Lords Sitting of 25 May 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 St Albans.

Higher Education Funding Councils
Lord Walton of Detchant Lord Walton of Detchant asked Her Majesty's Government:
Whether they will take steps to restore to the higher education funding councils the research infrastructure funding which was transferred to the research councils.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, the Government are committed to ensuring sustainability in research throughout the dual support system. By 2006, HEFCE research funding will increase by almost 24 per cent over 2003, and the research councils will receive an extra £120 million within the £2.9 billion science budget to contribute more towards the full costs of research. Additionally, £1 billion is committed, through the science research investment fund, to continue addressing the backlog of investment in the UK research base.
Lord Walton of Detchant: My Lords, in thanking the Minister for that reply, may I make it clear, as a former member of the Medical Research Council, that I do not in any way suggest that research council funding should he reduced? Indeed, it should he increased, as the noble Baroness has suggested. But under the dual support system, the universities are required to provide, through infrastructure funding, well equipped laboratories and facilities in which research can be carried out with direct funding from the research councils and charities. Many years ago, when the binary line was abolished and the polytechnics became universities, the then advisory board for the research councils, believing that the infrastructure money would be spread too thinly, arranged for the University Grants Committee to transfer that funding to the research councils. This has resulted in the long-term imbalance between the infrastructure funding and the actual research funding by the councils. Is it not time that that particular balance was restored?
Baroness Ashton of Upholland: My Lords, as a result of the 1998 and 2002 spending reviews and the joint infrastructure fund, which has now translated into the science research investment fund, that is precisely what
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we are trying to do. We are working to bring the dual support system together in order to address the very particular issues that the noble Lord has raised.
The Lord Bishop of Portsmouth: My Lords, following on from the noble Lord's Question, could the Minister tell us what provision is being made for research in emerging areas, such as nursing?
Baroness Ashton of Upholland: My Lords, we have made it clear in our documentation, as the right reverend Prelate will have seen, that it is important in all our research programmes to look at emerging research— nursing is a very good example— to ensure that we are able to support those universities and institutions in developing research in new areas which are particularly relevant.
Baroness Sharp of Guildford: My Lords, the Minister will know that various reviews have suggested from time to time that it would be a good idea if the research councils were funded to the full cost of the overheads that they have to meet. Is there any hope that the research councils will get funding that meets the full overhead costs of the projects undertaken?
Baroness Ashton of Upholland: My Lords, the Government are supporting institutions with regard to a transparent approach to costing to ensure that institutions cost, charge and recover the full economic costs of their research. I think that that is the way of addressing the issue.
Baroness Finlay of Llandaff: My Lords, can the Minister tell us whether there is any monitoring by the Government of the amount of time that researchers waste when they have inconsistent decisions from different local research ethics committees? The protocol can be passed by one but turned down by others, and the researchers have to go back to the drawing board to satisfy perhaps one out of several LREC decisions.
Baroness Ashton of Upholland: My Lords, I am not sure that I can answer that specifically. However, we are very concerned in terms of economic recovery in particular to have a very light-touch approach towards bureaucracy, which I think was, at least in part, what the noble Baroness was referring to. Ensuring that we have little of it is a critical part of that.
Lord Taylor of Blackburn: My Lords, is my noble friend aware that even with all that the Government are doing to try and bring universities together, there is still quite a lot of duplication in research in various universities? Could this not be looked at with a view to encouraging universities to work closer together?
Baroness Ashton of Upholland: My Lords, there is good evidence of institutions working very collaboratively. With respect to the White Paper, we are keen to encourage universities to be able to work together, in the best sense

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of the term, to pool their ability in order to get the best out of research. I think that that is happening in good measure.
Lord Roberts of Conwy: My Lords, what is the Government's system for evaluating this research?
Baroness Ashton of Upholland: My Lords, the research assessment exercise, as the noble Lord will know, carried out by Sir Gareth Roberts, has looked extensively at research for the next review in 2008. As we develop from that exercise, with the support of the institutions involved, I think it will become clear exactly how that will be carried forward. I am very happy to write to the noble Lord and give him further details about Sir Gareth Roberts's work in this context.
Baroness Warnock: My Lords, could the Minister tell us whether there is any move afoot to regularise and bring together the work of various ethics committees? I am going back to the question of my noble friend Lady Finlay. It seems to me that the decisions of one ethics committee should sometimes be allowed to permit another ethics committee to pass a project for research without further investigation. Is there any move in this direction?
Baroness Ashton of Upholland: My Lords, I am not aware of any move in that direction, but I shall of course write to the noble Baroness if I discover that there is.
Baroness Carnegy of Lour: My Lords, when the Minister writes to the noble Baronesses who questioned her, will she say whether the system that was in place when I was chairman of a research ethics committee still operates? When research was being carried out in a number of different places in the United Kingdom, there was a mechanism whereby the research ethics committees tried to co-ordinate their responses so that such a problem could not arise. If such a system no longer exists, perhaps the Government could consider that.
Baroness Ashton of Upholland: My Lords, my understanding is that what the noble Baroness, Lady Carnegy, says is still the case. However, I will investigate further because these are important issues. Indeed, I will ensure that a copy of the reply is placed in the Library.

UK Airports: Export and Passenger Checks
2.43 p.m.
Lord Ahmed Lord Ahmed asked Her Majesty's Government:
Whether the searching of goods for export and travellers at United Kingdom airports is targeted at those destined for particular destinations.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, Her Majesty's Customs and Excise has the prime responsibility for control of goods leaving the United Kingdom. Export checks are carried out for prohibited goods such as illicit drugs, to check export licensing requirements, to enforce international sanctions, and for fiscal purposes checking goods to export manifests. Passengers are subject to checks to ensure that export restrictions are enforced and to detect crime-related cash. All checks are informed by risk assessments which may include the destination country as one indicator—for example, when the country of destination is subject to international sanctions or other export licensing requirements.
Lord Ahmed: My Lords, I thank my noble friend for that reply. Is he aware that, on a recent visit to the United States, when I was among 65 other passengers at Heathrow Airport, I was taken out of the queue with another colleague for a random check of our luggage? On my travels to Saudi Arabia, I was searched and so were my bags to see whether I was carrying any cash. Is this rule applied to all passengers, whatever their colour or nationality? There were only two Asian-looking men in my queue and we were both taken out for a random check. What criteria do the police apply on the streets of London when they use stop-and-search powers under Section 44 of the Terrorism Act 2000?
Lord McIntosh of Haringey: My Lords, in answer to my noble friend's first question, I was not aware of the circumstances of his visits to the United States or Saudi Arabia. When I was being briefed for this Question, I said that I had never been stopped leaving the country. However, both the head of frontier security and his colleague in frontier security told me that they had both been stopped leaving the country. My noble friend Lady Symons says that she, as a Minister, has also been stopped.
I do not want to talk about risk assessments because, clearly, once we start talking about the details of risk assessment profiles people can get some idea of how to avoid them. It is fair to say that the profiles are strictly adhered to.
Lord Marlesford: My Lords, does the Minister agree that, given the unavoidably limited resources to protect this country from both organised crime and terrorism, the most sophisticated profiling and targeting that can be achieved is fully desirable? If, for example, it was concluded that those born on 11 September—as I was—were of special interest, I would be delighted to be targeted and pulled out of a queue at any time.
Lord McIntosh of Haringey: My Lords, that would seem to be a waste of Customs' resources.

European Union: Corruption Investigation
2.46 p.m.
Lord Tebbit Lord Tebbit asked Her Majesty's Government:
Whether they will make representations to the European Commission concerning the case of Mr Hans-Martin Tillack, a journalist investigating corruption in the European Union.
Lord McIntosh of Haringey: My Lords, the case of Mr Tillack, a German journalist working in Belgium, is in the hands of Belgian prosecutors and no decision has been taken yet on whether there is any evidence on which to base a prosecution. In those circumstances, it would not be appropriate for the British Government to intervene or comment.
Lord Tebbit: My Lords, I am sorry to hear that. Is the Minister aware that, according to all the press accounts, this German journalist, who is favourable towards the European Union, was publishing articles about the scandals of corruption within the Commission? He was detained—and none too gently—by the Belgian police at the request of the Commission. His computer and records, which could give the Commission access to the names of the whistleblowers, were handed to the Commission. That is hardly a step towards dealing with the corruption that we know exists in the Commission. Is it not the duty of Her Majesty's Government to tell the Commission that it should welcome the work of investigative journalists, not try to obstruct them?
Lord McIntosh of Haringey: My Lords, Her Majesty's Government have always welcomed the work of investigative journalists and have always supported all measures to eliminate fraud and corruption in the European Union and elsewhere—it is not simply a problem within the European Union. However, the particular case to which the Question refers is of a German journalist arrested in Belgium. If that indicates that there are tensions between OLAF and its supervisory committee, that is a bad thing.
I read the same press reports. In particular, I read Private Eye, to which the noble Lord, Lord Tebbit, is no doubt referring. However, unless there is evidence of human rights abuse—and this case is still sub judice—there is no basis on which Her Majesty's Government can intervene or comment.
Lord Marsh: My Lords, is the Minister aware that this gentleman's article, which is quite long and detailed with graphs and names in quotes and interviews, appeared in yesterday's New York Herald Tribune? Does he not agree that it is a good idea for Members of this House who have the opportunity to see a copy of it in the Library? It is fascinating to see what we are paying for.
Lord McIntosh of Haringey: My Lords, I did not see yesterday's Herald Tribune but the article was originally in Stern and has appeared in English before.
Lord Wallace of Saltaire: My Lords, does the Minister recognise that the issue of press freedom in the European
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Union is extremely important? In this instance, the Belgian police seem to have been extremely heavy-handed. Does he also recognise that press comments on the question of fraud and the role of OLAF have suggested that one of the reasons why the Commission has made only limited progress in reform is that member states have not given enough support to reforms in the Commission? One would have thought that it would have been possible for Her Majesty's Government to work with other like-minded governments to give much more active support to efforts at Commission reform.
Lord McIntosh of Haringey: My Lords, I agree that press freedom is an important matter both in the United Kingdom and elsewhere in Europe but I wish that the undoubted progress that is being made in combating fraud and corruption in the European Union were not attacked on the basis of press reports. Press reports, particularly those in this case, which is still before the Belgian courts, are not a basis for Her Majesty's Government to intervene. We are actively intervening on the substantive issue, which is fraud.
Lord Lamont of Lerwick: My Lords, does the Minister agree that we are told all the time by Ministers that such and such a matter has a cross-border dimension, is a matter of common interest and it is therefore legitimate for people to take an interest in other countries' internal affairs? Does he not agree that if there were any suggestion that the Belgian police or OLAF were in any way more interested in the suppression of evidence about fraud, rather than in combating fraud, that would be a matter about which we should be concerned?
Lord McIntosh of Haringey: My Lords, that is a hypothetical question. I wonder whether the noble Lord, Lord Lamont, would say the same if the parliament of another member state were to start to intervene in the activities of a British court.
Lord Tomlinson: My Lords, as my noble friend has given a rather broad welcome to the fight against fraud, does he now regret the decision that he announced in response to a Question I asked him about a year ago? The British Government refused to join in the action against Phillip Morris and Reynolds in the United States courts. It has now resulted in a very substantial payment by those cigarette manufacturers, which will be shared by the 10 member states of the European Union that did join in the action, but unfortunately we were not among them.
Lord McIntosh of Haringey: My Lords, however hard I try, I cannot relate that to the Question on the Order Paper.
Lord Howell of Guildford: My Lords, returning to the question of Hans-Martin Tillack, can the Minister confirm that, under Belgian law, all journalists are required to reveal their sources to the authorities?

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Since Brussels is the heart of the European Union, to which we belong, is that a very good example for us to follow in promoting open democracy in Europe?
Lord McIntosh of Haringey: My Lords, I do not believe that I stand at this Dispatch Box to display an understanding of Belgian law. The fact that the European Commission is based in Brussels does not really affect the issue.
Lord Stoddart of Swindon: My Lords, I am rather puzzled by the reply that was given to the noble Lord, Lord Lamont. The reply was that would we not, in this country, take offence at the interference of another country in somebody we had arrested. But I understood that Mr Tillack was arrested at the request of the European Commission. If that is so, as a member of the European Union should we not at least be making some inquiries to see why this man was arrested and with what he is charged?
Lord McIntosh of Haringey: My Lords, this case is before the Belgian prosecutors. Until there is some resolution or a decision to charge him, which has not yet taken place, it would be wise for us to hold our fire.
Lord Pearson of Rannoch: My Lords, does the Minister agree that despite billions of our money being spent by Brussels to create it, there is really no prospect of a European demos and therefore no prospect of a genuine European democracy, which might hold the endemic corruption of the European Union to account? Is not that part of the underlying problem?
Lord McIntosh of Haringey: My Lords, I assume that the noble Lord, Lord Pearson, is speaking not about a think tank but about Athenian democracy. I fear that we are a very long way from Athenian democracy everywhere except, possibly, in Rutland.
Lord Tebbit: My Lords, is the Minister aware that I have some sympathy for him for the difficulty he has in answering this Question? Is he aware that the Dutroux case is still wandering its way through Belgian justice?
Lord McIntosh of Haringey: No, my Lords, and the sympathy is misplaced. I have no difficulty in saying that it is not the role of this Government to intervene in matters before the Belgian courts.
Lord Elton: My Lords, the Commission is the body on which all the trumpeted national powers being concentrated by the new constitution are to be focused. Surely, the matter is of great interest to us as we will also be ruled by the Commission. We should be very careful of what the Commission does with the liberty of the subject and the freedom of the press. Does that not make this a matter for which the Minister should answer?
Lord McIntosh of Haringey: My Lords, we are not ruled by the Commission and, as far as I know, this case is not being brought by the Commission. All that is
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public knowledge, other than press reports, is that the Belgian police arrested Mr Tillack and that no decision has yet been taken on whether there is any evidence on which to base a prosecution. In those circumstances, the speculations of the noble Lord, Lord Elton, are not appropriate.
Lord Harrison: My Lords, would my noble friend confirm that some 90 per cent of the so-called fraud within the European Union is directly attributable to individual member states and not to the European Commission?
Lord McIntosh of Haringey: My Lords, it is certainly true that 90 per cent of irregularities are due to individual states and not to the European Commission. Unfortunately, it is not entirely clear what proportion of irregularities are actually fraud, rather than mistakes of various kinds. However, the thrust behind the question of the noble Lord, Lord Harrison, is right.

Home Office Website
2.57 p.m.
The Earl of Caithness The Earl of Caithness asked Her Majesty's Government:
Whether they are satisfied with the quality of the Home Office website.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): My Lords, the answer is "Yes". However, across all of our public-facing communications, we constantly look at ways to improve users' experiences. In the current year, we are redeveloping the Home Office website to make it even more user-focused and to enhance its accessibility.
The Earl of Caithness: My Lords, I applaud the fact that an immigrant who wishes to become a British citizen will have to take the oath of allegiance to Her Majesty, her heirs and successors, but can the Minister explain what are the "aires", mentioned on the website, to which an immigrant is swearing allegiance?
Lord Rooker: My Lords, I have missed the point of the noble Lord's question. Is it a spelling error?
Noble Lords: Yes!
Lord Rooker: My Lords, they didn't use the spellchecker, did they?
Lord Avebury: My Lords, has any progress been made on the aim of giving government websites a common look and feel? In the case of the Home Office, will that principle be extended to the subsidiary sites, such as those of the IND and the Prison Service, so that people can find their way around more easily?
Lord Rooker: My Lords, the noble Lord makes a valid point. As I have said, the main Home Office website is being refocused this year. On 30 June, just a few weeks away, a new IND site will be published and I understand there will be common accessibility. I had not looked at the Home Office website for more than two years but I did so early this morning. I found it much easier to get around than in the past but the idea of a common page for the various subsidiary sites is useful for the users.
Baroness Gardner of Parkes: My Lords, is the Minister aware that some of us who regularly use the Home Office website are quite impressed by the great improvement in how frequently it is updated? Two years ago, those updating it were so far behind that it was hard to believe. Now, it seems much more current, and many people find that helpful.
Lord Rooker: My Lords, I am sure that those who have been responsible for vastly improving the website in the two years since I left the Home Office will—like those who are currently working on the site and those auditing it to increase its accessibility—justifiably take great comfort from the noble Baroness's comments.
The Earl of Caithness: My Lords, as the Minister has said that there will be a revamp of the website, will he take this opportunity to ensure that all the other, rather less insulting spelling mistakes are also checked? The Home Office is not particularly good at having checked what it has put under the press.
Lord Rooker: Yes, my Lords; needless to say, in view of the way in which the noble Earl has raised the issue, we will certainly look into it. However, he has defeated us all in trying to work out what on earth his Question was about.
Lord Glenarthur: My Lords, I support everything to do with open government and the virtue of websites. However, can the noble Lord tell us the cost of the Home Office website and the number of "hits"—I believe that that is the technical term—it has had and how that has grown in comparison with other departments of state over the past couple of years?
Lord Rooker: My Lords, I am told that it was "hits"; these days, the phrase is "page impressions".
Noble Lords: Oh!
Lord Rooker: Yes, my Lords; I had to look through the jargon myself. That is a difficult question. The Home Office has a main website and a huge number of subsidiary sites. I believe that the latest figures available to me are being given today in the other place in Answer to a Parliamentary Question. In 2002–03, the cost of running the site for a full year was just over £1.6 million. The number of page impressions was about 6 million, although I am told that the total number of "hits"—as in the jargon of all the other sites—was well over 30 million.
The Earl of Northesk: My Lords, can the Minister tell us what conformance level is achieved by the
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Home Office website and those of other government departments in respect of the web accessibility initiative of the World Wide Web Consortium?
Lord Rooker: No, my Lords. But the Home Office website did come fifth in an independent check of website user-friendliness published by an independent company, the name of which I cannot remember. I have it. The Home Office website was rated fifth overall in the second annual report on key government websites published by Porter Research. Having seen that, needless to say, I asked, "That's all very well for the Home Office. Where did the ODPM come in?". As copies of that report are apparently very expensive, we do not own one. However, I am told that we are not in the top five or the bottom five.

Zimbabwe
3.3 p.m.
Lord Alton of Liverpool Lord Alton of Liverpool asked Her Majesty's Government:
Whether they intend to raise the recent closure of church schools in Zimbabwe, the arrest of teaching staff and warnings of forthcoming famine in the country at the United Nations.
The Lord President of the Council (Baroness Amos): My Lords, Zimbabwe's schools have now reopened and the teachers have been released without charge. The continuing humanitarian crisis in Zimbabwe is a topic of constant discussion among the donor community, including the United Nations. The UN will continue to monitor the humanitarian situation as closely as it can, but the Zimbabwe Government's recent decision to cancel the joint crop assessment could delay the international community's response if food aid is needed.
Lord Alton of Liverpool: My Lords, I am grateful to the Leader of the House for that reply. Did she see the disturbing comments at the weekend of the Archbishop of Bulawayo, Archbishop Ncube, who said that he believed that the Mugabe regime,
"is planning to starve the people in order to get votes"?
Does she not agree that the deliberate targeting of food against opponents of the regime is a very sinister development, and that the eviction of the United Nations crop assessors whom she just mentioned also will ensure that the situation in the country becomes ever worse? What has to happen in Zimbabwe before Her Majesty's Government believe it right to raise this matter in the Security Council?
Baroness Amos: My Lords, I did see those comments. The noble Lord will know that the Archbishop of Bulawayo stated that he thought that some 10,000 people in western Zimbabwe had died as a result of lack of access to food in the past year.

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On the issue of the Security Council, we have been round this ground a number of times. The UN Security Council will look at issues only in relation to peace and security in the world. When the situation was dire, we managed through the World Food Programme to have the issue of Zimbabwe raised at the Security Council. However, without the support of the African nations that have consistently voted a no-action motion in the Commission on Human Rights—so that the concerns of the European Union and others about human rights are not considered on an annual basis—this issue will not be raised at the Security Council.
Lord Avebury: My Lords, is the noble Baroness the Leader of the House aware that because parents are being charged a levy at Zimbabwean schools for the cost of chalk, paper and other consumables, which is continually being increased to match the 600 per cent inflation, many parents have withdrawn their children from schools, so that enrolment is now at only 59 per cent? Is she further aware that Mr Gideon Gono, the governor of the Reserve Bank of Zimbabwe, is here, apparently to make arrangements to ensure that all remittances by exiles are sent through the Reserve Bank so that he can cream off a fee and exchange it at the official exchange rate, making it even more difficult for parents who depend on these remittances to continue to keep their children at school? Will she not withdraw the visa that has been granted to Mr Gono? How does he come not to be on the exclusion list?
Baroness Amos: My Lords, on the number of children withdrawn from schools, I was not aware of the figures mentioned by the noble Lord, Lord Avebury. I am aware of the fact that the fees have had to be raised and that inflation in Zimbabwe is running at more than 500 per cent, which is causing a great many problems not only for parents with children but for every ordinary Zimbabwean citizen in accessing food and other daily essentials.
As I understand it. the governor of the Reserve Bank is not on the list because he is not playing a leading role in the ZANU/PF politburo or in the government. However, I will go back and check on that and write to the noble Lord if my information on that has changed. I am aware that the Government of Zimbabwe are seeking to reach out to the diaspora and seeking to get them to send remittances back to the country through formal channels. I cannot comment on the use that they will make of that.
The Lord Bishop of Manchester: My Lords, is the Minister aware that half an hour ago I was speaking to the diocesan secretary in Matabeleland, who informed me that although things have improved as the Minister indicates in education, the fact remains that the three heads of the Anglican schools in Matabeleland remain suspended? The issue of fees being raised to match the 600 per cent inflation to which the noble Lord, Lord Avebury, referred, remains a continuing problem. I
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wonder whether the noble Baroness can reassure the House that her very optimistic response really does have sufficient background to it.
Baroness Amos: My Lords, I certainly do not feel that I gave an optimistic response. I think that the situation in Zimbabwe is dire. On the issue of the Anglican school heads, I was not aware that they remained suspended. I was asked the specific question of whether there were any remaining concerns with respect to church schools in Zimbabwe. I will go back and check on that matter again. The information I have indicates that six head teachers were briefly arrested but were released. However, the issue of suspension was not brought to my attention.
Baroness Williams of Crosby: My Lords, the noble Baroness—I think with the full understanding of the House, which knows of her concern in this matter—pointed out the difficulty of getting any reaction from the African states. Can she confirm that there is a very serious situation in Botswana because of the number of Zimbabwean refugees flowing into that country looking for some sort of food and some sort of work? Can she say whether the same crisis is occurring among other neighbours of Zimbabwe, with the possibility that minds might be altered by that?
Baroness Amos: My Lords, I shall try to explain to the House that it is very difficult to get a collective response from African countries when these issues are raised in public. In our discussions with individual heads of state of African countries they will express concern about the situation. Noble Lords will understand that I cannot go into the detail of those private discussions.
Botswana is facing a difficult situation. Some 127,000 Zimbabweans are trying to get into Botswana each month. The noble Baroness will know that Botswana has had a long history as a stable economy, which has recently been undermined because of the high level of HIV/AIDS. Botswana has erected a security fence on the pretext that it is to keep out wandering cattle. Many people feel that it is to deal with illegal immigration. It is impacting on other countries, who have expressed concern.
Baroness Park of Monmouth: My Lords, the Minister has told us many times that it is effectively impossible for us to raise the issue of Zimbabwe in the UN Security Council for the reasons that she has given. What effort has been made to get the Commonwealth, which, after all, includes a number of African and Caribbean countries, to make representations as one body in the United Nations? As it is, we are allowing the African Union to dictate what happens in an organisation that is supposed to be there to protect the humanitarian rights of the world, among other things. Can we not have a Commonwealth-organised demonstration of sympathy and solidarity? Let the Commonwealth or the Commonwealth countries table the resolutions that we are unable to do, apparently.
Baroness Amos: My Lords, the noble Baroness knows as well as I do the difficulties that the Commonwealth has faced at recent Commonwealth Heads of Government Meetings—the most recent in Abuja and the one before that—in reaching a consensus on Zimbabwe. She will also know that Mr Mugabe actually took Zimbabwe out of the Commonwealth as a result of the decision that was taken at Abuja—a decision which, I have to say, was fought hard over. I met with some individuals from the Commonwealth Secretariat this morning. Their feeling is that they are only just beginning to repair some of the damage that was caused at that meeting as a result of the discussion about Zimbabwe. So, while I understand what the noble Baroness is trying to say, I do not think that it is something that the Commonwealth would be able to do collectively, with respect to the UN Security Council.
Lord Howell of Guildford: My Lords, I think that we all agree that Mr Thabo Mbeki, the President of South Africa, is a central figure in trying to resolve this terrible situation. Now that the poison is spreading out of Zimbabwe into Botswana, as the noble Baroness, Lady Williams, has reminded us, and into South Africa, can the Minister say when Her Majesty's Government last made representations to Mr Mbeke or last talked to him about action that is desperately needed to stop this issue poisoning the whole of the southern African development plan?
Baroness Amos: My Lords, I have said many times in this House, as has my noble friend Lady Symons of Vernham Dean, that we have an ongoing dialogue with South Africa about this issue at ministerial and official level. My honourable friend, the Minister responsible for African affairs, was in South Africa last week and of course these issues came up as part of that discussion. South Africa is playing a very important role behind the scenes in seeking to bring the opposition parties and the government together with respect to looking at the future of Zimbabwe. However, we all know that it is not an easy task and some noble Lords will have seen the interview on Sky and the comments which were being made by Mugabe about the state of that country. It is absolutely clear that lie puts being in power above all else and cares little for what is happening to the people of Zimbabwe.
Lord Acton: My Lords, last week in answer to my supplementary question on a Starred Question put by the noble Baroness, Lady Park, the Minister gave a figure of 2 million Zimbabwean refugees in South Africa. Today she has given a figure of the number of Zimbabweans seeking to enter Botswana. Does she have a figure for how many Zimbabwean refugees there are in Botswana and how many there are in Mozambique?
Baroness Amos: My Lords, I do not have that figure, partly because the figures I have are from the Botswana immigration authorities and relate to people trying to get into the country. They have concerns that a number of people manage to enter illegally, but I do not have those figures. I shall seek to find them, write to my noble friend and put a copy in the Library.
Lord Watson of Richmond: My Lords, does the Minister not understand that what so concerns the House and public opinion is that diplomacy seems to be producing a conspiracy of silence combined with ineffectiveness?
Baroness Amos: My Lords, I well understand the concern being expressed in the House, but we also need to understand that the people of Zimbabwe and people in other African countries feel that Britain let them down. I have travelled to many of those countries and have been on national radio taking questions from people about the situation between Britain and Zimbabwe. They feel that at the point when black Zimbabweans needed help this country preferred to support white Zimbabweans who had stolen their land. That runs very, very deep. If we do not understand that, we fail to understand the power that Mugabe has in raising the temperature and portraying Britain always as a colonial power looking backwards rather than forwards.
Lord Elton: My Lords, the Minister has illustrated clearly the difficulties that we have as the principal actors against that regime. Is it not therefore relevant that the Question refers to church schools? There are many churches and many black churches in Africa which do not have that handicap. Will the Government facilitate in any way that they can the transfer of information and views between black African churches so that they come to bear on black African governments?
Baroness Amos: My Lords, of course we have worked with the Churches and other NGOs. We have sought to support the Solidarity Peace Trust, for example, and other NGOs working in this area, to bring the situation to the attention of African governments. But I have to say that the bulk of the black population in African countries fails to see the logic of what we are trying to do now. That is why it is so difficult for South African leaders to come out and speak more passionately in public in the way that they do in private about what is going on in Zimbabwe.

Civil Contingencies Bill
Brought from the Commons; read a first time, and ordered to be printed.
Business
Lord Grocott: My Lords, before we start the Second Reading of the Scottish Parliament (Constituencies) Bill, perhaps I may remind the House about timings. We have the Second Reading debate, followed by continuation of the Committee stage of the Higher Education Bill and then an Unstarred Question. If we are to complete our business by the target time of 10 p.m., it would be very helpful if all Back-Bench contributions to the Scottish Parliament (Constituencies) Bill were timed at around 10 minutes.

Scottish Parliament (Constituencies) Bill
3.18 p.m.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): My Lords, I beg to move that this Bill be now read a second time.
The Bill is a short and specific measure. It will keep the size of the Scottish Parliament at 129 MSPs, by removing the link in the Scotland Act 1998 which makes the Scottish Parliament's constituencies the same as those for Westminster. The Bill also provides for the separate review of the Scottish Parliament constituencies and regions by the Electoral Commission, which shall take over the responsibilities of the Boundary Commission for Scotland after the completion of its current review.
The Government accepted from the outset that devolution removed the need for special consideration for Scotland in terms of representation in the House of Commons and, therefore, that the electoral quotas for Scotland and England should be the same. That was an integral part of the devolution agreement.
The Scotland Act 1998 provided for this reduction in MP numbers and made the constituencies of the Scottish Parliament the same as those for Westminster—except for Orkney and Shetland. The Boundary Commission for Scotland has recently concluded its review of the Scottish Westminster constituencies. Its recommendations would reduce the number of these from 72 to 59.
The next stage in the review process is for the commission to consider the boundaries of the regions which return additional list Members to the Scottish Parliament. This work has to be concluded—or made unnecessary by the Bill—before the commission can report to my right honourable friend the Secretary of State for Scotland. The commission is required to report by December 2006, but in light of its progress so far, it is likely that its review will be finished much sooner. I can assure the House that there will be no delay in implementing the commission's recommendations once it has submitted its report.
As a consequence of the present linking of the Westminster and Scottish Parliament constituencies in the Scotland Act, there would be an automatic reduction in the size of the Scottish Parliament—from 129 to just over 100 MSPs. However, it was made clear by my noble friend Lord Sewel during the passage of the Scotland Act that the Government would keep under review the issue of the size of the Scottish Parliament, taking account of its operation in practice.
The Scotland Office's public consultation at the beginning of 2002, which sought views on the case for retaining or ending the linking of Westminster and Holyrood boundaries, showed an overwhelming body of opinion in favour of maintaining 129 MSPs, in the interests of the Parliament's stability. Following this consultation, it was announced in this House on 18 December 2002 that the Government intended to bring forward legislation to retain the existing number of MSPs. The Bill delivers that commitment.
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Let me turn to each part of the Bill. Clause 1 replaces Schedule 1 to the Scotland Act—which makes provision for constituencies, regions and regional Members in relation to the Scottish Parliament—with a new schedule that retains the number of constituencies in the Scottish Parliament at 73, with eight regions continuing to return seven regional list Members, thereby preserving the size of the Parliament at 129 Members. This clause also introduces Schedule 2, which makes provision to deal, if necessary, with the period before the functions of the Boundary Commission for Scotland are transferred to the Electoral Commission.
Clause 2 gives effect to the provisions in Schedule 3 concerning the current statutory review of Westminster constituencies and Scottish Parliament regions which is being carried out by the Boundary Commission for Scotland.
The Boundary Commission is required to submit to my right honourable friend the Secretary of State for Scotland a report on Scottish Westminster constituencies, which must also include recommendations for consequential alterations to the regions for the purposes of Scottish Parliament elections. However, this latter part of the commission's report will not be relevant once the Scottish Parliament constituencies and regions have been decoupled from the Westminster constituencies through the Bill. Any changes concerning these regional boundaries therefore need to be disapplied.
Schedule 1 is linked to Sections 1 to 12 of the Scotland Act concerning elections. It replaces the present Schedule 1 to the Scotland Act, specifies the constituencies and regions for purposes of the Scottish Parliament, provides for the Electoral Commission to review the boundaries of the constituencies and regions, and provides for the holding of local inquiries following any objections in relation to proposed changes.
Schedule 2 makes transitional provisions to deal, if necessary, with the position before the Electoral Commission takes over the functions of the Boundary Commission for Scotland. Schedule 3 ensures that any recommendations on changes to the regional boundaries included in the report of the Boundary Commission following its current review will not be acted upon, as these will no longer be relevant.
It will be seen from this description that the focus and scope of the Bill are narrow. Its purpose is to retain the current size and structure of the Scottish Parliament. It is not the Government's intention to introduce through this measure more radical changes. The purpose at this time is to provide the Scottish Parliament, so soon after its establishment, with a period of stability. The Bill therefore simply makes the technical changes to the Scotland Act required to keep the number of MSPs at its current level.
Nevertheless, the Government are aware of concerns about the operation in future of different boundaries for Westminster and Holyrood constituencies. In the light of these concerns, my right honourable friend the Secretary of State for Scotland announced during the Second Reading of the Bill in another place, on 9 February, that the work of the independent commission to look at issues arising from having different Holyrood and Westminster

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boundaries—which was announced at the same time as the decision to retain the present number of MSPs—will be brought forward. The Government now intend to take this matter forward more quickly, as some significant changes have occurred since the end of 2002.
Following the Scottish Executive's intention to introduce the single transferable vote for local government elections in Scotland by 2007, it is now proposed that the commission—as well as looking at any problems arising from different Westminster and Holy rood boundaries—should also take a fresh look at the arrangements for elections to the Scottish Parliament and for relationships between MPs and MSPs and their constituents and public bodies in Scotland.
The commission will be independent and will consider the case for change and make recommendations to my right honourable friend the Secretary of State for Scotland and to the First Minister. The commission will start work as soon as possible, and will be expected to complete its work in around 18 months. It will be expected to carry out its remit through wide-ranging consultation designed to achieve a consensus for any change.
I am pleased to tell the House that my right honourable friend the Secretary of State for Scotland has today announced that Professor Sir John Arbuthnott has agreed to be chairman of the commission. Sir John is a renowned academic and was principal and vice-chancellor of the University of' Strathclyde for nine years until 2000, and is currently chairman of the Greater Glasgow NHS Board. Membership of the commission will be announced shortly. The members will be individuals who are well respected in their fields.
The commission's remit will reflect the fact that since the May election last year a substantial debate has developed in Scotland on the subject of the electoral arrangements for the Scottish Parliament. Scotland now faces the prospect of four different voting systems: UK general elections on a first-past-the-post basis; European elections on the list systems of PR; the additional member system for Holyrood; and STV for local government. There is, clearly, potential for confusion on the part of voters. The Scottish Executive shares these concerns and welcomes taking this debate forward.
Any future decision to change the present arrangements will need to reflect a consensus of view within Scotland. The Government believe that an open, independent and transparent review by the commission of the effectiveness of the current system and the possibilities for change is now necessary. The announcement of this measure has already attracted broad support. It is, however, important that this issue is not pre-judged—although of course any outcome would need to respect the basic principles of the devolution settlement.
In particular, the commission will examine the consequences of having four different voting systems in Scotland, and different boundaries between Westminster and Scottish Parliament constituencies, for the following: voter participation; the relationship between public bodies
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and authorities in Scotland and MPs and MSPs; and the effectiveness of representation of constituents by elected members.
The commission will be asked to make recommendations on whether these consequences require action to be taken in respect of: arrangements between elected representatives, to ensure that their constituents and organisations receive the best possible service; the method of voting in Scottish Parliament elections; the pattern of electoral boundaries in Scotland; and the relationship with other public bodies and authorities in Scotland.
I wish to make it clear that this proposal does not affect in any way the process for reducing the number of Scottish constituencies for Westminster which is well under way, nor the number of MEPs elected for Scotland; nor will it affect the Scottish Parliament (Constituencies) Bill itself, which is the subject of our discussions today.
With this exposition of our future plans, I hope that it has been helpful to set the context for the Bill. I am pleased to say that I have concluded within my 10 minutes. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Filkin.)
3.28 p.m.
The Duke of Montrose: My Lords, first, I must congratulate the Government on producing such succinct legislation that the main body of the Bill takes up only one page. Recently, when we hear of a Bill coming to this House, we are usually lucky if it works out at fewer than 200 pages. I know that that has been done not for our convenience, but in order to limit the scope for any of us to propose amendments. However, perhaps one should be thankful for small mercies.
Like many noble Lords, I sat through the various stages of the Scotland Bill, so I find it quite extraordinary that the Government should be bringing back legislation on this topic which we debated at such length in 1998. At that point, various elements of the Opposition explored a great many of the options that could be considered in arranging a legislature for Scotland. The Government disagreed, and the elected Chamber got its way.
We now have the Scotland Act, and politicians have had time to digest its meaning. Those of your Lordships who were in this House then will hardly need reminding of the replies that the Government gave when we were debating the Bill. In Committee, the noble Lord, Lord Sewel, said:
"the Government have concluded that the balance of advantage lies with maintaining the link between Westminster and the Scottish parliament constituencies".—[Official Report, 8/7/98; col. 1336.]
He went on to explain in some detail how this view was the one contained in the White Paper, and he quoted paragraph 8.7 of that document, which was of course the document used as the basis for the referendum in September 1997. This was the document crafted by the constitutional convention which we were for ever after asked to consider as if it were almost holy writ and, "the settled will of the Scottish people".

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The noble Lord further said that,
"a constituency link will be the essential foundation of the new Scottish Parliament… when the parliament does reduce in size, it will still be able to function effectively and efficiently".—[Official Report, 8/7/98; cols. 1338–39.]
The Government have tried to make the argument that—the Minister reminded us of this a few moments ago—they always thought they would come back to consider the structure of the Scottish Parliament. On 9 February this year the Minister in another place said that,
"my noble Friend Lord Sewel made it clear that the Government would keep the matter under review".—[Official Report, Commons, 9/2/04; col. 1147.]
This has been a puzzle to me as I have scoured the debates that were held in this Chamber and the best I can come up with is a remark by the noble Lord, Lord Sewel, at Report, which is tucked into the closing stages of his reply, that if the Scottish Parliament thought that a reduction in numbers would put at risk the way it functioned, it could ask,
"this Parliament and the United Kingdom Government to reach a balanced view".—[Official Report, 22/10/98; col. 1606.]
To me that is far from making clear that the Government were committed to unpicking the Scotland Act. One would like to think that the Government's words in this Chamber mean a little more than what one would expect from exchanges over a pint of beer in a local pub.
I wonder how the Government rate their grasp of constitutional proposals when they consider this against the first major Act in this sphere which was the Act of Union. My ancestor seven generations ago was President of the Privy Council in Scotland when the Act of Union was signed—a much more complicated document, which over time has attracted a few critics. That was signed in January 1707 and first altered in 1832 when the number of Scots representatives in the other place was increased. That was a gap of 125 years.
If the Government wish to go down this route, we need to try to have some understanding of how things are working at present. If I am not mistaken, there was a great sense of euphoria about the setting up of the Scottish Parliament. The Chamber was to be filled with a raft of fair-minded people who would not need any checks and balances such as a second chamber to second-guess the wording of their legislation. They would be imbued with the wisdom of the pre-legislative scrutiny committees and the correct legislation would immediately follow.
The public perception of what actually happens has fallen rather short of that rosy concept. The Members themselves seem quite happy with the arrangement that if they have fixed opinions, they can ignore the views of the committees.
The present Parliament likes to argue that it is stretched to the limit. Those who have watched the legislative process have been awed by the spate of legislation and the radical new ideas and proposals that the legislation has introduced. Perhaps it is worth reminding ourselves that due to the timetable at Westminster, there was a ready-made backlog of
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Scottish measures awaiting the new Parliament, let alone the opportunity to try out the latest in political theories. It does not take much experience of institutions to know that the introduction of a new broom heralds a spate of increased activity. This does not prove that it will be necessary for this to continue.
An easy way of criticising the way the Parliament has operated is to highlight the escalating cost of the new Parliament building. Everyone in Scotland is acutely aware of the saga. Most of this centres on the way that decisions were taken or simply never addressed. My noble and learned friend Lord Fraser of Carmyllie is just today rounding off his inquiry into all aspects of that episode and we will hear a great deal more when his findings are published.
But we should not lose sight of the fact that the money, however hard come by, is part of a capital spend, the significance of whose monetary cost will depreciate over the years, particularly if the building is found to add to the respect and significance of the Parliament.
Perhaps a more worrying element is that this is only one example of how the Scottish Executive has had a bit of difficulty with its budgeting. It is getting a reputation for serious underspending each year. Noble Lords may have noticed yesterday the estimate by Professor Midwinter, one of their financial advisers, that the Scottish Executive's underspend in the year 2002–03 was £408 million.
A serious element that is in equal need of responsible analysis is the cost of running the Parliament year by year. This is the area which concerns us today and is of great significance to the Scottish voters. Many sections are beginning to feel that there are too many politicians in Scotland. On a quick look at comparable legislative systems only Sweden has fewer constituents per elected politician.
The cost of running the Parliament is booming, as is the cost of the executive. Administration costs have risen by £95 million in the past seven years. Ministerial cars have increased from eight to 14 in the same period. Staff numbers in the press office have increased from 60 to 90 and by more than 1,000 in the executive office. This is becoming increasingly hard to justify. If voters again feel let down by the lack of reliable budgeting, they will feel not just let down by Labour but that there is a wish to add insult to injury.
An additional effect of a reduction in the number of MSPs would be a reduction in all that administrative tail that goes with them—the researchers, the press officers, the secretaries and the constituency organisations. The figures that the Scottish Parliament gives for the cost of each MSP, not including his travel allowances, is £104,660 per annum. A reduction of 21 in number would represent quite a tidy sum, let alone what more could be saved if it meant fewer Ministers.
Taking that on board, the proposal put forward by the Conservative Party in Scotland is that in implementing the terms of the 1998 Act, a reduction in the number of MSPs should be accompanied by a streamlining of the committees from 17 to 13 with a reduction in the number of Ministers from the present number of 20. This would

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produce a more efficient Parliament which would give Back-Bench MPs more time to hold the Government to account.
Perhaps I am not the only one to give a wry smile when reading the Explanatory Notes to the Bill when I came to paragraph 25, entitled the "financial effects". The only thing mentioned as being of concern is the cost of an additional periodic boundary review. Can the Minister tell us what savings would be forgone by the implementation of this Bill? This is the figure that the Scottish voters would really like to know, and I am sure it would be of great interest to your Lordships' House.
Earlier the Minister mentioned introducing a period of stability. I would like to ask him whether this Bill is in any way seen as a temporary measure to tide the Scottish Parliament over its first years. Surely if the interests of the public are concerned, the need for these cuts is bound to come.
I go back to our discussions on the 1998 Bill and the words of the noble Lord, Lord Sewel, in Committee about the constituency link which is to be the,
"foundation of the new Scottish Parliament".—[Official Report, 8/7/98; col. 1338.]
The idea was to enable the Members of the various Parliaments to share out the work on the basis of recognised responsibilities. This was going to be a wonderful thing for the satisfaction of constituents. Do the Government feel that anything like this has been achieved?
Looking at the situation in my home constituency and the remarks made by Members of the other place in their debate on this Bill, it would appear that even with the current coterminosity, there is plenty of scope for hot-headed competition between the elected and the proportional list MSPs, let alone others, as each tries to advance his influence with the voters in the hope of greater favour at the next election. Add to that the proposal for non-coterminosity that is now before us and the scope for confusion escalates. Even the Scottish Affairs Select Committee in another place is clear that the boundaries should be coterminous.
The adjustment needed to the working of the Scottish Parliament to comply with the Scotland Act and the reduced number of Members is not all that hard to comprehend but the confusion that this Bill will sow in the mind of the ordinary voter is.
3.38 p.m.
Lord Maclennan of Rogart: My Lords, the manner in which Scotland's constitutional changes have been made in the past decade in some ways are a model for the rest of the United Kingdom. In particular the proceeding on the basis of the constitutional convention that preceded the 1997 general election sought the common ground between the parties and laid the foundation for reform upon a broad consensus. In that I believe the Government were singularly successful. In so far as they strayed from that path, they made an error. I see the Bill as the correction of an error made when the Scotland Bill was introduced, with respect to the automaticity of the reduction of Members of the Scottish Parliament in
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the expected event of their representation in Westminster being reduced. I do not wish to linger on that. There has been a good deal of historical discussion in another place as to whether it was the preferred course of the then Secretary of State, the late Donald Dewar. I was not privy to those discussions, although his smiles were sometimes quite revealing.
What the Government are proposing is entirely welcome, as far as it goes. It is clearly right to build upon the experience of how the Scottish Parliament has worked in judging whether it makes sense to reduce its membership. Objective observers of the workings of the Scottish Parliament have been impressed by the operation of the Scottish committee system. I cannot share the view expressed by the noble Duke, the Duke of Montrose, that it would make sense to reduce the number of committees in the Scottish Parliament on the hypothesis that there would be some reduction in legislative activity, as there has been a catching-up operation.
I do not believe that a legislature as empowered to act across a broad range of government responsibilities as the Scottish legislature would wish to have its role confined by the monetary considerations adduced by the noble Duke. One of the grievances—which I certainly felt as a Member of Parliament representing a Scottish constituency in Westminster during 35 years of service—was that many Scottish matters were artificially held up because of the different mode and origination of legislation. We enacted desirable legislation less frequently than south of the Border. That wrong has been put right.
Lord Forsyth of Drumlean: My Lords, I am grateful to the noble Lord for giving way. Could he give us three examples of legislation which was held up and could not be implemented under the previous system? Could he also give us three examples of legislation which the Scottish Parliament has been responsible for which have benefited Scotland and would not otherwise has happened?
Lord Maclennan of Rogart: My Lords, I will not answer in precisely the terms I am invited to by the former Secretary of State for Scotland—to whose considerable knowledge I pay tribute—although I could. I give one example of a speedy enactment of legislation in Scotland since the devolution package: university fees. That measure has rested on a consensus found in Scotland, and puts students in Scotland in a more advantageous position than those south of the Border. Other matters could also be adduced in support of the same case—perhaps the treatment of the elderly. The Scottish Parliament has much to be proud of in its short existence, and the teething troubles—which there have undoubtedly been—are not of the kind to cause us fundamentally to rethink the settlement, which has worked very much to the advantage of the Scottish people.
I welcome the Bill so far as it goes, although there are loose ends. They are recognised by the Government's decision to appoint an electoral commission chaired by Sir John Arbuthnott. On behalf of my noble friends

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here today, I welcome the announcement of his appointment. We look forward to submitting the evidence of our party, not least on the electoral systems. Four different systems look to be capable of some amendment to meet the desirable objective of clarity. Although I have not noticed any great confusion flowing from the existing systems of election in Scotland—lower turnouts, discrepant results, a lack of understanding—I hope that further changes will be contemplated and the detail advanced during and following the report of the commission.
The issue that has been raised as pointing to some inherent defect in the settlement is the failure to prescribe coterminous boundaries for the parliamentary constituencies of the two Parliaments. That is, from a public point of view, not entirely desirable. However, again I would resist the argument that it is not entirely comprehensible. There has long been uncertainty among the public at large, particularly in cities, about where the boundaries of parliamentary constituencies run. It has rarely been my experience that the parliamentary commissioners, in recommending changes, had in mind what might be perceived as the natural boundaries.
None the less, in seeking coterminosity—to use that ugly word that has emerged in the past couple of years—it is a goal worth reaching for, without distorting other factors such as the desirable proportionality of the system which is designed to ensure that members of the public have a truly fair voting system.
I am pleased that we have not heard from the noble Duke today a serious argument against the proposed fundamental change in the law. Some of his colleagues in another place resisted the measure in principle. It seems to me that the Government are right—it is a belated conversion—to recognise that Parliament got it about right in the Scotland Act. I hope that this Bill has a speedy and easy passage through your Lordships' House.
3.48 p.m.
Lord Palmer: My Lords, I declare an interest. I have spent more than half my life as a resident of Scotland where I try to run two small businesses.
I oppose this Bill because I believe it will damage the constitutional cohesion of the United Kingdom. It will further erode the relationship between Westminster and the Scottish Parliament; and it will feather-bed the Members of the Scottish Parliament, at the expense of the taxpayer and of local accountability.
The last time we had a proper debate on Scotland was over two years ago and there is a temptation to use this Second Reading debate to discuss Scotland in general. I shall do my best to resist that temptation. However, the devolved institution on the Mound now employs more staff per head of population than any other country in the world.
The Scottish Parliament could easily have started out as a new, trim, high-tech operation. After all, the organisers started out with a completely blank piece of paper back in 1998.
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The first intentions were indeed good. The plan was for 240 parliamentary staff, and a total of fewer than 400 in the Parliament as a whole—including MSPs, researchers and journalists. Somehow, between then and now, that number has mushroomed to 460 staff to run the Parliament, with a total of 1,180 people.
Your Lordships will be aware that I am a longstanding critic of the devolved Parliament. Two years ago I unsuccessfully attempted to promote a Bill providing for a fresh referendum on Scottish devolution. Since then, Scottish voters have indeed had a referendum of sorts—I refer to last year's Scottish elections. Less than half of the electorate bothered to turn out to vote. The majority of the electorate refused to endorse with their suffrage a Parliament that was only four years old. How can anyone then describe devolution as "the settled will of the Scottish people"? However, this Bill rewards the Members of a Parliament that has forfeited the support of its own people. This Bill revisits the Scotland Act 1998 in every other context, supporters of devolution having chosen to regard it as written on tablets of stone for time immemorial. When exactly will the orders be laid for the new Westminster constituencies?
The reduction in the number of Scottish constituencies in this Parliament from 72 to 59 is a welcome reform, ending over-representation that has long been a scandal and a bone of contention with many English MPs. However, the Government's refusal to implement the same reform in the Scottish Parliament is a blatant and outrageous act of patronage—perpetuating jobs for the political third XI to strut and preen themselves. It is shocking that between 25 and 30 per cent of the Scottish population is now employed in the public sector. The headline figures for the Scottish Executive tell a similar story. The number of Scottish Executive civil servants has increased by 1,700 since 1997, with 1,000 of this increase in the Executive office staff. The number of ministerial special advisers has risen from two to 11 over the same period, while the number of media and communications staff has gone up by 60—from 30 to 90.
I accept there was always going to be an increase in staff as a result of devolution, but these figures are ridiculous. The rise in media coverage and the creation of new Ministers and departments necessitated a press office, but what is alarming is the apparent overstaffing. For example, do we actually need 44 people compiling an official report of the Parliament for an institution that sits three days a week, seven hours a day when the other place has 80 people putting together three times as much information? Here in your Lordships' House, we have 30 members of Hansard staff. Do we need 460 people to run a Parliament for 129 MSPs and a population of 5 million? I suggest we do not. This Bill will sadly perpetuate all these deficiencies.
The uncoupling of Westminster and the Scottish Parliament constituencies will create an incoherent Balkanisation of the Scottish electoral map, with potentially separatist implications. It will make politics even more confusing and anonymous—and I believe, therefore, less democratic. It is the more indefensible in that 56 of the 129 seats in the Scottish Parliament are

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awarded by party leaders to their supporters, on the so-called regional list system, without those MSPs being directly elected by the voters. If Scotland, prior to devolution, was over-represented at Westminster by 72 MPs with responsibility for every area of government—including five Ministers at the Scottish Office—how can it possibly need 129 MSPs, 22 Ministers and all the back-up that they require, in a devolved Parliament with fewer responsibilities?
I believe this Bill is a shameless attempt to provide sinecures for people who have demonstrably failed to retain the confidence of their own electorate, and are shortly, we are told, to be housed in a controversial building whose cost cannot now fail to pass the £0.5 billion mark—as I suggested two years ago. This constitutes an excessive burden on Scottish taxpayers at nearly £100 per elector. It must not be forgotten that a £40 million building, fully equipped, was turned down by the Scottish Executive at the outset because it was thought not to be sufficiently prestigious. This situation and this Bill represent a sad tale for the people of Scotland.
I deeply regret that Lord Mackay of Ardbrecknish is no longer with us, as I feel certain that he would feel even more strongly about this Bill. I also regret that the original First Minister, Donald Dewar, is no longer with us either. I believe that he would have been horrified at what is going on at the moment. He so eloquently set out the aims of the Scottish Parliament in his opening address on 1 July 1999:
"We will make mistakes. But we will never lose sight of what brought us here: the striving to do right by the people of Scotland; to respect their priorities; to better their lot; and to contribute to the commonweal".
This Bill is one such mistake and I hope it flounders at every hurdle.
3.56 p.m.
Lord MacKenzie of Culkein: My Lords, I welcome this short Bill, which, as we have heard this afternoon, is designed to maintain the present number of Members of the Scottish Parliament at 129. The Bill will accomplish that end by removing the link between the constituencies for the Scottish Parliament and those of the House of Commons.
There are two issues which seem to be perfectly plain. First, there is no longer a case for a higher representation of MPs from Scotland in the UK Parliament. That is now accepted by almost everyone, and this Bill will not alter that reduction to 59 MPs. Secondly, there is a strong case to retain 129 MSPs at Holyrood. That was the view of by far the majority—some 184 out of the 237 responses to the consultations initiated by my right honourable friend, the then Secretary of State for Scotland, Helen Liddell. That 184 included inter alia the Scottish Parliament, the Executive, the Electoral Commission, 13 councils in Scotland, the Confederation of Scottish Local Authorities and every political party except for the Scottish Conservatives.
Not many noble Lords participated in that consultation, but none supported the cutting of the number of MSPs in line with the provisions of the
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Scotland Act 1998. I am surprised—to say the least—at the views now being put forward by the Conservative Party, as I think they are out of step with other parties and with their own position in 1998. The noble Lord, Lord Palmer, has just referred to the late and much-missed Lord Mackay of Ardbrecknish. However, he said in this House:
"I cannot think of anything dafter for the Government to do than say to this Parliament, 'You can start off with 129 members, but when the House of Commons reduces to about 58 Scottish members… your numbers will be reduced in a similar manner'"—[Official Report, 22 October 1998; col. 1600.]
That was what the late Lord Mackay said, and similar things were said in another place at the same time by the Member for Devizes, Michael Ancram, and the Member for Woodspring, Dr Liam Fox—both of whom are still official spokespeople for the Conservative Party. I shall not quote them now because I know noble Lords are familiar with the then views of the Official Opposition.
I was not a Member of your Lordship's House when the Bill that became the Scotland Act 1998 was debated.
Lord Forsyth of Drumlean: My Lords, I am grateful to the noble Lord. He is quite right in what he says about the opposition position, but surely he recalls that the Government's position, and Donald Dewar's response, was that it was essential to maintain the link between Members of the Westminster Parliament and Members of the Scottish Parliament. That was why that view was rejected, and why they took on the political difficulty of telling MSPs that they would lose their position—something which they have flinched from at the last moment, it seems.
Lord MacKenzie of Culkein: My Lords, I shall come to that point. As I said, I was not a Member of this House when that Bill was discussed. To take up the matter raised by the noble Lord, Lord Forsyth, I do not know why the Government did not accept the point of view articulated by the late Lord Mackay of Ardbrecknish on not reducing the number of MSPs.
But it is clear that they did take on board the second point made in the same debate by Lord Mackay of Ardbrecknish—that was, to listen. I believe that that is precisely what the Government have done. They have listened. They listened to the views of the Scottish people and to the views that came out during the consultation process. As I understand it, that commitment was given to this House by my noble friend Lord Sewel, who unfortunately is not able to be with us this afternoon. It is right that weight was given to that commitment, and it was right that weight was given to the outcomes of the consultation. In my view, it is too late to cry if one does not participate in the consultation process and does not like the outcome. The effect of silence or abstention is often to give assent by default.
I have only recently returned to live in Scotland after many years away and I have not been immersed in Scottish politics for a very long time. Therefore, I hope that I can be a little more dispassionate. Clearly, there is an argument for stability in a young Parliament, which has been the subject of quite a lot of criticism,

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much of it led by the Scottish media. I believe that expectations for that Parliament may have been set too high, and no doubt some of the criticisms are valid. There is an old saying which goes:
"The only people who do not make any mistakes are the people who do not do anything".
But, as with any new institution—not least one which is the product of major change and still less than five years old—it will take time to bed in. I firmly believe that a little patience will bring its own reward in a Parliament of which Scots can be justly proud.
If there were a bicameral Parliament in Edinburgh, I should be taking a different view of this matter. Not surprisingly, I prefer a bicameral system. However, that is not the case here, and it is essential that the committee system works. Most informed opinion is that it could not be effective if the number of MSPs were reduced, as anticipated in the Scotland Act 1998.
It is argued that the decoupling of the Scottish Parliament and Westminster parliamentary constituencies will give rise to confusion. Some suggest that those difficulties are more apparent than real, but I rather think that the changes could militate against effective working.
However, I suspect that there is a recipe for even more difficulties with the three, and potentially four, different voting systems—systems which were set up in isolation from each other. In addition, politicians in most Scottish parties complain about the alleged activities of list MSPs. Despite the rules laid down for their conduct, there appears to be a continuing difficulty.
It does not make any sense to leave these matters as they are. Therefore, I very much welcome the announcement made in another place by my right honourable friend the Secretary of State for Scotland, Alistair Darling, that the setting up of the independent commission to inquire into the impact of non-coterminous boundaries would be brought forward from a date post the 2007 Holyrood elections.
I understand that, as well as the non-coterminous constituencies, the commission will look at matters such as electoral systems and whether there is a better way of achieving proportional representation. I should be grateful if the Minister could confirm that.
I hope that all political parties will participate in the work of the commission, and I hope that that will include the Scottish Conservatives. It appears from what was said in another place that they are holding fire on that. I hope, too, that all of civic Scotland, including Churches and trade unions, will respond to calls for evidence.
Having worked for a very long time with organisations where the concepts of proportionality and fair representation were very much to the fore, I hope that the commission will have regard to the principles of the work of the Scottish Constitutional Convention, which was put to the Scottish people in the referendum and gave rise to the setting up of the Scottish Parliament.
I hope, too, that the commission can be set up and that it can start work as soon as is practicable. I hope that it can make its recommendations in sufficient time
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to allow for changes to be introduced by the 2007 elections in Scotland. Again, I should be grateful if the Minister could assure the House that there will be no delay in the commission starting its work.
4.4 p.m.
Lord Monro of Langholm: My Lords, it is a great pleasure to follow the noble Lord, Lord MacKenzie, who has done so much in the western highlands and knows Scotland so well.
After we decided to have a Scottish Parliament, I was totally in favour of it and was keen that it should be made to work. I have always believed in devolution, which we started in the 1980s and continued thereafter. Therefore, I have to be disappointed in our progress so far and I wish that the Scottish Parliament had a higher reputation than it has at present. The blame must be laid at the door of the present Government and the Liberal Democrats, who supported them through thick and thin. Of course, the reputation of the Scottish Parliament has been bedevilled by the cost of the parliamentary building. However, we shall leave that to my noble and learned friend Lord Fraser. The committee members who were in place throughout the construction period must feel very ashamed about what has taken place.
This Bill is naturally a piece of political legislation. If it was not to help the present Government, I am certain that it would not have been introduced. But it is our duty as parliamentarians to question the Government on their U-turn in respect of the 1998 Act and to ask why they have changed their minds about the decisions taken during the passage of that legislation. The Government resisted amendments to retain 129 MSPs and made it clear that they believed that there should be a ratio between the number of Scottish Westminster seats and those in the Scottish Parliament.
However, we must ask ourselves why the figure of 129 has been chosen. Noble Lords such as the noble Lord, Lord Steel, may be able to explain why that number is so essential. We may say, "Of course, they want them to man the committees". But why should there be so many committees—and so many Ministers, which reduces the number of MSPs who can work on the committees? My noble friend the Duke of Montrose explained the high cost of the additional staff required to man the committees and the Parliament.
However, if much of the work done by the Scottish Parliament could be carried out by Scottish Westminster MPs for 100 years or more with seven Ministers, why do we need such a dramatic increase in the number in the Scottish Parliament? That is particularly the case when the Sewel Motions mean that the Scottish Parliament is excused from dealing with a certain amount of legislation. Again, one asks: why do they work such a short week? After all, when we were all Scottish Westminster MPs, we had no problem in attending Westminster from Monday to Friday. Why is it so difficult to attend Edinburgh from any part of Scotland? We want to see some streamlining and activity on that front.

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The issue of the reduction in the number of Members of the Scottish Parliament received irresistible lobbying by Labour MSPs directed at the previous Secretary of State for Scotland. She held consultations and, ultimately, we knew that the outcome would be that she would agree with the MSPs.
I quote the right honourable Member for Cunninghame North, Brian Wilson, who was a Minister of State in the present Government. In the Second Reading debate on the Bill on 9 February, he said:
"I cannot find any conceivable public interest that will be served by [the Bill]. On the contrary, it is, as we all know, simply the legislative follow-up to a political fix".—[Official Report, Commons, 9/2/04; col. 1180.]
That is what many people think about this legislation—it has been introduced so that many Socialists and Liberal Democrats can save their seats in Edinburgh. It is directly opposed to the views of the late Donald Dewar.
The Second Reading debate in the Commons was most disjointed, with Labour Members of Parliament interjecting throughout the speeches and appearing particularly unhappy about many of the provisions. It was lucky, indeed, for the Government that there was strong whipping in support of the Bill. Again, Brian Wilson said that the Bill has no regard for consumers. That is true. How does a resident track down his representative? There are four constituencies—that is, four representatives plus the list Members, all keen for action.
It is particularly difficult to know where to turn under present or future circumstances. Take for example my former constituency of Dumfries, where we had one member for one constituency. Now we may have a new constituency called Annandale, Lanark and Peebles and Dumfries Town itself will not even be in the constituency. Yet the MSP will be the Member for Dumfries and we have a Euro MP and local government. Altogether it will be difficult to know in which constituency one is living.
I am afraid that the matter will not be resolved until at least 2010 when all the commissions have decided on the future of Scotland. I would like some answers from the Minister. When will the Boundary Commission submit its decision on the new constituency boundaries for Westminster? That question has been raised on all sides of the House. It has made the decision, which has been announced and published. Why is it holding back and refusing to submit it to the Government so that the Government can then lay an order?
I do not think that the excuse of holding back because it wants to consider the regional aspect holds water relative to a parliamentary election in Westminster. One has to ask the Government when the cut-off date is going to be. The Secretary of State said in the Scotsman in July 2003 that there were no plans to delay the laying of the order. Suppose the election was going to be in autumn this year: when would the order have to be laid so that the administrative work of creating the new constituencies could take place?
The new constituencies have already selected candidates, and everyone seems to think that everything is cut and dried and that we will fight the
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next election on those boundaries, but we have to lay the orders first. If the election is next spring, when will the Boundary Commission have to submit the orders to the Government in order to lay them before Parliament?
This is a key point, and I think the Government have to give a decision tonight as to when the issues are going to be determined. They will say that it is up to the Boundary Commission, but surely there is a telephone in Whitehall. Can they ring up the Boundary Commission and ask when it is going to lay its decision and say that if it does not lay it soon it will have almighty problems over the next general election?
We want to know when the Boundary Commission is going to take action and how soon after that the Government will lay the order. Will the Minister give some of guarantee as to whether the orders will be laid before the next general election, anticipating it will not be before September or October?
Will he tell me also about the Electoral Commission? We currently have an Electoral Commission under Mr Sam Younger. I have the list of members with me. Are we going to have a new electoral commission for Scotland made up entirely of Scots, as there is only one on the present Electoral Commission? I presume that the Government are going to choose who they are going to have. The Minister announced the chairman earlier this afternoon.
When the Boundary Commission has worked extremely well and been entirely non-political, why do we need to have a new Electoral Commission, bearing in mind that the Boundary Commission under the Parliamentary Constituencies Act 1986 can do virtually everything that the new Electoral Commission intends to do? I would like to think that we are going to try to remove the anomaly of so many constituencies and non-coterminous boundaries by going back to having 59 seats and two Members per seat, which would make it 118, and make up the difference with list Members. Then people would know what they were doing and where they were going to be.
All this has to be speeded up and streamlined if the public are going to have confidence in what the Government are doing. They are not particularly confident about postal votes, bearing in mind the shambles that the postal service seems to be in at present. I fear that we are going to have a long period of uncertainty. I hope that while the Bill goes through the House we can remove some of the problems and have action as soon as possible.
4.15 p.m.
The Earl of Mar and Kellie: My Lords, I welcome the chance to speak about issues that have arisen since the passage of the Scotland Act 1998. Perhaps the most noteworthy features of the deliberately tightly drawn Bill are the issues that it does not deal with. I will say more about some of them later.
I am content with the aim of reducing the number of UK MPs to 59 and of retaining the 129 MSPs. I have long believed that the committee system of the Scottish Parliament needs plenty of Back-Benchers if it is to be

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the calm and thorough alternative to a second chamber that I want it to be. No doubt some noble Lords will remark that a reduction in Ministers could create Back-Benchers, but I doubt that there is much room for that in a coalition executive.
I recognise that there is a potential problem with the loss of coterminosity in the constituencies, particularly between elections. I suspect that there are two views on the matter: either that Scottish voters are easily confused or that they are an intelligent and inquiring lot. I prefer the latter. I am sure that should someone contact the wrong MP or MSP they will be steered in the right direction.
I support the transition from the Boundary Commission for Scotland to the Electoral Commission and its future boundary committee for Scotland. However, I recognise that the Bill will double its work as it must keep in review at separate times the 59 United Kingdom constituencies, the 73 Scottish Parliament constituencies and the eight regions.
My one complaint about the Bill lies in Rule 2 of Schedule 1. I believe that the sacrosanct nature of the Orkney and Shetland constituencies should be extended to the Western Isles. The EU grants a special islands group status to such places. The Bill should also do so on account of the peripheral nature of the Outer Hebrides.
The Bill can have an almost fair wind from me for its limited purpose, the Minister will be pleased to hear. Now I can mention—after only two minutes—those issues that need addressing that are not tackled by the Bill. I accept that they will not be, but they probably should be.
First, for the clarification of constituency and regional list MSPs, there is no attempt to define the work and responsibilities of the regional members. There seems to be considerable conflict in certain constituencies. Secondly—this point has already been mentioned—Scotland is about to have four voting systems. There is no attempt to update the United Kingdom voting system to match at least one of the other Scottish systems. In the unlikely but possible event of United Kingdom, Scottish Parliament and local authority elections occurring on the same day, the instructions on the top of each ballot paper will need to be very clear.
Thirdly, there is no attempt to remedy the situation by which the Scottish Parliament does not decide on its own voting system. As a national parliament it should do so. How much longer will Westminster seek to retain that power? Fourthly—here I am extremely pleased to balance the views of the noble Lord, Lord Palmer—I know that the answer to the previous question is: how soon will the Scots demand to move on from our present situation to our real destiny?
Since 1999 Scotland has moved from being a British backwater to a cosy political backwater able to legislate on lesser domestic issues but not on the real issues such as the economy. The remedies for this are all dramatic. Some will call for the return of direct rule; others, such as my noble friends, call for a proper federal
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constitution, and still more, myself included, look forward to what amounts to the end of the political United Kingdom. I seek dominion status, a British solution and EU member status. The recent accession of 10 new member countries changes everything for me. Dominion status retains the social union but a republic would not.
The Bill does not deal with the raging Scottish problem of the fishery. I accept that the fishery is not a big issue in the United Kingdom but it is a big issue in Scotland. It is a pity that the Bill does not seek to devolve direct negotiation with the EU to the Scottish Parliament. Having to go through Westminster is a clumsy way of getting to grips with the necessary reduction in fishery activity needed for conservation purposes and to better manage the fishery.
That load off my chest, I am content with the Bill, recognising that a few problems will occur around non-coterminosity.
4.21 p.m.
Lord Elder: My Lords, I wish to speak very strongly in support of the Bill, which is very much in line with what was envisaged as likely to happen under the Scotland Act. In doing so I have little time for those who claim that somehow a promise to reduce the number of MSPs has been reneged on, and I have absolutely no time for those who, having argued at the time of the passage of that Act that it was necessary to write the figure of 129 into the Bill, are now saying that it is a constitutional outrage that the Government are doing what they asked for.
To look at what happened in 1997—a number of people expressed surprise as to what was happening in this House and what was said about 129—it is necessary to go back to the original White Paper. It was the White Paper which was put to the Scottish people, not the constitutional convention scheme that preceded it.
That White Paper was produced in a remarkably short period of time after the general election. It was published to general acclaim in Scotland and those of us who worked on the White Paper felt that we got what we wanted: a very substantial and real shift in power from London to Scotland.
As a constitutional matter, the question of boundaries was a reserved matter for Westminster, and to give reassurance to those who were worried as to where devolution might lead, it was considered important to keep the boundaries for Westminster and Holyrood the same. It was therefore decided that the White Paper would say that, and when Scotland then voted on it in the referendum and the White Paper received the overwhelming support of the Scottish people, that is what they had voted for.
When the time came to change the White Paper proposals into a Bill, it was decided that to avoid further discussion on the extent of powers of the Parliament—there was always the possibility that there would be further discussion of the powers that had been agreed and set out in the White Paper—we should simply stick to the line that the White Paper was agreed, had been endorsed in a referendum and that the Bill should simply give effect to that. We did

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not want the whole question of the debate on powers reopened. The Scottish Office view—no doubt it was cynical but there was some basis for it; they certainly claimed it was from bitter experience—was that the longer a proposal to move powers from Whitehall lay about in a Whitehall basement, the more likely it was that it would emerge weakened and diminished. There was therefore a premium on acting on what had been in the White Paper and for doing so expeditiously.
When the Bill was in its final stages in this House and the final matter over which there was disagreement was on the figure of 129 with both the Liberal Democrats and the official Opposition calling for that figure to be written into the Bill, there was an impasse. The Government did not wish to reopen any of the agreed powers that were in the White Paper. On the other hand, there was an understanding that a point was being made that was worth looking at.
To overcome that, Donald Dewar and the Minister in this place, my noble friend Lord Sewel—he must be the most quoted Member of this House not to be here except for someone having a tribute paid to him—agreed a line which was designed to convince this House that the passage of the Bill as it stood was the best way forward. He has been quoted before and I will not quote him at length, but at the end of his remarks he said:
"if the [Scottish] Parliament took the view that its workings would be seriously undermined by a reduction in numbers—then it is open to the [Scottish] Parliament to… say to the Government of the day, 'Look, we think we have got a system that works well and effectively. It is in danger of being disturbed in a very deleterious way if this reduction takes place'".
He concluded by saying:
"The Government are a listening government and are prepared to enter into discussion and debate and to formulate policies on the basis of experience."—[Official Report, 17/11/98; col. 1195.]
In a sense, that resolved a situation in which we did not want to move from a White Paper but were prepared to make quite clear that as a listening government this would be listened to.
It was very much in Donald Dewar's character to take that view. Throughout the devolution process he showed a formidable ability not to be tempted into crossing bridges before he had to. He certainly did not wish to get bogged down on the question of the 129 before the Scotland Bill was through Westminster and the Scottish Parliament established. He rightly believed that once the Scottish Parliament was up and running it would be very much easier to make the arguments on the numbers of MSPs.
There was also at that time an underlying assumption that the next Boundary Commission report was unlikely to be implemented before 2006, the date by which it had to be put before Parliament. Indeed, there may have been an expectation in some quarters that the issue of numbers and boundaries would become an issue only after an election in 2005. That we now know is not to be the case. I say to people who are worried about whether this is going to be put down that although I do not know about any other
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party, the Labour Party will be in complete chaos if we have to go back and reselect everyone on the basis of the old boundaries. That just will not happen.
Therefore, the issue is before us slightly earlier than some might have envisaged but that does not change the principle at stake. A listening government were always going to respond to a view from the Scottish Parliament that if 129 was necessary for good working arrangements of that Parliament, then that should go ahead, and I deplore some of the very dismissive remarks which have been made about, among other things, the work of the Holyrood committees. The work done by Holyrood committees in the scrutiny of legislation is widely regarded as one of the major successes of the Scottish Parliament. W hen the Scottish Parliament takes the view that 129 is necessary to make that committee system work properly, it is very hard for us here to contradict that view. The position the Government took in 1998 allowed for just that eventuality.
No one looking at the position that my noble friend Lord Sewel set out at the end of the debate can doubt that this response to the issue was exactly allowed for at the time. That is where we find ourselves, legislating to ensure that what the Scottish Parliament and the majority of those consulted want to do to preserve the 129, and indeed what the opposition parties wanted at the time, now goes ahead.
One final point: I very much welcome the statement by the Minister about the new commission. There is a bit of a mess with boundaries in Scotland. As I think his remarks made clear, it goes far wider than just parliamentary, Holyrood and Westminster, boundaries. Health boards, tourist boards, local enterprise companies, local government and the two parliamentary systems are all over the place. If the commission can deal with that and really grasp it, it will be an excellent opportunity to confront and resolve some of those issues. Whether it will want to consider the great burgeoning variety of electoral systems is another matter. I think we all have favourites. I will not say what mine is, but certainly I would say that my least favourite system is the present one for Europe. Of course, it has no problem with boundaries, but a closed list system has remarkably little to recommend it.
The work of the commission will be very important. I hope that it proceeds quickly. In the mean time we should go ahead as quickly as possible with the Bill.
4.28 p.m.
Lord Gray of Contin: My Lords, I am happy to follow the noble Lord, Lord Elder. It will be no surprise to him that I take a slightly different view of the Bill to that which he outlined.
Glancing through the Hansard reports of the Second Reading debate of this Bill in another place and trying to relate them to speeches and policy statements made during the progress of the Scotland Bill—now the Scotland Act—it is difficult to believe that they are the creation of the same government. I say at the outset that I believe that the Government got it right in the Scotland Act. Quotations have been produced during our debate by the noble Lord,

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Lord MacKenzie of Culkein, from Conservative spokesmen supporting what the Government seek to do now. Frankly, I think we were wrong then and that the Government are wrong now.
No real or convincing case has been made for the amendment to the Scotland Act. The Bill is by no means wholly acceptable in another place—not even on the Government Benches, where I found only one Back-Bench speech which could be described as supportive. Many were highly critical, and, indeed, the Government had to be content with some helpful comments from the Liberal Democrat Benches, which probably caused as much embarrassment as joy.
I admit that the contribution of Mr Brian Wilson MP came closest to my own views. My noble friend Lord Monro has referred to some of his remarks, but he made one or two other points which I think are extremely valid. Mr Wilson described how the Government had made two relevant commitments, both of which he accepted and to which he subscribed. First, to cut the number of Scottish MPs being returned to Westminster; and, secondly, to amend the number of MSPs sitting in the Scottish Parliament in the same proportion.
However, going ahead with the first while abandoning the second is not a solution he explained. Those two commitments were interdependent in logic and in symmetry—if one were to be abandoned, the other made no sense, or at least it would have to be paid for in some other way; and of course he is absolutely right.
Several members expressed concern about the confusion which already exists in Scotland over reserved and devolved powers, the role of list MSPs and the various methods of voting in four different sets of elections—local government, Scottish Parliament, Westminster and European. Add to those the proposed changes in constituency boundaries whereby many people will vote in different constituencies for different elections, and it is little wonder that concern is voiced.
I believe that the Scottish Parliament would increase its popularity at a stroke if its numbers were reduced and if the corresponding economies were effected. Governments can always find economies when the chips are down. I have great sympathy with Members of the Scottish Parliament. It must have been an extra strain to work under the shadow of constant dissatisfaction with the new parliament building.
It is right that the Scottish press has focused on the mismanagement and waste involved in that exercise, and the steady flow of errors, misunderstandings and general cock-ups revealed by the Fraser inquiry must add to the stress under which the Parliament has to operate. MSPs successes have been diluted and their weaknesses emphasised, despite the fact that the majority of them have been innocent bystanders who may well be as incensed as the rest of us at the fiasco and financial vandalism which is being exposed.
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It seems to me that, however the Government try to explain their motives, many people will see the amendment to the Scotland Act to retain the 129 MSPs as a capitulation by the then Secretary of State for Scotland to the Labour political power base in Scotland—in other words, a cynical political move for short-term gain.
One of the weaknesses which this Government have displayed in many of their proposals, and particularly in their constitutional reforms, has been that they do not appear to think through the consequences of their actions; and yet again this Bill is no exception.
4.34 p.m.
Baroness Michie of Gallanach: My Lords. I am happy to follow the noble Lord, Lord Gray. if for no other reason than to let your Lordships know that I take an absolutely opposite view to everything he has said.
I very much welcome the Bill, which is brief and to the point. I commend the Government for sticking to their guns and bringing it forward despite the siren voices and noises off. After wide consultation, the Government are honouring their promise, given by the then Secretary of State for Scotland, the right honourable Helen Liddell, to bring forward legislation to maintain the present 129 MSPs.
There were 237 responses to that consultation, with 28 from a range of civic bodies, including voluntary organisations, the Churches, CoSLA, the Scottish Trades Union Congress and many others. Perhaps I may single out the support of the STUC because I remember the sterling work done by that organisation in the constitutional convention and the wise leadership of Campbell Christie. Whatever one might think of trade unions, his was a voice of sanity and of quiet diplomacy with an ability to defuse contentious argument in order to reach a consensus.
There is widespread support for maintaining the 129 MSPs. That was made clear in the recent report by the Scottish Affairs Select Committee. The number of 129, as we have heard already, is essential for the proper function of the Parliament in order to sustain the committee system, which works well. These committees are all-purpose, combining the role of Westminster Select and Standing Committees and much more besides—all essential in a unicameral system which seeks to be open and transparent and near to the people. What a difference being near to the people has made, instead of being 400 miles down the road, as was the case in coming to Westminster? The committees also allow members to develop an expertise in particular areas and to bring an informed view to the consideration of legislation and scrutiny of the Government.
I also welcome the fact that the Secretary of State will set up an independent commission—with the emphasis on "independent"—to consider the question of, this great word, "coterminosity" and that Scotland will face four different voting systems, following the introduction of the single transferable vote for council elections.

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I do not believe that the former is a great problem. We lived in the days of Strathclyde Regional Council with district and regional boundaries. The situation in Scotland today is not unprecedented either in the UK or elsewhere—for example, in Australia. My former constituency of Argyll and Bute has at the moment the first-past-the-post MSP. He does not represent the whole council area, but from next year, if there is a general election, the Westminster MP will do so. It is simply not always possible to achieve coterminosity because of the requirement for electoral equality, and with of course some very necessary safeguards for remote and island areas.
So I do not believe that the lack of coterminous boundaries is a fundamental problem, but I can see the point in trying to get them aligned with each other as much as possible. Electors are not stupid. Certainly in Scotland, where they have long accepted that constituencies and elections vary, they have become remarkably adept at understanding the differences, often using their additional member vote to achieve a variety of political outcomes.
The Secretary of State also indicated that 'the commission will take into account the relationship between boundary changes and other public bodies and authorities—the Minister referred to that in his opening remarks. That will be crucial, for example, in the case of Highlands and Islands Enterprise, for it is important that it continues to support and encourage socio-economic development on a pan-Highland basis. The value of that was demonstrated clearly when we in the Highlands gained Objective 1 status.
In considering the electoral systems, I hope that the independent commission will adhere to the principle of proportionality. If that principle had not been incorporated in the White Paper, many would not have voted yes in the referendum. That was one of the great failings of the 1978 referendum. Especially in the light of the Scottish Government's intention to introduce the single transferable vote for council elections, it would be sensible to recommend the same for the Scottish Parliament. At least there would then be similar systems, which would be helpful if the elections are to be held on the same day.
As your Lordships know, we on these Benches have long advocated the merits of the single transferable vote. It is a fair and a proportional system that reflects the votes of the electorate. Many accuse the Liberal Democrats of advocating such a fair voting system for our own benefit. That cannot be the case. The great strides forward that we have made during the past 20 years have been achieved under first-past-the-post. All our Highland seats in the Scottish Parliament are held by Members elected on the first-past-the-post system. It is the principle that matters most.
To briefly refer to what the noble Duke, the Duke of Montrose, said about his ancestors, he is absolutely right to say that they were involved when the treaty of Union was signed and sealed. I think he said that there was some little dissension at the time. There was a great deal of dissension, with riots in the streets of Edinburgh. If we had had a referendum then, there would have been no treaty of Union.
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The noble Lord, Lord Palmer, maintained that the poor turnout at the Scottish elections was due to apathy because voters did not like the Scottish Parliament. I wonder whether he has read the report in the Scotsman today, which is headlined,
"Public trust in politicians hit by sleaze claims".
It states:
"Research funded by Abe Economic and Social Research Council… found that allegations of sleaze against individual politicians were responsible for the decline in trust in government over the past 30 years"—
not since the Scottish Parliament was set up—
"rather than any other factor".
The research goes on to state that,
"growing perceptions of sleaze have had a direct impact on turnouts in elections, rather than stemming from a decline in interest in politics".
That report is very relevant.
Finally, the Bill effects a minor change to the Scotland Act. No one should be afraid of change in the light of experience. However, I find it extraordinary—as I said during our discussion of the Communications Bill—that Westminster, rather than the Scottish Parliament, decides how many MSPs there should be and how they should be elected.
We have heard about the settled will of the Scottish people—words oft used by the late, lamented and much respected John Smith—but I do not believe that he would have viewed the Scotland Act as set in tablets of stone never to be altered. What is the settled will of the Scottish people is couched in the ringing words of the first section of the Scotland Act:
"There shall be a Scottish Parliament".
I remember the late Donald Dewar saying, "I like that". So do I. Devolution is an evolving process and, as many know, I want to see more powers to be handed over to the Scottish Parliament so that it can be even more accountable and responsible to the country that it serves.
4.45 p.m.
Lord Hughes of Woodside: My Lords, I fear that I cannot follow the general tone of those who welcome the Bill. I recall that the genesis of the White Paper and of the Scottish Parliament was the Scottish Constitutional Convention, where every aspect of Scottish life, apart from the Scottish Conservative Party, took part in considerable discussion on broad principle and in detail. That is what brought about the Scottish Parliament. During all those discussions, it became clear from the beginning that once there was a separation of the amount of work to be done by MPs at Westminster and MSPs in Edinburgh, the quota for electing Members of Parliament from Scotland to Westminster could not be sustained. That became common ground.
What was also common ground was that, when the reduction of Scottish MPs at Westminster took place, there would be an automatic reduction in the number of seats in the Scottish Parliament. That was not a secret; it was known from the very beginning. In my view, a bargain was struck on that. When my noble friend Lord Evans of Temple Guiting told the House

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that only one part of the bargain was to be carried forward, I must confess that I was rather angry. I take this opportunity to apologise to him for my rather hectoring and rude questioning of him at the time. I assure my noble friend Lord Filkin that I have calmed down a bit since then.
The issue revolves around, first, the size of the Scottish Parliament and, secondly, the number of 129. That is not a magic number; it is a pragmatic number predicated on the fact that it would be based on the same constituencies as for Westminster. I shall return to the number of 129 later.
I very much regret that the Government have not taken the opportunity radically to consider the list system in the Scottish Parliament. There is a huge amount of anger and controversy about the way in which the list MSPs operate. They cherry-pick the good ideas and boast about how they have won this, that and the other. I do not know if you can cherry-pick a bad idea, but your Lordships get the drift of my meaning. They pick out the difficult areas and hammer away at local, directly elected MSPs for party political advantage. One should not complain about arguing for party political advantage; I have done it all my life. But I find it curious and ironic that the two parties that have gained most from the list system and from the method of voting are the two extremes of the Scottish Conservative Party and the Scottish Socialist Party, neither of which would be able to set foot within a mile of the Scottish Parliament relying on first past the post. We must bear that in mind.
Returning to the number of 129, we could arrive at that figure in a number of different ways—although not exactly. If we took the 59 new Scottish constituencies and multiplied them by two, that gives us 118. If we add only one list Member per region, that brings us to 126. That is not far from 129. I cannot believe that the Scottish Parliament would cease to function if it had 126 Members instead of 129. If we were worried about the reduction, we could add two Members per region; that would give us 134—five more Members to do the work better. The Government have missed a great opportunity by not considering the matter in a pragmatic way.
I feel especially sorry for the Scottish MPs. As has been mentioned several times, the Boundary Commission review will take place. It had better, because, although I cannot speak for any other party, in the city of Aberdeen, we expect to undergo a reduction from three seats to two. Anne Begg, MP for Aberdeen South, was chosen unanimously for that constituency. There have been months of the run-off between Frank Doran and Malcolm Savidge, which was decided last Thursday. I wish Frank Doran, the winner, well in the future. He will represent what is basically my old constituency. But I am sorry to lose a good Labour MP in Malcolm Savidge.
I hope that we have not gone through all that, to be told suddenly, "Well, we are not going to do that after all". One is almost tempted to say that one should keep to the bargain: if we are to keep those at Edinburgh, we should also keep those at Westminster. That is not a tenable option.
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I am unhappy about the Bill. Having kept the promise of the relationship between the two and having agreed that one part of the promise would continue—reducing the Scottish MPs at Westminster—we should have carried on. However, I understand the realities of the situation. Although my views on devolution are pretty well known, nevertheless, I accept that devolution is there. There has been a whiff of anti-devolution speeches today. Naturally, the cost of the Scottish Parliament has been trailed again, as well as some hopes that the report by the noble and learned Lord, Lord Fraser of Carmyllie, will reveal all.
Perhaps I may say in passing that over the years I have become disenchanted with public inquiries. All that happens is that there is a feeding frenzy about what the outcome might be. Then the results do not match and the committee of inquiry is damned out of hand. I suspect that the noble and learned Lord, Lord Fraser of Carmyllie, will regret the opprobrium that is heaped on him when he produces his report and does not find a scapegoat or someone to blame.
I do not welcome this Bill. We need a more radical approach. I hope that my noble friend will say that the new commission, in looking at the future, will look especially at the list MP system and whether we should not go back to look at the basics of coterminosity, although I think that too much is made of it. The public do not have a settled view on that. They do not know who is their local councillor or MP; they probably do not know who is their MSP. Nor do they know the relationship between each of them. We must not make too much of that.
I ask my noble friend to be a bit more radical in looking at this issue in future. If I can get that guarantee, he can be assured that I will not cause trouble in the weeks and months ahead.
4.52 p.m.
Lord Forsyth of Drumlean: My Lords, it is a pleasure to follow the noble Lord, Lord Hughes, although I thought that for bare-faced cheek his attacking the Conservative Party for opposing a Bill that would he to its disbenefit was difficult to take. The Conservative Party is the only party that is arguing against its interests. The whole Bill has been brought before this House because it is in the narrow political interests of the Labour Party.
I cite as my supporter for that no less a person than the honourable Member for Clydesdale, Jimmy Hood. In the House of Commons, he said:
"what public interest the Bill serves when we seek to gerrymander a constitutional agreement made in Scotland, by Scotland, for Scotland?…It is not a tidying-up exercise of some constitutional arrangement. It destroys fundamentally the consensus achieved…in support of the Scottish Parliament".—[Official Report, Commons, 4/5/04; col. 1225.]
He went on to say:
"Those who thought of this fix to save the 129 MSP jobs were not looking after the real interest of MSPs".—[Official Report, Commons, 4/5/04; col. 1226.]
In 20 years, that is the first time that I have ever found anything on which I could agree with Jimmy Hood.

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If the Bill is meant as some kind of measure to deal with the problems that have arisen since the Scotland Act, it is sorely inadequate. One has to look only at the glittering array of talent on the Labour Benches who have come forward to speak in support of a flagship policy—the devolution policy—to see how much enthusiasm there is now among the protagonists of the Scottish Parliament. Indeed, if one scours the columns of the Scottish media, it is hard to find too many people who are standing up and expounding on what a wonderful success the Scottish Parliament has been.
The Bill is inadequate, first, in so far as it seeks to preserve the jobs of 129 MSPs at a time when every person one meets and talks to in Scotland is affronted by the waste of public money and the obscene expense that has occurred on the building and the other activities of that Parliament. How can we complain that the numbers of people turning out to vote are in decline? As the noble Lord, Lord Palmer, pointed out, less than half of the voters bothered to vote in the second parliamentary election for the Scottish Parliament. How can we complain about voters' behaviour when the system responds to their anxieties about cost, waste and bureaucracy by deciding that what is really needed is to have more MSPs than they were promised in the Scotland Act in the first place?
I must say to the Minister that it is an absolute disgrace that paragraph 25 of the Explanatory Notes—as my noble friend the Duke of Montrose pointed out—under the financial effects of the Bill, tells us that the only financial effects are an additional £300.000 per annum, which is required for reviews by the Electoral Commission and the Boundary Committee for Scotland. What about the fact that if this Bill does not reach the statute book, there will be a reduction in the number of MSPs? Before the Bill proceeds much further, I hope that the Minister will undertake to tell this House what are the exact extra costs of the additional MSPs that we are being required to sanction in the Bill.
It is well known that I did not support devolution. Everything that has happened with the Scottish Parliament has exceeded my expectations. I see that the noble Baroness, Lady Michie, is chuckling. I very much enjoyed her speech. She said that one of the reasons why people are concerned about politics and the standing of politics is sleaze. I do not think that we have ever had a Prime Minister have to resign in a farrago of expenses and other accusations, which is what happened to the second First Minister of the Scottish Parliament. That has added greatly to the concerns that have been expressed.
I was opposed to devolution. The voters voted for it, although I find it increasingly difficult to find people who will acknowledge that they voted for it in Scotland. We had to accept that that was the democratic wish of the people of Scotland. But have the Government not noticed the consequences? When I was first elected as a Scottish Member of Parliament in 1983, one-third of my constituency had never had a
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Tory represent them; another third had last had a Tory in the 1920s. My constituents were as surprised as I was to find themselves with a Tory MP. But in those days Members of Parliament were respected as Members of Parliament. They acted in the interests of all their constituents regardless of whether they voted for them. Constituents came to them with problems knowing exactly where to go.
Now we have Scottish Members of Parliament without much of a role at Westminster. They are ignored by the media in Scotland. There are list MSPs and MSPs of different parties in their constituencies. They spend public money, argue their political corners and compete for their parties' interests. The voters are not only confused, they are disgusted by it. We had a system of Members who represented their areas' interests and who were respected by Ministers. When I was a Minister, if a constituency MP wanted to come to see me I treated him or her with respect. I remember Tam Dalyell coming to see me about an asbestos problem in Linlithgow. We treated MPs with respect. We did everything that we could in order to advance their constituency interests.
The Bill takes us one step further down a road that I believe has been disastrous by breaking the link with constituencies and by creating MSPs who overlap Westminster constituencies and the rest. In all honesty, I say to the Government that they have embarked on this programme of constitutional reform and they are destroying our political processes. That is why we are seeing people not turning out to vote. It is an affront to Parliament that, faced with the evidence all around them, they come up with this Bill with its narrow self-interest.
A number of speakers, including the noble Earl, Lord Mar and Kellie—who was in danger of becoming the first Scottish Nationalist Member of this House when he started talking about dominion status for Scotland—said that other issues should be addressed. I agree. What are we to make of Brian Wilson's speech in the other place? This is a former Scottish Office Minister, who was responsible for implementing the devolution policy. And what are we to make of a former Secretary of State for Scotland, whose idea the whole Bill was? Helen Liddell attacked the Scottish Parliament's proportional representation system, saying it was,
"a life-support system for rejects and retreads who could not get elected first past the post".—[Official Report, Commons, 4/5/04; col. 1260.]
At first sight, I thought she might have been talking about another Chamber, but she was talking about the Scottish Parliament, which she stood on a platform to create.
Surely the Minister and his colleagues should be addressing the real problems which have been created by the Scottish Parliament. Spending more money and having more Members of the Scottish Parliament is certainly not going in the right direction; it will not meet the wishes of the Scottish people and the concerns which have been expressed.

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There are now four different electoral systems in Scotland. The Minister gave us the impression that it was nothing to do with him. There are four electoral systems in Scotland because of initiatives taken by this Government. In the face of real public concern about the cost of the Parliament, what have we seen? We have seen the BBC refusing to provide the film, for which the people paid through their licence fee, of the late Donald Dewar and others talking about the Scottish Parliament in order for the inquiry led by my noble and learned friend Lord Fraser to come to its conclusion. Again, that is something which stands against the public interest and causes disillusion.
I believe that the most corrosive aspect of this devolution exercise has been the marginalisation of Scotland. I live in Scotland and I am here during the week. If I want to know what is going on in Scotland, I have to go to the Library and read the Scottish papers. The papers that are published down here no longer report what is going on in Scotland. If I am in Scotland at the weekend, I have to look on the Internet to find out what is going on down here, because the activities of even Scottish Members of Parliament in the other place are not reported.
The office of the Secretary of State for Scotland has been diminished, although the number of people serving him has gone up inexorably. The Scottish Office, which once held sway, and had real power and influence in Whitehall, has so no longer. So Scotland's voice, where the key decisions are taken in Whitehall, has been all but snuffed out. The people have been left with an ineffective organisation that is costing more and more. Nowhere is that better illustrated than in the Government's failure to deliver, for example, for the interests of the fishing communities in the north-east of Scotland and elsewhere.
I challenged the noble Lord, Lord Maclennan, to give me three examples of legislation which had been brought about which would not otherwise have happened. He could not. He gave me one example—tuition fees. It was an odd example, for the policy on tuition fees, which he says that the Scottish Parliament has done so much for the Scottish people by implementing, is exactly the same policy as is being implemented here, which noble Lords on the Liberal Democrat Benches oppose on the grounds that it is unfair to introduce tuition fees which are paid for post-graduation.
The noble Lord's second example was care for the elderly. Care for the elderly is not legislation—it is extra expenditure paid by English taxpayers who are spending more per head through the Barnett formula and the additional sums than is being spent in England.
The basic instabilities of the system in terms of the Barnett formula and the failure to address the West Lothian question remain. This Bill does not address these. The Government have been irresponsible in their constitutional reform, and this Bill is one further step down a road which is not in the interests of the peoples of the United Kingdom.
5.4 p.m.
Baroness Carnegy of Lour: My Lords, I cannot compete with my noble friend Lord Forsyth on this subject. He has put many points of view, as have other noble Lords. It has all been said.
I should like to make just one point about the Bill. It cannot be said that the Bill is unexpected, and it is not a permanent solution to anything. It has come about by yet another input of the Government's lightweight approach to important constitutional change. From the moment the Scotland Act 1998 began its passage through Westminster, it was obvious that the proposed method of determining the membership and number of members of the Scots Parliament was likely to prove unstable. There was a fundamental flaw in the Bill, and many MPs and Peers pointed this out. The Government insisted that they were right, and the noble Lord, Lord Elder, who is not in his place at the moment, told us why. They did not want to open the question of the number of MPs at that point, between the referendum and the passage of the Act. Now here we are, only six years later, being asked to change the Act as, evidently, was anticipated and planned.
The idea seemed reasonable to me, as it did to my noble friend Lord Gray of Contin, that if one were to have a devolved Parliament, to keep the electorate's confusion to a minimum and to control the size of the Parliament, the constituency boundaries in Scotland were the right common basis for the membership of both Westminster and Holyrood. The Government's original White Paper, endorsed in the referendum. recommended that, the Act provided for it and. recently, the House of Commons Select Committee on Scottish Affairs has agreed, after taking a good deal of evidence, that that remains the right way.
The problem was that in drafting the 1998 Act, the Government implemented the right idea in the wrong way. The Act links the membership of MPs at Holyrood and at Westminster too strongly. As somebody said, it is set in concrete. Therefore, the Bill is unavoidable. It was never going to be acceptable; it was crystal clear in 1998 that by now the number of Scots at Westminster would be for the chop, and it was unlikely that some 20 MSPs would want, as a result, to lose their seats. Of course they would not. It was unlikely that the Scots Parliament would want to reduce its committees by four or five to match or, indeed, that it would want fewer Ministers than it has at the moment. That was not going to happen; what has happened was inevitable.
As a number of noble Lords have said, the public are increasingly disillusioned and disappointed with the Scots Parliament but there seems no way of avoiding the Bill. I do not believe that it will help—it is a sticking plaster, a temporary measure, and it will cause a lot of argument, uncertainty and cost as people are consulted by the commission about what should happen. I believe that it will mean further disillusionment in Scotland. It seems a great pity that the Electoral Commission has to solve a problem which should have been dealt with by the Government in the first place. It is a great pity that it must look at four voting systems, which need not have been so multifarious.

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I believe that the Bill will do little good and a good deal of harm, but I do not see how it can be avoided.
5.9 p.m.
Lord Steel of Aikwood: My Lords, I find it strange to speak on this Bill, because on 8 July 1998 I moved an amendment during the passage of the Committee stage of the Scotland Act 1998 to do precisely what the Bill does today. If my amendment had been accepted, we would not be sitting here today passing a complete piece of legislation. One is never allowed to say "I told you so" in politics, but on this occasion I cannot resist it, even with the noble Lord, Lord Forsyth, looking at me in that mysterious way. I still maintain that, given the support I had at the time from Lord Mackay of Ardbrecknish on the Conservative Front Bench and Michael Ancram in the Commons, we were right to say that it would be a mistake to set out in the Scotland Act a diminution of Members of the Scottish Parliament so soon after it had got going.
I will resist the temptation to look back at Hansard and simply repeat the speech that I made on that occasion, because that would be tedious repetition. This debate is not about devolution as a whole, but still less is it about the expenditure and policies of the Scottish Executive. In their speeches, the noble Duke, the Duke of Montrose, and the noble Lord, Lord Palmer, managed to muddle up both the expenditure of the Parliament and the Executive and the number of people employed by the Parliament and the Executive in ways that drew no distinction between the two at all. This is a very limited Bill dealing precisely with the constitution of the Scottish Parliament—as it should have been in the Scotland Act in the first place.
I am very suspicious when I hear Conservatives say, "This is all costing too much. If we had a hand in it we would not have so many people". One of the disadvantages of being in this place for such a long time is that I remember in my very early days as a junior MP being put on the House of Commons committee dealing with services, which was chaired by Richard Crossman. We were discussing the building of new committee rooms within the Palace of Westminster because we needed more space for more committees. I remember the Conservatives saying, "Oh no we don't; it's all to do with the Wilson government. When we come to power, there won't be so much legislation. We won't have so many committees and we won't need more committee rooms". We had a Conservative government later, and we did need the committee rooms and we did have the legislation. So I take all these protestations with a large pinch of salt.
There is also a danger of the Conservative Party in Scotland becoming known as the "abominable no party". Conservatives did not take part in the constitutional convention or the Holyrood progress group and they are threatening not to take part in this new commission that has been set up. By the way, I thoroughly welcome the appointment of Professor Sir
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John Arbuthnott as chairman. He is a very distinguished and independent public servant in Scotland.
The Duke of Montrose: My Lords, our party has said that it will take part in the commission once the Bill is passed.
Lord Steel of Aikwood: My Lords, I am delighted to hear that. I had heard that the Conservatives would not take part. However, if they will take part once the Bill is passed, that is better late than never. However, up till now, Conservatives have tended to shirk what J K Galbraith memorably called the "pain of thought". Certainly, the contribution of the Conservative Party is essential to this commission if we are to attempt to get a consensus on the muddle to which the noble Lord. Lord Hughes, and the noble Lord, Lord Mackenzie, rightly drew attention—not just over constituency boundaries, but involving health boards and local enterprise companies. At the moment, the whole boundary issue of the responsible authority being responsible to the people is in a complete mess and needs the commission, with every party assisting it, to reach a solution.
In a moment, I shall say something about the workings of the Scottish Parliament, but I do not accept the proposition that, because only 50 per cent of people turned out at the second election, the Scottish Parliament is a failure. That turnout is about the same as for the presidential elections in the United States of America. If only 50 per cent turned out for arguably the most important election in the world, it cannot be argued that there is therefore something fundamentally flawed if only 50 per cent turn out in Scotland.
I also clearly remember my experience of being in South Africa at the time of the first election there. I must admit that there was something of the same hype and overblown rhetoric about what would happen at the end of apartheid as with the creation of the Scottish Parliament. There was huge enthusiasm and there were enormous queues of people to vote. However, it was not quite the same for the second election or the third. The same has happened in Scotland. There is nothing intrinsically to be ashamed of in that respect.
Lord Forsyth of Drumlean: My Lords, surely the point is that we used to have turnouts in excess of 75 per cent. They have now plummeted to less than 50 per cent. This was supposed to be the great experiment and the great new adventure that would bring politics to the people, and it has flopped.
Lord Steel of Aikwood: My Lords, I certainly dispute the sentiment that it has flopped. A noble Lord remarked in this debate that the Scottish Parliament works only part time. That is a misunderstanding. The Parliament works in plenary session two days a week, but the other two days are given over to committees that do not meet, unlike committees in this place and the other place here at Westminster, at the same time as the Chamber. They have a far greater status and authority than committees at Westminster. They combine the attributes of both Standing and Select

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Committees and are part of the full workings of the Parliament. The Parliament is working a full week. It is a total misrepresentation to suggest that it is not.
I will concede straightaway the point made by the noble Lords, Lord Monro and Lord Gray. There is no question that the cost of the new parliamentary building has soured public opinion about the whole parliamentary project. There is no doubt about that. Whatever view one takes about that or whatever the noble Lord, Lord Fraser of Carmyllie, may come up with, that is an undeniable fact. However, it is nothing new. If Members look back at the building of this place, they will find precisely the same. There was such unpopularity at the time of the opening of the rebuilt Palace of Westminster, that Mr Disraeli, true to the Conservative tradition, suggested that all the architects involved should be hanged as a good example to others. Let us not pretend that there is something unique about what has happened with the Scottish Parliament or that we can all sit here in the glorious Palace of Westminster and pretend that it all has always been wonderful. I can assure you that, at the time, it certainly was not.
I now turn to the narrow point of the Bill and I have a confession to make. During all my time as leader of the Liberal Party, I never made a single speech in favour of the single transferable vote because I did not support it. I used to get very angry letters from the late Enid Lakeman telling me how wicked I was because I did not agree with party policy. Therefore, when the constitutional convention came up with the additional member system, I did not regard it as a compromise: I thought that it was greatly to be welcomed. I now think that I was completely wrong. I echo sentiments expressed from both these Benches and the Labour Benches about the list system as it is. That is why I welcome the fact that the new commission has been appointed with a wide remit to examine what will happen once the coterminous principle, which this Bill enshrines, comes into effect.
I will give some reasons why the system must change in common with speeches made from other Benches. First, there are no such regions. The regions of Scotland are totally artificially drawn. They were based on Euro-constituencies that no longer exist. Let no one try to tell me that the South of Scotland region in which I live, which extends from North Berwick to Stranraer, is a homogeneous unit. It is not. Therefore, the regions are nonsense and not real at all.
Secondly, no one foresaw—at least, I did not, and I do not remember anyone else foreseeing—that, once the elections were held—I believe that the noble Lord, Lord Hughes, referred to this point—one major party would have the bulk of its Members based on the list system while another major party would have the bulk of its Members based on first past the post. Therefore, when it came to a discussion of appropriate allowances between the two, a whole party-political element entered into the debate that was profoundly unhelpful.
One of the biggest extravagances in Scotland, post devolution, is the multiplication of so-called constituency and regional offices throughout the land. I could take you to one town that has at least four of them supposedly serving the electorate. In fact, they serve the political
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parties at public expense. That cannot be justified. However, the most damning thing about the list system is how it has operated—that is why the opportunity should be taken to clear it up. Some Members sit in the Scottish Parliament using their position to further their own electoral prospects against a sitting Member in the same Parliament in a constituency next time round. That is intolerable. As Presiding Officer, it made my life very difficult because I often had to rule on the arguments.
A further argument has been touched on, obliquely, by the noble Lord, Lord Elder; that the list system as operated by the different political parties in different ways in Scotland means that a relatively small number of people are presently involved in the selection of large numbers of Members of the Scottish Parliament. For all those reasons, I hope that the commission will come up with some solution other than the continuation of the present system. In fact, the present system cannot continue, because I do not believe that having different constituency boundaries for different purposes makes any sense at all. I therefore very much hope that the commission will have the full support of all the political parties and that a big effort will be made to change the present system.
Two simple methods have already been put forward. The noble Lord, Lord Hughes, suggested simply doubling up the existing first past the post system. The problem with that is that one so diminishes the proportional element that the proportional principle of the Parliament, for which people voted in the referendum, is almost destroyed. 1t was the crucial difference between the 1970 proposals and the 1990 proposals and we should not lose sight of that.
The other proposal is the opposite: to take the first past the post in the constituencies and increase the number of regional members. That would exacerbate all the problems that I have just described and I do not think we could have a Parliament where the majority of members were non-consistency. Another solution will have to be considered. Much as I am sorry to say it, against all my previous principles, it may be that multimember constituencies, alongside the local government changes, will be the right way forward for the Scottish Parliament.
In my final point, I agree with my noble friend Lady Michie. I think that when we have now added "coterminosity" to "subsidiarity" in the new language of politics, we must hope that in future we can repatriate these issues to the people of Scotland and the Scottish Parliament and not have any more tinkering with the Scotland Act here at Westminster.
5.21 p.m.
Baroness Hanham: My Lords, the Minister and I are almost alone today in speaking without a Scottish accent. Indeed, we may be almost alone in having little connection with Scotland, except a deep interest in what is going on—I waited for the Minister to shake his head.
However, I am taking part in the Second Reading debate on this Scottish Bill with enormous interest. The Minister and I have recently had a number of

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exchanges across the Dispatch Box on legislation, elections and electoral systems and this is another of those forays that seem destined to take place.
It seems axiomatic that the shorter a Bill, the greater the complexities it throws up. The debate today has been no exception. There are two clauses and five schedules in the Bill but an enormous number of questions and points relating to the activities and responsibilities of the Scottish Parliament as it stands at the moment have been raised.
As my noble friend the Duke of Montrose said at the beginning of the debate, we are not at all convinced that there is any need for the Scotland Act to be changed so soon after it was passed. As my noble friend Lord Gray of Contin pointed out, there were twin poles to that legislation: that the number of Scottish Members of this Parliament should be reduced in line with the English electoral quotas because of the overrepresentation of Scotland; and that the consequence should be that the number of Members of the Scottish Parliament should also gradually be reduced in line with that. As both he and my noble friend Lady Carnegy pointed out, the connection was argued and disputed during discussions in Parliament on what is now the Scotland Act but that was the result.
Of course, it is that Act that the Government are now seeking to change. It was brought about because the then Secretary of State, Helen Liddell, was persuaded to change the second of the two pillars; namely, the reduction of the numbers of Members of the Scottish Parliament. We have heard today about the concerns raised by this decision: the Scottish Parliament has too many Members and, despite what has been said, the costs of that Parliament have escalated. The question was raised—not in this House, but elsewhere—whether, if the Parliament had been set at 250 Members, that would have become the number that nobody would want to see altered. The fact is that nobody wants to see the number as it is now altered either.
As the noble Lord, Lord Palmer, pointed out, the Scottish Parliament employs more members of staff than any other Parliament and a reduction in the number of Members would bring about a reduction in that cost. Looking from the London viewpoint, as I do so frequently, it seems to be something that comes with devolution of power. Where an initial stage is set for an administration, somehow or other not only the numbers of administrators increase by leaps and bounds but so do the costs of the devolved authority. Where this happens in Scotland, it also happens in London. The examples that we have do not seem to set good precedents for other regional developments. We may live to regret it, if the Government ever win on any of the regional assemblies.
One of the other arguments that has been put forward is that if there is a reduction in the number of Scottish Members of Parliament then there would be a reduction in the number of committees. I am not certain of the number of Members who sit on those committees but the value of any committee is not
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always related to the number of people on it. More often than not, it is the calibre of the people who sit on those committees and make the decisions that come from it. I can understand that those committees probably have a representational base but there still seems to be at least some room for a reduction in the number of Members.
As has also been pointed out, the Bill would bring about a dislocation between the Westminster and Holyrood systems. That point may have escaped the noble Lord, Lord Steel. That was also accepted by Helen Liddell and it was a point raised by the Scottish Select Committee. It is something that we need to be very clear about as we go forward and discuss the Bill.
There is to be a new Boundary Commission to deal with these matters. However, the review of parliamentary boundaries for the reduced number of seats has already been undertaken. I hope that the Minister will answer the question asked by my noble friend Lord Monro on when the order will be laid to implement that review. Will it be done in time for the next election, whenever that may be, or is it likely that it will not affect the next parliamentary election? Sir John Arbuthnott's commission may have its work cut out to achieve the ministerial consensus that the Minister suggested would have to come about as a result of that review. I very much hope that there will be consensus but I think that we have probably opened yet another can of worms, or will do so, if the Bill is passed in the next few weeks.
Scotland beats London by a short head in the number of different elections that take place under different voting systems. On 10 June, London will have three different forms of electoral system and, as has been mentioned, Scotland will have four. Many noble Lords have drawn attention to the need to think about this further. Indeed, it may be something that the commission is asked to do. I sometimes wonder whether in the future we may not rue the day when we ditched first-past-the-post for elections throughout the United Kingdom.
We can debate interminably the reasons for the reduction in the turnout of voters. But it is obvious that, if the Scottish Parliament were perceived to be doing its job in the way that we hoped, there would perhaps have been a larger turnout than less than 50 per cent. My noble friend Lord Forsyth pointed out that there has been too much messing about with the constitution. It is clear from the Bill that one great idea is now going to be propped up by another.
Members have also drawn attention to the cost of the Parliament building. I readily accept that that has little to do with a terms of office Bill—but since everyone else has joined in, I do not see why I should not add to the general excitement about it. I think it is true that where you get devolved government and the need for new buildings, the costs tend to run away with themselves. I very much hope that that will not happen again if we get regional government elsewhere.
My noble friend Lord Forsyth referred also to the Barnett formula. I think that that is a gleam in the eye of the north-east, which hopes that it too will

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benefit from the Barnett formula if it gets regional government. However, I think it might need to hold its breath in that respect.
There are debates to be had as the Bill goes through its various stages. It is clear that it does not have a fair wind, and it is very clear that there are concerns about what is happening as a result of the Bill and also about the fact that legislation so recently entered into is being revisited at such an early age. My noble friend the Duke of Montrose and I will look forward to those stages and to the debates and discussions that will take place.
5.31 p.m.
Lord Filkin: My Lords, it is a pleasure to respond to this debate. It would be even more of a pleasure if I were responding to an Unstarred Question as the debate has had something of that characteristic. If I have learnt anything from the debate, it is perhaps that the House needs to reflect on the need for more opportunities to debate Scottish and Scotland issues if they are of interest to the House, rather than using any passing legislative coat hanger as an opportunity for doing so.
In truth we are debating a significant but relatively narrow issue. The issue before us is the Second Reading of a Bill that basically says that we will retain the existing number of MSPs in the Scottish Parliament. That is the long and the short of it. I could if I was being provocative suggest that that was a deeply conservative measure because it is a no-change option rather than a radical-change option. But I do not wish to excite undue attention by what I am saying.
Perhaps I can turn to a more contentious issue, which is that we should do this because it saves money. That was, I think, one of the points advanced by the noble Duke, the Duke of Montrose, and by others. It was certainly referred to by a number of noble Lords in the debate. It was particularly challenged, I think, by saying that the Explanatory Notes gave only a figure for the additional costs of the Bill, not—as I think some noble Lords would have wished—the net effect of the Bill. I shall look at parliamentary processes on that, but I am sure that they are right in that narrow sense. Nevertheless I am not going to waste time on obfuscation now on this point. I shall put before Members of the House the best estimate of what would have been the cost if those changes had been made. But of course noble Lords will get the full picture with that, rather than a crude picture.
One would expect that the cost of reducing the numbers will not affect the fixed costs in any significant way. It will affect the variable costs, but the variable costs will be reduced by the cost of change. I therefore ask noble Lords not to get overexcited by expecting that this will transform public expenditure at a stroke. Perhaps one should not be looking at cost without looking at benefit. Clearly, that is the central issue before us—the benefit of maintaining the 129. It is that debate between cost and benefit that we should be having, rather than a crude debate about whether we can save seven shillings
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and sixpence as a consequence of not changing the Scotland Act and thereby reducing the number of MSPs. I will put that in a note to the House rather than spend any more time on it now.
The noble Lord, Lord Maclennan of Rogart, and a number of other noble Lords welcomed what we are doing, because it is essentially saying that we are building on experience. We are actually saying that while a view was taken when the Scotland Act 1998 was passed, it is a foolish government and a foolish party that do not signal that they should reflect on and learn from experience and see whether they have held exactly to what they said.
We have come to the conclusion not to reduce the number of MSPs, not simply because that might be popular with a number of Scottish MSPs, but as the product of a process of consultation. The argument was made in this debate a number of times that the things that Scottish people would most wish for would be sudden death for the political class in Scotland. I am sure that that is true at times; I am sure it is true at times in pubs on a Friday or Saturday night. However, when the public were asked, "Do you wish to have fewer MSPs?", they did not say that that was what they wanted. I am not going to weary the House with the evidence from the consultation—but the noble Lord, Lord Forsyth, is looking dubious. I shall write to him with the exact data on the product of the consultation that took place over a carefully considered period of time. There was an overwhelming support for no change to the number of MSPs.
This is not a devolved issue. It is an issue for this House and this Parliament, and it is rightly so. So we should not be governed simply by doing what has been indicated in a consultation process, even one that so overwhelmingly indicates that there should be no change. Nevertheless, the reverse is not true, either.
Lord Forsyth of Drumlean: My Lords, I apologise for interrupting the Minister. Is he seriously arguing that a response to a consultation process in which hardly a couple of hundred people bothered to take part represents the views of 5 million people in Scotland? That is a pretty desperate argument.
Lord Filkins: My Lords, I am seeking in the limited time available to try to do a little unpacking of some of the generalisations that we have had in this debate. I am saying that the consultation process, which was a genuine and open process, led to the results that I will put before the noble Lord. The vast majority of those who responded—and that included civil society and private individuals as well as the usual suspects in the political classes—said that they did not want change. However, that is not to argue for a second that everyone thinks that everything in Scottish politics is perfect, as I shall come to later. I was simply touching on the fact that although the consultation said that, that does not mean that this Parliament is governed by that, nor should it be. However, it does mean that we want to reflect on whether the benefits of change are sufficient to go forward with it, as the Scotland Act has said.

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The central issue is that the Scottish Parliament is certainly a new institution. Certainly, it has operated for a relatively short period. Certainly, there are strong arguments for a period of stability. Certainly, there is an argument for a period of stability, and that will become more apparent when I come to the discussion about the significantly wide terms of reference for the independent commission which we are about to set up, we hope with cross-party support. That very independent commission will be charged with looking widely at boundaries, electoral systems and representation in ways that I think are, in terms of a holistic remit, entirely intelligent and sensible. Distancing that process from politicians has its benefits, as I am sure all noble Lords will agree.
I turn more specifically to the narrowness of one of the arguments as to why the number of MSPs should not be reduced now, based on the Scottish committee system. Those of us with some local government background shudder at those words because we know what they can mean. However, what is different about the Scottish committee system is that it is a unicameral system under which it has been clear from the outset that, if it was going to make unicameralism work, it would have to try to involve civil society more actively in the process of policy making and legislation. Although I would not say that the process has been perfect for one second, there is evidence that Scottish civil society has become much more involved in the process of making policy and legislation. That is certainly the case in Scotland and it is certainly often the case at Westminster itself. I think there are lessons there for us in how we can involve civil society in all its variety in the processes of policy making and legislation.
In passing, I should touch on the question from the noble Lord, Lord MacKenzie of Culkein, on whether the independent commission will look at boundaries and electoral systems. The answer is yes. Will it start soon? Yes, it will.
The noble Lord, Lord Monro of Langholm, essentially said that if the proposals did not help the Government, they would not be introduced. I would make the point, to which I shall return, that this Government have taken action to reduce by 13 the number of Scottish MPs at Westminster, as a consequence of the wider discussions we are having. It is quite probable that, of those, 10 will be Labour MPs. So I find that argument hard to square with the argument that we only ever do things for narrow party political self interest. However, I shall return to the question of whether the changes will happen and whether they will be made in time for the general election. We have touched on those points in previous questions across the Chamber.
I turn to the question of whether there is enough for MSPs to do, which touches on the issue of how the committee system operates. The Scottish Parliament made the good decision—or one that I can at least understand—that it did not wish to have a conflict between operations in the Chamber and people working in the committees. Therefore, committees usually meet all day on Tuesdays and on Wednesday mornings, Parliament sits on Wednesday afternoons and all day on Thursdays, while MSPs carry out constituency business
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on Monday mornings and Fridays. I can see no great sin in that, although I can see sin in the argument that they could, at some stage, collapse the lot into one, as has been argued with wit and style by the noble Lord, Lord Forsyth. I shall not go into the reason why that is not the most wonderful idea, but, no doubt, there will be a chance later in Committee.
I welcome the support of the noble Earl, Lord Mar and Kellie, who identified a range of issues that the Bill does not address. He is absolutely correct. It does not and it should not. There are other forums for doing so, one of which is the independent commission. If only I had a Scottish accent, I would have been able to say in a proper tone, "Is loss of coterminosity a problem for you, Jimmy?", as a quote from a Glasgow pub. One can imagine the sort of reaction that one would get if that question was asked. I shall pass on that.
The speech made by the noble Lord, Lord Elder, was one of the most interesting because, as someone who was there at the time and was at the heart of the process, he spoke with power and authority regarding what happened. He said openly, honestly and wisely that, having had a consultation and referendum on a White Paper, the merits of not changing from that position were good, both in terms of principle and political pragmatism that we all have to bear in mind.
I turn to what was said by the noble Lord, Lord Sewel, in debate. I am sorry to weary the House but I must touch on it. He said:
"The Government are a listening government and are prepared to enter into discussions and debate and to formulate policies on the basis of experience".
He said that if the Scottish Parliament,
"took the view that its workings would be seriously undermined by a reduction in numbers—then it is open to the parliament to make representation to the Government of the day".—[Official Report, 17/11/98; col. 1195.]
In other words, if it thought that this was an issue, our mind was not set in concrete, nor should it have been. It is the job of government to listen as well.
I was impressed by the honesty of the noble Lord, Lord Gray of Contin. Many Members of this House had some difficulty squaring what they wanted to say now with what they said in 1997 or 1998. The noble Lord spoke with elegance by saying, "We were wrong then; so that allows us at least to say that the Government are wrong now". That seems to have intellectual clarity and honesty. Those are rarely combined.
The noble Baroness, Lady Michie, talked about coterminosity. She was right—it is nice if one can get it, but is not an over-riding objective of policy, as my noble friend Lord Hughes also said. That positions the matter correctly. The noble Lord, Lord Hughes, and the noble Lord, Lord Steel, said that a fairly vigorous beating up of list MSPs took place this afternoon. I shudder to think what they would think about that if they were listening—no doubt they are not. Nevertheless, these are issues that will be put before the independent commission—and so they should be.

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The independent commission has options for a more radical approach, but those are not matters which the Government can or should determine. All we will do is give the commission the remit to look at those issues and hope that it looks at them with vigour and a long-term perspective.
Lord Maclennan of Rogart: My Lords, I am grateful to the Minister for giving way. Will he clarify what he said about a period of stability in the way that the commission is expected to view its task? Is it open to the commission to recommend in the end that a radical alternative would be acceptable and displace the onus of proof that the status quo is what the Government would prefer?
Lord Filkin: My Lords, the commission can be as radical as it wants to be within its terms of reference. It can look at electoral systems, boundaries and representation as radically as it wants to.
The Duke of Montrose: My Lords, is the Minister confirming what I asked him—that the Bill is in many ways seen as a temporary measure?
Lord Filkin: My Lords, that is not so, because I cannot second-guess what the commission will do. It would be foolish to have the commission if that were the case. We will have to wait and see what it says in some 18 months' time.
I hope that I have met my side of the bargain, on which the noble Lord, Lord Hughes of Woodside, was keen, and that he will not cause trouble later in the Bill.
The speech of the noble Lord, Lord Forsyth, was powerful, as we would expect; it was passionately felt, strongly articulated and he touched on what he believed was public confusion over elected representation in Scotland, the breaking of the link with constituencies and real issues of representation, boundaries and electoral systems. All I would say is that this is not the Bill or the process for looking at those issues. Those matters are for the independent commission that will be established; that is right and proper. I felt for the noble Lord when he said that he had to read the Scottish papers to find out what was going on in Scotland. People would certainly not read the English papers to find out what was going on in Westminster, would they?
I have suffered from and been glad of the contributions by the noble Baroness, Lady Carnegie of Lour, to previous Bills in terms of the vigilance with which she addresses Scottish issues on UK-wide legislation. She has made stalwart contributions to a number of Bills in ways that have brought out the issues significantly in Committee. It is not a cheap point to say that I also welcome her view that there is no way of avoiding this Bill. I genuinely mean my comment and I appreciate her acceptance of that reality.
The welcome given by the noble Lord, Lord Steel, to the appointment of Sir John Arbuthnott is appreciated. The noble Lord talked about list systems and the
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multiplicity of party political offices. Those are also issues that he will, no doubt, put before the independent commission.
The final issue is tangential to the Bill, but is obviously of interest to it—when the order will be laid to give effect to the reduction in the number of Scottish MPs who are elected to Westminster. I shall articulate the linkage between this Bill and that matter. The noble Lord, Lord Monro, asked why the Boundary Commission was not putting its proposals to the Secretary of State for Scotland. That is because the Boundary Commission is statutorily obliged, after its review of constituencies, to carry out a review of the regional list boundaries. The linkage between the Bill and that process is that if Parliament legislated to lock the number of MSPs at 129, it would strike out the second element of the Boundary Commission's work. Consequently, it would not have to carry out a review of the boundaries and would then be in a position to report rapidly, one would expect, to the Secretary of State for Scotland. When the commission has done that—as I have told the noble Lord, Lord Forsyth, before—the Secretary of State for Scotland will be statutorily obliged to put before Parliament a statutory instrument giving effect to an Order in Council which would carry forward the recommendations of the Boundary Commission, with or without modifications. Therefore, I am in no sense trying to say to the Scottish Parliament that we should hurry because of that, but that is the linkage between that matter and the Bill.
Regarding the answer to the question of when that will be done—and I shall talk informally, because I am sure that no one is listening—if the Bill is passed before the Summer Recess, I would be confident that that process could be done in time. If there was a general election in the early summer of next year that change would have taken place. If the election took place in October 2004, it is self-evident that it could not have been done. That is the relation between these issues. However, they are in the hands of the Boundary Commission and the Secretary of State for Scotland is statutorily obliged to bring forward his view on the recommendations as soon as he can after the commission has made them. The only linkage is that if we decide to pass the Bill—as I trust we will—the commission will not be carrying out an otiose second process of reviewing the boundaries for the regional list MSPs. I am sorry that I have wearied the House with that issue, but it is important that it is put on the public record so that the linkage is clear, although it is not a relevant consideration for us.
Baroness Carnegy of Lour: With regard to that link, are the Government making sure that the Committee stage of the Bill will be at the earliest possible opportunity?
Lord Filkin: That is an issue for the usual channels, but my representations will be that there is benefit in doing so. I will pursue that with the usual channels.
On Question, Bill read a second time and committed to a Committee of the Whole House.

Higher Education Bill
5.50 p.m.
Baroness Ashton of Upholland: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Haskel) in the Chair.]
Clause 31 [Contents of plans]:
Baroness Warwick of Undercliffe Baroness Warwick of Undercliffe moved Amendment No. 85A:
Page 14, line 27, at end insert—
"( ) No part of any plan shall be required to be framed by reference to particular courses of study, save as provided for in subsection (1)."
The noble Baroness said: I have discussed this amendment at length with Ministers and officials. Initially, my objection was to the phrase "each qualifying course" in Clause 31(1). I could not see why that was necessary. Institutions will already be restricted in what they can charge—first, by the requirements to reach an access agreement, and secondly, by the statutory limits. I am not convinced that that third restriction is necessary. After all, universities will have to tell their students what they are to be charged for the entire duration of their courses, and will also, presumably, have to give the Student Loans Company the same information.
Nevertheless, my principle objection to the phrase "each qualifying course" is the implication that OFFA will involve itself in institutions' widening participation activities at the level of each individual course. That could lead to an unacceptable level of micro-management and, potentially, could have a destructive effect on individual courses. My understanding is that OFFA will be interested in widening participation efforts generally, and not at the level of each individual course. My amendment would ensure that OFFA cannot require institutions to frame their plans by reference to particular courses of study.
I can think of examples where institutions run excellent programmes to promote access which are subject specific. Many will want to draw attention to these programmes in their plans. However, should OFFA be able to require an institution with an excellent summer school that focuses on sciences to include details of how it will attract a wide range of students to study art history as well?
I remind the Committee that there are about 42,000 higher education courses, plus an even greater number of modules. Micro-management of the type that I have outlined could unleash a monster of bureaucracy. Perhaps more worryingly, it could distort efforts to widen participation. It could be highly counterproductive if certain courses or subjects were to be
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singled out over other courses or subjects. Given the scope for influence by the Secretary of State, it could also open the way to political interference in higher education.
I end by reminding the Committee that there are many other factors affecting widening participation which are outside a university's control. There may be subjects where, for a variety of reasons, applications are more common from one group in society than another. Where those reasons are to do with finance, there is much the Government—together with the universities—might be able to do. But where the reasons are cultural or historical, it would be wrong to assume that universities can necessarily change that, although there may indeed be innovative ways to encourage a broader range of applications. I beg to move.
Baroness Ashton of Upholland: I am grateful to the noble Baroness, Lady Warwick, for moving this amendment. It is not necessary to have the amendment on the face of the Bill—for reasons that I will outline—but it raises an important subject. I am glad of the opportunity to put the Government's position on record.
As the noble Baroness indicated, her concern is that regulations might force the director to require plans to include measures for particular courses. The noble Baroness gave the example of art history. It could be that it might have to provide bursaries specifically for courses in law. I assure the Committee that it is absolutely not our intention to require plans to operate in this way.
Your Lordships will have seen from the draft regulations which we have made available that nothing in these regulations or in the Bill requires institutions to frame their access plans by reference to individual courses. However, institutions are free, as the noble Baroness indicated, to do so if they wish. I remind the Committee that, as a result of the government Amendments Nos. 110 and 111, these amendments will be made through an affirmative resolution procedure, offering the Committee a chance for detailed scrutiny of any changes.
I assure noble Lords that our intention is not for the director or the regulations to require plans to set out access arrangements for each course. The plan will cover the whole institution; institutions will set their own milestones of progress. Some institutions may wish to draw the director's attention to access for a particular course or group of courses—that is up to the institution; it will not be a requirement.
I entirely understand why the noble Baroness has tabled this amendment. I agree wholeheartedly that the director should not micro-manage—I think that was the noble Baroness's word—and that will certainly not be part of his remit. Having given that reassurance that we do not intend to require institutions to specify the access measures in their plans on a course-by-course basis, I hope that the noble Baroness will withdraw her amendment.
Baroness Carnegy of Lour: It has been quite difficult during the Committee stage to know when Universities UK is asking the Government to change something, and when it is simply supporting the Government. The problem is in not understanding the nature of its arrangement—this rather cosy relationship—with the Government. I do not know whether there was a deal or not about the Bill; it has been very difficult for Members of the Committee to read the tea leaves.
The amendment is very important. I am amazed that the Government are not accepting it. We talked about how OFFA will gradually see its role extending. It would be very easy to begin to argue that courses attract certain types of students and that if you want to widen access you design courses to attract them. Then OFFA might begin saying to universities, "You should do this, that and the other". It is essential that OFFA has absolutely nothing to do with the nature of courses. I am very surprised that the Government find the amendment completely unnecessary. Have they got no fear that OFFA will try to extend its remit?
Baroness Ashton of Upholland: I hoped that I had made the Government's position perfectly clear. I am sorry that the noble Baroness, Lady Carnegy, has not understood that. We are debating the issue raised by the noble Baroness, Lady Warwick. I do not know what the noble Baroness, Lady Carnegy, is referring to by "cosy relationship". It is the job of all governments to talk to the organisations which represent the institutions most affected by any legislation. I am quite sure that if the noble Baroness's party were in government it would be doing exactly the same—that is well and truly understood as a procedure. There is nothing cosy about that.
I assure noble Lords that I understand from my right honourable friend Alan Johnson that conversations have been tough and, as one would expect, extremely important in their deliberations. There is nothing that we have put forward—neither in the Bill nor in the regulations—that would attempt to micro-manage in the way that my noble friend indicated; nor do we intend to. It is a question of how best we can recognise that fact. We have made it plain that it will not be in the regulations.
In our view, not everything is appropriate to be on the face of the Bill that requires strong commitments from government. Any changes that are brought forward on any aspect would be by affirmative resolution in your Lordships' House and in another place. We believe that that is the best way to approach this subject. Our commitment is absolute. I hope that the noble Baroness will reflect and understand that I say that wholeheartedly. Our commitment is absolute to what my noble friend Lady Warwick indicated should be the case.
6 p.m.
Baroness Blackstone: I support what the Minister said. She has given the Committee a very firm reassurance about the Government's intentions. It is a very good
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thing that the noble Baroness, Lady Warwick, representing Universities UK, tabled this amendment as we now have the reassurance that is needed.
Baroness Carnegy of Lour: We do not always have to accept the assurances of government. The Minister is absolutely straightforward with the Committee and I am a deep admirer of hers. I believe what she says. However, it is a question of what should be in the Bill for the future. I am very surprised as I thought that the Government would accept the amendment, but, evidently, that is not the case and we have to leave it there.
Baroness Warwick of Undercliffe: I am grateful to the Minister for the way in which she responded to the amendment and to the concerns that have been expressed on behalf of universities. It is something about which we have been enormously concerned. The noble Baroness, Lady Carnegy, reinforced that although I hope she will not mind if I say that the strong arguments that we have had with the Government have been extremely robust. I certainly did not feel that they were cosy. We pressed the Government extremely hard on behalf of universities, as I hope noble Lords would expect. I shall read very carefully what the Minister said. I am grateful to her; her response certainly sounded very reassuring. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 86 not moved.]
Lord Puttnam Lord Puttnam moved Amendment No. 86A:
Page 14, line 38, after "assistance" insert "and advice"
The noble Lord said: In moving Amendment No. 86A, I wish to speak also to Amendment No. 87A. both of which are probing amendments designed to allow the Government time to reflect and bring forward their own proposals for ensuring the availability of high-quality debt management advice for students. This should apply not only to those taking the decision to incur the debt involved in pursuing university education, but also during their university years and, almost more importantly, after they have graduated and are confronting the issue of repayment.
This issue was raised by a number of noble Lords during the Bill's Second Reading, most particularly by the right reverend Prelate the Bishop of Portsmouth, under the broad rubric of debt education. The basic premise of these two amendments is simple. The Government are requiring young and, indeed, not so young people to incur debt in exchange for an adequate level of further and higher education. This principle would appear to have been accepted, albeit reluctantly and with many caveats. However, it remains profoundly true that many young people and their parents are extremely wary of the concept. and somewhat confused about what the debts might involve. To that end, in my judgment and that of others, the Government owe an inescapable duty of care in doing all they can to alleviate that problem.
While it may prove possible to pass this duty of care on to the relevant education institutions, I believe the Government should accept that they must remain the default provider of such quality advice. For that reason it seems to me there is an overwhelming argument in favour of a national helpline as well as advice that is always available on a web based resource. In the best of all possible worlds the high street banks might get together to provide such a service through the British Bankers' Association or some similar body, but it would require a real commitment for that to happen—a commitment from the Government and an acknowledgement that this is not a trivial issue. It may well be that 10 years from now people will become adjusted to the idea of managing their tuition fees, but certainly during the coming few years many students and their families will need all the help that the Government and, indeed, the institutions can provide. I beg to move.
Baroness Sharp of Guildford: I should like from these Benches to give our support to the amendment. It is extremely important that students are well provided with financial advice. As we know, many of them will take on very substantial debts as a result of the new arrangements. I am always surprised at how ignorant very many people are about financial arrangements and what they are letting themselves in for. It is important that they are able to get hold of independent advice which is not tied up with anyone's particular interest. There is a great danger that a number of financial advisers will get in on the act and may not provide advice that is necessarily in the best interests of students. It is therefore very important that there is some kind of independent advice line.
Baroness Seccombe: The idea of the noble Lord, Lord Puttnam, of involving banks—after all, they are usually the main lenders of money—seems to be excellent. However, at this stage I do not see why it is important to have the measure on the face of the Bill. It is up to the individual student to ensure that they manage their finances accordingly. They should do so perhaps by getting advice from the National Union of Students that has bodies which advise on these matters, but certainly the student advisers in the banks must be a real resource upon which they can call.
Baroness Perry of Southwark: I should like very much to support the noble Lord, Lord Puttnam, in what he said in addressing the amendment. I believe that most universities provide financial advice to students, and so they should. In my relatively small Cambridge college of fewer than 300 students one member of the finance department held a clinic for four hours every week. It usually ran to six or seven hours. Students got into frightful messes.
Young people get into terrible miseries with their financial affairs and need help not only on how to manage their affairs but also on the various ways of finding additional funding; many such ways do exist.
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Having a measure on the face of the Bill that encourages universities to do what I believe the majority already do would be a major step forward.
Lord Sutherland of Houndwood: I support the amendment. My experience of student life is that very often when academic problems present themselves behind them lie financial problems. That certainly is the case for some of the poorer students but not only those students. It makes good sense to tackle the matter as early in the system as possible.
Lord Dearing: I do not know whether it is necessary or desirable to include the measure on the face of the Bill, but I am clear that students will benefit from this kind of advice. I think particularly in terms of retention rates. One of the reasons for early drop out is financial problems. If that can be spotted early and the student knows that someone can help, we shall have higher retention.
Baroness Blackstone: I, too, support the amendment. I say to the noble Baroness, Lady Seccombe, that she is being a little unrealistic about the behaviour of many 18 year-olds. Many of them are not terribly experienced in handling money or, indeed, in understanding the nature of the debt that they are taking on. The advice that we are discussing should be provided by all universities. I would hope that they would all do so on a voluntary basis, but I suspect that there may he cases where that is not necessarily happening. I believe that the vast majority of universities would accept that the requirement that they should provide this advice is very reasonable.
Baroness Ashton of Upholland: I am grateful to all noble Lords who have spoken on this very important issue. It is considered important not only in your Lordships' House but more generally. I am grateful to my noble friend for raising it. It gives us the opportunity to reflect on what is already being provided in terms of support for students, as my noble friend Lady Blackstone and other noble Lords have indicated is the case, and to consider what further support might appropriately be given.
I agree with the concept of the importance of financial information. That is why we have said that access plans should cover financial assistance and financial information. We believe that those go hand in hand and in a sense complement each other. The amendment refers to financial "advice" whereas the Bill refers to "information".
As noble Lords have indicated, there is concern that students should be given financial advice, particularly in the light of what the noble Lord, Lord Sutherland, said about financial problems, particularly debt, lying behind academic problems. However, the noble Lord will not be surprised to hear me say that what we are proposing within our changes for student support is not traditional debt but contingent repayments. That is a very different proposition to the credit card debt that young people often appear to be invited to take out through a loan or whatever.

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However, the term "advice" inevitably suggests something much wider than we have in mind. I want to explain what we envisage by financial information. We want to ensure that students receive information and support from a variety of sources. Rather than thinking that they cannot go to university—that is in a sense where we began our discussions about addressing students' needs—they need to understand what is available to them—support through education authorities, institutional financial support and so on. Students with a disability, and those with children, need to understand that additional support is available. Of course, we need to make sure that those who have already started their course also know about it. It is about demystifying student finance and understanding the difference between the perception and reality of the proposals before your Lordships' House, and of understanding what is available. That is a critical part of it.
I say to my noble friend Lord Puttnam that the Government are already helping students in this area. I accept that the Government have a role to play in this. We have a website which gives information to parents, students, advisers and administrators on the range of support available. The "Aim Higher" portal provides information about what and where to study, how to apply, what it will cost and so forth. As has already been indicated, the National Union of Students is developing an easy-to-use guide on higher education, which helps people navigate their way to the wide range of information available, prompting students to ask the right questions.
Some institutions, as my noble friend said, have already developed quite innovative ways of ensuring that students find out about support. I can think of one that was brought to my attention, Edge Hill College of Higher Education, which has a computer-based interactive budget sheet that helps students understand and get an image of their finances, so they can see what position they are actually in. There are lots of good ideas, and this is really important.
Many institutions provide debt advice, ensuring that vulnerable students are given thorough, targeted advice by trained individuals. Many of these are members of the National Association of Student Money Advisors, an important body. This is especially important in terms of credit card advice, or other financial complications. The advice is highly valuable. It is good practice, and we hope that institutions will learn from each other in carrying it out. There is nothing in the Bill which discourages that activity, and neither would we want there to be.
Debt advisers have to be licensed by the Office of Fair Trading, as must institutions which offer these services to their students, and I hesitate to place a regulatory burden on institutions in respect of this. There is nothing to stop an institution from including debt advice as part of its access plan, but I do not think it right to force that upon institutions. I think that is too great a burden, although I accept this work is important.
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There are technical difficulties with my noble friend's Amendment No. 87A. I am not going to go into those. I think the noble Lord is probing to see where we want to go. I am concerned that we are not unreasonable in the demands we make on institutions. Some may well provide services to their graduates, but to place a legal obligation on them seems onerous. There is no cut off point when their obligations to graduates cease, and it could be indefinite, which I am sure is not my noble friend's intention.
I am interested in what my noble friend Lord Puttnam has said about the role of other institutions, not least the banks. What feels like a very long time ago, I was working with the National Association of Citizens Advice Bureaux in developing the debt cancellation by, I think, the National Westminster Bank, and I helped to broker the work that they did. I understand the relevance and importance of this, and many banks provide support and advice in any event. I am sure that they will continue to deliberate on how best we might add to what we already provide, and talk to business and others about what more we can do.
I am not sure a national helpline is within my gift to offer my noble friend at this stage, but the point he makes about the responsibility of government, continually to look at the support we give on the websites and elsewhere, is absolutely right. But I hope—on the basis of understanding that we do not want to make this a burden on institutions, while recognising good practice and wishing to promote it—he will be able to withdraw his amendment.
6.15 p.m.
Baroness Warwick of Undercliffe: Can my noble friend confirm that bursaries provided by institutions to their students—including those which OFFA will require them to provide—will not be taken into account when those students apply for means-tested benefits? Could the Minister further confirm that the combined higher education grant, totalling £2,700, will also be disregarded by the Department for Work and Pensions in assessing eligibility for benefits?
Baroness Ashton of Upholland: I shall respond to that point, which is tangential. My noble friend gave me notice that she planned to raise the point so that I could have the relevant information before me. We are looking actively at this with the Department for Work and Pensions. Members of the Committee will know that only a small proportion of students receive benefits, but they are the most vulnerable groups—lone parents and those with disabilities.
Fees support and targeted support are not set against benefits, but support for living costs could be taken into account. We have reached an understanding for new students in 2004–05 that the higher education grant will not be taken into account in assessing entitlement to means-tested benefits. We are working closely with the Department for Work and Pensions to ensure that

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students receive real benefit from the grant and bursary and to reach agreement about the arrangements in a similar way.
The Lord Bishop of St Albans: I apologise to the Committee for being absent at the beginning of the debate. I want to speak in support of the amendment. At Second Reading, the noble Lord, Lord Puttnam, spoke of the important role that the House has in highlighting the possible unintended consequences of the legislation before it. He referred to the Secretary of State's clear statement that social equity lies at the heart of the proposals for change. Yet we cannot deny the historic aversion to debt among many people. That aversion may have a negative effect on entry levels, particularly in economically vulnerable areas.
As the right reverend Prelate the Bishop of Portsmouth and others on these Benches have made clear, we share the concerns of the noble Lord, Lord Puttnam, about debt aversion and I am pleased to support his amendment. In the Second Reading debate, the right reverend Prelate the Bishop of Portsmouth said that people might well be put off by the prospect of finding themselves at graduation owing substantial amounts of money. He said,
"perhaps people need to be educated for debt".—[Official Report, 19/4/04; col. 42.]
Vital though financial assistance is for everyone to participate fully in higher education in the future, there is a need for a kind of support which goes well beyond pounds and pence. The amendment underlines that. We are calling not simply for assistance, but also for advice.
The point is well made that our students will not incur a debt in the traditional sense of the word because, if necessary, after 25 years that "debt" will be written off while the benefit of receiving higher education will remain. The fact remains that many people will perceive it as a debt being incurred and some may not enter or remain in higher education for that reason.
Therefore, in stressing the need for personal support that includes advice as well as money or information, the amendment draws attention to two important issues. First, the work already carried out by many universities in offering financial advice and support to their students. That clearly needs to be available to everyone. Secondly, the important truth that the purposes of higher education are far more than economic ones. They go beyond individual personal fulfilment in serving the needs of the economy, important though those are, and they extend to promoting the common good.
The right reverend Prelates the Bishop of Portsmouth and the Bishop of Manchester and others have suggested that the purposes of higher education must include promoting the spiritual, moral and cultural well-being of individuals and society. And so, too, the issue here is not just about money but about the well-being of the community of students—and, indeed, graduates, as the noble Lord's next amendment makes clear.
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The Minister, in responding to comments made at Second Reading by several noble Lords about values and purposes, made clear that people should read the UNESCO normative statement on higher education, which the Government signed in 1998. Our attention having been drawn to it in Article 1—which concerns the mission to educate, to train and to undertake research—we were pleased to discover that the very first core mission and value is:
"to educate highly-qualified graduates and responsible citizens able to meet the needs of all sectors of human society".
Citizenship, as many young people in our schools are learning, is about responsibility, community and the common good. If we as a nation are to expect our students to be responsible citizens, able to meet the needs of all sectors of human society, then we must make certain that we take our responsibilities seriously in meeting their needs as best we can during their progress through higher education. Surely that should include offering not just money and information about financial assistance, but actually advice on how to cope with the new financial realities that face students in higher education in our country today.
Baroness Sharp of Guildford: I refer to the answer that the Minister gave to the amendment of the noble Lord, Lord Puttnam. She made the distinction between advice and financial assistance. As I understand it, the argument she was making was that there is no need to add advice to the words already in the Bill because to do so would involve the complication that it would mean advice regulated under the DTI—official debt advice that would have to be regulated. I find this slightly surprising because the citizens advice bureaux do provide, as she rightly pointed out, extensive debt advice. I did not think they came under the DTI's regulatory scheme—but I may be wrong here. Can the Minister advise on this? There does seem to be a distinction between advice and just assistance. Therefore, the noble Lord, Lord Puttnam, and the right reverend Prelate are right to ask that there should be advice as well as just assistance.
Baroness Ashton of Upholland: I will attempt to answer, but not surprisingly I do not know about the citizens advice bureaux. I will find out and of course make sure that I pass that to the noble Baroness. I was saying that we have lots of institutions who already provide advice, and many of them are members of the National Association of Student Money Advisors. My understanding is that if we were to move forward in the way proposed in this amendment we would be requiring those who offer advice to be licensed by the Office of Fair Trading. I am sure that is the result of the way in which this is framed, but again I shall make sure that I give chapter and verse on that to the noble Baroness.
These are important issues. The question is whether the amendment represents the most appropriate way to proceed, and I remain unconvinced that we should

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regulate in this way. I have already said that universities can put forward what they wish in terms of access plans.
I say to the right reverend Prelate that I have responded at length to the amendment. I will not go over it all again, for the benefit of other noble Lords. I have made clear what the Government are already doing. We have discussed some of the good practice followed by institutions. I have already said that we will continue to look at what more the Government might be able to do, and I am grateful for the right reverend Prelate's comments.
Lord Puttnam: I thank all those Members of your Lordship's House who have supported this amendment. I picked up three or four words that I would like to stress once more. The underlying purpose of this Bill is social equity, to get people into universities who in the past, for one reason or another, may have been able in terms of their intellectual capacity but have not made the move. That includes their parents. I point out to the noble Baroness, Lady Seccombe, that we are talking about a sum of money which for many people in this country is the equivalent of the cost of their parents' house. These are not small sums—for many people these are terrifying sums.
I will of course listen to what the Government come back with, and I am sure they will come back with something. However, the words I want to stress are "high quality". I want the bar high, not a situation where there is a race to the bottom by the institutions and the Government because of cost. I want very high quality advice, however the Government wish to define advice. Also, the Government must acknowledge that they must be the default provider. It is the Government who have brought tuition fees into being, therefore the Government must be the default provider in ensuring the social equity they seek is arrived at as a result of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 87 to 91 not moved.]
Clause 31 agreed to.
Clause 32 [Approval of plans]:
[Amendments Nos. 92 and 92A not moved.]
Clause 32 agreed to.
Clause 33 [Duration of plans]:
[Amendments Nos. 93 and 93A not moved.]
Clause 33 agreed to.
Clause 34 [Variation of plans]:
[Amendment No. 93B not moved.]
On Question, Whether Clause 34 shall stand part of the Bill?
Baroness Perry of Southwark: My Lords, I wish to object to Clauses 34 to 36 standing part of the Bill. These three clauses together go to the very heart of what we mean by interference by the Secretary of State
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in academic freedom. The Secretary of State is taking powers in this Bill to concern himself or herself with the details of the existing plans and with the enforcement of those plans by various kinds of penalties. It becomes quite clear in Section 35(2) that the Secretary of State is going to be pulling the strings in terms of the way in which the Director of Fair Access performs her or his job and exercises her or his powers.
I should make it clear that we have no objection whatever to the Secretary of State taking powers in relation to the requirements under Clause 23(1)(a). Quite clearly, where universities are setting their fees within financial restrictions, it is right and proper for the Government to be involved. We object to the involvement of the Secretary of State in the plans, the way plans are treated, the way regulations for making the plans are made and the way penalties for departing from the plans are also made by regulations. Although we have been told many times by the Minister that the Director of Fair Access will be at arm's length from the Secretary of State, it is quite impossible to believe that in the terms of these clauses. Clause 36 deals with Wales of course, in which it is not the Secretary of State who is named but the Welsh Assembly.
In none of these clauses is there any hope of preserving the academic freedom of universities. As I have said, this House has a very proud tradition of protecting academic freedom, of laying the boundaries to it. I do not believe that the amendments which the noble Baroness, Lady Warwick, put forward—and the Government accepted—go nearly far enough. As long as these clauses are on the face of the Bill. I believe academic freedom is under genuine threat. I beg to move.
6.30 p.m.
Baroness Ashton of Upholland: I am always sorry when I find myself in disagreement with the noble Baroness, Lady Perry, for whom I have enormous respect, not least for her work in the field of education, which is ongoing and ever-continuing. However, I disagree with her fundamentally about the role of the Director of Fair Access, and it is where we part company.
I pay tribute to the excellent work carried out by many of our higher education institutions and to much of the work that goes on outside the higher education sector in promoting and supporting the best and brightest of our students, wherever they come from. That work enables students to achieve the kind of high-quality university education from which many of your Lordships have benefited and which we all recognise to be an important part of the development of individuals and of our economy. It also enables this nation to develop its work within the wider world. It is within that context that we look to what this office can contribute.
We have taken a step towards what I think many institutions consider to be the right direction in terms of the variability of fees so that institutions feel able, to a large extent, to control the financing that comes from that. We believe that that is right, but we also consider

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it to be right and responsible for government to ensure that, along the way, there are no unintended consequences, about which noble Lords other than the noble Baroness, Lady Perry, are concerned, as well as those in another place and organisations and individuals outside Westminster.
The clause is about putting together a framework that we believe will do the very best by our institutions and will also help and support our students. We believe that the critical independence of the Director of Fair Access will enable those institutions to work closely with HEFCE, as we have outlined. As I know the noble Baroness has sought through some of her amendments, the director will be as much an adviser as anything else. He will develop that relationship and help to support more work so that students from whatever background, as I said, can benefit from university education if they are able to achieve the right levels of academic ability.
I believe that the clause is an important part of the Bill. The Bill cannot continue on its way if the clause is taken out of it. The clause is part and parcel of what the Government believe must happen in order to combine what we offer our institutions with what we offer our students.
I shall not go through all the different parts of the clause because, as the noble Baroness said, I think that this is an issue of principle. If I can persuade her of the importance of the clause between now and other stages of the Bill, I shall certainly endeavour to do so. I value her opinions greatly and I shall want to try to persuade her that what we have done in respect of the issue of independence and also by accepting the amendments—not only of my noble friend but also of the noble Lord, Lord Dearing—relating to admissions and academic freedom is critical. I want to make her as comfortable as I possibly can about the role and independence of the office. We consider that to be important and that is why the clause should remain part of the Bill.
Baroness Seccombe: My noble friend Lady Perry has expressed very strongly her views on the amendments. We support her wholeheartedly and want to express our grave concerns about the powers of the Director of Fair Access.
Baroness Carnegy of Lour: Can the noble Baroness tell someone like me, who is outside the system but who is very concerned about the academic freedom of the universities and about the powers of OFFA, how she can say that OFFA is independent in view of Clause 35(2)? That subsection states that the Secretary of State may, by regulations, lay down the matters to which the director must have regard in exercising his powers, the procedure to be followed, and the financial requirements that may be specified in the sanctions.
It seems to me that—in this respect, at least—it is wrong to stand up and say that OFFA is independent: OFFA is the creature of the Secretary of State. I think that the Government should admit that and be honest with the universities, the public and the students. OFFA is not independent; there is no question about
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that. That is at the heart of the Bill. The noble Baroness is right: this is what the Bill seems to be all about. But it concerns me very much and I know that it concerns many universities, although, apart from my noble friend, at present they find it difficult to say so.
Lord Brooke of Sutton Mandeville: I have not previously cast the Minister in the role of Sisyphus but, not only in the debates that we had a day or so ago but also on this occasion, I have found her seeking to push a substantial mound of stone uphill only for those of us who are watching to see it roll back again. I remember a debate that we had at an earlier stage in which I said that I was more than partially reassured by the words which the Minister had uttered. I do not think that on that occasion she had cast her eyes forward to the clauses that we are now considering. However, having been partially reassured, I then become more than partially unreassured by the clauses that we have in front of us today.
Twenty years ago, I sat in a quite exceptionally lengthy conclave with the late, great Sir Keith Joseph. My noble friend Lady Perry was present at those meetings in another capacity. We spent hours and hours, as anyone would have expected the late, great Sir Keith Joseph to do, discussing the independence of universities in the context of the issue of tenure, which we were addressing. I should like to feel that, within the Department for Education and Skills, the same kind of concern about the independence of universities had been exercised in debates which were just as long before those in the department came forward with this clause. I certainly join my noble friend Lady Perry in saying that all my anxieties have been re-aroused by the way in which these clauses are phrased.
Baroness Sharp of Guildford: We on these Benches also have some sympathy with the views expressed by the noble Baroness, Lady Perry. It seems to me that the Minister was saying that there was no dispute about there being a Director of Fair Access, about the fact that the director should have plans or that plans should be submitted. Within the context of the series of amendments put forward by the noble Baroness, Lady Perry, which frequently had the names of the noble Lords, Lord Forsyth and Lord Sutherland, attached to them, there is no dispute about the fact that there should be access plans and that universities should prepare those plans and submit them to the director. Rather sensibly, the suggestion is that they should form part of the universities' overall strategic planning provisions.
Clause 35 is far more primitive. Admittedly, that is perhaps the stick with which the Government seek to make effective what they want to do, but it seems to me to be an unnecessarily strong stick and subsection (2) gives very wide powers to the Secretary of State to act as he sees fit. As I said, I share some of the doubts that have been cast about whether that is really necessary.
Lord Renfrew of Kaimsthorn: I support the point made by my noble friend Lady Perry and other noble Lords who have spoken. I remember debates in this

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House a decade ago when matters of academic freedom were hotly contested. A number of us who were then supporters of the government of the day found it necessary to oppose that government on one or two matters when it seemed that academic freedom was being infringed.
I shall be very interested to hear what the Minister says in reply to the question posed by my noble friend Lady Carnegy. It is very difficult to see this provision in Clause 35(2) as other than interventionist. It states:
"The Secretary of State may by regulations make provision…as to the matters to which the Director must, or may not, have regard in exercising his powers".
Nor is there any safeguard with regard to timing. If, at some moment, the Secretary of State finds that he is dissatisfied by a specific decision of the director, it seems to me that he may at once impose regulations, which may well be of a general nature but could apply in a specific case and could be brought to bear in a specific case.
So it is difficult to see how the clause is other than one that invites intervention by the Secretary of State in the working of the director and therefore virtually invites him to intervene in specific matters in specific universities and thereby clearly to undermine academic freedom. I shall be most interested to hear the Minister's reply to my noble friend's question.
Lord Dearing: If the requirements are to have substance then there must be some consequence if they are not met. I should think that that is what Clause 35(1) is about. If we have the one then it is arguable there should be the other. As to the regulating power, as one who sat in desks where the telephone was in contact with the department, I would much rather see what was coming my way in public in a regulation than via a word over the phone or a letter and persuasion. Then it is in the open and the Secretary of State can be held accountable for his doings.
Baroness Carnegy of Lour: The noble Lord, Lord Dearing, may be content with the whole thing, but does he agree that OFFA is independent?
Lord Dearing: It is essentially independent but that does not mean that the Secretary of State should not be able to pronounce in a public way—for example, when the noble Baroness, Lady Perry, proposed that OFFA should have a role in training, I suggested that it might be desirable for the Secretary of State to cool the ardour of an over-zealous trainer.
Baroness Ashton of Upholland: I shall try to address a couple of the important points raised. I would say to the noble Baroness, Lady Carnegy, that there is nothing dishonest in anything that I say in Committee or indeed in the Government's intentions. The noble Baroness may disagree with me, which is completely acceptable—I regard her very warmly—but it is not dishonesty, which is a different proposition.
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We say that the director is independent and rightly so. There is a regulatory framework. We think it is important, when we set up anything, that it is clear what the office we are describing is meant to do and that, as the noble Lord, Lord Dearing said, we set out clearly the consequences.
We expect that the relationship between the Director of Fair Access and the institutions will be a positive experience for everyone. We recognise, as I said in my opening remarks, the invaluable work that institutions are doing to ensure that students who have the abilities apply to them. I pay tribute to them as I have already done. But we think it is important to set it up in this way and that the way we have created it—particularly with the amendments that we have accepted—has expressed even more firmly in the Bill our commitment to independence and academic freedom.
We want to make sure, as I have repeatedly said—and I hope that the matter has been put to rest by our acceptance of the amendment—that this is about applications and not admissions. If I had the classical education that I clearly should have done to deal with the always wonderful literary allusions that begin the contributions of the noble Lord, Lord Brooke, perhaps I would have been able to come up with something wittier than I am able to at this point. It is sad but true that my education does not run to that extent.
We have tried to be clear about the independent role. It is not about the Secretary of State dictating. It is about affirmative resolutions, which are a critical part of ensuring transparency and clarity of view. Although the noble Baroness, Lady Perry, may disagree with us, which is her prerogative from her experience, we believe that this is a critical part of making sure that we can move forward in a positive way in our desire to develop our higher education sector and support it as best we can.
Baroness Perry of Southwark: I am grateful to the many noble Lords who have supported the thought behind the clause stand part debate. I am sorry that the Minister and I seem bound to disagree over this part of the Bill. We have no disagreement on variable fees and over the importance of OFFA. I have never moved any amendment that suggested that OFFA should disappear, much though it might be nice if it did.
6.45 p.m.
I recognise that it is important to have some guarantee that the hugely increased burden on students is not used as a way of keeping students from poorer families out of higher education. I am most sorry about the tone of the Bill, which is encapsulated in these and earlier clauses, that the universities are simply not to be trusted and OFFA has to be given punitive powers in order to make them comply. I do not see things that way and I do not believe that that is the way universities behave.
There is undoubtedly a great deal to be learned about the best way to go about increasing applications from under-represented groups and so on, and I would

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like to see OFFA engaging with that. I do not like the interference and the encroachment on academic freedom that runs throughout the Bill and we shall have to continue to disagree.
Clause 34 agreed to.
Clause 35 [Enforcement of plans: England]
[Amendments Nos. 94 to 99 not moved.]
Lord Butler of Brockwell Lord Butler of Brockwell moved Amendment No. 99A:
Page 16, line 19, at end insert—
"provided that an institution shall not be regarded as failing to comply with the requirement if it has taken all reasonable steps to comply."
The noble Lord said: The noble Lord said: In moving the amendment I declare an interest as head of a college at Oxford University. This is the only amendment to the Bill with which I have troubled your Lordships and the Government. I hope that on those grounds alone it may attract some sympathy and support. Its purpose is to write into the Bill an assurance that has been offered both by the Minister in earlier debates and by the Minister for higher education in another place.
It says that when the Director of Fair Access is considering whether to penalise an institution for failing to comply, the institution should not be regarded as failing to comply if it has taken all reasonable steps to do so. The purpose is to remove a fear on the part of institutions that in a situation when they have done everything that they promised to do in the plan agreed with the director to provide fair access, nevertheless they could be penalised because the social mix of the students they admit comes out in a particular way.
Assurances have been given by the Government that that is not their intention. In the debate on not constraining the freedom of universities over admissions, the Minister said:
"In talking to the universities, in particular, we have been very clear that this is about inputs and not outputs… We recognise that some of the work that they do may have no impact on what happens in an individual institution, but it might have a broader impact on a group of universities as the university sector works with students… That is why we are very clear that the director should recognise that this is about inputs and not about outputs". —[Official Report, 17/5/04, col. 617.]
The Minister for Higher Education for another place was even more explicit in Committee. He said:
"It is not a matter of the access regulator saying, 'Well, you've done everything you said you would do, but your social class mix has not changed, therefore you will be punished"'.—[Official Report, Commons Standing Committee H, 2/5/04; col. 384.]
These are the most explicit assurances that have been given by Ministers. They are extremely welcome, but I think it would greatly improve the Bill and certainly reduce anxieties on this account if they could be written on to the face of the Bill as a constraint on the director to penalise institutions of higher education in these circumstances. That is the purpose of the amendment. I beg to move.
Baroness O'Neill of Bengarve: This is ultimately a very simple point about OFFA and I hope very much
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that it may be one that the Minister is able to support. We have been assured, as the noble Lord, Lord Butler, reminded us, that the task of OFFA is access not admissions. However, "access" is a word not without ambiguities. Those of us who support the amendment believe that without it, it remains unclear whether fines can be levied on institutions that do not succeed in increasing the proportions of under-represented groups despite their best efforts on access activities.
We have to acknowledge that the social composition of the student body of a university is a function of many things other than the admissions process and admissions policies. In particular, it is a function of student choice and student preparation as well as institutional policy.
Students may choose where they go to study because they want to live at home or because they want to live not at home; because they want to live in a big city with all its excitement or because they want to live in a more remote area of the country which perhaps they never enjoyed before; because they want a large, international research institution as the atmosphere in which they do their undergraduate work or because they want somewhere smaller, cosier and more intimate; because they want a place that has a high proportion of vocational courses and a certain atmosphere of vocational seriousness or because they want a place that is steeped in scientific work. All those are very reasonable things for students to want, but given the diversity of preparation of different groups of students, they are not all matters that can be simply adjusted by a given university.
I believe that certain subjects in higher education institutions may have great difficulty in increasing the proportion of their students that come from underrepresented groups. More generally, because this is the way the Bill is framed, certain subjects will have a very hard time increasing their proportion of underrepresented groups. It is not the number of people who universities can recruit—particularly into the physical sciences, engineering and mathematics, and there may be rather fewer mature students who have had the preparation, as just an example, that makes it possible for them to do those degrees—it is simply a question of the combination of preparation and student choice and its impact on institutional success.
We do not want to repeat the weary road of the United States when it engaged in affirmative action and matters ended up before the courts because it was interpreted by some institutions as requiring them to admit in a way that was not solely dependent on the qualification, merit, aspiration and potential of the young person. I believe that universities should not he liable to sanctions for matters that are beyond their control.
Lord Forsyth of Drumlean: I very much hope that the Minister will be able to accept the amendment moved by the noble Lord, Lord Butler of Brockwell, which seems to me eminently sensible. Also, it has the merit of enshrining on the face of the Bill commitments that were made in the other place. I also think—I was a little disappointed by the Minister's response to the

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previous debate—that the amendment guides the Bill in the right direction on the role that OFFA should play, if we have to have it. It should not be a kind of authoritarian organisation taking a view but an organisation which encourages best practice and encourages people to do their best. The amendment would provide a welcome balance, which I would have thought would place the role of OFFA on a much better basis with the institutions. If OFFA is not able to establish a good relationship with those institutions, both will fail in their purpose.
Lord Sutherland of Houndwood: I speak in support of the amendment but note that Amendment No. 103, tabled in my name, has been grouped with this one and I am quite content to speak to that too.
I support Amendment No. 99A for two reasons, which have been clearly articulated. First, as has been said many times in the debate on the Bill in both places, not all is in the control of universities. That principle being accepted, we must assume that universities will take all reasonable steps. Secondly, sometimes reasonable steps are not simply taken by one university for the benefit of that university, but by a group of universities in a particular location—a city, for example. To my knowledge it is quite a regular event that a group of universities will together put on access courses and early courses in the summer. Students will be attracted to those courses in the hope that they will go to one of the universities sponsoring a course but not necessarily any particular one. In that case, one has half a dozen universities taking very reasonable steps. The beneficiary may be one or two universities. That is an additional reason for focusing on the quality of the steps taken rather than hinting at the outcomes.
Amendment No. 103, grouped with this amendment, calls for an appeal mechanism. The Minister has assured us today that she wants to make us as comfortable as she possibly can with Clauses 34, 35 and 36. An appropriate appeal mechanism would make me much more comfortable, though I still have some questions on Clause 35.
When I first read the Bill I assumed that the absence of an appeal procedure against the decisions of the director of OFFA was an oversight, caused by so much excitement being created about other aspects of the Bill. However, I suspect not. The principle for an appeal mechanism is very clear. It is a matter of justice being done and being seen to be done. If there is no appeal mechanism against the judgment of what may be effectively one individual which could cause serious financial difficulties for universities—I shall comment on those shortly—we are failing to ensure that justice is being done and being seen to be done.
The detailed specifications in the amendment for illustrative purposes clearly would need further discussion and consideration if the principle of the amendment were accepted. Not least, for example, we would have to consider how it applied in Wales, to which the amendment does not refer. However, I
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should be happy to have comment and advice on the nature of the appeal mechanism and, indeed, on the way it might best be carried out and by whom.
It might be argued—indeed, I have heard hints of both in the course of our discussions over the past week and a half—that there is always the option for judicial review. That is one possibility. Often it is hinted that we, whoever "we" are, are really quite gentle and kind in our intentions and that we do not want to legislate for possible failure on the part of universities and therefore for all the panoply and traditional burdens of appeal mechanisms, that is to say not always assuming the worst. But today we have heard talk of the importance of there being consequences, and consequences being seen to be real consequences. Indeed, I am sure that if we look at last Thursday's Hansard, the Minister used those words in a very specific and clearly directed way; that is, that universities must be aware that there will be consequences of this whole process.
If there are to be consequences, clearly, having reassurances that an appeal mechanism is not necessary is inadequate. There is a stick here, and if there is one, we want to be sure that it is used only and properly according to the rules that everyone understands, which surely include the right of appeal.
7 p.m.
There is the power to fine universities substantial sums of money and a power to prevent universities levying any additional or top-up fees. The whole point of the Bill is that the universities need that money. So I believe that there is significant power in the Bill requiring a proper mechanism to ensure that any judgments exercising that power are legitimate and well framed.
Judicial review is a backstop. But we all know that it is expensive and time-consuming. The costs involved for institutions putting something through judicial review will be very high indeed. In every way it is burdensome—except perhaps for those who are professionally employed to put cases.
There is an issue here. I do not think that judicial review is adequate. For example, in the RAE where judicial review is available, and where issues are taken very seriously, to my knowledge it has been used once in 18 years. That is not an endorsement of the correctness of every judgment made by RAE panels over those 18 years, it is simply that the candle is not worth the effort that would be involved. The difference between the regulator for OFFA and the RAE is that the director of OFFA can fine universities for money which they have otherwise legitimately earned, and in the case of the RAE it is a question of additional money being allocated. So I put the case as fundamentally an expression of what natural justice requires, that there be some form of appeal against the decisions of potentially one individual.
Lord MacGregor of Pulham Market: I wish to speak particularly to Amendment No. 103, to which I have attached my name, but I also support Amendment No. 99A. Indeed, in our debate immediately after

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dinner on the last occasion when we debated these matters, I expressed some concern that the amendment the Government put forward, and which was agreed, did not go far enough. It is a thin dividing line between access and admissions. I can well see that a regulator or a government that does not think that the admissions process is delivering what they hope from the access arrangements might cross that dividing line. So I support Amendment No. 99A.
However, I want particularly to talk to Amendment No. 103 and from the point of view of being a member of your Lordships' Select Committee on the Constitution, which recently produced a report—The Regulatory State: Ensuring its Accountability. That is very relevant to our debate on Amendment No. 103. My noble friend Lord Norton of Louth, who was present earlier, as chairman of that committee I am sure would wish to have spoken—and I hope would speak in the same vein, but he had to chair another committee.
The point is that the director is a regulator. The committee spent many months looking at the major regulators and listening to the providers, those regulated, consumer groups and so on. Our report is based on a huge amount of detailed evidence of the experience of regulators. The focus of that evidence was exactly this issue; that strong complaints were being made where a regulator was in existence and an appeal system was not available. The Government accept that because increasingly when regulators are established, or there are changes made to regulators, an appeal system of some sort is put in place.
It was also very clear that it was not considered fair or appropriate that the appeal process should be within the organisation itself. It is vital that it is independent and external.
I very much agree with the noble Lord, Lord Sutherland, that judicial review is not sufficient and is not a response to this amendment. Let us be frank; judicial review is fundamentally about process and not about substance or the merits of the case. The issue that may well appear here is that it will be an issue of substance or merits and not process. That, too, came out very clearly from the evidence we took.
Much of what I would wish to say is in Chapter 11 of our report. In view of the hour, I shall not read it. But there is no doubt that it was regarded as one of the most important chapters in our report and is why I feel so strongly on this.
In the clause stand part debate, the Minister said that she hoped and believed that the experience will be a positive one. What if it is not? Suppose some universities believe they have been unfairly treated? As the noble Lord, Lord Sutherland, pointed out, the penalties and sanctions in the Bill may be rarely applied, but where they are they could be very formidable—and formidable in their effect on the individual institution. It is therefore important that there is an external appeal system. Let us face it, a great deal of power will exist in the hands of the director. That is why the independent appeal system is so important.
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We recommended in our report a regulation appeal tribunal for all those regulated areas that do not yet have an appeal system. I do not think that that would be appropriate in this case, and, indeed, one is not in existence. One will have to await the Government's response on that recommendation. In this case it is a specific area; it is a specialist, non-economic, non-competition area and therefore a different type of appeal system needs to be established.
The noble Lord, Lord Sutherland, referred to the costs to universities. I think it is very important that any appeal process should avoid heavy costs. I believe that is why he inserted a 12-week timetable within the appeal process, which I think is entirely right. The details, as he said, may not be exactly right. I am concerned about the membership of whatever appeal process is set up because it is vital that that appeal system is seen to be totally independent. But these are details which can be sorted out between now and Report. I believe the principle is very important, and I hope that the Government will accept it.
Lord Renfrew of Kaimsthorn: I should like to ask the Minister a question in supporting these very necessary amendments, which I hope we shall see on the face of the Bill, whether or not we do so this evening. I am a little pessimistic about the work of the Director of Fair Access. I see that he can work with university departments to encourage them to produce plans with which he is content.
I do not understand how the director will form a judgment at the end of the day on whether the plans have been successful. What criteria does the director employ in judging whether his project is successful? I am extremely pessimistic about the whole enterprise. I do not want to go too far off the point, but if we are to have these top-up fees, which many of us warmly support, essentially they are to be paid by loans, which, as we heard in the earlier debate, is debt that students may be very concerned about. It seems to me that it will be a difficult project for the Director of Fair Access to encourage a more favourable social class mix—to use the phrase which the noble Lord, Lord Butler of Brockwell, quoted from the Minister for Higher Education.
So I think it is very possible that there will be cases where the Director of Fair Access will find that his project is not succeeding. In fact I predict that there will be many such cases. I fear that there will also be cases where he does not realise or is not willing to accept that that is a product of the Sisyphean quality of the enterprise, but when he may feel it must he a defect in the plans. So I am very concerned that the director may feel that sometimes the problem lies in the plan rather than in the project—about which l am pessimistic. That is why I find these very necessary safeguards. I shall certainly be very interested to hear from the Minister how she imagines the Director of Fair Access is going to evaluate the suitability of plans and whether the plans are in fact working.
Baroness Warwick of Undercliffe: I support the amendments. In view of the lateness of the hour I shall be extremely brief. As the noble Lord, Lord Butler, said, the Minister for Higher Education when pressed on this matter in Standing Committee in another place said that in such a situation no institution would be penalised. I cannot think of any reason why the Government should not accept that.
The amendment of the noble Lord, Lord Sutherland, also has my support. I hope that in practice institutions and OFFA will be able to negotiate together and settle their differences. However, we must be ready for a worst-case scenario in which an institution and OFFA are not able to agree. I do not want to rehearse the arguments that have been made particularly about judicial review. An independent appeal mechanism, like the one that is proposed in the amendment, would be a valuable addition to the system.
Baroness Sharp of Guildford: We on these Benches also support the two amendments. In relation to the first amendment, in our earlier debate on the clause as a whole, we talked about how punitive Clause 35 is. To some extent, the amendment proposed by the noble Lord, Lord Butler, helps to ameliorate the punitive nature of the clause. I endorse the arguments put forward by noble Lords about the need for an independent appeal mechanism. It seems absurd that we should have to go to judicial review on such issues. An appeal mechanism within the framework of the system is far more satisfactory.
Baroness Blackstone: I am afraid that I shall add a little note of dissent to the debate. I am reluctant to do so because I understand the motives behind both of the amendments. However, I shall focus on the amendment that relates to appeals. I assume that my noble friend will support or accept the amendment tabled by the noble Lord, Lord Butler of Brockwell, but I do not know that she will. If she does, that will be a very substantial concession and it will lead to questions that were put very pertinently by the noble Lord, Lord Renfrew.
I am at a loss to understand quite how the Director of Fair Access will decide whether the plans that a university has made to promote access are working if he or she is not allowed to look at the outcome. If a university provides all kind of access arrangements, runs summer schools and gets more applications from a wider range of students, that is all well and good. But if it does not accept a wider range of students, that is a problem.
However, if the Government accept the amendment tabled by the noble Lord, Lord Butler of Brockwell, I cannot see how the Director of Fair Access can then pursue a situation where, in spite of all the different attempts to comply with the "reasonable steps" that have been made, there is still no change in behaviour when it comes to looking more favourably at applicants from state schools or social classes that are currently under-represented.
Let us suppose that a university is looking at a state school student who has three A grades at A-level and that student is still not accepted because there is
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another student from an independent school who has also got three A grades but appears to be much more fluent and articulate at interview. We know that that sort of thing happens. We have all been involved in making those kinds of difficult decisions.
However, my real concern is the proposal for an appeal system that was made by the noble Lord, Lord Sutherland, which has been widely supported. If we are to go down that road, we must be very much clearer than we have been so far in this debate about the grounds of appeal. Otherwise, why should not any university automatically appeal if it gets a judgment that goes against it? As a vice-chancellor, I would certainly do that. We must be much clearer about the processes and the costs.
I am not very happy about the proposal in the amendment that there should be a panel of three people; that is, one person proposed by the Secretary of State, one proposed by Universities UK and a senior judge. If I were to be proposed by Universities UK—heaven forbid, I am sure that I never will be—I would feel, in a sense of tribal loyalty, that I would have to support my colleagues who were appealing. As currently proposed, the whole mechanism is flawed. We should not go down this road without a lot more thought about the costs and effects and what the actual sensible process of introducing an appeals procedure should involve.
7.15 p.m.
Baroness Howe of Idlicote: I was very much encouraged by what the noble Baroness, Lady Blackstone, said earlier when she indicated that perhaps the amendment moved by my noble friend Lord Butler of Brockwell would be accepted. I certainly want to support that amendment for all the eminently sensible reasons that have been given, which merely make it clear that all reasonable steps had been complied with, the penalty would not be enforced.
I see the point about appeals. Perhaps that amendment will have to be redrawn. I was extremely surprised to hear the noble Baroness, Lady Blackstone, make those comments. Surely, the judgment will have already been accepted by the director of OFFA. If the outcome is not quite what is expected, there should be some method by which a test of reasonableness is employed.
Baroness Carnegy of Lour: The noble Baroness, Lady Blackstone, seemed to think that if the amendment put forward by the noble Lord, Lord Butler, was accepted, that would make everything all right. But, again, it is a subjective judgment whether "all reasonable steps to comply" have been taken. It is wrong that a university might lose the ability to raise its fees, which are so crucial, or be fined £500,000 on a subjective judgment, even if the amendment put forward by the noble Lord, Lord Butler, is in place.
The noble Baroness thinks that everyone will appeal. I expect that would be true if the amendment is as simple as Amendment No. 103A tabled by my noble friend. But if the amendment is more precise, it would be quite possible to put that in. I cannot see how the system can operate without some sort of appeals

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system. If the Government are not prepared to accept this, I hope that the Committee will make that decision and that it will stand. Otherwise, the system will be grossly unfair. I should have thought that the noble Baroness, Lady Blackstone, would be feeling herself suffering already for the lack of appeal.
Baroness Blackstone: I should like to respond to the noble Baroness, Lady Carnegy. I very much hope that if we have OFFA, it will not be just subjective and will make its judgments on the basis of all the objective evidence that the Director of Fair Access will be collecting.
Lord MacGregor of Pulham Market: If we suppose that the director feels that the institution has not "taken all reasonable steps" and the institution feels that it has, is it not right to have a right of appeal on that point and have an independent judgment, which is not one made within the organisation itself?
Baroness Blackstone: I like to think that if the Director of Fair Access is doing his or her job properly, he or she will make only very considered judgments. I hope that universities will not be over-defensive about the work of OFFA and will try to respond in a positive way in the spirit of being given a view about an objective outside organisation about what that university is doing. We should not be over-defensive about this.
Perhaps I may come back to the issue of the RAE, which was appropriately mentioned by the noble Lord, Lord Sutherland. There is not an appeal mechanism there. Judgments are made as far as possible on an objective basis. Those judgments may sometimes involve some subjectivity. Certainly, very often universities are extremely disappointed with those judgments and they do not agree with them. But they accept them.
The universities lose a great deal of money if they have a big department in, say, the sciences which moves down a grade. They lose even more money if they move down two grades. So the same principle operates there. It has been operating for a very long time. It is widely accepted by the universities, although individual decisions are taken that they may not like. They do not resort to an appeal system. If they did, we would never have a system of selectivity in allocating research funding that would work. It would be clogged up with endless appeals. That is my slight concern about moving down this route in relation to the work of OFFA.
Lord Sutherland of Houndwood: The difference between the RAE and the office and director of OFFA is that the director of OFFA has the capacity to take money from universities already legitimately earned or received by them through the process approved by the funding council. The RAE allocates additional cash on a basis that even its most ardent supporters—and, on the whole, I support it—would not say was objectively right in every case. It is additional cash, not the basic cash from which a deduction is made.
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Secondly, I should like to pose a question to the noble Baroness, Lady Blackstone—still, I hope, my noble friend. If the Minister will allow another classical allusion, even Homer nodded. Is it not possible that the director of OFFA might impose a very serious sanction—no top-up fees for you?
Lord Forsyth of Drumlean: I intervene very briefly. I did not speak to Amendment No. 103, which I support, although I have some concerns about the composition of the appeal panel. However, that is a detail—the issues of the appeal itself and the right of appeal are fundamental, for the reasons that my noble friend Lord MacGregor has spelt out. For those noble Lords who have not read the report of the Select Committee on the Constitution, the appeal to the regulator's decision is a very important question.
We owe the noble Baroness, Lady Blackstone, a great debt. Her speech has been very revealing, because it shows what the agenda is. As I listened to her speak, it seemed imperative that the Government accept both these amendments. She highlighted the dangers inherent in the role of OFFA in moving from requiring universities to do everything in their power to encourage wider access to looking at the outcome and then penalising them for not achieving that result. The effect of that would be to interfere in the university's admissions decisions. The noble Baroness shakes her head, but she asked why the director should not be able to look at the outcome. The outcome is not in the hands of the universities unless the director requires that they alter their admissions arrangements in order to get the director's pre-ordained view of what the admissions should be.
There should be a right of appeal on the grounds of natural justice and of ensuring that the Government's assurances that the director of OFFA will not seek to target individual institutions in respect of their admissions policy but will instead seek to encourage good practice in achieving wider access. For both these reasons, it becomes even more important that the Government accede to a right of appeal in this way. The noble Baroness—whether intentionally or not, I do not Know—has, in arguing the contrary case, underlined the reasons why it is imperative that this is done.
Baroness Blackstone: I do not want to prolong the debate for too long but I was trying to respond to the very pertinent question of the noble Lord, Lord Renfrew. Perhaps my noble friend the Minister will respond to this point, because I am not absolutely clear about exactly how OFFA will judge what is working. Presumably there is an expectation that OFFA should be able to do that. I am unclear about how that will work, particularly if the amendment of the noble Lord, Lord Butler, is accepted. I am not opposed to his amendment, but I am puzzled as to how we will make the system operate effectively.
Lord Brooke of Sutton Mandeville: When, some time ago, by a gesture of the hand, I indicated to the noble Baroness, Lady Blackstone, that I hoped that she would speak rather than myself, I did not realise that

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I would be letting in another seven speeches after hers. I do not begrudge it for a moment—it was quite clearly the right thing to do because her speech occasioned a whole series of subsequent sallies. I am happy for another reason that that should have occurred and that I should find myself, even now, following after her directly.
If I am right in recalling that the definition of an act of God in Blackstone's law dictionary—and I bow to the noble Baroness—is an act which no reasonable man would expect God to commit, then by an inverse logic it seems that the amendment of the noble Lord, Lord Butler, is an act of God condition, which is good for everybody.
I understand what underlies the remarks of the noble Baroness, Lady Blackstone, on Amendment No. 103. The amendment of the noble Lord, Lord Sutherland, supported by my noble friend Lord MacGregor, with a powerful argument in terms of the examination of the regulator by the Constitution Committee, is freestanding. It is not conditional upon the amendment of the noble Lord, Lord Butler. I would regard it as an aid to the Sisyphean task to which I referred earlier.
I apologise to the Minister for having used an allusion with which she was not familiar. Fifteen years ago, when I was on the budget council of the European Union, I worked out that classical literature was the only thing which the 12 countries had in common and therefore I could use it throughout. I apologise if, 15 years later, the habit is still with me. However, I can explain, in a very brief parenthesis, that it is a classical version of snakes and ladders.
My final point goes back to what my noble friend Lord Forsyth said on the last amendment, which relates to trust. I have said before in your Lordships' House that it is my experience that people behave in the way they are treated. The Government are running a risk, if they demonstrate overtly that they do not trust the universities, that the universities might start behaving in a less trustworthy way. Frankly, just as the amendment of the noble Lord, Lord Butler, is good for everybody, any development of untrustworthiness would be bad for everybody.
Baroness Ashton of Upholland: This has been a long and very interesting debate and I am grateful to all Members of the Committee who have spoken. I shall try to keep my comments as brief and pertinent as possible.
The noble Lord, Lord Butler, has raised a very important question. In principle, I am wholly in agreement with him and therefore with all other Members of the Committee who have spoken on this. We have made it clear that we want institutions to include their own milestones for widening access in their plans. We want them to be ambitious in that, for their own institutions, but we cannot have a situation in which the director might impose a sanction on an institution for failing to meet a milestone due to circumstances beyond its control.
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The noble Lord, Lord Renfrew, in particular, was interested to know how the director would examine whether institutions had been successful. I refer back to what my right honourable friend Alan Johnson said about inputs, not outputs. In the access plans, we know that institutions have very clear and well worked out propositions for their outreach activities, the kind of financial information they are offering and the bursary schemes that some universities have already proposed. It will be about a recognition that they have done what they said they would.
If the institutions said that they would run summer schools, they will have run them. If they said that they would run outreach programmes, they will be able to show that they have. If they are offering bursaries, they will be able to demonstrate that they have done so. It is a question of input, not output. It is very important to understand that that is what the Director of Fair Access will be looking for.
We have said in our draft guidance that an institution's failure to meet milestones should not, in itself, be grounds for any sanction. It is right that the director must make fair and reasonable decisions and must justify them. This is a general point of law and whether or not we write the amendment into the Bill, these are basic principles that cover any administrative decision. Were the director to ignore these wilfully, I believe that any application for judicial review of his decision would be bound to succeed.
Lord Forsyth of Drumlean: I am most grateful to the Minister. Surely she is not arguing that it would be a legitimate use of scarce funds which are provided for an educational purpose to embark upon a judicial review in order to resolve these matters. Would it not be more sensible to protect the interest by having an appeal procedure?
7.30 p.m.
Baroness Ashton of Upholland: I will come to the appeal process, but I will first finish my remarks about the amendment moved by the noble Lord, Lord Butler.
I am keen to offer further assurances to your Lordships, but I am sorry to tell the noble Lord that there is a technical problem with the amendment. For example, it says that,
"an institution shall not be regarded as failing to comply with the requirement",
placed on it when, under the Bill, a sanction could be deployed only if it had already failed. With his long experience, the noble Lord will know that I cannot accept the amendment as it currently stands if there is a technical problem. I am sorry about that—actually, I am not sorry because that is just the way it is. However, I will discuss the matter with the noble Lord, take this away and look further into what I can do at Report. As I said to the noble Lord, Lord Renfrew, I will make a Peer happy—perhaps a different Peer in this context.

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I will not go into any more detail on the matter. I hope that I have answered most of the queries about specifics. On that basis, I hope that noble Lords will not press their amendments.
On the issue of appeal, I am grateful to the noble Lord, Lord MacGregor, for his comments on chapter 11 of the Constitution Committee's report. We thought very hard about whether to introduce an appeals process for decisions. On reflection, we decided that it would be counter-productive to introduce a procedure that was potentially costly, lengthy, complex and of doubtful value.
I want to set out some of the problems that we identified so that noble Lords can reflect on what I have said in this extremely helpful debate. I was genuinely grateful to the noble Lord, Lord Sutherland, for tabling this amendment, which raises many questions that we pondered. As my noble friend said, we began by determining the grounds on which an appeal could be made and whether the panel suggested by the noble Lord—I appreciate that that is one idea, which I shall use as an example—should meet on an ad hoc basis or be a permanent body. We are not sure that we can be clear how the representatives would be chosen to ensure that they had the full support of those involved in the process—whether they can compel witnesses or produce documents or what evidence would be admissible in an appeal of this type.
There is also the question of who would pay the costs of establishing and running the body. It is certainly tempting to believe that a representative of the Secretary of State, a representative of Universities UK and a senior judge could make such important judgments. But again, I fear that the devil is in the detail. As my noble friend Lady Blackstone said, if she were the representative of Universities UK, even if she felt that she had to be collegiate in that sense, there are issues about whether that representative would be seen to be representing the institution's interests. I am not confident, especially in the light of comments made by noble Lords not only in debates on this Bill but more generally, that a nominee of the Secretary of' State would always be seen as wholly impartial. It would therefore be possible that the decision could come down to the voice of the senior judge. Were that the case, no real advantage seems to remain over the established process of judicial review.
Neither am I clear that the proposal would be any more economical or efficient than judicial review. I suspect, from the discussions we have had with institutions, that they would be as likely to hire legal representation before dealing with the appeals panel as they would for an application for judicial review. The cost may not be any less for an appeals procedure.
The question of who should pay for the services of the appeals panel or the administrative support that would inevitably underpin it would be identified in funding. It is possible that institutions would have to bear the cost. Again, that is the type of detail that we tried to wrestle with before we reached our conclusion.
The noble Lord, Lord Sutherland, mentioned a length of time judicial review would take. I appreciate that it is not easy to predict how long it might take.
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However, I am not sure that it is so easy to predict how long an appeals process would take. It is possible that it may not be either quicker or easier to convene such a panel than it would be to go through the judicial review process. We expect the occasions on which it would be convened would be few and far between, if it was ever called upon at all. Therefore, arranging such panels could take considerable time.
Independent appeals procedures are generally set up if the cases heard are likely to be very technical, or if a very large volume of cases is expected. Decisions of the director are extremely unlikely to be contested on technical grounds. As I said, we expect that if there were any at all, the volume would be minimal. If every higher education institution had an access plan, the total would be fewer than 150, and given the commitment—that we fully recognize—of most institutions to widening access, we do not expect the question of sanctions to arise in many cases. We believe that it is not the best use of resources to set up a bureaucratic structure to oversee such a potentially small number of cases. We went through all the practicalities. Judicial review is a well known, appropriate route of challenge. It could examine whether a director had correctly followed or abused procedure, whether the decision was irrational or unreasonable, or whether the director exceeded his power.
Lord Forsyth of Drumlean: I apologise for interrupting the Minister again, but I would like her to help me. She is arguing that judicial review would not be more costly. How much would a judicial review of a decision by the regulator cost a higher education institution?
Baroness Ashton of Upholland: I apologise to the noble Lord because that figure is usually in my head and it has gone completely. There are well known figures. It may appear as if by magic hut, if it does not, I will certainly write to the noble Lord. However, I asked the same question when I was briefed for this and I know that there is a figure for average costs, but it has gone—too many late nights. If the figure does not appear by magic, it will appear in the noble Lord's hand in some other way. The noble Lord's point is important. We looked at the comparative costing for setting up this procedure, on a regular basis or infrequently, and the cost of judicial review. We have considered the matter very carefully.
We also recognise that the decision of the appeal panel would be final, which would mean that the matter could not be taken to court. Therefore we also have to think about whether that is a challenge under the Human Rights Act or an infringement of Article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial. We grappled with those issues and it may be that the noble Lord, Lord MacGregor, in what I hope will be a conversation post-Report can help us with the thinking of the Constitution Committee because I am sure that it considered these issues.

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Those were the types of issue that we looked at. A balance was involved and we felt that judicial review was a better approach for all the reasons I have given. That is the basis on which the Government stand at the moment. However, I am interested in what has been said and conscious that I am not as familiar with what the Constitution Committee said, especially chapter 11, as I would like to be. I will not make any commitment, because I am not in a position to do so, but I want to reflect on this debate. I will read chapter 11 with care and make sure that we have fed that information into our deliberations. I hope that I have given a flavour of the considerations that we had given and that noble Lords will feel reassured that we thought about the matter carefully. We believe that judicial review is the correct response.
I will obtain a figure for average costs. Quite rightly, I have been told that there are a variety of different answers to the noble Lord's question. I will try to do better and I apologise again. Those are our considerations and deliberations in thinking the matter through. On the basis that I would think about what we have said, I hope that noble Lords will feel able to withdraw their amendment and that we can continue the conversation both in and outside your Lordships' House.
Lord Butler of Brockwell: I thank the Minister for that reply. She has indeed made me a happy Peer. I am shamefaced that an amendment that was the product of two heads of the Civil Service and a professor of moral and political philosophy at the University of Cambridge did not pass technical muster. However, I know that parliamentary counsel trumps everything. I will be glad to discuss the matter further with the Minister. I am also extremely grateful to all the noble Lords who have taken part and supported the amendment, especially the noble Lord, Lord Brooke, for the divine benediction that he conferred upon it. I had hoped for the support of the Government but I had not hoped for the support of an even higher authority.
The only thing that makes me unhappy is that I have not been able to be entirely in agreement with the noble Baroness, Lady Blackstone. I really do not think that it is true, certainly speaking for my university and other universities that I know, that universities are approaching this subject in a defensive spirit. On the contrary, everybody I know is very anxious that we should make progress in drawing in youngsters of ability from every background and getting a wider range of applications. I do not think that the noble Baroness need fear on those grounds.
When she asks what the director is to look at, the answer is that director will look at those matters that the universities are required to include in their agreement. The agreement is about the steps that they will take to provide fair access and that is what the director can look at. It really cannot be the case that the director should look at outputs because one cannot say, in the same breath, that universities will have academic freedom about admissions processes
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but that they will be acceptable only if they have a pre-ordained result. I cannot be so. It would be entirely inconsistent with the assurances that the Government have given if the power to penalise turned on whether a particular pre-ordained result had been achieved.
The noble Baroness, Lady Carnegy, is quite right that even with the director looking at input, he reaches a subjective judgment. That may well be an objection to the position of the director at all. The debate has shown that, if the director is to make a subjective judgment that can involve substantial penalties for universities, that should be constrained on the face of the Bill in the way that my amendment is designed to do. I also support the amendment in the name of the noble Lord, Lord Sutherland, that there should also be a proper appeals machinery. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Sutherland of Houndwood: My Lords—
The Deputy Chairman of Committees (Baroness Turner of Camden): The amendments are called in seriatim.
[Amendments Nos. 100 to 102 not moved.].
Baroness Warwick of Undercliffe Baroness Warwick of Undercliffe moved Amendment No. 102A:
Page 16, line 27, at end insert—
"( ) No plan is to be enforced against the relevant institution except as provided for in this section."
The noble Baroness said: In moving Amendment No. 102A I should make it clear that it, and Amendment No. 103A, are probing amendments at this stage. My concern is that institutions ought not to be exposed to additional litigation because of the existence of plans. I am concerned that individual litigants may challenge institutions' compliance with their plans. It seems clear that plans are intended to deal with the efforts of an institution to widen participation generally and are not intended to apply to individual cases.
Noble Lords will be aware that every year there are stories in the press about individual candidates who have not received an offer of a place from his or her first choice of institution. Often these individuals are highly qualified. Often the press stories focus on the background of the individual in question, whether because his background is relatively deprived, or because, for example, he was educated at public school. The cry of "foul" is raised because it seems to the commentators that the student has been discriminated against because of his background. Of course, newspaper journalists are not admissions tutors and we all know that some institutions have to reject literally thousands of highly qualified candidates because places are in such demand.
I am seeking to avoid a situation whereby a student or a potential student could challenge an institution's compliance with its plan on the basis of his or her individual experience. The Minister for Lifelong Learning, Further and Higher Education, Alan Johnson,

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was helpful on this point in another place, but I hope the Minister can confirm that individuals, whether students, prospective students or persons entirely unconnected with the university, will not be able to take that university to court for failing to comply with the terms of its plan. I beg to move.
7.45 p.m.
Lord Triesman: The noble Baroness, Lady Warwick, raises an interesting issue. I share the concern that she has expressed that the creation of a regulator might generate lawsuits against institutions perceived to have breached their plans. However, I hope that she will feel that she does not need to worry. Some reassurances can be offered.
I know that most institutions are firmly committed to widening participation and expect that they will implement their plans in a very positive way—noble Lords on all sides of the House have made this point. As the noble Baroness, Lady Sharp, reminded us, quite rightly, when we last debated the Bill, vice chancellors are a law-abiding group of people. Indeed, in my experience, they are probably peerless in their willingness to abide by the law. Let me remind your Lordships that these plans are the institution's own, containing the measures that it feels is right for it, within the framework provided by regulations.
If the terms of a plan were breached, the director would be obliged by our regulations to allow an institution the opportunity to put its case before any sanction might be imposed. The Bill provides that, if there were a breach of the plan, access plans in England may be enforced by the director instructing the Higher Education Funding Council for England and/or the Teacher Training Agency to impose a financial sanction on an institution and/or by the director refusing to renew an institution's access plan. These are the only sanctions that the director can apply if institutions breach their access plans. The director will have to comply with provisions contained in regulations about enforcing plans.
Let us focus on the point raised by my noble friend Lady Warwick about students taking action against institutions. Let me make clear, as my right honourable friend the Minister for Lifelong Learning, Further and Higher Education made clear in another place, that the access plan itself, while considerably beneficial to students and being a public document, does not give students, or prospective students, additional legal rights. Enforcing the plan is a matter between the director and the institutions themselves. For those reasons, I confirm my right honourable friend Alan Johnson's position, as I have been asked to do.
I want to reassure noble Lords that the Bill does not disadvantage institutions compared to the current system. Institutions will not be sanctioned twice for the same offence, which I know is a concern for some noble Lords. If, for example, an institution stated in its plan that it would charge £2,000 for a particular course, and then charged £3,000, the director could sanction the institution, resulting in the institution paying back to the students the £1,000 they had each been overcharged. If a student then
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took the institution to court, the court could not make the institution pay the student again because restitution would already have occurred and the institution could not be penalised twice.
I very much appreciate and understand the need for clarity and transparency in describing how plans will be enforced by the Director of Fair Access in England and by the designated authority in Wales. I believe that the clarity that my noble friend is seeking is provided by the Bill and by the draft regulations, which make it clear that the that process that would be applied if sanctions were ever to be needed will be precisely as I have described it.
I hope that that reassures the Committee and my noble friend Lady Warwick that no sanctions are provided by the Bill and no additional rights arc created by it, except those that it explicitly sets out. I hope that, on that basis, she will feel that she can confidently withdraw the amendment.
Baroness Warwick of Undercliffe: I thank my noble friend for that helpful and comprehensive reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 35 agreed to.
Lord Sutherland of Houndwood Lord Sutherland of Houndwood had given notice of his intention to move Amendment No. 103:
After Clause 35, insert the following new clause—
"RIGHT OF APPEAL.
(1) There will be a right of appeal against the decision of the Director of Fair Access to Higher Education.
(2) The appeal and any supporting evidence must be submitted within twelve weeks of notification of the governing body.
(3) The appeal will be heard by a panel of three, one nominated by the Secretary of State, one by Universities UK. and the, third will be a senior judge.
(4) The decision of the panel, which may be by majority, and which should be delivered within twelve weeks of the receipt of the appeal, will be final."
The noble Lord said: The matter has clearly been debated fully. I appreciate the comments of noble Lords who spoke in the debate, and I appreciate their interest in the issues, which I still think are fundamental, and particularly the points raised by my noble friend Lord MacGregor.
I thank the Minister for her detailed account of the difficulties. I realised that there were practical problems, which is why I started by saying that there is an issue here of principle. There are a whole series of practical issues about how one might implement that principle. I do not think I have yet been persuaded that the principle is wrong, which means that one begins to look further at the practicalities of how one might deal with the quite legitimate questions put to the House by the noble Baroness, Lady Ashton.
I think, however, that we need to remember why amendments like this are here. They are here because there is a real concern about the powers of the director of OFFA; that is not necessarily to imply a maliciousness or impropriety, but Homer did nod. In that situation, room to come back and ask the question again is very

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important. Concerns have grown and have been shown in Amendments Nos. 99A and 103; but they have also been shown in the rather more nuclear option, which may well come back, to ask about the overall powers of the director of OFFA, particularly in relation to Clause 34 and thereafter.
I listened with great interest to the noble Baroness, Lady Blackstone. I am well aware that she is a former Minister of higher education. It strengthened my wish to reconsider and perhaps come back with a redrafted amendment.
[Amendment No. 103 not moved.]
Clause 36 [Enforcement of plans: Wales]:
[Amendment No. 103A not moved.]
Clause 36 agreed to.
Clause 37 [Provision of information]:
Lord Renfrew of Kaimsthorn Lord Renfrew of Kaimsthorn moved Amendment No. 103B:
Page 17, line 15, at end insert—
"(3) The Director shall publish electronically and make available to the Head Teacher or Principal of every secondary school and sixth form college in the United Kingdom information concerning any plan as specified in section 31 which has been approved by the relevant authority in relation to each qualifying course at every higher education institution in England and Wales.
(4) The Director shall ensure that the information published electronically and made available to Head Teachers under subsection (3) above pertaining to each such qualifying course is accompanied by supplementary information concerning the number of students currently undertaking undergraduate or postgraduate instruction or research in the department or school where the qualifying course is taught, as well as details of any recent Teaching Quality Assessment of the undergraduate teaching provided in that department or school and of the most recent grading assigned to that department or school in the Research Assessment Exercise.
(5) The Director shall seek information from the Head Teacher or Principal of every secondary school and sixth form college in the United Kingdom concerning the number of students in the school or college who have made application for admission to undergraduate courses to one or more higher education institutions in England or Wales, and concerning the number of such applications made by prospective students in the school who are members of groups which are currently under represented in higher education.
(6) The Director shall include in a report published annually as prescribed in Schedule 5 a section which indicates the extent to which secondary schools and sixth form colleges in the United Kingdom have furthered the promotion of higher education and the promotion of equality of opportunity in connection with access by encouraging prospective students including those who are members of groups currently under represented in higher education to make application for admission to institutions of higher education, and specifically in encouraging such prospective students to make application for courses for which qualifying fees as defined in section 23 are payable."
The noble Lord said: As I have listened to the Committee stage of the Bill, and as I read in Hansard the report of last Monday's debates, which I could not attend, I have come to feel that the provisions for access in the Bill, complex and extensive though they are, lack a key ingredient. They give no explicit attention to the situation in the schools and the sixth form colleges from which prospective students apply to the universities of their choice. Indeed, they give no
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coherent attention to the factors which guide those prospective students in their choice of university—nor, crucially, to the factors which lead pupils in those schools to choose whether to apply for university at all.
Through what seems a kind of myopia of the Government, the question of access is considered only in terms of university departments and courses. Yet every admissions officer in a university or college knows that what counts are the applications. You can admit only those who choose to apply. Most of the imbalances in the intake to our higher education system derive from this factor. Yet it is one which the Bill does little to address. Although it was discussed last Monday, there was a newspaper heading, "Universities snub students", where the discussion revealed that it was the students, by their choice of university in some cases, that were snubbing the universities.
These amendments seek, in a rather minimal way, to embrace the schools and sixth form colleges within the admissions process, where they clearly belong. Indeed, the underlying intention is to involve the pupils themselves in that process. Why are the Director of Fair Access and the universities in this Bill spending all their time in discussion together about "plans" when they should be seeking different ways of encouraging applications from under-represented groups, among others? Why are university departments being judged on their plans and application record when the application record of the schools is being overlooked?
These amendments are very simple in their intention. In essence they require the director to do two things. The first is to set up a good website which will be available to schools. I refer in the amendment to head teachers, but I have in mind also teachers encouraging applications to university, and careers mistresses and masters, and the pupils themselves and their families. That is where all these plans and inducements should be made known, not in some subsequent report to Parliament which the director may be required to offer.
Secondly, I address the question of statistics, which was indeed briefly discussed last week in your Lordships' House. If the director is interested in the success of his access initiatives, he must find out about their reception in the schools. I would like to see schools judged not only on the number of university admissions they achieve, but also on the number of applications they achieve. If we begin to measure the success of the enterprise by the increase in applications made by pupils at schools to the universities, then we are measuring something not adequately addressed in the Bill.
In subsection (4), I suggest that in addition to putting forth the fruits of his labours on the website—that is, the plans—the director should also include the only criteria that we have that really give information about the departments and courses and their qualities in a meaningful way. First we need to see the number of undergraduates and graduate students in the department, since in general there is a correlation between departments which are good at research and those which are good at teaching. Then we need to see the teaching quality assessments, so laboriously gathered, and the research assessment gradings. Those

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are data which prospective students need to encourage them to think about prospective departments in an informed way.
Let no one suggest to me that this represents any significant expense. A single competent webmaster could set this information on to the website. As soon as plans are agreed, they can go on the site. Where plans are under discussion, the webmaster can look up the TQAs and the RAEs which are already publicly available. We are talking here about one member of the director's staff.
However, subsection (5) is the more important. It will entail a member of the director's staff sending out a questionnaire to schools to seek information about their applications. Subsection (6) requires the director to publish the information gathered. In this subsection I use the Government's own terminology in the Bill—prospective students who are members of groups which arc currently under-represented in higher education. I think that it is up to the Government to clarify what they might mean by that.
One clement is clearly parental income. No doubt, as indicated earlier and last Monday, there are privacy and data protection issues to be addressed here. But if they have not been fully thought out by now, they should have been. For how can universities give consideration to these concepts, with which I am broadly in sympathy, if they do not know exactly what concepts are intended? That may be for the director to define; it is certainly not my responsibility in tabling an amendment. But I do draw attention to the circumstance that we need to see how many school pupils in these groups and what proportion are making application to university. I do not think that there is any way of knowing that unless the information is gathered. That is why, in subsection (6), I use the terminology of the Bill to speak of,
"the promotion of higher education and the promotion of equality of opportunity in connection with access".
This amendment is intended as a suggestion. I hope that the Minister will see the force of the point being made. I should be very happy to revise the amendment in the light of the Minister's advice. But many noble Lords who have spoken have recognised that the key to access lies in the schools, and not only in the application process and the process of choice, but in the teaching itself.
I think we owe it to the potential success of this Bill to ensure that access questions are not left to the universities and to the director. They belong also in the schools, and in the guidance offered by teachers—who need to be fully informed—and above all in the sentiments and developing choices of the prospective students themselves; that is to say, the pupils in school. I beg to move.
Baroness Ashton of Upholland: The noble Lord will not be surprised to hear that I recognise how important it is that schools and colleges have access to the information their students will need in order to make the right choices in higher education, and that schools and colleges need to play their part in raising the aspirations of their
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students so that they might make the most of their potential. As the noble Lord, Lord Renfrew, said, we had a good discussion on this. I remember the noble Lord, Lord Baker of Dorking, who is not in his place, talking specifically about the role of aspirational head teachers and teachers in ensuring that students prepare themselves for university life. This is not a case of "either/or" but of "both/and". I will go through the noble Lord's proposals to demonstrate what we are already doing in terms of the role of schools and explain why I do not believe that this amendment is the right way forward.
We have always said that the key to raising participation is raising aspirations and attainment. The 14–19 strategy, which is familiar to your Lordships, through the gifted and talented programme, the Connexions service and Aimhigher, is concerned with forging partnerships between schools, colleges and universities to raise the aspirations of young people.
I accept that the Government need to play a role, and schools and colleges must do so too. Universities also have a role to play. That is what the Bill is about. It is always difficult, when we focus on legislation, not to think that it covers everything that we are trying to do. Of course it is not, and beyond the scope of the Bill there is much work going on regarding schools and sixth-form colleges. I do not think that it would be right for the director to become additionally responsible for what schools and sixth-form colleges do or do not do.
8 p.m.
Turning to the specifics of the amendment, the noble Lord wants the director to make available the plans that have been approved by the relevant authority. I assure noble Lords that all plans will be published. We want institutions to publish their plans in a manner that makes them accessible to students and prospective students; and, therefore, they will be available to head teachers and principles and—I agree with the noble Lord—lmost certainly on a website.
We expect that the director will publish the plans that have been approved, and, although it is early days, we imagine that the director would put that information on a website. I do not believe that it is necessary to legislate for that, but we see a website as being an obvious way for people to gain information.
Subsection (4) of the amendment seeks to ensure that those details are accompanied by supplementary information on student numbers, undergraduates and post-graduates being taught and undertaking research. I agree that prospective students, and the schools and colleges they attend, should have access to information about higher education providers so that they can make those choices. It is important for them to see, if they wish, what assessment has been made of teaching or research at an institution. I assure the noble Lord that measures are already being taken to make information available to prospective students and their schools and colleges.
For example, UCAST mails every school with sixth-forms, or equivalent students with information about the application process, open days and so on. UCAST has

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decided in principle to have a web-based information service for schools—UCAST Plus—which will provide all kinds of information tailored for schools about higher education and the applications process. Furthermore, Aimhigher provides information about what and where to study, how to apply, what it will cost and so on. And the National Union of Students is developing an easy to use guide about higher education for prospective students to help them navigate their way through the information available.
Regarding information on teaching quality—we, HEFC and the higher education sector are moving towards the quality assurance framework and by the end of this year the first full set of information should be available on the teaching quality information website. That will include information on entry qualifications, progression, completion and employment after graduation, as well as teaching and learning methods and intended learning outcomes. Information on the outcome of the research assessment exercise is available on the HEFC website.
I agree wholeheartedly with the noble Lord that information should be available. However, I believe, from that foray into the different kinds of information available, that we are taking the right steps—and that the information is available in the way that the noble Lord requires. I am very reluctant to place a duty on the director to provide that information. It is important to keep his role focused and clear. Others are able to take on the role of providing information; they are doing so and will do so in future.
Subsection (5) would require the director to seek information from head teachers and principles of secondary schools and sixth-form colleges about the number of students applying for higher education courses, I would urge great caution in this matter. We are seeking to keep bureaucracy in higher education to a minimum and also seeking to reduce it for schools. That is a matter on which the noble Baroness, Lady Blatch, has taken me to task many times. It is important that we are careful about what we ask of schools, not least in the area of data collection. Therefore, I do not think that we should include this duty for the director in the Bill. Schools would not want that.
I note that the amendment places a requirement on the director to seek information but does not place a corresponding requirement to provide it on head teachers and principals. Information on the numbers applying to higher education is already collected by UCAST, broken down by school and education authority. That information would be available to the director.
Subsection (6) puts a requirement to include in the annual report an assessment of the performance of schools and colleges in encouraging applications. Again, it is not appropriate for the director to have a role in assessing the school's performance. There is an inspection framework for schools that is known well to noble Lords through Ofsted. Inspectors are required to report on a range of matters and raising aspirations generally is an integral element of the framework. I
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doubt very much that schools, or, indeed, Ofsted, would welcome the director taking on a specific role regarding school performance.
I agree that supportive, inspirational teaching is integral to raising aspirations. The Aimhigher road show, which has teachers' packs, has been widely used and highly regarded. Teachers also play a role in the joint planning of aspiration-raising activities, such as study days and visits to institutions, working with universities. We have piloted the Excellent Fellowship Awards, where teachers from schools and colleges have been given the opportunity to spend time in an institution to increase their knowledge and awareness of higher education, which is also important if they are to pass on those messages to students.
I understand this undoubtedly well-intentioned amendment. Schools and colleges are important, but, in the context of the Bill, the director's role is in respect of higher education institutions, which can play their role, as we have discussed in Committee, to ensure that they work with sixth-form colleges and schools. It would not be appropriate to extend to role of the director to schools.
There is much work currently being carried out. The amount of information that is available largely addresses the concerns that the noble Lord has expressed. I do not wish to place additional burdens either on the director or on schools and colleges. I hope that, with the reassurances that I have given the noble Lord, he will withdraw the amendment.
Lord Renfrew of Kaimsthorn: I am grateful to the Minister for her careful reply, although in one part of it she rather misrepresented my amendment, when she said that she did not feel that the director should,
"become additionally responsible for what schools and sixth-form colleges do or do not do".
That was never my suggestion.
Regarding the first part of the amendment and the suggestion that information on plans should be made available to the schools by the director on a website, the Minister has very much reassured me by saying that that is likely to happen.
It seems to me that, as the Minister described the richesse of websites available to schools—they will need to look at the UCAS website, the NUS guide, the TQA information website and the HEFCE website to get the research assessment information—I wonder if there is not a case for making this information available to schools in a more coherent and simple way. It may be that the director is not the best person to do so, but should students have to hunt up five websites—the ones which the Minister iterated—to get rather basic information?
On the other much more substantial point, I realise that it may be an onerous obligation on the director to communicate with all schools, and for the schools to be expected to communicate with him or her. That may indeed not be the best way to do it, but, as far as I can see, no attention has been given in the Bill to monitoring the success of the enterprise. Earlier we discussed monitoring the success of whether individual

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university courses are succeeding in attracting applications of a particular mix or not—that was very fully discussed in the context of the amendment of the noble Lord, Lord Butler. But we have given very little consideration to monitoring the success of the enterprise in encouraging more applications from schools.
The noble Baroness said, no doubt rightly, that UCAS has some record of that, but that leads us to the very delicate question of monitoring applications from groups under-represented in higher education. Is there any provision for monitoring applications specifically from such pupils? I realise how difficult that is—as was discussed last Monday. How do you manage to get that information without breaking through the privacy which students and their families may reasonably require? But if you are not monitoring the success of encouraging applications to specific courses under the plans, you are not getting the necessary information. I would be grateful if the Minister would say a word about that before I withdraw the amendment.
Baroness Ashton of Upholland: I was trying to indicate that UCAS does have information on, for example, individual schools in applications. That will give us some information on areas where there is a change in the number of students who apply, and areas, for example, where traditionally students have not applied to institutions. Looking at under-representation is an imperfect science. We have overall figures and some details of the number applying to universities. I will set that out properly for the noble Lord to show the different ways we are able to look at that.
Institutions themselves also have information. As the noble Lord, Lord Wilson of Dinton, said, applications to Cambridge were 1 per cent in the north-east. Institutions are well aware geographically and otherwise, but I will set that out properly in order to address the noble Lord's concerns.
Lord Renfrew of Kaimsthorn: I am grateful to the noble Baroness and I look forward to that further information.
In finishing, I would like to emphasise that the Bill explicitly requires university departments to get a better mix of groups which are under-represented in higher education. That is a very worthy objective, but, as far as I can see—and the Minister when she writes to me will perhaps be able to set my mind at rest—there is no initiative to see how that is working in schools. The Minister said that one can see whether an individual school is making more applications—that will come up. There may be some individual schools with a very high frequency of students who are from low-income family backgrounds, or even from a particular ethnic group which might also be a group under-represented in higher education. But unless that is effectively monitored—and I am not sure that it is something that the universities themselves can monitor—I have no idea how at the end of the day we
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shall have any clear indication of the success or failure of the enterprise in encouraging applications in schools.
In withdrawing my amendment, I highlight a problem that has not been addressed adequately in our debates on the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 36 agreed to.
Clause 37 agreed to.
Clause 38 [Interpretation of Part 3]:
[Amendments Nos. 104 to 106 not moved.]
Clause 38 agreed to.
Clause 39 agreed to.
8.15 p.m.
Clause 40 [Other amendments of section 22 of Teaching and Higher Education Act 1998]:
Lord MacGregor of Pulham Market Lord MacGregor of Pulham Market moved Amendment No. 106A:
Page 18, line 45, at end insert—
"(1) In subsection (1) after "eligible students" insert "(including British citizens resident in other EU member states)"."
The noble Lord said: The issue I wish to raise in this amendment was last raised in this House by the late Lady Young on 15 November 1999, but things have moved on a bit since then and I want to press the case again. I am glad that Clause 40 gives me the opportunity to do so.
I say straight away that the amendment may be technically defective. In fact, given that the noble Lord, Lord Butler, with all his experience, discovered that his amendment was technically defective, I am absolutely certain that this one is. However, it is the substance that I want to probe. I realise that the hour is late but I must make the case properly.
I speak as an honorary vice-president of COBISEC; a position that I took on recently. COBISEC is the organisation that brings together the 40 British schools in the European Union as well as schools outside the EU, but it is schools in the EU with which I am concerned tonight. In those 40 schools there are more than 12,000 pupils. They feel very strongly on this issue, as has been made clear to me on various occasions since I have taken an interest in the organisation. All these British schools follow the British curriculum. That curriculum is taught in English by appropriately qualified teachers. The COBISEC schools may join the UK teachers' pension scheme. COBISEC teachers are eligible to qualify as Ofsted inspectors.
The Independent Schools Inspectorate, which is recognised by the Department for Education and Skills and Ofsted as operating in independent schools in the UK, operates also in the COBISEC schools. So in many ways they are British schools in all but location. A large number of parents and pupils are British citizens for obvious reasons but there are many other nationalities as well because of the high regard in which British education is held.
I would have talked about the valuable contribution that these schools make both in propagating British education in the EU and in providing an educational service for parents with families who have to work in the EU, but in view of the hour I shall not develop that and come straight to the substance of the issues.
Clearly, a significant number of the British citizen pupils in these schools want to go on to higher education and naturally many of them wish to go to British universities. The problem is that many find that, unlike all other British pupils, they are ineligible for student loans. I want to take the arguments for and against very quickly. I could go on at length but I shall speak very briefly as I am particularly interested in the Minister's response.
The first point I want to make is that all successful EU applicants to British universities from the EU—both British citizens and others—are now eligible for tuition fees. Indeed, we debated that aspect earlier in Committee. However, student maintenance is regarded as a matter for each individual country. This leads to what to me seems to be a highly anomalous situation—that British citizens are liable for all the tuition fee elements that we are discussing in this Bill but cannot apply for student loans. That is the position in general. It seems to me now, with the further progress on tuition fees, that that situation is anomalous.
Secondly, one of the reasons that they so often cannot get student loans is the application of the three-year residency rule, which has applied to student loans for a considerable period. It always has therefore been the case that a student wanting to take out a student loan and applying to a British university has had to be resident in the UK for the previous three years. But now in this age of high international job mobility, which is regarded by so many as a good thing, is it any longer appropriate to apply that very tight three-year residency rule? I rather doubt it.
That leads me to my third point. Local education authorities may now decide whether individual applicants are eligible under the three-year residency rule for student loans. I am sure that the Minister will say that the department now gives guidance on the three-year residency rule. I am sure that will be part of her answer. But it is still at the discretion of the local education authority. I am told that the regulations are applied haphazardly and inconsistently by local education authorities. Is it fair that even where they come within the application of the three-year residency rule some may be eligible for student loans but others not?
The fourth point is that from the year 2000–01 Armed Forces parents and pupils are exempted from the residency rule because, so it is argued, they are obliged to take up overseas posts. The noble Baroness, Lady Blackstone, who responded as Minister to the relevant debate in 1999, said that,
"the families of the vast majority of British students being educated abroad choose to live and work abroad".—[Official Report, 15/12/99; col. 298.]
I believe that is no longer correct, but I do not think that it is relevant because the real point is that, given career patterns nowadays, many people who want to play a significant part in their companies find it advantageous—indeed, they may often be required—to work abroad for a considerable period. Given that British companies have to compete globally, and that multinational companies are increasing that pattern for so many people who go into business, commerce or finance, it seems to me that from the point of view of the British economy it is highly desirable that they should do so. It is just as desirable in many cases as people in the Armed Forces operating in overseas posts. I do not see that distinction in the black and white way in which it was put by the noble Baroness, Lady Blackstone. Frankly, it does not seem to be a good reason for excluding the children of British citizens who are working in multinational or American companies abroad. It is no longer possible for many people going into overseas positions to confine themselves to two or three years there. I have, in the last few weeks, met a number of American and British executives who thought they were going abroad for only two to three years, and have stayed there for eight years because their companies wanted them to. So it is an artificial rule to apply.
The fourth point is that it will no doubt be argued that so many of the people who work in the companies are reasonably well paid that their children do not need the student loans. I do not think that is true for so many of the pupils we are talking about.
I take two cases. The teachers in the British schools, who may well have children and are obviously going to be there for more than three years and who want their children to go to university, are not often highly paid. Student loans would be very attractive to their sons and daughters. A particular case was put to me about two weeks ago from the diocese in Europe of the Church of England—I am making this case to show that there arc many people on comparatively low incomes who are caught by this. The diocese in Europe would like to appoint chaplains with families to a number of their chaplaincies within the EU, but educational issues are one of the factors which inhibit the chaplains with school-age children from applying, given that the standard chaplain's stipend is comparatively low. Within this general problem, I understand, there is the specific one that when those chaplains find that their children are coming to the age of university entrance, they discover that they are ineligible for the student loans. This obviously works back through the grapevine, and everyone knows that this is a disadvantage in taking up a job as a chaplain. The bishop who drew this to my attention concluded that, although this is numerically a very small number of people, it certainly affects the ability of the diocese to appoint younger chaplains and those whose families can be a real enhancement to the life of the chaplaincy. It is an issue which is comparatively small, but it seems unfair and is inhibiting people from taking up these jobs.
The fifth argument is one of cost. I speak, as the Minister knows, as a former Chief Secretary. I am sure there is something in the brief—if there has been time to

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put it together—that says, "The cost is going to be such and-such, and we cannot really afford it". Well, I have been trying to find out how many pupils are likely to be involved in this each year. The British School in the Netherlands is by far the largest, and almost certainly sends the largest number of British students to UK universities. In 2003, it sent 57 students. The guess is that we are talking of between 600 and 700 students—it may even be fewer than that—in any given year. It is not a huge number, and therefore the costs cannot be particularly high. It seems unfair to exclude them, for all the reasons I have given.
The final argument is the legal argument that we are inhibited by EU legislation. On this point, I am advised that there is no requirement to be nondiscriminatory in regard to educational facilities which the British Government might choose to provide to UK nationals residing in other EU countries. I do not want to get into the legal argument tonight, because it is very detailed and technical, but I would certainly be happy to talk to the Minister about this further if that is regarded as one of the biggest obstacles to accepting this amendment.
For all these reasons, I conclude that it is now unfair to exclude British pupils from these British schools from eligibility for student loans; that it is unfair to depend on the whims of local education authorities; and that they should be eligible to apply for student loans through a central unit. I beg to move.
Lord Brooke of Sutton Mandeville: I shall seek to be as telegraphic as my noble friend. For 15 years I was a director of a British school in Switzerland called Ecole St George, founded in 1927 by my godmother, for British families of the League of Nations. We lived through exactly the sort of problems my noble friend Lord MacGregor has been describing, even in those days. I lived in Brussels for two years in the early 70s. I can again comment, even back then, in terms of what my noble friend has said. The staff of the continental headquarters of multinational companies were either from small countries—they all spoke a multitude of languages—or, among those from the larger countries, the only executives who were brought in tended to be from this country. I suppose this is because of our maritime and imperial past, and the habit of living and working outside our own country.
I was not the Minister for Higher Education who introduced full-cost fees for overseas students, but I was effectively the Minister who had to cope with the fallout. I mention in passing that the Commonwealth Education Ministers' conference, which lasted a week, was a rerun of the Battle of Rorke's Drift. I warn the Minister, as the person who had to cope with the consequences, that any Higher Education Minister in a Government that does not pay attention to what my noble friend has said will find themselves having to cope with an enormous amount of subsequent correspondence from families through their Member of Parliament in the United Kingdom. That is exactly what I went through myself.
Baroness Ashton of Upholland: In this amendment, the noble Lord, Lord MacGregor, has clearly raised an
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important point, and I have done my best to be well briefed. I think the most helpful thing I can do is to go through, with relative speed in view of the hour, the critical points that I have here, and then the noble Lord and I can perhaps have a conversation when he has had a chance to reflect on them. I may be able to address quite a number of the points that he has raised. It is, as the noble Lord has indicated, quite complex and I do not want to do him an injustice. I shall do this briefly.
The noble Lord made the point that it is about residence rather than nationality, which has been the principle of successive governments. Where citizens with settled status meet the residence requirements for the UK, and are on a designated course, they are eligible for a full student support package including maintenance. This is a consequence, as the noble Lord will know, of the 1958 Anderson report, which gave the foundation enshrined in three principles. First, a student should be ordinarily resident. Secondly, they should not have been ordinarily resident solely for the purposes of receiving education. Thirdly, there should be some provision to cover temporary absence from the country. The same principles apply today.
We think the three-year residence requirement introduced in the 1962 Act is a fair minimum requirement, with an exception made where the condition cannot be satisfied because the applicant, or their parents, has been temporarily absent or employed abroad. British nationals may meet the temporary absence provisions dependent on their individual circumstances. EU nationals, including British citizens living in the EU and studying in the UK, are entitled to the same level of support towards their tuition fees as UK residents, provided they have resided in the European economic area or Switzerland throughout the relevant three-year period. Students anywhere in the EU are entitled to this tuition fee support in the country in which they live, but not—as the noble Lord indicated—to support for living costs. As he also indicated, there are exceptions for Armed Forces personnel and their families serving abroad. They are bound by military law to accept overseas postings, and so rightly receive
the full package.
The vast majority of British nationals who choose to live and work abroad do so of their own volition, and the noble Lord talked about the issues around that. Where this is short-term, the temporary absence provision will meet their needs and they will be eligible for student support. Where they have effectively emigrated to other countries within the EU, it is right to treat them in the same way as we treat other EU nationals. The current rules are long-standing and clear cut. Where a British national can show their absence abroad has been temporary, they will be entitled to maintenance support under current arrangements. I think that covers the point the noble Lord made about those who go away for a particular time and it is extended. That could still be argued as temporary, as I understand it. The difference is for those who have moved on a clearly permanent basis.
I want to read into the record a particular point about the status of migrant workers because, as I said, it is complex. There are a number of carefully defined

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exceptions where a student may receive support without satisfying the normal UK residence requirements. In order to comply with European Union legislation to ensure the free movement of workers, European economic area and Swiss nationals who are migrant workers in the UK are generally eligible for support on the same basis as UK students. They are required to have been ordinarily resident in the European economic area or Switzerland for the three years immediately preceding the start of their course. Their spouses, children and stepchildren are also eligible for support if they live with the migrant worker in the UK. This provision also applies to UK nationals and their spouses, children and stepchildren who have been working elsewhere in the European economic area or Switzerland and have returned to take up employment in the UK.
These issues require further discussion with the noble Lord. I have more briefing, which I am inclined to give to the noble Lord rather than spend another 20 minutes reading it out on the Floor of the House, which I do not believe would achieve very much. As I indicated, we stick with the principle concerning residency. But, in view of what I have said already and what I shall write to the noble Lord, I hope that he will be able to withdraw the amendment and continue the discussion.
8.30 p.m.
Lord MacGregor of Pulham Market: I recognise that this is a truncated debate because of the lateness of the hour, and I understand why the Minister did not feel that she could respond to all the points that I made. However, I look forward to discussing them with her because I think that very legitimate issues are involved here. Given how much conditions of employment have changed around the world, there are relevant issues here to explore. I am grateful to the noble Baroness for the way in which she set out her response. I look forward to discussing these issues with her and, on that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 40 agreed to.
Baroness Greengross Baroness Greengross moved Amendment No. 107:
After Clause 40. insert the following new clause—
"ACCESS TO STUDENT LOANS
The age of a student may not be included in regulations as an eligibility criterion for access to student loans."
The noble Baroness said: With this amendment, our debate focuses on older people. The new clause has a very simple aim: to stop age being a criterion for access to student loans.
As the Minister knows, the amendment is designed to see whether she can make any further improvements to the Bill to benefit the more mature student. She has been very gracious in discussing with me the difficulties of achieving genuine lifelong training and education, but my view remains that those difficulties are not nearly as great as those faced by the older students themselves.
We touched on some of the issues affecting older learners in our debate on part-time students, and I very much welcome the improvements which benefit them. However, my view is that it would be better to put part-time students, many of whom are older, on a simple pro rata basis for all terms, conditions and benefits associated with education. Equal treatment should also apply to older students. Indeed, the Economic Affairs Select Committee of your Lordships' House, chaired by the noble Lord. Lord Peston, recently concluded that student loans are "blatantly ageist", and I have to say that I agree.
While the focus of the Bill is rightly on younger people's access to education, we must not forget older people altogether. The target to achieve by 2010 a 50 per cent participation level in higher education for people under the age of 30 may mean that wider access to higher education for older people will be neglected. The negative impact of what NIACE called a "Club 18–30" education policy is very marked—indeed, most marked—for people who just happen to be 54 or over. Despite years of paying taxes, they are the ones who are denied access to student loans. That is what the amendment is designed to tackle.
We live—noble Lords are probably tired of my saying this—in a changing society because of rising longevity and falling birth rates, and our education system needs to recognise that. Already almost 1 million people in the UK need, or choose, to work beyond the traditional retirement age and their numbers will increase further. In an ageing society where older people continue to contribute their skills and knowledge to their communities long after retirement, the current position is not only unjust but it is very hard to justify in economic terms.
The Minister deserves credit for proposing age-blind support systems for part-time students, but why cannot those be extended to older learners who wish to study full-time? Older learners are not a tiny minority, but I think that the number who might seek state support to study is likely to be relatively small. NIACE, to which I am very grateful for the information it has given me, tells me that in 2001–02 more than 125,000 full-time students were over the age of 21. That is 29 per cent of all full-time higher education students. Unsurprisingly, 90 per cent of part-time students are over 21. That is a reflection of how education is not any longer the completion of a young person's initial education at the age of 21.
My new clause relates specifically to student loans. As your Lordships will know, the availability of loans was extended in 1999–2000 to students aged between 50 and 54, provided that they could satisfy local officials in writing that their intention was to seek paid employment after graduation. People of 55 and over remain ineligible.
The interpretation of the ruling is left to local authorities and there are no national data available on how uniformly it is interpreted, nor the number of applications that are received, accepted or rejected at this point. It is clear to me that such a rule is arbitrary, unenforceable, unworkable and above all ageist. Why aged 54? A person aged 55 today will on average live more than 25 years longer. That is plenty of time for them to repay a loan and indeed to embark on a new career.
I have to say that the DfES has been fixated on the age of 65 as the age at which a loan must be repaid. I hope that the Minister can explain that to the Committee. I can understand her concerns if the age constraints are removed: the fairness to other borrowers if funds are available to students who are not likely to be able to repay a significant part of the loan; or placing a financial burden on older students who are likely to have lower levels of income once they have retired.
But surely we can allow such older students to judge their own ability to repay a loan. At the end of the day, or even at the end of the student's life, could that loan he repaid from their estate as any other debt would be? NIACE states,
"Government arguments are circular. It does not have to write-off student loan debt at the age of 65. Relaxing the write-off makes economic sense for the state. If former students earned above the agreed income threshold, they would continue making payments. Those on low incomes would not pay anyway—regardless of their age".
Should we not also seek policy consistency? It is extraordinary that we talk about joined-up government when one department, the DWP, encourages older people of 65 and over to stay longer in the workforce while another, the DfES, says that anyone over 55 cannot access student loans because they will be retired at 65.
Despite what the Minister told me when I raised the issue at starred Questions on 1 March, I believe that the impact of the EU employment directive when it becomes law in this country will force a change. The Government will be challenged in court. It must be better for them to act now than to wait for that.
I conclude by quoting:
"We want to safeguard a wide range of learning opportunities for pensioners…While strengthening support for skills, training and qualifications which will support our wider economic goals, we want at the same time to ensure the continued availability of learning opportunities for pensioners which give so much benefit and pleasure".
Your Lordships may be surprised to learn that that comes from the DfES's 2003 skills strategy paper, 21st Century Skills: Realising our Potential. I hope that it means what it says. I beg to move.
Baroness Howe of Idlicote: I would very much like to support my noble friend's amendment. I will do so as briefly as possible, but I want to underline two or three points. We are an increasingly active ageing society in the best sense of the word. We have heard that 1 million people work beyond what is regarded as the current retirement age—which is disappearing rapidly—and that number is growing. It is obvious too that we shall have many problems with the EU directive on ageing. The report of the noble Lord, Lord Peston, has been mentioned. Sadly, we have not yet even debated it although it was published months ago.
We then come to the natural justice point. To exclude people on the basis of age from the benefits of a student loan is contrary to natural justice and to the concepts of lifelong learning. We simply cannot have a cut-off in that respect. Frankly, whether the individuals want to
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re-equip themselves for another career, take further employment or keep their own brains active for as long as possible, there are surely bottom line benefits for the Government. There will be more tax if such individuals return to work after a course. For those who take the route of enjoying a course just for their own benefits to fulfil their ambitions, that is likely to keep them out of hospital and therefore would save costs for the Government and the country as a whole.
For all those reasons, I hope that the Government will rethink the policy. It really does not make sense.
Lord Freyberg: I, too, support the amendment. In my view, lifelong learning should be upheld in practice as well as in principle. As with the youngest students, there are many of more mature years who would not be able to afford university study without the assistance of a preferential rate loan. However, people of more advanced age who put themselves forward and are accepted for a testing academic course are more than likely to be of unusual commitment and vigour. I know from my own experience that the advice and examples of mature students are a great asset to younger students who inevitably have a more limited outlook.
Baroness Sharp of Guildford: My name is attached to the amendment and I should like briefly to support those who have spoken in its favour. Some Members of the Committee may have received recently a pamphlet from an organisation which describes itself as LEAD, Lobby to End Age Discrimination. The pamphlet states that age is not a basis on which to judge a person's worth. It seems to me that that is true both of a person's intrinsic worth to society and of the assets that person may hold.
Baroness Ashton of Upholland: I begin by paying tribute to the noble Baroness, Lady Greengross, for her incredible work, not least in promoting a culture of lifelong learning. I would be worried if noble Lords gained the impression from the contributions to the debate that somehow the Government are opposed to such learning opportunities. I could, but I will not, spend several minutes going through a range of ways in which the Government are keen to support all students of all ages.
We have referred to the fact that mature students are the main beneficiaries of the adult dependants' grant worth £2,280 and to the additional financial assistance that older students are able to get. I do not want noble Lords to go away thinking that there is not a raft of measures we have put in place to try to support students of all ages. I am happy to set those out but feel that time is not on my side.
I want to address the critical question, which is the opportunity to obtain student loans. When we considered whether there should be a cut-off age, we were very aware that 65 is still the age at which the majority of people retire. Ten per cent continue beyond that. We do not want to change that having made the commitment to all of the students who will and do receive student loans that that will be the case. It is important to have a cut-off point.

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Equally, for people who sadly die, we have made it clear that there will be no carry forward of loans. I think we should continue with that commitment.
It is also worth reminding the Committee that the age limit on the first day of the first academic year of the course is 54. Therefore, students on a typical three-year course will be 57 or 58 when they become liable to repay their loans.
8.45 p.m.
The provision involves significant costs. I understand what noble Lords have said about the noble Lord, Lord Peston, and his committee's report. I understand what the noble Baroness has said about European law. The matter has been tested in the courts. It was determined that as higher education and its funding is a scarce resource it is appropriate for the Secretary of State to be able to make the decisions—albeit in areas where noble Lords do not agree.
The reality is that we rely on our loan system repaying a large proportion of the funding. There are issues around older students being able to repay those loans. I would also say to the noble Baroness, because I understand the issues, that we do not need primary legislation to achieve what she seeks. I am sure she will continue to press the Government and we are very keen to continue that dialogue. It is not that we are unsympathetic, but we are yet again in the art of the possible.
We believe that the package we have created provides a huge amount of support to all our students. We have to make a decision on this aspect, with which I know the noble Baroness will not agree. I ask her to continue that dialogue and we shall continue to listen. Primary legislation is not necessary to achieve what she wants in any event. We are not unsympathetic, and I hope that we can continue to discuss the matter. For the moment, I hope she will feel able to withdraw her amendment.
Baroness Greengross: I thank the Minister. She has given us bad news but also a bit of good news. I am grateful to her for that. I also thank other noble Lords who have supported my amendment.
The disappointment I obviously feel is tempered by the thought that I, with other noble Lords, can return and pursue these ideas and points later. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Freyberg Lord Freyberg moved Amendment No. 108:
After Clause 40, insert the following new clause—
"STUDENT LOANS: POSTGRADUATE COURSES
The Secretary of State shall by regulations extend the student loan scheme to postgraduate courses, including part-time courses."
The noble Lord said: This probing amendment concerns a subject which has had little attention in the current education debate, but which I believe should be considered as part of the rethink of further
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education. It should also feature in the two reviews announced by the Secretary of State. I refer to the general non-availability of postgraduate loans, a situation which should be addressed now that students are to assume greater responsibility for their university funding. If this is not thought through in the next few years, there is likely to be reduced access to postgraduate study for financial rather than academic reasons, and the calibre of academic research in this country is likely to suffer as a result.
Before exploring the matter further, I should like to declare an interest in the subject as I am planning to take up a place on a postgraduate course at University College London. When I went for an interview there, I was surprised to meet a fellow applicant who had been offered a place on the same course for the previous year, but who had been unable to take it up once his application for a research council award had been turned down. He could not tap into any other form of financial support and could not afford to take out a standard bank loan. A career development loan might have been an option—and a helpful one—had he been studying a vocational course, but as a fine arts graduate he would not have been eligible.
Although the number of UK postgraduates has increased impressively in the past few years, and now stands at almost 500,000, according to figures from the Higher Education Statistics Agency, there is no question that the lack of access to funding prevents many people taking up hard-won places. For example, at University College London, around 950 offers of places for postgraduate research are made each year. Yet only about 400 will be taken up. Of those, between 180 and 200 receive research council funding. Of course, not all those who decide not to take up a place do so because of failure to acquire funding, but, equally, a substantial number—probably between 100 and 400—do. Similarly, for taught postgraduate courses at UCL, about 100 to 250 applicants who are turned down for research council awards decide not to take up a postgraduate place for that reason.
That is just one example among many universities at a time when graduates have far lower debts than will be the case in a few years' time. At present, all UK-domiciled undergraduates who meet the residency rules have access to student loans, with preferential rates and deferred payments. But there is no such facility for postgraduates. That will become an increasingly necessary option as the new funding system is implemented because most postgraduates will be considerably more indebted when they start their courses than has previously been the case. That will mean that the only way that many can afford to continue their studies is if they get a preferential loan rate.
It is also worth mentioning that, although the majority of undergraduate courses are for three years in total, the majority of postgraduate courses are for only one or two years. I do not suggest that extending loans to postgraduates will solve funding difficulties for all contemplating a postgraduate course, but the possibility of resorting to one will be a great boon to those with few

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funding options. I was interested to discover that such an option exists for both undergraduates and postgraduates alike in Sweden.
That is not to say that there are not some helpful funding schemes already available for postgraduates. Those include the research council awards already mentioned, which cover some tuition fees along with a decent-sized maintenance grant. There are other initiatives, such as career development loans, support for those wishing to become teachers, hardship schemes, assessed bursaries for courses in social work, help from the Access to Learning Fund and new academic fellowships for scientists. However, those are chiefly available for those with clear career paths and leave numerous students desperately trying to fund further study.
The statistics bear that out. Research council grants help nearly 13 per cent of postgraduates and the other awards reach a far smaller percentage. One can therefore be extremely able and yet not qualify for funding. That is one reason that such a large proportion of postgraduates are part time, because students are obliged to earn a living to pay the course fees and living costs.
Another point worth mentioning is the fact that, unlike undergraduate courses, there is no cap on postgraduate fees. When fees are high, it is all the more imperative for students to have access to funding at affordable rates. I am aware that what I suggest is not without considerable cost implications, although I would add that, despite my Written Question on the matter, the Government have been unable to put any figure on it, other than saying that it would be hugely expensive. So it would be helpful if the Minister could set the figures before us in due course. I am also aware that the Government already have the power to implement that by regulation.
In conclusion, there are already 1.5 million undergraduates whose loans are being processed by government offices. The number of postgraduates who would seek a loan if it were made available would be far smaller. The apparatus for processing them is already in place. I beg to move.
Baroness Sharp of Guildford: My name is also attached to the amendment, and I should like to speak briefly in its favour. Those of us who have worked in universities are concerned about what some might regard as being one of the unintended consequences of the introduction of fees, which is a reduction in the number of students going on to postgraduate work. One way in which they might be helped is by the introduction of access to preferential loans, as are available to undergraduate students.
As the noble Lord, Lord Freyberg, said, many postgraduate students, especially those at the Masters level, are not funded through research council studentships. For those students, bank and commercial loans are the only available sources of funding. Although one recognises that there should be limits on the availability of such loans, it might be useful for students
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to have access to loans at a preferential rate up to a certain limit in order to help them through their studies, as the noble Lord indicated.
Lord Triesman: I start by wishing the noble Lord, Lord Freyberg, every success in his new course at University College, London. Perhaps he could tell his new acquaintance, the fine arts graduate, that the establishment of the Arts and Humanities Research Council should be quite a useful adjunct to some of the awards that will be available should this legislation be passed.
I wish to make it clear from the outset that we recognise and value the contribution that postgraduates make to our economy and wider society, and, indeed, to the life of universities. Study at postgraduate level underpins our research base and nurtures the highly skilled workforce that is increasingly in demand if we are to compete internationally.
Postgraduate study can take a variety of forms, including taught higher degrees, research and, increasingly, professional qualifications, and other advanced learning. Perhaps I may make the observation to the noble Lord, Lord Freyberg, that when he asked his Question in this House recently, my noble friend Lady Ashton made the point that it is very hard to estimate the cost of extending student support to postgraduate students. It would depend on the level of support that would be made available. I have just made the point that there is a vast variety of courses with a vast variety of charges. In a sense, there would be a very big element of guesswork, other than to say that the costs would be very substantial.
Learning at this level pays off for the student as well as for society. Research indicates that in the same way that graduates' earnings are on average a good deal higher than those people who are qualified to A-level, workers with higher degrees attract on average a further 17 per cent over the earnings of graduates at first degree level.
The Government's commitment to learning at that level, despite the points that I make about the higher levels of earnings, is evident in the investment that we make in the research base and in the teaching of postgraduate students. Members of the Committee are aware that there have been substantial increases in the science and research budgets for 2005–06 compared with three years previously. We provide around £300 million a year, through the HEFCE block grant, for the teaching and supervision of postgraduates and researchers. Postgraduates can apply, in competition, for awards from research councils and the Arts and Humanities Research Board. The Government are investing additional funds to raise the minimum PhD stipend to £12,000 a year by 2005–06. That is a significant investment in the best postgraduate students.
There is a partnership with high street banks through the career development loans scheme. Seventeen thousand people are approved for loans each year. We estimate that about 5,000 of them are for postgraduate studies. There is further targeted support available to postgraduate students with disabilities through the

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disabled student's allowance. Currently, more than 1,300 postgraduates receive that statutory support. Postgraduates are also eligible for consideration to the Access to Learning fund, as the noble Lord, Lord Freyberg, indicated. The Government have allocated £7.6 million to institutions from that fund.
Of course, ultimately, some people are turned down. That must be the case because, regretfully, as Ministers are often forced to say, our resources are not limitless. The Government have a responsibility to decide on priorities. The amendment would require us to make postgraduate students eligible for loans with a considerable increase in costs to the public.
If we had Swedish tax levels, perhaps we would match some of the other achievements of Sweden. We might still choose to prioritise other things because there are always other priorities. This can be achieved by regulation but it does not seem to us to be the right balance and does not focus on the right groups at present in higher education, important as postgraduates are.
Bearing all this in mind, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Freyberg: I thank the Minister for his very helpful reply. He gave a full account of the many different funding options available for a selection of postgraduates. However, as he knows, such schemes, admirable though they are, do not reach a huge number of the many postgraduate students who are not caught by those schemes and who deserve support from the Government. In the light of what the Minister has said and what I am sure will be a continuing debate on this matter, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 41 and 42 agreed to.
Clause 43 [Orders and regulations]:
[Amendments Nos. 109 to 109A not moved.]
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendments Nos. 110 and 111:
Page 21, line 16, leave out third "or"
Page 21, line 17, at end insert "or
(c) regulations to which subsection (3A) applies.
(3A) A statutory instrument which contains (whether alone or with other provisions) regulations made by the Secretary of State by virtue of section 31(2) or 35(2)(c) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of. each House of Parliament."
On Question, amendments agreed to.
[Amendment No. 111A not moved.]
Clause 43, as amended, agreed to.
Clauses 44 and 45 agreed to.
Schedule 6 agreed to.
Clause 46 agreed to.
Schedule 7 agreed to.
Clause 47 agreed to.
Clause 48 [Commencement]:
[Amendment No. 112 not moved.]
Clause 48 agreed to.
Clauses 49 and 50 agreed to.
House resumed: Bill reported with amendments.

Burma
9.3 p.m.
Baroness Cox Baroness Cox asked Her Majesty's Government:
Whether they have received any reports on discussions between the State Peace and Development Council (SPDC) and leaders of ethnic national groups within Burma.
The noble Baroness said: My Lords, I am very grateful to noble Lords contributing to this debate, especially at such short notice. However, it is important to take this opportunity as the situation in Burma remains very grave.
The State Peace and Development Council is continuing to oppress all who promote democratic reform. The Nobel Laureate democracy leader, Daw Aung San Suu Kyi, remains under house arrest, although her eloquent voice is heard. Less often heard are the voices of the ethnic national groups, many of whom are suffering and dying at the hands of Burma's military regime. It therefore seems appropriate to focus tonight on their plight and their relations with the SPDC.
Four weeks ago, I visited the Karen and Karenni peoples of eastern Burma, with John Bercow, shadow Secretary of State for International Development. Just prior to that, I visited the Chin and Kachin people of north-western Burma. I shall focus on the evidence obtained from those visits. The noble Lord, Lord Alton, has also visited the Karen people frequently and recently, and I think he may give some indication of their plight this evening.
There is also abundant evidence from many reputable organisations of the systematic violations of human rights of the national groups. Examples include Shattering Silences from the Karen Women's Organization in 2004, Licence to Rape, brought out by the Shan Human Rights Foundation and No Safe Place by Refugees International in 2003.
I shall first consider the Chin and Kachin people. Forced labour is widespread in Chin state. Civilians are regularly forced to leave their homes to work as porters for SPDC troops, carrying loads of ammunition or rice weighing as much as 30 kilograms—over 60 pounds. Such an imposition occurs so frequently that many cannot tend their own crops, and flee to neighbouring India to survive. As porters, they have to carry such massive loads from dawn to dusk, with virtually no food, water or rest. Elderly people who fall by the wayside are beaten and may be killed or left to die.
The SPDC denies that it is using forced labour, but we were given copies of official letters, such as one from an SPDC company commander to village leaders in southern Chin state issued on 13 December 2003, demanding 40 porters from the village and 30 from another village nearby to report to the nearby SPDC

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camp to carry rations for the military. The SPDC maintains 10 battalions in Chin state, amounting to more than 7,000 soldiers. They frequently supplement their inadequate pay and meagre rations by attacking villages, stealing food and maltreating civilians.
As in the rest of Burma, the SPDC does not tolerate any political opposition in Chin state. Involvement in pro-democracy or pro-federalist activities can result in arrest, imprisonment and torture. A former teacher in Chin state described how he was arrested and tortured for holding classes for students in Chin language and culture. He was told that it was forbidden to teach Chin language and culture in schools. He was detained for a week. He was punched and kicked and his captors rolled a stick along his shins until the skin came off.
On the subject of religious persecution, it is estimated that 90 per cent of the Chin people are Christians. However, SPDC forces offer incentives to impoverished villagers to convert from Christianity to Buddhism. Children from Christian families, often between the ages of five and 10, are lured from their homes with the promise of education. They are placed in Buddhist monasteries, where their heads are shaved, they are trained as novice monks and they never see their families again. Crosses have been destroyed and villagers forced to build pagodas in their place, contributing finances and labour. Christians are required to obtain permits for renovation or construction work, but no permission for new church buildings has been given since 1994.
The Chin do not traditionally permit alcohol in their society, but since 1992, in an attempt to disrupt Chin traditions, the SPDC has brought in large quantities of an alcohol known as "OB", a mix of methylated spirit and industrial spirit. It is highly addictive and extremely toxic. It is sold on streets, especially on Sundays, to young people. Boys and girls as young as 12 years old have been sold the alcohol by the army and police. Addiction leads to crime and possibly death. The medical effects include toxic liver failure and damage to brain cells. Last year in one town of 5,000 people, there were at least 10 deaths as a result of that alcohol consumption.
Since 2000, the SPDC military presence in Kachin state has doubled despite a ceasefire agreement. We were told that,
"forced labour for roads and pagodas occurs on a daily basis".
Like the Chin, the Kachin are also estimated to be 90 per cent Christian and they suffer policies of oppression and religious persecution similar to those inflicted on the Chin people.
I turn briefly to the Karenni, Karen and Shan people in eastern Burma whom I also visited recently. Despite its rhetoric about implementing a road map to democracy and its ceasefire talks with the Karen leadership, the SPDC continues military offences against civilians, extrajudicial killings, rape, torture, forced labour, use of porters as human minesweepers, forced relocations and the use of child soldiers.
We interviewed many people who had had to flee from their homes and villages because they could not endure the repeated ordeal of being forced to work as porters, undertake other forms of forced labour for SPDC troops or being forced to serve as human minesweepers. Many have had to hide in the jungle as IDPs where they suffer multiple deprivations, lack of food, medical care and shelter. There is a high toll of suffering and death. It is cold at night, but they dare not light fires for fear of detection and subsequent capture by SPDC troops, with torture and the possibility of being killed. Lack of healthcare results in high rates of deaths from avoidable or treatable disease, as in the case of a mother who told me that five of her seven children had died of malaria. I heard of many similar cases.
The SPDC is exploiting its vaunted ceasefire with the Karen to escalate its military offensives against the Karenni people, moving troops to the Karenni border with relatively little resistance through Karen state, because of the ceasefire. From December last year to April this year, the SPDC mounted many severe military offensives in Karenni state and as recently as April 19, SPDC troops crossed into Thailand to attack Karenni targets with RPGs and rifles.
Overall, since 1996, over 2,500 villages in eastern Burma have been destroyed, at least 1 million people have been displaced, 365,000 people have been moved to relocation camps and 268,000 people are living as IDPs trapped in the jungle.
In view of this dire situation, may I ask the Minister a rather large number—indeed, a barrage—of questions? I realise that she will not be able to address them all this evening. However, they are relevant to the Question on the Order Paper as they relate to the context of the discussions and the sincerity of purpose of the SPDC. I hope that she may be able to answer the questions in due course. They also reflect the concerns that were expressed to us by those in the ethnic national groups whom we met. I emphasise that I know it is an unacceptably long list of questions.
First, will Her Majesty's Government urge the European Union to impose targeted economic sanctions, which would penalise the regime, without having adverse effects on the majority of the population, for example, the prohibition of capital investment, trade in timber and marine products and investment in oil exploration and production?
Secondly, will Her Majesty's Government urge the United Nations Security Council to impose an arms embargo, in view of the fact that the SPDC devotes approximately one half of its national budget to military expenditure, which is used in offensives against its own civilians?
Thirdly, will they urge the Governments of Thailand, India and Bangladesh to desist from repatriating displaced Burmese citizens without adequate security guarantees? Fourthly, will they urge ASEAN nations to consider suspending Burma from ASEAN? The need for such consideration is urgent in view of the Burma's impending presidency of ASEAN in 2006.
Fifthly, will they urge the SPDC to open all of Burma to international humanitarian and human rights organisations? Sixthly, will they urge the SPDC to adopt a policy of tripartite talks involving the National League for Democracy and the ethnic national groups and to adopt a nationwide ceasefire on principles equally applicable to all parties in the conflict? Seventhly, will they impress upon the SPDC the unacceptability of its current procedures for the national convention, which involve limiting participation to those whom they invite, censoring contributions and denying media access? Next, will they raise with the SPDC the widely held concerns over violations of religious liberty, not only against the Christians, which I have detailed this evening, but also against Muslims in other parts of Burma?
Ninthly, will the Government urge the International Labour Organisation to intervene as a matter of urgency? Tenthly, will they consider initiating proceedings for bringing the SPDC to account for war crimes? Finally, will they consider more sympathetically support by DfID for cross-border humanitarian aid to the many thousands of IDPs in Burma, who are currently denied healthcare, adequate food supplies, shelter and education? Other national governments provide such cross-border assistance and personnel currently providing such cross-border aid adequately fulfil the criteria of accountability, transparency, impartiality and professional effectiveness. Furthermore, these criteria may be better fulfilled by these personnel than by aid organisations operating inside Burma under constraints imposed by the SPDC.
In conclusion, we owe it to any people suffering such atrocities to do everything in our power to help them. However, ethnic national groups such as the Karen, the Karenni, the Chin and the Kachin have a historic relationship with us—fighting alongside our soldiers and sometimes giving their lives for them. Therefore, they hope that we will not forget their loyalty or let them down now in their hour of need. I hope that this debate in your Lordships' House will reassure those people of our loyalty to them and our commitment now to do everything possible to ensure they achieve the freedom, peace and justice that they desire so passionately and for which they are paying such a high price.
9.15 p.m.
Lord Chan: My Lords, I thank the noble Baroness, Lady Cox, for securing this timely debate, particularly as the military rulers of Burma opened a national convention last week, 17 May, to finalise a new constitution for their country. The noble Baroness, Lady Cox, has a formidable reputation for championing people whose human rights are being violated in many parts of the world, especially in Asia and Africa.
The people of Burma, regardless of politics, ethnicity or religion, have suffered from more than 30 years of internal warfare and military oppression. After decades under a brutal military regime, a widespread movement for democracy culminated in the massacre of thousands
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of demonstrators throughout the country in 1988. The military dictatorship bowed to intense pressure and held elections in 1990.
May 27 marks the 14th anniversary of the 1990 elections when the National League for Democracy, led by Nobel Laureate, Aung San Suu Kyi, won over 80 per cent of the seats in parliament. The military regime, the State Peace and Development Council—SPDC—rejected the 1990 election results and refused to hand over power to the democratically-elected legitimate representatives of the Burmese people. Some of the elected representatives have been in detention or exile ever since.
May 30 marks the first anniversary of the attack on Aung San Suu Kyi and her supporters in Depayin by 3,000 members of the Union Solidarity Development Association (USDA), an organisation affiliated to, and controlled by, the military regime. According to Burma's government in exile, the National Coalition Government of the Union of Burma (NCGUB), the military regime indicated that 282 people were killed in that attack. The life of Aung San Suu Kyi was endangered and she was taken into detention again without news of her whereabouts or her welfare for several months. The SPDC continues to hold Aung San Suu Kyi under house arrest, 1,400 people are detained as political prisoners; they restrict freedom of speech and association and insist that the new constitution guarantees that the military retain a hold on key political roles.
The national convention that opened on 17 May has been described as a sham by several bodies, including human rights organisations, Burmese pro-democracy organisations and most ethnic national groups, as well as most democratic governments around the world. Proceedings of the national convention exclude the participation of the main pro-democracy party, the National League for Democracy (NLD) and most ethnic national groups.
The NLD and ethnic national groups such as the Karen National Union (K NU), Karenni National Progressive Party (KNPP), Shan State Army-South (SSA-South) and the umbrella United Nationalities Alliance (UNA), have boycotted the national convention because the SPDC rejected calls to release NLD leaders Aung San Suu Kyi and U Tin U from detention, open all NLD offices and permit free discussion of the issues being considered in the national convention.
For example, citizens have been warned that if they discuss the constitution outside the confines of the national convention, they could face gaol sentences of between seven and 20 years. The national convention delegates are hand-picked by the SPDC and the whole event is a stage-managed rerun of the failed national convention that collapsed in 1996.
The governing council of the Inter-Parliamentary Union adopted a resolution on 23 April this year, in which it declared that the IPU:
"reaffirms its conviction that the National Convention in its present form is designed to prolong and legitimize military rule against the will of the Burmese people as expressed in the 1990 elections, and that this stands in direct opposition to the principle

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enshrined in the Universal Declaration of Human Rights that the 'will of the people shall be the basis of the authority of government'".
Together with the noble Baroness, Lady Cox, and other noble Lords, I urge Her Majesty's Government to send a strong message to Burma's military rulers about our grave concerns for ethnic nationals who are being persecuted without respect for their human rights.
With regard to internally displaced people, most of whom are from ethnic national groups, I support what the noble Baroness, Lady Cox, said about DIM's humanitarian assistance. That assistance—through the Burmese Border Consortium—goes to 140,000 refugees in camps in Thailand, but no aid at all goes to the internally displaced people trapped inside Burma. There are several indigenous ethnic national organisations that go across borders to distribute humanitarian aid to the internally displaced peoples in the jungles of eastern Burma. These organisations provide a high standard of accountability and transparency to donors, with regular written reports, accounts of use of funds, videos and photographic documentation.
As part of a review of the Government's Burma policy, I encourage the Minister to consult with ethnic national groups, including backpack health worker teams, to ascertain levels of accountability and reconsider their policy to cross-border aid to internally displaced people. MD could also train the ethnic national groups to improve accountability. Christian Solidarity Worldwide supports aid to ethnic national groups.
Christian Aid, through its recent report, Burma's Dirty War, urges the UK and Irish Governments, the EU and other nation states to:
"ensure that humanitarian organisations working with displaced people are provided with the necessary funds to support displaced people inside Burma and to continue to support refugees in Thailand".
We have heard about religious persecution against the Chin, but Burma is one of the world's worst violators of religious freedom since 1999—according to the US State Department. The persecution of Christians in Karen, Karenni, Chin and Kachin areas, and Muslim Rohingyas in Arakan State, is widespread.
In Karen State, churches have been burnt down and Christian activities disrupted. A 53-year-old Karen Christian woman told Christian Solidarity Worldwide that in one village on 25 March this year, the Democratic Karen Buddhist Army—a government-sponsored militia—ordered villagers to clear an area for the construction of a Buddhist pagoda in front of the village church. Materials were delivered on 27 March. Using a loudspeaker, the Buddhist army ordered Christians to build a pagoda. They threatened to kill the pastor of the church, who had to flee for his life. During Christian worship, the loudspeakers would blare out Buddhist propaganda, urging them to convert to Buddhism. The Buddhist army regularly made the villagers dig trenches and undertake forced labour, carrying heavy goods for them for no payment.
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Will Her Majesty's Government please raise with the SPDC the widely held concerns over violations of religious liberty, including compulsory contributions by non-Buddhists to the construction of pagodas, the closure of Christian churches and the persecution of Muslims?
Finally, I turn to refugees in Thailand. An estimated 140,000 Karen and Karenni live in camps along the Thai-Burmese border. Burma's pro-democracy activists have been able to live in exile in Thai towns and cities, some claiming asylum through UN HCR.
But Thailand is not a signatory to the 1951 Refugee Convention, and its definition of "temporarily displaced people" is extremely narrow. Thailand recognises as refugees only those who are fleeing armed conflict, not those who are fleeing persecution and human rights violations.
In August 2003, Thailand reached an agreement with the Burma military government to deport 400 illegal Burmese nationals a month. I hope that Her Majesty's Government will urge the Thai Government to desist from repatriation of temporarily displaced Burmese civilians, without adequate security guarantees acceptable to those liable to repatriation.
There are more than 200,000 Shan people in Thailand who have no protection whatever and are not provided with shelter, unlike the Karen and Karenni. Thailand has also recently banned NGOs from engaging in activities which might "irritate bilateral relations" with Burma, according to the Bangkok Post of May 16 last week.
This may affect the valuable work of Dr Cynthia Muang, who runs the Mae Tao Clinic near the Burma border in Mae Sot. She has treated almost 200,000 refugees since it was set up in 1989. The clinic's activities are now being monitored, and,
"the authorities specifically ordered that any undertakings must not harm bilateral ties".
Such vague wording could apply to any humanitarian or educational work which the SPDC dislikes.
I hope that the Minister will consider expressing concern to the Thai authorities and will urge the government of Thailand to desist from restricting the work of Dr Cynthia Muang.
9.27 p.m.
Baroness Flather: My Lords, I, too, thank my noble friend Lady Cox for initiating this debate on the situation in Burma. It would have been even more helpful if it had taken place after 7 June. The ambassador in Yangon is coming for a briefing and I hope that noble Lords know about that and have been invited. I very much hope that the noble Baroness will put her points and her questions to the ambassador.
I hold no brief for the government; I want to make that completely clear. I have no way of contradicting the points that have been made. However, if the noble Baroness were to go to some very poor parts of India, she might also find that a number of children have died as there is insufficient healthcare available. Every poor country has that problem. In Africa the situation is

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even worse than in India. We cannot lay everything at the door of the regime—that there is no healthcare or that people are poor or that nothing is available. That cannot entirely be laid at the door of the regime.
We have isolated Burma for some time. Before that, Burma isolated itself from us. In those days we said, "Wouldn't it be good if they opened the door?" They opened the door and now everyone in this Chamber is saying, "Isolate them. Close the door. Don't do anything. Impose sanctions".
Noble Lords say that sanctions should be implemented in such a way that they hurt only the regime. Has anybody, as yet, devised a method by which sanctions hurt the regime but do not affect the people? All that the recent American sanctions have done is to put 70,000 to 90,000 people—figures are not exact—out of work. Burma is a very poor country. There is very little employment. The only employment for any intelligent young man is to go into the armed services. We have hounded out of the country all the companies over which we had any influence. There is no inward investment. There is no large-scale commerce in Burma. There are continual calls for reducing contact.
We have tried do this since the election 14 years ago. What has it got us? Where is it getting us? The regime is getting more entrenched, and feels it has got its back to the wall. It is a military regime: it is not going to collapse or give way just like that. We have two options: the option of dialogue and the option of armed intervention. We have tried armed intervention in another country—not very successfully—and we certainly will not be trying it in Burma. The only way forward is dialogue. It is time to talk, not to close doors on all conversation.
I am very interested to hear that the Burmese were such good allies of ours. Let us not forget that the national hero Bhojo Aung Sang fought against us with the Japanese. He later changed sides, but in the war he was not with us. It is not just the ethnic minorities we have to think about. The Bamar, the largest group, fought with us more than everybody else. The ethnic problems of Burma predate the present regime. They have been going on for a very long time, and it is well to remember that there are faults on both sides.
Other countries have had things done to their ethnic minorities. I remind this House of what China did in Tibet. Did everybody stand here and say "Let's boycott China"? Why do we not boycott China? China has a very poor human rights record. It has no democracy, and it has treated its ethnic minorities— not to mention Burma—in a most appalling manner. But nobody is talking about boycotting China; we are talking about boycotting Burma. China enjoys preferred nation status with the United States; Burma is a small country with very little influence on anything.
Where does the regime get its funds? Does it get them from taxes? No, it does not. The money comes from gems and the opium trade. Who is it working with? China. It is the opium trade which keeps the
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generals funded. In fact, we have put them in a situation where there is no other way for them to get money.
It is time for us to stop listening to people like the Burma Campaign. I was at the pro-democracy group meeting in Parliament, and the representative of the Burma Campaign produced a ream of facts and figures on how much money the government get from tourism. Those of your Lordships who have been to Burma, as I have, will realise it is impossible to get facts and figures of any kind in that country. So how did the representative have them on tourism, to the last penny? Very little of the money spent by any tourist in Burma goes to the government. Most of the money goes to the people who provide the artefacts, who make the things, who work in hotels. All the hotels that people stay in are owned by companies which are outside the borders of Burma, by people from surrounding countries such as the Thais. There are hotels which are owned by the generals, but nobody goes to stay in them because the generals cannot manage to run anything. They cannot manage to run any factories, any hotels, or any tourism. The money goes much more to the people.
Taxi-drivers are going out of business because there are no tourists to carry around. Artisans are going out of business because there are no tourists to buy anything. I think it is absolutely appalling for us continually to call for boycott, boycott, boycott. It will not get us anywhere, and it will not help all those people in Burma we are championing today. For various reasons we are all championing the people of Burma. I went there last year, and I came back sad and frustrated because the people are wonderful. They deserve our support, not a wall around them saying, "Please do not talk to anybody". It is time Her Majesty's Government rethought their plans for Burma.
I think that Daw Suu Kyi is a most wonderful person, but she was invited to join the first constitution commission, which she refused. There was also talk when I was there last year that she was going to be invited to join this constitution commission. If so, she has obviously refused. She was also asked to become prime minister. When I put that fact to the Minister at the FCO, he said, "But there were strings attached". Well, they are hardly going to hand over the country to her, are they? Of course there were strings attached. If she had—I am sure the noble Lord will have his chance. I am quite willing to give way—
Lord Alton of Liverpool: No.
Baroness Flather: My Lords, I am sure that there were strings attached—nobody is going to hand over what they have to anybody else.
There is never all or nothing. If Daw Suu Kyi wants all, she will have nothing, as has happened for the past 14 years. If she found it unworkable to be involved in the affairs of Burma, she could then have said, "Look, they are doing this and I cannot support them in this manner". It would have strengthened her position; it would have made all the neighbouring countries more

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aware of what was happening there. However, she refuses to have any interaction with the Government. We are following the same path of no interaction. But you cannot change things without interaction. You cannot change things without dialogue or involvement.
9.38 p.m.
Lord Alton of Liverpool: My Lords, the noble Baroness, Lady Flather, who has just resumed her seat, will know that I profoundly disagree with much of what she has just said. However, I am nevertheless glad to hear that point of view being expressed in our free Parliament. I hope it is an illustration to those who will read the accounts of this debate in places like Burma that contrary opinions can be held by Members of your Lordship's House, and that we have the freedom to disagree. Although there will not be time for me to deal in detail with all the arguments that the noble Baroness has just put forward, let me just mention one or two things.
Daw Aung San Sun Kyi is the democratically elected leader of the Burmese people, and this approach of -she wants to have it all or have nothing," is not an appropriate way to speak of someone who has been elected as the leader of her nation, who has been excluded from the national convention talks and has been under house arrest. As we heard from my noble friend Lord Chan earlier, she also had an attack on her life just a year ago with 3,000 people attempting to take that life.
The noble Baroness mentioned the hotels in Rangoon. She knows as well as I do those hotels were built on the blood, sweat and tears of forced labour. People who travel to Burma and stay in those hotels should remember that. She also talked of the grinding poverty in the country. If that is so—and I agree with her that it is—then perhaps the Burmese military junta should spend less of their money on weapons, arms and their standing army, and use more of their money on the relief of poverty in their country. I congratulate her noble friend Lady Cox on characteristically—of course. I shall give way.
Baroness Flather: My Lords, I have been told that in many countries the hotels are built on the poverty of the people. Burma is not the only country to do that. I accept totally that Aung San Suu Kyi is the democratically elected leader. For 14 years we have been saying that but it has not moved us forward. I am trying to move the matter forward. I have no brief for the junta.
Lord Alton of Liverpool: My Lords, I am glad that the noble Baroness said that. It is worth reminding the House what the former UN special rapporteur on Burma, Mr Rajsoomer Lallah, QC, said in his report on the situation of human rights in Myanmar:
"The Special Rapporteur is deeply concerned about the serious human rights violations that continue to be committed by the armed forces in the ethnic minority areas. The violations include extrajudicial and arbitrary executions (not sparing women and children), rape, torture, inhuman treatment, forced labour and denial of freedom of movement. These violations have been so numerous and consistent over the past years as to suggest that they
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are not simply isolated or the acts of individual misbehaviour by middle- and lower-rank officers but are rather the result of policy at the highest level entailing political and legal responsibility".
That is not my personal, private view; it is the view of the former UN special rapporteur on Burma.
I say to the noble Baroness and to the House that I. too, have traveled—in my case, illegally—in Burma, but I have also travelled three times to the Burmese/ Thai border and have seen first-hand some of the depredations that have occurred there. The Karen did not change sides during the Second World War; they were our allies throughout. Indeed, when I initiated a debate on this subject in your Lordships' House in 1998, Lady Mountbatten of Burma was good enough to write to me, and I read her letter into the account. She reminded us that her father said that the Karen were our bravest allies and that they had become our forgotten allies.
The Minister will recall that during Question Time on 13 May I mentioned General Bo Mya, who is a holder of the Burma Star and the leader of the Karen National Union. I was able to visit General Bo Mya just a few weeks ago. I asked him—the noble Baroness may be interested in this—whether it was time to try to initiate dialogue and talks with the Burmese military junta. He agreed that it would be worth trying to do that. When I returned to London, I took a letter to the Burmese Embassy. I am glad to say that General Bo Mya was able to travel to Rangoon and to have the first talks there between the KNU and the Government in very many years. I regard that as welcome progress.
However, the non-participation of the KNU, the National League for Democracy, which my noble friend Lord Chan referred to earlier, and other serious and authentic voices inevitably turned the national convention, which was reconvened on 17 May, into a charade. The refusal of the SPDC to release Aung San Suu Kyi and U Tin Oo, which is why they have failed to participate in the talks, is the reason for their non-participation. It is simple: if the SPDC want to make progress, it should release Aung San Suu Kyi and allow her to come to the talks; it should release U Tin Oo and allow him to come to the talks; and it should release the 1,300 political prisoners who are held in Burmese gaols at present.
In a briefing note to your Lordships today—many will have seen the Myanmar News Bulletin—the SPDC attacked the NLD for ending, as it said, three years of active participation. But the SPDC must realise that the exclusion of leaders turns the convention into a charade. If that decision is reversed, progress towards what it calls,
"a peaceful, stable and sustainable democracy",
becomes possible. Failure to make progress condemns the Karen and the other ethnic minorities to a desperate future.
Last year, with Congressman Joseph Pitts, I took evidence from the Karen about their continued suffering. The story of one child whom I met at a refugee camp near Mae Sot illustrates how the brutality and violence of this perfidious regime continues. Saw Naing Gae is just eight years old. He

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saw the Burmese military shoot dead his mother and father. He was then trafficked across the border and sold to a Thai family. Desperately unhappy, he managed to escape and made his way to the camp, where he is staying with a group of about 30 other orphans. He was unable even to smile. Every trace of joy and innocence had been stamped out of him—all this by the age of eight.
Saw Naing Gae squatted alongside four other children, brothers and sisters whose parents had also been brutally murdered. The oldest girl, aged 12, now head of their family, dissolved into tears as she recounted their story.
Let me share another first-hand account. Aged 45, the mother of five children and pregnant with her sixth, Naw Pi Lay was murdered in June 2002 by the Burmese military. During a massacre in the Dooplaya district of the Karen state 12 other people were killed, including children aged 12, seven, five and two years old.
Elsewhere in the same district at Htee Tha Blu village further human rights violations were carried out by Light Infantry Battalions 301 and 78. They beat and tortured villagers, stole their belongings and burned down their church and their homes.
When I visited the region in 1998 I illegally crossed the border and entered the Karen state. I heard and saw evidence of the internally displaced people, estimated now at some 600,000. I heard about and saw the scorched earth policy that has depopulated and destroyed countless villages. In 2003 I met one of the Free Burma Rangers who had just come out of the Karen state. He had been with a little girl of eight who still had a bullet lodged in her stomach. At great personal risk, he and many others had regularly gone into the Karen state to help people like her, often taking nurses and medics with them.
At Mae Sot, Congressman Pitts and I took evidence from the Committee for Internally Displaced Karen People. They provided me with over 100 pages of carefully documented examples of human rights violations committed by Burmese military over the past 12 months. One day I hope that that evidence will be placed before an international court and that the perpetrators will be brought to justice for the genocide—I use that word advisedly because I believe that is precisely what has happened in the Karen state—that has been committed.
In evidence on behalf of the Jubilee Campaign, the group I helped to found some 20 years ago, I was able to give evidence directly to the United States Congressional Committee on Human Rights. I detailed many of the other atrocities to which there will not be time to refer tonight. The report I have just mentioned lists three mass killings by the SPDC. It is a carefully chronicled account of looting, burning, torture, rape and murder.
The SPDC routinely plants landmines. I visited a prosthesis centre and I met some of those who had had limbs blown from their bodies. I went to areas where landmines had been laid and the SPDC had then used Karen people as human minesweepers. I saw some of
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the victims, people whose limbs had been severed from their bodies, whose skin had been peppered with shrapnel, and others left blind.
I also talked to the families of people whose loved ones—men and women—had been seized and used as porters and construction workers and who had never returned. The SPDC kill many of the porters in frontline areas, especially when they are unable to work any longer because of exhaustion or sickness.
The international focus on Burma has long been on the heroic struggle of Aung San Suu Kyi and her National League for Democracy, but a settlement with the NLD would represent a solution to only half the conflict. That is why it is so right that the noble Baroness, Lady Cox, has concentrated our minds on the position of the ethnic minorities.
The seven ethnic groups who have been fighting for self determination or autonomy at some point or another since World War II—the Karen, Karenni, Mon, Arakam, Kachin, Chin and Shan—will still need to have their grievances addressed. In Chiang Mai I met with the authors of a carefully meticulous 120-page report on the Burmese military regime's use of sexual violence in the Shan state over the past six years.
The report of the Shan Human Rights Foundation and Shan Women's Action Network, Licence to Rape, to which the noble Baroness, Lady Cox, referred, details how rape has been used as a weapon of war. Sexual violence, especially widespread gang rape, has terrorised and humiliated communities, flaunts the power of the regime, "rewards" troops and demoralises resistance forces.
Women who have been raped have frequently been abandoned or rejected by their husbands. One woman described how she was gang raped when she was seven months pregnant and then gave birth prematurely to her child. Another was told by her husband to leave, because, "You didn't control yourself. You are no longer my wife. Leave our home".
The Burmese military junta have turned their country into one vast concentration camp, yet they fail to appreciate the strength of the human spirit and the capacity to endure and survive.
As Human Rights Watch points out in its superb report, Out of Sight, Out of Mind, which I commend to the noble Baroness, Lady Flather:
"by violating the internationally recognised principle of non-refoulement, the Royal Thai Government is placing refugees and undocumented asylum seekers in danger of persecution, arrest. economic sanctions or other reprisals from government authorities, upon return to Burma".
I hope that when the Minister replies to the many questions asked by the noble Baroness, Lady Cox, she will be able to say what discussions she has been having with the Royal Thai Government about this and whether she has urged them, as my noble friend Lord Chan said earlier to ratify the 1951 convention relating to the status of refugees and along with that the 1967 protocol.
All of us want to see an end to the depredations and violence inside Burma. The SPDC must appreciate that the world will remain sceptical about its sincerity to bring such change until it welcomes to the table all

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who have a stake in the country's future and we will remain critical until they do so. The alternative is for Burma to go on bleeding to death.
9.50 p.m.
Lord Avebury: My Lords, yet again we are deeply indebted to the noble Baroness, Lady Cox, for reminding us of the appalling violations of human rights which have occurred in Myanmar and for bringing such an impressive weight of first-hand knowledge to your Lordships, which has been reinforced just now by the noble Lord, Lord Alton, who also has been many times to the areas where oppression and violence is at its worst. I pay tribute to both of them for the immense courage and dedication they have brought to this task.
Several noble Lords have mentioned the constitutional convention which has been going on for just over a week in Myanmar and which was billed by the SPDC as a key step in its "road map to democracy", but it has been rubbished by the UN Secretary-General, the European Union and the US as lacking credibility because the leader of the opposition, Aung San Suu Kyi, and key ethnic group leaders were excluded. This debate provides an opportunity for our own government to say that we do not recognise the legitimacy of this stage-managed process as the first step on the road to anywhere. The regime may have embarked on what the noble Lord, Lord Alton, described as a charade—an elaborate charade, I must say—intended to deceive the outside world, but let it be known that none of us are taken in.
Even the neighbouring states, which are so keen to expand their business with Myanmar, do not believe that the military intend by this move to hand over power to civilian government. That well known Liverpool fan, Thai Prime Minister Thaksin Shinawatra, said he did not feel comfortable about the process, although he still hoped the national reconciliation could be salvaged. That is very strong language by ASEAN standards. The Malaysian Foreign Minister, Syed Hamid Albar, said that the SPDC had to be serious about engaging the NLD. and Indonesia said that it had hoped that the implementation of a road map would be all-inclusive with the involvement of all groups with different ethnic and political orientation. ASEAN foreign Ministers had issued a communiqué last June calling for a peaceful transition to democracy and had offered help in drafting the new constitution. But according to the government-run newspaper, New Light of Myanmar, one of the objectives of the conference is
"for the tatmadaw [military] to be able to participate in the national political leadership role of the state".
General Khin Nyunt, the Prime Minister and designer of the road map, said at a meeting of the "ceasefire groups", which had demanded amendments to this objective, that the military wanted to play a political role along with other political groups. These ceasefire groups are former rebels from various ethnic minority communities. They did not accept the fiat issued by Lieutenant General Thein Sein, appointed by the military to chair the convention, that it would adopt the same six political objectives and 104 principles that were
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observed by the previous convention which had been so abruptly terminated by the regime in 1996, on the grounds that to do so would contradict the idea of the Union of Burma built on unity, equality and self-government. The participation by the military, they observed, was not in accordance with democracy, nor was it in keeping with the people's wishes. This was the view of minority groups which had made peace with the regime.
The UN special rapporteur, Paolo Sergio Pinheiro, noted that the three bodies which had been set up to prepare the reconvening of the national convention did not contain any representatives of the ethnic minorities. It was apparent that for the convention itself—for the photograph I saw—they managed to recruit a few stooges from ethnic minorities, but they were certainly not representative. As the report just published by Amnesty International on the Rohingya shows, the reality for that particular group of about 1 million people is that their very existence is denied because they are deemed not to be members of an ethnic group, they are ineligible for citizenship and thus presumably also for participation in the convention.
At the beginning of the 1990s there were about a quarter of a million Rohingya refugees in Bangladesh. Although most of those people subsequently returned in a repatriation programme sponsored by the UNHCR in 1994 and 1995, we questioned the voluntary nature of the returns at the time. Now there are reports of coercion being used against the 23,000 who remained in the refugee camps in southern Bangladesh. Medecines Sans Frontieres, which blew the whistle on a previous occasion, says it had 550 complaints of intimidation of these refugees during 2003 from people who were still afraid to return. Since it would appear that once again the UNHCR is alleged to be providing inadequate protection for these people, and since the UK is a member of Excom, the governing council of UNHCR, we should demand an independent investigation of the situation in those two camps to make sure that the returns are purely voluntary.
It is important that we should be seen to stand up for the rights of this particular minority, which is Muslim, as has been mentioned. It is sometimes alleged that Europe and the US are less interested in the human rights of Muslims, and we must demonstrate that our concerns are just as great for the rights of all oppressed peoples, whatever their religion.
The Karen National Union has been mentioned. It has been engaged in armed struggle against the stale in support of its demand for a federal union of nationalities since 1950. It boycotted the convention. The Karen is the largest minority—perhaps 5 million people out of a total population of 42.5 million. Therefore, to ignore them is a fatal mistake on the part of the regime. The Shan Nationalities League for Democracy won the second largest number of seats in the 1990 Parliament and it too is boycotting the convention, in common with the United Nationalities Alliance.

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Those political parties, together with the NLD, represent over 90 per cent of the seats won in the 1990 Parliament. If there was a genuine transition to democracy, there would have to be proper mechanisms of consultation which would involve people on the ground, rather than a closed meeting of 1,000 or so hand-picked delegates, closely supervised by the military and told when to get their hair cut and exactly how they were to behave in the convention. If they had agreed to participate, all those parties together would have been allocated less than 1 per cent of the convention membership.
The special rapporteur has already said, as tactfully as he could, that the SPDC has got its road map in the wrong order. The first step should be to lift restrictions on freedoms of expression, movement, information, assembly and association, and the repeal of security legislation, so as to create an enabling environment in which political parties, ethnic nationalities and civil society could debate constitutional ideas and the methodologies that are necessary to implement those which gain most support. Any constitution which is foisted on the people as a result of the secret conclave now taking place would have no legitimacy, and would tend to harden the division between the military clique at the centre and the ethnic minorities at the periphery of the state.
It has been mentioned that in 2006, Myanmar is scheduled to assume the chair of ASEAN. That will be impossible without progress towards the restoration of civilian rule. Prime Minister Khin Nyunt appears to recognise that, according to a report by the International Crisis Group. The ICG believes that any new constitution must allow for the development of strong civilian institutions and must foster local autonomy and ethnic rights. Yet it acknowledges that achieving these goals, which are necessary if the increasingly serious humanitarian problem is to be solved, means that the army has to give up its power and privileges. Even if Khin Nyunt genuinely felt that this was the right course for him to take, he would not necessarily be able to take the hardliners in the military with him.
I tend to agree with the ICG that we will not solve the problem by threatening even stronger sanctions than the Americans have already imposed if, indeed, we could persuade the EU to go along with us in that policy. But we might possibly get somewhere—here I go along with the noble Baroness, Lady Flather, to some extent—if we could persuade the regime to adopt a genuine road map so that it becomes an authentic means of getting to free and fair elections, human rights and the rule of law. That is not to say that we should relax any of the existing measures that we have taken against the regime or, through our bilateral relations with the neighbours, the pressure that we can exert through the EU-ASEAN forum and, particularly, our links with China, which have most influence on the regime. Perhaps the use of a carrot might provide an alternative way forward as the ICG suggests.
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We always say that Myanmar is unique in that it is the only dictatorship with which there is no dialogue. But, for the first time, in 2003, Amnesty International was allowed into the country on a mission. There has been engagement with the special rapporteur. There is still some chance that the ILO will be able to make progress on the issue of forced labour, although I acknowledge that so far it has not secured the cooperation that it had hoped for.
The Bangkok Process has not yet been mentioned. It has stalled for the moment with the regime's postponement of the meeting that was supposed to take place at the end of April, but it still involves dialogue between the SPDC and regional partners, together with the UN special envoy. We should develop a European strategy for supporting those initiatives in a coherent way and for agreeing our own benchmarks to go further than those of the Bangkok Process and offering Myanmar, if she wishes to take it, a phased return to international respectability.
10.2 p.m.
Baroness Rawlings: My Lords, I, too, should like to add my warm appreciation to my noble friend Lady Cox on securing the debate. I would also like to pay tribute to her for the dedicated work that she does in this field. As always in your Lordships' House, the debate has been both informed and detailed with many noble Lords enlightening us with their expertise.
As we have heard, there is no doubt that the regime in Burma continues to be an oppressive military dictatorship that shows nothing but disdain for the human rights of a peaceful and decent people. Indeed, that situation has been clearly spelt out many times during debates and Questions in this House.
The human rights report of 2003, issued by the Foreign Office, states:
"Human rights violations in Burma continue to be widespread and systematic and the Burmese ethnic minority groups suffer disproportionately.
Noble Lords on all sides agree that Burma's human rights record is marked by consistent abuses and broken promises of reform while routinely detaining large numbers of political prisoners—as we have heard, sometimes they are elderly people—who are often held in appalling conditions. Today, those abuses have been outlined in great detail and with considerable passion by noble Lords. I shall not attempt to repeat them.
In the short time that I have available, I believe that it is vital that we examine how best to resolve this ongoing issue. It is true that some progress has already been made. I recognise the work that the Government have done in that regard. We take note of BAT's decision last year, and Premier Oil's decision before that, to pull out of Burma. We are aware that that sends a very clear message to the regime.
We also take note of the ongoing efforts of the Burma Campaign UK, which does so much to keep Burma in the public debate. We welcome, too, the recent ceasefires that have been agreed and those that have been discussed by the Burmese military regime

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and the country's various rebel groups—most recently the Karen National Union and the Karenni National Progressive Party. But of course, much more can and must be done.
In a recent Westminster Hall debate on Burma, my honourable friend the shadow Foreign Affairs Minister, Richard Spring, set out the case for targeted sanctions. Many argue, though, that it is wrong and unproductive to demonise maverick states. It does favours to no one and does not solve the problems, as stressed by my noble friend Lady Flather.
I have visited Burma on several occasions since the mid-1980s and have seen the marked improvements in many aspects since the old communist regime was in power. I fully understand, too, the horrors that my noble friend Lady Cox described, and anything we can do to help change the situation should be welcomed. However, two wrongs do not make a right, and we should not forget that several other countries exist around the world with fairly similar regimes, yet the Government seem quite happy to continue to turn a blind eye to them. My noble friend Lady Flather interestingly and forcefully suggested that dialogue could be more successful than isolation. Of course, nobody is suggesting that we should impose sanctions that would affect the lives of the people of Burma, but some specifically targeted sanctions, as I mentioned earlier, could be looked at.
In answering the noble Baroness, Lady Williams of Crosby, on 9 March 1998 regarding international sanctions, the Minister rightly said,
"wherever possible, sanctions should be targeted to hit the regime rather than ordinary people. Recent sanction regimes have included humanitarian exemptions to minimise the impact on the civilian population. We are always open to suggestions on how sanctions can be better targeted to achieve maximum impact".—[Official Report, 9/3/98; col. 9.]
What is the Government's present view?
I followed up that day with a question which I repeat, asking,
"what assessment does the Minister make of the United States concept of consistent principles and flexible tactics depending on national interests and strategic relationships, which allows the United States to impose sanctions on countries such as Burma and the Sudan but which confers most favoured nation status on China? In the light of their ethically driven foreign policy, do the Government agree with that position?".—[Official Report, 9/3/98; cols. 10–11.]
While welcoming the unilateral action of the British Government, it is also important that we acknowledge the pressure that the wider international community can bring to bear. Recently, the EU has strengthened its common position on Burma, seeking to broaden and strengthen the assets freeze and travel ban measures, further tightening the arms embargo and economic sanctions. It is often said that travel bans are not necessarily a successful method of putting pressure on regimes. I am sure that noble Lords on all sides would be interested to hear what the exact impact of the EU sanctions has been. Perhaps the Minister could take this opportunity to outline the total value of assets frozen EU-wide and also specifically in the UK.
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Did Her Majesty's Government receive a report from the 17 May convention held outside Rangoon? Little has been mentioned in the press, as the noble Lord, Lord Alton, has said. Will Her Majesty's Government be providing aid to the IDPs, estimated to be around 1 million, who are near the border, as mentioned by my noble friend Lady Cox and the noble Lords, Lord Chan and Lord Avebury? Does the Minister see a role here for the United Nations? Now is the time for Britain to show real leadership on this subject. It is time to press for a UN Security Council resolution.
Burma is a wonderful, stunningly beautiful country. steeped in history, at many times turbulent and riven with great cruelty but, none the less, with great potential. We surely have a responsibility through our past involvement with this country and our present knowledge of its people's troubles to try our utmost in a positive way to help the people towards a better life.
10.10 p.m.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, I first thank the noble Baroness, Lady Cox, for raising this important issue and all noble Lords who have contributed so eloquently to our debate.
When we discussed human rights in Burma on 13 May, I expressed scepticism about the military regime's willingness to organise a national convention that would be genuinely inclusive. At that time, I said that we would be in a better position to make a judgment about whether this was a genuine initiative in the following weeks. I regret to say that, since the convention opened on 17 May, our scepticism has deepened considerably.
I would first like to take the argument put forward clearly, eloquently and with great conviction by the noble Baroness, Lady Flather. When she argued that there were "faults on both sides", she missed the essential point of the argument. I agree very much with what the noble Lord, Lord Alton, said. The difference is that, in 1990, there was an election in Burma and the Burmese people elected—in what was deemed to be a genuine election—Aung San Suu Kyi as their leader. I do not know whether this case is unique in the world—when an elected leader is not allowed to take up office and even imprisoned, as she has been. If it is not unique there must be very few regimes around the world where such a thing has happened. Although the Burmese people have a leader, that leader is not allowed to lead them. That goes to the heart of the argument about Burma.
It would be helpful if I set the national convention in the context of recent political developments in Burma. On 30 August last year, General Khin Nyunt of the State Peace and Development Council—the ruling junta—announced a seven-step road map to build what was described as a "modern prosperous democratic state". The first step of the road map was the convening of the national convention to draw up the new constitution. The convention opened on 17 May at an isolated, heavily guarded site outside

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Rangoon which is closed to outsiders. The rules and regulations governing the convention delegates remain heavily restricted, which is hardly a promising start, as the noble Lord, Lord Chan, argued so persuasively.
Our embassy in Rangoon maintains regular contact with community leaders from the ethnic nationalities, as I hope the noble Baroness, Lady Cox, knows. We are in touch with those who have delegates participating in the national convention. According to the SPDC, a total of 1,088 delegates are participating and they cover eight groups, including representatives from minor political parties, ceasefire groups, the national races and workers and state service personnel. However, I should emphasise that 90 per cent of those individuals have been appointed by the SPDC, so the noble Lord, Lord Avebury, was quite right when he argued so persuasively that, by no stretch of the imagination can the convention be described as genuinely inclusive or genuinely representative of the wishes of the people of Burma.
No significant elected representatives are taking part in the convention. As noble Lords would expect, our embassy is also in touch with the elected politicians who have chosen not to take part in the convention. Those include the Shan nationalities, whom the noble Baroness, Lady Cox, mentioned, the United Nationalities Alliance—the group that covers a number of different ethnic parties and, most importantly, the National League for Democracy, which announced on 14 May that it would not participate in the convention.
My honourable friend, Mike O'Brien, the Minister of State at the FCO, made it clear in his press statement, which was issued on the same day, that we fully respect the NLD's decision, which would not have been taken lightly. I hope that that answers the seventh question asked by the noble Baroness, Lady Cox, on the acceptability of the convention. If the convention is to be meaningful, it is absolutely essential that delegates should be able to discuss key issues such as the future role of the military in Burma, for example. The noble Lord, Lord Alton, was quite right. The SPDC refused to release the NLD's general-secretary, Daw Aung San Suu Kyi, and its vice-chairman, U Tin Oo, from house arrest. When the noble Baroness, Lady Flather, says that Aung San Suu Kyi chose not to go, the fact is that she was not released from house arrest. The noble Baroness must take that point on board. They have both been detained since the regime-sponsored attack on the NLD's convoy in northern Burma on 30 May last year. The SPDC also refused to allow the reopening of the NLD offices throughout Burma.
Baroness Flather: My Lords—
Baroness Symons of Vernham Dean: My Lords, we have very little time and I have a lot of points to answer, if the noble Baroness will be so kind.
The SPDC has ignored the views of the Burmese people, as expressed in the 1990 election, as well as the recommendations and the expectations of the
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international community, including the Secretary General of the United Nations and his special envoy to Burma Tan Sri Razali Ismail.
The noble Baroness, Lady Cox, argued, in effect, that there is a policy of something approaching cultural genocide against the ethnic minorities in Burma. Although the convention meeting has only just reopened, despite the alleged desire for a democratic state, reports indicate that the SPDC is determined to put in place a strongly centralised model of government. It wants control of mineral, gem and timber resources as well as education and school curricula. We know that the ethnic groups are against this and they are particularly keen to re-establish the teaching of local languages, which was abolished after 1974. The current proposals also give the regime the right to terminate or relocate villages if it is "in the public interest". This is bound to be a sensitive issue in the ethnic areas, which have already seen large-scale forced relocation, as the noble Baroness argued.
The noble Baronesses, Lady Rawlings and Lady Cox, and the noble Lord, Lord Alton, who I thought spoke very movingly about his personal experiences in Burma, talked about the internal displacement in Burma. There are about 140,000 refugees, mostly from the Karen and the Karenni states, living in camps on the Thai/Burmese border. As many as 1 million live as illegal immigrants in Thailand and many of the illegal migrants are from the Shan state. Approximately 20,000 refugees from Muslim and Rohingya ethnic groups live in camps in Bangladesh and there are 630,000 internally displaced refugees within Burma itself.
In her fifth question, the noble Baroness, Lady Cox, asked about opening all parts of Burma to human rights observers. Although ceasefire negotiations have started between the Karen National Union and the State Peace and Development Council there is no evidence, so far, to suggest that the environment is right for the safe return of Karen refugees. The UNHCR has only recently made a first reconnaissance visit to assess the situation in one part of south-east Burma. It will be making further visits in forthcoming months.
In her third question, the noble Baroness asked specifically about the Thailand, Bangladesh and India angle. We remain of the view that the border areas of Burma remain too unstable to encourage or force the return of refugees. Although Thailand, India and Bangladesh are not signatories to the 1951 refugee convention, they do work closely with the office of the United Nations High Commissioner for Refugees to provide appropriate protection to refugees and to ensure that they are not forced into that position. Obviously, we fully support the work of the UNHCR and the Governments of Thailand, India and Bangladesh in trying their best to protect the Burmese refugees.
In her fifth question, the noble Baroness asked about access. I hope that I have given her the indication that we do not believe that it is yet safe for full access across Burma. The noble Lord, Lord Chan,

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and other noble Lords were also very interested in DfID assistance. The United Kingdom is the largest EU donor of humanitarian assistance. DUD provides humanitarian assistance to help those displaced by funding the Burmese Border Consortium, the International Committee of the Red Cross, the World Health Organisation, UNICEF and UNHCR. The UK also provides support through the European Commission and for the repatriation and reintegration of refugees.
As I have been able to indicate to noble Lords on a previous occasion, one of DfID's major priorities is supporting the prevention and awareness of HIV/ AIDS through a UN-coordinated programme in Burma. I can send details to those of your Lordships who would be interested in that. The matter was not specifically raised in the debate so I shall not dwell on it.
Cross-border programmes are another issue. We are aware that some NGO groups undertake cross-border assistance from Thailand. We have not so far supported those through DfID as we do not have access to the areas where these people live and are not able to monitor what is really going on and evaluate the proper use of funds. However, DfID's policy is to fund only transparent and accountable humanitarian assistance. I am very happy to discuss that further with the noble Baroness if she would find that helpful.
The noble Baroness was quite right to raise the question of religious persecution, as were the noble Lords, Lord Chan and Lord Avebury. Despite a background of general religious tolerance in most areas, there remain instances of restriction on the right to religious freedom. But I assure the noble Lord, Lord Chan, that we have condemned that in successive highly critical UK and EU-sponsored UN resolutions, most recently at the UN Commission on Human Rights on 21 April.
The noble Baroness, Lady Cox, also spoke about child soldiers. Burma is reported to be the world's single largest user of child soldiers, a truly awful record. Most are forcibly recruited in rural areas, and UNICEF estimates that as many as 70,000 child soldiers are currently in the Burmese army. We have sponsored UNGA and UNHCR resolutions on this,
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most recently in January 2004 when the UN Security Council passed a resolution on children affected by the conflict.
The noble Lord, Lord Alton, was quite right in the points that he made about rape. However, I want to turn to the issue of ASEAN. We welcome the ASEAN action calling for the full release of Aung San Suu Kyi and national reconciliation in Burma. We believe that all Burma's regional neighbours have a role to play in this and we will continue to raise our concerns on this with the Burmese authorities.
I say to the noble Baroness, Lady Flather, that the reason we have the trade policy with Burma that we do—I cannot go into detail because time is against me—is that it is the policy that Aung San Suu Kyi, the elected leader of the country, has asked us to pursue. We favour multilateral sanctions wherever possible. We will continue to support multilateral action through the EU's common position. I stress to the noble Baroness, Lady Rawlings, that that is an EU position that has been agreed among us all. We follow that policy, and it is slightly different, of course, from that of the United States of America.
Her Majesty's Government remain committed to helping Burma to achieve national reconciliation. We have repeatedly called on the regime to release immediately Daw Aung San Suu Kyi as well as all political prisoners and to reopen the NLD's offices. We believe that a lasting settlement to Burma's problems can be reached only by all parties working together, and of course Aung San Suu Kyi has a crucial role to play in that.
So together with our partners in Europe we will be closely monitoring the situation, and we will respond proportionately. I stress that point to the noble Baroness, Lady Flather, who I know has very strong views on this. Recognising the public calls by certain Asian countries on the SPDC to make the convention fully inclusive, we hope that all Burma's regional neighbours will follow suit. For the sake of Burma and its people—who have suffered years of oppression and economic decline—we want to ensure that there is a real opportunity for progress and that genuine reconciliation is a goal to which everyone in Burma can look forward.
I thank your Lordships for your participation this evening.
House adjourned at twenty-three minutes past ten o'clock.