.

Brennan, L.

Filkin, L.

Brooke of Alverthorpe, L.

Fitt, L.

Brookman, L.

Fyfe of Fairfield, L.

Campbell-Savours, L.

Gale, B.

Carter, L.

Gibson of Market Rasen, B.

Clark of Windermere, L.

Giddens, L.

Clarke of Hampstead, L.

Gilbert, L.

Clinton-Davis, L.

Golding, B.

Cohen of Pimlico, B.

Goldsmith, L.

Colville of Culross, V.

Gordon of Strathblane, L.

Corbett of Castle Vale, L.

Goudie, B.

Crawley, B.

Gould of Potternewton, B.

1285

Graham of Edmonton, L.

Nicol, B.

Grantchester, L.

Parekh, L.

Greenway, L.

Patel of Blackburn, L.

Grocott, L. [Teller]

Pendry, L.

Harris of Haringey, L.

Pitkeathley, B.

Harrison, L.

Plant of Highfield, L.

Hart of Chilton, L.

Ponsonby of Shulbrede, L.

Haskel, L.

Prosser, B.

Haworth, L.

Prys-Davies, L.

Hayman, B.

Ramsay of Cartvale, B.

Henig, B.

Randall of St. Budeaux, L.

Hilton of Eggardon, B.

Rendell of Babergh, B.

Hogg of Cumbernauld. L.

Richard, L.

Hollis of Heigham, B.

Rogan, L.

Howells of St. Davids, B.

Rooker, L.

Howie of Troon, L.

Sainsbury of Turville, L.

Hoyle, L.

Scotland of Asthal, B.

Hughes of Woodside, L.

Simon, V.

Hunt of Kings Heath, L.

Simon of Glaisdale, L.

Jay of Paddington, B.

Slim, V.

Jones, L.

Strabolgi, L.

Judd, L.

Strange, B.

Kilclooney, L.

Temple-Morris, L.

King of West Bromwich, L.

Thornton, B.

Kirkhill, L.

Tomlinson, L.

Layard, L.

Triesman, L.

Lea of Crondall, L.

Truscott, L.

Lipsey, L.

Tunnicliffe, L.

Lofthouse of Pontefract, L.

Turnberg, L.

Macdonald of Tradeston, L.

Turner of Camden, B.

McIntosh of Haringey. L.

Wall of New Barnet, B.

McIntosh of Hudnall, B.

Warner, L.

MacKenzie of Culkein, L.

Warwick of Undercliffe, B.

Mackenzie of Framwellgate, L.

Watson of Invergowrie, L.

McKenzie of Luton, L.

Weatherill, L.

Mason of Barnsley, L.

Whitaker, B.

Massey of Darwen, B.

Whitty, L.

Merlyn-Rees, L.

Wilkins, B.

Mishcon, L.

Williams of Elvel, L.

Monson, L.

Williamson of Horton, L.

Morgan, L.

Woolmer of Leeds, L.

Morgan of Drefelin, B.

Resolved in the negative, and amendment disagreed to accordingly.
On Question, Motion agreed to.
5.13 p.m.
Lord Filkin:Lord Filkin: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 28B. I have spoken to this amendment with Amendment No. 28A.
Moved, That the House do agree with the Commons in their Amendment No. 28B.—(Lord Filkin.)
[Amendment No. 28BA not moved.]
On Question, Motion agreed to.
Lord Filkin Lord Filkin rose to move, That the House do agree with the Commons in their Amendments Nos. 28C and 28D to Lords Amendment No. 28 and do propose Amendment No. 28DA as a consequential amendment to Lords Amendment No. 57:
Page 39, leave out lines 30 to 41 and insert—

"may make provision about reconsideration of a decision pursuant to an order under section 103A(1) (which may, in particular, include provision about the action that may be taken on reconsideration and about the matters and evidence to which the Tribunal may have regard);

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shall provide that a party to an appeal is to be treated as having received notice of the Tribunal's decision, unless the contrary is shown, at such time as may be specified in, or determined in accordance with, the rules;

may make provision about proceedings under paragraph 30 of Schedule 2 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (transitional filter of applications for reconsideration from High Court to Tribunal);"

28DA Line 10, at end insert "(and may, in particular, make provision of a kind that may be made by rules of court under section 103A(5)(b))"
The noble Lord said: My Lords, Amendments Nos. 28C and 28D are minor amendments. They introduce an additional flexibility to the procedure for review. In the majority of cases, the High Court judge will simply look at the applicant's papers in order to decide whether or not there may have been an error of law. However, in some circumstances it may be appropriate for other submissions to be considered. These amendments allow flexibility to make provision for this through rules of court. An example of when it might be helpful for the respondent to file submissions involves fast-track cases. Where speed is key, allowing a respondent's submissions would enable the reconsideration to take place more quickly. I should clarify that in both cases, we are talking about a process whereby a High Court judge is considering whether to allow the case to be heard on a point of law and to be returned to the AIT for this purpose. It is not itself a hearing.
Amendment No. 28DA is consequential on Amendments Nos. 28C and 28D and introduces a similar flexibility for the review while the filter is in place. For an initial period, the review application will first be considered by the tribunal. This amendment means that the procedure rules for the AIT can similarly allow the tribunal to consider additional papers. I therefore urge noble Lords to agree to Amendments Nos. 28C, 28D and 28DA. I beg to move.
Moved, That the House do agree with the Commons in their Amendments Nos. 28C and 28D to Lords Amendment No. 28 and do propose Amendment No. 28DA as a consequential amendment to Lords Amendment No. 57.—(Lord Filkin.)
On Question, Motion agreed to.
Lord Filkin:My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 28E to Lords Amendment No. 28.
This amendment brings us to the issue of lay members, which we discussed at a previous stage, when the House made clear its wish that lay members should be retained within the new asylum and immigration tribunal. The House argued that there was merit in them being there as a resource to the tribunal in certain cases.
As noble Lords will be aware, the Government did not believe that that was in principle desirable for reasons that I set out earlier. However, the Government have concluded, as can be seen from proceedings in another place, that we will not seek to insist on the removal of lay members from the tribunal;

1287
we have listened to the House in that respect. On the other hand, an amendment that was linked to it—as least by implication or consequentially—was that all tribunal panels should be three-member panels. We will consider that amendment later. In essence, in this process we are saying that we are content not to seek to remove lay members from the AIT. In a sense, our view is that it is important that the president of the tribunal has the discretion to deploy the judicial resources—including lay members—as he or she thinks fit. That is very much in tune with our discussions on these issues.
There are specific amendments on these issues essentially because draftsmen have felt that for the avoidance of doubt or better drafting processes, they needed to be brought forward in a slightly different form. Their thrust, purpose or outcome is four-square with what I believe the House wanted when it pressed this matter at previous stages. With that prelude I shall also speak to Amendments Nos. 42, 43, 44 and 61 and Commons Amendments Nos. 61A to 61C thereto, which are part of the same group.
We are prepared to accept the will of the House that there should be a role for lay members in the new tribunal. This was expressed in the original Amendments Nos. 42, 43, 44 and 61. However, the drafting had unintended consequences, and so parliamentary counsel has produced Amendments Nos. 61A to 61C and 28E in lieu. They have the same effect.
One notable difference is that the drafting of Amendment No. 61A as opposed to Amendment No. 42 allows for the appointment as legally qualified members of the tribunal of people who do not satisfy the letter of the requirements in sub-paragraphs 2(a) to (c) of Schedule 1, but who none the less are suitably qualified, perhaps from academic legal experience or judicial experience gained in another jurisdiction.
I should, of course, be clear that we are accepting lay members, but we are not prepared to accept the amendment we shall come to later—Amendment No. 46—that requires all cases to be heard by panels of three members.
I hope, therefore, that these amendments will prove uncontroversial. I ask the House to agree to Amendments Nos. 28E, 61A, 61B and 61C. I beg to move.
Moved, That the House do agree with the Commons in their Amendment No. 28E to Lords Amendment No. 28.—(Lord Filkin.)
Lord Kingsland:My Lords, I rise simply to thank the Minister for responding so thoughtfully to the amendments that we tabled to include lay members in the new tribunal system.
The Minister is right in saying that, strictly speaking, the issues raised by Amendment No. 46A fall outside the group, but, nevertheless, I think it appropriate for me to say something about that matter now. I promise not to repeat myself when the Minister rises to introduce the line of amendments beginning with Amendment No. 46 later on.
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I should like to suggest, respectfully, that Amendment No. 46A, if not quite meeting the principle of three-member tribunals that we sought on Report, is nevertheless a good compromise. It gives the president of the tribunal the discretion, where appropriate, in cases which raise issues of legal or factual complexity, to have tribunals of more than one member while recognising that issues of cost cannot be entirely ignored when one is managing any form of public service. The Immigration Service is no different from any other public service in that respect. I recognise that the requirement of three-member tribunals in all circumstances could be too demanding a standard to meet. The drafting that the Minister has achieved, if I may say so, is in my view masterly. I should like to thank him very much indeed for the way in which he has responded to this issue.
Lord Avebury:My Lords, it is very welcome that the Government have responded to some of the concerns that were expressed at earlier stages of the Bill. I entirely accept the Minister's claim that this has been a listening exercise and that on the whole, with certain unfortunate exceptions, Ministers have been responsive to the views that were expressed in your Lordships' House.
I wish to ask the noble Lord only one question about the particular form in which these amendments are couched. As regards Amendment No. 61A, who will exercise this opinion when the Lord Chancellor is no longer sitting on the Woolsack? That event is not far distant in time and I should have thought we might have anticipated it in the drafting.
Lord Kingsland:My Lords, I wonder where the noble Lord, Lord Avebury, was yesterday when your Lordships' House voted on this matter.
Lord Avebury:My Lords, I was listening upstairs.
Lord Filkin:My Lords, I am delighted to accept the inference of the noble Lord, Lord Avebury, that on this matter we are talking about "when" not "if", as I am sure is the case. The answer to the question asked by the noble Lord, Lord Kingsland, is that those responsibilities will be picked up by whatever successor authority the House so decides, but clearly the Government's intention is that it is picked up by the relevant Secretary of State, as we discussed in our many fulsome debates yesterday.
On Question, Motion agreed to.
Lord Filkinrose to move that the House do agree with the Commons in their Amendments Nos. 28F and 28G to Lords Amendment No. 28, and do propose Amendment No. 28H as a consequential amendment to Lords Amendment No. 28:
28H Leave out from beginning of line 111 to beginning of line 114 and insert—
"(1) On the application of an appellant under section 103A,"
The noble Lordsaid: My Lords, this is one of the most complex, interesting and potentially controversial issues that we have discussed on this Bill.

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At Lords Third Reading, I set out the problem we are trying to address with the proposals for a new legal aid scheme, and more broadly the move to a single tier tribunal. I sought to set out the issues that set the coloration to that: namely, that legal aid costs had quadrupled since 1998–99; that the average cost of an individual pursuing an appeal to the end of the process is some £4,000; and that these are unjustifiable amounts when only one in 10 of cases results in a different outcome.
I also signalled that the appeal process, if run to the full, could easily run to 62 weeks or more from beginning to end. I set that in the context that while undoubtedly genuine asylum claimants come to our shores, and it is our responsibility as a state to look at their cases fairly, we are also aware that a massive amount of trafficking of people goes on, as I instanced in the relevant debate.
As it stands, the system leads to delay and expense. There is concern that a slow process and an uncertain ability to bring it rapidly to a conclusion and to return people from whence they came feeds the traffickers' business and makes it easier for them to get people to pay remarkably high sums of money to be brought here.
In introducing a new system we have to ensure that the exploitation does not continue. The new legal aid arrangements are central to achieving that. They will stop weak applications from flooding the High Court which leads to the cycle of delay, while ensuring at the same time that the interests of justice are met.
The new scheme that we are bringing forward, which is different from the one that we discussed at Third Reading—again, we listened to the arguments put forward on this matter—will be a system of retrospective funding. We are not removing legal aid for the review and reconsideration but we are clear that lawyers have to take a part in making judgments about whether cases are meritorious. While lawyers will not know until the end of the process, when the judge makes his order, whether they will receive legal aid, good lawyers already make such judgments. The system that we are constructing will try to ensure that all lawyers make the kind of judgments that a good lawyer does in such circumstances.
However, in introducing a scheme involving retrospective funding, we recognise that the focus of the scheme should be on merit and not just success. At Third Reading I therefore agreed with the noble Lord, Lord Kingsland, on this point—we tested each other across the Dispatch Box to make sure there was no misunderstanding and we managed to reduce most if not all of the misunderstanding—when he signalled that he would like to see a system based on a "robust merits test". There appeared, therefore, to be no issue of principle between us on that; it was a matter of how one applied that.
This has always been the Government's intention. It became apparent at Third Reading that perhaps there were different ways of achieving that objective from the one that we had advanced to the House which
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clearly caused unhappiness on the part of some noble Lords. I do not think that "unhappiness" is too sharp a word. Therefore, I hope that the amendments which we brought forward in another place are seen as very much four-square with what I signalled in broad terms at Third Reading.
Amendment No. 28F removes the provision for variable fees to be paid dependent on the result of the reconsideration. Amendment No. 28G links the award of legal aid more explicitly to an applicant's prospects of success at the time the application was made; that is, whether the case had significant merit such that the lawyer was right to pursue it in a system based on merit. In a system based on merit that is fair. This test does not ask lawyers to pre-empt the decision of the tribunal; it simply asks them carefully to assess whether a case has merit. If the judgment they have made is sound, which is reasonable to expect, legal aid will be paid.
We were brought to that conclusion by thoughtfulness by counsel that the best way of ensuring justice was that the tribunal should decide whether legal aid should be paid, not in a sense simply by what happened at the end, but by looking at the case as it was at the time that the lawyer had to make the judgment at the beginning of the process. That seemed a very fair point, so that hindsight is not applied to the decision but that it can be said that, when the lawyer had to make the decision, the question was whether the case had merit.
5.30 p.m.
The amendments meet many of the concerns raised. I recognise that they did not respond to all of the noble Lord's concerns, which is why, following discussion, the Government proposed Amendment No. 28H. It enables the High Court to award legal aid for the review application even if no reconsideration order or Court of Appeal referral has been made.
It is important to be clear exactly what Amendment No. 28H means. It remains our intention that the High Court's power to award legal aid will be used only in exceptional cases. In the majority of cases, the tribunal will be best placed to make the decision on funding at the reconsideration. At that stage, the tribunal will possess the relevant information to decide whether, when the review application was made, the lawyer was right to have pursued the case. By comparison, the High Court will simply consider, on the papers, whether there may have been an error of law—in other words, whether the case should be looked at further.
Although we accept that there may be circumstances where it is appropriate for the High Court to award legal aid for a review application, even if an order for reconsideration or a referral is not made, regulations will be made to prescribe tightly when that power can be exercised. An example of when the power might be used is when a reference to the Court of Appeal is made. Another might be when a review application which has good prospects of success is rendered unsuccessful following a lead decision of a case, which had not been decided at the time the application was made.

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We are committed to a system based on merit. Payment will not be conditional on success but, if we are to weed out the weak applications, we have to incentivise the system in the way in which we have done. Having listened to the House, we believe that we have a system that achieves what those in most if not all parts of the House feel are, for good reason, the objectives of government policy. I therefore urge the House to agree to Amendments Nos. 28F, 28G and 28H.
Moved, That the House do agree with the Commons in their Amendments Nos. 28F and 28G to Lords Amendment No. 28, and do propose Amendment No. 28H as a consequential amendment to Lords Amendment No. 28.—(Lord Filkin.)
Lord Kingsland:My Lords, again, I am most grateful to the Minister for his explanation of the amendments. As the noble Lord said, we did not vote on our amendments to remove the conditional fee system at Third Reading on the basis of certain undertakings that he gave. He has met those undertakings in full for which I am extremely grateful. As this is the last group of amendments on which I shall speak, I thank him very much for his cooperation throughout the whole process.
Lord Goodhart:My Lords, although I regret that the Government did not accept our important arguments on giving legal aid on a somewhat wider basis than is now proposed, the amendments are, at any rate, some improvement on the previous position. In the circumstances, given that there would be no prospect of our succeeding on any further vote on the matter, we do not oppose the amendment.
Lord Newton of Braintree:My Lords, having indicated that I very much shared the concerns underlying the exchanges that took place last week, I want to record that I think that the Minister's response is extremely positive and welcome. I express my thanks to him for that.
On Question, Motion agreed to.

LORDS AMENDMENTS
42 Schedule 1, page 32, line 17, after "legal" insert "or lay"
43 Page 32, line 18, leave out first "as"
44 Page 32, line 18, leave out from "appointment" to end of line 19
The Commons disagree to these amendments and to Lords Amendment No. 61, but propose Amendments Nos. 61A to 61C in lieu thereof.
61A Page 32, line 19, at end insert—
"or,
(e) in the Lord Chancellor's opinion, has non-legal experience which makes him suitable for appointment.
(2) A person appointed under sub-paragraph (1)(a) to (d) shall be known as a legally qualified member of the Tribunal."
61B Page 37, line 5, after "a", insert "legally qualified"
61C Page 41, line 3, leave out paragraph 28 and insert—
"28 Where immediately before commencement a person is a member of the Immigration Appeal Tribunal—

he shall be treated as having been appointed as a member of the Asylum and Immigration Tribunal under paragraph 1 of Schedule 4 to that Act immediately after commencement, and

if he was a legally qualified member of the Immigration Appeal Tribunal (within the meaning of Schedule 5 to that Act) he shall be treated as having been appointed as a legally qualified member of the Asylum and Immigration Tribunal."

Lord Filkin:Lord Filkin: My Lords, I beg to move that the House do not insist on its Amendments Nos. 42 to 44 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 61A to 61C in lieu thereof. I spoke to the amendments with Amendment No. 28E.
Moved accordingly, and, on Question, Motion agreed to.

LORDS AMENDMENT
46 Page 33, line 8, leave out from "by" to end of line 9 and insert "three members unless the President from time to time directs"
The Commons disagree to this amendment but propose the following amendment to the words so restored to the Bill—
46A Page 33, line 9, after "President", insert ", having regard to the complexity and other circumstances of particular cases or classes of case,"
Lord Filkin:My Lords, I beg to move that the House do not insist on its Amendment No. 46 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 46A to the words so restored to the Bill.
Moved accordingly, and, on Question, Motion agreed to.

LORDS AMENDMENT
61 Schedule 2, page 41, line 3, at end insert "or lay"
Lord Filkin:My Lords, I beg to move that the House do not insist on its Amendment No. 61, to which the Commons have disagreed. I spoke to the amendment with Amendment No. 28E.
Moved accordingly, and, on Question, Motion agreed to.

LORDS AMENDMENT
62 Page 41, line 14, at end insert—

"30 This paragraph shall have effect in relation to applications under section 103A(1) or for permission under section 103A(4)(b) made—

during the period beginning with commencement and ending with such date as may be appointed by order of the Lord Chancellor, and

during any such later period as may be appointed by order of the Lord Chancellor.

An application in relation to which this paragraph has effect shall be considered by a member of the Asylum and Immigration Tribunal (in accordance with arrangements under paragraph 8(1) of Schedule 4 to the Nationality, Immigration and Asylum Act 2002 (c. 41) (inserted by Schedule 1 above)).

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For the purposes of sub-paragraph (2)—

references in section 103A to the appropriate court shall be taken as references to the member of the Tribunal who is considering the application or who is to consider the application,

rules of court made for the purpose of section 103A(4)(a) in relation to the court to which an application is made shall have effect in relation to the application despite the fact that it is considered outside the appropriate court, and

section 103A(6) shall be subject to sub-paragraph (5) below.

Where a member of the Tribunal considers an application under section 103A(1) or 103A(4)(b) by virtue of this paragraph—

he may make an order under section 103A(1) or grant permission under section 103A(4)(b), and

if he does not propose to make an order or grant permission, he shall notify the appropriate court and the applicant.

Where notice is given under sub-paragraph (4)(b)—

the applicant may notify the appropriate court that he wishes the court to consider his application under section 103A(1) or 103A(4)(b),

the notification must be given within the period of 10 working days beginning with the date on which the applicant is treated, in accordance with rules under section 106 of the Nationality, Immigration and Asylum Act 2002 (c. 41), as receiving the notice under subparagraph (4)(b) above, and

the appropriate court shall consider the application under section 103A(1) or 103A(4)(b) if—

the applicant has given notice in accordance with paragraphs (a) and (b) above, or

the applicant has given notice under paragraph (a) above outside the period specified in paragraph (b) above, but the appropriate court concludes that the application should be considered on the grounds that the notice could not reasonably practicably have been given within that period.

Rules of court may specify days to be disregarded in applying sub-paragraph (5)(b).

A member of the Tribunal considering an application under section 103A(1) by virtue of this paragraph may not make a reference under section 103C.

An order under sub-paragraph (1)(a) or (b)—,

shall be made by statutory instrument,

shall not be made unless the Lord Chancellor has consulted such persons as he thinks appropriate, and

shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament."

The Commons agree to this amendment with the following amendment—
62A Line 33, leave out "10 working" and insert "5"
Lord Filkin:My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 62A to Lords Amendment No. 62. I spoke to the amendment with Amendment No. 28A.
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Moved, That the House do agree with the Commons in their Amendment No. 62A to Lords Amendment No. 62.—(Lord Filkin.)
[Amendment No. 62B not moved.]
On Question, Motion agreed to.

Companies (Audit, Investigations and Community Enterprise) Bill [H.L.]
5.36 p.m.
Lord Grocott:My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Companies (Audit, Investigations and Community Enterprise) Bill, have consented to place their Prerogative and Interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Bill read a third time.
Clause 43 [Appointment of director]:
Lord Glentoran Lord Glentoran moved Amendment No. 1:
Page 38, line 27, at end insert—
"( ) Before the appointment of a director under this section, the Regulator must take all reasonable steps to ensure that the chairman and board of the community interest company agree that his actions are necessary and appropriate."
The noble Lordsaid: My Lords, it is quite clear what I am after in Amendments Nos. 1 and 2. We have debated the topic. I did not move the equivalent amendment on Report for various reasons, which those of us who attended the debate will understand. However, I would like some reassurance on the matter from the Minister. I have written to him; he knows what I am looking for. I beg to move.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville):My Lords, I had an interesting discussion with the noble Lord a few weeks ago about the issues underlying the amendments, and he has since written to me about them. He made the point that, where the regulator uses his powers to appoint a director or a manager to a CIC, it would be helpful if the regulator could obtain the consent of the CIC's existing directors to his action. That would reduce the risk of the regulator acting in a heavy-handed way, and of the appointment leading to tensions within the management team.
We would all agree that it would be desirable to get the consent of the CIC's directors to an appointment, and that the regulator should aim to do it where possible. However, it will not always be realistic to expect to obtain the board's agreement. As the noble Lord and I have discussed, an appointment under either of the powers will be made only where the CIC in question is in breach of at least one of the default conditions set out in Clause 39, and the regulator thinks that the power must be exercised to maintain confidence in CICs. The situation will therefore be quite serious.

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In such a position, we would of course expect the regulator to be in dialogue with the CIC concerned. He will surely need to talk to the directors of the CIC to find out what is going on, and what needs to be done to fix it. If he has not done so, he will not be able to provide good reasons for taking action, and will, quite rightly, be challenged. But there can be no certainty that the board of the CIC will co-operate with him, let alone that it will agree with the regulator's decision. For instance, the regulator may decide to appoint a director or a manager to a CIC because he considers that the existing directors are not capable without assistance of remedying the problem. In some cases, one can easily imagine that the existing directors might not agree. In other cases, the board might be so split that no agreement was possible.
I know that the noble Lord, Lord Glentoran, appreciates those points. I expect that is why his amendments require the regulator to,
"take all reasonable steps to ensure"
the consent of the board, rather than to require their consent in all cases. However, I do not think that this additional measure is necessary. That is because the regulator is already required by the general principles of administrative law not to behave unreasonably. He is also subject to the specific constraints in the Bill, to act in accordance with good regulatory practice and to use his supervisory powers only where necessary. This means that where the regulator acted improperly or unreasonably in making an appointment, he would be subject to challenge.
If the appointment of a manager or director by the regulator is unnecessary, or inappropriate, the regulator would be in breach of his duty in Clause 39 to use his powers only to the extent necessary; and the CIC would be able to appeal to the appeal officer. The Government brought forward amendments at Report stage to require the regulator to give reasons for his decisions and to allow the appeal officer to consider appeals on matters of law as well as fact.
Overall, the Bill together with existing administrative law already place significant constraints on the way in which the regulator may use his power. As I have said in previous debates, our aim is that the regulator should have a light but proportionate touch and we think that the current provisions of the Bill achieve that. I hope that in the light of that explanation the noble Lord, Lord Glentoran, will be reassured and will feel able to withdraw the amendment.
Lord Glentoran:My Lords, I thank the Minister for that statement. I do, indeed, feel reassured and, as this is where we wind up, I should say that for my part, in Part 2 of the Bill, we started with almost a sketch and have finished with a Bill that will achieve what the Government desire and will be comprehensible, usable and welcome. I offer my thanks to the Bill team and to the Minister for their courtesy. I hope that CICs become a success. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 45 [Appointment of manager]:
[Amendment No. 2 not moved]
An amendment (privilege) made.
Lord Sainsbury of Turville:My Lords, I beg to move that this Bill do now pass.
This is an important and highly technical Bill and I am grateful to noble Lords on all sides of the House for taking part in the debates. The Government have listened carefully to all the points made. By my reckoning, nearly half of the government amendments tabled on Report were wholly or partly in response to points raised by noble Lords in Grand Committee. I believe, therefore, that we can all take satisfaction in having scrutinised and improved the Bill before sending it to the other House.
Perhaps I may also take this opportunity to thank the Bill team who have done a magnificent job, both in maintaining the clear purposes of the Bill, while at the same time being flexible in responding to thoughtful criticisms of practical details.
Moved, That the Bill do now pass.—(Lord Sainsbury of Turville.)
Lord Hodgson of Astley Abbotts:My Lords, this has been an odd Bill in the sense that we have had the cart before the horse—the horse being the company law review for the first part and the Charities Bill for the second. It has not been a particularly party political Bill because there has been fairly broad strategic agreement about what we were seeking to achieve, but there were, nevertheless, several lacunae or weaknesses that we were able to address in Committee—in particular, the regulatory burden.
It is good that the Government have listened and I should like to place on record our thanks to the noble Lords, Lord Sainsbury and Lord Evans, who arranged the meetings at which we were able to examine the issues that concerned us and to explain how we felt that they could best be remedied. As a result I am happy to agree with the Minister that we have improved the Bill significantly during its passage through the House.
Perhaps I may add my thanks from these Benches to Keith Masson and the Bill team. I know that at an earlier part of the proceedings I said that he had drafted a wonderful chart of the new FRC structure. He subsequently told me that it was not him, but someone else in the Bill team who was responsible and I am happy to place on record my thanks to whoever it was who drafted that particular part of the Bill it was very helpful, given the dense nature of the first section.
We also offer thanks for the external help and advice we had from the Law Society, the Institute of Chartered Accountants in England and Wales, Ashursts and from George Bompas QC, who was helpful on various aspects of extraterritoriality and the investigative side.

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We on these Benches conclude by saying that good corporate governance and a strong charitable sector are clearly important parts of our society. In so far as the Bill encourages both of those, we wish it well.
Lord Sharman:My Lords, I echo the sentiments of the noble Lord, Lord Hodgson. The Bill is now improved and significantly workable. I am particularly pleased that the Government listened and took a great deal of action on Clause 9, which was causing some considerable difficulties on this side of the House. I should also add my thanks to the Bill team. I should not admit that it was the first time that I understood the regulatory regime of accountants. So, thank you very much for that. The team has done an excellent job and we now have a Bill that is workable and will be of great benefit. Thank you.
On Question, Bill passed, and sent to the Commons.

Constitutional Reform Bill [H.L.]
5.47 p.m.
The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton):My Lords, I beg to move that the House do now again resolve itself into Committee (on Recommitment) on this Bill.
Moved, That the House do now again resolve itself into Committee (on Recommitment). (Lord Falconer of Thoroton.)
On Question, Motion agreed to.
House in Committee (on Recommitment) accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Boston of Faversham) in the Chair.]
Clause 1 [Guarantee of continued judicial independence]:
Lord Peyton of Yeovil moved Amendment No. 5:
Page 1, line 10, after "not" insert "under any circumstances or by any means"
The noble Lordsaid: In moving this modest and simple amendment, I should first like to comment briefly on the fact that the noble Lord, Lord Richard, yesterday took me to task for having allowed a note of acidity to creep into my speech. My only comment on that is that, given my view of the recent saga regarding the Government's conduct towards the House of Lords, I thought my reaction was more than justified. I have nothing to add beyond that.
The first of my two amendments is rooted in doubt and uncertainty as to whether the Government actually mean what they say. I should be interested to hear what the noble and learned Lord says in reply. It is admirable that the Bill says that Ministers,
"must not seek to influence".
My suggestion is that it would be more impressive if the words,
"under any circumstances or by any means"
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were inserted. I see no reason why they should not be, and that would underline the Government's stated intention and is in no way contrary to what Ministers state is their intention. I hope therefore that the noble and learned Lord will in an act of grace, which would go some way to comfort me, seek to accept the amendment on behalf of the Government. There is no need for me to prolong my remarks. The meaning of the amendment is obvious. I beg to move.
Viscount Bledisloe:Amendment No. 6 is grouped with Amendment No. 5, although the noble Lord, Lord Peyton, has not yet spoken to it. It seems to me that Amendment No. 6 adds enormous force to the issue. At present, Clause 1(3) states:
"Ministers of the Crown must not seek to influence particular judicial decisions through any special access to the judiciary".
Lord Peyton of Yeovil:Perhaps the noble Viscount will forgive me for intervening. He is right: I did not refer to Amendment No. 6. Perhaps I should have done, but I thought that it would be simpler to keep the two separate, even though they are grouped together. After all, I have a right to move Amendment No. 6 in due course.
Viscount Bledisloe:I am in the hands of the Committee. I think that Amendment No. 6 is necessary and that, with that amendment, Amendment No. 5 is unnecessary. However, I shall happily wait until the noble Lord moves Amendment No. 6 before I say why it is desirable. I do not know whether the noble and learned Lord would find it more convenient to deal with the two together or separately. Perhaps he could give us some guidance.
Lord Crickhowell:I rise because my name is attached to Amendment No. 5. I had expected my noble friend to speak to both amendments together, and I think that it would have been helpful if he had. Although I put my name to Amendment No. 5 and not Amendment No. 6, on reconsideration I greatly prefer Amendment No. 6. But the fact is that my concern about this issue is fairly obvious.
It is a rather extraordinary suggestion that Ministers should seek to interfere by having private conversations with judges in order to try to obtain a particular decision. I do not think that is very likely to happen. The idea that they will carry out personal lobbying does not seem to me to be the real threat. The real threat is that there may be an attempt by Ministers, through briefing and so on, to stir up the media to create a campaign on why a particular line taken by the judiciary is wrong and to force the judiciary down a route where the law would not take them. Indeed, it is possible that a Minister would do something that I considered to be extremely unwise, as the Home Secretary did the other day. He commented on the kind of judgment that he would like to see in the case of the individual who had been sentenced in Portugal for offences in connection with football hooliganism.

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I am far more concerned about those wider horns of influence. I think that they would be effectively dealt with in a straightforward clause stating that one must not seek to influence particular judicial decisions. Such a clause would be totally unqualified, and that is what I should like to see us finish up with.
Lord Lloyd of Berwick:At some stage—
Viscount Bledisloe:May I be allowed to finish what I started?
Lord Lloyd of Berwick:Perhaps I may suggest to the Committee that the noble Lord, Lord Peyton, should move Amendment No. 6, to which I should certainly like to add a comment.
Lord Carter:The noble Lord cannot move Amendment No. 6. He moved Amendment No. 5 and that must be dealt with before we reach Amendment No. 6. As they are grouped, it would be easier if the two amendments were debated together and then the noble Lord could dispose of Amendment No. 5, followed by Amendment No. 6.
Lord Peyton of Yeovil:I think that it is the will of the Committee that I speak briefly to Amendment No. 6. I am very happy to do so, and I apologise to all concerned if I made it in any way awkward for them by my failure to do so before.
The words,

"through any special access to the judiciary",
are, first, rather suggestive that people have a habit of making secret approaches to the judiciary. I think that that is totally unjustified. Secondly, without those words, the clause means all that one wants it to mean, and I cannot see that anything is gained by adding those words to it. I shall be most interested to hear what the noble and learned Lord says, but I cannot think that the words are necessary and it is my intention, in due course, to move that amendment.
Lord Lloyd of Berwick:As my name is added to Amendment No. 6, 1, too, want to say that I cannot see any reason that the obligation under Clause 1(3) should be restricted to cases where the Minister has "special access to the judiciary", whatever those words may mean. So far as I am concerned, they do not have any obvious meaning.
In any event, the restriction is undesirable because it may suggest that Ministers can seek to influence particular judicial decisions when they are not taking advantage of special access. Is that really what the Government intend? I am sure that that is not the case.
Viscount Bledisloe:I can now complete what I was trying to say. I would put the point rather higher than the noble and learned Lord, Lord Lloyd. If one says that Ministers cannot seek to influence particular judicial decisions through any special access to the judiciary, one is accepting that they can seek to influence particular judicial decisions by any other
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means. There is only one possible way in which it is proper for the Government to seek to influence particular decisions and that is by addressing the court either as a party to the case or as an amicus curiae if they are allowed to appear as such. But there is no other way in which it is proper for the Government to seek to influence particular judicial decisions. The words should be removed from the clause and then we would not need the words in Amendment No. 5.
The Earl of Erroll:First, as a layman, I have listened to many debates in this House and I have always gathered that when extra words are added to a measure in this way, thus qualifying it, that immediately implies that anything not included in those words is then allowed. Therefore, as it stands, the clause specifically allows other influence to take place.
Secondly, I think that the wording is intended to deal with the concordat, which we do not know much about. It is trying to say that in the concordat between Ministers and the judiciary there should not be any mechanism by which one can influence the other. I was concerned when I heard about the concordat earlier because I thought that it should be subject to parliamentary scrutiny. At present, the judiciary should be responsible to Parliament and not to a Minister in another place. We are not talking about a true separation of powers, and I think that this is one of the hidden, underlying examples of where the powers are not separated because we have a concordat that is not subject to parliamentary scrutiny.
Lord Carter:Lord Carter: With regard to
Lord Campbell of Alloway:Lord Campbell of Alloway: Amendment No. 6—
Lord Evans of Temple Guiting:Perhaps we may hear from my noble friend Lord Carter.
Lord Carter:To answer the point made by the noble Earl, the concordat is printed in full as an annex to the report. The amendments that needed to be made to the Bill as a result of the concordat were either inserted into the Bill in the Select Committee or the Lord Chancellor said that he would do so.
The Earl of Erroll:I thought that a concordat could be changed subsequently without parliamentary scrutiny—that is, it is a side agreement. Although the concordat may be as it is at present, future changes to it would not necessarily be subject to parliamentary scrutiny. But I do not understand these matters properly.
Lord Carter:I am sure that if elements of the concordat were not in the Bill and it needed to be changed, it would be fully debated. If they were in the Bill, one would need primary legislation in order to alter it.
Lord Campbell of Alloway:I rise only to support Amendment No. 6—for some of the reasons that have been given.
Lord Falconer of Thoroton:I start by making two procedural points. First, the speech made by the noble

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Lord, Lord Peyton, yesterday was a little acidic, but I have always thought that the point of the noble Lord was his acid. I hold him in the highest possible affection and did not take any offence whatever yesterday in relation to his speech.
Secondly, with regard to the Committee stage yesterday evening and, again, this afternoon, perhaps I may say as a spectator—I feel like a bit of a spectator in this—that our proceedings are becoming somewhat private. No one appears to be able to make a speech from beginning to end; everyone who speaks is primarily a member of the committee; and everyone else who then intervenes is treated like an outsider. I do not know what other noble Lords think, but it may be more sensible for us to proceed in the conventional, rather than the unconventional, way.
I turn to the points raised in the two amendments tabled by the noble Lord, Lord Peyton, and, first, to the words,
"through any special access to the judiciary".
The subsection was expressed in that way precisely for the reason given by the noble Viscount, Lord Bledisloe. There are cases in which, quite legitimately, a Minister will wish to influence the court. As the noble Viscount, Lord Bledisloe, said, one such occasion is when he is appearing as a party in the proceedings. He will seek to influence, and that is why the clause is worded in that way.
The noble Lord, Lord Crickhowell, expressed the fear that public campaigns might be used to seek to put pressure on the judiciary. That is dealt with by the Contempt of Court Act. The courts have been robust in stating those things that they can resist. This is slightly different. Where juries are involved, the courts have quite rightly been much more susceptible and tried to ensure that no sort of campaign is started. But broadly I do not think that there is much dispute between us as to what we seek to achieve; namely, no undue influence on the judges; that it is plainly quite legitimate to argue one's case in court; and not to start campaigns or behave improperly in relation to that, but that is dealt with by the Contempt of Court Act.
Amendment No. 5 seeks to insert the words,
"under any circumstances or by any means".
Following up what the noble Earl said, it is best not to insert words that are unnecessary. To insert those words after the words "must not" would not add anything to the Bill. "Must not" is absolute. It does not need further clarification. Amendment No. 5 is unnecessary to achieve the purpose that the noble Lord wishes to achieve. In those circumstances, I hope that the noble Lord will feel able to withdraw his amendment.
6 p.m.
Viscount Bledisloe:In the light of what the noble and learned Lord said about representations, would he be prepared at the next stage to delete the words,
"through any special access to the judiciary",
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and insert, "save by legal representations made in court"?
Lord Falconer of Thoroton:I think that it is okay the way that it is done.
Lord Peyton of Yeovil:I am grateful to the noble and learned Lord. I am not really surprised. I agree that on the whole the words do not add anything. I just wanted them to underline what the Government have said. After all that has happened, one sometimes has doubts, if I may put this gently, as to the durability of the Government's intentions. I say no more than that. I am content to beg leave to withdraw the amendment. However, before I do that, as Amendment No. 6 is grouped with this amendment, I am not at all sure what the noble and learned Lord said; that is, whether he is willing to accept Amendment No. 6 or whether he will take it away and think about it. I did not gather what his intention was.
Lord Falconer of Thoroton:As I made clear—I apologise to the noble Lord that I did not make it clear before— no, I am not minded to accept it, nor to take it away and think about it.
Lord Peyton of Yeovil:If it is clearly the noble and learned Lord's intention to reject the amendment, I will take it away and think about it and perhaps come back with a repetition on Report. First, it conveys an impression which is not very nice and, secondly, the words which would remain in the clause are quite sufficient to stop any kind of influence by Ministers anywhere, and this adds nothing. However, in the circumstances, I am content to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 6 not moved.]
The Deputy Chairman of Committees (Lord Boston of Faversham):I must point out to the Committee that if Amendment No. 7 is agreed to, I cannot call Amendment No. 8.
Lord Kingslandmoved Amendment No. 7:
Page 1, line 12, leave out "Secretary of State for Constitutional Affairs" and insert "Lord Chancellor"
On Question, amendment agreed to.
[Amendment No. 8 not moved.]
Lord Goodhartmoved Amendment No. 9:
Page 1, line 12, leave out "have regard to" and insert "respect"
The noble Lord said: Amendment No. 9 is grouped with Amendments Nos. 10 to 13 and Amendment No. 16. Amendment No. 9 is intended to bridge what appears to me to be a gap between two positions to call them "extreme" might be putting it a little high—which are some way out of the middle ground. As I said, Amendment No. 9 is intended to bridge that gap, and so is Amendment No. 19, which was partly spoken to yesterday.

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In Clause 1(4) the Government state that the Minister must have regard to—the key words are "have regard to"—the need to defend the independence of the judiciary, the need to provide support for the judiciary and the need for the public interest to be represented in decisions affecting the administration of justice. I believe that the words "have regard to" in the context are extremely and undesirably feeble. Regard can be had to all sorts of matters. For example, regard may be had to the outcome of next week's by-election.
Lord Roper:That is tomorrow.
Lord Goodhart:I was speaking in a general sense. The words "have regard to" do not indicate any priority for the defence of judicial independence over other factors. On the other hand, I believe that Amendments Nos. 10 to 13 go too far the other way by imposing duties on the Minister which appear to be justiciable. Amendment No. 16 goes further still because the use of the word "unlawful" makes it plain that the relevant duties are intended to be justiciable.
That is of particular importance in relation to Clause 1(4)(b). That is the paragraph that refers to,
"the need for the judiciary to have the support necessary to enable them to exercise their functions".
If that is a justiciable duty, it could be for the court to decide whether the Minister had provided the support needed by the judiciary in the event of a dispute. I do not know how, in those circumstances, one could possibly find an impartial court to decide that issue. But if one could, it would then extend the existing powers of the court to control powers of spending by the Government. That is an undesirable step towards government by judges rather than by elected representatives.
Amendment No. 9 replaces the words, "have regard to" with "respect" in relation to the independent judiciary. Amendment No. 19 creates similar wording in relation to the rule of law. I believe that "respect" is stronger than "have regard to". It creates a higher benchmark for the Minister to apply when he or she is making a decision, but it leaves that decision on issues such as the needs of the judiciary within the discretion of the Minister. It does not create an objective test that can be examined and enforced by the courts. I think that that is the right balance. I beg to move.
Lord Windlesham:Amendment No. 10 is tabled in my name also. I support what was said by the noble Lord, Lord Goodhart. It seems to me that "respect" is somewhat stronger than "have regard to". These are very fine distinctions and it is highly unlikely that we will find cases before the court in which the Secretary of State of the day has to justify the significance of the word that is used in the statute. On the other hand, in a way, these are demonstrative. They indicate the seriousness of purpose, the gravity, of the clause. I would hope that the noble and learned Lord the
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Lord Chancellor might be willing to consider them very carefully. If he believes that there are substantial differences in practice, perhaps he would tell us.
Viscount Bledisloe:Amendment No. 10, which appears also in my name, does two things. First, it incorporates into Clause 1(4) the rule of law point. At this stage that is inappropriate because a decision was not reached on that last night. Therefore, I cannot press Amendment No. 10 today. However, more importantly for this purpose, it deals with the question of the right word. I could not agree more with the noble Lord, Lord Goodhart; the words "have regard to" are ridiculously mealy-mouthed for the duty to defend the independence of the judiciary.
I accept also that "respect" is a bit of an improvement, but it does not go far enough. I see nothing wrong with,
"take all necessary steps to ensure that".
I do not think that the question of the change of wording in any way affects justiciability. That matter is dealt with by Amendment No. 16, which I apprehend the noble and learned Lord, Lord Lloyd of Berwick, will want to deal with separately, rather than in this group.
Will the noble and learned Lord the Lord Chancellor do two things: first, accept that "have regard to" is too weak; and, secondly, agree to consider what the appropriate phrase is to make the provision more meaningful? Whether or not one wants justiciability, this is not the right way to get it, without risking incorporating justiciability by the back door. I do not think Amendment No. 10 does that, but the noble Lord, Lord Goodhart is concerned about it.
Some form of wording must be put in Clause 1(4) which is vastly stronger than just saying, "Yes, we take the independence of the judiciary into account, but we take into account a lot of other things. We have taken that into account, but we have dismissed it and come to this conclusion although it will grossly infringe the independence of the judiciary". The phrase is just far too weak.
The Earl of Erroll:Although a layman, I have listened to many debates on this kind of subject. I totally agree that "having regard to" is far too weak. It is the equivalent of saying "must consider". One says, "Well, I have considered it", but with no duty as to the outcome of that consideration. The consideration has to be in a particular direction. I think that certainly one, if not more, noble and learned Lord made that same point in the report. I think that the phrase is far too weak and that something must be done about it with one of the amendments.
Lord Lloyd of Berwick:I support what has just been said by the noble Earl, Lord Erroll. I stand by the spirit of Amendment No. 10, even though at the moment it may not be possible to agree it.

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Perhaps I may also say while I am on my feet that I would seek the leave of the Committee to de-group Amendment No. 16. It really belongs in the group with Amendments Nos. 15 and 16A.
Lord Mayhew of Twysden:I support Amendment No. 10 and distance myself from Amendment No. 9. The noble Lord, Lord Goodhart, a few minutes ago spoke of the need to find a word which was justiciable. It is awfully difficult to think of how the verb "to respect" can be justiciable.
Lord Goodhart:I apologise to the noble and learned Lord. I was really raising quite the opposite point: I was seeking a word which I regarded as having a symbolic value, but which was not justiciable.
Lord Mayhew of Twysden:This is all rather head of a pin stuff. I think that Amendment No. 10 is better, for the reasons that have been advanced, although I am always a little diffident about legislating for all necessary steps to be taken. However, since the amendment has the support in particular of the noble and learned Lord, Lord Lloyd of Berwick, I am prepared to go along with it with some confidence, unless the noble and learned Lord the Lord Chancellor can come up with a word that meets all these objections.
Lord Brennan:If we look at Clause 1 in its entirety, subsection (I) is the exposition of the guarantee referred to in the rubric to this clause. Subsection (4) can only have sense if it refers to the circumstances in which that guarantee will be honoured. It seems to me that whether we use the words "have regard to", "respect" or "take all reasonable steps to ensure", or whatever, Clause 1 is almost incomprehensible unless the Minister adequately has regard to the factors in subsection (4) in order to fulfil the guarantee that he has a duty to fulfil. All we need from my noble and learned friend is confirmation that the subsection buttresses the duty.
Lord Campbell of Alloway:I support Amendment No. 10.
6.15 p.m.
Lord Kingsland:I entirely agree with the noble Lord, Lord Goodhart, that "have regard to" is too weak. It requires the Minister to look at something but thereafter conclude that he does not have to give any weight to it. So, whatever else we do, it is necessary for your Lordships to consider another way of expressing the Minister's obligation under subsection (4).
The noble Lord, Lord Brennan, with great respect to him, is correct in saying that the primary obligation is in Clause 1(1); and I suppose that the operational paragraph in respect to that is subsection (4). So there is an absolute obligation in subsection (1) to uphold the independence of the judiciary; and under subsection (4), the Secretary of State for Constitutional Affairs shall have regard to whether or not he needs to defend that independence. In my submission, that is an unfortunate dilution of the obligation in Clause 1(1), and for that
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reason alone the Minister needs to look again at the wording in subsection (4). I prefer Amendment No. 10, which makes the obligation much clearer and is more satisfactorily expressed.
Lord Falconer of Thoroton:There is broad agreement between the speakers: first, that they do not wish to make the effect of Clause 1(1) or (4) subject to legal proceedings; and, secondly, that the words "have regard to" are too weak. On the first point I agree with those noble Lords who say that we are not seeking to create any sort of basis for legal proceedings.
Lord Lloyd of Berwick:I am sorry to interrupt. That is exactly why I sought the leave of the Committee to de-group my amendment because that is exactly what I shall be suggesting should be done. I do not think that anyone has addressed that point yet.
Lord Falconer of Thoroton:I was wrong because the noble and learned Lord, Lord Lloyd of Berwick, was a speaker in the earlier debate but failed, quite rightly, to say what his position was. But all those who spoke in substance in relation to it were of that view. That approach reflects broadly the division in the Select Committee. The noble and learned Lord, Lord Lloyd of Berwick, was much keener to enforce these rights by proceedings than anybody else in the committee. The position he has just stated reflects his stance but it is not the position of noble Lords supporting these particular amendments.
Viscount Bledisloe:The noble and learned Lord is not entirely right. I was saying that I am not seeking by the words in Amendment No. 10 to render the provision justiciable. Whether or not it is to remain justiciable by Amendment No. 16 is a totally separate question. I was saying that in no way am I seeking by the back door, with Amendment No. 10, to render it justiciable. I have not yet spoken on the question of whether or not I think it should be justiciable.
Lord Falconer of Thoroton:Again both the noble and learned Lord, Lord Lloyd of Berwick, and the noble Viscount, Lord Bledisloe, are entirely right. Although they did not mention it in their speeches, the noble and learned Lord, Lord Lloyd of Berwick, does want the provision to be justiciable and the noble Viscount, Lord Bledisloe, is not yet telling us whether he want it to be justiciable. I apologise for not making both those points clear. But—in my own defence
they had not said it.
The amendments deal with a very serious matter, which is of huge significance, and the wording requires considerable thought. I do not say that we can get it better than "have regard to" considering what one seeks to achieve in this subsection. I shall set out our thinking and then deal with the specific amendments.
As I said yesterday in response to the rule of law amendment, it is not the intention to work radical changes to general constitutional principles outside the scope of the Bill. The "have regard to" language in Clause 1(4) was decided upon to ensure that the

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Lord Chancellor has a duty to act in accordance with the stated objectives while at the same time acknowledging that policy formulation and the substance of decisions must be for him but subject to that duty; that delivery of the objectives is not always within his exclusive gift; and that his existing constitutional position as a member of the Cabinet should not be undermined. I hope that it is obvious to Members of the Committee that the present wording of Clause 1(4) in no way detracts from the fact that the Lord Chancellor will be bound, along with all other Ministers, by the general duty to uphold the independence of the judiciary in Clause 1(1). This preserves collective responsibility because the same duty will be applied to all Ministers.
The amendments tabled by the noble Viscount, Lord Bledisloe, would impose on the Secretary of State an absolute duty to take whatever steps were necessary to ensure that the outcomes in Clause 1(4) were achieved. That would leave the Secretary of State exposed to judicial review on the merits of the question of what is and what is not a necessary step to achieve the objective in question. That would be completely unprecedented; it would impose an unacceptable burden on policy formulation and decision-making by the Lord Chancellor.
The problem would be particularly acute given that informed and reasonable opinion could differ substantially on the question at issue, particularly in relation to such controversial matters as the rule of law which are still in the clause. That may not be a very good point to make if the noble Viscount is putting that to one side for the purposes of this part of the debate. The amendment also fails to take account of the broader picture. As I said, the objective specified will not always be in the exclusive gift of the Lord Chancellor; the same is the position now. It therefore does not make sense to impose an absolute duty on the Lord Chancellor as the noble Viscount's amendment would do.
There is one further reason why I oppose the noble Viscount's amendment. It fails to take proper account of the role of the Lord Chancellor in the context of Parliament. The absolute legal duty created by the amendment would apply to the Lord Chancellor when he was exercising functions in connection with parliamentary proceedings. As the duty would be in absolute terms, with no reference to such proceedings, questions could arise on the legality of the Lord Chancellor's actions in Parliament, including his position on Bills and the content of his speeches. I am sure that the content of some of my speeches would have been alleged to contravene parts of the proposal that the noble Viscount makes in his amendment, but I cannot believe that that is what he had in mind.
I will not deal with the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick, as he will deal with it separately.
Amendment No. 9, spoken to by the noble Lord, Lord Goodhart, would insert the words "must respect" in place of "have regard to". An obligation to have regard to something has accepted meaning in
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public law; an obligation to respect something does not have the same meaning. That may not be a reason not to support it, as it may be an indication that it is not intended to be justiciable. It would, however, be a step into the unknown. It might be stronger or weaker than the duty imposed by the existing text; we simply do not know in legal terms. The Lord Chancellor would have difficulty in determining what he had to do to comply with the duty. That would not be an acceptable outcome of our deliberations on the Bill.
Having said that, I note noble Lords' concerns about whether the wording is adequate. I will think about it, not with a view to coming back with something that leads to the possibility of legal proceedings, but with a view to coming back with something that, if possible, reflects—as the noble Lord, Lord Windlesham, said, although these were not quite his words—the appropriate importance of the duty being imposed. I take that to include all the sorts of things that the noble Lord was saying. "Gravity" would be an even better word. In those circumstances, I invite noble Lords either to withdraw or not to move their amendments.
Lord Richard:Before my noble and learned friend sits down, perhaps he could help me with a point. I accept entirely what he says about the absolute duty that Amendment No. 10 imposes. Does he have the same problems if it ceases to be necessary actions and becomes actions which are reasonable? I am not sure whether that creates the same problems.
Lord Falconer of Thoroton:Inserting the word "reasonable" would direct one much more towards court it would have a court feel. Therefore, I would be worried about the justiciability issue.
I have not yet answered the noble Lord, Lord Brennan. I would not necessarily wish to restrict Clause 1(1) to the factors in Clause 1(4). Clause 1(1) imposes a duty on all Ministers; Clause 1(4) refers specifically to the Secretary of State for Constitutional Affairs. It may go wider than the duty on the Secretary of State or the Lord Chancellor in Clause 1(1).
Lord Brennan:That was my intent. Perhaps my noble and learned friend can clarify a point that arose in debate last night and he mentioned several times in his closing remarks on this amendment. Do I understand him to be saying that the Government read Clause 1(1) as meaning that every Minister of the Crown owes the duty to support this guarantee whether or not that Minister is involved in matters relating to the judiciary?
Lord Falconer of Thoroton:Yes, that is how I read it.
Lord Brennan:I am grateful.
Lord Goodhart:We have had an interesting, if slightly chaotic, debate. On our Amendment No. 9, 1 have no absolute commitment to the word "respect" and shall consider possible alternative words.

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However, I remain of the view that "have regard to" is an inadequate form of words. I am grateful to the noble and learned Lord for saying that he would think about the matter, although without any great enthusiasm for a change. I, too, will think about it. Depending on what happens in the interim. I may come back at a later stage with either this or alternative wording in a similar amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Boston of Faversham):I must point out to the Committee that if Amendment No. 10 is agreed to, I cannot call Amendments Nos. 11 to 13 inclusive.
[Amendment No. 10 not moved.]
[Amendments Nos. 11 to 13 not moved.]
Lord Falconer of Thorotonmoved Amendment No. 14:
Page 2, line 5, at end insert—
"(5) In this section "the judiciary" includes the judiciary of any of the following—
(a) the Supreme Court;
(b) any other court established under the law of any part of the United Kingdom;
(c) any international court.
(6) In subsection (5) "international court" means the International Court of Justice or any other court or tribunal which exercises jurisdiction, or performs functions of a judicial nature, in pursuance of—
(a) an agreement to which the United Kingdom or Her Majesty's Government in the United Kingdom is a party, or
(b) a resolution of the Security Council or General Assembly of the United Nations."
The noble and learned Lord said: I spoke to this amendment yesterday. I beg to move.
On Question, amendment agreed to.
Viscount Bledisloemoved Amendment No. 15:
Page 2, line 5, at end insert—
"( ) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the independence of the judiciary and the rule of law."
The noble Viscount said: This amendment seeks to give effect to a point made to the Select Committee by Lady Justice Arden on behalf of the working group of the Judges' Council. Rather than put it in my own words, I shall venture to read as my argument from paragraph 77 of the report. On behalf of the working group of the Judges' Council, Lady Justice Arden argued that Clause 1,
"should be given some enhanced status to prevent inadvertent implied repeal. It is not a question of entrenching it because it would be open to Parliament to depart from judicial independence if it wished to do so, although it would have to use clear language. The enhanced status would be achieved by imposing an interpretive obligation along the lines of section 3 of the Human Rights Act 1998. That provides that, so far as it is possible to do so, primary and subordinate legislation must be read in effect in a way which is compatible with convention rights. We suggest that
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that could be adapted to Clause 1 of the Constitutional Reform Bill and what goes for the independence of the judiciary goes for the rule of law as well if Parliament thought it right to include that in Clause 1 or a similar Clause".
Of course, the amendment also suffers, for present purposes, from the fact that it includes, "the rule of law", when we do not yet have that in the Bill and we have not yet decided how that is to be dealt with. I invite the noble and learned Lord the Lord Chancellor to say that he is in principle agreeable to the proposition advanced by Lady Justice Arden on behalf of the Judges' Council, and that he will give effect to an amendment on those lines, though as I said because of the rule of law point, one cannot press it at the moment. I beg to move.
6.30 p.m.
Lord Maclennan of Rogart:Amendments Nos. 15 and 16A that are grouped seem somewhat oddly placed in a clause that is directed towards spelling out the duty of the Lord Chancellor. The amendments appear to seek to impose a duty on the courts, a restrictive interpretation, which is a bid to entrench the provisions of Clause 1.
Amendment No. 15 seems in a sense otiose, even if it is in the right place in the Bill. If one pauses to consider, it is inconceivable that judges would interpret legislation, be it primary or subordinate, in a way that suggested that it was not intended to be compatible with the independence of the judiciary and the rule of law. It seems to me that in her evidence Lady Justice Arden was making a proposition that is certainly unconventional in our constitutional law. We have not normally espoused the methods of entrenchment of the kind that she suggested. Judges are free to interpret the law as they like, but something that is plainly incompatible with the independence of the judiciary and the rule of law is unlikely to be a matter giving rise to great doubt as to the intentions of Parliament. It also seems inconceivable that such a measure would have reached the statute book without the intentions of Parliament having been made clear.
Amendment No. 16A appears to seek to draw on the experience of the Human Rights Act to empower a declaration of incompatibility to be given by the court. That raises grave questions of uncertainty. Here, to some extent, I embrace the arguments advanced on an earlier amendment by the noble Lord, Lord Brennan, about what is meant by "the rule of law". In the case of the Human Rights Act on which this appears to be based, the provisions of law that a particular new provision is declared to be incompatible are spelled out clearly in law. However, we have no such agreed acceptance as to what is meant by "the rule of law".
I do not think it wise that a general constitutional principle should be translated almost inadvertently into something that it would be open to the courts to seek to interpret in a way that might be unpredictable to Parliament at this stage. That is going too far. In respect to the clause, it is right that the provisions should be there as declaratory of constitutional principle, but they should not be capable of giving rise

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to actions in the court based on calling into question the compliance of the Lord Chancellor with the undefined concept of the rule of law.
Lord Kingsland:I am most grateful to the noble Lord for giving way. I would like to be clear about the noble Lord's objections to the expression, "the rule of law", in this context. I presume that, at the time that the European Convention on Human Rights was incorporated in English, law the noble Lord supported that initiative by the Government. If that is so, in principle the noble Lord must accept that it is possible by the methods set out in the amendments— indeed, it is desirable by the methods set out in the amendments— to test primary legislation against the principles set out in the European convention.
If the noble Lord accepts that, the only difference between the requirement to test primary legislation against the rule of law and the requirement to test primary legislation against the convention is that, unlike the convention, the rule of law is not set out in a document that has been interpreted by judges over a period of time. If my analysis is correct, surely the only objection that the noble Lord can have to this amendment, particularly to Amendment No. 16A, is that the rule of law is not set out in specific terms in a legislative document against which primary legislation can be measured.
Lord Maclennan of Rogart:It is clear that the noble Lord, Lord Kingsland, accepts that the parallel between the Human Rights Act, which is set out not only clearly in itself as an Act, but which draws on the whole jurisprudence of the preceding considerations of the European convention in the Strasbourg Court, has given a high degree of particularity to the rules with which particular legislation might be declared incompatible. There is no such particularity about the rule of law. I submit, with respect, that it would be difficult to do that. It would be almost as difficult as to say that the courts would be entitled to strike down a measure because it was incompatible with democracy, which this Parliament is deemed to favour and support. Democracy, the rule of law, and justice are broad constitutional principles—they are not precise rules that are capable of enforcement by the courts. It is legislating without clarity as to what would be the precise consequence to give effect to the amendments that have been set out in this way.
Lord Renton:I should confess that, nearly 30 years ago, I was chairman of the only official committee since 1870 to advise on how Acts of Parliament should be drafted. Another member of that committee was the noble Lord, Lord Richard. We sat for two years, but, unfortunately, after he had been with us for a year, he took up an appointment that caused him to resign—much to my regret.
We laid down principles for ensuring that drafting was clear, legally enforceable and easily interpreted. I confess that I think that Amendment No. 15 would have given us no doubt. However—I say this with the
deepest respect to the noble and learned Lord,
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Lord Lloyd of Berwick, for whom we all have the greatest admiration —I am worried about Amendment No. 16A. It says:
"If a court is satisfied that a provision of primary or secondary legislation is incompatible with either the independence of the judiciary or the rule of law it"—
the court—
"may make a declaration of that incompatibility".
I am keeping an open mind about that, and the Committee may feel that it is right. However, although we had, if I may say so, a very strong committee, with two retired Law Lords on it, we were never asked to consider the matter of incompatibility with the independence of the judiciary. We were conscious of the independence of the rule of law.
The Committee may feel that I am making heavy weather of this; I hope not. It is something new. I recollect no statutory provision that required a court to consider incompatibility with the independence of the judiciary. It is not an easy matter. In some circumstances, it may give rise to great problems of interpretation. I mention it just in case the noble and learned Lord, Lord Lloyd of Berwick, would care to make any comment about it or even say that it is something new and something that he would prefer to reconsider.
Lord Lloyd of Berwick:I rise primarily to support Amendment No. 15, moved by the noble Viscount, Lord Bledisloe, for the reasons that he gave. Secondarily, I thank the noble Lord, Lord Renton, for the kind things that he has just said about me. However, I shall duck the question that he asked, by suggesting that it might be answered by the noble Lord, Lord Kingsland, whose name stands first in respect of that amendment. Having ducked that question, I shall speak briefly to Amendment No. 16, which is based, quite simply, on Section 6 of the Human Rights Act 1998, which provides that it is unlawful for a public authority to act in a way that is incompatible with a convention right.
If Clause 1 is to be an effective— I emphasise the word "effective"—substitute for the presence of the Lord Chancellor in Cabinet, which was, as I understood from the debate on 12 March, the original intention of the clause and, I imagine, is still the intention of the clause, it must be given some teeth. Unless it is enforceable, a statement of duty is, in the words of Professor Jolowicz, which we all learnt yesterday, sometimes called "lex imperfecta". I prefer the immortal words of Daisy Ashford, who talked about "piffle before the wind". By themselves, the words mean nothing, unless they are, in some way, enforceable.
The duty is specifically imposed on Ministers by Parliament, and the only way to give it meaning and effect is to say simply that, if a Minister acts in a way that is contrary to the duty imposed by Parliament or proposes to act in such a way, he is acting unlawfully. What on earth could be wrong with that?
I accept that the matter could probably be tested in the courts, although that would be for the courts to decide. The noble Lord, Lord Maclennan of Rogart,

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said that that would be undesirable and that there would be too much litigation. There would not. There is no reason to suppose that anybody could bring proceedings to enforce the duty unless he had some locus standi. In the absence of someone with locus standi, it would, in accordance with the ordinary law, be for the Attorney-General to bring proceedings as guardian of the public interest, a well known role of the Attorney-General. It will happen once in a blue moon, no more frequently. It will not happen often because, one hopes, Ministers will not act in breach of their duty.
6.45 p.m.
Lord Maclennan of Rogart:Can the noble and learned Lord recall any instance in which the Attorney-General has brought proceedings against a Cabinet colleague that is at all cognate to the circumstance that he suggests?
Lord Lloyd of Berwick:I am afraid that my hearing aid was not acting correctly. Perhaps I may see the noble Lord afterwards and answer him privately. I did not quite hear what he said.
I am sure that the noble Lord cannot be challenging the idea—I am sure that the noble and learned Lord the Lord Chancellor would not challenge it either—that, in certain circumstances, the Attorney-General has a duty to act on behalf of the public in enforcing a duty owed to the public. It is a well established role for the Attorney-General. It would happen very infrequently, but, in the absence of some form of ultimate fall-back on the power of the courts, the duty means nothing. That is why I propose that the amendment should be made.
Lord Mayhew of Twysden:I respectfully support and endorse what has just been said. Things will have come to a pretty pass —not, in practical terms, a foreseeable pass—if the Attorney-General were to take such steps against one of his own Ministers—I do not mean one of "his own" Ministers; I mean "one of his colleagues". None the less, that does not deprive what is proposed of any force. It will concentrate Ministers' minds. Why? Because, as they contemplate one version of draft legislation as against another, an official will say, "Don't forget, Minister, that this is legally enforceable, and you may get somebody taking you to court on judicial review because you have arguably contravened it". It will concentrate the mind. I have a little experience of such situations, so I regard that as entirely practical and foreseeable.
Lord Richard:I want to make two points. The noble and learned Lord, Lord Mayhew of Twysden, said that such a move would concentrate minds. It may do, but one must ask what it is that would become justiciable according to the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick.
With the amendment, the Home Secretary would have obligations to uphold the rule of law. Is it being seriously argued that somebody could take the Home Secretary to court on an application for judicial review
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because he had not provided enough police in Liverpool? Could the Lord Chancellor be taken to court because he had not provided enough judges in Cleethorpes? Once the doors are opened to such an obligation, the possibilities for and ramifications of judicial—I hesitate to use the word "meddling" because it would not be sufficiently polite to the judges—intervention are enormous.
I cannot believe that when the noble and learned Lord who has just sat down was Secretary of State for Northern Ireland he would seriously have welcomed a situation in which, under an obligation to uphold the rule of law, practically whatever he did in terms of security in the Province would be potentially justiciable presumably by any individual who claimed to be affected by it. It is much too wide. That is my principal argument against Amendment No. 16.
It is all very well for the noble and learned Lord, Lord Lloyd of Berwick, to say that there have to be some teeth. There may have to be a clear statement of what the Minister responsible has to do, but to open the floodgates to the extent that this amendment would, in my very respectful submission to the Committee, is going much too far.
I had thought that the noble and learned Lord, Lord Lloyd, had ungrouped the other two amendments. But as regards Amendments Nos. 15 and 16A, I feel for the poor judge. What does he have to do under Amendment No. 16A? The amendment states:
"If a court is satisfied"
so the judge has to be satisfied—
"that a provision of primary or secondary legislation is incompatible with either"—
of two concepts, which are pretty inchoate and certainly are not expressed, are not defined and are not codified—
"the independence of the judiciary or the rule of law it may make a declaration of that incompatibility".
That would impose an extraordinary burden on a judge.
In effect, that says that a judge should have the power to strike down—or make a declaration of incompatibility, which is much the same thing—an Act of Parliament on the basis that he, the judge, considers that it is incompatible with,
"the independence of the judiciary'
or the operation of the rule of law.
Sitting on this side of the House, holding the views that the House knows that I hold on Europe and European development, I have heard time and again from the Benches opposite arguments about the constitutionality of the absolute necessity for enforcing the sovereignty of Parliament against the great intrusions that are coming from Brussels. One should not hand over to courts the possibility of striking down Acts of Parliament—indeed, whether primary or secondary legislation.

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There is a certain inconsistency in the approach put forward in this amendment. To ask judges, in effect, to judge the constitutionality or otherwise of an Act of Parliament is a very dangerous road down which we should not go.
The Earl of Erroll:I should like to comment on that. I have some comments to make on Amendments Nos. 15 and 16A and several to make on Amendment No. 16. I think that what the noble Lord, Lord Richard, has just said is nonsense since Pepper v Hart. In Pepper v Hart, because law passed by the British Parliament was not compatible with the intention of some European legislation, I thought that the courts looked at it and either struck it down or altered it. I do not know the detail.
Lord Richard:The point is that that is a matter put up by way of complaint. In other words, the fact that a British court has to strike something down because it is incompatible with the European Court is a matter of complaint being made by the other side, not a matter of pride.
The Earl of Erroll:The British courts are having to do that already. To say that this is a totally novel concept is not valid. I do not see why, if we are erecting a Supreme Court, it should not be able to defend democracy and itself. Surely, Amendment No. 15 simply states that the court can interpret anything in the correct way according to this Act. Amendment No 16A says that a court can declare that a provision is incompatible which, effectively, will send it back to Parliament for reconsideration. As we move more from common law to statute law, we have to look at other protections and protections to which we are not used. That is my first point. I do not agree with anything that the noble Lord, Lord Richard, said.
Secondly, Amendment No. 16 is very important. As a member of the public, I do not see why any Minister should feel that he is above the law. In some foreign countries, we see that certain leaders are above the law. We do not respect that at all. I do not have any problems with the concept that a Minister should have to obey the law. From what the noble and learned Lord, Lord Lloyd of Berwick, said, I understand that this is an ECHR obligation. So putting it into this Bill will not alter the fact that the matter will be either brought to a British court or to the ECHR if a Minister does not obey the law. Taking the point made by the noble Lord, Lord Richard, I do not think that this has got anything to do with the provision of police whatever. It is about the independence of the judiciary.
Lord Crickhowell:Again, as a non-lawyer, I hesitate to intervene in this debate between many expert lawyers. But I am prompted by the speech made by the noble Lord, Lord Maclennan, who based a great deal of his argument around the effect of these amendments on the rule of law part of Clause 1. Of course, as the noble Viscount, Lord Bledisloe, pointed out, we have not got around to dealing with the rule of law point.
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It is worth observing that the Judges' Council and Lady Justice Arden, who were responsible for introducing the whole proposal, did not put forward the proposal in connection with the rule of law at all. On referring to the examination of witnesses and question 713 in Volume 2 of the Select Committee report, the whole cross-examination at that point, and her evidence, was based on the subject of the independence of the judiciary. It was in that connection that Lady Justice Arden suggested that there were relevant precedents and that the matter could be appropriately dealt with in the way that she suggested.
She also made it absolutely clear in response to a number of questions from the Lord Chancellor notably, questions 720, 721 and 722—that she was concerned about inadvertent implied repeal. The noble and learned Lord, Lord Falconer, said that,
"we would all agree that we…would not want inadvertent repeal of, or limitations".
Lady Justice Arden also made it perfectly clear that, ultimately, of course Parliament could make specific enactments and that the principle of parliamentary sovereignty was not in question.
It is at least worth considering whether the proposal put forward by the Judges' Council and by Lady Justice Arden, which was concerned with the independence of the judiciary, can stand up if we take away the rule of law question with all the difficulties that have been legitimately raised about the definition of the rule of law. As the proposal came from the Judges' Council, at least we should consider it on the basis that it proposed it.
My second point concerns the question of legal enforceability where, as noble Lords who heard my speech last night will understand, we have got back to my King Charles's head and the whole question of the enforceability of Clause 1. I apologise to the noble and learned Lord, Lord Lloyd of Berwick, for saying last night that I thought that it was inconceivable that the clause would be made enforceable. Here he is making a perfectly good and effective proposal for making it enforceable, particularly in connection with the independence of the judiciary.
Again, it is worth our considering—we have all these
difficulties that have been accepted about the rule of law issue—whether this is a matter concerning the independence of the judiciary where it would be better to have a legally enforceable clause.
The Earl of Onslow:Perhaps another non-lawyer may intervene but temporarily. I fail to understand, if one puts a duty on someone to do something and then he or she does not do it, that it should not be enforceable in a court of law. There is no point in doing that unless one does.
7 p.m.
Lord Brennan:Those of us who did not serve on the Select Committee have not suffered the contagion of constitutional enthusiasm, which some of its members are displaying in this debate. This is a chapter dealing

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with the judiciary, a chapter on constitution. Inevitably there is a desire on the part of a convinced democrat and constitutionally minded person to seek to use such legislation as a vehicle for adding on whatever might take their constitutional fancy as the debate goes on. That is totally inappropriate.
Both of these amendments use the phrase,
"the independence of the judiciary and the rule of law".
The independence of the judiciary, in terms of its definition, occupies some seven or eight pages of the United Nations Basic Principles on the independence of the judiciary covering everything from appointment to security of tenure, unreasonable interference and so forth. So the inchoate nature observed by my noble friend Lord Richard is illustrated as regards the independence of the judiciary just as it is on the rule of law.
Let me give an example. Let us suppose that the Chancellor of the Exchequer, with the agreement of the Cabinet, decided that economic circumstances in the country required a 30 per cent cut in judicial salaries, or even pensions. In many countries it would be plausibly argued that, whatever the intent, that would in fact interfere with the independence of the judiciary because it would affect their security of tenure and their independence from state salary considerations. That has arisen in many countries as a constitutional argument. I simply cannot accept that the phrase, "the independence of the judiciary" has some kind of purist interpretation easily applied by a court which has to determine whether or not it is being observed.
Turning to the rule of law, the debate we are having now may be repeated later, in particular by the noble Lord, Lord Kingsland, in this context, and it is the elision of the phrase "rule of law" with the contents of the Human Rights Act. The preamble to the Act refers to the rule of law, but none of the clauses of the convention and none of the sections of our Act refer to it—and they do so with consideration. That is because the convention and the Act set out specific rights which become justiciable and in respect of which as to legislation there may be a declaration of incompatibility. So it is entirely misleading to invite us to treat the rule of law as readily to be assimilated with the provisions of the Human Rights Act and easily applicable in interpreting clauses if they are amended in this way. That is not so.
The inchoate nature of these two concepts, as my noble friend Lord Richard put it, illustrates how I began. This is a chapter about the judiciary in our constitutional history. We are not accustomed to debating constitutional legislation in this place; it rarely happens. Distinguished though the lawyers are on the Select Committee, I was not able to identify any one of them as a specialist constitutional lawyer, nor do I see one in the Chamber today. When we seek to add a little bit to this chapter, as I call it, we must be extremely conservative.
The time may come when we do consider in this House the general declaratory principles of a constitution. In order to do that, there should be full consultation and full
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debate before it reaches this House. The example is that of the American Constitution. The first articles are declaratory. It is in the main the subsequent amendments that cause litigation in the United States because it was by those amendments that specific rights were created as regards freedom of expression and so forth which then became justiciable and enforceable. In America they do not litigate Article 1 of the Constitution, and neither should we, in the debate on this clause or on others, seek to introduce into this legislation about the judiciary general concepts of constitutional significance. If we are tempted to do so, we should look at them with strict intellectual rigour.
Lord Lloyd of Berwick:The difficulty here is that the noble Lord was not present at the meetings of the Select Committee. Throughout the two or three months of our consideration of the Bill, the noble and learned Lord the Lord Chancellor promised us a provision to cover the rule of law. We are still waiting for a provision to cover the rule of law—or at least I think we are, but perhaps I am wrong.
Lord Falconer of Thoroton:The remark of the noble and learned Lord, Lord Lloyd of Berwick, is profoundly unfair, for two reasons. First, the points made by my noble friend Lord Brennan were not remotely related to the detail of the rule of law provision. The noble and learned Lord, Lord Lloyd of Berwick, shakes his head, but they were not. The noble and learned Lord is seeking to imply that the precise terms of the provision affected what my noble friend Lord Brennan said, but they most certainly did not. The point made by my noble friend, one that in my view is entirely fair, was that the way that the rule of law and the independence of the judiciary are drawn in these provisions has a huge effect on the constitution. The noble and learned Lord, Lord Lloyd, seeks to respond to that by saying that I have taken such a long time to produce my rule of law clause that the point cannot readily be dealt with unless we are in Committee. With the greatest respect, that seems wrong.
My second point is that I did indeed produce such a clause.
The Earl of Onslow:I should like to ask the noble Lord, Lord Brennan, a question. Are not the words set out in Clause 1(1),
"must uphold the continued independence of the judiciary",
declaratory?
Lord Brennan:I shall rarely have the opportunity of watching my noble and learned friend the Lord Chancellor leap to my defence, and I am grateful to him for that. But I am able to deal with the point put by the noble and learned Lord, Lord Lloyd, in one particular way. Whatever took place in the Select Committee, and on my reading of the evidence before the Committee, the fact is that these concepts have not been the subject of any refined constitutional analysis. The phrases have been bandied around as if they are easy to understand and generally applicable. They are

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not. With great respect to Lady Justice Arden, she herself is a company lawyer. The Judges' Council embraces the entire gamut of the judiciary; I am not aware that any one of them would call himself a constitutional specialist.
I turn to the intervention of the noble Earl. My whole point is that Clause 1 is declaratory, as are most constitutional principles. They are not by their nature intended to be enforceable before the courts. That is why in America the amendments arrived. They did so because people wanted specific rights.
I am sorry to make the point and I am not being critical of the Committee, rather I am simply trying to invite Members on the other side to approach matters conservatively.
The Earl of Erroll:From what the noble Lord, Lord Brennan, has said, I gather that he thinks that because this Bill deals with broad constitutional principles it should not have been brought before this House before it had been discussed properly on a philosophical basis outside. Is that what he is trying to tell us?
Lord Brennan:No, I was saying that this particular Bill is limited in scope which has been reasonably investigated. To extend it beyond its present scope should not take place without the kind of debate outlined by the noble Earl.
The Earl of Onslow:I am sorry to come back to this, but the noble Lord has said that the clause is declaratory and is not supposed to be enforceable. What on earth is the point of passing laws which are not supposed to be enforced? I may not be a lawyer, but I think I understand that that is a silly way to behave.
Lord Brennan:I had already resumed my seat and I shall remain in my place.
Lord Kingsland:The noble Lord, Lord Brennan, said that this Bill is of limited scope; but it is described as the Constitutional Reform Bill and it seeks to enact the biggest constitutional reform of the judicial arm of our country since the Act of Settlement. I must also say that I am rather concerned about the anxiety expressed on the Government Benches about the insertion of "the rule of law" in a document which seeks to guarantee constitutional reform.
There should be nothing surprising to your Lordships' Committee about the amendments under discussion, Amendments Nos. 15 and 16A. The approach they take is entirely familiar; the wording is almost identical to the wording in the Human Rights Act 1998, which was promoted from the Government Benches under the leadership of the noble Lord, Lord Richard.
Amendment No. 15, which concerns the manner in which the courts should interpret primary legislation in the context of the independence of the judiciary and the rule of law, is simply taken from Section 3(1) of the
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Human Rights Act 1998. It could be cogently argued that the expression "the independence of the judiciary" is otiose because, I suspect, the 1998 Act has the effect of protecting the independence of the judiciary in exactly the same way as Amendment No. 15. So to the extent that the noble Lord is opposed to the application of Amendment No. 15 to the independence of the judiciary, he would be reneging on legislation promoted by the Government at a time when the noble Lord was the Leader of the House.
That also applies to Amendment No. 16A.
Lord Richard:The noble Lord must not provoke me—at least not too much. I am trying to follow his argument. He said that it is not necessary because there is already law dealing with the point. In which case, why bother?
Lord Kingsland:I said that it was arguable that it was not necessary; not that it was not necessary. The purpose of my argument was to point out to the noble Lord that, far from being a novel constitutional concept, it was introduced by his own Government at the time the noble Lord was the Leader of your Lordships' House and holding the great office of Lord Privy Seal—which, I am delighted to see, still has its usefulness today.
The same argument applies to Amendment No. 16A. The declaration of incompatibility in relation to European convention rights is contained in the Human Rights Act 1998. I repeat that I would be very surprised to discover that the independence of the judiciary was not one of the ingredients of the European convention which was protected under the 1998 Act.
So, far from being a novel concept, the independence of the judiciary as proposed in both amendments simply reiterates a right which already exists—and yet the noble Lord, Lord Richard, seems to want to repudiate it. I accept that the introduction of the rule of law is novel, but not in the sense that it is a novel way of introducing the rule of law in our constitution; it is novel because the rule of law has not yet been set out in a detailed way so as to mimic the approach that our European friends have taken under the convention.
In my submission, much of the rule of law in the United Kingdom is already reflected in the European convention. The only issues that arise are where the standards set by the European convention are not as high as the standards set under the common law. I see no difficulty in our judges developing jurisprudence to fill in those gaps; that has been the task of the common law in this country over the centuries.
I am afraid that there have been some lamentable examples recently of the Government proposing legislation in the sphere of criminal law in which many provisions fall well below the standards that, throughout the 20th century, were regarded as the rightful standards that the prosecution should meet before a conviction was obtained. I have no fear at all at the thought that our judges might continue to develop the common law jurisprudence in relation to criminal law under clauses such as those proposed

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to be introduced by the noble and learned Lord, Lord Lloyd of Berwick, and myself. In my view, they are excellent clauses and deserve to be taken seriously by your Lordships' House.
7.15 p.m.
Lord Falconer of Thoroton:The noble Lord, Lord Kingsland, puts his argument clearly and defines the effect of what he is saying very well. Perhaps I may indicate, with the greatest respect, the dangers of what he is proposing.
The purpose of Clause 1 is to seek to impose upon the office holder—who is to be called the Lord Chancellor because of the vote yesterday—similar obligations within government to those of the current Lord Chancellor. Those obligations are intended to be dealt with as part of the Executive, relying upon his special role within it. There is neither a desire for nor sense in making the role subject to court enforcement. It should depend upon the way in which the office holder performs the role; if he or she performs the role badly, then the accountability should be to Parliament and not to the court, as it currently is. Indeed, that view was taken by the Lord Chief Justice in the evidence that he gave to the Select Committee.
That approach is taken because, admirable as the courts are, I do not think that in this country we want the courts to decide what the level of expenditure on police should be. Of course we do not. Nor do we want any suggestion that that kind of issue is justiciable before the courts. Nor do we want—would regard this as an unsatisfactory spectacle —the Attorney-General of the day bringing the Chancellor of the Exchequer to court because it is alleged that he infringed Clause 1(1). Merely to say that that is the position seems to me to give the absurdity to the proposal that the noble and learned Lord, Lord Lloyd of Berwick, is suggesting.
The noble Lord, Lord Crickhowell, who was a member of the Select Committee—but no worse for that—exactly identified the purpose of the amendment, which was more limited than that being advanced now—namely, it was to deal, as Lady Justice Arden said, with the possibility of inadvertent repeal or inadvertent inconsistency with Clause 1 of the Constitutional Reform Bill. That was a possibility that we all recognised, but I think I speak for the Members of the Committee when I say that we did not regard that as a particularly serious threat; we were much more concerned with the bigger issues of judicial independence and what the new office holder would do to give effect to it.
Now, instead of simply dealing with the well-defined and limited point proposed by Lady Justice Arden, the noble Lord, Lord Kingsland, suggests that we should introduce a new body of undefined law—the rule of law. We must remember that the rule of law is not an amorphous concept; it is enforced by reference to specific legal obligations. The noble Lord is saying that although a statute dealing with, for example—and he may have this in mind—previous misconduct evidence
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in a criminal trial might have a particular meaning now, before the clause is introduced, it could well be construed as meaning something different as a result of the effect of the reference to "the independence of the judiciary and the rule of law" in the Bill. So he is inviting the introduction of a whole new constitutional concept.
That may well be—I am fairly sure it is—what the
noble and learned Lord, Lord Lloyd of Berwick, wants, but I have absolutely no doubt that that has never been debated before, a point made by the noble Lord, Lord Brennan. It is an extraordinarily wide-reaching proposal. To come to it first in a rather limited clause proposed by Lady Justice Arden, entirely sensibly, seems to me, with the greatest respect, not to be the way in which the Committee of the House should proceed.
I entirely agree with the noble Lord, Lord Brennan, that we should be very rigorous to see what will be the effects of the matters we are proposing. But the noble and learned Lord, Lord Lloyd of Berwick, seeks to go even further than that. With great respect, the noble and learned Lord has not been nearly as clear and straightforward as the noble Lord, Lord Kingsland. He wishes that acts done by a Minister, or proposals made by a Minister, or whatever Parliament does, should always be subject to the template of the rule of law or the independence of the judiciary.
For example, if a Minister were to propose that there be an ouster of judicial review in relation to immigration and asylum cases, rather than the matter being decided by Parliament, it would instead be capable of being dealt with in the courts by proceedings being brought in court, with Parliament being, in effect, denied the opportunity to debate it. Noble Lords may think that that is a good idea if they believe that the courts are the best places to test policy considerations. That is not our constitution at the moment—our constitution provides that Parliament has the opportunity to decide these matters.
So let us be under no illusion that these three amendments—I treat Amendment No. 16 as being in this group, although it is not—would have very farreaching effects. They are intended to give the courts powers that they currently do not have.
May I adopt the argument of the noble Lord, Lord Maclennan, as well? He makes two separate points—first, that the duties were intended to be declaratory only. I accept that. Secondly, this is wholly unlike the Human Rights Act, in which a similar clause compares primary or secondary legislation to a body of rights that has been developed over a long period of time, in respect of which there is a corpus of law, well defined and understandable by the courts, with a proper degree of certainty. I could think of nothing more inimical to the rule of law—and one aspect of the rule of law is certainty—than to have a transformation of the constitutional position in the way in which these three amendments propose.
I am not averse to considering how one gives effect to the very limited purpose that Lady Justice Arden proposes. But I strongly urge the Committee to resist the three Trojan horses which have been proposed, as

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they would have such a devastating effect on our constitution and would fundamentally shift the balance from Parliament and the executive to the courts.
Lord Lloyd of Berwick:Before the noble and learned Lord the Lord Chancellor sits down, let us take his own example. Suppose, for example, that the Chancellor of the Exchequer were to propose to appropriate my property without compensation. Does the noble and learned Lord suggest that that ought not to be capable of being judged by the courts in a straightforward example of judicial review?
Lord Falconer of Thoroton:Of course, and it currently is. The Human Rights Act would make that improper.
Viscount Bledisloe:I rise to reply, as the mover of Amendment No. 15.
As the noble and learned Lord the Lord Chancellor describes it, two other Trojan horses have been coupled with Amendment No. 15. However, we must not lose sight of the fact that each amendment is separate and has a different purpose, and that they do not need to be cumulative.
Amendment No. 15 says that, wherever possible, a judge considering any Act other than this shall try to assume that that Act does not interfere with the independence of the judiciary. If, notwithstanding that effort, there is only one meaning which the judge can give to the Act that has been passed, he gives effect to it, notwithstanding the fact that it interferes with the independence of the judiciary. The amendment does not in any way require the courts to strike down anything that Parliament has said; it merely imputes to Parliament a keen desire not to interfere with the independence of the judiciary if it can.
Amendment No. 16A goes somewhat further. It says that if, notwithstanding that exercise, the court has to say that this Act has an effect on the independence of the judiciary, then it can declare so. That is a position further down the line, and it may or may not be a good proposition. But the invalidity of No. 2 does not in any way strike down No. 1. At that point, it extends even further, to Amendment No. 16 itself, which says that actions which are incompatible with the rule of law are unlawful.
It is wholly unfair to attribute to Lady Justice Arden responsibility for either Amendment No. 16 or Amendment No. 16A. The inadequacies of Amendment No. 16—
Lord Falconer of Thoroton:I am not accusing Lady Justice Arden of any iniquity in this. Her position was completely clear throughout—it is not Lady Justice Arden I am contesting but the propositions that underlie the three amendments.
Viscount Bledisloe:What I am objecting to is the noble and learned Lord tarring Amendment No. 15 with the same points he makes against Amendments
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Nos. 16 and 16A. The fact that he does not like Amendments Nos. 16 or 16A and has advanced arguments against them is no argument whatever against the validity of Amendment No. 15. That is the only point that I am making.
Secondly, I must apologise to the Committee for failing to make myself clear. I thought that I said, totally clearly, in moving Amendment No. 15 that I ignored and took out the words,
"and the rule of law"
because we have not yet got them on the face of the Bill. None the less, the speech of the noble Lord, Lord Maclennan, dealt largely with the fact that one could not have this amendment related to the rule of law. In further answer to the noble Lord, I have no interest in the geography of the proposal. If it is, as I want, put on the face of the Bill, it can be on the face of the Bill anywhere the noble Lord, as a cartographer, wishes to put it.
Lord Maclennan of Rogart:I am grateful to the noble Viscount for giving way. I defer to his very much greater experience of following how canons of interpretation are applied by the judiciary. My failure to deal with the point he has just made—not about geography but about the effect of Amendment No. 15—was to do with the fact that it seemed otiose in that it dealt with precisely how the judiciary would address a provision that appeared to have that effect. It would follow the plain meaning but would presume that it was not Parliament's intention to repeal such an important provision of law.
Viscount Bledisloe:I was just coming to that. I can quite see that the noble Lord, Lord Maclennan, may regard the amendment as otiose. But it seems rather surprising, if it is otiose, that it was advanced by Lady Justice Arden on behalf of the whole Judges' Council. It is sometimes the case that an Act, in its more natural interpretation, would interfere with the principle of the independence of the judiciary. Assisted by this, Lady Justice Arden and the judges appear to think that it will help them, and who are the noble Lord and I to say that it will not?
On the points made by the noble Lord, Lord Brennan, of course Clause 1 is declaratory. In it the Government set out a constitutional principle about the independence of the judiciary. The Government think that that means something, presumably. Therefore, it is not very difficult to say that the judges shall take that into account when considering statutes.
Finally, on a slightly more frivolous note, the noble Lord, Lord Brennan, raised the question of the effect of a proposal to reduce judicial salaries by 30 per cent in times of stress. Surely he is not unaware of the very important decision in the case called, I think, Board of Inland Revenue v Haddock. It decided that when such a proposal has been made, it is impossible for the judiciary to try any claim by the Inland Revenue or any other claim by a government department, because it

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then has a personal interest in it. That very important decision is of course only reported in Misleading Cases by AP Herbert.
Lord Falconer of Thoroton:The issue about judicial salaries is interesting. As everyone knows, in the national emergency in the 1930s such a proposal was made. It involved all public servants including judges having their salaries reduced by a particular percentage. The judges objected on the basis that that would interfere with judicial independence. The Government refused to comply with their demands that their salary not be reduced. There was a stand-off, which lasted until an Act of Parliament was produced that would have reduced their salaries but with which the Government did not then proceed.
Viscount Bledisloe:That is the very point that was considered in the important case of Board of Inland Revenue v Haddock. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 16 to 16A not moved.]
Clause 1, as amended, agreed to.
Lord Evans of Temple Guiting:I suggest that this may be a convenient moment for the Committee to take a break and that we resume again at 8.32 p.m.
[The Sitting was suspended from 7.32 p.m. to 8.32 p.m.]
Lord Falconer of Thorotonmoved Amendment No. 17:
After Clause 1, insert the following new clause—
"GUARANTEE OF CONTINUED JUDICIAL INDEPENDENCE: NORTHERN IRELAND
(1) For section 1 of the Justice (Northern Ireland) Act 2002
(c. 26) (guarantee of continued judicial independence) substitute—
"1 GUARANTEE OF CONTINUED JUDICIAL INDEPENDENCE

The following persons must uphold the continued independence of the judiciary

the First Minister,

the deputy First Minister,

Northern Ireland Ministers, and

all with responsibility for matters relating to the judiciary or otherwise to the administration of justice, where that responsibility is to be discharged only in or as regards Northern Ireland.

The following particular duty is imposed for the purpose of upholding that independence.

The First Minister, the deputy First Minister and Northern Ireland Ministers must not seek to influence particular judicial decisions through any special access to the judiciary.

In this section "the judiciary" includes the judiciary of any of the following—

the Supreme Court;

any other court established under the law of any part of the United Kingdom;

any international court.

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(5) In subsection (4) "international court" means the International Court of Justice or any other court or tribunal which exercises jurisdiction, or performs functions of a judicial nature, in pursuance of—

an agreement to which the United Kingdom or Her Majesty's Government in the United Kingdom is a party, or

a resolution of the Security Council or General Assembly of the United Nations."

(2) In section 91(2) of that Act (extent: provisions not restricted to Northern Ireland), before paragraph (a) insert—
"(za) section 1,"."
The noble and learned Lordsaid: These amendments to the Justice (Northern Ireland) Act 2002 will ensure that the provision made by that Act in relation to the guarantee of judicial independence is consistent with the provision to be made by Clause 1 of the Bill.
Section 1 of the 2002 Act, which has not yet been commenced, already contains provisions designed to place those with responsibility for the administration of justice in Northern Ireland under a duty to uphold the continued independence of the judiciary.
In light of the provision to be made by Clause 1 of the Bill, Amendment No. 17 will substitute a new Section 1 of the Justice (Northern Ireland) Act to specify and extend the range of persons upon whom the duty is imposed. Under the new Section 1, the First Minister, the Deputy First Minister, the Northern Ireland Ministers and anyone with responsibility for the judiciary or the administration of justice specific to Northern Ireland will be subject to the duty to uphold continued judicial independence.
The new Section 1 will also provide that in upholding judicial independence, Ministers must not seek to interfere with particular judicial decisions through any special access to the judiciary.
Ministers of the Crown will be subject to the corresponding duties under Clause 1 of the Bill.
Amendment No. 17 also amends Sections 1 and 91 of the Justice (Northern Ireland) Act respectively to define the judiciary in the same terms as Clause 1 and to provide that Section 1 shall have UK-wide territorial extent. This is to ensure that the object of the duties to be imposed by Section 1 of the Justice (Northern Ireland) Act is the judiciary throughout the United Kingdom.
Finally, Amendments Nos. 99 and 100 amend the commencement provisions of the Bill to provide that the clause substituting the new Section 1 of the Justice (Northern Ireland) Act contained in the Bill may be commenced by order by the Secretary of State for Northern Ireland, in line with the commencement arrangements under the Justice (Northern Ireland) Act.
I have previously indicated to the House that I plan to bring forward amendments related to the Lord Chancellor's role in Northern Ireland. I plan to introduce such amendments on Report. I beg to move.
On Question, amendment agreed to.
Lord Campbell of Allowaymoved Amendment No. 18:
After Clause 1, insert the following new clause
"LIMITATION OF THE FUNCTIONS OF THE LORD CHANCELLOR

The office of Lord High Chancellor of Great Britain exists only as to the functions—

of the constitutional role in cabinet to uphold the independence of the judiciary, the rule of law and the due administration of justice;

relating to the Great Seal;

of the parliamentary role as Speaker of the House of Lords in the interests of the self-regulation.

The Prime Minister must recommend to Her Majesty the appointment to the office of Lord Chancellor.

Save as to the exercise of the functions retained under subsection (1), the other functions of the Lord Chancellor are transferred to the Minister."

The noble Lordsaid: In moving this amendment, I shall speak also to the question whether Clause 11 should stand part, which relates to the Speakership. The question whether Clause 12 should stand part, which comes further down the amendment list, has already been spoken to; that clause relates to the abolition of the office of Lord Chancellor. I shall also speak to Amendments Nos. 102 and 103, which propose relevant consequential amendments to the title.
I find myself in a little difficulty because, having attended this debate before the short adjournment, I was totally unable to understand where we were going. However, I shall do my best. I am afraid that my intellect is not capable of dealing with the situation as it now seems to be.
This is a probing amendment, which was tabled on the assumption that Amendment No. 1 might well commend itself in terms of retaining the office of Lord Chancellor. As noble Lords know—although there are not many here—I have throughout sought to retain the position of Lord Chancellor in every relevant speech that I have made in the House in the context of the passage of this Bill and the committee that reported on the Speakership.
As my noble friend Lord Kingsland said, it is not the intention to unravel the architecture of this Bill. The tripartite structure is accepted. I must try to clarify where I stand; I accept that. At this stage, the Bill as amended by the Select Committee is accepted subject to further amendment by noble Lords. I want to try to create a firm basis on which to address the House. I do not think that that has yet been totally established. The proposal will not be retabled on Report without consultation with my noble friend Lord Kingsland and without consideration of any contributions that noble Lords make in today's debate, and it will be considered in the light of any relevant amendments tabled before Report.
I have a difficulty in this regard which I hope to put shortly. I said, and I still say—I said this yesterday—that we have to retain the constitutional role of the Lord Chancellor because concepts such as the independence of the judiciary and the rule of law are not so readily defined or enforceable. I still stand by
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that approach. I found myself in some difficulty with the amendments that were sought to be enforced in the courts. I listened, said nothing and wondered. But you have to go one way or the other. My way—I have not had an opportunity to discuss it with my noble friend Lord Kingsland—subject to his agreement, is to assert that the Lord Chancellor shall attend in Cabinet as a legally qualified Member of this House.
Having said that, one has to note that the noble Lord, Lord Richard —who unfortunately is not in his place, but I am not going to say anything particularly unkind—said that there was no real agreement on what the Lord Chancellor was to do, what his functions were or what should be retained. I have brought the report with me in case anybody wishes to challenge that.
Amendment No. 18 proposes retention of the three functions only, all of which have been spoken to on Amendment No. 1 and require no repetition. It is on record; there is nothing more to trouble your Lordships with. As yet no other amendment concerning retained functions has been tabled. The speech of the noble and learned Lord, Lord Lloyd of Berwick, at cols. 1146–1147 of Hansard of 13 July, warrants in my respectful opinion the most serious consideration in that context, the reason being that the scope for this amendment may well be, by the will of the House, extended. It is not for me—I cannot do it—to predict what will happen between now and Report, but when this amendment is retabled, I shall have consulted with everybody and with the noble and learned Lord the Lord Chancellor, and taken into account everything that has been said and the amendments.
There is a point that I think I must take now because it could not be taken before. It is relevant to the retention of the parliamentary role of the Lord Chancellor. So, by leave—it will not take long—I should like to take it now. As regards the retention of the parliamentary role, which is part of this amendment, the Lord Chancellor shall continue to introduce legal Bills of constitutional importance, as, indeed, the noble and learned Lord is doing today, and his predecessor did on the Human Rights Act.
The Lord Chancellor participated in the concordat and the deliberations of the Select Committee, as was graciously acknowledged by the noble Lord, Lord Richard, at col. 1139. That leads one to wonder how on earth the noble Lord could have permitted himself, in the context of retained functions, to say that,
"we are arguing about a name and shell".—[Official Report, 13/7/04; col. 1177]
It beggars belief. We are arguing about substance, and about means. If we do not have the amendments on enforcement in the courts, there is nothing else. They would be the only means of enforcement. How the matter can be treated as a sort of frippery I do not understand. All sorts of things happen in this House; there it is.

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8.45 p.m.
I shall not take much more time. Proposed new subsection (1) has been spoken about. On proposed new subsection (2), it is accepted that the Lord Chancellor must be a Member of the House of Lords and legally qualified. I would go to the stake on those matters on appropriate amendments; some have already been tabled by the noble Viscount, Lord Bledisloe. Anyone plucked from the Bar, another place or wherever for that post should be granted a life peerage.
I shall move on to proposed new subsection (3). Having read with great care the contribution of the noble and learned Lord, Lord Lloyd of Berwick, I suspect that, if proposed new subsection (1) should require amendment to omit "only", extension may be needed. But we have to weight an amendment for the acceptance of the House. Then, to include functions other than only the three functions, proposed new subsection (3) would stand. On that basis, the amendment should be re-tabled after consultation with my noble friend Lord Kingsland, taking into account the matters to which I have referred—accepting that the Lord Chancellor be debarred from sitting as a judge and no longer solely responsible for selecting the judiciary, and that in principle a Judicial Appointments Commission be set up. That would leave open the questions of whether he will continue to run the courts and legal aid, and whether there would be a Supreme Court, for which I see no justification and which I shall oppose.
That is the probative basis—I hope that it is at least intelligible and straightforward—on which I beg to move.
Lord Maclennan of Rogart:I rise to oppose the amendment. I shall not detain the House for long.
The Lord Chancellor's functions, as limited by Amendment No. 18, would leave a shadow of the present office and, curiously, retain aspects of it which might at best be regarded as an adjunct, and certainly not essential to the discharge of the role within the Cabinet of seeking to safeguard the rule of law or the independence of the judiciary.
In the Select Committee we received evidence about the Great Seal from a previous holder, the noble and learned Lord, Lord Mackay of Clashfern. There was an entertaining exchange with the present Lord Chancellor about its weight. To be candid, however, the possession of the Great Seal could scarcely be described as a "function" of the Lord Chancellor that is necessary in the 21st century.
As far as the parliamentary role of the Lord Chancellor as speaker is concerned, it may be thought that if the object is to enhance the standing of the office of Lord Chancellor, his presence at debates in this House does little towards that end. Other considerations concerned with the separation of the legislature from the executive seem to outweigh any advantage that might be gained from his sitting on the Woolsack.
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The first and most important operative part of the amendment— the function of seeking to,
"uphold the independence of the judiciary, the rule of law and the due administration of justice"
—covers so many uncertainties that it is doubtful that it has any administrative content at all. I am doubtful whether a Minister could sit in the Cabinet with no administrative duties and carry any weight with parliamentary colleagues.
The amendment may reflect some of the thinking that was manifested to the Select Committee by the former Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, who plainly thought it desirable that some of the administrative duties that had been added to the role of Lord Chancellor might be dispersed without loss among other members of the Government. In my judgment, however, that reflected a peculiarly apolitical view of the role. The willingness of the noble and learned Lord, Lord Mackay of Clashfern, to dispose of the duty of being responsible for the administration of legal aid, for example, suggested that he had found it an uncomfortable political task when faced with the claims of other departmental Ministers with calls upon the Exchequer. Although his personal discomfiture was understandable, if one is in charge of the administration of justice, it is not merely cognate to that to be responsible for access to justice; it is an essential part of the job. I do not believe that the recommendations of the noble and learned Lord, Lord Mackay, should carry weight with this Committee.
I hope that I have not wearied the House with those few thoughts on the amendment.
Lord Kingsland:I thank my noble friend Lord Campbell of Alloway for tabling this amendment which he himself described as a probing amendment. I think that it is important to recall that the amendment was tabled long before yesterday's vote. Since the vote, it has become clear that the functions of the Lord Chancellor will be those that the Secretary of State for Constitutional Affairs was intended to have under the Bill. Consequently, we will have a Lord Chancellor with far more extensive responsibilities than those envisaged in the amendment of my noble friend.
I thank my noble friend for offering me the opportunity of conversations with him between now and Report stage. It may be that, in the light of those conversations, he will reconsider the type of amendment that he tables on Report. I suppose that, to some extent, that will depend upon the degree to which I am persuasive in the course of our exchanges.
It is important to recognise that the responsibilities of the Lord Chancellor, as set out in the Bill, can, and in my view should, be extended. I respectfully agree with the noble Lord, Lord Maclennan; it is hard to escape the conclusion that if the Lord Chancellor is to be responsible for the matters contained in the Bill, he should also deal with all questions concerned with access to justice. I also think that there is a powerful

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argument for him to remain in control of the court system. I recognise that that raises questions of public expenditure. However, those questions can, I am sure, be dealt with by the presence in another place of a suitably qualified and senior Minister of State.
The question of the responsibilities of the Lord Chancellor beyond those that I have already mentioned is naturally more controversial. The noble and learned Lord, Lord Falconer, already has a number of responsibilities which go further than the ones that I have mentioned. The degree to which those should be retained once the Bill has become an Act seems to me more perplexing.
However, I thank the noble Lord, Lord Campbell, once again for his thoughts on these matters. He was, as ever when he speaks, thought-provoking and I shall certainly think carefully about what he said over the next weeks and, indeed, because we shall soon have the summer break, months.
Lord Falconer of Thoroton:I am very grateful to the noble Lord, Lord Kingsland, for reasserting the position that he made clear yesterday, when he said:
"I emphasise at the outset of the debate that it is not the Opposition's intention to unravel, in any way, the architecture of the Bill; we accept the tripartite architecture in full. Our only concern, encapsulated in Amendment No. 1, is whether the position of the Secretary of State for Constitutional Affairs is sufficiently powerful to carry out the tasks stipulated in the Bill for that role".—[Official Report, 13/7/04; col. 1143.]
Therefore, putting aside the office-holder's title and the office which performs the functions, the position of the Opposition is that the function performed should be that of the Minister responsible for at least the judiciary-related functions and legal aid, that of the person responsible for the independence of the judiciary and the rule of law in Cabinet, and that of the person performing the Minister's function on the Minister's side of the concordat.
As I understand the position of the noble Lord, Lord Kingsland, no comment is made on the role of Speaker of the House of Lords. That is a matter for the House of Lords to decide. I agree with the noble Lord about the broad functions of the person. I do not agree with him about the title, the office or the name, but I lost in relation to that yesterday and it will be put right in another place. But as for what the office does, there is no dispute between us.
The amendment moved by the noble Lord, Lord Campbell of Alloway, proposes a role for the holder, whether he be called Lord Chancellor or otherwise, that is supremely defective in two respects. First, he proposes an office holder with no ministerial responsibility—not the head of the judiciary or a judge, yet someone who is supposed to carry the weight in Cabinet to defend the independence of the judiciary. With respect, that seems unmaintainable. Secondly, he proposes in statute that Parliament—the House of Commons and the House of Lords—should determine the position of the Speaker of this House, which is far better dealt with and, indeed, should be dealt with by this House.
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9 p.m.
I hope I have made clear that I would reject quite strongly the model proposed by the noble Lord, Lord Campbell of Alloway, but further and perhaps more significant than my own objections, it would appear that the party of which he is a member and for which the noble Lord, Lord Kingsland, speaks on this occasion also profoundly disagrees with the model he proposes. I hope not just that he will withdraw the amendment on this occasion but that, in the light of what the noble Lord, Lord Kingsland, said, he will be minded not to retable it on Report.
Lord Campbell of Alloway:I thank the noble and learned Lord for having taken the trouble to consider this matter. Certainly, whatever else I am supposed to accept, I do not accept that, because my proposals do not involve ministerial office, that detracts from the fundamental authority or concept of the Great Seal and the proximity to the Monarch and so forth. I think that we are getting bogged down in convenient but irrelevant criticism.
Certainly, I shall not come back without the assent of my own party. This is a very serious matter. It is beyond the scope of histrionics or sarcasm. It has to be treated with great seriousness and I would not presume to come back to this House without the support of my party.
I shall, of course, withdraw the amendment. I thank the noble and learned Lord and my noble friend Lord Kingsland for having spoken. However, I do not accept the suggestion that I should withdraw the amendment on any terms. The only terms are my terms. If, after consideration, my party accepts the order of functions, I shall return. If it does not I would not perhaps return at all. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 19 not moved.]
Clause 2 agreed to.
Clause 3 [Functions of the Lord Chancellor and organisation of the courts]:
Lord Falconer of Thorotonmoved Amendment No. 20:
Transpose Clause 3 to after Clause 8.
The noble and learned Lord said: These are technical and drafting amendments. Before the supper adjournment the noble Viscount, Lord Bledisloe, said to me that he wanted them dealt with at a later stage so that he could have a chance to talk to my officials about them. He had useful conversations with my officials during the Select Committee. My view is that we should move them; but that my officials should speak to the noble Viscount, Lord Bledisloe, and if there are particular points where we have missed something or they could be improved, then I would

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undertake to come back on Report with them. I do not think that it would be a good idea not to move them at this stage, so, I am minded to move them now.
Viscount Bledisloe:I think the noble and learned Lord has skipped a page of his brief. I thought he was speaking to Amendment No. 20, which is transposing Clause 3 to Clause 8.
Lord Falconer of Thoroton:I am moving Amendment No. 20, which transposes Clause 3 to after Clause 8 and then there are a large number of amendments in the group. I misunderstood the noble Viscount. I thought he was saying to me before we returned that he would like to look at the long list of technical amendments. If his problem does not relate to that, noble Lords should forget what I have said. I was trying to help him.
The amendments are technical and drafting amendments, which do not affect policy. I would draw particular attention to Amendments Nos. 20 and 76. These two amendments change the ordering of what are currently Clause 3 and the accompanying Schedule 1, so that these will now follow Clause 8 and its accompanying Schedule 4. Clause 3 and Schedule I deal with the judiciary and court-related functions of the Lord Chancellor; Clause 8 and Schedule 4 deal with appointment functions. These changes are required, in part, to pave the way for the introduction of the Northern Ireland functions and to assist the manner in which we are dealing with the extent provisions of Clause 1.
The effect of these amendments is that the existing Clause 1 and its Northern Ireland counterpart will stand alone under the subtitle "Continued judicial independence". The extent of these two clauses will be the United Kingdom, but with the "carve-outs" for Scotland and Northern Ireland.
The next subtitle will be "The judiciary and courts". Counsel has advised that it would be preferable to present current Clause 8 and its schedule—appointment functions—as preliminary. Current Clause 3 and its schedule will then be presented as dealing with the consequences of current Clause 8, as well as bringing in all of the remaining judiciary and court-related functions. This is necessary because the overlap between the current Schedules 1 and 4 is becoming increasingly unsatisfactory and confusing. The extent of the clauses under this subtitle will also be the United Kingdom, other than those clauses dealing with the President of the Courts of England and Wales and the Heads of Justice, which will be limited to England and Wales.
In summary, the other amendments achieve the following. Amendments Nos. 24, 25, and 30 amend Sections 73(1) and 73(3) of the Agriculture Act 1947 and Section 6(6) of the Agriculture (Miscellaneous Provisions) Act 1954, which deal with powers to constitute agricultural land tribunals for hearings, to make provision for procedure relating to the agricultural land tribunal, and to regulate the proceedings of agricultural lands tribunals respectively. These functions
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are being transferred—it currently says "the Secretary of State for Constitutional Affairs", but plainly an amendment will be required in the light of the amendment yesterday.
The amendments are technical in nature and serve to remove any uncertainty arising from earlier amendments to the relevant provisions as to the effectiveness of the amendments in the Bill.
Amendment No. 32 provides for consultation with the Lord Chief Justice of Northern Ireland by, and it says, "the Secretary of State for Constitutional Affairs", but that will need to be changed to the Lord Chancellor, in performing the function of creating or altering divisions of the General Commissioners of Income Tax in Northern Ireland.
Amendments Nos. 35, 36 and 37 repeal in the body of the Bill spent provisions, which are already listed under the repeals in Schedule 17 to the Bill. Amendment No. 61 retains provisions incorrectly repealed in the Bill dealing with prescribed parliamentary procedure for statutory instruments relating to regulations made. Amendment No. 38 repeals the Lord Chancellor's functions in respect of the central office of the Supreme Court, while ensuring that the functions of the central office itself remain unaffected.
Amendments Nos. 33, 41 and 73, for consistency, replace a reference to "Secretary of State" with a reference to "Secretary of State for Constitutional Affairs" and replace references to "Lord Chief Justice" with references to "Lord Chief Justice of England and Wales". Amendment No. 64 deletes a duplication, which also contains a printing error. I beg to move.
Lord Renton:It would be very helpful if the noble and learned Lord the Lord Chancellor could explain a little matter. In Schedule 1(5) as it now stands, on page 43, there is a reference in French, which is very unusual in describing an Act of the British Parliament—the Cestui que Vie Act 1707. As a common lawyer, I find the following provision strange:
"Any reference to the Lord Chancellor and keeper or commissioners for the custody of the great seal of Great Britain for the time being in section 1 of the Cestui que Vie Act 1707 is to be construed as a reference to a judge of the Chancery Division".
Can the noble and learned Lord the Lord Chancellor say what that means and whether he intends to perpetuate it?
Lord Falconer of Thoroton:I cannot tell the noble Lord what it means. I am sure that it is extraordinarily sensible to transfer the Lord Chancellor's function to a Chancery Division judge there. Cestui que Vie has some resonance with trust law but I cannot explain precisely how. I defend myself in being unable to explain it by the fact that none of my technical amendments relates to that paragraph. But I shall write to the noble Lord and explain why this—I agree, somewhat eccentric—provision appears.
Viscount Bledisloe:There is here a whole raft of amendments to Schedule 1. The noble and learned Lord has pointed out that Schedule 1 must be amended

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in an enormous number of respects to change references to "the Secretary of State for Constitutional Affairs" to "the Lord Chancellor". As I understand it, his department will undertake that laborious task and bring forward all those amendments on Report.
As I understand it, these amendments further amend Schedule 1. We saw some 400 of them in the Select Committee and dealt with them in what turned out to be a very efficacious way. The noble and learned Lord very kindly made available the officials in his department, who had a mastery of the detail such as would have enabled them to answer the question of the noble Lord, Lord Renton. They explained the details of the amendments to the noble Lord, Lord Carlisle of Bucklow, and me. We were able to satisfy ourselves and the Select Committee, to which the role was delegated, on the suggestion of the noble and learned Lord, Lord Howe, to the two of us, that 99 per cent of the amendments seemed wholly acceptable.
I suggested to the noble and learned Lord that we took the same approach here. He has suggested as an alternative that we make the amendments to the Bill now; that we have such a discussion before Report; and that it is then open to us to return to any with which we are not satisfied. I confess that I find that an extremely attractive solution which would save a great deal of your Lordships' time. Speaking for myself, I would be happy to nod through all the amendments to Schedule 1 proposed today on the basis that on Report all the references to "the Secretary of State" will be changed to "the Lord Chancellor", and that it will be open to us to bring forward any individual points on which the officials cannot convince us. If that is the proposal that the noble and learned Lord makes, it is eminently satisfactory.
Lord Howe of Aberavon:I have sat in silence for most of the day, but I wish simply to say how proud 1 feel that the precedent that I suggested in the committee of dealing with this vast raft of mysterious provisions in this informal fashion is being followed in this way. Procedure is always intended to help us and not to get in the way. I commend the wisdom of all concerned and wish them luck during the weeks ahead.
9.15 p.m.
Lord Falconer of Thoroton:One feels more and more that the unpopularity of the Select Committee will get stronger and stronger.
Lord Kingsland:I hope that I am correct in concluding, from what the noble Viscount has just said and from the reaction of the noble and learned Lord, that the noble and learned Lord accepts the noble Viscount's interpretation of the position and also the task of redrafting Schedule 1.
A week or two ago, we sought advice as to whether we should table our own amendments to Schedule 1 and we were advised that that would not be necessary. We are prepared to table our own amendments to Schedule 1 on Report; but if I understand the position
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correctly, that is now a task that the noble and learned Lord the Lord Chancellor is content to take on. If he confirms that, I am grateful to him.
Lord Falconer of Thoroton:Yes, I do. I hope that I have made it clear that I read the Committee's decision yesterday as saying that whereas we sought to create a Secretary of State for Constitutional Affairs to perform the functions laid out for the Secretary of State for Constitutional Affairs, the Committee wished the Lord Chancellor to conduct those functions. Unless there is some extremity that I cannot work out at the moment, the consequence of that seems to be that in Schedule 1 the references to "the Secretary of State for Constitutional Affairs" should be replaced by a reference to "the Lord Chancellor".
It seems right that I should do that, on the basis that we need to work through the consequences of what was decided yesterday. I make it clear that I opposed the proposal and did not want to accept it, but that was its effect. That is what we must now help to give effect to while the Bill is in this House.
In relation to the proposal of the noble Viscount, Lord Bledisloe, that he talk with my officials—that is absolutely fine. I thought that that was what I had proposed at the beginning, all those 12 minutes ago, but he rather rudely said that I was reading the wrong bit of my notes, and I apologise for that.
On Question, amendment agreed to.
Clause 3, as amended, agreed to.
Schedule 1 [Functions of the Lord Chancellor and organisation of the courts]:
[Amendment No. 21 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 22:
Page 45, line 24, leave out "after consulting" and insert "with the concurrence of"
The noble and learned Lordsaid: These amendments provide for the transfer of judiciary-related functions of the Lord Chancellor previously omitted from the Bill. They also correct inconsistencies in the transfer options to bring them fully in line with the concordat. The first group of amendments—Amendments Nos. 34, 43, 44, 46, 53, 54, 62 and 65—relate to the transfer of the Lord Chancellor's judiciary-related functions previously omitted from the Bill. These have arisen following discussions with the senior judiciary.
Amendment No. 34, for example, provides for the transfer of the Lord Chancellor's function in Section 4(3) of the Taxes Management Act 1970, which concerns the designation of another special commissioner to act as deputy presiding special commissioner. The amendment provides for the Secretary of State to exercise the function only with the concurrence of the Lord Chief Justice, the Lord President of the Court of Session, and the Lord Chief Justice of Northern Ireland.

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In the light of the proposal that we have agreed, perhaps I do not need to go through this. I beg to move.
On Question, amendment agreed to.
Lord Falconer of Thorotonmoved Amendments Nos. 23 to 25:
Page 45, line 25, leave out from "for" to end of line 27 and insert ""Lord Chancellor" substitute "Secretary of State for Constitutional Affairs or the Lord Chief Justice"."
Page 47, leave out line 33 and insert—
"( ) In subsection (1) for the words before "by order" substitute "For the purposes of this section, the Secretary of State for"
Page 47, leave out line 36 and insert—
"( ) In subsection (3) for the words before "may by order" substitute "The Secretary of"
On Question, amendments agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 26:
Page 50, line 30, leave out sub-paragraph (3).
The noble and learned Lord said: This amendment is in a similar category. I will not go through the detail. I beg to move.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 27 to 34:
Page 50, line 34, leave out "this section" and insert "subsection (1)"
Page 50, line 37, leave out "this section" and insert "subsection (5A)"
Page 50, line 37, at end insert—
"( ) In subsection (6) for "this section" substitute "subsection (1)"."
Page 50, line 41, leave out from "subsection (6)" to end of line 42 and insert "for the words before "may, by order" substitute "The Secretary of State for Constitutional Affairs".
Page 51, line 38, leave out sub-paragraph (a) and insert—
"( ) in paragraph (a) for the words from the beginning to "Chancellor" substitute "in paragraph 4(1) the words "after consulting the Secretary of State for Constitutional Affairs" shall be omitted, and for the reference there to the Lord Chief Justice of England and Wales and the reference to the Secretary of State for Constitutional Affairs in paragraph 4(4)";"
Page 54, line 38, after "Justice" insert "of England and Wales or, in Northern Ireland, the Lord Chief Justice of Northern Ireland"
Page 54, line 40, after "Justice" insert "of England and Wales"
Page 55, line 9, at end insert—
"( ) In subsection (3) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs"."
On Question, amendments agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 35 to 40:
Page 57, line 35, at end insert—
"In Schedule 10 (transitional provisions), omit paragraphs 3 and 4."
Page 67, line 2, at end insert—
"( ) omit paragraph (a);"
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Page 67, line 31, after "(I)" insert "—
(a) omit paragraph (a);
(b)"
Page 75, line 3, at end insert—
"For section 96 (Central Office) substitute—
"96 CENTRAL OFFICE
The Central Office of the Supreme Court shall perform such business as it performed immediately before the commencement of this Act.""
Page 79, line 21, leave out paragraph 220 and insert—
"( ) Section 36 (assignment of circuit judges to family proceedings) is amended as follows.
( ) That section becomes subsection (1) of section 36.
( ) In that subsection, for "Lord Chancellor may direct" substitute "Lord Chief Justice may, after consulting the Secretary of State for Constitutional Affairs, direct".
( ) After that subsection insert—
"(2) The Lord Chief Justice may nominate a judicial office holder (as defined in section 92(4) of the Constitutional Reform Act 2004) to exercise his functions under this section.""
Page 79, line 27, leave out paragraphs 222 to 224.
On Question, amendments agreed to.
The Duke of Montrose The Duke of Montrose moved Amendment No. 40A:
Page 82, line 10, leave out "13" and insert "413"
The noble Dukesaid: I shall probably refrain from speaking to Amendments Nos. 40A and 41B. I gather that they can be picked up under the excuse that they relate to printing errors. Far be it from me to require the Government to accept an opposition amendment that is unnecessary.
Lord Falconer of Thoroton:Lord Falconer of Thoroton: Far from it. We will accept both amendments.
The Duke of Montrose:I want to speak to Amendment No. 41A. Will the Minister explain to those of us who can, perhaps, be regarded as coming from the bush country beyond Milton Keynes why an amendment such as is contained in Schedule 1 paragraph 236(2), which refers to clauses in the Insolvency Act 1986, cannot refer to them as they stand in that Act? Are the Government proposing that the Act be reprinted? That is probably more than is required by the passing of this Bill. I beg to move.
Lord Falconer of Thoroton:The noble Duke has identified errors, and we accept Amendments Nos. 40A and 41B. Those amendments can be made now.
Amendment No. 41A would replace a reference in paragraph 236(2) of Schedule 1 to Parts 8 to 11, written in Arabic numerals, of the Insolvency Act 1986 with a reference to Parts VIII to XI of that Act, written in Roman numerals. All references in this Bill are in Arabic numerals, rather than Roman numerals, even if they refer to older statutes printed in the latter—i.e. Roman numerals. That follows a legislative drafting convention established by the 1998 working group under the Clerk Assistant of the House of Lords that Arabic numbering should be used in statutes instead of

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Roman numbering. If the noble Duke has any problem with that, he should take it up with the Clerk Assistant of the House of Lords, rather than me.
I understand that my officials have discussed the convention with the noble Duke. Having given that explanation—unsatisfactory as he may regard it—I hope that he will not move Amendment No. 41A.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 41:
Page 82, line 38, after "State" insert "for Constitutional Affairs"
On Question, amendment agreed to.
[Amendment No. 41A not moved.]
The Duke of Montrose The Duke of Montrose moved Amendment No. 41 B:
Page 83, line 35, after "subsections" insert "(2),"
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 42:
Page 84, line 25, leave out sub-paragraph (2) and insert—
"( ) For subsection (4) substitute—
"(4) The Secretary of State for Constitutional Affairs may, with the agreement of the Lord Chief Justice, remove any coroner from office for inability or misbehaviour."
( ) In subsection (5) for ", wilful neglect of his duty or misbehaviour in the discharge of his duty" substitute "or wilful neglect of his duty"."
The noble and learned Lordsaid: This group of amendments is in the same category as the earlier ones. I beg to move.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 43 and 44:
Page 87, line 17, at end insert—
"( ) Section 96 (evidence given by, or with respect to, children) is amended as follows.
( ) In subsection (3) for "Lord Chancellor may" substitute "Secretary of State for Constitutional Affairs may, with the concurrence of the Lord Chief Justice,".
( ) In subsection (5)(c) for "Lord Chancellor" substitute
"Secretary of State for Constitutional Affairs"."
Page 88, line 8, at end insert—
"In Schedule 14 (transitionals and savings), in paragraph 1(5) (pending proceedings) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs"."
On Question, amendments agreed to.
Lord Goodhart Lord Goodhart moved Amendment No. 45:
Page 89, line 8, at end insert—
"269A(1) Schedule 4 (authorised bodies) is amended as follows.
(2) For "Lord Chancellor" in each place substitute "Secretary of State for Justice".
(3) For "each of the designated judges" in each place substitute "the Lord Chief Justice".
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(4) In paragraph 5 (representation by applicant)—
(a) in sub-paragraph (4), for "give such advice to the Lord Chancellor as he thinks fit" substitute "notify the Secretary of State for Justice whether he concurs with the application".
(b) after sub-paragraph (4) insert
"(5) If the Lord Chief Justice does not concur the Secretary
of State for Justice shall not grant the application."
(5) In paragraph 6 (decision by (Secretary of State)), in subparagraph (1) at beginning insert "If the Lord Chief Justice has concurred with the application and".
(6) In paragraph 6, sub-paragraph ( I ) omit paragraph (c)."
The noble Lordsaid: This is a probing amendment. Schedule 1—or, at any rate, Schedule 1 as it was originally—contains an enormous number of amendments that are consequential on either the change of role or the change of name of the Lord Chancellor. So far as they simply change the name from "Lord Chancellor" to "Secretary of State for Constitutional Affairs", they will, after yesterday's vote, go into limbo. No doubt, they will, in due course, disappear from the Bill altogether. However, not all the necessary changes relating to the role of the Lord Chancellor have, in fact, been made.
In particular, the necessary changes have not been made to what I believe is a very important piece of legislation; namely, Schedule 4 to the Courts and Legal Services Act 1990. That schedule is now not in its original form, but in the form set out in Schedule 5 to the Access to Justice Act 1999, which replaced the original Schedule 4 to the 1990 Act.
Schedule 4 relates to bodies authorised to have rights of audience in the courts and rights to conduct litigation. The schedule is in four parts. Part 1 deals with the power of the Lord Chancellor to designate bodies whose members have rights of audience or rights to conduct litigation. Part 2 relates to the power of the Lord Chancellor to approve alterations of rules made by the designated bodies. Part 3 deals with the power of the Lord Chancellor to impose rule changes on the designated bodies. Part 4 contains a power for the Lord Chancellor to revoke a designation.
From that brief summary, it is obvious that those are very important powers. They were the subject of very considerable debates in the course of the passing of the Bill which became the Access to Justice Act. They are of course important because they impinge on the independence of the legal profession, which I think is nearly equal to the importance of the independence of the judiciary. I have some surprise that this had not already been dealt withor not until I raised this point at a late stage in the proceedings of the Select Committee—by the Lord Chancellor's Department.
All the relevant powers under Schedule 4 are vested in the Lord Chancellor alone. Before exercising those powers, the Lord Chancellor is required to consult a consultative panel set up under Section 18A of the 1990 Act. He is required to consult the Director-General of Fair Trading and the four designated judges; the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice-Chancellor.

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The original Schedule 4, which was replaced by the 1999 Act, gave each of the four designated judges a veto over decisions made by the Lord Chancellor. But that veto was removed in 1999 and the Lord Chancellor was left with sole decision-making powers.
The change in the role of the Lord Chancellor in particular, the fact that he is no longer a judge or head of the judiciary—makes it no longer appropriate for him to have the sole decision-making powers. Equally, it is not appropriate to transfer those powers to the Lord Chief Justice or to the judiciary as a whole. There are of course political issues involved, particularly on competition issues. Leaving Schedule 4 powers solely in the hands of the judiciary would be wrong. I believe that judges would find it difficult to overcome the sense of professional solidarity with the profession from which they have come. There is a danger that if that is left in the hands of the judiciary, there would be no sufficient consideration of the general public interest.
The best solution is to leave the powers to initiate action in the hands of the Lord Chancellor, but to require, as is done in a large number of other circumstances, the concurrence of the Lord Chief Justice. I do not think that we should go back to the original position of the 1990 Act where we had four designated judges, each with an individual power of veto. That is partly as a result of the fact that, under this Bill, the Lord Chief Justice will have a status as head of the judiciary, not just the status of one of a "gang of four", even if perhaps primus inter pares among those four.
I believe that that balance, giving the Lord Chancellor the initiative but requiring the concurrence of the Lord Chief Justice to get the balance right, is what Amendment No. 45 is intended to achieve. However, it is a sample amendment because it extends only to Part 1 of Schedule 4. However, the same principles obviously apply to Parts 2, 3 and 4. I did not feel it necessary to produce identical amendments on this occasion.
I raise this very much as a matter for discussion and I have no intention of pressing it any further on this occasion. I would be interested to hear whether the Lord Chancellor and, indeed, other noble Lords are prepared to accept this analysis and the solution I have proposed. I beg to move.
9.30 p.m.
Lord Mayhew of Twysden:I recall, although without superb accuracy, the time when the formula which the noble Lord seeks to change was legislated; that is, the requirement of the approval or the concurrence of each of the four heads of division. At the time the profession was greatly fraught and felt very strongly about this. I am not at all sure that I am as yet persuaded by the argument put forward by the noble Lord by way of justification for removing the safeguard. I think that matters of, for example, rights
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of audience are of immense importance to the independence of the profession, and to the service that can be provided by it.
I would not want this matter to pass wholly without contribution from the Back Benches, which looked likely to be the case.
Lord Falconer of Thoroton:The amendment proposes, in the context of the implementation of the concordat and Schedule 1 to the Bill, to alter the arrangements Parliament has set in place in Schedule 4 to the Courts and Legal Services Act 1990, as amended by the Access to Justice Act 1999. These arrangements relate to the consideration of applications from a body to grant its members rights of audience or rights to conduct litigation, or applications from organisations such as the Bar Council, the Law Society, the Institute of Legal Executives, the Institute of Trade Mark Agents and the Chartered Institute of Patent Agents for approval of changes to their qualification regulations or rules of conduct.
As noble Lords are aware, last July I announced a review of the framework of legal services regulation which is being led by Sir David Clementi. I gave Sir David wide terms of reference. He is looking at the whole regulatory framework and the role and responsibilities within it. The consultation paper issued by his review team earlier this year asked questions about regulatory models and, specifically, about a regulator and the role of the judiciary. The team is analysing the responses to that consultation exercise now and Sir David is due to report to me at the end of the year.
I said at the time, and I think that this is right, that I do not intend to alter the existing arrangements further until I have received his report. When I have considered his recommendations I shall report to your Lordships' House. I do not wish his review to be undermined by any attempt to make new arrangements within the overall existing regulatory structure.
I turn now to the detail of the amendment. When drafting the amendment, it appears that the noble Lord was not aware that the Lord Chancellor's functions under Schedule 4 to the Courts and Legal Services Act 1990 had already been transferred to the Secretary of State for Constitutional Affairs by a transfer of functions order laid before Parliament on 29 July last year. But it is not for that reason alone that I will ask the noble Lord to withdraw this amendment.
The amendment seeks to transfer functions from the Lord Chancellor to a "Secretary of State for Justice", which is a detail we do not need to deal with at this point. It would replace the arrangements under which the Secretary of State receives advice and applications from each of the designated senior judges with an arrangement under which he would receive the view of the Lord Chief Justice only. This would mean that the Lord Chief Justice alone must consider the application and the advice of the Legal Services Consultative Panel and that of the Office of Fair Trading before providing his advice to the Secretary of State or the Lord Chancellor. The proposed amendment does not allow

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the Lord Chief Justice to delegate this function to any other senior judge. Given that applications for rights of audience and rights to conduct litigation can be several hundred pages long, it is unlikely that the Lord Chief Justice alone would be able to give the attention necessary to determine if the application should be accepted without introducing considerable delay into the process. That would be neither in the interests of the legal profession nor that of the public.
The designated judges—this reflects the point made by the noble and learned Lord, Lord Mayhew—bring a range of experience and expertise and have, on occasions, brought a range of views for the Secretary of State to consider. Losing this breadth of experience would not be in the interests of the public, who are most affected by changes to the professions' rules. For that reason, too, I would ask the noble Lord to withdraw the amendment.
The effect of the amendment is also to constrain the freedom Parliament has given the Secretary of State to act once he has received the advice of the Lord Chief Justice.
I fully accept, as the noble Lord, Lord Goodhart, said, that these are very important issues, but, in a sense, they arise only by a side wind as a result of the Bill. I said to the noble Lord at the end of the Select Committee that I thought these kinds of matters should be transferred to the Lord Chief Justice. I was plainly wrong. My point is basically to let them stay where they are in the broad architecture until we hear what Clementi has to say. In those circumstances, I hope that the noble Lord will withdraw the amendment.
Lord Goodhart:I shall start by dealing with the point made by the noble and learned Lord, Lord Mayhew of Twysden, who I think misunderstood the point I was making. The protection that was given by each of the four designated judges having a veto would not be removed by my amendment; it was removed by the Access to Justice Act 1999, at a time when I myself took part in the debate and objected to the removal of that protection.
The effect of my amendment would be to restore that protection to a considerable extent by giving a veto not to each of the four designated judges but to the Lord Chief Justice alone. That is a reasonable move because having four judges each with an individual veto was unsatisfactory. The result of that was that any one of the four could have vetoed a change in the rules which was entirely acceptable to the other three designated judges. Giving the veto to one judge, who is now formally recognised as the official head of the judiciary, is a reasonable step to take.
I am somewhat disappointed by the reply of the noble and learned Lord the Lord Chancellor. I am concerned about leaving the position of the professional bodies unprotected when so many other aspects will be protected by requiring the concurrence of the Lord Chief Justice—for instance, in the disciplinary role up until now exercised by the Lord Chancellor.
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If this issue is left over to be dealt with in response to the Clementi report, it seems to me that we are very unlikely to have anything incorporated in this Bill. Therefore it follows that further primary legislation is likely to be needed to amend Schedule 4. Given the changed role of the Lord Chancellor, it is a matter of importance that he should not be in a position to impose his own will on the professional bodies which are subject to Schedule 4 to the 1990 Act. It would be appropriate to put into the Bill now a provision that changes can be made only with the concurrence of the Lord Chief Justice.
I would have no objection to rephrasing the amendment—I accept that there are other respects in which it needs to be amended—in a way which would enable further appropriate changes to be made by statutory instrument under the affirmative resolution procedure once Clementi has reported.
However, I would be very unhappy about the idea that the Bill would become law with no further protection given to the professional bodies because, as I said, the independence of the legal profession is very nearly as important as that of the judiciary. Having said that, as I said earlier, I will ask for the leave of the Committee to withdraw the amendment, but I may come back with a further amendment in a somewhat different form to take up the points made by the noble and learned Lord the Lord Chancellor today. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 46 to 75:
Page 89, line 43, at end insert—
"( ) Section 45 (jurisdiction of courts in certain proceedings under this Act) is amended as follows.
( ) In subsections (1) and (6) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs".
( ) After subsection (7) insert—
"(8) The functions conferred on the Secretary of State for Constitutional Affairs by this section may be exercised only after consultation with the Lord Chief Justice.
(9) The Lord Chief Justice may nominate a judicial office holder (as defined in section 92(4) of the Constitutional Reform Act 2004) to exercise his functions under this section.""
Page 90, leave out lines 8 to 14 and insert—
"(3A) The Secretary of State for Constitutional Affairs may remove a Child Support Commissioner under sub-paragraph (3) only with the concurrence of
(a) the Lord Chief Justice of England and Wales, and
(b) the Lord President of the Court of Session.""
Page 91, line 34, leave out paragraph 286 and insert—
In section 13 (power to apply Act to additional tribunals and to repeal or amend certain provisions), for "Lord Chancellor" in each place substitute "Secretary of State for Constitutional Affairs".

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Page 92, line 21, at end insert—
"( ) For "appropriate minister" in each place substitute "appropriate person"."
Page 92, line 22, leave out sub-paragraph (2).
Page 92, line 28, at end insert—
"( ) In subsection (12), after the definition of "appointed day" insert—
""the appropriate person" means—

the appropriate Minister in a case which falls within paragraph (a) of the definition of the expression in section 30;

in any other case, the Lord Chief Justice of England and Wales;"."

Page 92, line 30, after "(13)" insert "Where the Lord Chief Justice is the appropriate person, he must obtain the concurrence of the Secretary of State for Constitutional Affairs before exercising any functions under this section.
(14)"
Page 93, line 30, at end insert—
"300A The Value Added Tax Act 1994 is amended as follows.
300B(1) Section 86 (appeals to the Court of Appeal) is amended as follows.
(2) In subsection (1) for "Lord Chancellor may" substitute "Secretary of State for Constitutional Affairs may, after consulting the Lord Chief Justice of England and Wales,".
(3) After subsection (2) insert—
"(2A) The Lord Chief Justice may nominate a judicial office holder (as defined in section 92 of the Constitutional Reform Act 2004) to exercise his functions under this section."
300C In section 97 (orders, rules and regulations), in subsection (1) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs"."
Page 93, line 31, leave out "to the Value Added Tax Act 1994" Page 95, line 31, leave out sub-paragraph (4) and insert—
"( ) In subsection (3) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs"."
Page 95, line 33, leave out "under" and insert "by the preceding provisions of"
Page 95, line 35, at end insert—
"( ) The functions conferred on the Secretary of State for Constitutional Affairs by subsection (3) may be exercised only after consultation with the Lord Chief Justice."
Page 97, line 35, leave out "with the concurrence of" and insert "after consulting"
Page 98, line 30, at end insert—
"Deregulation ( Model Appeal Provisions) Order 1996 (S.I. 1996/1678)
(1) The Schedule (model rules for appeals) to the Deregulation (Model Appeal Provisions) Order 1996 is amended as follows.
(2) In paragraph 6(3)(b) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs".
(3) After paragraph 6(3) insert—
"(3A) The Secretary of State for Constitutional Affairs may exercise his power under sub-paragraph (3) to remove a person appointed to the panel of chairmen for England and Wales only with the concurrence of the Lord Chief Justice."."
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Page 100, line 36, leave out paragraph 332 and insert—
"( ) Section 6 (Civil Justice Council) is amended as follows.
( ) In subsection (1) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs".
( ) After subsection (2) insert—
"(2A) The Secretary of State for Constitutional Affairs must decide the following questions—
(a) how many members of the Council are to be drawn from each of the groups mentioned in subsection (2);
(b) how many other members the Council is to have.
(2B) It is for—
(a) the Lord Chief Justice to appoint members of the judiciary to the Council;
(b) the Secretary of State for Constitutional Affairs to appoint other persons to the Council."
( ) In subsections (3) and (4) for "Lord Chancellor" in each place substitute "Secretary of State for Constitutional Affairs".
( ) After subsection (4) insert—
"(5) The Lord Chief Justice may nominate a judicial office holder (as defined in section 92 of the Constitutional Reform Act 2004) to exercise his functions under this section.""
Page 101, line 41, leave out "omit subsection (3)" and insert ", in subsection (3)(a) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs under a power conferred on him"
Page 103, line 15, at end insert—
"( ) Section 10 (appeals against parenting orders) is amended as follows.
( ) In subsection (6) for "Lord Chancellor may" substitute "Secretary of State for Constitutional Affairs may, with the concurrence of the Lord Chief Justice,".
( ) After subsection (7) insert—
"(8) The Lord Chief Justice may nominate a judicial office holder (as defined in section 92 of the Constitutional Reform Act 2004) to exercise his functions under this section.""
Page 110, line 14, at end insert—
"Employment Tribunals ( Constitution and Rules of Procedure) Regulations 2001(S.I. 2001/1171)
(1) The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 are amended as follows.
(2) In regulation 3 (President of Employment Tribunals)—
(a) in paragraph (2) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs";
(b) in paragraph (4) for "Lord Chancellor" in the first place substitute "Secretary of State for Constitutional Affairs" and for "Lord Chancellor may" substitute "Secretary of State for Constitutional Affairs may, with the concurrence of the Lord Chief Justice,";
(c) in paragraph (5) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs".
(3) In regulation 5 (panels of members of tribunals), in paragraph (2) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs"."
Page 111, line 8, leave out paragraph 391.
Page 114, line 11, at end insert—
"In section 3 (provision of accommodation) for "Lord Chancellor" in each place substitute "Secretary of State for Constitutional Affairs"."

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Page 121, line 32, before second "subsection" insert "under"
Page 121, line 44, leave out paragraph (b) and insert—
"(b) in paragraph (a) for "Lord Chancellor" substitute "Secretary of State or Lord Chief Justice"."
Page 122, line 3, at end insert—
"( ) In subsection (2) for "Lord Chancellor" substitute "Secretary of State"."
Page 126, line 21, leave out sub-paragraphs (1) to (3) and insert—
"(1) This Part of this Schedule contains amendments of or relating to enactments that have already been amended or repealed by provisions of other Acts.
(2) In each case the amending or repealing provision is specified, in relation to the enactment referred to, as the "original amending provision".
(3) An amendment contained in any provision of this Part of this Schedule has effect only until the original amending provision comes fully into force in relation to the enactment referred to in that provision of this Part of this Schedule."
Page 129, line 27, leave out sub-paragraph (ii).
Page 129, line 28, leave out from "for" to end of line 29 and insert "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs"."
Page 129, leave out line 30 and insert"—
( ) After subsection (3) insert—
"(4) The Secretary of State for Constitutional Affairs may exercise his functions under subsection (2)(b) only with the concurrence of all of the following—
(a) the Lord Chief Justice of England and Wales;
(b) the Lord President of the Court of Session;
(c) the Lord Chief Justice of Northern Ireland."
Page 129, line 31, after "Justice" insert "of England and Wales"
Page 130, line 23, leave out ", after consulting" and insert "with the concurrence of"

Page 131, line 40, at end insert—
"Matrimonial and Family Proceedings Act 1984 (c. 42)
484A The Matrimonial and Family Proceedings Act 1984 is amended as follows.
484B (1) Section 40 (family proceedings rules) is amended as follows.
(2) In subsection (1)
(a) for "by the Lord Chancellor together with any four or more of the following persons, namely—" substitute "by a committee known as the Family Proceedings Rule Committee, which is to consist of the following persons—";
(b) before paragraph (a) insert—
"(za) the Lord Chief Justice,".
(3) For subsection (3) substitute—
"(3) The members of the Family Proceedings Rule Committee, other than those eligible to act by virtue of their office, are appointed under subsection (3ZA) or (3ZB).
(3ZA) The Lord Chief Justice must appoint the persons referred to in paragraphs (b), (c) (d) and (e) of subsection (1), after consulting the Secretary of State.
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(3ZB) The Secretary of State must appoint the persons referred to in paragraphs (f) and (g) of subsection (1), after consulting the Lord Chief Justice.
(3ZC) A person is to be appointed under subsection (3) or (4) for such period as the Secretary of State determines after consulting the Lord Chief Justice."
(4) After subsection (4) insert—
"(4A) In this section "Secretary of State" means the Secretary of State for Constitutional Affairs."
(5) Omit subsection (5).
(6) In relation to the enactment referred to in this paragraph, the original amending provision is paragraph 278(a) of the Courts Act 2003.
484C (1) After section 40 insert—
"40A PROCESS FOR MAKING RULES OF COURT UNDER SECTION 40
(1) Family proceedings rules must be
(a) signed by a majority of the members of the Family Proceedings Rule Committee, and
(b) submitted to the Secretary of State.
(2) The Secretary of State may allow or disallow rules so made.
(3) If the Secretary of State disallows rules, he must give the Committee written reasons for doing so.
(4) Rules so made and allowed by the Secretary of State—
(a) come into force on such day as the Secretary of State directs, and
(b) are to be contained in a statutory instrument to which the Statutory Instruments Act 1946 applies as if the instrument contained rules made by a Minister of the Crown.
(5) A statutory instrument containing Family Proceedings rules is subject to annulment in pursuance of a resolution of either House of Parliament.
(6) In this section and section 40B—
"Family Proceedings rules" means rules of court made under section 40;
"Secretary of State" means the Secretary of State for Constitutional Affairs.
40B RULES TO BE MADE IF REQUIRED BY SECRETARY OF STATE
(1) This section applies if the Secretary of State gives the Family Proceedings Rule Committee written notice that he thinks it is expedient for Family Proceedings rules to include provision that would achieve a purpose specified in the notice.
(2) The Committee must make such Family Proceedings rules as it considers necessary to achieve the specified purpose.
(3) Those rules must be—
(a) made within a reasonable period after the Secretary of State gives notice to the Committee;
(b) made in accordance with section 40A."
(2) The enactment referred to in this paragraph, for the purposes of paragraph 464(3), is section 40 of the Matrimonial Proceedings Act 1984, and in relation to that enactment the original amending provision is paragraph 278(a) of the Courts Act 2003.
484D (1) In section 41 (fees in family proceedings) for "Lord Chancellor" substitute "Secretary of State for Constitutional Affairs".
(2) In relation to the enactment referred to in this paragraph, the original amending provision is paragraph 278(a) of the Courts Act 2003."
On Question, amendments agreed to. Schedule 1 as amended, agreed to.
Lord Falconer of Thorotonmoved Amendment No. 76:
Transpose Schedule I to after Schedule 4.
On Question, amendment agreed to.
Clauses 4 to 6 agreed to.
Lord Grocott:I beg to move that the House do now resume.
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Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Patents Bill [H.L.]
Returned from the Commons agreed to with amendments; it was ordered that the Commons amendments be printed.
House adjourned at sixteen minutes before 10 o'clock.