Lords Sitting of 16 June 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 Sheffield.

Lord Howard of Rising
Greville Patrick Charles Howard, Esquire, having been created Baron Howard of Rising, of Castle Rising in the County of Norfolk, for life—Was, in his robes, introduced between the Lord Willoughby de Broke and the Lord Fellowes.
Lord Hart of Chilton
Garry Richard Rushby Hart, Esquire, having been created Baron Hart of Chilton, of Chilton in the County of Suffolk, for life—Was, in his robes, introduced between the Baroness Blackstone and the Lord Irvine of Lairg.

National Offender Management Service
2.48 p.m.
Lord Carlile of Berriew Lord Carlile of Berriew asked Her Majesty's Government:
Whether they intend to bring in legislation to implement the Carter review on the proposed national offender management service.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, some of the organisational reform involved in establishing the national offender management service, along with the sentencing proposals in the Carter report, will require legislation. Subject to other priorities in the Government's legislative programme, we are planning to introduce a Bill as soon as possible.
Lord Carlile of Berriew: My Lords, I am grateful to the noble Baroness for that reply. Does she agree that the independent Prisons and Probation Ombudsman has been doing an extremely good job providing very wise advice and judgments? Does she also share the view that the repeated promise to put the ombudsman on a statutory footing would strengthen his role considerably and ought to be brought forward in legislation very soon without necessarily awaiting the full legislation for the Carter report?
Baroness Scotland of Asthal: My Lords, I certainly agree with the noble Lord that the ombudsman is discharging his duties in an exemplary way, but whether it would be right to include that in statutory form needs further consideration.
Lord Ackner: My Lords, does the noble Baroness accept that the package of proposals justifies doing
744
away with the Prison Service and Probation Service, as suggested on page 43 of the report? Further, does she recognise that the judicial roles identified on page 42 cannot really be described as in any way new?
Baroness Scotland of Asthal: My Lords, we are not doing away with the Prison Service and the Probation Service; rather, we are forming them into a new entity which we hope will enable them to work even more effectively than hitherto, particularly bearing in mind the new structural change brought about by the Criminal Justice Act 2003. The judicial role will remain that which it has always been and one which we are proud that this country has had the benefit of for a long time.
Lord Dholakia: My Lords, is the Minister aware that a major restructure of the Probation Service took place in 2001, only three years ago? Serious concerns were expressed in your Lordships' House when this matter was considered, on the basis that the Home Office seems to have an insatiable appetite for controlling everything centrally. Does the Minister consider that the National Association of Probation Officers and the probation service boards have been given adequate time for consultation? According to their representations, they are very unhappy. Will she also take into account not only the scrutiny of Parliament, but the opinions of these organisations when bringing proposals before this House?
Baroness Scotland of Asthal: My Lords, I can reassure the noble Lord that an appropriate opportunity will be provided for consultation. Indeed, a wide range of consultation has already been undertaken. Noble Lords know that we have held two formal public consultations on the Carter reforms. The government document, Reducing Crime, Changing Lives invited responses on a number of critical issues, and we have now published a second consultation seeking specific comments on whether the model of the new national offender management service will provide a rational and cost-effective means of delivering the NOMS reforms, whether the regional offender management boards should be chaired and so on. That is a real opportunity for consultation.
I do not agree with the noble Lord that we have an insatiable appetite for centralisation. In fact, the result of NOMS will be a higher level of local accountability, while the regional managers will have a real opportunity to make a difference.
Lord Acton: My Lords, will the proposed legislation affect the position of the Chief Inspector of Prisons and her inspectors?
Baroness Scotland of Asthal: My Lords, it will have no effect on their independence or their ability to advise the Government on what they deem appropriate better to manage the system.
Baroness Howarth of Breckland: My Lords, does the noble Baroness accept that there is a great deal of

745
disquiet among those in the probation service that this amalgamation will erode the skills they have developed in working in the community with offenders? Can she give an assurance that those skills will be preserved in the new structure?
Baroness Scotland of Asthal: My Lords, I have heard and understand that anxiety, but it is my pleasure to say that we believe it to be totally unfounded. We will have to rely even more keenly on the skills and aptitudes of probation officers. We have increased their number by 5,000 and we intend to have a further 2,500 in the next two years. We need these officers as never before.
Baroness Anelay of St Johns: My Lords, if the transition to NOMS is handled well, it could mark a step forward for justice. However, the problem is that the Government are handling it so badly that they have created uncertainty and lack of trust in what may happen. Can the Minister explain why, in advance of any parliamentary scrutiny or legislation, appointments are already going ahead and piloting of the regional system is being undertaken in the north-west?
Baroness Scotland of Asthal: My Lords, I agree with the noble Baroness that the creation of this service could be a very good development. However, I do not accept that it is being dealt with badly by the Government. We have taken extensive opportunities to consult. I am sure that the noble Baroness knows that we have had meetings with the relevant trade unions, that 10 road shows attended by Martin Neary have been held in the English regions and Wales for 3,000 prison and probation staff, along with numerous sentencers. So I do not accept that this process has not been handled appropriately. We are already seeing the benefits of the changes, as well as a welcome change of view and acceptance that this will inure to the benefit of the system and of justice.
Lord Corbett of Castle Vale: My Lords, can my noble friend explain in detail the attitude of the trade unions representing staff working in the two services, and what was the Government's response?
Baroness Scotland of Asthal: My Lords, anxieties have been expressed about precisely what these changes will mean and what kind of structure is to be put in place. Those are proper concerns which the Government are seeking to address. The precise form of any changes has not yet been settled and we will continue to consult all the appropriate stakeholders to make sure that we get this right.
Lord Avebury: My Lords, the noble Baroness has just mentioned consultation. What consultation has taken place with the chaplaincy services and how, in the changes they are implementing, the Government can avoid the danger that unacceptable variations will occur in the level and scope of spiritual care of prisoners between one region and another?
Baroness Scotland of Asthal: My Lords, first, the consultation process has been open to all. I cannot tell
746
the noble Lord today precisely how many chaplains have participated, but I can certainly confirm that on my visits, chaplaincy issues have been raised. These matters will be taken into account. I shall be more than happy to write to the noble Lord about specific consultation in this area.

Saddam Hussein
2.57 p.m.
Lord Sandberg Lord Sandberg asked Her Majesty's Government:
What discussions they have had with the United States or coalition authorities about the whereabouts and status of Saddam Hussein and the legal procedures envisaged for bringing him to trial.
Baroness Crawley: My Lords, we consult regularly with the United States and other coalition countries both within the CPA and directly between our capitals on a wide variety of issues concerning Iraq, including detainees and future judicial proceedings against them.
Saddam Hussein is being held by the United States in a secure location. The US announced, when Saddam Hussein was captured, that he has the status of a prisoner of war under the third Geneva Convention. The Iraqi authorities envisage bringing Saddam Hussein to trial before the Iraqi Special Tribunal. The US and Iraqi authorities are in discussion about the handover of Saddam Hussein and other detainees.
Lord Sandberg: My Lords, I thank the noble Baroness for that reply. Saddam Hussein has been in custody for something like half a year. He is, I think, a prisoner of the coalition rather than just of the United States. We understand that US intelligence personnel have had access to him. God knows what they have learnt: perhaps that there never were any weapons of mass destruction. Can the Minister tell us what access to him has been given to British security services?
Baroness Crawley: My Lords, Saddam Hussein is being held as a prisoner of war by the US. The briefing I have on access to him states that the International Committee of the Red Cross visited him in April and May.
Lord Clinton-Davis: My Lords, what assurances, if any, have been given by the authorities in Iraq, a country where normally capital punishment is applied in cases of this kind? Further, what assurances have been given that capital punishment will not be applied in this case, however heinous the alleged behaviour of the person concerned may have been?
Baroness Crawley: My Lords, my noble friend is well aware that the UK opposes the death penalty as a matter of principle. We note that the Iraqi justice Minister, Malik Dohan al-Hassan, has said that he would like to see the reintroduction of the death

747
penalty. If the interim Iraqi Government reintroduce the death penalty, we will lobby them to abolish it, as we do with all retentionist states.
Lord Wallace of Saltaire: My Lords, does the noble Baroness recognise that as Britain is part of the Coalition Provisional Authority, we have some standing regarding the future of Saddam Hussein? Are we happy for the decision on what happens to him to be left purely to the Iraqi Government after 30 June, or do we think that since this was international intervention in Iraq, international law and the law of the UN need to be taken into account?
Baroness Crawley: My Lords, I reiterate that it is for the United States and the Iraqi authorities to determine when he should he handed over.
Noble Lords: No.
Baroness Crawley: My Lords, we are aware that they are in discussion over this.
Lord Campbell-Savours: My Lords, my noble friend will recall that Saddam Hussein was responsible for an act of hostage-taking in 1991 during the course of the first Gulf War, which is an offence under international law. Is it the intention of anyone to prosecute him on that issue?
Baroness Crawley: My Lords, I cannot give my noble friend a detailed answer on that question.
Lord Howell of Guildford: My Lords, it appears that there is some difference of view between Mr Iyad Allawi and the Iraqi Government designate on the one hand and the Coalition Provisional Authority on the other as to whether he should be handed over by 30 June. One side says that he should be, and we understand that the Americans are saying that he should not be. Further to the question of the noble Lord, Lord Wallace of Saltaire, what is our view? We are a key member of the coalition; we must have a view on that rather sensitive and immediate matter. What is it?
Baroness Crawley: My Lords, there is no difference between what the Iraqi Prime Minister and the US President are saying on handing over Saddam Hussein. The Iraqi Prime Minister has confirmed that criminal proceedings will be brought against Saddam Hussein and President Bush has confirmed that the US will pass Saddam Hussein to the Iraqi authorities to face criminal prosecution. We believe, speaking for our own UK prisoners of war, that in accordance with the third Geneva Convention, the obligation to release and repatriate prisoners of war arises with the end of active hostilities, which we believe will be 30 June.
Lord Berkeley: My Lords—
Lord Thomas of Gresford: My Lords—
Noble Lords: This side!
Lord Berkeley: My Lords, is my noble friend aware that in my opinion Saddam Hussein is very lucky that
748
he has been classed as a PoW? Who decided that he was going to be a PoW and who decided that the people in Guantanamo Bay are not PoWs?
Baroness Crawley: My Lords, the discussions between the Coalition Provisional Authority and the Iraqi interim government have decided the status of Saddam Hussein. I do not have briefing on Guantanamo Bay.
Lord Thomas of Gresford: My Lords, will there be a new criminal code and a new criminal process in position on 1 July, or will Saddam Hussein be tried under the criminal code and process of his own regime?
Baroness Crawley: My Lords, as the noble Lord will know, the precise details of his trial have yet to be decided.
Lord Morris of Aberavon: My Lords, why is this a matter for the United States and not for the coalition?
Baroness Crawley: My Lords, Saddam Hussein is a US prisoner of war.

Late Payment of Commercial Debt
3.4 p.m.
Lord Harrison Lord Harrison asked Her Majesty's Government:
Whether their late payment of commercial debt legislation is assisting small companies; and whether they are enforcing the requirement for large companies to publish payment particulars in their annual reports.
Lord Triesman: My Lords, the package of measures has had a positive effect on payment times. The Grant Thornton European Business Survey showed that the average time taken in the UK to settle accounts in 1997 was 49 days. By 2002, this had fallen to 42 days. By comparison, the average settlement time for our European neighbours was 50 days.
A recent survey by the REL Consultancy Group looked at average days payable outstanding and concluded that UK companies' payment performance was 33.6 days against a European figure of 42.4 days as a whole.
Lord Harrison: My Lords, I thank my noble friend for that Answer. Does he share my disappointment that, according to a report by Leeds University published by the Federation of Small Businesses, the average payment period remains stubbornly at 46 days. Some 17 companies are named in that report as having an average payment period of more than 200 days.
Secondly, will my noble friend turn his attention to the important issue of publishing in annual accounts the payment practices of plcs? Does he recognise that there has been an increase in the numbers of those who fail to publish those practices, thereby breaching

749
company law? Will the Government act against those reprobates to ensure that small businesses can prosper and survive?
Lord Triesman: My Lords, I have not seen the Leeds research, although I have seen reference to it very recently. I promise that I will get hold of it and study it because there is plainly a discrepancy between some of the research findings.
On my noble friend's second point, plcs have to disclose the payment times in their directors' reports as a result of regulations introduced in 1996 by the Conservative Government. We added and enacted a commitment to publish, and the published lists appear once each year. It is certainly true that fewer plcs are complying with that requirement.
The Companies House regime deals with auditors' reports, but not with directors' reports. It says that the burden would be too great and involve looking at about 6 million documents a year. I am quite convinced that we will need to look at that and ensure that there is an overall improvement.
Lord Shutt of Greetland: My Lords, are organisations funded by the public purse, whether they are government departments, nationalised industries, quangos or local government, any better at paying their debts than companies in the private sector?
Lord Triesman: My Lords, I think they probably are. The Government are committed to improving the payment culture in UK business in general and their own payment performance, which is an important part of the policy. The Government paid, on average, 95 per cent of their Bills on time in 2003–04, compared with a figure of 91 per cent in 1995–96. It is an improvement, it ought to get still better, and we intend it should do so, but we publish league tables and we come clean about where we need to make improvements.
Baroness Sharples: My Lords, can the noble Lord assure us that all government departments pay their small suppliers promptly, specifically the Ministry of Defence?
Lord Triesman: My Lords, I think that all government departments are now charged to make sure that they do exactly that. I have no reason to think that the Ministry of Defence is a poor performer in this regard. If it was, we would look at the league tables and be able to identify that.
Baroness Byford: My Lords, will the Government put any pressure on Defra to make sure that the outstanding claims going back to the foot and mouth outbreak in 2001 are met? These are two years out of date, and each of those companies is a small business or is linked to a small business.
Lord Triesman: My Lords, I know that this is not the first time that the issue of Defra and the payment of
750
bills in relation to foot and mouth has been raised in your Lordships' House. Defra has exactly the same responsibilities to pay small businesses on time as every other department. However, the National Audit Office has also pointed out to government departments that they have an official duty to protect public funds and should not pay bills which they believe should be challenged or when they are doubtful about the data. I believe that some delays may have occurred in that context. None the less, I think that there would be criticism in your Lordships' House if the advice of the National Audit Office were to be ignored in such cases.
Lord Swinfen: My Lords, will the Government or Defra pay interest on accounts that have been outstanding since 2001?
Lord Triesman: My Lords, under the legislation, not only is interest paid but there is a sliding scale of arrangements so that people can secure the legal costs of enforcing debt payment. That is all part of the current regulatory regime.
Baroness Greengross: My Lords, many charities in this country have contractual relationships, usually with local government, and care for very dependent children and vulnerable adults. Under company law, there is an obligation to pay those charities or contractual relationships on time. However, many are using charitable funds quite wrongly to cover debts. It creates a great many problems. Cannot the Government do anything to help them?
Lord Triesman: My Lords, I have a lot of sympathy with the point made by the noble Baroness. The reality is that the Act that applies to commercial debts applies only when an organisation is acting in the course of business. It is therefore unlikely to apply to payments to charities or the voluntary sector made by local authorities. There is no current plan to change the law in that regard. However, I would certainly be willing to look at any data that the noble Baroness may provide to consider what might be helpful.
Baroness Miller of Hendon: My Lords, given the disparity between the first Answer that the Minister gave and the figures quoted by the noble Lord, Lord Harrison—figures from the Credit Management Research Centre at the University of Leeds with which I agree—and given the questions that have been asked about the Government's own record, what I have to ask is very simple. Will the Minister confirm that the Government, through their departments, are wishing to set an example to other commercial people, and plcs in particular, about how quickly they pay? Given that they wish to set an example, is the Minister in a position to give the House any comparable figures about how the Government are performing? That is the most important issue in this Question.
Lord Triesman: My Lords, to take the last point first, the league tables show that the performance of

751
government departments is improving, from high figures to still higher figures. I hope that that will be a general encouragement to everyone in the private sector as well. I have undertaken to look at the data from Leeds. The discrepancies are not only with government data, but with commissioned data from other private research organisations. The best thing that I can do is to explore the discrepancies and see whether I can come to an understanding of the cause.
Lord Harrison: My Lords, given that at any one time some £20 thousand million is owed to small businesses by other firms, will my noble friend now consult with companies such as Next, BAA and BT, which have exemplary records of paying quickly and on time, to demonstrate that there is no competitive disadvantage in paying on time?
Lord Triesman: My Lords, I agree with my noble friend that there are obviously good examples of best practice. One of the functions of the Better Payment Practice Group is to look at those. It takes evidence from the Forum of Private Businesses, of which I know my noble friend has been a key supporter, the Federation of Small Businesses, the British Chambers of Commerce and so forth—I will not go right through the list. The attempt is made in that group to find and promulgate good practice. It is a very strong asset. It allows the business community to have a strong say in what is best for that community.

Army Recruitment
3.13 p.m.
Lord Astor of Hever Lord Astor of Hever asked Her Majesty's Government:
Whether recruitment to the Army has been capped for a six-month period; and, if so, whether this is justified when the Army is under strength.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach): My Lords, the Army continues to work towards the target for manning set out in its public service agreement. Recruitment has not been capped. We have had considerable success in recent years with various measures aimed at improving recruitment and retention. However, the Army's manpower requirements are dynamic and subject to annual review.
Lord Astor of Hever: My Lords, the Minister says that recruitment has not been capped, but there are reports that a six-month freeze on recruitment for the infantry is imminent to save costs. Are these reports without foundation? The Army is 2,960 under strength. It is dangerously overstretched. Does the Minister agree that any freeze on recruitment could result in a very serious gap in the future?
Lord Bach: My Lords, before I reply, on behalf of the House may I wish the Lord many happy returns of
752
the day? There must be better ways of spending his birthday than asking me this Question, but I shall do my best to answer it.
The noble Lord should be wary of believing all reports that he reads in newspapers, particularly the Daily Telegraph on military matters. Some measures are being imposed, including restrictions on extensions to full-time reserve service engagements, continuance—service over 22 years—and re-joins of officers and soldiers.
A measure was also implemented to allow some of those who had submitted notice to leave the Army to bring forward their exit date to this financial year, 2003–04. Additionally, there is a pause on some recruits starting their phase one basic training courses. That is likely to be in place until October. However, there is no ban on recruitment. The Army has an enlistment target figure of 11,318 for this financial year, 2004–05. Since 1 April this year, more than 1,500 have been enlisted.
Lord Redesdale: My Lords, in his earlier Answer, the Minister said that there was to be a review on the dynamics of manpower. Do the Government have any plans to reduce the number serving in the Armed Forces at present and when would such plans be implemented?
Lord Bach: My Lords, we have no such intention at present at all. Of course, the Army's manpower requirements are subject, as are all these matters, to annual review in the light of a number of issues, such as evolving doctrine, new technology, new equipment, possible changes to the operating environment—including current and new threats—and financial constraints.
Lord King of Bridgwater: My Lords, will the Minister clarify the reply that he gave earlier to my noble friend in which he appeared to say that recruitment would continue but that training would stop? I am not sure whether I understood that correctly. He appeared to say that training would be postponed until October—that is effectively a six-month freeze on training. Clarification would be helpful to the House if an announcement is imminent. I do not want to embarrass the Minister, but could he make the position clear?
Lord Bach: My Lords, I understand that there is no freeze on training. However, the noble Lord will know better than anyone the vital need for each and every new soldier to go through training. It is no good short-circuiting that. It is true that the pipeline of training that leads eventually to the tank of full membership of the Army must be kept at the proper rate. There is no intention, as I understand it, to freeze training.
Lord Mayhew of Twysden: My Lords, reverting to the Minister's first reply, is it not straining language to destruction to apply the word "dynamic" to a manpower requirement that is lower?
Lord Bach: My Lords, the answer to the noble and learned Lord's question is, "not necessarily", but we

753
are not looking to reduce the size of the Army. We are looking forward to reaching the manning levels by the end of the year 2005–06.
Lord Rogan: My Lords, what are the Government's plans for the deployment of the remaining Home Service Battalions of the Royal Irish Regiment?
Lord Bach: My Lords, I have absolutely no plans to announce to the House this afternoon, I am afraid.
Lord Mackie of Benshie: My Lords, would the Minister reassure the House that the two famous regiments of the Black Watch and the Argyles are up to strength?
Lord Bach: My Lords, recruiting overall is good, but some areas do not do as well. It is true that the Scottish infantry regiments, to which the noble Lord referred, are a case in point. We are doing our best and the Army is taking steps to improve the numbers recruited from Scotland. He will be relieved to hear that there is certainly no ban on recruiting.
Lord Morris of Aberavon: My Lords, what is the difference between there being no freeze on recruitment and postponing basic training until October?
Lord Bach: My Lords, I am not sure that I quite understand the noble and learned Lord's question. I am not sure that I even heard it.
Lord Morris of Aberavon: My Lords, with the permission of the House, I shall repeat it. What is the difference between the Minister's statement that there is no freeze on recruitment and his statement in the course of his answers that there is a postponement of basic training until some date in October?
Lord Bach: My Lords, I do not think that I said that there would be a postponement of basic training until October. There will not be a postponement of basic training until October.
Lord Tebbit: My Lords, which of the measures that the Minister read out in answer to my noble friend's Question are dictated by operational requirements, and which are dictated by the fact that there is not enough money?
Lord Bach: My Lords, more money has certainly gone into defence in the past few years than went in for a long time before that. That needs to be said. If the Conservative Party were to come to power, we know that it would reduce the defence budget by £1.5 billion in the first two years. However, the noble Lord asks a fair question. There is no doubt that there are financial pressures on us at present, and that is one aspect that affects our judgments. But the other aspects are, as I mentioned and as I remind the noble Lord, doctrine,
754
new technology and new equipment, and changes to the operating environment with all the new threats that our Army and soldiers must face today.

Driving Disqualifications
3.22 p.m.
Viscount Falkland Viscount Falkland asked Her Majesty's Government:
What benefits will result from the power given to magistrates' courts by the Criminal Justice Act 2003 to impose driving bans for offences outside normal traffic infringements.
Baroness Scotland of Asthal: My Lords, the power for the courts to disqualify from driving anyone convicted of an offence is contained in Section 146(1) of the Powers of Criminal Courts (Sentencing) Act 2000. The power is available in relation to any offence, but may be seen as an additional deterrent in the context of anti-social behaviour environmental crime and other offences when a particular case has a link to the use of vehicles, such as kerb crawling.
Viscount Falkland: My Lords, I thank the noble Baroness for that Answer. However, I may he wrong, but does she not agree with me that to the man or woman in the street—or even to a child—the handing out of driving bans for offences that are not connected with driving seems to lack one of the main elements of natural justice?
Is the Minister aware that since the guidelines to magistrates have changed, there have been one or two highly publicised incidents? One involved a senior citizen who saw fit to put up a placard warning of a speed trap. He was arrested and has received a month's disqualification and a fine of—curiously£364. There was also a motorcyclist, in another well publicised piece in the press, who similarly gave warning to others of a speed trap. Could the Minister allay the fears of the House and the general public by confirming that this is not the thin end of the wedge and that young people will not have to look forward to a future when they will receive driving bans for not separating their rubbish or for smoking in public places?
Baroness Scotland of Asthal: No, my Lords. I make it clear that the exercise of judicial discretion remains where it has always been—with the judiciary, both lay and professional. There have been other uses to which those provisions have been put. For instance, in April in Brixton someone convicted of soliciting for prostitution was banned from driving. Cars are used in those sorts of offences. In Teeside a week ago, a kerb crawler was similarly sentenced.
It is the intention for that kind of opportunity to be given to sentencers so that they can give people sentences that fit the crime. We know that to some

755
young men, their car is more dear to them than their wife, their child and almost anything else, so that may act as a deterrent.
Baroness Anelay of St Johns: My Lords, if it is the Government's intention that people such as Mr Harding, the pensioner who has already been mentioned, should be prosecuted for warning others that there is a speed trap, what is their view of the criminality or otherwise of the West Midlands police, who have been working with local councils across their area to produce a CD-ROM for use by the public, specifically so that the police can tell the public the exact location of each and every speed trap in their area?
Baroness Scotland of Asthal: My Lords, I apologise if I have not made it plain, but the imposition of the sentence is a matter entirely for the magistrate or the judge. It would be quite improper of me to comment on why the court came to the decision to impose the sentence that it did. It is perfectly proper, and part of government policy, that people should know where the cameras are, should comply with the law and should not break the speed limit. I applaud what is being done and hope that everyone will comply.
Lord Lawson of Blaby: My Lords, the Minister has not really answered the point. How can it be right that it is sensible for the police to warn about speed traps to deter drivers from driving too fast, yet it is apparently an offence—because no court can pass sentence unless there is an offence in the first place—for a private individual to warn of a speed trap?
Baroness Scotland of Asthal: My Lords, as I have said—and I say this for the third time—I do not dictate how a magistrate or judge chooses to sentence.
Lord Strathclyde: My Lords, what about the police?
Baroness Scotland of Asthal: My Lords, I hear what the noble Lord, Lord Strathclyde, says from a sedentary position. The police may charge, but it is for the judge or magistrate to dispose. The sentence is available to the court if the court deems it appropriate for that particular offender.
Lord Campbell-Savours: My Lords, is it not true that a very large body of public opinion is highly supportive of this innovative approach to penalty, which is regarded as far more effective than historic forms of fining people, when the fines are often not even paid?
Baroness Scotland of Asthal: My Lords, that is right. On a number of occasions the removal of the licence—rather than giving penalty points—is seen as a salutary lesson. It helps to make people check their behaviour and not reoffend, and that is helpful to the community. Local communities very much welcome that.

Business of the House: Debates this Day
The Lord President of the Council (Baroness Amos)My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the debates on the Motions in the names of the Lord Phillips of Sudbury and the Lord McNally set down for today shall each be limited to two and a half hours.—(Baroness Amos.)
On Question, Motion agreed to.

Procedure of the House: Select Committee Report
3.28 p.m.
The Chairman of Committees (Lord Brabazon of Tara): My Lords, I beg to move the first Motion standing in my name on the Order Paper.
The report from the Procedure Committee covers a number of matters. However, only four of them involve specific recommendations to which the House is invited to agree, so it is those that I shall briefly outline.
The proposal for a Joint European Committee is, I know, viewed with some scepticism by certain of your Lordships, who question what it will achieve over and above the excellent work done by your Lordships' European Union Committee. Indeed, the amendment to be moved today by the noble Lord, Lord Marlesford, is a clear signal of that scepticism. But noble Lords who attended the Commons Standing Committees on the Convention on the Future of Europe and the EU Intergovernmental Conference were disappointed not to he able to participate fully in those committees. The current proposal is intended to address that by establishing a genuine Joint Committee.
The Procedure Committee took the pragmatic view that when joint initiatives between the two Houses are proposed, it would be preferable to be fully involved rather than to decline to participate. The committee therefore recommended that we should "suck it and see" and review the impact of the new commit tee after two Sessions. The proposal originates with Her Majesty's Government, so I shall leave it to the noble Baroness the Leader of the House to reply in detail to the points that the noble Lord, Lord Marlesford, and other noble Lords, may make.
As for the absence of the noble and learned Lord the Lord Chancellor on Thursdays, I emphasise to your Lordships that that proposal was not of the noble and learned Lord's own seeking, but was put forward by the usual channels. I know in what esteem the noble and learned Lord the Lord Chancellor is held in the House and how sorry we shall all be not to see him in his place on the Woolsack on a Thursday. However, I know, too, that your Lordships attach great importance to the noble and learned Lord's regular attendance at Cabinet. The Procedure Committee's recommendation would apply only to those Thursdays when Starred Questions coincide with a meeting of

757
Cabinet. The noble and learned Lord would attend the House as usual on a Thursday when the Cabinet did not meet.
The number of Starred Questions and the time allowed for them will be one of the matters to be considered by the Leader's Group. Noble Lords on all sides of the House have complained about spending 40 minutes on Questions on days when only four questions, instead of the permitted five, have been tabled. The Procedure Committee took the view that this modest change to revert to 30 minutes on Tuesday and Wednesday whenever there are only four questions could sensibly be implemented straightaway.
The last matter for decision is the reinstatement in the Companion of the guidance on pecuniary interests shared by few others. The passage was omitted from the Companion after the new code of conduct was agreed. No similar formula appears in the code but it does not appear to have been the intention of the House to relax this traditional caution when it adopted the code. The Committee for Privileges and the Procedure Committee have both recommended its reinstatement. I commend the Motion to the House.
Moved, That the second report from the Select Committee be agreed to (HL Paper 99).—(The Chairman of Committees.)
Following is the report referred to:
1. REVIEW OF WORKING PRACTICES
The committee took note with approval of the intention of the Leader of the House to establish a Leader's Group to review the package of changes to working practices agreed by the House in July 2002. The committee agreed to consider the report of the group after the Summer Recess, and to make recommendations to the House before the end of the current Session. The details of the group are to be announced by the Leader in a Written Ministerial Statement.
2. PROPOSAL FOR A JOINT EUROPEAN COMMITTTEE
The committee considered a proposal from the Government for a new committee involving both Houses in debate of European matters. This would be a successor to the Commons Standing Committees on the Convention on the Future of Europe, and on the EU Intergovernmental Conference, which a number of Lords attended. However, unlike its predecessors it is intended that this new committee should be a genuine Joint Committee in which Lords could play a full role. The proposal is for a committee with a remit to cover all aspects of the EU's work, by means of general debates, and statements from and questions to ministers and others. It would not conduct investigative or scrutiny enquiries, nor adopt substantive Motions or make reports.
Although some doubt was expressed about whether a new Joint Committee would add significantly to the work already done by the European Union Committee of this House, we recommend that this House should co-operate with the House of Commons in establishing such a committee. The details of its operation will need to be settled in agreement with that House, but we recommend that:
—The committee should be open to all Members of both Houses
—The quorum should be low (perhaps two from each House)
—The committee should be given the power to permit the participation of United Kingdom MEPs
—The committee should be given the power to allow statements from and questions to European Commissioners and other EU officials
—The committee should meet no more than four times a year
758
— The committee should adjourn for divisions in either House
— The title of the committee should be simple and avoid confusion with other types of committee in either House, perhaps Joint European Committee
— The chairmanship should reflect the joint nature of the committee
—The committee should not automatically follow Commons procedures; for example a speakers' list for debate would be desirable
— The effectiveness of the new committee should be reviewed after two sessions.
3. PROPOSAL FOR JOINT MEETINGS WITH MEMBERS OF THE NATIONAL ASSEMBLY FOR WALES
A proposal for joint meetings of members of the House of Commons and members of the National Assembly for Wales (NAW) was drawn to our attention. Lord Elis-Thomas, presiding officer of the NAW, proposed that the initiative should also involve this House, particularly to allow Joint Committees to meet with committees of the NAW for pre-legislative scrutiny.
The proposal was recently considered by the Procedure Committee of the House of Commons, which recommended that there should be an experiment in joint working with the NAW before further consideration as to whether joint meetings are necessary or desirable. To that end it recommended that the Welsh Affairs Committee of that House should be authorised to invite members of the NAW to participate in its proceedings, until the end of the current Parliament.1
We agreed that in principle we would favour involvement of this House in this process, particularly in respect of pre-legislative scrutiny by Joint Committees. We will watch with interest the experiment in joint working to be undertaken in the House of Commons, and make recommendations to the House in future if appropriate.
4. LORD CHANCELLOR'S LEAVE OF ABSENCE
The Lord Chancellor is frequently unable to be present in the House for Starred Questions on a Thursday morning, owing to a clash with the regular meeting of Cabinet, and on those occasions it has been his practice to take his place on the Woolsack for a brief period at some other point during Thursday's sitting. However, that can be disruptive of business particularly, for example, during a complicated Report stage of a Bill. We therefore recommend that the Lord Chancellor should have leave of absence on any Thursday when Starred Questions coincide with a meeting of Cabinet.
5. TIME ALLOWED FOR STARRED QUESTIONS
The time allowed for Starred Questions on Tuesday and Wednesday was increased from 30 to 40 minutes when the number of questions was raised from four to five. On several occasions, however, there have been only four questions on those days, and there have been complaints that 40 minutes is then too long. We therefore recommend that the length of time for Starred Questions on Tuesday and Wednesday should revert to 30 minutes whenever there are only four questions, to keep in line with practice on other days of the week.
6. COMPANION GUIDANCE ON PECUNIARY INTERESTS SHARED BY FEW OTHERS
We endorse the conclusion of the Committee for Privileges2 and recommend that the following passage should be reinstated in the Companion to the Standing Orders:
"Members of the House should be especially cautious in deciding whether to speak or vote in relation to interests that are direct, pecuniary, and shared by few others".
1 House of Commons Procedure Committee, 3rd Report 2003–04, HC 582
2 House of Lords Committee for Privileges, 1st Report 2003–04, HL 69
Lord Marlesfordrose to move, as an amendment to the above Motion, at end to insert "with the exception of item 2 (Proposal for a Joint European Committee), which is referred back to the committee".
The noble Lord said: My Lords, in moving the amendment I should remind your Lordships that I am a member of the European Select Committee and one of the sub-committees. However, I speak entirely for myself and in no way purport to represent the views of any of the committees or, indeed, any member of a committee.
I believe that the reputation of the House of Lords has never been higher. In fact, it has grown, not only in the revision of legislation but especially in the monitoring and scrutiny of matters connected with the European Union. That is an area that is affecting more and more the lives of the citizens of our country and it is therefore right and proper that Parliament should devote considerable time and effort to it. I am asking for item 2 of the report before us to be referred back to the committee not because I reject any suggestion of the need for such a committee as has been proposed by Mr Peter Hain, the Leader of the Commons. I move that it be referred back because neither the functions nor the operating methods, as at present revealed to us, seem to be sensible or convincing.
I hope I may be allowed to remind the House how the two Houses deal with European matters at present. The methods have evolved in parallel and have long worked together. The House of Commons has had a European Scrutiny Committee since the 1970s, now under the long-established chairmanship of the honourable Member for Clydesdale, Mr Jimmy Hood. It performs a sifting role, examining all EU documents, and it recommends, in brief terms, those items that should be debated on the Floor of the House of Commons or should he referred to one of the Standing Committees of the House of Commons. It is not responsible for considering the merits of proposals from Brussels.
Our European Select Committee and its seven subcommittees scrutinise European proposals forwarded to us by the Government. They also produce in-depth reports on particular issues. The membership of these committees makes the greatest use of the experience and expertise of Members of your Lordships' House. My impression has been that the reputation of the House of Lords reports on Europe is not equalled by those of any other Parliament in the EU. The committees of the two Houses exchange papers and their Clerks are in daily contact. Twice a year, the two committees meet to exchange views and there is a more informal meeting twice a year between committees and MEPs to exchange views on topics of the day.
Therefore, when it is necessary, there is already full and serious collaboration between the two Houses on European matters. This proposed committee is to replace the ad hoc House of Commons Standing Committees on the European Convention and the EU Inter-governmental Conference. These committees had a very real and important job to do. All Peers
760
could attend and many did so and, arguably, these committees may well have a role in the future. They were focus committees. They worked well.
This proposed committee has no such task. It is to have the most general remit, as the Procedure Committee report states,
"to cover all aspects of the EU's work".
In other words, it is to overlap and duplicate everything. Yet it is not to investigate, scrutinise or make reports. The scarcest resource in either House of Parliament is the time of Members. I believe that such a committee would divert time, except, of course, that most of us try not to waste our time. It is therefore no surprise that the quorum for this new committee is to be low:
"perhaps two from each House".
It is also proposed that there should be a power for the participation in the committee of UK MEPs. To integrate further the work of both Houses with the European Parliament may be desirable but I believe that it raises important constitutional points that deserve proper debate in their own right. I suggest that they should not be slipped in in this way.
Mr Hain's proposal to the Procedure Committee has the whiff of cosmetics. Some of us are already uneasy at some of the constitutional changes proposed by the Government, which have a similar scent. Such ideas must be properly tested on the hard anvil of need. The timescale for Lords' consideration of this proposal was required to fit into the timetable of the Commons' Modernisation Committee. Our Procedure Committee was not even allowed to wait for a date when the chairman of the European Select Committee, the noble Lord, Lord Grenfell, could take part in the discussions.
The report states:
"Some doubt was expressed about whether a new Joint Committee would add significantly to the work already done by the European Union Committee of this House".
The test of added value is a crucial part of the justification for this proposal. As revealed at present, it seems to me that it merely muddies clear waters. That is why I believe that we should ask the Procedure Committee to have another go. I beg to move.
Moved, as an amendment to the above Motion, at end to insert "with the exception of item 2 (Proposal for Joint European Committee), which is referred back to the Committee".— (Lord Marlesford.)
Lord Grenfell: My Lords, I am very grateful to the noble Lord, Lord Marlesford, who is a valued member of the Select Committee, for making it clear that he is proposing his amendment on a personal basis and not on behalf of the European Select Committee, which I have the honour to chair.
Our committee discussed the proposals put to the Procedure Committee and I wrote on behalf of the committee to the Leader of the House with some observations. I am rather disappointed not to see them printed in the Procedure Committee's report. However, most of the points of detail need not trouble your Lordships this afternoon.

761
The noble Lord, Lord Marlesford, and I agree very substantially that there was little enthusiasm in the committee—putting it very mildly indeed for the proposed new joint European committee. Members expressed serious doubts about the added value of the initiative and I told the committee how fully I shared its concerns on that point. That said, I should inform your Lordships that I also gave the committee my view that we should accept the Procedure Committee's report, subject to two assurances and one important clarification, to which I shall return in a moment.
My principal reason for offering this advice to the committee was that, in my view, to do otherwise risked giving the impression to the other place that we are not in a mood to co-operate further with them on this issue at this time. Is that the right signal to send at this stage of the continuing discussions between the two Houses? I do not think so.
Some noble Lords may argue that all that the House is being asked to do this afternoon is to consider an amendment allowing for more reflection in the Procedure Committee. My response is that the amendment is in fact unnecessary because to all intents and purposes the Procedure Committee is still seized of this issue. As I understand it, if the House today agrees the Motion of the Chairman of Committees unamended, the Procedure Committee and the Modernisation Committee in another place can then proceed to a discussion on a number of important points of detail. Hence, I see this, as it were, as a Second Reading at this stage.
Therefore, I hope the Chairman of Committees can give the House this afternoon a simple assurance that, once the Procedure Committee and the Modernisation Committee have exchanged views on points of detail and, one hopes, agreed a suitable modus vivendi and a modus operandi, a final, considered proposal from the Procedure Committee will be put to this House. That would provide the essential safeguard for those concerned about what is being proposed. If at that stage the House does not like what emerges, it can reject the proposal forthwith.
I personally hope that it will not come to rejection. Perhaps I may explain why. Grave as are my doubts, matched by the doubts expressed in the Select Committee, about the real value of this venture, it is clear that another place, including the Government Front Bench, are determined to establish a new European Committee. I understand that another place agrees to a sunset clause, as mentioned by the Chairman of Committees, calling for a review of the Joint Committee's effectiveness after two years. I therefore suggest to your Lordships that we be prepared at least to try it out for two years and then pull out if the verdict is that it is adding no value, or worse, is detracting from the work of your Lordships' Select Committee.
We are just a year away from 1 July 2005, the date on which the United Kingdom assumes the presidency for six months of the European Union, a period during which our two Houses will be jointly responsible for
762
hosting a series of significant inter-parliamentary meetings and events involving our colleagues from the national parliaments of the other 24 member countries and the current applicants for future membership. To enter the run-up to that period with a disagreeable atmosphere reigning between the two Houses does not seem to me to be at all sensible. That is another reason why I believe that we should, if our conditions are met, give it that two-year trial. To that end further discussion with the Modernisation Committee should not be delayed while the Procedure Committee, as a result of this proposed amendment, is required to go back to what is virtually square one.
In conclusion, I turn briefly to the two important clarifications that I seek. First, what does the Procedure Committee mean when it says that,
"The Chairmanship should reflect the joint nature of the Committee"?
If this is a proper Joint Committee, as your Lordships have pressed for, the chairmanship should be equally shared between appropriate Members of both Houses. But first we have to know what the committee is for. If it is to be a debating forum, a panel of specially selected deputy chairmen from the two Houses will probably do the trick. But in that case we are left with the question of who would set the agenda for the committee. Would it be the Government? Alternatively, is it envisaged that each House will appoint a chairman for the committee who will jointly propose an agenda? I do not know. For that reason I seek clarification.
Finally, it is perfectly obvious that a Joint Committee, as described in the Procedure Committee's report, could never conduct the kind of detailed scrutiny undertaken by our own sub-committees. But that it might eventually try to do so is a fear that some noble Lords have, and not without grounds, given the official briefing, for example, prepared for the United Kingdom delegation to a recent conference on subsidiarity at the Committee of the Regions which I attended a couple of weeks ago in Berlin, and which seems to go entirely in the other direction. May we therefore have reiterated today the assurance given us by the Deputy Leader of the House on 11 February that the new committee would not in any way trespass on our scrutiny work? Can the Chairman of Committees say whether such a provision could be written into the Standing Orders of the new committee, which I would wholeheartedly advocate?
Subject to satisfactory clarification of the chairmanship question and assurances on no trespassing, and particularly an assurance that the Procedure Committee will put to the House a considered proposal once detailed discussions with the Modernisation Committee are concluded, I would be minded to advise the House to support the Procedure Committee.
3.45 p.m.
Lord Marsh: My Lords, I have some difficulty in disagreeing with the noble Lord, Lord Grenfell, not on the basis of his approach to this matter, but because he sums it up by saying that we need to know what the committee will do. One can understand that another place is fairly relaxed about this. It has massive resources compared with anything available to this

763
Chamber. We are short of accommodation for committees, as is well known. We are short of people to staff the committees. Cases are put to the proper authority to seek time for select committees which are turned down for no other reason than that we lack the resources to deal with them.
One looks at what the committee sets out to do. It will not conduct investigative or scrutiny inquiries nor adopt substantive Motions or make reports. We do not know what it is going to do. It is being set up because some Members found it slightly embarrassing not to be able to continue the arguments they were having with the existing committees. I accept everything that the noble Lord, Lord Grenfell, said. I do not believe that it makes any sense to establish a body of this kind, which is going to have a quorum of two on each side, and which sets out quite clearly not to get involved in any reports, substantive Motions or inquiries. There are many things which could be subjected to reports and substantive inquiries. It is foolish to put them on one side while we make up our minds what we will do.
Lord Naseby: My Lords, I shall not repeat some of the points which have been made: I agree with all of them. I come from a pro-European background. I suggest to noble Lords that after last Thursday's elections both Houses should reflect very seriously about Europe and how we handle it. It does not seem to me that this very thin schedule of proposals reflects what the country at large wants both Houses to do. Therefore. I certainly have great reservations about what is proposed here.
Lord Tordoff: My Lords, freed from the shackles of office, I can say what I think personally about this, but I shall not. I go along with the noble Lord, Lord Grenfell, in his remarks. It is also important that we are absolutely sure that this matter comes back to the House for a definitive debate on which we can make a decision. I take the point which the noble Lord, Lord Marsh, made. The committee should be given the power to allow statements from and questions to European Commissioners and other EU officials. But not to report on those meetings seems ludicrous.
I would not want anything I say today to appear as any reflection on our colleagues in another place. Mr Jimmy Hood and I worked very well together in tandem over seven years when we were chairmen of our appropriate committees. Certainly, the point that we have always made is that the two committees do totally different things. They are complementary. The idea that you can somehow put them together and find some synergy or something totally different seems to me very strange indeed.
I am glad that a low quorum is recommended because the first thing that crossed my mind when I heard about this matter was that one of the problems with these Joint Committees was the somewhat erratic membership of the Commons. Recently I watched rather an old programme on the Parliament Channel. It was obvious that when Mr Pat Cox was being interviewed by a joint group from both committees,
764
this House was well represented. The Commons was represented by Mr Jimmy Hood until the last few minutes when one of his deputies came in. I do not criticise the Commons for that. Its Members have jobs to do and very often they cannot spare the time. In this House noble Lords who sit on the Select Committee and its sub-committees dedicate their time to doing that, and they do it extraordinarily well in my experience. However, the idea that there should be a quorum greater than two might wreck the whole process.
I personally would be willing to go along with this stage of the proceedings provided that most of the recommendations are agreed to and that the measure comes back to this House for detailed discussion at a later stage. Then we can decide whether or not we want to go ahead with it. However, it would be a mistake to suggest that by failing to go ahead with it we are in some way insulting the Commons or trying to stop Parliament working appropriately on European matters.
Lord Renton of Mount Harry: My Lords, like my noble friend Lord Marlesford I am a member of the European Union Committee chaired so ably by the noble Lord, Lord Grenfell. I am also chairman of Sub-Committee D that is involved with the environment and agriculture.
I should like to assure my noble friends and the noble Lord, Lord Marsh, who have spoken against the formation of this Joint Committee, that all the arguments that have been aired in the past few minutes were discussed very thoroughly in the Select Committee. Many of us were very doubtful about this proposition, but in the end we came to the same conclusion as that put forward by the noble Lord, Lord Grenfell; namely, that there may he things to be gained by having a Joint Committee with the Commons, particularly when—I stress this as my own view—over the next year or two European Union matters will clearly he of very great importance, and interest and will be discussed by all of us. Against that background—whether we discuss the European constitution, the reform of the CAP or the handling of the new members the more that we can share information with the other place, the better.
During the years that I spent in the other place—I was in the other place for quite a few years—I realised that our attempts to look very closely at European legislation were, to say the least, pathetic. Some noble Lords will remember that my noble and learned friend Lord Howe of Aberavon set up Standing Committees particularly to consider European legislation. Frankly, they failed due to a lack of people turning up. The noble Lord, Lord Marsh, with some humour made the point that the quorum is only two on either side. All of us made that point in the committee chaired by the noble Lord, Lord Grenfell. However, I do not see that as an argument for not moving forward with this proposal at the moment. It is right for us to have as many Joint Committees with the Commons as is possible and reasonable. It is good for them to get to know us better and for us to get to know them better. It is particularly

765
relevant at the present time when there is so much of interest and of great importance happening within the EU.
The noble Lord, Lord Marsh, and my noble friend Lord Marlesford asked what would be the added value of the committee. It is perfectly true that we do not know that yet, but we shall not know unless we try it and see. It is arguable that it could have added value. The fact that it has been given a two-year period in which to prove itself—something for which we all asked—is in itself a safeguard. I very much stress the two points that the noble Lord, Lord Grenfell, made; namely, that all of us on the Select Committee would like to see genuine equal alternate chairmanship and equal membership as between the other place and this House. If the committee were run on that basis it would represent a step forward at a very important time. I hope, therefore, that we shall support what the noble Lord, Lord Grenfell, said and, despite the fact that my noble friend Lord Marlesford is one of my oldest friends, that we shall not go along with what he suggested.
Baroness Thomas of Walliswood: My Lords, I agree with all the comments made by the previous speaker. I merely wish to add one other on the subject of added value. As a member of Sub-Committee E, I am aware, as are all the committee members and many who are not, of the very detailed inquiries that all the committees make into important pieces of legislation, and of how valuable that is. However, it does not attract public attention. The general public are left completely cold by that level of investigation. By having more of a debating approach to these matters and by occasionally having a distinguished member of the European Commission or someone else address the committee or give evidence, one could make a contribution to the public debate on European matters.
Lord Armstrong of Ilminster: My Lords, I speak as a former member of one of the European Union sub-committees serving under the chairmanship of the noble Lord, Lord Tomlinson, the noble Lord, Lord Grenfell, and the noble Lord, Lord Radice.
It seems to me that there are two questions to which we need answers, and that we do not have those answers as yet. The first question concerns what the new Joint Committee would do, and whether it would do any more than the extra wheel, which appears to have no contact with the road at all, that you see on gargantuan lorries. Secondly, would the creation and the work of a new Joint Committee detract from the value and the reputation of what our own European Union committees do? I stress the word "reputation" because, as the noble Lord, Lord Marlesford, said, the work of the House of Lords European Union committees has a very high standing not only, no doubt, in this country but also in Europe itself. It would be very regrettable if any new committee were to detract from that value or the good work that those committees do. I hope that if the proposal goes
766
forward to the next stage, when we debate the subject again we shall be given assurances that cover both those questions as we really do not have sufficient information as yet.
Lord Roper: My Lords, as a member of the Procedure Committee I should like to say how much I support what was said by the noble Lords, Lord Grenfell and Lord Renton of Mount Harry. It seems to me that this is an experiment. We have said that, if we can negotiate satisfactory arrangements with the House of Commons Modernisation Committee, we should like the new committee to sit for a period of two years. It is worth remembering that as the new committee would not meet more than four times a year, that would mean at most eight meetings before we reached a view whether it should continue.
The new committee would be of a quite different character from the sub-committees of both Houses that meet on a regular weekly basis. The new committee would meet relatively rarely to take evidence or to put questions to, for example, a senior Minister dealing with European matters or a commissioner. Therefore, it would have a different character. It may not provide any added value but, as the noble Lord the Chairman of Committees said in opening the debate, the Procedure Committee felt that we should suck it and see.
Baroness Amos: My Lords, I hope that I can help the House by making a number of matters clear. This is a matter that is entirely for this House to decide. However, I remind the House that my noble friend the Chief Whip and I are constantly asked to ensure that this House is represented along with the other place when committees are proposed. I also remind the House that in the discussion on the Standing Committee on the Intergovernmental Conference in September 2003, concern was expressed by a number of Members of this House that it was not a Joint Committee.
I appreciate the points of detail that were raised this afternoon with respect to the working of any Joint Committee. The only argument at the moment is whether the House of Lords should participate in a Joint Committee, and that is entirely a matter for this House.
On the specific points raised, the proposal is that the committee would debate European issues and have the opportunity to ask questions not only of government Ministers but of European Commissioners. It would not engage in the kind of detailed scrutiny undertaken by committees of this House. In terms of process, the Modernisation Committee in another place is looking at this matter. They have engaged to take the temperature of the Procedure Committees of both Houses, so there is the opportunity for this House to make its views absolutely clear.
I finish by reminding the House that this proposal has already been greeted positively by the European Scrutiny Committee in another place, so some form of

767
committee is likely to go ahead. It can do so merely as a Commons committee, if that is what this House wishes.
The Chairman of Committees: My Lords, I shall answer some of those questions posed to me as chairman of the Procedure Committee. I will not go into the merits or otherwise of this European Joint Committee. That is not my affair and has been well debated. In passing, I was armed to answer questions on the other three or four recommendations in the committee's report. I am most disappointed that nobody has asked me any questions on them.
I apologise to the noble Lord, Lord Grenfell, that we were not able to find a mutually convenient date for him and the Procedure Committee to meet. We did our best, but there was great difficulty in the timing. We wanted to have our recommendations out in time for them to be considered—and, I hope, agreed to—by the House of Commons Modernisation Committee. We probably made an error in not printing the letter from the Leader of the House and the reply from the noble Lord, Lord Grenfell, as an annexe to the Procedure Committee report. It might have made a better report if we had done so.
The noble Lord asked for a particular assurance about what would happen next, as did the noble Lord, Lord Tordoff. Obviously, when we see what we can agree with the committee in another place on our recommendations, the Procedure Committee will have to meet again and discuss the details of how this arrangement will work. The Procedure Committee will then have to make a report to this House, as it is doing today. At that moment, as the noble Lord said, this House could throw the whole thing out if it did not like the look of it. That is definitely what would happen.
There is a lot of detail to be worked out regarding the chairmanship of the committee. If it is to be mainly a debating chamber, one of the panels of deputy chairmen from either House could take the chair. As the noble Lord, Lord Grenfell, said, that leaves the important question of who would set the agenda, which needs to he settled.
The last assurance for which the noble Lord, Lord Grenfell, asked was whether we could put into the Standing Orders of the committee the fact that it would not trespass on the work of the main European Union Committee of this House. I am very keen that it should not do so. We would do our very best to implement that suggestion.
I hope I have answered the questions asked of me as chairman of the Procedure Committee, and I leave it at that. Let us see what the noble Lord, Lord Marlesford, wishes to do.
Lord Marlesford: My Lords, I have obviously listened very carefully to everything that has been said. I started by saying that I was not necessarily opposed to such a new committee, but that it was unclear what it was for and whether it would add value. I am very glad that almost every Member who has spoken has echoed those sentiments. The Chairman of Committees has effectively
768
indicated that the further consideration of the Procedure Committee will be the equivalent of a referral back. We have the assurance that if the later consideration with detail—when we are told what it is actually for and how it will work—proves unsatisfactory, we will able to reject it.
In that context, I am perfectly happy for the Procedure Committee to give further thought to it, along the lines of the undertaking given. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Motion agreed to.

Gambling (Regional Casinos)
4.6 p.m.
The Chairman of Committees: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That it is expedient that a Joint Committee of Lords and Commons be appointed to consider and report on the Government's response to Recommendations 79, 80, 81, 83, 84 and 85 of the report of the Joint Committee on the draft Gambling Bill (Cm. 6253), which focus upon the definition, location and economic and other implications of the largest casinos; and the further statement of government policy on casinos published with Cm. 6253;
That a committee of eight Lords be appointed to join with a committee appointed by the Commons for this purpose;
That, as proposed by the Committee of Selection, the Lords following be named of the committee:

L. Brooke of Sutton Mandeville,

L. Donoughue,

V. Falkland,

L. Faulkner of Worcester,

B. Golding,

L. Mancroft,

L. Wade of Chorlton,

L. Walpole;

That the committee have power to agree with the Commons in the appointment of a chairman;
That the committee have leave to report from time to time;
That the committee have power to appoint specialist advisers;
That the committee have power to adjourn from place to place within the United Kingdom;
That the reports of the committee from time to time shall be printed, notwithstanding any adjournment of the House;
And that the committee do report by 22 July 2004.— (The Chairman of Committees.)
On Question, Motion agreed to; and a message was ordered to be sent to the Commons to acquaint them therewith.

Access to Justice
4.7 p.m.
Lord Phillips of Sudbury Lord Phillips of Sudbury rose to call attention to matters which may inhibit access to justice; and to move for Papers.
The noble Lord said: My Lords, legal aid has been a prevailing passion of my legal life. I was co-founder and first chairman of the Legal Action Group in 1972, did legal aid work from the start of my career, and my firm only ceased to do it in May of this year for reasons that I shall highlight later.
One of the most telling marks of a good society is the way in which it treats those without the wherewithal to maintain their legal rights. One of the landmarks of the post-war Labour government was the Legal Aid Act, which gave 80 per cent of households access to legal aid. That proportion was still 70 per cent in 1979, and now probably languishes somewhere around 40 per cent.
The subject of the debate is not, however, confined to legal aid. It is drawn so as to provide a wide canvas for contributions of noble Lords. Access to justice is significantly related, for example, to the 12,000 to 13,000 pages of new laws which we pour out from this House and the other place every year. This output is simply indigestible and overwhelming. It turns citizens into subjects. It is also one reason why the cost of legal aid overall, and per case, rises, particularly in the criminal sphere: from £1.5 billion in 1997 to £2 billion now. For example, this Government have created over 600 new criminal offences since they came to power, and have just announced a policy to encourage nearly 20 per cent more prosecutions. Those policies and these laws have a direct impact on legal aid.
Another inhibition on the access to effective justice is the continuing breakdown in community cohesion. That is why recent legislation, centralising the administration of the courts system and reducing the ability of justices of the peace to run their own show, is counter-productive. It means the continuing closure of local courts, which directly diminishes geographical access and local ownership of the courts, and causes loss of local knowledge by the Benches.
When I first entered the House six years ago. I was confronted with the Access to Justice Bill, championed by the then Lord Chancellor, the noble and learned Lord, Lord Irvine, assisted by the present Lord Chancellor, the noble and learned Lord, Lord Falconer. So much of the long and hard-fought debates was a form of shadow boxing, with Ministers who had little or no first-hand experience of legal aid, advised by a huge team of civil servants, none of whom, I ascertained, had any such experience. They argued from principle and theory, as I saw it, with many of the rest of us endeavouring to argue from unaccommodating reality. That their intentions were admirable, there is no doubt. That there were serious problems with legal aid also is undeniable, particularly the escalation in cost. In what follows I do not want to belittle the continuing difficulties let alone crow, "I told you so" in relation to those debates, although I certainly could.
As there is sharp disagreement about the current state of access to justice, I shall seek primarily to analyse the real position, although in doing so I will of course point the way to improvements.
We accept that the cost of improved legal services has to come from somewhere and that it will invariably compete with other pressing needs. It also has never been part of my approach to claim universal competence for my profession. Any scheme has to deal with defects. But somewhere along the line the combination of too little first-hand management, dirigiste managerialism plus an excess of bureaucratic interference have brought us to the present pass.
That in short is a legal aid scheme, or community legal service, where demoralisation among solicitors and other legal advisers who serve it is now very general; where the provision of legal advice and assistance is very patchy and the talk is of deserts; where the eligibility criteria for help are too stringent; and where the whole scheme is dominated by criminal legal aid to the detriment of the civil sphere.
Perhaps I may give a few statistics which are relevant to the debate. I have already mentioned the growth in the legal aid budget over those seven years. However, in view of the massive increase in laws, crimes and the rest of it, the £1.5 billion to £2 billion might be thought not enough let alone too much. Some £1.1 billion of the £2 billion is spent on the criminal legal aid budget, leaving less than £900 million for the civil budget. That budget is split 93:7 between solicitors in private practice and not-for-profit entities. One million people were helped last year by legal aid, compared with 3.5 million in 1997, when the green form advice scheme was still available. The number of civil cases is 8 per cent down; criminal cases, 18 per cent up. The cost per civil case is 3.4 per cent up; per criminal Crown Court case, 9 per cent up. In 1990, 30 per cent of solicitors' income derived from legal aid. That figure is now down to 13 per cent and falling.
The other point that I would briefly mention is that there are 70,000 solicitors in private practice today, 85 per cent of them in firms of four partners or fewer, comprising more than 9,000 firms and nearly 13,000 offices. The budget for legal aid is about 5 per cent of the budget for the National Health Service.
I turn briefly to the very recent independent review—published on 1 April—of the Community Legal Service, commissioned by the DCA and done by Matrix/Sheffield University and Richard Moorhead. To be fair, they said they were "impressed with progress made" in establishing and developing the Community Legal Service. However, they pointed to five areas where improvement is badly needed, one of which was clarification of the aims and strategy of the CLS, particularly in relation to social exclusion. They called for an evidence base for the Legal Services Commission policy on, for example, its selection of not-for-profit providers as compared with private practice providers, and specialist providers as compared with generalist ones.
The reviewers called for much better processes, to which I shall return. They concentrated on quality, which they found severely lacking—an issue to which

771
I shall refer later. They then looked at the localised impact of the work of the legal aid scheme and had a lot to say about community legal service partnerships, which are in a bad way.
If there is one problem above all others that needs to be urgently addressed it is that of withdrawal of solicitors from the Community Legal Service. As I have explained, they are the predominant suppliers. As of 1 April, according to the independent review, there had been an 18 per cent drop in the number of contracts awarded under the Community Legal Service since the first award three years ago. In the latest tendering round there was a 10 per cent reduction in the number of contractors applying for contracts. Although the Legal Services Commission states that it will be able to find suppliers for all the contracts it needs, the fact remains, as Keith Vaz MP put it to the Constitutional Affairs Committee on 24 February:
"We have a legal aid crisis … solicitors are deserting legal aid in droves. It simply does not pay for them".
Mr Vaz was, of course, involved in the Access to Justice Bill as a Minister.
A very telling section in the forceful written evidence by the Law Society to the same committee, which is inquiring into legal aid and will shortly publish, I believe, was this:
"There has been a marked decline in the morale of legal aid providers. In 2003 the Society embarked on a nationwide consultation … to hear directly from legal aid practitioners about their assessment of problems on the ground and their ideas for an improved system. What emerged was a picture of great dissatisfaction with the way the system was operating. The predominant feeling was that the Government was running the legal aid system into the ground and legal aid practitioners expressed great doubts about being able to continue to provide a service for their clients".
The society concluded by saying,
"on current trends the prospects for the future of publicly funded legal services are bleak. Those providing legal aid are a comparatively elderly cohort of the profession. The enormous gulf in earnings prospects between those in commercial firms and those in publicly funded work means that despite their social conscience few newly qualified solicitors feel able to pursue a career in legal aid firms or the not for profit sector".
The earnings differential is 100 per cent to 200 per cent and in some cases 300 per cent.
From its research this year the Law Society found, and I can vouch for this, that about half of all trainees would like to expect to do legal aid, along with non-legal aid work, but only about one in 12 is likely to do so. Few legal aid firms are even able to afford trainees at all, and the system is dying at the roots. The brutal fact is that with legal aid rates frozen for so long, against a backdrop of the costs of running a legal practice running ahead of general inflation, the viability of doing legal aid continues to be undermined and destroys the goodwill of solicitors.
The Government should not pretend that the practitioners who have left legal aid can be easily tempted hack or that the gap can be adequately made up either by technological novelties, supermarket methods or—the greatest and fondest hope—by putting ever more burden on the not-for-profit sector.
772
That was the hope of the 1970s, yet today there are fewer than 100 law centres, wonderful though they are, and even the 1,000 or so citizens advice bureaux cannot match the 12,700 solicitors' practices. Moreover, the CABs will soon tell you that their effectiveness depends partly on partnership with their local practitioners from whom they can get pro bono help and to whom they can refer difficult cases.
So as the CAB and the Law Society's recent evidence manifestly shows, growing deserts of legal aid availability now exist. Ross Cranston MP QC, former Solicitor-General, gave evidence to that effect before the Constitutional Affairs Committee, making the point that,
"the argument might he that"—
his constituents in Dudley—
"have to get on the bus or train and go off to Birmingham, but culturally that does not happen".
The independent review said that the,
"near unanimous view is that serious gaps in service provision exist across the country".
The detailed work by the Law Society and CAB makes that abundantly clear.
I should like to say a quick word about telephonic advice, as a great deal of hope is put upon the shoulders of that type of advice. For 10 years I was a non-executive director of the second biggest telephone legal advice provider in the country. We employed fleets of law graduates and a few solicitors. However, those services, as admirable and important as they are, and though they serve as entry and initial advice points, are of very limited use, particularly in cases of any complexity or where the client has difficulty in analysing their own problem, let alone communicating it over a telephone.
So of all the things that have been identified by the Law Society, the Legal Aid Practitioners Group, the Legal Action Group, citizens' advice bureaux, the recent independent review and others, as inhibiting access to justice, at the root are two things. The first is levels of eligibility. It is notable that the Legal Services Commission's own research finds that almost 40 per cent of people asked had a serious legal problem where they needed help, but only one out of five of those people received it.
The second is the availability of accessible, appropriate advice. Apart from rates of remuneration, and more important, I suggest, there is the issue of the LSC method of running and auditing its contracting system. I have cited the DCA report, which calls the process,
"over-complex, burdensome, costly and bureaucratic",
and have referred to its conclusion about the inadequacy of quality monitoring. When Philip Ely, the chairman of the Legal Services Commission, gave evidence to the Constitutional Affairs Committee, he said:
"The processes in which we are engaged measure process as much as anything. They do not measure quality of advice".
That makes a mockery of the constant assurances that we have had from Ministers, including during the passage of the Access to Justice Bill, that it is quality

773
at which all these reforms are aimed. It is rather like marking the performance of the English football team not by the result but by how many shots at goal it had.
The operational comparisons by the LSC of the legal profession with supermarkets and with Nissan plc, which were given as examples by Clare Dodgson, chief executive of the LSC, to the Constitutional Affairs Committee, does not warm the hearts of the legal profession.
To summarise, eligibility must be grappled with. If we purport to have equality before the law and a national advice service, we must live up to it and provide the wherewithal. Remuneration must be the subject of an independent review board. Paperwork must be slashed. Quality must be assured not by a paper chase but by peer review. We must ring-fence civil legal aid. We must ration not by case starts but by criteria governing the scope of and eligibility for legal aid. We must restore local justice. We must maintain innovation—as I readily accept that the LSC has done—and we must accept, above and beyond all else, that the legal aid scheme and the money put into it is an investment in the fairness, justice and effectiveness of our society and that money spent in that direction can prevent a great deal more expenditure further down the line. I beg to move for Papers.
4.23 p.m.
Lord Borrie: My Lords, it is always a pleasure to follow the noble Lord, Lord Phillips of Sudbury. The thoroughness of his preparation, combined with the vigour of his presentation, make him always a joy to hear. I am glad that he took a broad attitude to the concept of access to justice, because I think that the matter is a good deal broader even than he described in his speech.
In the 1970s, a massive, four-volume book was published entitled, Access to Justice, edited by Mauro Capelletti, professor of law at the University of Florence and at the University of Stanford in California. It was a comparative study across the world. I contributed a small piece discussing some of the early alternative dispute resolution procedures that were beginning to develop in the United Kingdom. A number of other countries had experimented much more widely, and in the UK since the 1970s, we have come quite a long way.
The noble Lord will recall that the county courts had been set up in 1846 as a practical, low-cost method and machinery for obtaining redress for small businessmen and private individuals. However, subsequent to 1846, the county courts had become dominated by lawyers and complex rules of procedure so that, by the 1970s, we saw the beginnings—very useful they were—of the small claims procedures within the county courts, which were genuinely low-cost and avoided the risk of paying the fees of the opponent's lawyers if the case was lost. That general rule of having to pay the costs of the winning side's lawyers is one of the greatest inhibitions to access to justice, and has been with us for so long, but it does not apply in small claims procedures in the county court.
774
During the same period, various trade bodies, such as the Association of British Travel Agents, devised low-cost arbitration schemes, of which disappointed consumers could take advantage, and the statutory public sector ombudsmen schemes, which were introduced during the 1960s and 1970s, were replicated by private sector ombudsmen schemes, enabling consumers to seek redress at no charge. Mediation was yet another developing option.
Last month, the Better Regulation Task Force, which usually receives wide support and interest in this House, published a report entitled, Better Routes to Redress. It made a number of sensible recommendations to make those various useful redress or access to justice schemes to which I just referred more comprehensive and effective.
The Government seem keen on ombudsmen schemes and developing them further. For example, a scheme for student complaints is set out in the current Higher Education Bill; a judicial ombudsman is planned; and an ombudsman to oversee the new pension protection fund is in the Pensions Bill now going through the House. Members of this House will know, having considered only a few years ago the Financial Services and Markets Act 2000, that the biggest ombudsman operation so far is probably the private sector financial services ombudsman scheme. It has a considerable caseload. Not unnaturally, it is led by a solicitor and it has already been shown to be very useful.
As an aside, not all private ombudsman schemes have statutory backing, and there is a problem with some of the non-statutory schemes. If a trade organisation sets one up for a few years and some of its members do not like some of the outcomes, it can be brought to an end. That happened a couple of years ago to the funerals ombudsman scheme, which many people found useful. It was brought to an end, allegedly for financial reasons.
The noble Lord, Lord Phillips, will be well aware that a couple of years ago the noble and learned Lord, Lord Woolf, who was at that time head of civil justice as Master of the Rolls, paid considerable attention to alternative dispute resolution schemes when he undertook his thorough review of the civil courts system. He recognised that access to justice, to use the phrase used by the noble Lord in his Motion, can take many forms other than the most obvious one of litigation in the ordinary courts. He also recognised the advantages that small claims and ombudsmen procedures have of being more informal, less adversarial and possibly needing less attention from lawyers.
However, I would say that enthusiasts of alternative dispute resolution schemes—and I count myself one of those—must be watchful both when they are set up and later to ensure that the rules of natural justice and the provisions of the Human Rights Act 1998 for a fair trial are adhered to. After all, we are all today talking about access to justice. All sides in a dispute must feel that fair procedures are conducted by an independent body or person, whoever that may he, especially when they do not take place in the familiar, ordinary courts.

775
The courts will remain the main forum for major disputes, especially between parties of substance, regarding the matter of claiming redress for wrongs, including breach of contract. However, many kinds of alternative dispute resolution schemes for small claims are essential if people are not to be left without access to justice, apart from the theoretical option of going through court procedures that they cannot afford. The briefing that I received from the Law Society—the solicitors' side of the profession—rightly says that access to independent legal advice is one of the fundamental rights of citizenship. Who would deny that? Surely, we must all be in favour. But if we over-rely on the ordinary courts as the main machinery through which justice is obtained, the legal aid bill is likely to rise to excessive proportions.
My message to the Department for Constitutional Affairs—a title that I am not yet used to—is that if, as a new department, it is looking for a motto, it should be, "let a thousand flowers bloom".
4.31 p.m.
Lord Hooson: My Lords, the Motion in the name of my noble friend Lord Phillips of Sudbury is broad. It provides the widest possible scope for debate on matters which may inhibit access to justice. Therefore, I shall not follow up the matters raised by the noble Lord, Lord Borrie. While I listened to him with great interest and have read the papers sent to me by the Law Society, the Bar Council and so on, and because I ceased practice at the Bar 13 years ago and am rusty and out of touch, I shall confine myself to matters that inhibit access to justice in rural areas such as mid-Wales, where I live, and north Wales, which I know well. Those two areas and other similar areas seem to be suffering from a so-called process of "rationalisation" in the provision of courts and other concomitant facilities, without sufficient regard to local requirements or heeding the views of responsible local magistrates, legal practitioners, local councils and so on.
In July 1997 the then Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, in a speech to the council of the Magistrates' Association said, among other things:
"I know that some of you have expressed a fear that the provision of local justice may be lost in the drive for efficiency. Let me assure you that your fear is misplaced."
Was it? In a Statement to your Lordships' House the noble and learned Lord sought to provide further reassurance. He said:
"I am committed to local justice. Many decisions, for example about providing court-houses to match need, will properly remain to be taken at local level".
But here comes the rub. He continued:
"But justice delivered locally is not the same as justice organised locally". —[Official Report, 29/10/97; col. 1059.]
Clearly, he did not intend that locals be entrusted with such organisation. He would leave that to be decided centrally, organised by the Lord Chancellor's Department.
I have two examples of the problems that have arisen. I shall quote from an article by Mr D Cwyfan Hughes of a well-known firm of solicitors in Holyhead, who pointed
776
out that the North Wales Magistrates' Courts Committee published a draft strategic plan in August 1996. Its overall aim was to,
"provide an effective system of local justice".
However, it has recently been decided that there should,
"be offices only at Caernarfon, Llandudno and Wrexham to serve the whole of North Wales area and that all other Court offices shall be closed",
including that at Holyhead. The article continued:
"The Courthouse and the Magistrates' Clerk Office at Holyhead are housed in the same building. There are also designated rooms for the Probation Service and the Crown Prosecution Service. In fact, the Courts' administration for the whole of Anglesey was based at the Holyhead Office … The police station is one of the busiest police stations in North Wales. The security arrangements regarding the holding and transport of prisoners is satisfactory at Holyhead only. In excess of two million passengers pass through the Port of Holyhead annually. The busy court sits 3–4 times a week".
Yet it has been decided to close the Holyhead court office. No doubt administrators looking at a map might not have appreciated the importance of Holyhead's position vis-à-vis Ireland and the rest of north Wales.
Turning to my own area of mid-Wales, consequent on local government reform by a previous government, a huge, unwanted, unmanageable county was created called Powys, abolishing the historic counties of Breconshire, Radnorshire and Montgomeryshire. That move completely ignored history, geography, loyalty, transport facilities and patterns. Trading links follow the river valleys in mid-Wales and are often east to west, rather than north to south. Transport facilities have to be examined regarding the plans for courts in mid-Wales. There are very few railways or facilities for travelling. In the old days I have no doubt that the police, who were more co-operative because they were rightly better regarded, would facilitate the carrying of defendants to court.
My noble friend Lord Livsey is anxious to follow up that point about the courts in mid-Wales, because access to justice is being severely restricted there, particularly in Powys. Much of that is related to geography and history. Only four magistrates' courts are left in Powys. Arrangements were in train for a multi-purpose courts centre at Newtown and there is a perfectly good courts centre in Brecon. I agree that when all the facilities are in one building—the High Court, the county court and so on—that should be done. For example, there was a magnificent court building in Brecon, where I used to attend assizes many years ago. Apparently, the proposal for it to he the main building has been put aside and, to the astonishment of magistrates and local councils, there was a plan from the Lord Chancellor's Department to establish a new court complex in Brecon on the outskirts of a new development.
What has happened to the proviso of the Lord Chancellor that decisions on such matters are to be taken locally? Unless that is done, magistrates, police and so forth will find difficulty in getting to courts. The LDC must pay far more regard to local opinion. Some years ago, it was proposed that Llandrindod Wells

777
offenders should be brought to Newtown or vice versa. That is nonsense when one considers the distances involved and the lack of public transport in that area.
I raise the matter today because the assurances given by the Lord Chancellor to this House and to the Magistrates' Association have not been fulfilled and it is time they were.
4.41 p.m.
Lord Donaldson of Lymington: My Lords, today's debate is about matters which may inhibit access to justice. The noble Lord, Lord Phillips, says he is happy for it to go wider and I believe that it should do so. The real subject for debate today should be "the provision of justice" and "justice as a public service".
On the news last night, it was said that both the Prime Minister and the Leader of the Opposition were urgently turning their attention away from Europe and towards the provision of public services. They meant, of course, education, health and public safety. But why not justice? In the development of all civilised societies, the development of some system of justice, rudimentary though it may be, came a long time before consideration was given to health or education. That was not accidental. It was of supreme importance and it remains important to this day.
It has to be a system which is available to all on equal terms. That is of the essence of any public service. And this also creates a major problem for the justice system in this country. As we all know, it could not begin to cope if any significant number of cases were brought or defended by litigants in person.
Perforce the courts have been obliged to enlist the assistance of a corps of people whose task is to assist the court by investigating and presenting cases to the courts. We call them "litigation lawyers", although they would not necessarily have to be lawyers, provided they were properly trained and subject to proper professional supervision. Essentially, they are performing a function which is part and parcel of justice as a public service. This is emphasised by their own and the courts' insistence that, in case of conflict, their duty to the court overrides their duty to their clients.
Logically, this would meant that all or part of the expense of employing litigation lawyers should in all cases be met by the public purse. I do not go as far as that, but I want to draw attention to the extent to which we have gone, and are increasingly going, in the other direction. It is a wholly one-sided public/ private partnership.
Magna Carta contains an undertaking by the King not to sell justice to any man. This referred, of course, to the sale of justice on a selective and corrupt basis. Today, the state sells justice not on a corrupt but on a wholesale basis. We have arrived at a pay-for-it-yourself system of justice.
That is no exaggeration. Under the Government's present policy, litigants are charged fees intended to recoup the cost of the court rooms, the cost of the court service and even the salary of the judge. In addition,
778
they have to meet the cost of employing litigation lawyers unless they are resorting to the small claims court which, to its great credit, is designed to cope with do-it-yourself litigants.
No doubt we shall be told that there is legal aid and that court fees can be remitted in extreme circumstances. But eligibility for legal aid is continually being eroded either more or less arbitrarily or in favour of any other system which avoids the involvement of the public purse, such as conditional fees.
Today's practitioners may not be aware that when legal aid was first introduced there were few no-go areas. I believe that defamation was one. Eligibility was very generous by current standards, as the noble Lord, Lord Phillips, pointed out. Litigation lawyers from both sides of the profession were paid at market rates less 10 per cent. It was both simple and fair.
It seems to me that the time has come when serious consideration should be given to setting up a Royal Commission or some such independent and informed body. It should be invited to review the whole system of justice as a public service. Meanwhile, claims such as that 50 per cent of the criminal legal aid budget goes on 1 per cent of heavy cases for the benefit of "fat cat lawyers" are inaccurate, irrelevant and stupid.
The true comparison is between the degree of skill involved and the time spent on preparing and presenting the totality of the heavy cases as compared with that attributable to the totality of the run-of-the-mill cases. I do not know what the answer would be, but I know that it would be nowhere near the quoted figures. Nor, wherever the fault may lie, is it seemly that informed discussion on fees between the Government and the profession should be replaced by what appears to me to be oriental bargaining.
I welcome the debate and hope that it may be followed up by some action.
4.47 p.m.
Lord Williams of Elvel: My Lords, I am grateful to the noble Lord, Lord Phillips, for introducing the debate. I am afraid that my noble friend Lord Filkin may find himself in some crossfire from mid-Wales. The noble Lord, Lord Hooson, spoke about the problems of mid-Wales and I believe that the noble Lord, Lord Livsey, will address them. I, too, will do so because the problem in mid-Wales is possibly a paradigm for how magistrates' courts shut down all over England and Wales are depriving access to justice for those who cannot afford to pay. It is a problem which my noble friend must address.
First, I want to declare a non-financial interest. I am patron of the Llandrindod Wells Spa Town Trust and as such I have an interest in Llandrindod Wells. I gave my noble friend notice of the points I would make and I wrote to my noble and learned friend Lord Falconer on 6 June this year explaining what I was about and what I would say. I therefore hope that he has considered all those points and will have a substantive response to those of us who object to the closure of the Llandrindod Wells magistrates' court.

779
The noble Lord, Lord Hooson, expressed the problems perfectly well. The first is the geographical distance that defendants and witnesses may have to travel if the court is closed down—namely, to Brecon or to Newtown—is such as to deny them access to primary justice. There is no convenient public transport and there is no private transport of any convenience. Some time ago that difficulty was put to Yvette Cooper by a delegation from the town council of Llandrindod Wells.
I hope my second point is recognised by my noble friend. I believe that a considered view of our party—it is perhaps one of those views that I would support more than others—is that we should encourage local community spirit. As Llandrindod Wells is the site of the main office of the Powys County Council and as it has been designated as one of the towns in mid-Wales that is to be developed and enlarged, the spirit of the community is all the more important.
To be perfectly honest with my noble friend, I have been surprised how strong the feeling is about the magistrates' court in Llandrindod Wells. People come up to me in the street, as I am sure they do to the noble Lord, Lord Livsey, and say, "Why is the court being closed down?". It is a matter of community. It is a central mark of status in an important regional centre.
Apparently Yvette Cooper was sympathetic to the delegation's arguments, but pointed out that it was up to the Powys County Council to put forward proposals to maintain the court in Llandrindod Wells. The parish council apparently felt that if it did so, it risked financial assistance being given for new premises in Newtown. Frankly, that argument falls down in the face of the denial of elementary access to primary justice by those members of the community in and around Llandrindod Wells who cannot afford to go to Brecon or to Newtown. It should not be beyond the wit of man to tell the parish council in one form or another to revise its plans, even if it means a marginal increase in costs.
I am sure that I do not have to emphasise to my noble friend how important this matter is in mid-Wales and in Llandrindod. After all, it is a growing town. We believe in a community spirit. It has status. Llandrindod has a community spirit and that should not be wilfully set aside.
4.52 p.m.
Lord Livsey of Talgarth: My Lords, I welcome this opportunity to speak on access to justice. I thank the noble Lords, Lord Hooson and Lord Williams of Elvel, for raising the subject of access to justice in Powys. My contribution will relate mainly to the denial of access for the whole of Radnorshire. It will result in some of the poorest people in the most sparsely populated area of England and Wales being faced with a 60-mile round trip to a court where little or no public transport exists. In geographical terms it is the equivalent of making the people of west London attend court in Reading, but with no public transport to get there.
780
I believe that the urban decision makers need a geography lesson. Radnorshire and central Powys are parts of the county of Powys. I declare an interest in that I represented the constituency of Brecon and Radnorshire in the other place. It is the third largest constituency in the whole of the United Kingdom. Powys, if transposed to southern England, would stretch from the Severn Bridge to Hammersmith Flyover, a distance of 130 miles. Powys is the most sparsely populated area of England and Wales, three times more so than Cumbria, the most sparsely populated county in England. In that respect it is equivalent only to the Highlands of Scotland. In the past 20 years, 16 courts have been closed in Powys. They range from Presteigne, Crickhowell, and Llanwrtyd and I could name many others.
The old counties to which the noble Lord, Lord Hooson, referred of Montgomery, Radnor and Brecon, are now administered through three shire counties, which are under the umbrella of Powys County Council. The current proposal is for magistrates' courts to be reduced to two in the county. There were six and then five; Newtown has one, but it is not being used at present. We shall be faced with two courts 60 miles apart. That will leave only two courts in Powys which occupies between a fifth and a quarter of the whole of the land area of Wales. Of course there are courts in Brecon and Newtown, but it leaves only one court in Montgomeryshire, the old county, one in Breconshire and no court in Radnorshire.
The result is that Radnorshire people cannot get to court, as the noble Lord, Lord Williams of Elvel, has stressed. Defendants and witnesses cannot get to court on time and there is a deprived population with only 76 per cent of average EU gross domestic product, many of whom are elderly and infirm. Solicitors on legal aid cases are reluctant to travel more than 20 miles. There is outrage in local communities at these proposals.
All Radnorshire county councillors support the retention of Llandrindod magistrates' court and today county councillors Margaret Morris, the retiring chair of the Radnorshire committee, and Fred Barker have brought with them a 3,500-name petition to support the continuation of the Llandrindod court. The people who have signed the petition rightly feel that their human rights are threatened.
I want to address the process of how this came about. It does not do credit to the system. I believe that this is the case in many other areas of the United Kingdom. The proposal to reduce the number of courts to two came from the Dyfed Powys Magistrates' Court Committee which has now been abolished as a result of the Courts Act 2003. The magistrates' court committees have been replaced by courts boards, provided for in Part 1 of that Act. My complaint is that Powys County Council members were hoodwinked and coerced into supporting only two courts in Powys by the threat of the withdrawal of funding for upgrading of the two courts in Brecon and Newtown if they opted for a third court in Llandrindod Wells.

781
I quote Powys County Council minutes in which Mr Peter Townsend, the former chief executive of Dyfed Powys Magistrates' Court Committee,
"confirmed that travel to the two Courts was a major consideration for the Magistrates Court Committee but legislation required that there be better accommodation and access issues but that the funding issue would prohibit the retention of all Courts"—
I underline "all courts"—
"currently within the County".
The minutes go on to say:
"He advised Council that if all Councils in the Dyfed Powys area were not in agreement that the bid should be made the finance of the proposals would therefore fall and the current buildings would by virtue of the legislation be taken out of use and the administration of justice within the County would then become uncertain".
The councillors were faced with that in their decision making.
What is perhaps even worse is that the local MP, my successor, Roger Williams, was sent an e-mail from the clerk to the magistrates' court which said:
"The procurement of the two Court Houses for Powys has reached a critical stage. If it is undermined now, then the investment which is planned for Powys will be lost. The support of the Local Authorities has been critical … the achievement of this investment and any wavering of this support could be fatal to both schemes … There is a real risk, that not only will the investment in new Courts for Powys be lost, but the current Court Houses will be closed sooner rather than later because they do not meet the standards required of them. Powys could be left with no effective Court … provision at all".
Frankly, that is unacceptable in those terms, but it is what councillors were threatened with by the chief executive of the magistrates' courts committee before they voted on the issue.
I believe that the matter can be resolved. A bullying tactic was used by the clerk of the magistrates' courts committee as I have just described. No councillors on the county councils want to see a withdrawal of funding for Newtown and Brecon courts. However, they were forced into a situation where they had to protect their own areas; the majority of councillors were in Breconshire or Montgomery indeed, Radnorshire's were then outvoted. This is a classic divide-and-rule tactic not worthy of the Lord Chancellor's department.
No appeal could be made to save Llandrindod court. The MCC's strategy worked, denying access to justice to the people of Radnorshire on financial grounds, not on the basis of people's needs. The MCC imposed a flawed system of decision-making on the county. Its arbitrary powers were underlined to me in a letter from the noble and learned Lord the Lord Chancellor, dated 7 October 2003. Now the MCC is being abolished.
People's needs must be foremost; they have a right to an accessible court, to a criminal justice system in their own locality and to a justice system delivered in an affordable, secure local court. Llandrindod court building, which adjoins a police station, is not even owned by the Lord Chancellor, but by the Police Authority. Its budget could easily be used to upgrade the building at a very modest cost.
782
I can quote cases of, for example, a mother whose children were going to be taken into care but who could not get to court because she had no means of transport; witnesses hitch-hiking, trying to reach court on time and often failing; and the cancellation of some hearings due to the inability of witnesses to attend. Do we really want a criminal justice system more akin to a banana republic? I am sure that the new Powys County Council and its chief executive will want to appeal against the closure of Llandrindod Wells court.
However, I need guarantees from the Minister that allocated, existing funding to Brecon and Newtown courts will not be withdrawn as a result of a Llandrindod appeal. The needs of the people of Radnorshire and the accessibility of their court are crucial factors in their own right. The Lord Chancellor has the powers within the Courts Act 2003 to put these matters right, particularly as regards the location of court houses. I interpret, therefore, that he has the power to specify the location of a court. I hope that he will accede to these circumstances in the case that I have made for Llandrindod today.
5.3 p.m.
Lord Brennan: My Lords, adequate access to justice involves that it should be available to people at modest cost or, if they cannot pay, with state aid; once they enter the system, its systems should be efficient; and, throughout, they should have the benefit of quality service by lawyers, judges and everyone else. All that costs money, and, in our present justice system, is organised through the Department for Constitutional Affairs.
Expenditure on the system is not, and cannot be, open-ended. It has taken time, and will take time yet, for we lawyers, and perhaps we politicians, to realise that when, a few years ago, the Treasury imposed its own control on the justice system by making the budget of the Lord Chancellor's department clearly and rigidly part of the three-year spending round, from then on the budget for justice in this country would be fixed. It is a very long learning curve for some of us, but it is an important one that we should fully acknowledge. If, as is now a fact, the Department for Constitutional Affairs must work within a budget, then it and we need new thinking.
The first aspect is the budgetary approach, of which I shall give some examples. The PSA target among many for the Department for Constitutional Affairs is that over the next three years it will increase value for money from the criminal justice system by 3 per cent a year: £57 million a year or £171 million over three years a cost that must be saved to reach the Treasury target. Secondly, expenditure on asylum and immigration in the past year was £204 million, much of which was a direct consequence of a policy decision by the Home Office to accelerate decision-making and consequent appeal processes that could not have been forecast by the ministry, which had to foot the bill. Thirdly, criminal legal aid costs generally have risen, particularly in respect of very high cost criminal cases.
Those three examples—budgetary control, an unexpected budgetary upsurge and a criminal justice system costing more and more—present a budgetary

783
picture in which perhaps the thinking should be as follows. First, there should be a review. The ministry has instituted, wisely, a fundamental legal aid review that will carry on throughout this year and report on the best way to operate our legal aid system in the years to come. That shows foresight; I commend it and hope its constitutional role—because it has one—to work for access to justice will be recognised by all its participants. At a secondary level, there is a review of very high cost criminal cases. It is about to report; I will not comment further on it.
The first step—review—is being undertaken; the second step is surely transparency. If you have a fixed budget in a sector in which the demand is permanent and an increase is always sought, it is essential, is it not, that as a ministry you tell the public what is going on, you are open about the budget and are ready to publish the figures and to debate solutions?
Lastly, a most important consideration is that the Department for Constitutional Affairs is not a ministry of justice. It runs the justice system, so it must absorb within its own budget extra expenditure created for it by legislation and policy directives from other ministries over which it has no control. That unique position should always be recognised in debates on the budget for our justice system. Is it not time, perhaps, as the department's own review a month or two ago suggested, that we started thinking about an impact assessment of legislation referable to legal cost, in particular for the Department for Constitutional Affairs? If it is significant, the ministry in question should cater for that cost, wholly or partly, and not leave it to the justice system to be moulded, squashed and squeezed to meet that extra expenditure, which it might not have anticipated.
I wish to make three points. I commend entirely the remarks of my noble friend Lord Borrie about the wide variety of means by which people can have access to justice outside the courts system. But the courts system is the most expensive part of our system and will always be so. Courts are places where rights are recognised and penalties imposed, with enforcement the consequence.
Very high cost criminal cases constitute 1 per cent of the caseload and cost 40 per cent of the budget. That is a bizarre relationship between cost and volume which, I suspect, on a rough estimate, runs at £400 million to £500 million a year.
As a lawyer, I simply do not accept that those cases must continually get longer, more complex and, as a result, more expensive. That simply indicates closed thinking by the people in the system. We have to change. How can we do that? The Financial Services Authority should be given—it now has been given—real effective enforcement powers, just as the SEC has in America. Fraudsters are scared to death of the SEC because they go in front of it quickly and are made to pay heavy financial penalties if they want to escape going to court—and it works. Why are we different?
784
If people have to go to court, why do we need a six-month trial? A fraudster from Wall Street goes before a judge within a month of being arrested. His trial takes place after three months and usually lasts a month or two. Why are we different? Case management should be much tougher. There should be a front loading of costs in order to make the defendant realise, in many cases, the futility of defence. Why do we not have plea bargaining? If there has been a financial crime that is damaging to the community, such as a drug case involving huge amounts of money, the people involved should be able to plea bargain. If proceeds of crime are to be pursued, part of the results should go towards paying for the justice system.
I turn now to public interest law. The image of the wealthy lawyer is totally miscast when it is applied to small firms working in housing, benefits, mental health, asylum and immigration for little profit, but with great commitment to public good. Yes, there are rogues: today's Guardian told us that there are some in the asylum and immigration system. As the Legal Services Commission recognised, they are in a minority.
Nothing that we do should deter such lawyers who have the public interest in mind from continuing to practice. Nothing that we do should diminish the number of people who are prepared to do that sort of work in the future. If our system is worth anything, it will be judged by what we do for the least able people, who are the people that the public interest lawyers best serve.
Finally, I turn to civil legal aid. I find the tension in the fixed budget system whereby a criminal overload in terms of legal aid costs has to be met by civil legal aid reductions very worrying. Why do we not review civil legal costing again; for example, continue the legal aid fund, make a person who wins a case pay something back to the fund and consider paying a winning defendant's costs to introduce discipline? We should make it something other than yet another step towards the American contingency fee system, with all its dangers.
In conclusion, access to justice is important because it represents fidelity to the law, if it is present. Fidelity to the law produces respect for the law. There is no respect without access and reasonable cost with efficient systems and good quality service.
5.13 p.m.
Lord Thomas of Gresford: My Lords, I underline the comments that have been made by my noble friends Lord Hooson and Lord Livsey of Talgarth in relation to the position of the magistrates' court in Llandrindod Wells. I fully support everything that the noble Lord, Lord Williams of Elvel, said on that topic.
I cannot resist using a familiar legal phrase or saying: "I once had a case". I recall at Llandrindod, with a great deal of affection, a case where I was acting for a farmer in a boundary dispute. On the morning of the hearing, his opponent—the neighbouring farmer—said that the boundary was delineated by a line of tree stumps. The court adjourned to inspect the tree stumps. My client said

785
that they were not there, but, sure enough, they were. He walked to one of them and said, "I am not having this", and he pulled it out of the ground. It really was a case of the evidence having been planted: every single one of those tree stumps was planted. But nevertheless I lost. I have never quite understood why that was the case.
Turning now to more serious matters, in 2001, the Lord Chancellor's department and the Law Centres Federation published a paper entitled, Legal and Advice Services: A Pathway out of Social Exclusion. It stated:
"Lack of access to reliable legal advice can be a contributing factor in creating and maintaining social exclusion. Poor access to advice has meant that many people have suffered because they have been unable to enforce their legal rights effectively, or have even been unaware of their rights and responsibilities".
As noble Lords know, social exclusion is a term that is applied to people who suffer from a variety of linked problems, such as unemployment, lack of skills, bad housing, bad health and family breakdown. It frequently happens that such problems occur in clusters. One problem, such as bad housing, leads to bad health, and so forth. Ultimately, a combination of those problems can lead to crime and the very costly means of dealing with crime—imprisonment.
The Community Legal Service, which was a 1997 manifesto commitment by the Labour Party, was supposed to focus on the issues that affect the everyday lives of the "disadvantaged and socially excluded". The Community Legal Service was set up in April 2000 under the Access to Justice Act 1999 with the aim, as the Lord Chancellor recently said, of,
"improving … access to justice and promoting people's rights … through ensuring that legal advice is readily available for those that most need it".
Of course, the Act also removed almost entirely standard personal injury work from legal aid funding. Its contracting system was designed to shift legal aid expenditure away from civil representation towards areas of social welfare law that are associated with the fight against social exclusion. In fact, in recent years, there have been reductions in the contracts let by the CLS in family welfare benefits, housing, debt, employment and consumer issues. The independent review of the CLS that reported in April 2004 said:
"As welfare benefits, debt and housing are numerically the most significant and are more closely associated with social exclusion, the overall picture does not support the view that contracting has refocused LSC funding by directing it towards social exclusion".
So the policy of moving legal aid funding away from personal injury cases and court cases towards areas that involve social exclusion has failed. On the one hand, the aims of the Government are not being met. On the other hand, in the past year, funding for personal injury cases has disappeared and the number of contracts that are awarded regarding family, consumer, mental health and clinical negligence has been significantly reduced.
This highly critical report that was published last month was greeted by the Legal Services Commission with a press release on 29 April, which was headed,
786
"Community Legal Service in Good Health". That was directly contrary to that which the review had said. Clare Dodgson, chief executive of the LSC, said:
"The good health of the Community Legal Service is a result of us ensuring that we spend taxpayers' money only on quality solicitors' firms and advisers, and that legal aid meets the needs of communities throughout England and Wales".
That was the blah that was put forward in answer to the critical review.
What did the review say? It found a lack of leadership and aims in the Community Legal Service. The partnerships that were set up under the scheme were regarded by a majority of the participants as less than effective in improving access to justice; that is, the local authorities, the not-for-profit organisations and so forth which played a part.
I shall quote again from the review:
"The Review established a lack of clarity about the intended outcomes of the CLSPs, as well as no consistently used method of measuring outcomes. Little evidence has emerged that the system of partnerships, as currently set up, can guarantee success in achieving the intended outcomes of the Community Legal Service. The unevenness in provision of advice and information services (both geographical and thematic)"—
resulting in the deserts that we have heard about and the fact that not all areas of legal advice are covered—
"mitigates against partnerships being able to guarantee the provision of effective and appropriate high quality and timely information and help".
That is from a review published last month.
The CLS appears to have spent its time and energy in organising. It has set up 208 community legal service partnerships and then looked around to find out what it could then do. It is doing very little. The recent response was disappointing. The crucial problem is of course funding. The review noted that:
"The CLS budget appears vulnerable to policy changes"—
a point made by the noble Lord, Lord Brennan, a moment ago—
"particularly those made by other government departments, with the civil legal aid budget being eroded by the increasing demands of the criminal legal services agenda in particular".
Lack of money means that practitioners naturally move away from unprofitable work. Legal aid work is no longer a viable career. Solicitors cannot afford to train people in work of this nature and, on present trends, the future of publicly funded legal services is bleak. Deserts are emerging in which people are unable to obtain the legal advice they require.
Providing public offices and employed solicitors in such work is no answer either. The capital costs of creating a nationalised service mean that that cannot be cost-effective, however much the Government may like to stand on the necks of solicitors all over the country. In fact, I would say that the Government are destroying access to justice. The network of high street solicitors has been able to serve the public in those very fields of social exclusion by setting off the unprofitable nature of their advice and representation services against their profitable private work.

787
I speak as a former solicitor. I recall taking a case concerning war pensions to the Divisional Court for nothing. I was instructed by my brother, also a solicitor and acting for nothing. I appeared in the court on my own with, on the other side, the noble and learned Lord, Lord Woolf. I am happy to say that he lost on that occasion. But as solicitors and counsel from the provinces we were prepared to do that because we had a public commitment to the matter.
What is the Lord Chancellor's answer to the criticisms made by the authors of the Independent Review of the Community Legal Service? Does he accept those criticisms and, if so, what is he going to do about them? The noble Lord, Lord Brennan, referred to high-cost criminal cases. I have such an interest in this matter that I do not think that I should address noble Lords on it at all. All I can say is that it is the most ridiculous, bureaucratic, time-wasting and inflexible way of monitoring what goes on in court. Case managers are appointed to every team. I was involved in a case recently where there were eight defendants with eight teams, every one of which had a case manager sitting somewhere in Red Lion Square. Before we could do anything, such as look at a piece of paper handed to us in court, we were supposed to ring up our case manager and ask, "Can I look at this plan which has just been handed to me?". That is the sort of bureaucratic rubbish that arises in the present system. I seriously hope that the Government will do something about it, and very quickly.
5.24 p.m.
Lord Taverne: My Lords, the effects on justice for the citizen of the decline of the legal aid system were vividly described by my noble friend Lord Phillips, and I was much impressed by the speeches of the noble Lord, Lord Brennan, and my colleague and noble friend Lord Thomas of Gresford about the lack of imagination shown in the organisation trials. But I want to deal with a rather different point. As part of our concern that citizens have access to justice when they need it, we should be concerned about the way legal aid is spent. When money is wasted on legal aid, the amount available for deserving cases is reduced.
I want to draw attention to one particular case in which some £15 million was spent on legal aid that should never have been sanctioned. It happened before the passing of the Access to Justice Act 1999 but, as the Legal Services Commission has acknowledged, some salutary lessons should be drawn.
I refer to the action brought against some pharmaceutical companies in a claim that MMR was the cause of autism. The case has been very carefully documented in a book called MMR and Autism by Dr Michael Fitzpatrick, to be published on 29 June. I have been personally interested in the MMR dispute as part of a more general interest in the increasingly fashionable rejection of the evidence-based approach to scientific and medical issues.
Let me start with the background. For many years before the MMR vaccine became a matter of public controversy, there has been a campaign against
788
vaccination. Immunisation is one of the success stories of modern medicine, and it is a huge success story. It has virtually eradicated a large number of serious diseases such as whooping cough and measles.
Yet a group of people who believe in homeopathy and alternative medicine has long campaigned against vaccines, and has taken that campaign to the courts. These are people who distrust modern scientific medicine and seem to believe that we should go back to nature and pre-Enlightenment days, preferring remedies sanctioned by centuries of use, as if medical treatment is like some kind of antique furniture whose value increases with age.
A case claiming that the pertussis vaccine caused brain damage was considered by the High Court in 1988. The court found conclusively against the plaintiffs. However, the anti-vaccine campaign recently became a prominent public issue after Dr Wakefield's notorious paper was published in the Lancet in February 1998. It argued that some eight cases of autistic children that he had examined suggested a link between the MMR vaccine and autism.
That parents of autistic children should believe in such a link is completely understandable. If your child shows signs of autism after receiving the vaccine, it is natural that you should suspect there may be a link. When you find that other parents have had the same experience, your suspicions seem confirmed. But of course the coincidence of timing does not prove a link. Post hoc does not necessarily mean propter hoc. It so happens that the age at which the MMR vaccine is administered and the age at which the first signs of autism appear often coincides.
In fact, the case against a link between MMR and autism and, indeed, the evidence that MMR is safe has always been overwhelming. Epidemiology is not a science that the public or many journalists seem to understand, but studies of millions of children have shown that there is no higher incidence of autism among children who have received the vaccine than among those who have not. Scandinavian studies are particularly reliable because these countries have long-established immunisation programmes, relatively stable populations and high quality public health records.
Nor has any mechanism ever been discovered that could show how MMR might cause autism. The case made by Dr Wakefield has been totally discredited. Those who originally associated themselves with his article in the Lancet have all withdrawn. He himself has ceased to talk to the medical profession and now says that all he has ever learnt about autism came from talking to the parents of autistic children. He has retired to a research centre in Florida run by an evangelical Christian.
The case put forward by the lawyers to claim compensation against the manufacturers of the vaccines has also altered dramatically over time. In 1994, when they obtained legal aid, they argued on behalf of some 100 families that MMR causes a wide range of effects, including brain damage, epilepsy, arthritis and auto-immune diseases. Then they

789
modified the claim to one that it caused autism only, but warned that we were facing an epidemic of autism. Subsequently they argued that MMR has the effect of causing autism only in a very small number of especially vulnerable cases.
When Dr Wakefield's paper first appeared in the Lancet, the lawyers acting on behalf of the families raised the issue with the Committee on Safety of Medicines. This ruled that there was no evidence of a link. The MRC has twice considered the issue and come to the same conclusion. It is fair to say that there has never been any evidence of a link.
I return to the issue of legal aid. Despite the lack of any evidence in support of them, in 1994 the Legal Aid Board, as it then was, funded claims for compensation against the pharmaceutical companies. It was the first time that legal aid was granted for the specific purpose of financing scientific research to see if a case could be made—not because there was a prima facie case but to see if there might be.
As Dr Fitzpatrick has recorded, the so-called research was then left to a group of lawyers who had no relevant scientific competence. There was a 16-strong team. Only three had a scientific qualification, at the level of basic university science degrees. None had any experience of postgraduate study or research. This team, mainly then consisting of lawyers, was apparently to discover evidence in a deeply complex field of science, evidence that had eluded top specialists in the field. The team was going to disprove the findings of a large number of carefully conducted, international studies, in a variety of countries, covering millions of children, all of them showing no link between MMR and autism.
After 10 years and the expenditure of more than £15 million, not surprisingly, no evidence has emerged to provide a prima facie case. Earlier this year, the Legal Services Commission withdrew support and declared that the failure to find evidence meant that the case was very likely to fail. It also observed that aid should never have been granted, because the courts are not the place to prove new medical truths.
As a result of the MMR campaign, in which the lawyers, funded by legal aid, have played a prominent part, vaccination levels have dipped below the level which provides herd immunity and the lack of respect for scientific evidence by journalists may well cause a recurrence of a nasty disease that had been virtually eradicated. Pharmaceutical companies have been discouraged from developing vaccines, which may yet cause a serious public health problem. But that is not an issue for this debate.
I think that in these circumstances, it is right to describe the granting of legal aid and the waste of public money that resulted as a scandal. I believe that it was the second largest amount of legal aid ever spent on a single case, except for a previous class action about tranquilisers that also failed. From the start, it was a disgrace that legal aid was ever granted. The so-called research was, and was always likely to be, a farce. None of the families has benefited by one penny from the whole operation. The Legal Aid Fund has
790
been depleted and, indirectly, the access to justice for others, who might have benefited from the proper use of £15 million, has been prejudiced.
5.33 p.m.
Lord Ackner: My Lords, on the fourth day of the debate on the Address on 2 December 2003, in cols. 217 to 219 of Hansard, I referred to the statement of Tony Blair just before becoming Prime Minister in 1997, when he said:
"Labour's goal of improving access to justice is an essential part of our commitment to social justice".—[Official Report, 2/12/03; col. 217.]
I then identified four headings designed to show that that commitment had been seriously eroded. Those headings were asylum and immigration; crime; civil claims; and the rapidly diminishing facilities for advice—the advice deserts.
I do not for one moment expect your Lordships to have any recall of such an unstimulating event. But I shall not profit by repeating what I said in order to fill up time in this debate. Instead, I will concentrate upon the position of the Bar as it stands at the moment. Next to my wife, the Bar has always been my first love. The position which has now been reached, in which the Bar and the Government are at loggerheads, is terrible.
Before dealing with the Government's action following their publication entitled Delivering Value for Money in the Criminal Defence Service, I stress that the Bar has always considered that it is a referral service that must be judged by its competence and its ability to deliver. The Bar has long recognised the need to demonstrate that continuation of an independent specialist referral Bar is in the public interest and that the Government must achieve value for money in the purchasing of legal aid cases.
I shall list the actions which the Bar has taken with a view to trying to improve the present position. First, there is the pro bono work. A thousand members of the Bar contribute to schemes involving several thousand hours of unpaid work, for which the noble and learned Lord the Attorney-General, when elected Leader of the Bar, can properly take credit for much of the original initiative.
Secondly, there is the graduated fee system, successfully proposed and negotiated by the Bar with the Lord Chancellor's Department to standardise, as far as possible, fees in criminal work and, later, in the Family Division. The scheme came into force in 1995, on the clear understanding that the fees would thereafter rise with inflation. The Government have refused to implement this, with the result that the fees now paid are out of date by nearly 10 years.
Thirdly, the front-loading of the preparatory work necessary for effective plea and direction hearings is intended to ensure, well before trial, that those who are going to plead do plead, and that no further time is wasted on preparing for a fought case.
Fourthly, there is the consultation between the Bar and the judiciary to discover ways of speeding up trials. That is a recent event, and the consultation is still pending.
Fifthly, corporate insurance to fund long fraud defences should be considered, with a view to relieving the Legal Aid Fund of those costs.
Sixthly, plea bargaining enables the defendant to appreciate—subject, of course, to the material remaining consistent with the committal papers—the nature of the punishment which he is likely to receive, depending upon whether he pleads or fights the prosecution. That is not designed for Chambers hearings, but for expression in open court.
Let us see how the Government have used their monopoly employer status to impose—for that is in reality the position—fees that no self-respecting, responsible profession could possibly accept and still remain the strong, independent and competent source of advice and representation that is essential in a democracy.
Under the very high cost cases scheme—the VHCCS—there are four distinct categories of cases. The first category is the very complex fraud case, such as the Blue Arrow or Maxwell case. The second category is the very long fraud case. Those two categories are exceptional and likely to occur only once or twice in a year, so I will concentrate on the third and fourth categories, which cover serious cases where sentences are likely to be life or very many years' imprisonment, or documents are likely to consist of many files.
To give your Lordships a flavour of the position in those cases, a problem arises with very serious non-fraud cases that fall within these categories. They may be complicated, multi-handed murders or multiple rape and sexual abuse cases, complex drug cases or other professional criminal activity. Such cases are grossly under-remunerated in comparison with fraud cases. The present qualifying criteria are irrational, vague, subjective and inappropriate. In addition, the rates of payment in categories three and four are so inadequate that the scheme should be simplified to categories one and two only, with an appropriate division of cases within these two bands.
I will give noble Lords a flavour of the rates. The rates imposed in the scheme represent cuts of more than 50 per cent in the fees previously determined by taxing masters as fair and reasonable. At the bottom end, a junior who may be defending in a murder case is eligible for payment of £50 an hour—which is £35 after standard expenses—and a net rate for court work as low as £15.50. In the highest possible category of case—such as the Blue Arrow fraud, of which there are likely to be only one or two a year, as I said—the leading QC is eligible to be paid a net hourly rate of £126 for preparation and £60 for advocacy. Those are less than half the rates previously paid and perhaps a quarter of the rates normally paid for private work at the Bar. By way of comparison, the current solicitor's work for advocacy in a magistrates' court under legal aid is £62.36 per hour.
Lord Evans of Temple Guiting: My Lords, may I remind the noble and learned Lord, Lord Ackner, that
792
he has already exceeded his 10 minutes? The House would be most grateful if he would bring his remarks to a conclusion.
Lord Ackner: Yes, my Lords, I certainly will. I am most grateful to the noble Lord for telling me off.
In relation to the position offered by the Government, it is not surprising that the cases are either not being dealt with because the contracts are not acceptable or dealt with pending reconsideration by the Government of whether fees should be charged at all. That is why I said that the position is quite lamentable. I close on that depressing note.
5.45 p.m.
Lord Goodhart: My Lords, I no longer have a personal interest to declare as I have ceased to be in practice at the Bar. I am most grateful to my noble friend Lord Phillips of Sudbury for introducing this debate and I agree with everything that he said—a statement that I am not always able to make.
I agree with a great deal. I agree with the advocacy of the noble Lord, Lord Borrie, of small claims courts, ombudsmen and alternative dispute resolutions. I agree with the condemnation of the withdrawal of local justice from rural Wales spoken to eloquently by my noble friends Lord Hooson and Lord Livsey and by the noble Lord, Lord Williams of Elvel, all of them distinguished representatives of the Taffia. I agree with the remarks of the noble and learned Lord, Lord Donaldson of Lymington, that provision of justice is an essential public service. I agree with the suggestion of the noble Lord, Lord Brennan, in a particularly thoughtful and realistic speech, that there should be a legal cost impact assessment in new legislation and that there should be a British equivalent of the US Securities and Exchange Commission.
I agree with the criticism voiced by my noble friend Lord Thomas of Gresford about the Community Legal Service. I agree with my noble friend Lord Taverne that we must avoid the waste of money of funding expensive cases that have no evidence-based hope of success behind them. I agree with the praise of the noble and learned Lord, Lord Ackner, for the Bar's pro bono activities. However, I regret that we heard nothing from the Conservative Back Benches and I hope that that is not a sign of a lack of interest in a proper system of legal aid. For many people, access to justice requires legal aid—the provision of advice and representation by lawyers paid for by the state. Without legal aid, access to justice is denied. For that reason I wish to concentrate this afternoon on legal aid, especially on civil legal aid.
The Legal Aid and Advice Act 1949—the legal aid Act—was one of the great reforming statutes of the Attlee government. The 1949 Act gave access to justice, both civil and criminal, to many people who had not had it and eliminated archaic practices such as the dock brief. However, problems have arisen with legal aid over time. The main problem has been its escalating cost. I recognise that the problems require solutions that I do not like but which we may have to accept. We have to accept, as does the noble Lord,

793
Lord Brennan, that civil legal aid cannot be demand-led as it was until 1999. The Government are entitled to set financial limits on civil legal aid as they do with health and education.
Criminal legal aid is a different matter. A defendant faced with a serious penalty must be given legal aid if he or she cannot afford to pay for it. That is a requirement under Article 6 of the European Convention on Human Rights. Also, much as I dislike them, I fear that conditional fees are here to stay in certain kinds of action for damages. Conditional fees are settling down to some extent and it is encouraging that some of the notorious ambulance-chasing companies which sponsor them have gone out of business. The system needs reform, but I doubt if such practices can be eliminated.
Of course, the corollary of cash limiting is that legal aid cases must be prioritised. Priority must be given to cases that raise issues of general public importance or in which the absence of legal aid would cause real hardship to the applicant. I do not think that public money should be spent, as it used to be, on supporting an action about the ownership of a boundary hedge, for example, however likely that action is to succeed. Where we really need legal aid is to prevent someone losing their livelihood or their home; or being denied compensation for a loss that has already occurred; or being forced to live in a building whose condition is a risk to health; or being forced into bankruptcy by a loan shark.
The Access to Justice Act 1999 contained a serious flaw, as we pointed out at the time. That flaw is the fact that both criminal and civil legal aid are paid for out of the same pot. As the figures for uncapped criminal legal aid increase, as they have done year by year, that reduces the amount available for civil legal aid. The consequences of the reduction in real terms in civil legal aid have been made clear in evidence given to the Select Committee on Constitutional Affairs in the other place in connection with its forthcoming report on legal aid. That evidence has come from, among others, the Law Society, the Law Centres Federation, the Legal Action Group, the Legal Aid Practitioners Group, the citizens advice bureaux and others. They all speak to the same effect.
The evidence says, first, that the Government continue to impose grossly inadequate financial eligibility limits. Millions of people are ineligible for legal aid and millions more are eligible but must pay a contribution. Only those with incomes at or below the income support level qualify for legal aid without a contribution; others must pay a third of their income above the income support level. The figures from the report show that the need to make contributions is a serious deterrent to applicants.
Secondly, it is quite plain that advice deserts are developing. The Law Society's evidence is that there are no legal aid solicitors providing help with welfare and benefits law in Sheffield, Calderdale or Rotherham and only one in Leeds. There are no legal aid housing solicitors in the county of Kent. Citizens advice bureaux have reported that 68 per cent of the bureaux have
794
difficulties in finding a legal aid solicitor for immigration issues; 58 per cent for family cases; and 60 per cent with housing.
Thirdly, the number of solicitors with controlled work contracts has fallen by 17 per cent since January 2000. Fourthly, the number of cases that solicitors can take is falling; new case starts fell by 10 per cent in the first eight months of 2003–04, against the previous year. Over the past 10 years, while the number of practising solicitors has increased by 50 per cent, the number of firms doing legal aid work has decreased from 11,000 to 4,361.
As has been pointed out, there is a problem with lawyers who are no longer prepared to act in legal aid cases. Legal aid lawyers are walking out on legal aid and switching to work for unaided clients. Many of them chose to work in legal aid for preference, but if the gap between them and their colleagues in private practice is too wide they will leave, for the sake of their families if nothing else.
I believe that we are facing a crisis in the legal aid system. What are the solutions? The first and most obvious one is to ring-fence civil legal aid. Civil and criminal legal aid serve entirely different purposes and there is no reason why, as a result of an increase in crime, people should lose their rights to legal aid for family cases, housing cases or benefit cases. The increase in criminal legal aid should be paid for out of government contingency funds.
Secondly, the Government must be prepared to put more money into legal aid. They may say that that money is needed for schools and hospitals, but a family living in a house which the landlord refuses to repair; a wife bringing up children in poverty because her husband or ex-husband refuses to meet his obligations to them; and an employee sacked from a job on grounds of race discrimination—all those people need legal help alongside a health service and education for their children.
We are seeing the gradual collapse of a legal aid system of which this country could once be proud. We can be proud of it no longer.
5.54 p.m.
Lord Kingsland: My Lords, I agree with everything that every one of your Lordships has said so far in this debate. Indeed, I am sure that I would have agreed with what the noble and learned Lord, Lord Ackner, would have said if he had had further time to say it.
The seeds of the difficulties that we face in this matter were mainly sown by the Access to Justice Act 1999. Among its manifold defects, the one that is most relevant to today's debate is the combined effect of capping the total legal aid budget together with the amalgamation of its criminal and civil components. That point was, indeed, eloquently made by the noble Lord, Lord Goodhart. The criminal fund is demand-led and the demand is rapidly growing, so the civil fund is being squeezed, with the consequence that the poor and socially deprived desperately needing help in areas such as housing and welfare are unable to get the legal support that they deserve. In 2002–03, for example, the criminal legal aid overspend was in the order of

795
£270 million. The central change required, therefore, is for the Government to take immediate steps to ring-fence civil legal aid, as the noble Lord, Lord Goodhart, said.
The present situation simply cannot conform with the obligations imposed on the Government by the Human Rights Act—which were obligations that they decided to impose on themselves when they introduced the human rights legislation in 1997 in your Lordships' House. It cannot be right that the Government can be meeting those obligations if the scale of the civil aid budget depends on the scale of the criminal aid budget.
It is not a testing intellectual challenge to reach that conclusion. If the criminal aid budget, instead of increasing by £270,000 in 2002–03 had increased by £1 billion, where would the civil aid budget have been? That does not add up, either politically or constitutionally. The Government must move in this area immediately if they are to meet their own obligations under the legislation that they themselves enacted.
Lord Williams of Elvel: My Lords, is the noble Lord, Lord Kingsland, expounding Conservative Party policy on this matter?
Lord Kingsland: My Lords, I am expounding the obligations that any government, whether a Conservative one or the present Government, would have to meet under the Human Rights Act.
As the noble Lord, Lord Thomas of Gresford, said in his splendid contribution to the debate, the recent report—the independent inquiry—commissioned by the Government themselves and published in April, is a very telling condemnation of the existing situation. The report makes it clear that the CLS is failing to meet its aims. For example, it found that,
"little evidence has emerged that the system of partnerships, as currently set up, can guarantee success in achieving the intended outcomes of the CLS".
It found that over half the advisers working in the CLS responding to a questionnaire,
"did not believe their CLSP had been effective in improving access to justice for the public".
It found that there was a "near unanimous view" that serious gaps in provision exist across the country, and that there is currently a,
"lack of overall accountability for the CLS",
and no clear dedicated leader driving change within the CLS, meaning that the,
"agenda for the CLS is not sufficiently clear".
That system is a system that the Government willed on us by the Access to Justice Act 1999. What are the Government going to do about the report? It clearly demonstrates that the system over the past four years has lamentably failed in an area that is absolutely central to individual rights. The noble Lord, Lord Goodhart, has also cited evidence from the National Association of Citizens Advice Bureaux that corroborates the conclusions of this report.
796
The wider issue of access to justice in relation to magistrates' courts has been raised by a number of speakers in your Lordships' House this afternoon. It is a fact that, since 1997, 96 magistrates' courthouses have closed in England and Wales while only 14 have opened. Many of these closures have been in remote rural areas. As a party, we have repeatedly expressed concern at the distances that defendants, witnesses and victims must now travel to attend court. The noble Lord, Lord Phillips, has also spoken out about the threat to local justice from such closures. They undermine community life and prevent magistrates responding to local concerns in a way that helps to give a real sense of justice.
The Government continue to assert that decisions concerning the number, location and future of magistrates' courts are for each magistrates' court committee to determine in consultation with its local paying authority. Those committees are not, as I understand it, statutorily required to inform the noble and learned Lord the Lord Chancellor of proposed courthouse closures and these closures are not subject to any appeal system.
The Government continue to insist that the number and distribution of magistrates' courts is nothing to do with them. That is plainly hypocritical. The noble and learned Lord the Lord Chancellor and, indeed, the noble and learned Lord the previous Lord Chancellor have said on many occasions that local justice, locally delivered is central to the Government's philosophy.
How can that principle possibly conform with their attitude to magistrates' court closures, especially when the Home Office has been insisting for many years now that the human rights convention requires substantial new expenditure in courthouses in order to protect the human rights of the defendant? If these expenditure requirements, causing many closures, are to be insisted upon by the Government, then surely the Government should be assisting the magistrates' courts to meet those obligations. It cannot be right that expenditure should be met from local sources.
To conclude with two general thoughts, I was struck by the speech of the noble and learned Lord, Lord Donaldson of Lymington, about the need to look at the question of the provision of legal services in the context of the provision of public services generally, suggesting that the Government ask themselves to what extent the provision of justice is similar to the provision of health services or education and to what extent it is distinct and to draw appropriate conclusions from that.
I was also struck by some of the thoughts of the noble Lord, Lord Brennan, about where we ought to go next. In civil legal aid matters, advisers have to grapple with legislation of increasing complexity. In the area of environmental law, the best way to tackle pollution is to create technologies that do not generate it in the first place. Equally, the best way to reduce the expenses of civil legal aid in areas such as housing and welfare law is to produce simpler legislation. Perhaps the costs of the complexity of future legislation in these areas should be borne by the departments that generate it.
6.4 p.m.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): My Lords, I am genuinely glad that we have had the opportunity of this debate because this is a central issue of public policy and politics. I am also glad that, in opening the debate, the noble Lord, Lord Phillips, signalled that the issue is wider than legal aid, although legal aid is obviously a significant part of the debate.
In my 20 minutes, I shall seek to answer a number of points raised and, at the same time, to share with the House the current thinking in government on these issues. There will be further opportunities to see that thinking later in the year when we publish our strategy for the next five years but it is so relevant to this debate that I would not be doing the House justice if I did not give at least a taste of some of those issues. If I do that, I shall not be able to answer every single point that has been raised. Even if I spent my 20 minutes solely on that, I would not be able to do so. I make a commitment that I shall either write individual letters or a more comprehensive response to Members. I think that if I at least try to set out the broader picture of the Government's perspective on measures that inhibit access to justice I am helping the House more than if I am simply in responsive mode.
The central aim of the new department is to focus on what the public experience as problems and on how to change the systems and services to meet those problems better. Therefore, taking that approach to the problems that inhibit access to justice, I will set out four initial points and will then sketch out some of our thinking on the direction of travel, not solutions, for trying to make improvements. The first point is that the number of justiciable problems in society is extremely large. The evidence from Hazel Genn's work, the work of the Legal Services Research Centre and our own research this year demonstrates that at least 50 per cent of the public experience significant justiciable problems over a three-year period. In other words, we are talking about very large numbers of problems that are not trivial and that affect the public to which, in theory, a legal system might be able to find some solution.
From that research, we also know what the public say about the ways in which the state and society currently offer solutions to those problems. They believe that they take a long time to resolve and they are right. They are unclear about where to go for advice, apart from the CAB and solicitors. They know that the CAB is very busy and that one cannot get in and their perception is that solicitors are at times expensive. Justiciable events are seen by consumers as being difficult to resolve and the experience of those who try to resolve them is seen as being harder than they had expected. The public feel that the legal system is expensive, complex, slow and stressful.
I now turn to the criminal system, which we have not talked about much this evening. Maybe some noble Lords thought that it was outwith the terms of reference of this debate. I do not think that it is. In terms of access to justice in the criminal area system,
798
I shall articulate three issues that are of public policy concern. The first is the issue of attrition, the ratio between the number of offences committed and the number of convictions. Put coarsely, the public's perception of this is that the criminals get away with it.
The second issue, which is perhaps more neglected, is that the system focuses, almost inevitably, on major criminal issues and the evidence is that they are not always the issues of most concern at community or local level. The criminality that matters most to people at local level is a range of miserable, low-level crime or anti-social behaviour that erodes the quality of life in the community.
The third issue about the criminal justice system and whether it is seen by the public as delivering the results and justice that they hope for is that, as a result of historical evolution, the system clearly focuses on the offence and on coming to a fair decision about whether that offence was committed. The focus is on the offence, not the offender, and the extent to which it is possible to prevent re-offending is only an ancillary focus. As far as many members of the public are concerned, certainly as far as many of the crimes they have touched on, reducing re-offending is probably the issue that matters most to them. Those are some of the challenges and problems that the criminal justice system faces in terms of giving the public access to a justice system that does what they want.
I suggest that the third issue that is potentially an impediment to improving access to justice is the historical and rather simple equation, made by all of us, of the courts with the justice system. That is not to say that the courts are not an absolutely fundamental foundation of our society, the rule of law and of the quality of this country. We rightly hold them in very high respect. But a focus which sees the courts as the central or preponderant model, particularly in an adversarial role, has certain consequences. That is not universal, but they have the characteristics of being high skill, high cost and slow.
Part of that historical tradition has been that we have not been particularly energetic as a society. The Government take more than their fair share of blame in that respect for developing alternative resolution models which are fit enough for purpose although not perfect.
Another part of the problem in terms of access to justice is entrenched thinking. There is a good argument that more money would make life better and that is self-evidently true. But the argument that we would simply resolve the problems by throwing more money at them does not stack up if one gives it much thought. Put at its crudest, if one thought about a totally free service to citizens, which allowed them to take justiciable action on any of the problems, one can imagine the consequences in the scale of growth of demand on legal services and the legal system.
Simply thinking that by throwing money at the problem we will solve it will not do. That is not say that there is not a proper political debate to be heard about whether the right level of money is being used.

799
I shall set out relatively quickly a limited number of areas where we believe we have to apply more intellectual effort and government muscle. First, there is the ghastly phrase, the concept of proportionate dispute resolution. Looking at the problems in society we need to be much more creative in identifying mechanisms to resolve those problems which are proportionate to the problems and the cost. We have an agenda of about four or five issues. I agree with the noble Lord, Lord Kingsland, that if the legal system is clearer and more simple, in theory, and if one is an optimist, it is more conceivable that the public can see what is the message of the law and therefore give clearer guidance about what to do. That must be an object of policy even if we are pretty poor at fulfilling it.
Linked to that there is clearly a thrust towards early resolution. The more that one can resolve justiciable problems earlier, clearly in principle it is better and it is certainly lower cost.
There has to be more action to improve the understanding of rights and responsibilities by the public. Matched with that is helping them to decide how to deal with problems themselves. If one considers how many of us do resolve justiciable problems, it is not often by going to court or employing a lawyer. We develop a range of skills and techniques to try to make the person with whom we are aggrieved negotiate and come to an agreement which is acceptable. Many people do not have those skills and therefore we have to think of that as well as an object of public policy if we are to make much impact on the very large number of justiciable problems which the state can never expect to solve simply by the formal court process or the legal aid subsidy process.
Lastly, it is quite clear that we have to promote a range of tailored and innovative alternative mechanisms for resolving disputes. If there was more time I would share some of the thinking on the family, which is one of my areas of focus. There is massive potential there, but we have only just started on that. The present Lord Chief Justice set us that agenda in 1996. We have a lot further to go on that.
The second area is the issue of better education, information and advice. It is directly relevant to the issue of trying to make it more possible for more people to find solutions themselves to their justiciable problems rather than believing that we can provide a lawyer for everyone to resolve every problem. Therefore, the Government have to develop a cross-governmental strategy on advice and information in these areas. It does not exist at present and it is a challenge to government to see how they address the matter.
At a smaller level, as the noble Lord, Lord Phillips of Sudbury, signalled, there is a role for telephone advice. The noble Lord's views appeared to be more half-empty than half-full on that. If we look at that in terms of public policy and how NHS Direct has shifted our perception as to how one can give information and advice on a subject as sensitive as health and what a success that has been, that raises a serious question as to how we go further on telephone information and
800
advice for the public and how they can better resolve problems. A national telephone advice service on debt and welfare benefits will be announced in July.
As regards the agenda of issues which the Government have to consider, there is the matter of better court resolution processes. Clearly, in some areas such as money claims on line, we see through using electronic processes at relative low cost the ability to resolve and give judgment on a very high number of money claims in relatively simple terms. As regards tribunal reform, we are looking not simply at how we give people a day at a tribunal, but how we turn that into a process where we try to promote pre-tribunal resolution to problems rather than having a hearing, if that can be done while meeting the tests of justice.
We obviously have to increase the efficiency and effectiveness of the system, as the noble Lord, Lord Brennan, said, and also as regards case management initiatives. He also said that we should look elsewhere and use that as a challenge to us as to whether the situation should be as it is at present. He instanced the example of fraud. International comparisons are useful to us because they do not have to be exactly as it is here.
Those are some of the elements of what we shall be doing in terms of bringing fresh thinking over a five to 10-year period rather than an instant fix. I turn to the extremely painful and sensitive subject of court closures in mid-Wales about which the noble Lords, Lord Hooson, Lord Williams of Elvel, Lord Livsey of Talgarth and Lord Phillips, and others spoke The painful truth is that the decisions to close court houses are made by local magistrates' courts committees in consultation with the paying authority. If the decision is appealed against by the paying authority to the Lord Chancellor, he has a locus on it and can do something about it. But if not, he has no statutory role or power of intervention. It was not prayed against by the funding authority and therefore there is no locus by the Lord Chancellor.
We could spend a considerable amount of time on this issue. Perhaps I may write in detail to all noble Lords who spoke on the matter. I believe that is the fairest way to do justice to their queries.
Lord Livsey of Talgarth: My Lords, I have one point for the Minister to consider. The issue to which he has just referred has been complicated by the private finance initiative, which is a totally different issue. It impeded the ability of the local council to appeal.
Lord Filkin: My Lords, I shall take that issue away. I will look at it as part of the response which the department gives.
I turn very briefly to the issue I raised as to the misfit, as regards public concern, between the criminal issues which matter most to them and the focus of attention of the criminal justice system itself. These are very early days, but we are looking at establishing a community justice centre in Liverpool, building on thinking by the Lord Chief Justice and others. It is to try to see if there

801
are different ways of handling quality of life, low level offending, anti-social behaviour, property damage, harassment, prostitution, vandalism, fly-tipping, graffiti and nuisance drunkenness. One may ask what that has to do with this debate, but we have to find some ways of getting better purchase on these issues because they do not find much space in the current criminal justice system and yet they are matters on which the public judge as to whether we have effective access to justice in our society in a large measure.
I turn to the issue of who we subsidise and legal aid. Since 1996–97, expenditure on legal aid in cash terms has risen by 30 per cent. We make European comparisons with what we spend in Britain on civil matters. I am using that aspect because it is hard to make a fair comparison with criminal matters for obvious reasons. The average spend per capita on civil legal aid in England and Wales is more than £10. The next highest average spend in a non-UK country is Denmark at £4. The average spend per case on civil legal aid is more than £3,000 in the UK. The next highest average spend in a non-UK country is Denmark at £2,000. We are spending more on civil legal aid in this country than any other European country. That does not mean that we are necessarily spending enough, as has been well argued, but it certainly gives pause for thought whether we have reached perfection in the way in which we apply limited resources to the resolution of civil problems in our society.
The noble Lord, Lord Brennan, in an impressive speech was clear that there are certain realities of life. I also commend the noble Lord, Lord Goodhart, on making that point. He did not always enjoy those realities but he did not fudge them. Essentially, the noble Lord, Lord Goodhart, said that the provision that we are discussing cannot be demand led, that government are entitled to set limits for obvious reasons of public policy, and that budgetary limits are a reality of life.
It has been argued that if civil was ring-fenced, we would have a different debate. However, we would still have the same debate as we face; namely, how do we get best value for the public within a limited constraint of resource, which will always be conditioned by political choice, and can obviously go up or down? It is in that context that a number of reviews which we have commissioned are relevant to this issue. The most important one is the fundamental legal aid review that has been commissioned and is looking root and branch at the questions—as it should—of who we subsidise, for what actions and for what processes, because each of those three have an effect on the eventual cost. From what I have said previously, I obviously see the issue of the processes as germane to the question of who we subsidise and for what actions, because if you can get more economical processes for the same level of money you can subsidise more cases coming into the system. That—
Lord Phillips of Sudbury: My Lords, I am most grateful to the Minister for giving way. Am I right in thinking that the fundamental review, which I think has been ordered by the Department for Constitutional Affairs, is an internal review and will not, therefore, have external input at its crucial stages?
Lord Filkin: My Lords, the noble Lord is correct. It is an internal review which I believe is being carried out in conjunction with other parts of government. However, at this stage it is a pure piece of policy work by government. I expect that we shall publish it when it is completed; perhaps we shall publish it when it is completed—either way, a debate will need to be held on its conclusions.
In the time available to me I shall not do justice to the many detailed and important questions that were asked about legal aid. The noble Lord, Lord Phillips, referred to the Matrix review. We are certainly considering how the recommendations should be taken forward. As regards demoralised legal aid lawyers, we have had a very good response to recent contracts, both civil and criminal. We have had a positive response from firms. We have not been hit by a massive aggregate supply problem. Clearly, there are some geographical issues that need to be addressed, but there is no difficulty as regards people coming forward at the rates that are being offered.
I agree with the noble Lord, Lord Phillips, that we want to consume the minimum amount of expenditure on bureaucracy consistent with meeting public policy tests of value for money and protection against misuse or abuse. Clearly, that has to be an objective.
As regards the quality of legal aid suppliers, the specialist level of quality mark addresses quality through requirements to have qualified supervisors, effective supervision and an effective management system. It is much more of a quality control system than it ever was in the past—for example, five or 10 years ago. However, that does not mean that it is perfect.
As regards advice deserts, if the model is that one has to have a solicitor and an office in every town, I think that there will be areas with no provision. However, if the test is whether the citizen is able to get effective access to the advice that he or she needs, there are alternative ways of addressing that.
I shall not talk in detail about very high cost criminal cases. I shall not even rise to the bait that was raised by the noble Lord, Lord Thomas of Gresford. Clearly, there is a need to look at the underlying drivers of cost in very high cost criminal cases for reasons that were touched on in the debate. However, those negotiations are actively with the Bar at present.
The noble Lord, Lord Brennan, referred to the impact assessment of legal costs on new legislation. There is a principle in government that whichever government department initiates a policy that bears costs on other departments, there is an expectation that the originating department has to pay for the cost consequences. That was not always the case. I do not claim that the position is perfect now but it is obviously

803
fundamental for a downstream department such as the DCA; otherwise, one just picks up the consequences and burdens of everyone else's costs, and that is disastrous.
The noble Lord, Lord Goodhart, mentioned the simplification of conditional fee agreements. I agree with him that further simplification would provide a better deal for the customer, the solicitor and for the defendant. We published an initial consultation paper last summer and have been working with stakeholders on the details of that.
The noble Lord, Lord Taverne, gave a powerful and reasonably historical description of a legal aid scandal. I think that he used the word "scandal". Following the passage of the Access to Justice Act 1999, we have strengthened the processes by which cases are scrutinised. I very much hope that such a case could not happen again. However, it would be foolish of me to be totally optimistic about that.
I apologise as I am failing what the Whip will tell me is the Lord Ackner test. Therefore, I should come to a conclusion. I regret that I have not been able to give more detailed answers. I shall seek to do that either individually or through a more collective response. I welcome the debate. It has been an important issue on which to engage the House. We must return to it on future occasions.
6.26 p.m.
Lord Phillips of Sudbury: My Lords, I am grateful to the Minister for summing up. It was the more commendable as he was the only non-lawyer contributor to this debate apart from—I hasten to add—the noble Lord, Lord Williams of Elvel, and my noble friend—I did not say my noble and learned friend but was tempted to—from Powys.
It is also encouraging that the Minister was open-minded in a number of the responses that he gave to points raised in the debate. He talked of cross-party involvement and coming back to this issue. I have the sense—as I am sure many noble Lords do—that this has been a debate in the nature of a taster, so wide and important have been the issues that were discussed.
The Minister will not be surprised to hear me say that of the issues that I dealt with in opening the debate, which were taken up by many noble Lords, there has not been any satisfactory response on the split between criminal and civil legal aid—the ring-fencing issue. The issue of legal aid remuneration as regards solicitors has not been touched on at all and yet that is at the root of the decline in the system. I urge the Minister to read what has been said in this debate about that and the evidence because decline in the system there certainly is. If the Minister thinks that the Law Society is just making up the idea that there is severe demoralisation within the legal aid fraternity, or that the Legal Aid Practitioners Group is not of the same mind, I hope that he will think again.
There are many other matters that it is not appropriate to raise at this juncture except to thank most sincerely all those who have taken part in this debate. Legal aid has often been called the Cinderella service. I am most grateful to all noble Lords who have spoken about it
804
today with, if I may say so, a degree of commitment that bodes well for our future deliberations on improvements to the system. My Lords, I beg leave to withdraw the Motion for Papers.
Motion for Papers, by leave, withdrawn.

Local Government and Regional Assemblies
6.28 p.m.
Lord McNally Lord McNally rose to call attention to the case for moving power from Westminster and Whitehall to local government and democratically elected regional assemblies; and to move for Papers.
The noble Lord said: My Lords, two questions may arise concerning this debate. One concerns its timing and the other concerns why I should initiate this debate about local government and devolution. On the matter of timing, this debate takes place a week after the local elections have taken place. One might have thought that this debate would offer opportunities to indulge in hustings and soapbox debating. However, I claim that it is far better to have this debate after the dust of battle has settled when we can look ahead on this important topic.
As to myself as choice of mover, it is true that I have been in and around Whitehall and Westminster for almost 40 years in various jobs. I do not come from the local government tradition, with the experience of many in this House and the other place. But nearly four decades of experience have convinced me that if we are going to modernise our government and make it fit for the 21st century, we have to move away from what we became in the 20th century: the most over-centralised state of any modern democracy. I hope this debate will explore whether we have had that leap of imagination in government necessary for a real movement of power out of Whitehall and Westminster, rather than just the appearance of it.
There is a concern that Labour's new localism is simply its old centralism dressed up for the occasion. We have an over-powerful executive and a Parliament that is, very often, either unwilling or unable to provide checks and balances. That is why we on these Benches continue to seek a reform of Parliament at national level. We also believe that better governance could be achieved by devolving power out of Whitehall and Westminster, and closer to the people. For that reason, we have in the past supported the establishment of the Scottish Parliament, the Welsh and Northern Ireland Assemblies and the Greater London Authority. We continue to support the idea of regional government for England.
Before 1997, we shared a common agenda with the Labour Party through the Cook/Maclennan report. It became a blueprint for change, largely carried out in the first years of this Government: the Human Rights Act; the various parliaments and assemblies I have referred to; the Freedom of Information Act. One of the problems we face is that, as they have stayed in office, the Government have assumed some of the arrogance of power. We clearly saw that in the ill

805
considered decision to impose postal ballots on the north-west, Yorkshire and Humberside. That clearly had more to do with the political calculations of John Prescott in Yorkshire and Humberside, and Ian McCartney in the north-west, than any notion of making sure that the ideas had been thought through and the implementation was effective. If we appoint an independent referee such as the Electoral Commission, we should listen to it.
In passing, I understand this rush to find new ways of encouraging people to vote, and that there is a certain increased credibility when turnout is up. But it worries me, not just because of the dangers of corruption. The act of voting is, in its way, part of the social contract between the citizen and government. I subscribe to a comment made by the late Hugo Young, that we should perhaps cherish more the 50 per cent who do vote, rather than pursue too vigorously the apathetic and those who are not playing a part in the process. That may be a side debate.
The lesson of the postal ballot and other matters is that if you want constitutional reform to stick, you must at least try for cross-party consensus. That is particularly true in light of last week's local election results. I am not going to indulge in cheap party politics by suggesting that the Labour Party is now the third party of local government, or that a Labour vote is a wasted vote in many areas. But it is true that the great northern one-party bastions of local government are no longer there. That is an altogether good thing as far as local democracy is concerned. The problem is that the Deputy Prime Minister has gained a reputation for approaching some of these matters from too narrow a view of party advantage rather than seeking broad consensus. That is why I was delighted—and I hope the Minster will expand on this in his reply—that the Office of the Deputy Prime Minister has today published a discussion pamphlet on the future of local government, encouraging greater participation in the debate on the future shape of local government by the public at large and interested groups.
If we can get the leap of imagination that transfers real power, we are in a "win-win" situation. Not only do we get the benefit of better governance, we also attract a higher quality of people who will want to take part in doing a real job of work. We on these Benches also believe that the case for a fairer system of local government funding must be looked at.
One of the reasons I initiated this debate came from the experience of local election campaigns, and my own experience in the north-west and elsewhere. I know my noble friend Lord Greaves will expand on that later. I am very worried that the promised referenda in the autumn are in danger of being lost unless the Government take on board the legitimate criticisms made of their approach so far. The Government have to convince people that their regionalism consists of more than moving power to the regional "quangocracies". There is a danger that if we leave too much power in central hands, and take too
806
many powers from genuinely local bodies, it will produce cynicism and a rejection of the whole proposal. It will indeed be a recipe for a "no" vote.
Devolution will only work if it consists of a genuine transfer of real power to the regions. That devolution must be based on strong regional democracy to tame unelected regional government. There is a real danger in the way the Government are approaching this that what we will get is not devolved government based on democratic accountability, but some devolved government to bodies that are not themselves democratic, and are still basically in the hands of the Whitehall machine.
My view has always been that two of the most misunderstood words in English are subsidiarity and federalism. They are abused, particularly in the European context. I myself have always been a federalist, and I believe that there are certain matters best dealt with on a European basis. There are some matters best dealt with by this Westminster Parliament, some matters best handled by devolved regional assemblies, some matters will continue to be best handled by local government, and some by parish and neighbourhood bodies as well.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): My Lords, I am reluctant to intervene, but I will not get the chance to speak until I wind up the debate. There will not be the referenda in the northern regions unless this House approves the orders for the referenda. It would be very helpful if, during the course of this debate, the Liberal Democrats would make their position clear on whether they are going to assist the flow of those orders through this House. Obviously, they must be passed before the Summer Recess.
Lord McNally: My Lords, one of the reasons that we initiated this debate was to tease out of the Government their basic philosophy on these issues. If I may say so, much will rest on the persuasiveness of the Minister's reply to what I hope will be a constructive debate. We are the Liberal Democrats; we are here to help. Much more seriously, we are simply putting down a warning which I think will come from many parts of the House. Regardless of whether we co-operate in getting an autumn referendum through, the Government will lose the referenda if they do not convince people that they are about a real transfer of power.
I hope that as the debate unfolds and the Government take on board this spirit of constructive criticism we will make the progress that the Minister wants. That is why we would like to hear his response to the Liberal Democrats' ideas on a local income tax. There is no doubt that one of the problems that has bedevilled devolution and the transfer of power is the problem of local government finances. I was an official when Tony Crosland told local government that the party is over. It was no good central government sweating blood to try to control public expenditure if local authorities did not give a damn about how much expenditure increased. Even the dreaded poll tax was an attempt to try to tie local government expenditure to some kind of consequence at the ballot box.

807
We on these Benches would also advocate PR at local government level as a very healthy way of encouraging people. Given the right levels of responsibility and resources, people of real ability in all parties can still be attracted into local government. If we can get the right kind of devolution, it would be more efficient and mean less bureaucracy. It would deliver genuine subsidiarity and leave regions free to decide their own priorities in a whole range of areas. At the moment, the Government seem very coy about how far they will move power into the regions.
It is on that basis that I encourage the debate. In the debate so far the Government have made a declaration of intent, but that has left a suspicion that the leap of the imagination—what today's discussion pamphlet called "the vision"—truly to transfer power is still absent. In today's press release from the Office of the Deputy Prime Minister, the Minister says that, today, he wants to kick-start the debate. I hope that that is what we will do in this debate. I beg to move for Papers.
6.44 p.m.
Lord Morgan: My Lords, I thank the noble Lord, Lord McNally, for initiating this debate. It is a great privilege to be number two in the batting order, which I used to be in cricket but have not hitherto been in the House. But the Benches around me indicated the passionate interest that the Labour Party takes in these matters. So that might account for my presence.
I speak for two reasons. First, the Government's programme of constitutional reform has been very remarkable. It has been a programme of modernisation, but it is incomplete without attending to matters of regional and local government in England. We have seen this extraordinary policy of devolution elsewhere, which is one of the most astonishingly radical programmes of a government in modern times. I believe that it is actually more coherent than is often stated; it is not haphazard. I think that there are underlying principles of accountability and indeed of decentralisation which underpin the policy. However, it is not satisfactory because there is nothing about England.
England has been called by the Constitution Unit "a black hole" in the constitutional reforms. An article in Parliamentary Affairs, varying the language slightly, called it,
"a gaping hole in the devolution settlement".
Let us all agree that it is at least a hole in some sense. The natural way to fill that hole, I think, is through extending the principle of regional government.
I intervene for a second reason which I suppose is more theoretical. There is a great deal to be said, including from these Benches, on the imperatives of decentralisation, pluralism and the dispersal of power. That, it seems to me, is the principle that underlies our deliberations this evening. It is a natural theme, no doubt, for the Liberal Democrats, following the lead of our greatest Prime Minister, Lloyd-George, who spoke a great deal on these matters. It should not be inimical to Conservatives. Conservatives throughout their history have celebrated locality and place. They
808
have not always been at all stern, unbending unionists, from the Primrose League in the 1890s to John Major in the 1990s.
From these Benches I would like to say that decentralisation is also a very sound policy for the Labour Party. The Labour Party for a long time in its history was the party of decentralisation. Its association with centralism and the idea that the gentleman from Whitehall knows best is a relatively recent innovation in the party's history. It was not the view of the Webbs, who espoused municipal socialism. It was not the view of Keir Hardie or George Lansbury or the ILP. R H Tawney, a great theorist who had a great effect on many of us on these Benches, argued that a socialist society was feasible only if it was based on popular—by which he meant local—decision making. That is the argument underlying much of Tawney's writings, including particularly The Acquisitive Society.
The Labour Party's stance changed—which I as an historian think was fairly recently—in the 1930s, namely with the unemployment of that decade, the Second World War and the experience of the Attlee government. It is rather melancholy to me in a way that one of our greatest reforms by one of our greatest statesmen, Nye Bevan's National Health Service, had the effect of riveting centralism on our social services, which was opposed, of course, by Herbert Morrison and others at the time.
So I welcome very much the fact that the present Government are showing signs of reversing this trend and returning to their roots. They have had RDAs and regional assemblies. We have the dispersal of government agencies, and now we have the proposals for regional referendums—I believe that that is the plural. I hope that that is something that will take place. Most certainly, I hope that we have something to reverse the tendency by which Great Britain has been one of the most centralised countries on earth. It has been so for many centuries, since the time of the Tudors.
Much of the debate will rightly focus on England, and most of my comments will focus on England—I live in England, and I like living in England—although they apply also to Wales.
It is extremely important that we take devolution further than has hitherto come in Wales. So I would very much introduce the plea to my noble friend that the Government eventually listen very positively to the report of the Richard commission. The commission unanimously—unanimously despite all the debates—strongly supported a case for meaningful devolution, giving Wales over a period of years precisely the same legislative powers as Scotland. At the moment we have a false devolution in Wales. We have a situation in which the National Assembly cannot get its views adequately across. It has no direct power over legislation, other than regarding the whims of the Cabinet and this House. Its weakness compared with Scotland is an anomaly. The Assembly once asked for seven or eight measures that it thought might be introduced on behalf of Wales, but no time was found for any of them. That is not satisfactory and that was

809
the view my noble friend Lord Richard and the fellow members of his commission, who represent all political parties and none.
The main stumbling block is regarding the Welsh Labour MPs. They will deliberate later this summer and one could well see self-interest in that they might be antagonistic to more power being transferred to the Assembly—but they will have much power. It is proposed that the Sewel convention be extended to the Welsh Assembly and there will be plenty for the Welsh Labour MPs to do.
Regarding England, there are two strong grounds for more regional government—a democratic case and an egalitarian case. There should be a democratic basis for effective regional government in Wales—and England cannot be left in limbo as it is the largest part of the United Kingdom with 85 per cent of the population, especially when democracy has been extended to Wales, Scotland and Northern Ireland. I would support the view that has come from many sections of the Government that there should be regional assemblies, with planning powers and powers far greater than those of the RDAs, that are elected on a democratic basis. We have had some negative arguments for regional government—including the extension of government agencies, call centres and so on, to different parts of England. I welcome the part played by John Prescott, who is frequently derided in this House for, frankly, snobbish reasons. I have heard some noble Lords talking about him and they should be ashamed of themselves. He deserves great praise for being innovative and positive, not least in his document, The Northern Way.
Can my noble friend the Minister comment on the question of transferring regional government from John Prescott's department—despite the initiatives that he has taken—to the Department for Constitutional Affairs? That would have a different, more constructive and thrusting view of devolution and regional government than the present system.
The other case is egalitarian. I imagine that my noble friend, as a socialist, as I am, realises that socialism is about equality, or so we are told. The present structure is unequal. It encourages and perpetuates disparities between different parts of England, which date from the end of the First World War and have become ever wider. The comparators of economic performance indicate and underline that. John Prescott and Gordon Brown have spoken positively in such terms. The current operation of the Barnett formula is an obstacle, because it is unfair to many areas of England and perpetuates the present regional economic divide in this country.
The elected regional assemblies envisaged for the northern parts of England could be proactive. They could attract new resources and new elements of economic activity to areas of low growth. John Prescott has talked about transport policy. There are many other areas in which effective regional assemblies could operate, including housing, learning and skills policy and so on. In view of my own background, I would like to see universities playing a positive role in regional government. That is not a novel idea—for seven years I
810
had the privilege of being the vice-chancellor of the University of Wales, Aberystwyth, and we regarded ourselves as very much a motor of economic activity in agriculture and the introduction of small industries and so on to rural areas. The noble Lord, Lord Livsey, would know about that. Regional assemblies would be an element of reddressing the inequalities in our country that have grown inexorably under Labour and Conservative governments over the past 25 years.
I conclude by congratulating the Government on taking regional government seriously. They are often derided—we have heard speeches in this House that are not historically accurate about the Anglo-Saxon heptarchy and so on, which I hope we can do without this evening. The Government deserve praise for making a good start. Referendums, it is to be hoped, will take place in northern areas. There are also proposals for regional authorities in other parts of England, including those of the Royal Society of Arts for the south-west. If we had more effective regional government, as has been proposed, we would have a reflection of and a complement to the constitutional reforms that have been introduced hitherto in this country. They would also reflect the pattern of many other European countries—for example in the federal state of Germany, where regionalism has been the motor of change. There are many variations between European countries, but I hope that Britain can reflect that too.
I welcome this debate and the Government's proposals and I look forward to my noble friend's response. Devolution is part of the fabric of this country in Scotland and Wales and I hope that it will become stronger in Wales. Hitherto, we have had little reflection of that in England. In the words of the famous poem, the people of England have not yet spoken, but in parts of that great country, perhaps they will do so.
6.56 p.m.
Lord Waddington: My Lords, we should be grateful to the noble Lord, Lord McNally, for this debate, because there is much to be discussed. There is much in what he says about over-centralisation. However, the key question is what sort of devolution is appropriate. One of the questions is whether devolution to existing authorities is the way to proceed, or whether there should be devolution to new authorities.
It is always a pleasure to follow the noble Lord, Lord Morgan, but I do not agree with a single word he said. I cannot accept for one moment his argument that regional government is somehow the English answer to Scottish devolution. In another debate I referred to comments made by the Deputy Prime Minister in the other place at the Second Reading of the Regional Assemblies (Preparations) Bill. He said that the Bill offered opportunities for the English regions similar to those offered to Scotland. That was complete nonsense. No one has suggested for one

811
moment that regional authorities in England will have any powers such as those that have been afforded to Scotland.
Earl Russell: My Lords, that was suggested during the negotiations on the Act of Union in 1707 and the idea has been around ever since.
Lord Waddington: My Lords, I am talking about the situation today and not the situation in the 18th century. Devolution has been granted to Scotland on a scale that no one suggests will be granted to England under the present arrangements. I have no doubt that from time to time over recent years people in the north of England have felt they have been somehow disadvantaged as a result of the Barnett formula and Scottish devolution. But perhaps, as the noble Lord, Lord Morgan, hinted, the answer would be to look at the Barnett formula. I have no doubt that if one were to ask someone in a pub in Newcastle whether he would prefer regional government and more councillors or more money as a result of a change in the Barnett formula, he would soon give a straight answer—which would not be in favour of regional government.
In the past few days I have been thinking about events back in 1970. Jim Callaghan, as he then was, was Home Secretary and he did not like the recommendations of the Parliamentary Boundary Commission. So, he carried out his statutory duty and laid before Parliament the orders to give effect to the commission's proposals and then arranged for the Labour Party to be whipped to defeat the orders.
There is some sort of parallel between that and Labour's cavalier approach to the electoral system when they determined to press ahead with compulsory postal voting throughout the north of the country in last week's elections against the advice of the Electoral Commission. It seems clear that Labour, in the event, paid a penalty for that, as probably did the Labour government in 1970. The behaviour of the noble Lord, Lord Callaghan, over the proposals of the Boundary Commission had some effect on voting in the 1970 general election.
Recent events have shown not only that manipulating the electoral system to try to gain a party political advantage does not always pay—as the noble Lord, Lord McNally, said, it is better to try to deal with these matters by cross-party agreement—but that when elections to a number of bodies are held on the same day under a variety of voting systems, even if the instructions to voters are plain and easily understood—and not plain wrong as they were in London—there is almost bound to be trouble. The public will be confused; ballot papers will be spoilt; and results will be challenged.
I go on from there to suggest that if in a small country such as ours there is a plethora of authorities with different and sometimes overlapping responsibilities, there can be confusion not only on polling day. It is of the essence of democracy that voters should be able to call to account those who they believe have not carried out properly the duties which have been given to them. They can hardly do that if they cannot see clearly who is responsible for what and what governmental body is
812
responsible for what. That is a good reason for having no more bodies with a share in government than is really necessary.
My noble friend Lord Norton of Louth put it in this way:
"Fragmentation of powers, far from empowering the people, leave them uncertain as to who to hold accountable for public policy".
There is a great deal in that and we should all bear it in mind. Of course there is a case for moving powers from Westminster and Whitehall to existing organs of local government, but I would submit it is much more difficult to justify giving powers to a new tier of government and virtually impossible to justify giving such powers at the expense of existing local government.
That, when you boil it down to its essentials, is exactly what Labour's plans are about. Their proposals are about change at the expense of local government because not only are powers like planning being taken from local government, but, if Labour get their way and assemblies are set up, the organs of local government closest to the people, the district authorities, will go entirely.
Lord Rooker: My Lords, it is simply not true to say that planning is taken away from local government. The giving of planning consent is a local government matter at district council level. That will remain the case and there are no plans to change it.
Lord Waddington: My Lords, I cannot agree for one moment. The giving of strategic powers to new regional authorities clearly diminishes the powers of the planning authorities. And the planning authorities are the county councils, so I cannot follow the noble Lord's argument.
The regions of England we are talking about—I have made the point many times but it must be made again—are artificial creations drawn on the map by bureaucrats and not for electoral purposes. They were drawn to delineate the area of responsibility of government offices. They are not, with the possible exception of the north-east, areas to which people feel they owe loyalty. They are not areas within which people feel they belong to one community. I am sure that the noble Lord, Lord Greaves, will agree that the farmer on the banks of the Solway is unlikely to talk of a resident of Bootle as a fellow citizen of the north-west. I should imagine that there are few residents of Cheltenham who think they belong in the south-west, or residents of Banbury who think they are in the south-east. I would not think you would be able to find one.
However, it is over these artificial regions that it is hoped the new assemblies will preside. They will be remote bodies—far more remote than existing local authorities. And the more they are built up—these bodies to which people owe no natural loyalty and with which people have no natural affinity—the more they will weaken the organs of local government to which people naturally relate.

813
In the north-west, the regional assembly will be entirely dominated by Manchester and Merseyside, where the bulk of the population live, and if people vote for a regional assembly, they will rue the day when the counties lose their authority which was so skilful in balancing urban and rural interests.
The Motion before the House refers to moving powers to regional assemblies. And I have to say bluntly that I am against these assemblies whether they have powers or not. I am against regional assemblies whose purpose is just to put a veneer of democratic respectability over functions already exercised in the regions, but I am also against regional assemblies with real powers.
If the assemblies get no more than minimal powers, which as far as I can judge seems to be the intention, they will be no more than an expensive and pointless extra layer of government. Assembly members will no doubt demand high salaries and expenses, like those drawn by the one and a half day a week Members of the Scottish Parliament, and they will expect good accommodation and well paid staff. And then they will hunt around for something to do.
But I am bound to say I am just as much against regional government with real powers. I see no gain in Parliament at Westminster being further diminished and regions built up at Parliament's expense. Again, it is all about democracy and accountability. At present, we have a simple and transparent system of democratic accountability, with the man and woman in the street linked via his or her MP direct to government. The person can go to his Member of Parliament and the Member of Parliament can go to government and get a reply for his constituent. I ask myself where is the advantage in having more and more power drained away from our Parliament to, on the one hand, undemocratic institutions in Europe and, on the other, to assemblies in the regions, unless of course one wants to see our Parliament lose all meaning and become part of a federal Europe of the regions. I do not want to see a balkanisation of England and a federal Europe and, judging by last week's results, neither do the British people.
But at the end of the day, there is one thing that we and the Liberal Benches can agree on; that there is little excuse for the Government's failure to say clearly what powers they intend regional assemblies to have. One leaflet put out by the Office of the Deputy Prime Minister seems to confirm my worst fears. It tells us what members of assemblies are most likely to be up to. The pamphlet reads:
"An Assembly could represent the Regions in Brussels, lobbying for the Region at European level".
In plain words, the Deputy Prime Minister seems to believe that it will be in Britain's interests for assembly members to go off to Brussels to try to screw more out of the Commission than the region next door. If anyone thinks that that sort of activity will be good for amity and make for a happier country, he must have taken leave of his senses. To adopt the elegant phraseology of the Prime Minister, we really need that like a hole in the head.
814
We are all waiting anxiously to hear what the Minister has to say and I want to ask him just one question. Does he stand by the statement he made on 5 March last year at col. 813? On that occasion, the noble Lord, Lord Morgan, suggested that there would be more enthusiasm for regional government if there were a statement on the powers and functions of the assemblies before the referendum. The noble Lord, Lord Rooker, replied with his customary candour:
"We could do that, my Lords. However, I think that the penny dropped during the Second Reading of the legislation that there are no new powers and no new funds".—[Official Report, 5/3/03; col. 813.]
Does the Minister stand by that statement now?
7.10 p.m.
Baroness Miller of Chilthorne Domer: My Lords, when the noble Lord, Lord Waddington, began his speech I thought that we were going to agree that there is a strong case for moving powers from Westminster and Whitehall to at least some form of local government or regional assemblies. However, as he developed his argument, he seemed to deny that there is any case at all.
Lord Waddington: No, my Lords. I thought I had made myself quite clear. I believe that there is a case for some considerable additional devolution to existing local authorities, but there is no case for devolving powers to new authorities.
Baroness Miller of Chilthorne Domer: My Lords, at least we can agree that there is a case for devolving powers from the centre. I hope that the Minister in his reply will agree with that.
On the subject of regional assemblies, I shall take up some of the points made by the noble Lord, Lord Waddington. I am grateful to the noble Lord, Lord McNally, for introducing the debate so that we can discuss these important issues. I believe that there is a strong case to be made for regional assemblies. We need to make a good start before the referendums take place.
I could not disagree more with the noble Lord, Lord Waddington, when he describes asking someone in a pub how he feels about having a regional assembly. If that person in the pub fully understood that at the moment so many of the decisions affecting regions are made by unelected regional development agencies, by the Government Offices for the Regions and by Westminster, and that crucially the regional development agencies, which are in no way democratically accountable, hold the funding for such a wide range of projects, the case would be made for elected regional assemblies.
Perhaps I begin to agree with the noble Lord, Lord Waddington, in agreeing that we do not need additional layers of government at regional level. I deeply regret that in the previous local government review, led by Sir John Banham, the Government at the time bottled out following through and making the case for unitary authorities everywhere. If we had unitary authorities throughout the country, backed up by very strong parish and town councils, we would

815
have a much more transparent system for the voting public. It would be clear to them that they had one local councillor and councillors who represented them on the principal authority dealing with a wide range of the functions that they really cared about.
Rural areas still have county and district councils and I am not making a case for the abolition of either. I declare an interest as a Somerset county councillor. I am making a case for unitary authorities. I have learnt the bitter lessons from the last local government review—I was in local government at the time. The arguments about where the boundaries should be were some of the most sterile that I have ever heard and were a total turn-off for the public. I believe that that has led to the further disillusion felt by the public and it is one reason why the electoral turnout for local government elections has dropped.
I turn to another reason why I believe that turnout has dropped. It is no good the Government casting around for other solutions, such as postal voting, unless they solve the issue of devolving powers, and to devolve powers they must loosen the straitjacket that they have imposed around local government.
In 1997 when the Labour Government were elected I hoped that they would stand by what they said about local government having powers. At the time they quite correctly analysed that local government was not in a healthy state and needed help. There were monolithic councils that did not scrutinise what they did and did not perform at all well in the interests of their citizens. At that time the Government correctly set up the Improvement and Development Agency to help those councils in two ways: first, by peer review, which was a strong and sensible way forward, and, secondly, by showing the examples of best practice that have developed into the beacon council scheme, which has much to commend it.
However, the Government then went off the rails. They introduced the comprehensive performance assessment whose targets and goals mean that every council up and down the land is terrified of failing the assessment. The Minister may say that fear of failure is good because it drives people to perform better. I do not believe that fear is a good motivator in any circumstance. Further, it takes away from the voting public the ability to choose between different models of how things may be achieved.
Having targets and some form of measurement is important, but if the Government are to reawaken interest in local democracy, they must move to a system of measurements, targets and scrutiny that relies far more on public opinion of how a local authority has performed than on central government stating the targets and delivering their own policies and targets through local government. In that way, local government is no better able to perform true local democracy than under the préfecture system in France. Of course, in France there is local government and a préfecture, whereas in England the Government have made local government its own préfecture.
On what really matters to people, such as housing, crime and health, local government can only tinker around the edges and write a strategy that it discusses
816
with partners. It needs to be re-enabled to take back some decision making and delivery that the public expect. The public do not like talking shops, nor attending endless workshops. They ask what action will happen at the end and local government now has to say, "We cannot take any of this action; it will be taken by our partners". A good place to start may be with the Housing Corporation, which at the moment is funded to deliver the housing function, together with registered social landlords.
I believe that local government should still have a more primary function in delivering with registered social landlords and others, and the form that that delivery of housing units in its own area will take should be decided by local government. That is one area that I believe that the Government could free up and give local government a far bigger role.
Finally, other quangos are unelected and much less regulated. I do not believe that they have to go through anything like the same stringent performance measures as local government. Why is that? Are the Government more relaxed about quangos? Of course, they appoint those who chair them, who, I believe, in turn have a hand in appointing those who sit on them. We need a bonfire and a sieving mechanism for such quangos and we must decide which ones we need. I hope that the Government come good on the Haskins report and devolve a lot of those responsibilities to local authorities, certainly those in rural areas.
When we debated in this House the system of election to the European Parliament, we rightly chose a PR system. I regret that I voted for a closed-list system, because people regret the loss of connection with their own MEP. We must press the Government to return to an open-list system. That would entirely reinvigorate people's wish to vote for their MEP.
7.20 p.m.
Earl Russell: My Lords, I should like to begin with the statistic with which I hope—the clock permitting—to conclude. When public expenditure is decided on, in this country the decision, allocation and accountability is 78 per cent conducted by central government. It will not surprise noble Lords that the second country in the EU on that measure is France. What surprised me was the extent of the gap: the UK, 78 per cent; France, 44 per cent; and in Denmark dropping as low as 29 per cent. The centralisation of the UK is truly exceptional. With respect to the noble Lord, Lord Waddington, even as recently as 100 years ago, it was not so. It has got very much tighter, which is chiefly to do with the growth of one body: Her Majesty's Treasury. It is, like the poor, always with us, I am afraid.
The argument here is about accountability. I had the privilege recently of debating with the right honourable gentleman Mr Oliver Letwin. He began his argument by saying that the state had failed. When he said that, he was speaking about the state as manager. There he had a very strong case. I have listened to my noble friends Lord McNally and Lady Miller of Chilthorne Domer, both of whom

817
described feelings about the state exercising accountability that are entirely and painfully familiar to me as a university teacher.
The state does not know how to teach, how to conduct local government, how to practise medicine, or how to practise law, so in all those areas it relies on one of the heresies of the 20th century: that there is an abstract art called management, independent of the thing to be managed. That is unfortunately not so. In all these areas, the state imposes on various public service professions standards many of which they do not accept. The remark of my noble friend Lady Miller about different models was absolutely crucial. In this regard, change of government makes absolutely no difference; that is why I think that it is Whitehall more than Westminster that we should be discussing.
However, what Mr Letwin did not say is that, if the state has failed as a manager, equally the market has failed as a provider. It is not in the nature of the market to do things that can be done only for non-market objectives; nor is it in its nature to provide a universal service; it is simply against the nature of the beast. Nowadays, the performance of the Post Office clearly illustrates that. For my part, I would not say that I have a Post Office anymore. The nearest is a mile and a half away, in exactly the opposite direction from those shops to which I most usually go. So it is, if not prohibitive, at least severely discouraging. At a time when the Government are so aware of the need for people to take casual exercise to avoid obesity, to close down the post offices to which people used to walk must carry a medical as well as a social cost. I would like to know whether that has been quantified.
We need the state as provider but not the state as manager. How we make that distinction is the really interesting thing. Just over 10 years ago, I wrote a book on academic freedom in which I attempted to lay out the boundaries of what was properly the state's business and what was properly that of the universities. I showed it to an old friend from the Committee of Vice-Chancellors and Principals lobby of its great days in the 1980s. She said, "Yes, this is absolutely fine. But how on earth are you going to make the Treasury pay attention to it?" It was a fair question, because our real enemy is the monopoly power of the Treasury. A monopoly will always, in the end, behave like a monopoly. Power corrupts, and monopoly power is no exception.
The point in our thinking of a commitment to regionalisation is that we will then have 11 bodies, or whatever number it is, capable of competing with each other. The depth of disillusionment among public servants, which I have felt quite strongly, will then be able to have an outlet: in going to serve the region that offers the best terms for doing one's job, according to one's own conscience and in the way that one thinks is most useful. Those regions that respect their professions the most will attract the best staff; therefore they will attract the best results, and, presumably, a number of members of the public. Regions can attract that vital element of competition, together with a local power of raising revenue, where
818
a centralised model such as we have under devolution at present simply cannot do it. It is because we believe in the virtues both of the state as provider and of competition as a defender of standards that we have hit on the model that we have. It will be extremely interesting to see how it develops.
This is not a proposal for public services to be unaccountable. I have been accountable to Whitehall, and, in a different system in the United States, to my own pupils. I found accountability to my own pupils nothing but valuable. When they had a complaint, it was always worth listening to. Sometimes there was a reasonable answer to the complaint, sometimes there was not, but one could not go into the discussion with either assumption firmly in one's mind. I remember one dreadful mistake that they made, but it was the only one. They complained that one person did not have his mind on his lectures. They did not know that his daughter was desperately, painfully ill all term and died in great pain in the seventh week of term. They were quite right; if they had known a little more, I do not think that they would have said what they did. Otherwise, their criticisms were pretty well infallible. I shall never forget the pleasure of taking to one of my colleagues a copy of the Yale Course Critique which said that his lectures were one of the things that went a long way to making the high cost of a Yale education bearable.
So I am not one of those people who believe in unaccountable professionals—very far from it. I married a pupil, to whose academic judgment I was accountable for 40 years. I wish I still were at this moment; I would be doing something much better than I am now. But it must be accountability to an informed audience. It will mean, obviously, a vast amount of shake-up and a great deal of disturbance.
I rather thought that there would be people here who would say that it could not be done. I suspected that they might include the noble Lord, Lord Waddington. When I saw that he had been put in front of me in the speaker's list, I thought that he could not, but I underrated the noble Lord's ingenuity as a debater, which is very great. It was the noble Lord, Lord Waddington, who said that it could not be done. Well, why is it that it can be done in every other country in Europe? I do not believe that the Danes, the Dutch, the Germans, the French and everyone else have administrative talents which are totally denied to the British. So if they can do it, why cannot we?
7.30 p.m.
Lord Brooke of Sutton Mandeville: My Lords, tell it not in Gath nor in the streets of Askelon, but the Motion moved by the noble Lord, Lord McNally, coincides, in principle if not in wording, with a Motion that the Conservative Party would have put down for debate in a fortnight's time if the noble Lord had not anticipated us. We may not share the same bottom line with the noble Lord's party, but we are united with them in our recognition of the significance of the subject. So we thank the noble Lord for providing us with this earlier opportunity, even if a senior Front-Bench opener has taken over what I, in my innocence,

819
believed to be inherently Back-Bench debates on Wednesdays. That must complicate matters for his noble friend who is winding up.
I congratulate too my noble friend Lord Waddington, who is a passionate and doughty fighter for true localism in local government. What united my noble friend with the noble Lord, Lord Rooker, and, incidentally, with myself, during debates on the recent paving Bill was agreement on the Orwellian or even Alice-like quality of legislating for referenda on regional assemblies when some regions had already set up their own regional assemblies—not even calling them shadow regional assemblies—without any prior legislative or statutory underpinning or foundations. It is no wonder that the electorate, even the most mature electorate in the world, has sometimes been confused. That constitutes a poor run-up to referendum campaigns.
It is also a pleasure to follow the noble Earl, Lord Russell, whose oratorical span of subjects and issues is so broad. At the Westminster and Whitehall end of this Motion, his ancestor Lord John Russell was the only Prime Minister to sit in Parliament for my former constituency, or a part of it, while holding the premiership. Within my own party Arthur Balfour was one of my predecessors, but not when he was Prime Minister, and the younger Pitt secured 56 votes in the seat at an election in the 1780s while Prime Minister, but without actually standing in the election himself.
The paving Bill is of course one of the grandparents of this debate. No doubt my noble friend Lord Dixon-Smith, in winding up will remind us of the practical data with which we could not be supplied during the Bill's passage, but which those voting in a referendum will need to know if the proposition is not to become a pig in a poke.
My contribution to this debate will seek to be philosophical rather than overtly polemical. In the far-off days when I attended the Harvard Business School, I recall being taught that a measure of the health of an organisation was how low within it decisions were taken. In government, I can also remember being taught that there was not a natural read-across in that regard from the private corporate sector into the Civil Service, although I cannot help remarking that different departments had different hierarchical levels at which submissions to Ministers were signed off. To at least my untutored eye, it always seemed that the departmental morale was highest in places where the signing off was at the lowest level, not least because it then afforded the maximum number of people a presence at subsequent ministerial discussions.
Although the read-across into local government again is not a perfect one, instinct and intuition tell me that the relationship between government, with a lower case "g", and the Government is likely to be best where those doing the governing are closest to the governed. That is a fortiori truer still where the representatives emerge from the comparative anonymity of a closed-list system, to which the noble Baroness, Lady Miller, alluded.
820
Where I live in south-west Wiltshire, parish councils thrive despite the recent brouhaha about the declaration of interests, and are much better reported in the local press than are that other index of local life—village cricket matches. I acknowledge that the diocese of Salisbury has a high incidence within its own parochial system of team ministries, but in a rural environment that degree of collaboration across parish boundaries is no bad thing. Local government within a county can survive the bisection of parliamentary constituencies.
The recent European elections are a useful preface to the referenda. We had a debate shortly after I entered your Lordships' House on the desirability of regular briefing of the electorate on European developments. I remember arguing that one of the problems of building the European cathedral, in de Gaulle's metaphor, was that, mutatis mutandis, the Dean and Chapter had not kept those in the parish pews decently informed about either their plans or, indeed, what was happening. To borrow an analogy from D-day, they missed Montgomery's point that the morale of troops is better when the maximum amount of information is shared with them. Elites and establishments, elsewhere on the Continent as well as here, have been parsimonious, even patronising, in that regard. "Not for you to bother your little heads", they might imply. In these elections, continent-wide, they have paid a price for that attitude.
Of course, I acknowledge that UKIP enlivened the election, not least for the media, and its very simplisticness played well against the prevailing uncertainty. In the kingdom of the blind, the one-eyed man is king. But I am less concerned about UKIP than I am about the BNP. The comparison between the BNP vote in the local elections, where it stood only selectively, and the vote that it secured in the European elections suggests that voting for an extremist party—qua party—may be an easier decision for voters to take than voting for a particular identified individual. Certainly, lists are the enemy of properly representative democracy, and that has implications for regional assembly elections, if there were to be such, when representatives would already be much further from their electors.
The jury is now out on postal votes. They are now the subject for the Electoral Commission review. I shall simply await the outcome of that. But clearly something went wrong. I sincerely hope that the Government will never again diminish the authority of the Electoral Commission, which is a sensible and worthwhile innovative body, by riding so roughshod over it as they did on postal votes, where patently more worth rested in the commission's caution than in the Government's recklessness. The elections threw up a good quota of fatuous statements, but none more so than Mr Hain's claim that the Government had afforded more people the opportunity to vote. What did he think that one man one vote meant before the Royal Mail's entry into the process?
But the Motion comes back to regional assemblies. There, I hope that we shall take a long, hard look at London's powers and what they have achieved. I have alluded before in your Lordships' House to Glenda

821
Jackson's ragbag of strategies in the Greater London Authority Act, which were presumably included because it was supposed to be a strategic authority, and her assertion that under the Act they must be reconciled to meet its terms. She has thus spawned an industry of conflict reconciliation and bureaucratic paper shuffling, but there are no hard results that one can detect from that process of reconciling strategies.
If there are worthwhile virtues in regional government—I realise that some of your Lordships' House perhaps on my side would deny any—they lie in transport and spatial strategy. While I acknowledge central institutions must retain some control of transport policy in the capital, a greater degree of regional authority, especially where it relates to interchanges with the general network, would be to the good. Here, in this particular case, a clear means of resolving conflicting strategies between the Mayor and Transport for London on the one hand and the Strategic Rail Authority on the other, is important.
In principle, transfer of many powers from the centre is generally to the good. We know that the transfer is hindered by central government's distrust of what local government might do with it, but trust the local authorities is as pertinent an injunction as trust the universities or, more largely, trust the people.
Outside your Lordships' House, I might run into more criticism within my own party for my belief that our own local government policies as a party were better when they were largely formulated by those who had profound personal local government experience. Within your Lordships' House, our Front-Bench spokesmen on local government and environmental matters, including my noble friend Lord Dixon-Smith, have just such experience, both in a major county council and in a major local—indeed royal—borough. In my view, they are much the better for that.
I greatly look forward to my noble friend's wind up tonight and, in bipartisan terms suited to your Lordships' House, I look forward to the Minister's as well. He has had a lot of practice in these debates in recent weeks.
7.40 p.m.
Lord Livsey of Talgarth: My Lords, I am pleased to be able to speak in this debate about moving power from Westminster and Whitehall to democratically elected regional assemblies. Like many Welshmen, I have moved around the country during my career. I lived in the north-east of England during the time of the reign of T Dan Smith and I lived in the south-west of England during a time when lots of other interesting political shenanigans were going on. The Minister and his department are dealing with devolution for England, and I believe there is enormous scope for that, certainly in the areas in which I have lived.
I want to follow briefly the foray made by the noble Lord, Lord Morgan, into Welsh politics, although I realise that the Minister does not have authority in that respect. Nonetheless, the noble Lord, Lord Morgan,
822
made the point about the Department for Constitutional Affairs and the issue of the reform of our constitution. That is a schism at the present time.
We should have a separate debate in this House on the Richard commission. I believe that the noble Lord, Lord Williams of Elvel, has applied for such a debate and I hope that the Government will be generous enough with their time to enable it to take place. There are many lessons for regionalism throughout England and Wales when we examine what was said by the Richard commission. I shall allude to one or two of its recommendations and its discussions on the relationship between Westminster and Whitehall with the Welsh Assembly, because some of those comments on Westminster and Whitehall's attitude to Wales apply equally as well to the regions of England.
The reason I am addressing the subject of the Richard commission is that power, so far as Wales is concerned, lies here in Parliament, and we are hamstrung so long as we have only secondary legislative powers. That is demonstrated in reality by the fact that during the first fours years of the operation of the Welsh Assembly Wales took only one primary legislative Bill of its own through Westminster per year. That was the case until recently, when the Bill for a children's commissioner for Wales blazed a trail, along with the NHS (Wales) Bill, as well as clauses in education and local government Bills which apply to both England and Wales. That illustrates some of the points made by the noble Lord, Lord Morgan.
On Whitehall and Westminster and its relationship with the Welsh Assembly, the Richard commission report makes comments that I am sure would be echoed if applied to many regions of England:
"The Assembly Government benefits from close engagement with Whitehall departments in developing policy and legislation affecting Wales. Goodwill and co-operation are important in making the relationship work. However, the Assembly Government is the junior partner in the relationship and making different arrangements for Wales is a complication for hard-pressed central departments which can cause delay even when there is no objection to giving the Assembly Government what it wants".
If we were to exchange a particular region of England for the words "Assembly Government", we might come to a similar conclusion.
On the accountability of the Welsh Assembly, in particular in relation to Parliament, the report states:
"There is a fundamental problem of split accountability—policies are proposed by the Assembly Government in Wales but are scrutinised and adopted by different politicians in Westminster".
That is a crucial criticism which can be mirrored by the state of the British constitution as it stands at the moment.
The Richard commission has a vision for the role of the Assembly when it states:
"The Assembly is the democratically elected representative body for the whole of Wales. The Welsh Assembly Government should be able to formulate policies within clearly defined fields and should have the power to implement all stages for effective delivery, in partnership with the UK Government and other stakeholders. The Assembly Government should be able to set its

823
own priorities and timetables for action. It should be accountable to the people of Wales through the elected Assembly for its policies and their implementation".
Without making a meal of the Richard commission report, and before we have a full debate on its conclusions, I want to say only that two of the most important recommendations were for the Welsh Assembly to have primary legislative powers and, indeed, for it to be elected by the single transferable vote. Pungent criticism was made of the present closed list system of regional members because it produces a two-tier representation in the Assembly. That is a lesson for elected assemblies throughout the United Kingdom.
The proposals set out in the Richard commission report would mirror in Wales the legislative arrangements for the Scottish Parliament, a point made by the noble Lord, Lord Morgan. Welsh MPs should take a leaf out of the book of their Scottish colleagues, where the Sewel convention has given Scots MPs substantial influence over legislation with the mutual agreement of the Scottish Parliament. That is in addition to their substantial influence in Westminster on Treasury, foreign affairs, defence and many other matters. I believe that Welsh Labour MPs in particular have little to fear. It is certainly my own and my party's view that the Richard reforms should go ahead without delay. I hope that a constructive debate on the subject will be held in this House very soon.
7.47 p.m.
Lord Greaves: My Lords, I start by declaring my interest as an elected member of Pendle Borough Council.
Noble Lords: Hear, hear!
Lord Greaves: Whether my noble friends will cheer what else I am going to say, I am not sure, but I thank them for that.
My noble friend Lady Miller of Chilthorne Domer repeated the general view that turnouts for local elections have declined. That is true if you look at a particular period over the 1990s and into the early part of this decade. As I said at Second Reading of the regional elections pilots Bill, that is not necessarily true if you look at a longer timescale. It looks as though turnouts bottomed over the past two years and perhaps were about to rise. What we saw on Thursday, quite independent of the postal vote pilots that took place, was an increase in turnout for local elections.
That rise may have been influenced by the fact that the elections were held on the same day as the European elections. It is possible that some people who would otherwise not have voted in either of the elections may have decided to vote in both because they wanted to vote in one. Nevertheless, it is clear that the general turnout for the local elections, independent of the postal pilots, rose perhaps by around 10 per cent. That is to be applauded.
824
It is clear that there were three reasons for the increase in turnout in different parts of the country. First, there was increased interest in the European elections. Where a freestanding European election vote was held, and with no postal pilot, turnout went up. Secondly, turnout rose more steeply where local elections were held on top of the European election and, thirdly, it rose even more where an all-postal pilot took place. We shall look at all the figures with great interest and no doubt we shall have an opportunity to talk about the all-postal pilots and what is to happen in the future. I certainly have a store of nice horror stories about them that we picked up over the past few weeks.
I do not want to talk about that today but, using the north-west as an example, I should like to talk about the relationship between turnout and the size of the local authorities. That is important, in view of the proposals for local government reorganisation, should people in the region vote for a regional assembly.
Looking at the five counties, the turnout in Cheshire was highest at 44.2 per cent. Almost all of them held local elections there, which was one factor. The average size of the local authority at district level is approximately 96,000. In Lancashire, turnout was 43.2 per cent, with the average size of local authority being 77,700. Five of the 14 districts did not have local elections. In Cumbria, turnout was 42.6 per cent, the average local authority is 63,500, and half of them did not have local elections. All those areas had relatively high turnouts of between 42 and 44.5 per cent.
In Greater Manchester, where the average size of local authority is 188,500, the turnout was down to 40 per cent, despite the fact that they all had local elections. In Merseyside, where the average size of authority is 205,600, the turnout was down to 38.3 per cent.
Those figures show a clear correlation between the size of the local authority and turnout. Why is this? It is not particularly the size of the authority that people are concerned about but the size of the ward in which they are voting and how close the councillors who represent them are to the people living in those areas.
Within the shire districts, on average, one councillor represents 1,000 to 1,500 people. In the metropolitan districts, it is four, five, six, seven times that number. People are far less likely to know their councillors and the candidates who are trying to get elected. A Government who are on record weekly as saying that they want to increase turnout in elections as one of the fundamental improvements they want to make to our democratic system must take this on board: the more local the people or the councillors who stand for election, the higher will be the turnout of people who will vote for them. My district in Pendle had a turnout of 51 per cent which was the highest in the region, and we are quite proud of that because we, too, believe that this is important.
Why am I raising this in connection with a debate on regional devolution? The problem is that the Government's proposals for regional assemblies—I hesitate to use the word "devolution", because very little, if any, devolution is involved in the proposals—are tied to a reorganisation of local government. I

825
cannot find any polite words to describe the proposals for my part of Lancashire. They are ludicrous. We are to be given the choice of two huge, monster local authorities, in which, inevitably, even if the size of the council goes up to 80 or 90 members, each councillor will have to represent far more people than is currently the case.
We are being offered a choice of a unitary county council for the whole of Lancashire, from Carnforth and the Arnside peninsula in the north to west Lancashire, Ormskirk, Skelmersdale, which is a Liverpool suburb, and up into the hills where I live in east Lancashire. We are being offered one local authority for that whole area, representing 876,169 electors and a population of about 1.1 million. If somebody tells me that that is local government, I tell them they do not know the meaning of the words in the English language. It is the abolition of local government as we have known it, and this council would be responsible for most local services.
There is an alternative. We are to be offered the amalgamation of Burnley, Pendle, Rossendale and the Ribble Valley, with a mere 216,029 electors. That is larger than all but four of the existing metropolitan districts in the north-west, apart from Liverpool, Manchester and two other big ones—an area which consists of lots of medium-sized and small towns and huge rural areas. The noble Lord, Lord Waddington, knows that very well, as he has lived there for most of his life.
We will have a huge authority, extending from the borders of Preston in the west right up into the hills on the borders of Lancashire and from way up in the Bowland fells in the north down to the edge of Greater Manchester in Rossendale. This is a ludicrous proposal—everybody locally thinks it is a ludicrous proposal. I do not know who wanted it, but the Electoral Commission came up with it. Here we have, out of the blue, a choice between two unitary authorities, both of which, in my judgment—and, I believe, in the judgment of the vast majority of people who live in our part of the world—are quite unacceptable. I believe that this is one reason why the regional referendum in the north-west is extremely unlikely to be won by the Government on their present proposals.
We are told that it is all to do with an obsession with size. The Boundary Commission was told that existing metropolitan authorities, let alone existing unitaries such as Hartlepool, and the Welsh unitaries, which are much smaller than this, are out of the question because the Deputy Prime Minister issued advice and guidance, and said that there had to be these huge, monster, Frankenstein bodies. That may or may not be the case, but I believe that if the Deputy Prime Minister did this, he has shot himself in the foot.
Many of us in the north-west who are passionate about regional government would campaign with huge enthusiasm and gusto for something remotely like the Welsh model described by the noble Lord, Lord Morgan. But we are not being offered the Welsh model. The noble Lord said that because Wales did not
826
have anything like the powers of Scotland, it was an anomaly. The north-west is not even being offered anything like the powers of London, where the Mayor has considerable authority over all kinds of things. We are being offered a talking shop, and what few powers it has will largely be moved upwards from local government and not downwards from Westminster. There are other problems with its size and how representative it would be, but we could live with those if there were not these other problems.
The noble Lord, Lord Waddington, asked whether people in Solway and Bootle—people on the Solway Firth and people on the Bootle harbour front, no doubt—think they are in the same region. Territorial areas always have problems at the margins. Some of the great conflicts and wars in Europe have been over fairly obscure places, such as Alsace and Lorraine and Schleswig-Holstein. That is always a problem.
I believe that the north-west is a region and deserves regional government. The current system works fairly well and achieves turnout of 40, 45 and 50 per cent in their local elections. The Government are proposing to tear up the local government map and go for something that is pretty feeble and hopeless.
I said all along that I would not make up my mind how I would vote in the referendum until after last week's elections. It will require a very great improvement in the Government's proposals to get me to vote "yes". At the moment, you can put me down as a "no". What is being proposed in the north-west is not worth a kettle of fish. The Government will destroy a lot of active, functioning, democratic local government in order to achieve it, and I am afraid that I cannot stomach that.
7.59 p.m.
Lord Newby: My Lords, there has been agreement in this extremely interesting debate on at least one point—namely, the need for greater devolution of power from Westminster. Having said that, the question then arises that the noble Lord, Lord Waddington, posed directly, of where this devolution should go. Should it go to local government or to the regions of England? On these Benches, we believe that it should go to both.
As far as local government is concerned, there are problems of role, powers and funding. My noble friend Lady Miller of Chilthorne Domer dealt very well with the problems of the powers of local government. The internalising of the prefecture model is a marvellous analogy that I will take with me from this debate. As far as funding is concerned, the noble Earl, Lord Russell, made the key point that if a quarter or less of the funding for local government is set by local government, the scope for that local government to exercise discretion is severely curtailed. However, I will spend most of my time this evening talking about the issue of regional government because that is the area where the bulk of the debate is likely to be over the next few months.
I start with the practical experience that we have of regional government—or national government, as they would call it—in Scotland and Wales. In Wales, one remembers that the referendum decision to establish an Assembly was only very narrowly passed.

827
What has happened since? First, it is clear that, even with the limited powers that the Assembly has, a whole raft of measures has been introduced in Wales because they were wanted in Wales and Wales is different from England. The Richard commission refers to two—the nationwide free bus passes for the elderly and disabled scheme and free prescriptions, but there are many more. The Assembly has been able to exercise its discretion.
Secondly—and again the Richard commission brings this out—if you talk to people in Wales who interact with the Government from outside the Government about whether they would prefer to work with the Welsh Office or the Assembly, there is near unanimity that they would prefer to work with the Assembly because it is more responsive to what they say. It is also interesting and instructive that the commission found a broad consensus not for turning back the clock, but for moving forward to deal with some of the constraints on self-government in Wales by expanding the powers of the Assembly.
I have some very limited direct experience of the views of people in Scotland on devolution having attended last week a conference on youth crime where I was able to talk to representatives of local authorities and NGOs in Scotland that are grappling with that issue. Again, there was unanimity that it was better dealing with the Scottish Executive than it had been dealing with the Scottish Office. The words "more responsive" and "more innovative" were used.
Those comments begin to address one of the major criticisms of devolution to the English regions—the question of adding a layer of bureaucracy. There was always an identifiable bureaucracy in Scotland and Wales—the Scottish Office and the Welsh Office—which had plaques on their walls and Ministers who exercised the bureaucracy. However, the truth is that there has always been bureaucracy at regional level in England—now called the Government Offices for the Regions, which in their previous incarnations were the departments and their outposts. However, these immensely powerful bodies, which the noble Lord, Lord Waddington, overlooked in his contribution, are unknown to the people of the regions, who do not know that they exist, far less how powerful they are.
Other criticisms of regional government, some of which were made tonight, also need addressing. Understandably, one might ask whether this will cost a vast amount more than the current system. In one sense, it will clearly cost more because there will be a new layer of political oversight and scrutiny. The Richard commission makes that clear. However, as the inaugural chairman of one of the northern RDAs said to me when I raised this question with him some time ago, the public policy outputs in his region would be significantly improved if the region had greater discretion on how it spent government money. Therefore, significant efficiency savings will be made that are lost at the moment because one has a national, rigid implementation of policy established by the gentleman in Whitehall—it is nearly always a gentleman—who certainly still believes that he knows best.
828
The proposed powers of the assemblies are the weak feature of the Government's position. The Government have got into a real intellectual muddle in the way that they have looked at the powers of the various bodies that have been established. One can begin to understand, at least in part, the difference between the powers given to Scotland and Wales. The structure that has been set up and the powers that have been given to London almost defy logic. I disagree with the noble Lord, Lord Brooke, who questioned what had been achieved by the Mayor, because we do have the congestion charge which we would not have had otherwise and which, for good or ill, is a major public policy development.
Lord Brooke of Sutton Mandeville: My Lords, I was not arguing about specific things such as the congestion charge, but about the series of strategies that litter the Bill and still have to be resolved and reconciled when, in my view, they do not produce any benefit.
Lord Newby: My Lords, I agree that the power to write strategies, which is one of the major powers that we have in London and is envisaged for the English regions, is far more likely to cause confusion. However, in the cases of London and the English regions, that is because not enough power has been devolved. As we approach the referenda, the question of powers is first, "Is half a loaf better than no bread?", and secondly, "Will the power given in the first stage be the final level of power? Even the White Paper stated that there are likely to be further proposals for the decentralisation of responsibilities to assemblies as time goes on. The Richard commission and the push for greater power in Wales are examples of how one can expect a certain dynamism in the development of these assemblies. Although I barely dare mention it at this stage, the analogy with the European Parliament seems relevant. That body had virtually no powers when it was established, but it now has a lot o powers. Why is that? Because the case for giving it greater powers has been demonstrated over decades.
We also need to work hard to demonstrate the advantages that we hope might accrue from regional assemblies, because they are not fully understood. I do not have time to deal with all of them, but there is certainly a strong case for giving the regions authority to tackle the problem of economic disparity, which, under this Government, has got worse rather than better. Figures out today show that since 1997 earnings growth in the north-east has been 22 per cent while in London it has been 80 per cent. Is Whitehall grappling with that issue? Is there a strong regional policy to deal with it? No, there is not. Unless there are politicians in the regions whose careers depend on doing rather better than that, we shall not see any significant diminution in the disparities in regional economic performance.
In the next month we shall hear the Government's thoughts about the timing of referenda and the powers that will be given to regional assemblies. I believe that a draft Bill might be forthcoming in July. I urge the Minister, as many noble Lords have this evening, to

829
strengthen the powers originally considered for the assemblies. A number of areas have been raised this evening: transport is an obvious one, learning and skills is another, and there are many others. I agree with my noble friend Lord Greaves to the extent that the ability to win a referendum in the north-west or anywhere else will be enhanced if we can demonstrate to the electorate and to those who might stand that these bodies will have significant powers.
As for the region that I know best, Yorkshire and the Humber, at least it looks as though the debate will have a keen political edge. Yesterday, Paul Sykes, who has been funding and supporting UKIP, issued a wonderful statement about his attitude to the referendum for a regional assembly in Yorkshire. He said:
"Where do we now turn our attention?"—
meaning UKIP.
"To regional assemblies. To have a Brussels-inspired assembly governing Yorkshire would be the low point in my life and I will fight tooth and nail to stop this being imposed on our region. Surely, we have enough government from Brussels without these regions that are basically going to be the puppets of Brussels. For anyone to say that these have been dreamt up in our nation, they are fools and have been misled".
I am clearly a fool and, I hope, a happy fool. If Mr Sykes puts in the maximum that he can under the legislation, he will be able to spend some £590,000 of his own money from himself and UKIP on the campaign. That and his statement suggest that there will be a very strong political edge to the campaign in Yorkshire. I urge that the Government, when we enter the lists on this matter, do so with the same kind of commitment that we are seeing from some of the opponents of regional assemblies and that they do not adopt the milk and water approach to campaigns that we have seen on Europe.
In recent days and months there has been much soul-searching about the state of politics and political life in Britain. There is clearly no single solution, but one component must be to revive local government by enhancing its role and its ability to raise its own funds and to give people in the regions a direct voice and real power over the delivery of public policy objectives.
8.12 p.m.
Lord Dixon-Smith: My Lords, like all noble Lords I thank the noble Lord, Lord McNally, for introducing this debate on devolution. While I am on my feet at this stage, lest I forget later, I thank my noble friends Lord Waddington and Lord Brooke of Sutton Mandeville for their contributions. I shall pick up some of the points made in the debate, but I have enjoyed listening to it so much that I may miss some. I certainly will not do it justice.
There is a fortunate coincidence in the timing of this debate, in that it comes two days before the inter-governmental conference in Europe, dealing with the European constitution, which deals with precisely parallel issues to these—that is, the division of responsibilities between levels of government. I do not know whether one can devolve powers upwards; I suppose that probably one cannot and that there must be
830
another word for it. But behind the question lies the issue of the nature and character of a nation state and what makes a nation state, which includes control of defence, finances, social affairs, the legal system, and so on. We do not need to have the argument. But the argument is there and I hope that, when the Prime Minister goes to the intergovernmental conference, he will remember it. I hope that he will also remember it when he comes back because that debate is exactly paralleled by this debate tonight. We are talking about what powers are appropriate for local government and the nature and character we expect of local government. It is a precise parallel.
With the exception of the possible regional structure—I put it that way at the moment as there is no absolute certainty about how the coming months will work out—English local authorities have a very long history. Counties have existed for a thousand years or more. Of course, there has been increasing legislative change over that time, particularly over the last century. It is most depressing to go into a chief executive's office and look at the shelves of books of laws that affect county councils. There are about two books that cover the first 25 years of the last century; about 20 that cover the second 25 years; about 40 that cover the third 25 years; and since that time one needs a library to contain the legislation that has been passed. That says something about the way we deal with things.
District and unitary authorities are the successors of the old town councillors, with similar long histories. Below that, there are still town councils, local councils and parish councils, which I have always regarded as the foundations of democratic local government in this country. All of them were centres of civic pride. They were centres of community and social development long before modern government regulated them into subservience. If devolution means anything, it means that we must begin to return to that state of affairs.
We know what the situation is now. There is law, statutory regulation and statutory guidance, with which one must comply. There is guidance and statutory plans, with which one must comply. If one does not, one does not get the money. One has to comply with best value. There is comprehensive performance assessment that every local authority has to go through. If it does not, or it does not succeed, it is downgraded and loses a degree of financial independence. That is estimated to cost about £1 billion. It is a totally non-productive expenditure in the interests of the general electorate who local authorities serve. Local authorities have to do what Whitehall wants in the assessment. They have to comply with Whitehall's view of what local government must do.
This is a far cry from the early days of the Audit Commission, when we had comparative statistics. Every local authority wanted to improve its performance in those comparative statistics. This huge machinery of government on top was not needed. It is no wonder that the public increasingly see local government as the agent of the centre and become increasingly bored with what is going on. That is where we are. Civic pride has

831
diminished and many people are reluctant to come forward as candidates for local authorities. The Government's solution to this is more of the same.
I must spend a little time on the regional issue as so many noble Lords have mentioned it. The noble Lord, Lord Morgan, rightly argued in favour of Wales. It would be unpatriotic of him not to do so. He welcomed the Richards report, which advocates even greater power for the Welsh Assembly in order to parallel Scotland. But that is not on offer to England, as the noble Lord, Lord Greaves, has already pointed out. The noble Lord, Lord Newby, talked about the power of government offices for the regions. The powers that they have are not on offer to the regional assemblies. Those offices have clear remits to carry out government policy. The way the Government arc establishing the regional assemblies, if they eventually get off the ground, means that they will have to do the same thing. But that should not be the purpose. They should have independence.
The noble Earl, Lord Russell, seemed to think that competition between regional assemblies could be more effective than the Treasury when it came to winning funds. I find that argument somewhat naïve because I think that the Treasury will win. If we are to have devolution to local government and regional assemblies, if they exist, then the financial responsibility which should accompany it can only come if, and only if, the Treasury itself is prepared to cede some of its authority.
Earl Russell: My Lords, perhaps I may clarify a little what I said. I was perhaps indistinct. I was referring not just to the quantity of money, but to the degree of control and freedom from Treasury interference in its detailed allocation.
Lord Dixon-Smith: My Lords, I am grateful for the qualification, but I do not hedge my remarks. The problem for the noble Lord, Lord Morgan, in particular is that he needs to remember that most of the English regions are larger than Wales and Scotland. To argue that Wales should have primary legislative powers and then to expect English regions to be established on a chimera of authority is again surprisingly naïve. The grass is always greener on the other side of the fence.
Lord Morgan: My Lords, I am sorry to interrupt the noble Lord, but he was referring to my argument which he misunderstood. The naivety was on his side. My view was that devolution and regionalisation is a cumulative process. Just as we have a process of change and are on the cusp of change in Wales, I imagine that in future we shall be on the cusp of change in the English regions also. It will take a long time, because there is a long transitional process.
Lord Dixon-Smith: My Lords, I accept that it might be a long process, but I am not sure that I am prepared to accept that the United Kingdom Parliament is prepared to cede what it sees as most of its authority because it is largely an English Parliament. There are huge constitutional difficulties which could lead, as I believe my noble friend Lord Waddington, said, to an
832
England of the regions, a Commission in Brussels, and a United Kingdom Parliament that has virtually nothing to do. We need to think very carefully on that.
I turn now to the powers of regional assemblies. The noble Lord, Lord Greaves, has dealt with the structural problems. The powers of regional assemblies are being established specifically so that they comply with government policy. That is not devolution, but agency. That should not be happening. If regional assemblies are established then the transitional costs of the structural change to be made, if the Government are to have their way, have been estimated variously, depending on the system, at between £1 billion and £3.5 billion. That is wholly unproductive money giving no service to the public at all and merely fulfilling the whim of the government of the day. I cannot accept that that is sensible. I do not believe that it is a reasonable thing to do.
If we believe in devolution, and I do, we should begin by making the existing system of local government work. I can understand the Minister and his colleagues in another place being frightened of that because most of the badly performing local authorities in the country are controlled by members of his party. That is an unfortunate reality which he has to live with. The reality is that if we believe in local government and devolution let us make the system that we have work properly. Let us get the authority back down to the local counties and to the local communities where it properly belongs. That will re-stimulate interest. Only after we have that right should we begin to discuss the question of some other structure which might or might not work if it were given proper authority.
8.25 p.m.
Lord Rooker: My Lords, this has been a really interesting debate with some helpful and useful speeches. I had a prepared speech which covered most of the points that were raised. However, I have written my own speech as the debate progressed, although writing my own speeches sometimes gets me into trouble.
I want to reply to this debate with honesty and clarity. I apologise that I shall not discuss Wales. I say that with due respect to my noble friend Lord Morgan and to the noble Lord, Lord Livsey. I have nothing in my brief on Wales. I might get into trouble if I told the Deputy Prime Minister that there was a consensus that regional government should be passed to the Department for Constitutional Affairs. However, I understand why that point was raised.
I shall start with some of the points that I planned to make and then I promise that I will respond to some of the really useful points that were raised in the debate. First, I congratulate the noble Lord, Lord Mc Nally, on securing the debate. He is right about its timing. It is much better to hold the debate today when we can have the rational reasonable debate that we would not have been able to have had it taken place last Wednesday. I fully accept that. The noble Lord very kindly batted the ball back to me that I tossed to him during the intervention. I shall do my best to respond to that.

833
The Government have taken substantial steps to reverse the trend of what I think everyone accepts has been excessive centralisation in the way the country has been run over the years. However, we have tried to do that with a degree of consensus and consultation rather than abolishing local authorities and county councils willy-nilly without any consultation whatever, as happened in the 1980s and 1990s. We have gone about it in a different way. We think that our record is strong and demonstrates how seriously we have addressed the genuine devolution of power from Westminster and Whitehall to the rest of the country.
We have devolved some but not all powers to Scotland and Wales. We have restored city-wide government to London. We cannot now be accused of being the only major capital city without city-wide government. We are now offering the chance of devolved power to the English regions. I was delighted to hear noble Lords speak persuasively in support of devolution to the regions, although the noble Lord, Lord Waddington, is dead against that. I take the point that the noble Lord made about city councils. We want to continue to devolve appropriate powers from the centre save in one area which I shall discuss in a moment. The next few weeks will be crucial. The noble Lord, Lord Greaves, will not have the chance to vote no in the referendum unless he is prepared to support orders in this House that will allow the referendum to be held in the first place. We are trying to let the people decide. I hope that people will not stand in the way of the referendum. As I believe the noble Lord, Lord Newby, said, half a loaf is better than no loaf. Here is a measure that we can build on, as I think was said during the passage of the relevant legislation. It will not be too long before the relevant date is announced. I have no information about that but it must be imminent. It will certainly be announced before the Summer Recess.
The vast majority of the functions that we transfer to elected regional assemblies are currently carried out by central government and their agencies in the region or by unelected public bodies. That is why I make the point regarding no new powers. We have not invented powers; it is a question of transferring powers. Those powers will make a difference to vital areas such as job creation, planning in the sense of regional spatial strategies but not planning application decisions, housing, transport, culture, the environment and the Fire and Rescue Service. The Fire and Rescue Service is the only exception to the principle that assemblies' functions will be devolved from the centre and not taken up from local level. That is because we believe that the challenges of resilience in the face of terrorism require broader co-ordination of the Fire and Rescue Service. We are discussing that on the Bill that is currently before the House.
The elected regional assemblies will be elected by people in the region and accountable to them. This will democratise an existing layer of regional governance that is unelected at the present time. We can argue about the degree of involvement, but there is no democracy in the
834
regional quangos and the government regional offices at the moment. Our policies will give the public an opportunity to help to shape their local government. In answer to one key point criticising the system, these elected assemblies will be elected by proportional representation.
I am pleased to say that not one elected body that has been set up by the Labour Government since 1997—with the approval of Parliament—has used first past the post. The system is so discredited that the Government have not felt able to push first past the post for any of these new bodies. It is fair to say that we could not export first past the post to one emerging democracy among the former communist countries in eastern Europe, or South Africa. Unfortunately, I speak with the zeal of the convert, so I have to shut up at that point. That is one of the great problems when you have been converted from one system to another: you can go overboard. But I think I have made the point that PR would be a good exercise even for the other place at some time.
Our vision for local government is twofold. In the short term we are working to give local authorities more flexibility and opportunity. In the longer term we are looking for a more holistic approach, with the new financial arrangements which have come into force in this financial year: the new borrowing powers, new freedoms and flexibilities and a substantial increase in the powers to local authorities. We are trying to decrease unnecessary bureaucracy for all local authorities by imposing less inspection, less ring-fencing and far fewer plans. There is very little ring-fencing of finance from the centre now. We are giving them more power to borrow and invest and deregulating consent requirements. We are giving them more financial autonomy, with the power to charge for discretionary services, enabling them to retain income from some fixed penalty notices, fines and other incomes.
We are moving to give power to trade to fair, good and excellent authorities, and providing further freedoms on the use of income from fixed penalty notices. We have also established the Innovation Forum for Excellent Authorities. This facilitates improved and more substantive dialogue between central and local government on improved delivery of shared national and local priorities. Already, the forum has initiated projects in six key areas: reducing hospital admissions for older people; early years and school improvement; community safety; integrated public services; local governance and partnership arrangements; rationalising local targets. It has established pilots to improve these services.
This will better equip the local strategic partnerships—which are an innovation—to be more effective in meeting national and local priorities, and pooling budgets with joint commissioning of services, achieving a long-term vision for those local authority areas.
Looking further ahead, we are developing a vision and strategic approach to local government for the next five to 10 years. We have published a document today. It is only a short document, but it is our contribution to starting that debate, setting out key issues and our overall

835
approach. This strategy project will recognise the importance of strong local government, which we want, as weak local government has been a problem.
Key issues that impact on local government need to be considered in a coherent and holistic way, as part of an overall vision and strategy with a longer-term view. This includes the way local government will interact with the new regional structures. The strategy project will start a long-term, 10-year vision of what outcomes we are seeking; set out a clearer role for local councils in securing these outcomes, based on their democratic responsibility for leading and governing local places; link this to the development of key issues across central government; develop a new settlement between local and central government to deliver this, providing clearer responsibility and accountability on all sides. I agree very much with the point the noble Lord, Lord Brooke, made about where the decisions are made.
The regional assembly referendums are a chance for a whole tier of government to be democratised by consent. We have delivered devolved governments to the Scots, the Welsh and to the people of London, and now the other people of England can choose and have a voice. It is the decision of the people but they cannot make that decision unless this House—and the other House, of course—actually passes the necessary orders to allow the referendums to take place later in the year. By the time the referendums take place, and hopefully by the time the orders come before this House, there will be much more information available on the powers, the sequencing and maybe the draft legislation which we are using our best endeavours to produce.
I think I have answered the point made by the noble Lord, Lord Waddington. I am not going to get into a debate by giving way, because I do not have time. But I stand by everything I said. I know that people are using the odd sentence here and there a bit out of context. However, it is clear that the transfer of powers to the regional assemblies—to democratise powers that already exist and are being used by undemocratic bodies—means that there are no new powers. The key point is the way in which the democratic control of those powers is exercised.
The budget is another issue. The block grant—the block sum of money—will be for the regional assemblies to divide up as they choose. It will fund a range of bodies including the regional development agencies and others. At the moment that is done behind closed doors. The block will be the same regardless of whether the region has an elected body. We have said that. I do not mind how my words are used—that is part of the political knockabout—but that is the position and it has to be made absolutely clear.
The noble Baroness, Lady Miller, raised the issue of list systems. My personal view is that open lists are better than closed ones. I think that people should have a greater choice when they are voting on a list system. If you are going to have a PR system in large areas, you cannot necessarily use additional member systems. If you start going down the road of list systems, one issue has to be considered from the
836
democratic point of view: the fact that putting crosses or numbers against people's names concentrates the mind.
The point was made in an earlier speech that people seemed to have a greater propensity to put a cross against the BNP last week because they were not putting their mark against the name of a person. I think that that should be addressed. There is no government policy on it because the decision was made to go with closed lists. However, we are experimenting and it is very early days. We have not used PR and these kinds of electoral systems in this country for long. The seven years since those systems were introduced is but a blip on the timescale.
The noble Earl, Lord Russell, made a very powerful speech. I will draw all noble Lords' speeches to the attention of Ministers, but I will do so particularly in the case of the noble Earl's speech. He contrasted expenditure control in France with that in the UK: 78 per cent in the UK against 44 per cent in France. I have another figure which I have carried round with me since I came across it some years ago when looking at the connection between local councillors and the people. Each MP in the House of Commons represents more or less the same number of people based on a quota boundary system. It is 69,000, although it can vary by plus or minus 10 per cent. There is nothing like that in local government where ward sizes vary enormously.
In France, roughly one in 100 adults is elected in some form to the government structure. In this country, one in 1,600 adults is elected. So the overall figures show that, compared with France, people in this country are 16 times more remote from local government and administration. So we should ask ourselves why people are not as interested in getting involved in local government and decisions here as they clearly are in France, where they have more control over expenditure, as was indicated in the noble Earl's figures.
I am not replying to the speeches in any particular order. The noble Lord, Lord Brooke, said that it is quite good to use the lowest level of decision-making. I think that that is true for every organisation, including commercial organisations and, as the noble Earl said, universities. I am sure that it is true also in local government.
The noble Lord, Lord Greaves, dealt with turnout based on council size. I do not have any figures on that, but I certainly hope that the Electoral Commission will consider it in its analysis of what happened last week. Did the postal votes really have a dramatic effect? I do not know. I do not have any figures on that at the moment. Clearly a higher percentage of people voted, but perhaps the percentage was not as high as one would expect based on the experience of other pilots. As we know, that was not the first postal voting pilot; there have been others. I certainly hope that the noble Lord's analysis, based on council size, turnout and whether the elections were for local government, will receive attention.

837
I should add that Paul Sykes can spend all the money he likes, but if UKIP goes round telling lies about the referenda and the regions, it is for all the other democratic parties to nail that lie-making. That is the fact. These regional assemblies are not the creatures of Brussels. The boundaries were not drawn up in Brussels; they were drawn up by a previous Tory government in this country—for other purposes, I accept, but we have not changed the boundaries.
So if Paul Sykes and UKIP start telling lies, as the signs are that they will, they must be nailed by the Labour Party, the Liberal Democrats, the Conservative Party, Plaid Cymru, the Scottish National Party—all legitimate democratic parties. I know that we have political banter between us, but UKIP must be done for telling porkies on a grand scale if that is what it starts doing. It will try to use money, along with lies, to swing the election. That is as bold as I can be on that; I do not think that I can sugar-coat it any further; that is where we are.
On the proposal for local income tax, elected regional bodies have no fund-raising powers; I must make that clear. That was part of the proposal. Of course, there will be legislation, subject to a yes vote in one of the referendums, to set up regional assemblies. The House has not debated a Bill for the regional assemblies; we have debated only a Bill for the referendums to give people the choice. That will come later and I suspect we will have lots of debates on fund-raising powers of the assemblies. I confirm that the election will be by proportional representation. I have made my great plea for PR all over.
I am now giving the government view. We have no plans to change the regional boundaries. As I have repeatedly made clear, there is a good debate to be had about some counties that are thought to be in the wrong region. Examples were given—such as Banbury—and I have previously used the example of Chipping Camden, which is 40 miles south of Birmingham but in the same region as Cornwall, as Lands End. That is ludicrous. But we have the boundaries we have.
We said to start with that we would rather test public opinion on the boundaries we have then spend what would be a couple of years arguing about the boundaries. We have always said that we are open to later review, but not for the purposes of setting up elected regional assemblies. My note goes on to say that those boundaries were drawn up by a Conservative government in 1995.
Lord Dixon-Smith: My Lords, before the Minister leaves the question of the regional assemblies, what happens if we arrive at the referendums later this year and the Electoral Commission has not yet reported on the experimental system used last week? What system of election will be used in that event?
Lord Rooker: My Lords, we know that the proposal is for postal voting. I make no bones about that. Let us be clear. There will be two questions in some areas, because of the local government matter; one understands that. We are not voting for people. There is no issue of someone being elected or unelected in those referendums.
838
I do not say that that devalues the report from the Electoral Commission on postal voting. I have personal experience of some really dodgy practices under postal voting—even within political parties. So it is not plain sailing. On the other hand, one may balance whether there is a vast improvement in turnout against a price to pay, or whatever. The fact is that with the referendums, we are not comparing like with like with the elections last week, where the elections were for parties that resulted in people being elected from the list system or directly elected for local councils on first past the post. I am not knocking the idea that we should take account of them.
I do not know the sequence from when the Electoral Commission will report. As I said, to hold referendums in the autumn, the orders will need to come before the House before the summer recess. That is clear. The powers of elected regional assemblies will be much greater than those of the current regional chambers, although the regional chambers style themselves as regional assemblies—a point made by the noble Lord, Lord Brooke.
This is a good one and worth reading out because I want to be open with the House. The noble Lord, Lord Greaves, raised the issue of Lancashire reorganisation. The answer is, "Don't comment on this". There is a perfectly valid reason for that. A legal consultation is under way about the boundaries and local government structure for setting up the regional assemblies. It would be quite out of order for Ministers to pronounce on that while it is under way. We are genuinely a listening government, so we will treat the speech of the noble Lord, Lord Greaves, tonight as an entry to the consultation process concerning what he believes about local government. I am sad that he has already decided to vote no when he has not yet seen the orders.
I have done my best to reply in the spirit of the issues raised by the noble Lord, Lord McNally. There is a real issue about our over-centralised state. We have taken some measures in the past seven years to address that. They are not good enough, not far enough and not fast enough, but they are part of a journey along the road. That should be the spirit of the Government's response. We have made but a start and there is a greater vision for the next five to 10 years which we will seek to develop in consultation with the parties and the public—and there will be free and fair debate in this House and the other place.
8.45 p.m.
Lord McNally: My Lords, 30 years ago I was travelling with the noble Lord, Lord Callaghan, to an election meeting on the outskirts of Birmingham, when we heard the noise of a young candidate on a loudspeaker extolling the virtues of the noble Lord, who said, "let's stop". It was not on the schedule, but that was the first time that I had the pleasure of hearing the noble Lord, Lord Rooker, in action. I enjoyed it then and I enjoyed it again tonight. He was probably as close to the party line then as he was tonight.

839
The noble Lord, Lord Brooke, slightly chided me that I was leading on this debate as a Front-Bencher. Without revealing too much about what goes on in those secret Liberal Democrat party meetings, that decision concerned the old matter of the soldier who found that he was a volunteer, because everyone else in the line had taken one step back. I do not regret that because this has been a timely debate in which all of the contributions have been part of that kick start for which the Deputy Prime Minister called today.
Regarding the experience of London, I suspect that the London assembly proposals were drawn up as a straitjacket for what the Government perceived as the inevitable Livingstone mayoralty. You do not get these things right if you draw them up to deal with a single personality or a single party. Therefore, the spirit in which the Minister responded was entirely welcome, but he has realised that it is not me he must convince; it is the noble Lord, Lord Greaves, and there is not much time to do that. I beg leave to withdraw the Motion.
Motion for Papers, by leave, withdrawn.

Gangmasters (Licensing) Bill
8.48 p.m.
Lord Carter: My Lords, I beg to move that this Bill be now read a second time.
The Bill has come from the Commons, where it was introduced by my honourable friend Mr Jim Sheridan, the Member for West Renfrewshire, and I pay tribute to his skill in steering the Bill through the other place and building a network of support for it, so that every interested stakeholder has worked with him on it and fully supports it. Both he and I have received much help from Defra, for which we are grateful.
In the past two days I have received letters and e-mails supporting the Bill from the Association of Labour Providers, the Transport and General Workers' Union, the National Farmers' Union, the Fresh Produce Consortium, Safeway, Asda and the Joint Council for the Welfare of Immigrants. The Bill is supported by many other organisations and bodies, including Church Action on Poverty.
I should add that the noble Lord, Lord Chan, who had intended to speak tonight but now cannot do so, sent me a note. It says:
"My interest in this Bill arose out of events involving the (illegal) employment of migrants from China in East Anglian fruit farms (where large numbers of Chinese are used) and the tragedy of the Morecambe Bay cockle pickers in February this year."
He concludes:
"I strongly support statutory licensing of gangmasters empowering regular inspection of their registers of workers and business practices to ensure they abide by our employment and business laws. If gangmasters are left unregulated, they are likely to exploit migrant workers, to flout health and safety standards, deny British workers legitimate employment, and avoid paying taxes that are due from them as employers."
Agriculture and horticulture have long depended on casual workers at times of peak activity. The work includes the grading, packing, cleaning and processing
840
of produce and shellfish. Legitimate gangmasters provide a valuable service and they have nothing to fear from the Bill. The Association of Labour Providers fully supports the Bill.
I do not propose to take the time of the House by going over the history, the voluntary codes, Operation Gangmaster and the rest. We are where we are and the Bill now sets up a licensing and regulation system which will deal with the criminality of certain gangmasters who are perhaps some 20 per cent of the total. It is further estimated that, in total, between 60,000 and 100,000 workers are involved as gang workers.
The criminal gangmasters commit offences on health and safety, wage regulation, social security benefits, housing, immigration controls, VAT and taxation. They move fast and they are adept at escaping the clutches of the law. The only way to deal with them is to have a proper system by which gangmasters are known, registered and licensed. There must be a system to ensure compliance with the licence system and, crucially, enforcement when an offence under the Bill is committed.
Because of the time constraint on us today, I will describe only the main components of the Bill. The Bill will apply to the whole of the UK and cover agricultural and horticultural work, the gathering of shellfish and the processing or packaging of any products that derive from these industries. It defines a gangmaster as anyone employing, supplying or supervising a worker to do work in these areas. It will apply to gangmasters operating in the sectors outlined whether they are based in the UK or offshore. It also covers all subcontractors.
The Bill extends the full protection of the law to any individual worker undertaking work to which the provisions apply. It establishes the gangmasters licensing authority. This body will be a non-departmental public body sponsored by Defra with a clear line to a Defra Minister. The authority will consist of key industry stakeholders and representatives of government and enforcement agencies. It will set the conditions of the licence after consultation; process the licence applications; set and collect licence fees; establish a public register of licensed gangmasters; have the power to modify, suspend or revoke licences under a licence appeal system; and proactively enforce the licence conditions.
The Bill establishes the following offences. First, operating without a licence. Secondly, obtaining or possessing a false licence or false documentation which is likely to cause another person to believe that a person acting for the gangmaster is licensed. Thirdly, using an unlicensed gangmaster, which would be subject to reasonable steps and due diligence defences. That is important for farmers who have shown that they have taken reasonable steps to ensure that they are employing a licensed gangmaster, if it turns out that they have been defrauded by someone pretending to have a licence. Lastly and importantly is the offence of obstruction of enforcement officers, or compliance officers, exercising their functions under the Act.

841
The Bill amends the Proceeds of Crime Act 2002 to enable the assets of convicted gangmasters to be seized. The Bill also amends the Police and Criminal Evidence Act 1984 to make operating without a licence, or possession of a false licence, arrestable offences. The Bill also gives an enforcement officer the power of arrest for these offences.
The Bill also gives the Secretary of State the power to appoint enforcement officers to enforce the criminal offences of operating without a licence and possessing false documents. It also gives them rights to enter premises, search premises to take possession of any items from premises; require the production of relevant records; inspect and take away records, including computers; and order attendance of persons before them. Extremely importantly, the Bill opens up a gateway between departments, the authority and other enforcement agencies to facilitate the exchange of enforcement information connected with the purposes of the Bill.
The Bill requires the Secretary of State to lay an annual report before each House of Parliament on the operation of the Act. I hope that that report will state that the authority has been able to approach, on a voluntary basis, all the supermarkets and that they have all agreed that they will take produce only from suppliers who use licensed gangmasters. That is extremely important.
The Bill also sets out the requirements of regulations that may be made by the Secretary of State through statutory instruments to set up the gangmasters' licensing authority and to give it the required licensing powers; to set up a system of appeals; to clarify the rights of users of gangmasters; and to clarify what it is reasonable for those users to do to establish that a gangmaster is licensed.
All the regulations made under the Bill will be made in accordance with the current government practice on the use of delegated powers. That will include early discussion with key stakeholder interests, the publication of draft regulations, the preparation of a regulatory impact assessment, the conduct of a small firm's impact test and the formal consultation allowing a minimum of 12 weeks for comment.
The Bill has deliberately been drafted very widely to cover the wide range of activity so that defined work can be excluded by regulations which will also define the circumstances in which a licence is not required; for example, agricultural contracting or the sharing or the swapping of farm labour.
As I have said, illegitimate gangmasters are adept at finding loopholes. The flexibility of statutory instruments is a distinct advantage in this kind of situation in not having to amend primary legislation. One can set down the criteria in the Bill and produce regulations to exclude all those activities that we know should not be included, such as agricultural contractors, the sharing or swapping of farm labour or whatever.
842
A full explanatory memorandum has been submitted to the Delegated Powers and Regulatory Reform Committee. I am aware that the Constitution Committee of this House has reported on the Bill. I understand that my noble friend Lord Whitty will respond to the report when he replies for the Government.
We hear a great deal about the regulatory burden on business. This Bill introduces a regulatory system that is warmly supported by legitimate gangmasters, farmers, processors, suppliers and retailers and those who deal with the welfare of immigrants, the Churches and many other organisations. The Bill has been warmly welcomed by all the stakeholders who have been involved with it. I hope that the Bill can now proceed to Royal Assent and on to the statute book so that a proper licensing and regulatory system can be set up to bring to an end, once and for all, the criminal activity that I have described. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Carter.)
8.58 p.m.
The Lord Bishop of Norwich: My Lords, I welcome the Bill and believe that it will provide considerable protection for a vulnerable group of necessary workers in our society. It will also provide a legal framework for employers who want to use gangmasters. However, while the Bill is welcome, it is only the beginning of an answer to a much more complex phenomenon. I want to make a few general observations and then a couple of points about particular clauses in the Bill.
Last Friday a significant conference took place in Norwich on the impact of migrant workers in the county of Norfolk. The noble Lord, Lord Carter, has drawn attention to the letter from the noble Lord, Lord Chan, about Chinese migrant workers in west Norfolk being in particular danger and difficulty. Some detailed research, commissioned by the Norfolk Constabulary with the support of the county strategy partnership, was presented to the conference. It is an important piece of work, as the researchers managed to get into a very shadowy and withdrawn community in King's Lynn and west Norfolk that generally treated the researchers, even those who could speak their language, as if they were from the Immigration Service and were about to deport them. The work was astonishingly delicate and difficult.
It is to that report's introduction that I owe some of my education about the scale of global migration. According to statistics published last year, one in every 35 people worldwide is now an international migrant—that is 2.9 per cent of the world's population. If all those migrant workers were brought together in one place, they would make up the world's fifth largest country. With the population of the least developed countries growing, those living in poverty are bound to seek wealth in richer countries. The prospect of a cheap labour force in the industrialised world is bound to be attractive, so the dynamic is unlikely to change.

843
However, poverty was certainly not the only reason that brought so many Chinese migrant workers to west Norfolk. Last week's research revealed, for example, that one migrant worker came here because he feared arrest and imprisonment in China following his participation in a political protest. Another was here because he feared for his future in China because of his association with the rather unusual quasi-religious movement the Falun Gong. So fear drives migration as much as economics. It was distressing to discover in that research how easily one set of fears in China is replaced by a different set here, not least because of the way in which migrant workers fall into the hands of gangmasters, often from their own community.
Then there are the fears of the host community. Last week's research showed that the number of Chinese migrant workers in King's Lynn over the past year was between 300 and 500 at its peak, although it has been variously described to me, and published in the press, as being 1,500 to 2,000. The figure was exaggerated. The research also showed that a lot of low-level racial abuse and violence was occurring, which migrant workers, for obvious reasons, did not report to the police, leading to the perpetrators feeling satisfied or even vindicated by their actions, and also to greater local lawlessness. It is the withdrawn nature of some communities controlled by gangmasters that fuels local suspicion. Even though migrant workers often undertake tasks for which there is an inadequate local labour market the assumption remains that they are taking jobs that belong to local people. Their separated and hidden existence, together with significant language harriers, reinforces that impression.
I mention all this because, even when this widely supported Bill becomes law, significant work in community education and community cohesion still remains to be done. Bringing gangmasters into a framework of licensing will not alone do that for us. We badly need to align the labour requirements in business, farming and food processing with our immigration policy. Equally, there is a lot to be done to improve access to education, health and even reliable financial services for migrant workers.
Elsewhere in Norfolk, we have a significant number of Portuguese migrant workers. The fact that they are there legally from another country in the European Union does not make their situation necessarily straightforward. However, there is good practice to commend. During the past two years, Bernard Matthews—there is no greater Norfolk name—has recruited 1,000 Portuguese workers directly from Portugal, without using gangmasters, agencies or middlemen. Each worker is given three weeks' English tuition at a local college and receives health and safety training. There is a health and safety officer on the factory floor who speaks Portuguese. Workers are given plentiful introduction in their own language to the local facilities provided.
Of course, the number of Portuguese workers in Norfolk is much higher than the number of Chinese workers. The Churches and other voluntary agencies have begun to play their part in serving their needs. Some Churches are now conducting services in
844
Portuguese in places such as Swaffham and Thetford where one would not expect them. Celebrations of Portuguese life and culture are developing in mid and west Norfolk, not least prompted by the fact that all football supporters' eyes are rather mourn fully directed to Euro 2004.
However, the truth is that many of those migrant workers have complex religious and spiritual needs to meet. The provision of decent pay and accommodation is but part of that. Later this year, an ecumenical group that we have set up in Norfolk intends to publish a manifesto in Norwich Cathedral reminding the Christian community of its core values in welcoming the stranger and loving our neighbour.
It is certainly true that the connection between the growth of the BNP and some of the consequences of the numbers of migrant workers is beginning to be noticeable. One notices that BNP literature is starting to be circulated in the very areas where migrant workers are most found, even in an area like ours.
The system of gang labour bringing groups of people together on a daily basis to work on local farms is thought to have originated in the village of Castle Acre in Norfolk as long ago as the 1820s. Gangmasters soon emerged because someone needed to organise and supervise those teams. Generally, it was a regular labourer with organisational drive who transformed himself into a gangmaster and who benefited by receiving a portion of the wage of each member of the group. It is easy to see how a corrupt system can develop gradually from that.
It is also easy to see that quite small exchanges of labour and agriculture between one farmer and another could be mistaken for gangmastering. Clause 6(2) may prevent that—I am glad to hear the noble Lord, Lord Carter, refer to it—but until we see the regulations, we do not really know. Equally, we need to make certain that the onus for licensing remains with the gangmaster himself. The need for labour in my part of the world is often immediate. It is easy to see how an employer could be misled or tricked.
Clause 13 requires employers to take reasonable steps to ensure that the gangmasters with whom they do business are licensed. Again, we do not know what those reasonable steps might be until we see the Secretary of State's regulations. There is quite a substantial amount of regulatory detail that could be the devil. We do not want to prosecute responsible but hoodwinked employers. As the Bill presently stands, that is what I fear.
I wish the Bill well, but in some areas it has a very strange vagueness. What is not vague is the community work that still needs to be done. Certainly, the Churches and faith communities in our area stand ready to participate in that.
9.8 p.m.
Lord Grantchester: My Lords, I should like to give my support to this Bill and to wish it a speedy passage. It is tackling an aspect of agriculture that has been allowed to persist largely unchecked for too long.

845
While governments have been reticent in coming forward with legislation, I trust that enough parliamentary time will be given to secure this largely uncontroversial Bill. I pay tribute to my noble friend Lord Carter for introducing it tonight and for securing widespread approval, and to Defra for facilitating the process.
I should like to declare an interest as a dairy farmer and must say at the outset that I have never used a gangmaster. As a rule, dairy farmers do not have a need for seasonal labour. There may be seasonal operations that are undertaken, for example, by agricultural contractors, but those are not subject to the provisions of this Bill. The supply of low-skilled labour to farmers and growers on a short-term basis to meet peaks of activity, such as planting, picking and packing, is crucial to the running of certain crop enterprises, especially to meet the exacting contractual requirements for fresh produce that are set by their customers.
Farmers find it virtually impossible to source these key workers locally at short notice. Increases in the number of permits for the Seasonal Agricultural Worker Scheme, SAWS, have been helpful although insufficient. There will continue to be a need for a pool of labour to meet peak demand periods. The best estimates put the size of this activity at approximately 3,000 gangmasters, of whom 250 are relatively important, using several thousand casual workers.
But that labour flexibility must not come at a price. Many suppliers of labour are reputable and comply with the various legal requirements such as working time, tax, health and safety, and so forth. They are also careful not to use people who should not be working because they are either receiving benefits or are illegal immigrants. The recent establishment of the Association of Labour Providers has given these gangmasters an effective collective voice. However, as the EFRA Committee in another place reported in December,
"there are powerful economic incentives pulling in the direction of non-compliance".
The workforce is mainly foreign and the influx of large numbers in unregulated use can pose significant difficulties regarding housing and social services to local authorities.
The complexity of the problems increases as the EU boundaries expand, in that with the accession of the 10 new member states, workers from those countries generally become able to find more lucrative work in other industries. The licensing of gangmasters promises to clarify the effective enforcement of the law, which will benefit workers, remove the stain on the reputation of agriculture and generate funds to the Exchequer that will counterbalance the funding requirement of the Gangmasters Licensing Authority.
Turning to the Bill, I am content that the impact is accurately targeted at the correct people, as set out in Clause 3(5). Similarly, Clause 6(2) specifies the circumstances where a licence is not required. I am concerned that the cost of audit inspections, and hence
846
the licence fee, should be kept under tight control to limit the added costs that undoubtedly will land at the farmer's door, adding to his pressures. There must also be a willingness to commit a sufficient level of resources for effective enforcement, which will tend to work against the tight cost controls I have just mentioned.
In that regard, I look to the supermarkets. They must give a clear indication that they will sign up to the Ethical Trading Initiative code of practice currently being developed. In the short term that code will be a precursor while the licensing authority becomes a reality in around 18 months' time. The code will be operated by the new Association of Labour Providers, and it should not be ambitious to think that supermarkets could be highly constructive in either direct funding to mitigate the industry's added costs, or at least providing in-kind secondment of staff. That would be welcome evidence of the supply chain working co-operatively.
Clearly there is further crucial work to be done in setting up the precise regulations, such as, for example, the regulations to be brought forward under Clause 13(3), to define what are "reasonable steps" for the farmer or grower to take in order to satisfy himself that the gangmaster was acting under the authority of a valid licence. After all, it is the gangmasters who are to be controlled, not the farmers. However, at this stage the intention is clear and I trust that the Bill will be supported on all sides of the House.
9.13 p.m.
Lord Palmer: My Lords, I too welcome this Bill and congratulate the noble Lord, Lord Carter, on explaining it to the House so thoroughly and comprehensively. The only thing that I do not like about the Bill is its name, as it gives the impression of having medieval origins, which of course in reality may well be true. However, I was interested to learn that the right reverend Prelate believes that gangmastering started in Norfolk not all that long ago. But a politically correct name such as "purveyor of unskilled labour" is perhaps a bit of a mouthful.
I declare an interest as a farmer in Scotland, although it is many years since my family farm employed gangmasters. However, they do operate in my part of the world. I am also delighted that the Bill is to cover the whole of the United Kingdom.
As other noble Lords have said, there has been a great need for this Bill for many years. If only the relevant authorities were doing their job, then it would not be necessary. I have one or two minor concerns which I would like to air, especially having spoken to various gangmasters. I very much hope that the real rogue gangmasters will be properly targeted and that the genuine gangmasters will not be hassled.
I am always apprehensive and nervous about new legislation, particularly where it is liable to become overly bureaucratic. I very much hope that the Minister will do

847
all he can to ensure that the bureaucracy to implement this Bill is kept to the absolute minimum, especially as there is, of course, a difficulty in knowing the difference between a legitimate gangmaster and a rogue one. I believe that the licensing authority will need extremely good PR from the outset if this Bill is to succeed.
When evidence was given to EFRA in September last year, it was horrifying to think that in this day and age people can be exploited to the extent that they are. I heard only last weekend that not far from me, in the Borders of Scotland, Portuguese workers were being charged £70 a week for a room, whereas I find it impossible to let a nice two-bedroom cottage for more than £45 a week.
It is to be abhorred that rogue gangmasters ignore all the most basic health and safety legislation, and I cannot help but feel that the estimate for workers' undeclared income tax and contributions of up to £100 million could, in reality, be doubled, trebled or, indeed, quadrupled. This, indeed, could prove to be most useful genuine revenue for the Exchequer, once the Bill has become law.
I, too, believe it is important that all retailers, wholesalers and, indeed, processors, become involved in this Bill. As such, it is vital, as the noble Lord, Lord Grantchester, mentioned, that the cost of licensing fees is kept to a realistic level and that the whole food chain commits to this scheme. Needless to say, there are rumours that the Bill is going to increase the cost of fresh vegetables greatly. I simply do not believe this to be true. It is worth remembering that food today is ridiculously cheap; I remind your Lordships that 40 years ago, 40 per cent of the annual wage was spent on food, whereas today that figure is just under 16 per cent—a very dramatic change.
My final point is that I believe that the licensing authority must be given real teeth if this legislation is to work. I hope that the noble Lord, Lord Whitty, will take these points on board, and I wish the Bill well.
9.17 p.m.
Lord Livsey of Talgarth: My Lords, this is the third time that I have spoken today, and I am looking forward to eating my sandwiches in my office, in much the same way as I ate sandwiches when I was a member of a gang, long ago and far away.
The need for such a Bill to control gangmasters was quite apparent in the days when I was a student. All one summer, I worked in a gang. We were ill treated and very badly paid. I remember two things clearly about the summer I spent in Lincolnshire as a Welshman. First, I remember being told by a brutal gangmaster, along with the rest of the gang, to work through a torrential two-hour thunderstorm with huge flashes of lightning, scrabbling around in the field for potatoes and getting them on to a lorry in the corner of the field bound for Manchester which, we were told, had to leave at 10 o'clock at night.
My second memory was the more interesting phenomenon of two blonde sisters from Grimsby who looked good, but as soon as they opened their mouths,
848
there was a torrent of expletives deleted. I hope that it is not too sexist, but I named them "Hell's Belles". I am sure that immigrant workers are still having such experiences in their first experience of Britain.
I have lectured to agriculture students on the organisation and capabilities of gangs, introducing them to the concept of gang work days—easily calculated, incidentally—and work rates relating to the different teams of machinery and workers, usually related to harvesting a huge variety of crops.
Timing, in the dynamic of farming and horticulture, is crucial. Crops have to be harvested when they are ripe and ready. In some cases, that may be in the middle of the night. The gangmasters Bill must not, through too bureaucratic a system, delay the essential time-frame of harvesting—that is crucial, and I say that as an agriculturalist. The exclusion of agricultural contractors from the Bill is essential in this context.
I congratulate the noble Lord, Lord Carter, on the introduction of this Bill and, in particular, Jim Sheridan MP, whose Private Member's Bill was introduced into the House of Commons. The Government appear to have adopted quite a large chunk of that Bill and have rightly given Jim Sheridan a lot of support.
The need for the licensing of gangmasters in Clause 1 is absolutely essential, as is the setting up of the licensing authority. I welcome the Bill unreservedly. It is long overdue. One has only to mention the words "Morecambe Bay" to identify the urgent need for this legislation. The exploitation of people must be halted in its tracks.
Clause 2, which provides for licensing and inspection and the activities of gangmasters to be constantly reviewed, is essential. The other clauses set out the administration of the licensing of gangmasters. I agree with the noble Lord, Lord Carter, that enforcement is extremely important. There must be sanctions for those who break the law.
I believe that there is widespread support for this Bill not only in the farming community but in the population at large—and rightly so. I sincerely hope that the supermarkets and other outlets take this legislation extremely seriously. The regulations associated with the Bill must be spelt out and as much as possible incorporated into the body of the Bill. There must be no room for doubt on this issue. Indeed, I believe that we will come to a situation in which gangmasters realise their responsibilities and discharge them as such, especially in relation to the human rights of people who work on the land.
9.22 p.m.
Baroness Byford: My Lords, I start by thanking the noble Lord, Lord Carter, for introducing his Private Member's Bill today and for openly explaining to Members of your Lordships' House why this Bill is drafted so widely. I also record my thanks to the noble Lord, Lord Whitty, who agreed to meet the noble Lord, Lord Livsey, and me last week to go through some of our anxieties. I am grateful for that and for the back-up work that we have had. In his comments—I shall not repeat

849
them all—the noble Lord, Lord Carter, was quite right. Where criminal activity is going on it needs dealing with very severely.
As I continue my contribution, the noble Lord should not be surprised because I have already explained to him that I have concerns—which reflect some of those expressed by the right reverend Prelate the Bishop of Norwich—that so much is left to regulation and is not included in the Bill.
Before I begin my contribution, I declare that I am president of a not-for-profit organisation called Concordia, which exists to assist overseas students, especially those from Europe and the newly accepted countries, to find seasonal work in the UK during their university and college courses. I understand that some 50 or 60 per cent of them are linked by their courses to agriculture or horticulture work, so it is a useful way of giving experience to the students. Usually, the work is farm-based, but not always, as their interests encompass everything to do with food production.
Concordia began its life way back in the 1943—I asked how old it was—and has a good reputation for supplying hard-working, committed workers who are a credit to the colleges that they represent. The UK farms and other work places all treat the workers well and most have been employing such students for many years. In total, there are nine companies like Concordia without which overseas students would have greater difficulty in obtaining the experience that they seek. Similarly, farmers and processors, particularly those who specialise in seasonal foods, would have a greater difficulty in obtaining the labour force that they needed if such schemes were not in existence.
The fact that there are irresponsible and corrupt gangmasters should not cause the Government to pass legislation that is unduly onerous for honest labour brokers, nor should it result in extra bureaucracy or unfair responsibilities for honest employers—something to which other noble Lords have referred. It should not be rushed through Parliament without careful and thorough examination of some of the consequences.
At the earlier consideration of this Bill in another place, my honourable friend Owen Paterson listed the legislation that is already in place and could be used to control many of the activities of dishonest gangmasters. I can do no better than to draw the House's attention to what he said. The Asylum and Immigration Act 1996 allows for fines of up to £5,000 on employers of illegal immigrants. To date, the Government have brought 22 proceedings under Section 8 and eight people have been found guilty. The Health and Safety at Work, etc. Act 1974 applies to anyone working in Britain legally or illegally. The Health and Safety Executive covers the coast down to the low-water mark and has acknowledged that it is aware of a near disaster on the Cumbria side of the Morecombe Bay before Christmas last year. The
850
National Minimum Wage Act 1998 could be used by the DTI through the Inland Revenue to raise wages. The Agricultural Wages Act 1948 could be used by Defra. The Employment Rights Act 1996 covers deductions from pay and termination of employment requirements. The Employment Agency Standards Inspectorate is empowered by the Employment Agencies Act 1973 to inspect anyone carrying on an activity associated with labour supply.
Those are Acts, guidelines and statutory instruments that cover tax, benefit, fraud, VAT rules and national insurance requirements. It is clear that over the years the government of the day have been aware that there was a problem. One of my anxieties is that if there are such a large number of Acts already that would cover some of the problems that we are discussing, it only really underlines the need to enforce Acts. It is no use having more legislation unless enforcement is made.
How many individuals operating as labour brokers have been charged in the past five years with breaking any of the laws that should bind them? Can the noble Lord, Lord Carter, explain why those laws have not been used more rigorously to stamp out the very practices that we have debated tonight, which are well known and appreciated by all those who seek to satisfy market demand in a legal, upright and honest way?
The Bill before us today is motivated by a genuine horror at the Morecombe Bay deaths—something that we all felt with great shame, possibly shame that such a thing could happen for such despicable reasons—and possibly in recognition that the Government must be seen to be doing something. Our job in this House is to analyse that something, to prove that it answers an identified need in a way that cannot be fulfilled by any existing legislation. As the noble Lord, Lord Carter, said, we should protect farmers and businesses that give no cause for concern from measures that could seriously disadvantage them and ensure a quick implementation, with a resulting elimination of the problem.
My earlier comments on the raft of existing legislation that applies to the situation show that I am not convinced that the Bill will improve matters unless it is enforced. The various departments concerned, which I have named, have not been able to control the problem using the instruments that they have already at their disposal. What guarantees will there be that a new batch of tools will be any easier to use or more readily enforceable? For example, will the employment of an enforcement officer be more effective than a similar increase in the number of HSE inspectorate staff charged with policing this area?
To be effective, this legislation will have to rely to a large extent on policing the users of seasonal labour. Honest brokers such as Concordia have an entry in the phone book. They have an office that does not change from decade to decade, never mind month to month. They are known and easy to investigate. With a little joined-up thinking between government departments,

851
they can he given a clean bill of health readily, easily and quickly. As other noble Lords have pointed out, the problem is the dishonest, fly-by-night, always-on-the-move merchant who is a totally different prospect. How can one catch someone who has no permanent address, who uses the Internet with a different post box for each assignment, who pays no tax of any sort and has as many different identities as phases of the moon? One goes after farmers and food processors and takes up their time.
I find myself in agreement with Owen Paterson. The Bill is not the only way of solving the problem. The Employment Agencies Act 1973 can surely be used to introduce a gangmaster's licence. It could have been. However, as I said earlier, the Bill will succeed only if it is quickly and fully implemented. How many inspectors will be employed? How many enforcement officers will be deemed necessary? How will they operate? Will the lists of food processors that they draw up be licensed by each local authority and will they then visit them? Or do they consult the Yellow Pages for farmers' phone numbers and ring round to find out whether they use seasonal labour? Will they talk to Customs and the Immigration Service for information on the whereabouts of recent immigrants?
I understand that the Health and Safety Executive already has the power to investigate any worker at any time in any place in Great Britain. The Morecambe Bay problem is not confined to people supplied by gangmasters. There are many individuals, and small groups, risking their lives daily in pursuit of what they perceive to be free gain. I understand that the lifeboat has already been called out more than 30 times this year.
I have raised several questions this evening. I support the aims of the Bill and I wish it well but I have reservations, as I have already indicated. I am very anxious to see that all employees are looked after properly and are employed reputably. But, as it stands, the Bill is woefully short on detail as the noble Lord, Lord Carter, acknowledged. Is it envisaged that the gangmaster licence fees collected will cover only the registration system or will they be used to implement the enforcement side as well? I do not think that that is clear at this stage. Paragraph 78 on page 14 of the Explanatory Notes states that:
"Once operational the Authority will be self-financing".
My concerns on the Bill are reflected not only by the House of Lords Select Committee on the Constitution, which the noble Lord touched on earlier, but by the Association of Labour Providers, also quoted by the noble Lord. I acknowledge that it supports the Bill, as do the NFU and all the other organisations mentioned by the noble Lord, but it states that it is important to understand that legislation itself will not be sufficient to deal with this problem. There needs to be greater enforcement of existing legislation by the existing enforcement agencies.
852
Like the noble Lord, I looked at the comments made on the Bill by the Select Committee on the Constitution—I know that the noble Lord, Lord Whitty, will refer to this. There are eight very important points. To start with, the committee comments on the fact that the Bill originally introduced by Jim Sheridan has been totally transformed and that many of the present Bill's 30 clauses have been incorporated without debate.
The third paragraph states:
"Public interest in the Bill has been magnified by the Morecambe Bay tragedy and by recent media reports of many types of abuse connected with the provision of gangs of labour for casual work. An effective scheme of licensing will need to restrict these abuses and encourage good practice, as well as to maintain a structure for providing casual labour when this is urgently needed in agriculture".
That is a point which the noble Lord, Lord Livsey, quite rightly highlighted.
Paragraph 4 states:
"But the status and constitution of the Authority and the appointment of its members is left to regulations. It is therefore impossible to know from the Bill whether the Authority is intended to act autonomously, and the quotation above regarding general or specific directions does not make that position clearer. The Authority is to exercise a very wide discretion under this Bill. By clause 7(1), 'The Authority may grant a licence if it thinks fit'".
Further it says:
"clause 8(1) is a very broad power".
I shall not go through them all because I believe that the noble Lord, Lord Whitty, will pick up on some of the points within this recommendation. It is hugely important. There is pressure on us to try to gel this Bill through as quickly as possible. I would hate any Member of this House to think that I did not support the Bill. I am concerned that so much of the proper detail is not on the face of the Bill and we do not have it to hand.
Paragraph 8 of the committee's remarks states:
"The Bill would be improved from the perspective of administrative justice if it were to address questions that are fundamental to the scheme of licensing that it proposes to create, and we so recommend".
So it is not just me and other people who have raised issues with me. The Select Committee on the Constitution has questions which it has put and which we have had the advantage of reading.
I thank the noble Lord, Lord Carter. We support the principles and aims of the Bill. But there are some very real questions which I hope the Minister will cover when he responds.
9.37 p.m.
The Parliamentary Under-Secretary of State, Department for Environment. Food and Rural Affairs (Lord Whitty): My Lords, I am grateful to my noble friend Lord Carter and to Jim Sheridan for making it possible to consider this Bill, which deals with a very important issue. I give my thanks to the Members of the House who have spoken tonight, all of whom have, at least in principle, accepted the need for such a Bill. I do not need to go over it in great detail.

853
The right reverend Prelate and others described some of the matters which arise from the dark side of the gangmaster situation. It was quite dark even when the noble Lord, Lord Livsey, was concerned with the business. It has undoubtedly got worse. It is now not only a question of exploitation of vulnerable labour, but there are also links with illegal immigration, illegal working and other aspects of criminality quite apart from the issues of tax and social security fraud.
We need to start from the proposition, which my noble friend Lord Carter, underlined, that the agriculture and horticulture industries need casual and seasonal labour, often at short notice and for very short periods. We want to facilitate a situation whereby that can happen in a legitimate and decent way, in which the employees of the gangmasters, or labour providers, as we would prefer to call them, although not many do, can operate with respect for the other laws of the land.
Because there is increased awareness of this difficulty there have been various initiatives. There has emerged a very clear consensus in the industry, which includes the Transport & General Workers' Union and the NFU. They do not see eye to eye on all occasions, but on this they are united, as with the Fresh Produce Consortium and the supermarkets. The initiative for this was established by Mr Zad Padda, who himself was a gangmaster or labour provider from the West Midlands. He looked at the trade and saw that there were very damaging aspects to it undermining the legitimate and decent gangmasters who operate this trade.
I thank all those parties, in particular Mr Padda, Jack Dromey from the TGWU, Tim Bennett from the NFU and Doug Henderson from the Fresh Produce Consortium who have come together to make this measure work. There has been a big input into the drafting on the part of the Government, but that was done on the basis of a consensus in industry.
The support for this Bill and the need for it are clear. However, a number of noble Lords have queried the nature of the Bill. I need to make clear to the right reverend Prelate and to the noble Baroness that the drafting of the Bill requires some flexibility and some use of secondary legislation—probably more than might be the case in certain other circumstances. In order to address that problem we have provided, and will provide, further indications of the outline and the first drafts of key statutory instruments so that we can consider them before the Bill completes its passage through this House. After that, there will, of course, be formal consultation in the normal way.
The licensing system is in the best interests of legitimate labour providers, of farmers who want to do business in a sensible way and of those they employ. It will create the conditions that drive out the thugs, the bullies and the more dubious gangmasters who undermine that legitimate activity. The industry, or parts of it, have attempted to make progress on this matter and are in the process of drawing up a voluntary code of practice. However, we recognise
854
that that is not enough, partly because a large section of the industry will not sign up to a code of practice on a voluntary basis and partly because it is difficult for someone further down the chain to know whether the provider of labour, and of the produce of that labour, has used legitimate gangmasters who observe the code of practice. That is why we need a mandatory register.
It is true that most of our concerns are covered by existing legislation. It is clear that government departments have an obligation to enforce that legislation on gangmaster activity. A very substantial effort has been made to co-ordinate that on a better basis through Operation Gangmaster and Operation Reflex. There are currently 11 gangmaster investigations under way and there have been some recent successes. Successful action taken against gangmasters, including on tax and VAT, have led to what is called "adjustments" of £16 million worth of tax and 2,300 cases have been taken up regarding social security benefits. Therefore, action has been taken by the authorities.
However, in a sense, the noble Baroness answers her own question regarding why the raft of legislation to which she referred needed further action to enforce it effectively. By and large that legislation is drafted to deal with static, or at least permanent and identifiable, employers and employees who live and operate in this country legitimately. However, if you are dealing with people who employ labour who may have a vulnerable status, and are in the relevant location for only a day or two, further measures are required. Those fly-by-night people to whom the noble Baroness referred can only really be targeted by identifying to whom they supply labour and who uses the products of that labour.
This measure is supported by the whole of the food chain. While we need the whole range of Customs and Excise inspectors, tax and social security inspectors and the enforcement officers provided under this Bill, we also need the trade to check that operators have a licence. In a sense that is an insurance policy for the retailer and the farmer. They need to check whether produce has been provided by someone who has a licence. If that is not the case, there is a prima facie case for investigating that and for ceasing to obtain supplies from that source. I refer to an industry code, as it were, enforced on a voluntary basis, but it requires a mandatory register before it can work.
I think we all accept, as the noble Baroness, Lady Byford, and the Select Committee of another place say, that the licensing system, of itself, is not enough. The trade as a whole, and the enforcement agency, have to operate in order to ensure that the licensing system brings about the benefits that we are looking for. The noble Baroness, incidentally, referred to the Employment Agencies Act, which originally provided for this form of registration. But that part of the Act was repealed by the Deregulation and Contracting Act of 1994, and it would not be possible to do this under that Act as it now stands.
One of the reasons why we have drafted some of the clauses quite widely, to address the biggest problem in the nature of the Bill, is that gangmasters are adept at exploiting legislative loopholes to avoid legal

855
obligations. They may find a way around what we provide for in the initial statutory regulations. We therefore need to cast the Bill relatively widely, to ensure that we can catch up with such manoeuvres. Subordinate legislation can be changed more easily to do that. In order to do so, we need to make sure people understand what the secondary legislation will do, and that is why I am proposing to give at least an outline indication of that.
As to the points of the Constitution Committee—which I have noted and am concerned about—I can answer the bulk of those points in relation to the powers which are not explicit in the Bill. For example, it is not our intention to use licensing to restrict the number of labour providers. The only denial or removal of a license would relate to the exploitation of workers or illegal behaviour. The Bill will make explicit provision for regulation to exempt certain types of work and certain circumstances from the licensing scheme. It is that broad in order to deal with the problems that I have described. We will, as my noble friend Lord Carter explained, exempt genuine agricultural contractors who supply machinery and labour. We will not include within the Bill those farmers who loan workers to their neighbours or further afield. Nor would we wish to include processes which change the nature of the product, such as turning fresh meat into a meat pie.
All that is subject to consultation on the statutory instruments, but it is a clear Government intention that we would not include those people.
As far as concerns the establishment of the authority, day-to-day responsibility for the design and operation of the licensing scheme will rest with the authority, whose sole role and remit will be established through these regulations. The ultimate responsibility to Parliament, however, will be through the Secretary of State.
The noble Baroness, Lady Byford, asked about charging. The fees will cover the registration system and operation of the authority, and there will be other resources provided in order to deal with the enforcement officers envisaged under this Bill. The bulk of the enforcement in the wider context, however, will be by the existing agencies, which will make use of these new powers to exert—by withdrawal of the licence, or recommending to the authority the withdrawal of the licence— pressure as regards other offences.
The licensing authority will be an executive NDPB, and will have the normal constraints applied to it. The membership of the authority will represent farmers, trade unions, supermarkets, labour providers, voluntary bodies and the various enforcement agencies. The body's function will be to prevent the exploitation by gangmasters in relation to their recruitment and employment, compliance with tax, national insurance, VAT, other general employment law and, of course, immigration and illegal working law. It will be clear what the responsibilities of the authority are, and the anxieties expressed by the Constitution Committee will be dealt with in the secondary legislation.
856
The other point that the Constitution Committee raised was the need for a robust and independent appeals mechanism. I accept that. Appeals will be heard by an appointed person. We will be discussing that with the Council on Tribunals and colleagues in the Department for Constitutional Affairs so that we can establish a means of appealing decisions from the tribunals as I think the committee wanted.
I think that that deals with most of the issues raised except for the need to ensure that this does not impose too great a burden on the farmer or grower. Checking not only needs to be simple; it also needs to be quick. It will be incumbent on the authority to ensure that there are means whereby the individual farmer can check whether someone who says he is a gangmaster is in fact the gangmaster he claims to be. The farmer will have to be able to check and show due diligence if challenged rather than face prosecution if the case proves to be otherwise. He will have taken reasonable steps to check. The noble Lord, Lord Livsey, said that in harvest time such checks need to be quick, simple, understandable and effective. We certainly take that point. We will certainly take it on board in the licensing system.
Subject to that, I believe that we have a Bill that can be made to work. We will take it not on its own but with other measures taken by the trade and the government's enforcement agencies, in order to deal with the very nasty end of a very difficult employment situation which affects tens of thousands workers in our country, some of whom are here temporarily while others are here permanently. All of them face the potential of encountering a small but significant group of gangmasters who are exploiting their position. Those gangmasters give the agriculture and horticulture industry a bad name that it does not deserve.
Lord Palmer: My Lords, before the noble Lord sits down, can he clarify one point? As the Bill applies to the whole of the United Kingdom, will the different bodies that will implement it work independently in Scotland, Wales, England and Northern Ireland, or will there be one encompassing body for the whole United Kingdom to deal with licensing?
Lord Whitty: My Lords, there will be one encompassing body although some of the agencies that will need to be associated with it—for example, the police—are devolved. Most of the offences that may be connected with this are in fact UK offences. So it will be a single UK authority.
Lord Carter: My Lords, I am extremely grateful to everyone who has spoken and for their support for the Bill. I am afraid that I forgot to declare a past interest. The noble Lord, Lord Livsey, reminded me of his experience in a gang. I also have experience in a gang, on a building site in Crawley. I was engaged at 4 p.m. but I was sacked at 4.30 p.m. as being completely unsuitable for the type of work. I was getting rather less in my wheelbarrow than the rest of the gang were getting on their shovels, and I am still owed a day's

857
pay. I was also struck by the fact that the noble Lord, Lord Livsey, remembered the sisters from Grimsby and the fact that they were blondes.
Almost all the questions have been answered by my noble friend Lord Whitty. The right reverend Prelate spoke about the small exchange of labour which we all know goes on in farms. That is explicitly excluded in the draft statutory instruments. The noble Lord, Lord Grantchester, mentioned SAWS—the seasonal agricultural workers scheme. That is specifically excluded by regulation.
The noble Baroness, Lady Byford, made a fair point about the range of Acts, but of course that shows the overlapping and confusion there has been.
858
Enforcement will be so much easier with a single authority with a single lead Minister responsible. There is an industry consensus that that should be achieved. She asked then some detailed questions about the number of inspectors, the cost and so on. A very detailed schedule of the cost is available which I will certainly send to her. I think that that will provide all the information that she needs.
As I said, I think that my noble friend the Minister has replied to all the other questions.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
House adjourned at six minutes before ten o'clock.