Lords Sitting of 18 October 2004

Preamble
The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Derby.

Proof of Age Standards Scheme
Baroness Gardner of Parkes Baroness Gardner of Parkes asked Her Majesty's Government:
What progress has been made in establishing a single national proof of age scheme for young persons.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): My Lords, the Government welcome the steps taken by the British Retail Consortium and the excellent progress made in establishing the proof of age standards scheme. The Government are pleased that the retailers are increasingly asking for ID for age-restricted purchases. We believe that measures such as the PASS scheme, which will have issued 1.5 million standard cards by next June, is an effective way in which to proceed in advance of a national ID cards scheme.
Baroness Gardner of Parkes: My Lords, I thank the Minister for that Answer, especially as he answered the same Question for me more than two years ago. He was then hoping for progress—clearly it has now happened. Does he believe that these cards, which are in common use in other parts of the world, would help to reduce binge drinking in the underage? Does he have any comment on the lottery's announcement last week that people will be able to buy their lottery tickets by text? How will anyone establish the age of the people buying those tickets?
Lord Rooker: My Lords, on the first point, binge drinking is a serious problem, but I am not sure that it is age related. If there is serious binge drinking among the underage, that is one issue; but the vast majority of those involved are those in their early 20s, who can go legally into pubs. There are strategies relating to alcohol-harm reduction and dealing with what is known as "vertical drinking establishments". I first heard that phrase uttered by a senior police officer at a Home Office briefing some time ago, and I know that the Home Secretary used it in the Commons. I myself had to ask what vertical drinking establishments were, and it was explained to me, as were the problems that they cause.
A noble Lord: So what is it?
Lord Rooker: My Lords, basically, it is a place where one stands up and drinks all night—without the sawdust on the floor.
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The issue of underage drinking needs to be dealt with separately from the problem of binge drinking. I do not see a reaction there, although they are both serious issues.
On the noble Baroness's second point about buying lottery tickets by text, I understand that it will work only with people aged over 16 who are resident in the UK and have a valid UK debit card. Only they will be entitled to play and will be able to buy through the interactive channels. So there are ways in which to validate the age, identity and the correct debit card details. Camelot has been accredited by interactive age check, by Citizen Card. The National Lottery website has been accredited by GamCare, which is the UK's national centre for information, advice and help regarding the social impact of gambling. So there looks to be checks in place; it will not be possible simply to text away to buy lottery tickets without one's identity and age being known.
Baroness Walmsley: My Lords, given that a person using a fake proof of age card commits an offence if it is used to deceive, and that the recent media coverage of the issue tells us that the worst that happens to young people who try that is that they are simply refused entry or refused to be served, what are the Government doing to encourage the trade not only to ask for proof of age cards but to report an offence to the police if it appears that there is anything suspicious about the card—and to take the card away? Those cards do not come free on the Internet. The companies selling them may not technically be committing an offence, but they are selling them in order to deceive and for people to commit an offence.
Lord Rooker: My Lords, I do not know the specific answer to the noble Baroness's question. By and large, the idea of the card is to prevent someone who is underage purchasing a particular age-related product, whether it is alcohol, gambling or fireworks. The main thing is to stop the purchase, if it is an age-related issue. A "no ID, no sale" campaign has been run and has reached 100,000 retailers. Quite fortuitously, before I knew about this Question, I was at a garage that sold all kinds of things, and I heard the person behind the counter ask someone about their proof of age. I had not heard that before, or had not been conscious of it happening. So retailers are asking that question—and refusing the product is the key target that we are after. Clearly, if people are committing an offence by forging the cards, that is another issue, but it is not the main issue.
Lord Hodgson of Astley Abbotts: My Lords, could the Minister follow up the noble Baroness's question? Is he aware that the cards are available on the Internet for £15? The Government must take some steps to inhibit their purchase, or it will undercut completely any national scheme.
Lord Rooker: My Lords, the scheme has been established by the British Retail Consortium. I Pay credit where it is due to that body, which has set up the

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scheme. It is being phased in in an extremely efficient manner. Currently, there are nearly 750,000 proof of age standards scheme cards in circulation, and there will be 1.5 million by June next year. Twelve other schemes have received accreditation from that scheme, with CitizenCard issuing 3,000 a week. The Portman Group, which deals with the alcohol industry, will have issued 35,000 cards by the end of the year, and Connexions more than 300,000 cards.
I am not saying that being able to buy cards off the Internet is not an issue, but it is not the main issue—the main issue is to stop underage purchases of age-related products. People who are stealing and forging cards, as with other such offences, will have to be apprehended and caught and appropriate action will have to be taken. But the key issue with the cards is to protect young people from the purchase that they might seek to make.
Lord Tebbit: My Lords, I understood the Minister's reference to vertical drinking, or, come to that, leaning over drinking and eventually horizontal drinking, but did he refer to virtual drinking? What is that and is it available in the Bishops' Bar?
Lord Rooker: No, my Lords, I did not.

Islamabad: British High Commission Visa Section
2.42 p.m.
Lord Ahmed Lord Ahmed asked Her Majesty's Government:
What progress has been made towards improving the efficiency of the service provided by the visa section in the British High Commission in Islamabad, Pakistan.
Baroness Crawley: My Lords, the visa section in Islamabad closed in May 2002 in response to security concerns. Since then we have worked towards the restoration of a full service. On 4 May 2004, the visa service was extended to all applicants except those applying as working holidaymakers. Because of exceptionally high levels of demand, a restriction has again had to be imposed. Applications from first-time visitors under the age of 25 are not currently being accepted. Her Majesty's Government are working hard to restore a full service as soon as possible, including by increasing the number of entry clearance officers.
Lord Ahmed: My Lords, I thank my noble friend the Minister for her reply. Is my noble friend aware that our visa section in Islamabad is the most under staffed and under-resourced yet the most profitable in terms of the income generated from visa applications? Does she agree with me that the visit visa waiting time is unacceptably long and that an urgent review is needed to improve this service? Will Her Majesty's Government undertake to investigate claims of alleged
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unscrupulous agents who are selling false documents and who are colluding with Gerry's FedEx staff? This is making it difficult for genuine visitors and is giving a bad name to Pakistan.
Baroness Crawley: My Lords, as my noble friend will know, as he takes a great and detailed interest in the situation in Islamabad, the situation there is under constant review with the aim of restoring a full service in all categories as soon as circumstances allow. UK visas, the directorate that runs the visa department, has recently increased the number of entry clearance officer slots posted in Islamabad but it will take time to get staffing right. Both staffing numbers and productivity have increased. We are committed to offering customers in Pakistan the best service possible. Islamabad is currently accepting applications in all categories except for those under 25 applying as first-time visitors and working holidaymakers. Islamabad is handling 900 to 1,000 applications a day, equivalent to 220,000 a year, which is up from 120,000 last year. As regards the allegations of wrong-doing that my noble friend mentioned, if he will give me evidence, I shall certainly take it up with the department.
Baroness Falkner of Margravine: My Lords, does the Minister agree that suspension of visa facilities for people under 25 sends a very adverse signal to a fellow Commonwealth country at a time when soft diplomacy and friendship should be the way that we approach our relations with Pakistan? Does the Minister also agree that the problems in Islamabad are compounded by the fact that consular services in Lahore—a city of more than 7 million people with a geographical proximity to many areas where visitors to the UK, particularly family visitors, would be coming from—have still not been re-established, and that that is part of the problem in Islamabad?
Baroness Crawley: My Lords, I thank the noble Baroness for her question. As she will know, applications from those under 25 who have not travelled before are highly resource intensive because they all need to be interviewed. That is why there is a restriction on that category. About half of those applications are refused as they fail to meet the requirements of the Immigration Rules. That is the problem with that category. However, we hope to reintroduce applications in that category as soon as possible. The noble Baroness will know that the visa office in Lahore was situated in a hotel which posed a real security problem for our staff there. However, she will also know that the Karachi office has now reopened and that there is a limited service there. As I said to my noble friend, we hope to be able to reopen a full service as soon as possible. We welcome all genuine applications to the United Kingdom and there is no limit on the number of people who wish to apply.
Lord Tomlinson: My Lords, does my noble friend agree that a very large number of people under 25—the category that she says are automatically refused—will be seeking to undertake their higher education in the

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United Kingdom? Is it not completely regrettable that we are saying to people from Pakistan—this seems to be the gist of my noble friend's Answer—that they cannot receive their higher education in this country, or are separate arrangements made for students?
Baroness Crawley: My Lords, I reassure my noble friend that separate arrangements are being made for students. Islamabad has just been through the peak period for student visas. Demand for student visas has been twice that of last year. Resources were, therefore, shifted to deal with this increased demand so that students would be able to arrive for the beginning of the academic year. I hope my noble friend will be pleased to hear that a dedicated student task-force in Islamabad works with FedEx and with the British Council and seven accredited agents to fast-track the most genuine student applications within seven days.

Government Borrowing
2.49 p.m.
Lord Barnett Lord Barnett asked Her Majesty's Government:
Whether they expect the Chancellor of the Exchequer's golden rule on government borrowing to be broken.
The Parliamentary Under-Secretary of State, Department for Culture Media and Sport (Lord McIntosh of Haringey): My Lords, Budget 2004 showed that the Government are on track to meet both the golden rule and the sustainable investment rule over the economic cycle. An interim forecast update for the public finances will be set out in the 2004 Pre-Budget Report in the usual way.
Lord Barnett: My Lords, I thank my noble friend for that reply. In view of the importance of the matter I take it that we will have the Pre-Budget Report in this Session rather than the next.
I am sure my noble friend must be aware that many independent forecasters have suggested that the rule will be breached. If there were to be a temporary breach—and independent forecasters are frequently wrong—is it the Chancellor's view that his economic policy would not change and that the taxation and public expenditure policy would remain the same?
Lord McIntosh of Haringey: My Lords, as my noble friend says, the independent forecasters are frequently wrong. Their average has consistently been worse than the Treasury's predictions. Of course I listen to what the IFS says, I listen to what the Ernst&Young ITEM Club says, I listen to all the others and I go away and make my own judgments. I listen to the Treasury's judgments as well.
As for a temporary blip in the golden rule, my noble friend Lord Barnett does not need to be reminded that borrowing was over the 3 per cent rule last year and
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ECOFIN decided that that breach of the golden rule was not excessive for reasons which are very much in line with our view of the stability and growth pact.
Lord Dixon-Smith: My Lords, I understand the golden rule in a limited way, but it depends on the economic cycle about which I have some uncertainty. Can the Minister tell the House the date on which the economic cycle began and the date on which it ends?
Lord McIntosh of Haringey: My Lords, the generally accepted view is that the current economic cycle started in the fiscal year 1999–2000 and will finish in the fiscal year 2005–06. In Budget 2004 we said that in that economic cycle we expect to be in credit by 0.1 per cent. If it is any consolation to the noble Lord, Lord Dixon-Smith, we expect that to continue until 2009.
Lord Newby: My Lords, given that there has been a lot of concern about the possibility of the Chancellor massaging the definitions to make sure that the Treasury keeps within the golden rule, will the Government consider establishing a fiscal policy committee—broadly analogous in some respects in terms of its independence to the Monetary Policy Committee—which could audit the assumptions which underlie the forecasts against which the golden rule is measured?
Lord McIntosh of Haringey: My Lords, I have heard those allegations. But since the House of Commons Treasury Committee—which is not notable for being subservient to the Treasury—said in the face of those allegations that the substance of the golden rule has not changed, we can avoid having an extra committee.
Lord Sheldon: My Lords, is not the life of the economic cycle rather more uncertain than my noble friend suggests? The beginning of the economic cycle can be assessed with some degree of confidence, but the end of the cycle some years hence is not known. As a result of this it is bound to be somewhat indeterminate. This gives the Chancellor of the Exchequer little leeway in meeting his forecasts.
Lord McIntosh of Haringey: My Lords, I agree that nothing is certain. No economist would say otherwise.
In responding to the noble Lord, Lord Dixon-Smith, I said that not only do we expect to be in surplus in the generally accepted definition of the current economic cycle which is to finish in 2005–06, but for the three or four years following that.
Lord Skelmersdale: My Lords, at the beginning of the cycle to which the noble Lord, Lord McIntosh of Haringey, referred, the Chancellor built up credits. Those are now being expended at a rate of knots. If this cycle goes on longer, will not those credits be totally used up and will we not start the next cycle with a deficit?
Lord McIntosh of Haringey: My Lords, that is precisely the point that I rebutted in my previous answer. I am not going to start making intermediate forecasts. We did this with Budget 2004 and we will do it again with the Pre-Budget Report.
Lord Peston: My Lords, why did my noble friend not point out that this is a matter of elementary arithmetic? Balance over the cycle means some years plus and some years minus. I cannot imagine what the Opposition think they are on about in suggesting that there is something wrong if we go in to a minus year. There will always be some minus years and some plus years. That is what balance means.
Lord McIntosh of Haringey: My Lords, my noble friend Lord Peston is arithmetically, logically and rationally correct. The point that the noble Lord, Lord Skelmersdale, was attempting to make was that if it was good at the beginning and bad at the end that did not bode well for the coming period. I had already rebutted that argument in my answer to the noble Lord, Lord Dixon-Smith.

Sudan: Darfur
2.55 p.m.
Lord Alton of Liverpool Lord Alton of Liverpool asked Her Majesty's Government:
What is their latest assessment of the number of people who have died or been displaced in Darfur, Sudan.
The Lord President of the Council (Baroness Amos): My Lords, the UN estimates that 1.45 million people have been displace within Darfur and a further 200,000 have fled to Chad. The World Health Organisation estimates on the basis of surveys that the number of displaced who have died in Darfur from disease, malnutrition and violence since March is between 35,000 and 70,000.
Lord Alton of Liverpool: My Lords, has the Minister had a chance to reflect on the harrowing first-hand accounts of ethnically motivated killings, rape, burnings and lootings that I handed her last week after I returned from Darfur?
Notwithstanding the welcome intervention of the Prime Minister, does she agree that the abject failure of the international community to enforce two chapter seven resolutions, one of which requires the disarming of the Janjaweed militia by the end of August, and the failure to galvanise a calibrated and coherent response to a regime that believes it can act with impunity—such as targeted oil sanctions, an enforced no-fly zone, a clear mandate and logistical support for the African Union presence—are at the heart of the unfolding genocide and human catastrophe in Darfur?
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Since we last discussed this matter four weeks ago, a further 20,000 people have died according to the World Health Organisation. What has to happen before the world community acts decisively?
Baroness Amos: My Lords, I have had a chance to look at the report that the noble Lord, Lord Alton, gave me and I thank him for giving me early sight of it. The whole House would want to thank the noble Lord for his work in this area.
However, I cannot agree with the noble Lord's conclusions. I entirely agree that grave crimes against humanity have been committed in Sudan. The amount of attention that has been given to Sudan by this Government, the United States and the UN is an indication of the seriousness with which we view the unfolding crisis there.
The noble Lord knows that the UN Secretary-General has established a commission to look at whether or not the crisis in Darfur should be labelled a genocide. But I repeat what I said before in this House: the labelling makes no difference to the action that is being taken by the UK Government. We are the second largest bilateral donor, we have been engaged in Sudan over many years, we have worked with the Sudanese and those in the south to bring long-term peace to Sudan and we have worked with the United Nations and the AU to ensure that what the Sudanese have committed to is put in place so that the security environment is such that the aid agencies can effectively operate in Darfur.
Baroness Williams of Crosby: Mr Lords, I offer my congratulations to the noble Lord, Lord Alton, on his very full report. I would like to pursue a little further what the Minister has said.
Given that there is a willingness on the part of Nigeria in particular and also of Rwanda to provide some additional African Union troops in the Darfur region of Sudan and that the problem for the Sudanese is finding the money for equipment—in particular, for heavy lift equipment—that they do not have, would Her Majesty's Government consider calling upon the other wealthy members of the international community to fund a much more substantial African Union force in Darfur? Can the Minister also respond on the question of the rules of engagement, which currently limit the small number of forces there to protecting only monitors and not civilians?
Baroness Amos: My Lords, an expanded AU mission is scheduled to take four months. The deployment of approximately 800 AU personnel—including monitors, force protection and some police—has been brought forward as an emergency deployment for the last week of October and the beginning of November.
However, the noble Baroness was right to criticise the overall response of the international community. She may be aware that the UN appeal for Sudan has been only half met and we have been pressing our EU and other colleagues to contribute to that. The noble

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Baroness will be pleased to know that the United States has offered assistance with heavy lifting and other equipment which the AU force may require.
Baroness Rawlings: My Lords, does the noble Baroness agree with the UN envoy to Sudan that,
"the security situation in Darfur has not seen improvement since the beginning of October",
as we heard from the noble Lord, Lord Alton? What additional pressure are the Government putting on the Sudanese Government to prevent the obstruction of humanitarian assistance? As a result of the dire situation and the fact that Mr Jan Pronk said that he has 16 more days to submit his monthly report to the UN Security Council which will decide whether to impose sanctions, do Her Majesty's Government support the imposition of sanctions?
Baroness Amos: My Lords, I agree that the security situation is dire. That is one of the reasons why when my night honourable friend the Prime Minister visited Sudan he agreed with the Sudanese Government a five-point plan. That included the Government of Sudan notifying the AU of the location of their forces, including their aligned militias; confining the forces in defined locations; and a rapid conclusion to the longer term comprehensive peace agreement.
With respect to sanctions, the noble Baroness will know that four countries abstained on the most recent UN Security Council resolution on Sudan because of their concerns about the use of sanctions. The noble Baroness will also know that we were one of the countries which sponsored that resolution.
Lord Holme of Cheltenham: My Lords, the noble Baroness spoke of the African Union. Does she agree that the passivity of the Arab League in the face of the wholesale massacre of African Muslims by Arab Muslims is a scandal? What exactly are Her Majesty's Government doing to bring pressure to bear on the Arab League and its member countries to treat these horrors seriously?
Baroness Amos: My Lords, the noble Lord is right in saying that the AU has sought to play a substantial role in Sudan. We must remember that some of the difficulties being experienced by the AU force result from the fact that this is the first time it has done anything similar. We, European Union members and others are giving it considerable support.
The noble Lord may be aware that there was a meeting of the Arab League in Libya yesterday which included Egypt. With respect to the Arab League taking a more overall approach, we would like to see that encouraged. It would go side by side with the role that the African Union as a whole is playing in Sudan.
Lord Williamson of Horton: My Lords, does the noble Baroness agree that there has been some intimidation and imprisonment of staff of non-governmental organisations in this area and that they do not have freedom of movement because they must
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first obtain travel permits? Can the British Government put particular emphasis on this point, which seems quite unjustified?
Baroness Amos: My Lords, perhaps I may first express my condolences to the families of the two aid workers who were tragically killed in Darfur last weekend. Yes, there has been intimidation of NGO staff and it is one of the issues about which we were concerned in obtaining greater access for staff of NGOs. My right honourable friend the Secretary of State for International Development picked up this issue on his visit to Sudan and secured greater humanitarian access and my right honourable friend the Foreign Secretary secured greater access for human rights agencies. It is an issue that we continue to press in our bilateral relations with Sudan and also through the EU and Sudan.
Lord Elton: My Lords, the figures put forward by the noble Lord at the beginning of the debate made us feel that we are watching a huge disaster in slow motion, inevitably unfolding before our eyes. Can the noble Baroness tell us what pressure is being put on those powers which refuse to support oil sanctions to apply the same criteria to this country as have been applied to Iraq in the recent past? Furthermore, what is being done to increase our support for the AU intervention on the lines suggested by the noble Baroness on the Liberal Front Bench?
Baroness Amos: My Lords, the noble Lord, Lord Elton, is right. Different countries take different positions on their negotiating line depending on the country that is being discussed within the UN Security Council. That is one of the reasons why a great deal of frustration is being expressed not only in this House but elsewhere on the slowness of progress. It is not because the international community has not committed to taking the necessary action in Sudan; it is about applying the pressure in the right places to ensure that the decisions taken are implemented.
We continue to work with those countries which take a view different from ours and we continue to try to persuade them to see things as we do. However, it is most important that at this time the channels we have with the Government of Sudan remain open. Noble Lords may wish to consider what might happen if those channels were closed, which may be even more disastrous than what is happening now.

Business
Lord Davies of Oldham: My Lords, with the leave of the House, at a convenient moment after 4 p.m. my noble friend Lord Bach will repeat a Statement which is being made in another place on UK forces in Iraq. Following that, with the leave of the House, my noble friend Lord Filkin will repeat a Statement on the response to the Tomlinson working group on 14 to 19 reform.

Constitutional Reform Bill [H.L.]
3.8 p.m.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): My Lords, I beg to move that the House do now again resolve itself into Committee (on Recommitment) on this Bill.
Moved, That the House do now again resolve itself into Committee (on Recommitment)—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
House in Committee (on Recommitment) accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 41 [Minister's duty]:
Lord Maclennan of Rogart Lord Maclennan of Rogart moved Amendment No. 88BPD:
Page 15, line 36, leave out "Minister" and insert "President of the Supreme Court"
The noble Lord said: The group of amendments standing in my name and that of my noble friend Lord Goodhart are designed to enable the Lord Chancellor to indicate to this House how the Government propose to ensure that the principle which I believe they strongly support—the independence of the Supreme Court—is in practice to be strengthened. The drafting of Clauses 38 and 41 of the Bill was the subject of considerable scrutiny in the Select Committee and much evidence was given in favour of the requirement to ensure that the independence of the Supreme Court is strengthened by giving it greater administrative and financial autonomy.
To take, first, the issue of administration, the Government, in the person of the Lord Chancellor, gave their own evidence to that Select Committee, and I think it is acknowledged that the task of administration is not a huge one and that the size of the Supreme Court and its attendant administrative backup will be that of a middle-sized firm of solicitors. In any event, to establish a super-bureaucracy within a department might, even if one did not take the point about the separation of powers, be thought to be a sledgehammer to crack a nut. But there is an issue of principle here and it seems entirely appropriate that the responsibility for administration should rest with the President of the Supreme Court and not with the Minister, as provided so far in the Bill.
In its concluding comment on this matter, the Select Committee report indicated that it was anticipated that the Lord Chancellor would bring forward some amendments at a later stage of the Bill. Therefore, I shall not labour this point before the Minister has had an opportunity to tell us the Government's thinking on this matter.
So far as concerns the issue of finance, here the case for greater independence seems very strong indeed. I think that it was the noble and learned Lord, Lord
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Cullen, who, in evidence to the committee, spoke not only of the desirability but of the reality of the perception of independence being strengthened.
When it comes to finance, there can be no greater test of the reality than the avoidance of the arrangements which would flow from the Bill whereby the Lord Chancellor would be engaged in a haggling process with the Treasury about the finances of the court and the budget proposed, to which he would have to give his assent. It seems that that is neither necessary nor desirable. It is not desirable for the reasons of independence that I have given. Indeed, to some extent, it would be seen to be a step backwards from the present arrangements for the funding of the House of Lords sitting in its judicial capacity because, at present, special arrangements are in place under which the House receives its vote directly from the Treasury for that work. If the Bill were to go through in its present form, that would be a step back from that degree of independence.
However, from the evidence given to the Select Committee by a number of expert witnesses, I think it is clear that such independence would also be practical. Those witnesses included Professor Ian Scott of Birmingham University, who drew attention, as did the House of Commons Constitutional Affairs Committee, to the experience of Australia, where the High Court, which bears comparison with the highest court in this country, has a degree of separate independence with respect to budgetary arrangements. For those reasons, I hope that the Government will say rather more on the subject of finance than we have heard so far.
3.15 p.m.
I should not like to give the impression that all the evidence that we heard was one way. The noble and learned Lord, Lord Hope, for example, indicated that he thought that it had been advantageous to have a Cabinet Minister batting on behalf of the courts when it came to determining money. But, when one is talking about relatively small amounts of money such as that involved in the establishment and running costs of the Supreme Court, it would be highly undesirable if those involved were caught up in any kind of Star Chamber process and made the victim of some general ukase about the Ministry cutting its expenditure or tightening its belt. It seems to me that this Supreme Court, which will now have a quite different function within our constitution, should be seen as separate from that kind of consideration.
One other anxiety has been expressed by the Faculty of Advocates in Scotland, which advanced concerns about the compatibility of the arrangements with Article 19 of the Act of Union. To some extent, I think that that point has been answered, or at least addressed, by the Lord Chancellor, but it is a factor which seems to me could be put at rest if the Government approached this issue along the lines that I have recommended.
I hope that the amendment will be seen as constructive and in conformity with the express wishes of the noble and learned Lord the Lord Chancellor,

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although I acknowledge that, so far as concerns finance, he has been a little less forthcoming than he has been on the issue of administration. I beg to move.
Lord Campbell of Alloway: I have to oppose the amendment. As I have said on previous occasions, these functions should—perhaps subject to the view of the House—be performed by the Lord Chancellor, whose office has been retained. The efficient and effective system of business of the courts is within the control of the courts, and it is my case, which has not yet been argued, that the Lord Chancellor should retain that function. So, with respect, I appreciate that the Liberal Democrats have another concept but I cannot agree with it.
Lord Mackay of Clashfern: This matter touches on a rather important issue which of course affects the Supreme Court but, to some extent, it also affects all the other courts. Hitherto, the Lord Chancellor was a judge, having taken the judicial oath, and he was responsible for providing the staff to all the courts that were in the immediate responsibility of the Lord Chancellor. That did not include the magistrates' courts until more recently.
One significant fact to be taken into account is that the staff of the courts are engaged in judicial functions, an important example of which is listing the cases. It is of extreme importance that that function should be seen to be the responsibility of someone carrying judicial office—not necessarily as a serving judge in the sense of sitting in cases but as a judicial officer with responsibility for administration in accordance with the judicial oath. For example, it is obvious that the way in which cases are listed can have a very important effect on the ultimate outcome. Indeed, failure to list a case can be of crucial importance, in particular, in disputes between the Government and the citizen. Therefore, these are clearly matters of judicial responsibility.
At our last meeting the noble and learned Lord the Lord Chancellor said that anyone might be a good administrator without being a lawyer, which I can understand. On the other hand, it is important that the person with responsibility for the administration of the courts includes judicial functions, as I asserted without much fear of contradiction; judicial responsibility is important. To put it another way, who will be responsible for any mistake that is made in the listing of a particular case, with consequent expense to the citizens? Will it be the Minister, who is still the Lord Chancellor but without any judicial functions according the way in which the Government propose the matter should develop, or will it be some member of the judiciary?
Lord Kingsland: Under the new architecture of the Bill, it seems to me that there are two possible candidates to fulfil the role in Clause 41. One is the Chancellor of the Exchequer, the other is the President of the Supreme Court. I certainly do not think that either the Secretary of State for Constitutional Affairs or the Lord Chancellor should be the person whose name is inserted in that clause.
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At the risk of introducing a degree of tedium to the proceedings, I ask the Committee to reflect on what the Select Committee on the Constitutional Reform Bill said on this matter. Paragraph 256 of the Select Committee's report states:
"In assessing the budgetary arrangements, we noted the views expressed by the House of Commons Constitutional Affairs Committee in their February 2004 report, Judicial appointments and the Supreme Court HC48–I".
The quotation is from paragraph 100 of that report, which reads as follows:
"Clearly the new court must be seen to be independent … the reality of day to day administration is as important for safeguarding the independence of the judiciary as any theory. The argument that Parliament should be able to dismiss all those to whom it votes money is ingenious, if theoretical—there is no prospect of a minister in modern political circumstances being dismissed by Parliament. The ordinary reality of having independence in managing the affairs of the new court is more important. Close attention should be paid to the Australian system, which preserves independence of the High Court within a parliamentary tradition similar to the one in the United Kingdom. The Department of Constitutional Affairs is not the appropriate organization to run the new court because it is too associated with the England and Wales court system and because giving the Government control over the administration of the new court could offend against the principle of judicial independence".
That was the view of the Constitutional Affairs Committee in another place.
I turn to the opinion of the Select Committee under the chairmanship of the noble Lord, Lord Richard. Members of the Committee will find it at paragraph 268, and I make no apology for quoting what is stated therein, as follows:
"While some members of the Committee agree with those witnesses who saw some advantage in the financial and administrative arrangements provided for in the bill, a majority considered that the Supreme Court should have greater financial and administrative autonomy than currently envisaged under Clauses 38 to 41. The Committee therefore agree that the Supreme Court should be established according to the model of a non-ministerial department. Funding would go direct from the Treasury to the Supreme Court (not into the DCA's budget). The degree of ministerial involvement would be slight, but remains an issue for some members of the Committee. The Lord Chancellor will bring forward amendments at a later stage of the bill".
We shall be interested to see what those amendments are.
Meanwhile, it is clear that the opinion of the committee was that it is inappropriate for the department, whether it continues to be described as the Lord Chancellor's Department or as a new Department of Constitutional Affairs, to play any role under Clause 41. According to the Select Committee, the two players in this new drama, which may or may not unfold on the nation in the forthcoming year, are, on the one hand, the Chancellor of the Exchequer, who provides the funds—
Lord Campbell of Alloway: I thank my noble friend for giving way. Does he agree that the opinion of that committee did not appear to be in favour of the retention of the office of Lord Chancellor, and that therefore his quotation pre-empts my objection?
Lord Kingsland: The committee did not come out either for or against the retention of the office of Lord Chancellor; it looked at the arguments on both sides and came to the conclusion that whether or not the Lord Chancellor was retained was a matter to be taken on the Floor of your Lordships' House. However, so far as the financial arrangements for a new Supreme Court are concerned, on the assumption that a new Supreme Court is established, the committee was, in my submission, almost unanimous in concluding that, again, whether or not the noble and learned Lord the Lord Chancellor is retained, he should play no part in that matter. It should be an issue entirely between the Chancellor of the Exchequer on the one hand and the President of Supreme Court on the other.
I am extremely grateful to noble Lords on the Liberal Benches for tabling this amendment. In my submission, they have half right the answer to the question that they pose. I think that the President of the Supreme Court will have a crucial role in these matters. Equally, however, I do not see how he, alone, can provide the guarantee. He needs the complicity of the Chancellor of the Exchequer in another place. I wonder whether the noble Lord, Lord Maclennan of Rogart, will reflect on how he might factor in that ingredient in order to be consistent with what the committee asked—and perhaps come back at the next stage with an amendment containing the kind of refinement of which I know he is capable.
Viscount Bledisloe: Perhaps I may take up the last part of the speech of the noble Lord, Lord Kingsland. Clause 41 imposes on the Minister an obligatory duty to ensure the provision of an efficient system and appropriate services. Clauses 42 to 45 set out various ways in which that can be done. To use a nauseating, modern expression, it provides the choice of outsourcing services or employing them directly.
For the reasons clearly given by the noble and learned Lord, Lord Mackay of Clashfern, I agree wholeheartedly that the right person to decide how the money is disposed of, who is hired and what directions they get from their employers is the President of the Supreme Court. However, I suggest that it is necessary to place on the Government an obligation to provide the money. There would be no point in telling the President of the Supreme Court, "You must provide services", if the poor man had not been allocated any money with which to do it. Echoing the proposal of the noble Lord, Lord Kingsland, that this matter needs rethinking, I venture to suggest that Clause 41 should impose a duty on the Government to provide enough money and that the remaining clauses should grant to the President of the Supreme Court a discretion as to how it should be spent, who to employ and so on.
3.30 p.m.
Lord Morris of Aberavon: I agree entirely with the noble and learned Lord, Lord Mackay, about the importance of listing as a judicial function. Whichever way the argument goes, I wonder whether the point
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will be met by ensuring and specifying that listing is a judicial function and therefore is ring-fenced in this way.
Baroness Ashton of Upholland: This has been a very interesting debate. Noble Lords have addressed the central issues, with which the Government have a great deal of sympathy, about ensuring that we have the relationship correct and, as the noble Lord, Lord Kingsland, pointed out, being mindful of paragraph 268 of the Select Committee's report and the views put forward by noble Lords.
The noble Lord, Lord Maclennan of Rogart, began by saying that this was an attempt to extract in part from the Government what further we were proposing to do. I shall endeavour to reassure the noble Lord. We share the concern that the court should have the greatest possible degree of institutional and operational independence, which is consistent with proper ministerial accountability.
As regards the particular point raised by the noble and learned Lord, Lord Mackay of Clashfern, concerning listing in the courts, I shall if I may take that away. Thinking back to what was said by the noble and learned Lord, Lord Morris of Aberavon, that might be a matter which one could specifically consider. I think that the point that the noble and learned Lord made in particular was to differentiate between the functions within the role that is envisaged and to ascertain who best in those circumstances would take responsibility. We in Government are seeking to go down that road to ensure that we have proper accountability in the right place.
Where I disagree with the noble Lord, Lord Kingsland, in particular is on the funding and resourcing of the Supreme Court and the way in which ministerial accountability would operate. Although I agree with the noble Lord in his analogy, that is, the issue of which chancellor we are describing. I do not believe that this is the role of the Chancellor of the Exchequer but rather the role of the Lord Chancellor.
When one considers the practicalities of what is proposed, it would be the President of the Supreme Court rather than the Minister who would be responsible for negotiating directly with the Treasury for the funding and provision of accommodation, staff and services. In other words, the Supreme Court would become a department but without a Minister, with a judge at its head. It would be required to account for money voted to it by Parliament rather than by a board, commission or executive fundholders which we believe stands in opposition to the principle of functional separation of the judiciary from the legislature, which underlines our whole proposal for the Supreme Court.
The Government believe that it is an important matter of principle that a Minister should be held accountable to Parliament for any item of public expenditure and to answer appropriate questions in Parliament. Noble Lords believe that this is an important area. As they stand, the amendments remove the Minister from the process, which we do not

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believe is acceptable. Apart from anything else one would have to question the practicalities—certainly, I would. The president would have to find and equip a suitable building. We think that that should be the responsibility of a Minister. As my noble and learned friend the Lord Chancellor made clear, he hopes to make an announcement shortly regarding the building, certainly before this Chamber reaches a conclusion.
We believe that the amendments would create practical difficulties and drawbacks. What one might describe on the one hand as independence could very easily become isolated weakness: a very small public body with less weight—dare I say, less clout—than a Minister able to negotiate with the Treasury.
If there were circumstances in which, for laudable and understandable reasons, the Supreme Court were to overspend, under these amendments the Minister would not be able to allocate additional money from the overall DCA budget. On that particular issue, the Government feel strongly that because of ministerial accountability and, frankly, the impracticalities of putting the president in that position, it is better that accountability for negotiating the amounts of money and responsibility to Parliament rests with the Minister.
As I have made clear, we recognise that what was said in the Select Committee and in your Lordships' House is of extreme importance to us. We believe that the provisions within the clauses offer a high degree of protection from ministerial interference. That is very important and guarantees adequate funding. However, as the noble Lord, Lord Maclennan of Rogart, indicated, we have said clearly that we intend to table amendments. I should say to the noble Lord that I, too, have looked at the Australian High Court model, which is interesting. I shall say no more than that at this point. Accepting what noble Lords have indicated they feel strongly about today and the views of the Select Committee, we believe that we can put forward a package of amendments that ensures that the Supreme Court will have, as the noble Lord, Lord Kingsland, described from within the Select Committee report, even greater financial and administrative autonomy than is currently envisaged in Clauses 41 to 45.
I believe that the way in which we shall be able to bring this forward will reflect that, preserving ministerial accountability, as I have indicated but—frankly, this is the critical part—reducing the role of the executive to the minimum possible with the intention of achieving the greatest degree of institutional and operational independence and ring-fencing the court's finances. That is an important part of ensuring that financial support is available to the Supreme Court. We are considering how that can be ring-fenced consistent with that minimised ministerial role.
I was most taken by the point raised by the noble Viscount, Lord Bledisloe, about who supplies the money and who spends it. That is an interesting description of the difference between ensuring that
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resources are available and that the process of administration within the courts works well. I shall, if I might, take that particular point away and consider it further.
It is important that noble Lords are able to see, before Report, what we are proposing. Therefore, I undertake to send to the noble Lord, Lord Maclennan of Rogart—with a copy to the noble Lord, Lord Kingsland, and other noble Lords who have participated in this debate—the draft amendments before they are tabled. I hope that that will enable noble Lords to pass back comments to me and to my noble and learned friend and to see whether there are further issues they wish to put forward either informally or through the process in your Lordships' House.
I am grateful for the comments made by noble Lords. I am confident that the amendments we shall table will tackle the critical underlying issues noble Lords have raised. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Windlesham: Before the noble Baroness sits down, did I understand her to say earlier that the Government intend to make a Statement shortly on the location of the Supreme Court, or was that just wishful thinking?
Baroness Ashton of Upholland: In Committee last Monday my noble and learned friend indicated that it was his ambition to ensure that before the Bill had completed its passage through the House he would be in a position to do that.
Lord Crickhowell: Before the noble Baroness sits down, she made a most helpful statement about tabling amendments and consulting on them. Indeed, she therefore anticipated the intervention I was about to make asking that she should do so. These are crucial points. It is very important that we have the amendments in such time that if necessary we can produce amendments ourselves for Report stage. Therefore, perhaps I may ask not only that she circulates the amendments to those who have taken part in the debate but that they are adequately brought forward for the whole House and that time is given so that we do have an opportunity to consider them and, if necessary, to table our own amendments on Report.
Baroness Ashton of Upholland: The noble Lord makes an important and valid point about ensuring, as I tried to indicate, that there is sufficient time. I shall endeavour to do my very best. As noble Lords will know, I want to try to be as supportive to the House as possible. This is not entirely within my gift. As noble Lords will appreciate, there are issues to be discussed, not only within the department but across departments. However, we shall endeavour to do that. Certainly, I shall oversee that process to ensure that we can.
Lord Carlisle of Bucklow: Perhaps I may ask a question on the point raised by my noble friend Lord Windlesham. Is it the intention of the noble and learned Lord the Lord Chancellor to make a Statement about the future premises for any Supreme Court, if one were to be decided upon, before Report? The noble Baroness will remember that those members of the Judicial Committee who say they support the change to a Supreme Court have made it clear that their support is dependent upon appropriate premises being found. To date in Committee we have not been given any indication that such premises have yet been found. Therefore, if the noble and learned Lord the Lord hancellor is in a position to make a Statement it is vital that he makes it before Report.
Baroness Ashton of Upholland: I am sure that my noble and learned friend intends to make a Statement when he can do so.
Lord Ackner: Would consultation with the existing Law Lords also take place? I have always understood that that was a crucial factor in reaching a decision.
Baroness Ashton of Upholland: My noble and learned friend is and will continue to be in dialogue with the Law Lords. That would he appropriate.
The Earl of Onslow: Will the noble Baroness also send me a list of the amendments? I felt that I could not intervene, so I have risen slightly late. I also get a rocket for intervening, but, even though I have not participated in the debate on this amendment, I would be interested to see them.
Baroness Ashton of Upholland: I would be delighted to, and I make the same offer to any noble Lords who let me know that they want it. They should not feel that they have to intervene.
Last week, my noble and learned friend said that one valuable lesson that he had learnt was that one should indicate a final proposition when it was a final proposition and not get embroiled in speculative discussion of the issues, if one were not discussing something so important. It is his ambition to resolve the issue and to ensure that accommodation is found that is appropriate to the needs of the Supreme Court. My noble and learned friend is an ambitious Peer, and I am sure that he will seek to do that. However, I cannot indicate precisely when on his behalf. The Committee will know that there are lots of issues to be debated, but that is our ambition, and we shall try to fulfil it.
Lord Lloyd of Berwick: It ought to be possible to postpone Report until we have the Statement. We cannot have a sensible debate on Report unless we know what is planned and how much it will cost.
Baroness Ashton of Upholland: One has to consider the issues of principle and then the issues of practicality. I recognise the fact that the noble and learned Lord feels strongly about the matter, but there
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are also people who believe that the process of looking for the best and most appropriate accommodation should not prevent the passage of a Bill dealing with the principle of establishing the court.
With the greatest respect to the noble and learned Lord, I say that it is not always the case that the building must determine the legislative programme. My noble and learned friend has indicated that he will make sure that we deal with the accommodation issue, but that should not prevent the passage of the Bill through the House.
Lord Kingsland: I am grateful to the noble Baroness for the fact that she will table amendments consistent with the undertakings given by the noble and learned Lord the Lord Chancellor to the Select Committee.
There was, however, one issue the noble Baroness raised that gave me some cause for concern. In paragraph 268, the Select Committee stated that it agreed that the Supreme Court should be established according to the model of a non-ministerial department. Now, the Select Committee would not have agreed that had the noble and learned Lord the Lord Chancellor dissented from it. Therefore, the noble and learned Lord the Lord Chancellor agreed that the court would be set up with the same status as a non-ministerial department.
If that is so—I see the noble Baroness nodding her assent—of what relevance would the Secretary of State for Constitutional Affairs be? If the department is to be non-ministerial, the intervention of a Minister will not be needed; so I assume that the amendments that the noble Baroness will table will be consistent with the undertaking given by the noble and learned Lord the Lord Chancellor to the Select Committee.
Baroness Ashton of Upholland: My noble and learned friend will have made the commitments that he intends to honour to the Select Committee. The difference that I was indicating was the question of how one describes a body that did not have ministerial involvement in its negotiation with the Treasury for funding. I indicated that that funding could be ring-fenced. That deals with some of the issues behind noble Lords' questions about moneys being raided—if I may describe it thus—for other parts of the DCA budget. That is true of many other bodies, and there is a direct line of accountability to Parliament from the Minister and to the Treasury with regard to funding. I do not believe that they are inconsistent, although the noble Lord, Lord Kingsland, may take a different view.
I will leave it to my noble and learned friend to read Hansard and consider whether he needs to clarify things further for the benefit of the noble Lord. That is my understanding from what I have read, not from what I have asked of my noble and learned friend.
3.45 p.m.
Lord Maclennan of Rogart: I am grateful to the Minister for her answer to the debate and for reasserting the fact that it was the Government's intention to amend the terms under consideration.
I must take slight issue, at least, with the way in which she presented her argument in respect of two matters. First, she ventured the view that the president of the Supreme Court would be seen as a lesser weight than the Minister in debates about resources. That is a misconception. The whole concept of the Supreme Court is to establish a new and independent arm of the constitution. The Select Committee suggested how that independence could be represented to Parliament through the possibility of giving direct evidence. That method would be open to the president of the Supreme Court for revealing any differences of opinion with the Chancellor of the Exchequer that might arise.
Baroness Ashton of Upholland: I did not want to suggest that the president would not have weight; my point was about ministerial clout, which is slightly different. As the noble Lord will know, it is important in discussions about how finances are distributed—other noble Lords will understand it better than I—not to underestimate the relevance of the critical debates that take place. That is not to say that the president would not have great importance, but the budget would be small, and he or she would not be able to take part in the cut and thrust of debate in the way that ministerial colleagues would be.
Lord Maclennan of Rogart: With respect, I believe that the Minister may be making my point. It is highly undesirable that the funding of the Supreme Court should be part of the cut and thrust of the debate about the Budget. That fortifies the case that I have made for a special arrangement.
That leads me to the second point arising from the Minister's answer that I wish to make. The Minister speaks of the Government's position on accountability as though it preserved something that was of great importance in the constitution. I must reiterate: that is not factually the case. The present funding of the "Supreme Court of the country"—I use those words in inverted commas to refer to this House sitting in its judicial capacity—is not subject to the scrutiny of Parliament through a departmental Minister in the way that other budgetary expenditure is.
In fact, the Government appear to be proposing an undesirable constitutional innovation. I hope that the Minister will add that issue to the internal debate that is, no doubt, going on about how to deal with the conundrum. With those considerations in mind, I thank the noble Baroness again for her answer, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Bledisloe Viscount Bledisloe moved Amendment No. 88BQ:
Page 15, line 39, after "appropriate" insert "premises and"
The noble Viscount said: The amendment relates to the point that the clause imposes an obligation to ensure that there is an "efficient and effective" system of support and to ensure that,
"appropriate services are provided for the Supreme Court".
Clauses 42 to 45 describe the ways in which the Minister can provide the officers, the staff and the services and ways in which he can provide the accommodation. The Bill notably lacks an obligation to ensure that there are "appropriate" premises. There is an obligation to ensure that there is an efficient and appropriate system and appropriate services. But if appropriate premises have not been provided, it will be impossible to provide an effective system or effective services. Whatever the conclusion on the debate that we have just had will be, everyone would accept that it is the Government's duty to find the premises, build them and pay for them, even if the president will be running the budget to fund them, once they are built. I cannot believe that the president of the court will he given the job of dealing with estate agents and building contractors.
It seems an absolutely remarkable omission from Clause 41 that there is not an obligation on the Government for them to ensure "appropriate premises" are provided for the court. That omission will become more and more important as it emerges that the various premises suggested by the Government are wholly inappropriate in the view of those who will hear and try cases in them. Perhaps I may ask the noble Baroness two questions. First, can she explain why those words have been omitted? Secondly, does she realise that if the omission is not rectified, the suspicion will be greatly strengthened that it is the Government's intention to put the Bill through and then bundle the Law Lords into any old building that can be found, which will be wholly unsuitable to their duties? I beg to move.
Lord Kingsland: I shall just add a footnote to the comments made by the noble Viscount, Lord Bledisloe. Interpreting the word "appropriate" in the context of premises raises two issues that the Lord Chancellor and the noble Baroness must confront. The first concerns the adequacy of the premises for the services that will be provided. That follows self-evidently from the obligation to provide services.
The second dimension to the definition is one that partly emerged in the debate on a previous amendment. It is crucial that the premises are appropriate to the status of the new court. The architecture must match the importance of the task. If noble and learned Lords who are to become members of the Supreme Court are housed in a building that is architecturally inferior to your Lordships' House, that will reflect upon the status of the new court. Of course it will not be necessary for the new court to have a building on the same scale as this House; but it will be crucial to have a building of similar quality.
I well recall the speech of the noble and learned Lord, Lord Hope of Craighead, last Monday, reflecting on the architecture of the new Scottish Parliament building. He said that, whatever one might

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think about modern design and, indeed, the expense, there was no doubt whatever that the new Parliament in Edinburgh was both appropriate to the task and reflective of its status. Equally, the new premises of the Supreme Court must pass that test.
Lord Ackner: This matter has an important connection with the interim position. On a number of occasions I have warned against a position being taken of your Lordships of the Appellate Division being required to leave on the basis that the accommodation will be purely temporary and will be replaced in due course by proper accommodation appropriate to the status of the court. I have said, perhaps a little cynically, that the "pre-fab" houses that still stand may be a monument to the risks that we run. If the word "appropriate" is inserted here, that will cover the interim as well as the long-term. It will ensure that their Lordships are not bundled out.
My other point is that if "appropriate" is put in, it would mean "ready and fit for occupation". This matter will clearly take a long time after premises have been found. What will happen in the interim in relation to this House? There is no sunset, or similar, clause and the Lord Chancellor has resisted one whenever I have raised the subject. He wishes there to be no provision that would prevent the Bill operating because the premises have not been found. That is why I strongly support the amendment.
Lord Lloyd of Berwick: I, too, support the amendment. One undertaking given by the Lord Chancellor, both in the Select Committee and on the Floor of the House, was that moving the Law Lords out of this place into temporary accommodation was the one thing that would not happen until they reached the final phase of where they were going to move to. That may at least help the noble and learned Lord, Lord Ackner. I understand that that suggestion—the idea of temporary accommodation between the House of Lords and the final building—is completely out of the question at the moment.
Baroness Ashton of Upholland: It is interesting that I agree with much, if not all, of what has been said about the importance of suitable accommodation that reflects the status of the Supreme Court. I do not believe that any member of the Government has any difficulty with that concept. We could spend a great deal of time negotiating around the word "appropriate", because noble Lords have different and distinct views of what would reflect that. But I absolutely accept, and my noble and learned friend has accepted, that it is very important that the building reflects the fact that this is an important move—that this will be the Supreme Court. That has connotations for the kind of building that would be appropriate.
One could argue—and noble Lords who have been involved in the law for a long time would accept—that the dispensation of justice can happen in a shed—at one level. I am not trying to suggest that the building somehow denotes the quality of the experience for the
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clients or the individuals who face the law or, indeed, for those participating. But I utterly accept that it is important that we view this matter in the correct light. I had the privilege of being at Langanside in Belfast, Northern Ireland on Friday, where new courts have been made available. They are beautiful buildings with the right type of facilities for everyone involved, including juries, judges, clerks and those seeking justice or being brought before the courts. So I accept and have no difficulty with the principle behind that. The notion that anyone would wish to see the Law Lords, who are held in the highest esteem by this Government and your Lordships' House, being bundled anywhere is anathema to us all.
If there was any suggestion that the Supreme Court was to be put in inappropriate premises, it would be impossible for there to be an efficient and effective system of justice and appropriate services. That would mean that we were not fulfilling the statutory duty that the Minister has, which is already stated in the Bill, and is reflected in the Courts Act 2003. It states:
"The Lord Chancellor is under a statutory duty to ensure that there is an efficient and effective system to support the carrying on of the business of",
the courts,
"and that appropriate services are provided for those courts".
That is why I do not accept the amendment. The Secretary of State will provide the right kind of accommodation with the wording we already have, particularly in subsections (1) and (2) of Clause 45, and we have put that in a legislative framework that has been approved through parliamentary counsel. I entirely accept what noble Lords are seeking to do, which is to say, very clearly, "Status matters and this building matters. We do not want to see the Law Lords bundled out in the way that has been described. We wish to see the right kind of accommodation". Noble Lords know that my noble and learned friend is in discussions with the Law Lords about all those factors.
The amendment does not work, as it does not approach the issue in a legalistic sense within the way in which the Bill is drafted, but we believe subsections (1) and (2) of Clause 45 do so. There is very little between us. On that basis, I hope the amendment will be withdrawn.
Viscount Bledisloe: I am grateful to the noble Baroness for her general acceptance of the principle. However, this is not just a question of the grandeur of the building. As the noble and learned Lord, Lord Bingham, has made plain, it is enormously important that the actual hearing rooms should be of the same kind as in this building; namely, committee rooms around a semi-circular table with everyone close, rather than a traditional intimidating criminal court, designed to put a suitable degree of fear and trembling into those accused of having broken the law. It may sound a minor point, but I assure those who have not appeared before such a court that it makes a vast difference when everyone, including the various Law Lords, can see each other. There is nothing more useful to an advocate who is having his point demolished by one Law Lord than to be able to see the other two

541
shaking their heads in disagreement. It is also helpful to those objecting to be able to see. The atmosphere and layout are important.
I am disappointed by the noble Baroness's reply on the substance of the amendment. I fully accept that applying "suitable premises" is an overall part of the duty. However, there are two subsections making an express obligation to provide an "appropriate system" and "appropriate services", followed by provisions dealing with services, staff and accommodation. There is a temptation to construe that as "They must have left accommodation and premises out of Clause 41 because they did not mean they were the same as system and services".
If there is an obligation, there is no possible objection to putting that in the wording. "Appropriate" governs all the words—it is as apt to govern "premises" as "services"—although there can, of course, be arguments over what services or premises are appropriate. I urge the Minister to reconsider. Inserting the phrase may only be a sop to us, but it would allay many of our concerns.
The Earl of Onslow: If what is proposed is already implied in the Bill, surely the rest of the subsection is as well. By putting the rest of the subsection in, less weight is being given to that which is not emphasised but implied than what is there already. Is that the case or not?
Baroness Ashton of Upholland: I do not believe it is the case, although I can see why the noble Earl might think so. Because of the duty on the Minister, and because of the way the whole clause is phrased, there is no question in the eyes of those who drafted it. I have discussed this point in order to be sure, because I try to be as supportive as I can when I can see where noble Lords are trying to move to. I always reflect on what is said in Committee, so I will check again, to ensure that noble Lords will not feel the need to put forward further amendments.
Lord Ackner: The noble Viscount has drawn our attention to the absence of the word "appropriate", while the Minister has drawn our attention to Clause 45, which points out an important distinction. In Clause 41, in regard to "system" and "services", there is an objective test. They have to be objectively "efficient" and "appropriate". In Clause 45, in regard to equipment, premises and the like, the test is subjective:
"The Minister may provide…such…accommodation",
and so on,
"as he thinks appropriate for the purpose of discharging his…duty".
Subsection (2) states:
"The Minister may make such accommodation arrangements with other persons as he thinks appropriate".
That is all subjective and is in marked contrast to what is in Clause 41.
Baroness Ashton of Upholland: I apologise for not making the point as clear as I should have. The Minister has a statutory duty to ensure that services are efficient and effective. If inappropriate accommodation were provided, the Minister would have failed in that duty. As far as the Government are concerned, the drafting of this clause and the way the clauses relate to each other mean that, in order to fulfil the statutory duty on the Minister, he must ensure that the services provided are appropriate to their purpose.
In any legislation, one does not put in superfluous words, which this amendment would do. It is also my personal view that the definition of "appropriate" varies. Although I understand what the noble and learned Lord, Lord Ackner, is saying about subjectivity, it is a subjective judgment within a statutory duty, because someone has to make that judgment. The statutory duty is on the Minister.
Viscount Bledisloe: This is my last point. Has the noble Baroness never stayed in a hotel where the waiters were extremely efficient, the food was very good, the cocktails were beautifully mixed, but the rooms were lousy? That is an example of "appropriate services" but not "appropriate premises". I do not see that the former covers the latter. I beg leave to withdraw the amendment, but I warn the noble Baroness that this subject will not go away.
Amendment, by leave, withdrawn.
[Amendment No. 88BQA not moved.]
Lord Evans of Temple Guiting: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Iraq: Deployment of UK Forces
4.8 p.m.
Lord Bach: My Lords, with the leave of the House, I shall repeat a Statement made in another place earlier this afternoon by my right honourable friend the Secretary of State for Defence. The Statement is as follows:
"Mr Speaker, with permission, I should like to make a Statement about the deployment of UK forces in Iraq.
"There has been considerable speculation in the media over the past several days about the United Kingdom deploying forces outside its current area of operations in southern Iraq. The only relevant fact is that the UK military received a request on 10 October from the US military command in Iraq for assistance. Such requests and discussions between allies are routine. There is regular dialogue with our coalition allies and with the Iraqi security forces on all aspects of operations in Iraq. Requests for assistance form part of these exchanges. The actual disposition of coalition forces in Iraq has been adjusted regularly since the end of combat operations. The Danish contingent, for example,

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has taken on a greater share of responsibility within Multinational Division (South-East), and the Japanese have deployed a 500-strong contingent into the Dutch area of operations.
"This particular request, if agreed, would involve UK land forces operating outside MND(SE). It is worth bearing in mind that Royal Air Force personnel have been operating over the whole of Iraq when required to support the coalition and that some British personnel are based in Baghdad to support coalition operations. Other British land forces have previously operated outside MND(SE).
"Iraqi security forces and coalition forces have recently been involved in intensified operations to restore areas under the control of militants and terrorists to the authority of the Iraqi Interim Government. Recent operations in Najaf, in Samarra and in North Babil have been undertaken as part of that effort. The political process is moving ahead as a result of those actions.
"The strategy is designed to increase pressure on and deal with those terrorists who are trying to prevent the rebuilding of Iraq and who threaten the holding of free elections in January. The US request is for a limited number of UK ground forces to be made available to relieve US forces to allow them in turn to participate in further operations elsewhere in Iraq to maintain the continuing pressure on terrorists. The request does not ask for UK troops to be deployed to Baghdad City nor to Fallujah.
"We are obviously considering the request. There are a number of issues that require assessment including: timing; the length of the potential operation; command and control arrangements; logistics; and which forces would be the most appropriate to conduct the operation. None of the details has as yet been decided and a UK reconnaissance team will deploy to the area tomorrow to provide further information which will inform the chiefs of staff. I expect the final recommendation from the chief of defence staff by the middle of the week.
"All of those factors require careful consideration. Once we have made a decision, I will inform the House in the usual way. Speculation over the weekend has focused on the suggestion that the request is somehow political and its timing linked to elections. I want to make it clear that the request is a military request. Although it is linked to elections, it is not linked to the US elections, but to efforts to create the best possible security situation in which to hold the Iraqi elections in January.
"A number of commentators have voiced concerns about UK forces coming under US command and about rules of engagement. If we agree to this request, the arrangements will ensure that UK forces have a specific task; they will be responsible for a particular area. There are no practical difficulties for UK forces operating alongside those from the US. Our forces are fully engaged with all of our coalition partners at every
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level of planning. On a daily basis UK forces work alongside forces from Italy, Denmark and other nations such as Poland, the Netherlands and Japan. This is a matter of routine and is an effective and practical way of ensuring coherence both in our own area and with those areas that surround it.
"UK rules of engagement are more than adequate for tasks of the type envisaged. There is no need to adjust them. They will provide proper protection for UK forces, as they have during operations in volatile areas in our own sector such as A1 Ammarah. It is worth noting that as the capabilities of the Iraqi security forces develop, they will expand the areas under their independent control. As a result coalition forces will need to become more able to act flexibly in support of Iraq security forces as they in turn take on greater responsibility for the protection of Iraqi civilians and property.
"The Government remain totally committed to the strategy of holding free elections in January; and to seeing a government in Iraq take their rightful place in the international community and deliver prosperity and a new future for the Iraqi people. That is something that should unite all sides of the House. It is right that the United Kingdom should do what it can to contribute to that fundamental strategic objective".
My Lords, that concludes the Statement.
4.14 p.m.
Lord Astor of Hever: My Lords, I thank the Minister for repeating the Statement. In doing so, I offer my and my party's support to all our troops in Iraq. I also pay tribute to the families for the support they provide. We fully support the coalition as it seeks to bring democracy, stability and freedom to Iraq and to preserve her territorial integrity.
While we instinctively wish to assist our American allies. I should be grateful if the Minister could clarify the following. First, what will be the new rules of engagement? Are Her Majesty's Government entirely satisfied that they are substantially robust enough to cope with the change of area and support from the Americans who may be using different ROEs? Further, can we have the Minister's assurance that British troops, who are subject to the International Criminal Court in contrast to their US counterparts who are not, will not be compromised by likely change of ROE?
Secondly, for how long is it expected that troops are likely to be deployed outside MND(SE)? Thirdly, do Her Majesty's Government expect to have to deploy further forces from the United Kingdom to backfill the reserve battalion to be committed elsewhere in Iraq? Fourthly, what is Her Majesty's Government's assessment of the security situation in Basra and the rest of MND(SE)? Fifthly, will the Minister confirm that, should the deployment take place, our forces will be supplied with communications equipment that will enable them to fight alongside our American allies?
Sixthly, does he further agree that it is essential, if our troops are deployed, they should be deployed with a power to influence the decision-making process; not

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just with a responsibility to execute it? Is he satisfied as to the general scale and input of British views and expertise in current coalition counter-insurgency planning? Finally, given the nature of recent events and looking to the future, does the Minister still consider it a wise and sensible decision to cut four infantry battalions while the Army is so clearly and obviously under such great pressure?
4.18 p.m.
Lord Redesdale: My Lords, I thank the Minister for repeating the Statement. It was extremely carefully drafted to give the impression that it would receive support from all sides of the House. We have a number of questions and they are rightly centred on the safety of our troops.
Looking at the figures, it is striking to note that the American army has more soldiers based in Iraq than there are in the entire British Army. Therefore the proportion of troops we will he sending will have a greater effect on our capacity to reinforce our own troops than that of the Americans. The argument could be made that the Americans did not deploy enough troops in the first place, but that is looking back in history.
The Minister has not given any firm details about which troops should be used. However, the speculation is that it will be the Black Watch. I doubt whether he will confirm that, but it is important if it is the Black Watch, because they are the reserve forces on which the British troops will rely if there is an upsurge of violence. Their equipment—the Warrior armoured personnel carrier—and their training make them most suitable to back up any of our troops that are in trouble; and therefore having them deployed in another area could cause considerable concern.
Will the Minister say in particular, if the Black Watch is to be deployed, which regiment or which unit will take its place as the British reserve force in the southern region?
The noble Lord, Lord Astor of Hever, spoke of the rules of engagement. Have the Americans made any requests that we look again at our rules of engagement? If the rules of engagement are to be set, can the Minister say that they will not be changed at some later stage in an operation? After all, although they will be under British control, the overall command structure, as I understand it, will be that American officers will still be in overall control of the northern region.
Much was made in the Statement of the fact that this has no political link to the election in the US, although it has links to the election in Iraq. While we obviously support the election in Iraq, the estimation that this will not have a significant effect on the electorate in the United States should not he underestimated.
We support a stable and sustainable democracy in Iraq. Everything that can be done to move towards peaceful elections has to be considered. On that basis, we would look to the movement of troops, if this could be achieved. However, I should like to put down a marker: the reason that these troops are moving is due
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not to the elections but to the Americans' view that they are to undertake an all-out assault on Fallujah. While Fallujah might well be an impediment to the election, the way in which the Americans have been using airpower in Fallujah could put our troops at risk.
4.21 p.m.
Lord Bach: My Lords, I am grateful to both noble Lords for what they have said, particularly their support for the British Armed Forces. I thank the noble Lord, Lord Astor, in particular for the way in which he expressed his party's support for British troops in Iraq. That support has been forthcoming ever since this campaign began, and I am grateful to him for what he said.
The noble Lord asked a number of questions. I shall do my best to answer them, although he will appreciate that this is a holding Statement. When there is more to announce, it will be announced, as the Statement said, in the normal way at a later time.
Both noble Lords asked about the rules of engagement. If we decide to do this, the rules of engagement under which British troops would engage would be British rules of engagement. Of course, those rules of engagement are never published, as both noble Lords will understand, for very good reason, but let me assure the House that they are robust. Indeed, they are sufficiently robust to deal with any situation in which the British Armed Forces may find themselves.
The noble Lord, Lord Astor, asked about the International Criminal Court. Let me assure him that British Armed Forces abroad are subject to UK criminal law. In those circumstances, the ICC does not get involved.
As for the length of time involved, the noble Lord will not expect me to give an exact answer because there is no exact answer to that question. If we decide to deploy troops, we envisage a small-scale, time-limited operation.
The noble Lord, Lord Redesdale, is quite properly concerned about backfill. Our response to the United States request will take that factor into consideration. We shall not leave MND South-East exposed to an unacceptable level of risk.
The noble Lord, Lord Astor, asked next about working with our American allies. He was really asking about interoperability. As he knows, that has been a concern of both the US and the UK over a number of years. The result is that the two sides are very interoperable with each other, in terms of their troops working together.
To answer the noble Lord's sixth question, I am satisfied that the UK influence in the larger plans to do with the strategic objective in Iraq is considerable and remains considerable.
On the concerns of the noble Lord, Lord Redesdale, I have already referred to the rules of engagement and to the danger that he pointed out of possible exposure in MND South-East. As I said, we will not allow that to happen.
On any relevance to the United States election, I refer noble Lords to the first leader in the Times this morning, something that I do not often do. It puts such arguments in their proper context; it describes such criticism as "ridiculous" and poses this question:
"Does it really help Mr Bush's cause that US troops are in need of 'reinforcement'?"
Of course this has nothing to do with politics; it has everything to do with a military request from our American allies. We are looking at the strategic objective of having free elections in Iraq, which will be an amazing achievement when it occurs and something which I know the whole House will support.
4.25 p.m.
Lord Morris of Aberavon: My Lords, I want to express most strongly, my support for what British troops are doing. Could the Minister enlighten us whether there is any difference in the philosophy of British and American ground troops in the way in which they carry out their operations? I welcome the Minister's comment regarding the robust nature of our rules of engagement. Are our rules of engagement different from those of the Americans, and is the Minister satisfied that any friendly fire is covered by the rules of engagement of both parties?
Lord Bach: My Lords, I am afraid I am not in a position to say whether our rules of engagement are the same or different. I suspect, as I believe my noble and learned friend will as well, that they are different. I imagine that rules of engagement for each sovereign country are different one from the other. What I think should concern the House—I know that it concerns my noble and learned friend—is whether our rules of engagement are robust enough to deal with any situation the British Armed Forces might meet. I have told the House that we believe they are.
Lord Craig of Radley: My Lords, I thank the Minister for repeating the Statement. As I understood it, he said that the first request was made by the American military commander in theatre. Was there any parallel request from the Department of Defense or from the American authorities to the Ministry of Defence at the same time? Could the Minister be a little more forthcoming about what the request sought? We have some idea of the scale of it but no idea of the timing or duration in the American commander's request. Perhaps the noble Lord could enlighten us on that.
Lord Bach: My Lords, I am sorry to be unhelpful, if that is how it seems to the noble and gallant Lord. As far as I know, no request was made at a level between Washington and London. If I am wrong, I shall of course let him know in the usual way, but I have no knowledge of any such request. I am not in a position to be able to tell him the exact form that the request took. That is probably a matter best left between the
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US and UK military. However, I repeat that if the request is acceded to, we shall of course inform the House.
Lord Garden: My Lords, I must admit to being puzzled by this. Have we gone back to the Americans and asked why, out of 130,000 troops, they need 650 British troops, when they have their own communications, short logistic lines, training and doctrine, so that they can redistribute their forces around with much greater ease? We must have gone back and asked them. What was the answer?
Lord Bach: My Lords, the reason the Americans need UK forces to backfill is so that they can release their units for other tasks. The noble Lord will know that we engage in regular dialogue with the US on all aspects of operations in Iraq. These sort of discussions are routine business, and I do not think that the noble Lord should be so surprised that the Americans would like 650 British troops working in their area. Our Armed Forces in Iraq have an absolutely outstanding record, as has been said from both the Front and the Back Benches.
The Earl of Onslow: My Lords, could the Minister please answer this question? If, as I believe they are, the American rules of engagement are different to our rules of engagement, and if the Black Watch comes under command of an American officer and the American officer orders them to do something which is outside our rules of engagement, what happens?
Lord Bach: My Lords, exactly the same as happens at the moment. It will be UK commanders who command this force in the field, if we accede to this request, and UK soldiers are obliged to follow UK rules of engagement.
Lord Hannay of Chiswick: My Lords, is the Minister, who has referred several times to the question of elections in Iraq, able to inform the House how the process of providing security for the UN election teams of monitors is progressing?
Can he comment on a report in the press this morning that the Australian Government have declined to provide security for the UN? Would he not agree that no one has a greater interest in these elections taking place on time than the countries in the coalition? It is therefore a trifle odd for a country in the coalition to be declining such a request.
Lord Bach: My Lords, I have not seen the report in the press this morning. However, even if I had, I very much doubt if I would comment on it.
The noble Lord, with his vast experience in this field, will know that a great deal of work is going on at the present time in order to make sure that there is sufficient security for these crucial elections. Indeed, this request from our American allies should be seen in that light.
Lord Truscott: My Lords, it is surely not unique for British troops to be placed under American command. After all, the NATO Supreme Commander in Europe is always an American. I recall that a certain American, General Eisenhower, led allied forces in liberating Europe.
Does my noble friend agree that it is impossible literally to draw an operational line in the sand in Iraq? Nevertheless will he reassure the House that, if British troops are called upon by our American allies to take part in a major operation in Iraq, British commanders will be consulted?
Lord Bach: My Lords, I can of course give my noble friend that assurance, and he is absolutely right. We are already part of the multinational chain of command in Iraq, which is headed by the US Multinational Force Commander in Baghdad, General Casey. The British General Officer Commanding Multinational Division (South-East) reports to General Casey, though his forces remain under UK command and are ultimately answerable to London. To suggest that what is being proposed here is anything new is just not right.
Lord Marlesford: My Lords, I should like to return to a point which was raised by my noble friend Lord Astor about communications equipment.
I do not know if the Minister heard Colonel Tim Collins being interviewed this morning, when he said apropos of this issue that the inadequacy of communications equipment had been a factor. Some of us have been worried for years about the progress regarding Bowman. Can the Minister give us an assurance that real pressure is being kept on the Ministry of Defence to provide Bowman and, if the Black Watch or any other unit were to be deployed to the American sector under American command, could they be quite sure that the communications equipment would be fully adequate for the purpose, both in terms of reliability and security?
Lord Bach: My Lords, the last time I heard Colonel Tim Collins speaking was not this morning but it was when listening to the Conservative Party conference.
More seriously, however, he is quite right to bring up the question of communications. They are absolutely crucial. It is almost our first task to make sure that those communications are up to scratch, and also to work with our American allies' communications.
As far as Bowman is concerned, the noble Lord will know that the first in-service date for Bowman was met early this year. We are continuing to work very hard on that communications system. The answer to his question, therefore, is that communications will play a very important part in our considerations.
Lord Dykes: My Lords, although that was a holding statement, is not the Minister aware of increasing dismay in the country about these developments in
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Iraq? Does he not share that dismay himself and would he not like to confess to it if he could do so, but he has a duty to give us this holding Statement?
Does he not agree that the situation is getting worse and worse? Is he not aware that there are television polls today, for example, showing that 80 per cent of the public are against any further deployment of UK forces outside the existing areas?
Lord Bach: My Lords, no, I do not agree with the noble Lord at all. He has asked for my view and my view is that, although it is an extraordinarily difficult position and will continue to be so—certainly particularly difficult up until the time of the elections—things are improving in Iraq.
I also think that what we have learnt in the last few days about uncovered graves in parts of Iraq shows how absolutely appalling the regime of Saddam Hussein was. I have to say that if we had taken the advice from the Benches on which the noble Lord sits, Saddam Hussein would still be in power.
Lord Clinton-Davis: My Lords, would my noble friend agree that the Statement he has made is by way of an interim Statement?
Would he make a further Statement before—and I stress the word "before"—any UK forces are moved pursuant to any request that might be made? Does he not recognise that this issue is peculiarly sensitive?
Lord Bach: My Lords, I repeated the Statement made by my right honourable friend the Secretary of State, in which he says that he will return to the House in an appropriate way, at the appropriate time. I do not think that, standing where I am, I can take what the Secretary of State said any further.
Earl Attlee: My Lords, have we turned down a previous request and, if so, why?
Lord Bach: My Lords, I have to say that I do not know the answer to that question. I do not believe that we have but, again, if I am wrong I will let the noble Earl know.
Baroness Strange: My Lords, would the Minister agree that this might be an appropriate moment finally to stop tinkering with the regimental system of the Scottish regiments, particularly the Black Watch?
Lord Bach: My Lords, I know the strong feelings in this House about that particular matter. However, the noble Baroness will know what our plans are in that regard and she will have heard me mention the Chief of the General Staff and the Army Board support for changes to be made to the infantry battalion system, in order that the arms plot may be ended and that we can have more battalions in active use than we have under the present setup.
Lord Tebbit: My Lords, since the Minister told us that this request was made from military commanders to military commanders and was not accompanied—certainly not at that time—by a request from government to government, is it not clear that, while we should thank him for his courtesy in coming to the House to make the Statement that he has, this matter will not be decided by anything which is said in Parliament, if it is a military-to-military matter?
Lord Bach: My Lords, the noble Lord often hits the nail on the head. This is a military request and it has to be dealt with in that particular way.
However, there is an obligation on us as the Government, and on any government, to come to the House—particularly when there has been as much publicity as there has, some of it a little ill-informed over this weekend—to explain where we are at the present stage. As I say, this is a holding Statement.
Baroness Carnegy of Lour: My Lords, following an earlier question with regard to the Black Watch, the Black Watch has never shirked its duty in the Queen's service. It seems to me, however, that the Government should be cautious about what is expected of it—particularly at this time.
In the local newspaper where I live, which is Black Watch country, also in the Scotsman newspaper and I dare say in other newspapers too, there is a growing number of letters from people who have the impression that the Black Watch is being increasingly used to support the election of the President of the United States. I am not saying that is necessarily the case, but it is a growing impression. It seems to me that, given that it is a growing impression, the Government should be extremely cautious how far they push the public in supporting our brave soldiers.
Could the Minister tell me whether the Government are aware of this correspondence and whether they are paying attention to it?
Lord Bach: My Lords, I am grateful to the noble Baroness, who, I know, has a close relationship with the Black Watch regiment and comes from the same part of Scotland. I did not know about the correspondence, but I must repeat what I said earlier—that what we are talking about in the House this afternoon has absolutely nothing whatever to do with the American election.
Lord Barnett: My Lords, could I clarify my noble friend's answer to the noble Lord, Lord Tebbit? Surely the final decision should be made by the Government, not by military commanders.
Lord Bach: My Lords, my noble friend is of course right, but this was a military request and is entitled to a military response. Of course, under the system that we work under in the United States, the United Kingdom and in all free countries, it will be for Ministers—dare I say, elected Ministers—to make the final decision.
Lord Williams of Elvel: My Lords, my noble friend the Minister referred to a military-to-military request. Could he give us an idea of what the current Chief of the Defence Staff felt about the matter? It has been somewhat reported in the newspapers.
Lord Bach: My Lords, all that I can say to my noble friend is, do not believe everything that you read in the papers.
Lord Monro of Langholm: My Lords, I know that the Minister will agree that the Black Watch has had two exceptional tours in Iraq and deserves our greatest praise. If the new task has to be undertaken, will it affect the overall duration that the regiment has to be in Iraq? There is some considerable concern about how long it has been there already.
Lord Bach: My Lords, I can tell the noble Lord, who I know also has a great interest in Scottish regiments, that the Black Watch's tour of duty, as I understand it, finishes at the end of six months, which is some time before Christmas. It is certainly not intended that they should come home later than that.
I was asked earlier about military requests from the United States. We always consider requests for military assistance in accordance with the overall military situation in Iraq and our own responsibilities and capabilities. There have been occasions when we have turned down requests from the United States, as well as occasions in the past when we have accepted them.
Lord Sheldon: My Lords, is not the major distinction between the actions of the United States forces and ours that there has been under our command considerable restraint? That kind of restraint has wedded our forces to the peoples in the areas around Basra. If they were to go to somewhere near Baghdad, that kind of restraint would change quite considerably, with a consequent effect on people's perceptions in Iraq of the British Government's actions and their military decisions.
Lord Bach: My Lords, there is no doubt that the British Armed Forces have a well deserved reputation for the way in which they act in their peacekeeping role. However, it does not follow that attacks that have been made on the Americans in that regard are true, or that it is true that the,
"concept of peacekeeping is one alien to our American friends",
to quote directly the shadow Secretary of State for Defence in a Sunday newspaper. The Americans have had to deal with extremely difficult parts of Iraq, and to suggest that American troops have no idea about peacekeeping seems the complete opposite of the truth.

Education: 14–19 Reform
4.44 p.m.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Lord Filkin): My Lords, with the leave of the House, I shall now repeat a Statement being made in another place by my right honourable friend the Secretary of State for Education and Skills on the department's response to the report of the Tomlinson working group on 14 to 19 reform.
"I should like to make a Statement on the reform of education and training for 14 to 19 year-olds on the occasion of the publication of the final report from Mike Tomlinson's working group on 14 to 19 reform.
"I welcome the working group's report and commend it wholeheartedly to the House. I am extremely grateful to Mr Tomlinson and his colleagues for their hard work over the past 21 months. They have consulted widely and openly and they have now produced a cogently argued, challenging and compelling vision of the future. Through their regular engagement with the many stakeholders—including schools, colleges, universities and employers—I believe that they have laid the basis for the development of a broad consensus on the best way forward. I believe that it is important that this consensus extends across the whole House, and so I have encouraged Mr Tomlinson to keep in touch with the main opposition parties and have authorised the Minister of State to give early briefing to their spokespeople.
"I appointed Mr Tomlinson with the view that the status quo is not sustainable. Doing nothing is not an option. Under the current system, many of our young people achieve very high standards, whether in schools, colleges or work-based training, and move on to higher education or employment. But too many drop entirely out of education or training by the age of 17. Some do not have sufficient grasp of the core skills that they need for work and life. Others cannot find a straightforward path to meet their vocational ambitions. Some are simply not stretched enough to enable them to fulfil their potential.
"When we published our policy document 14 to 19: opportunity and excellence, at the beginning of last year, we concluded that these problems could not be solved simply by short-term measures, important though they are. Longer-term reform is also necessary. We therefore asked the working group to advise on a framework for qualifications that would enable all our young people to achieve their full potential, which would motivate them to stay in learning after the age of 16, and which would also reduce the burden of assessment on students, their teachers and the examinations system.
"The working group's report covers all aspects of the curriculum and qualifications framework for the 14 to 19 phase. Its recommendations have far-reaching implications for the structure of education and training. They include: proposals to introduce
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the study of core skills in literacy, numeracy, communication and ICT for all 14 to 19 year-olds; direct employer engagement in the development of vocational programmes; provision of coherent routes to fulfil vocational aspirations; the introduction of an extended project to replace coursework; and a more academically stretching system of assessment.
"Each of these will require short and medium-term reforms. On that basis, the report recommends development of the diploma, with the recommendation that over time all existing academic and vocational qualifications would be brought within its framework. The report argues that this approach has many advantages. It would establish a single coherent, understood qualifications framework for the first time. It would put vocational and academic qualifications on a common footing, again for the first time. It would promote greater personalisation of the curriculum to meet the needs of individuals and greater choice for young people. The report also argues that a diploma would stretch our most able young people while re-engaging with those who currently drop out of learning. Such an approach would, of course, bring great challenges, as the working group acknowledges. It would be the biggest single reform of qualifications in any of our lifetimes.
"Mr Tomlinson's report states that there is a need for further work by the Department for Education and Skills and its partner organisations before there is a blueprint for reform, and that the reforms would take at least 10 years to introduce. I agree with the careful, deliberate, approach to reform the working group has adopted, and accept that approach. Above all, in this complex area, we owe it to our young people to ensure that the stability of the qualification system is paramount in our thinking, and that reform is based on consensus, evolution, careful planning and the rigorous piloting of any change.
"For those reasons I shall of course be considering the report carefully. My intention is to make positive and detailed proposals in the form of a White Paper early in the new year. The White Paper will include my assessment of how the working group report measures up to the five tests that I set when the interim report was published, which are as follows.
"Excellence—will it stretch the most able? Vocational—will it address the historic failure to provide a high quality vocational offer that motivates young people? Employability—will it prepare all young people for the world of work? Assessment—will it reduce the burden of assessment? Disengagement—will it stop our high drop-out rate at 16?
"In preparing the White Paper I shall of course work with my colleagues with responsibility for education and training in Wales and Northern Ireland, who share our qualifications framework, and with our statutory partners. I am writing today

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to the Qualifications and Curriculum Authority to ask it to undertake the necessary work to enable us to develop our detailed proposals for the White Paper.
"I shall also discuss my proposals with a wide range of stakeholders, including schools, colleges, universities and employers, and I look forward to hearing the views of the Education and Skills Select Committee in due course. I expect this to be the first of many opportunities to consider those crucial issues in this House.
"I am determined that any evolution of the system must increase public confidence in it. Therefore my approach will be to build on all that is good in the current system, including the real and great strengths of A-levels and GCSEs.
"The Tomlinson report rightly confirms their place in the system and seeks to build on them. They would stay as the building blocks of any new system. As Mike Tomlinson's report makes clear, assessment must and will continue at all levels on the basis of rigorous, trusted and externally marked examinations. But, again, as the report proposes, we will need to consider the number and nature of those exams.
"We also believe that it is essential that full public accountability for results is maintained, including the publication nationally of exam results, school by school, at 16 and 19.
"The Government have made tremendous strides in taking action to raise standards in primary and secondary schools. We have also addressed both the challenges of higher education and the development of the nation's skills base. We now have to move on the reforms of 14 to 19 education and training. A number of the most pressing problems are already being addressed. For example, this September saw the first 1,000 pupils on young apprenticeships start their programmes, and the introduction into the national curriculum of work-related learning for all 14 to 16 year-olds, with an increased take-up of vocational qualifications. The increased flexibility programme allows 14 to 16-year-olds to spend time out of school in colleges or work-based learning. Currently, approximately 90,000 pupils at 2,000 schools are involved.
"The working group's proposals now give us an opportunity to consider more far-reaching reforms that will shape 14 to 19 education for decades to come. Its proposals have implications for every single young person in school, college or workplace, and for those who work with them. It is a great opportunity, but with that opportunity comes the heavy responsibility to turn Mike Tomlinson's vision of a 14 to 19 system that meets the needs and aspirations of all our young people into a practical reality. I hope that all sides of the House will share that objective".
My Lords, that concludes the Statement.
4.53 p.m.
Baroness Seccombe: My Lords, I thank the Minister for repeating the Statement made in another place.
First, perhaps I should make it clear that I have not had time to read the Tomlinson report in detail. It is a report that we shall want to study very carefully. It will be an important contribution to the debate on raising standards in education, which is something that remains even more urgent than it was seven years ago. Indeed, in many respects, we appear to have gone backwards over the past few years.
I add my thanks to Mike Tomlinson and his team on the work that they have done. At first sight, there is much in their report to commend, much to reflect on, but also elements that to my mind do not point in the right direction.
It is my fundamental belief that there has been too much messing about over the past two generations with examinations, assessment and the content of education. Many of the changes that have been made, which often carry the broadest possible consensus across the ranks of educational experts, have not always served us well.
That is why we on these Benches believe that we must build on what works, and not yet again start from scratch. We must be cautious about anything which, in the laudable and universally agreed aim of improving vocational education, weakens what benchmarks of excellence remain.
My right honourable friend Michael Howard has outlined areas where we think policy on examinations and assessment requires reform, and that speech, as well as our reflections on what Tomlinson says, will inform the approach of a future Conservative government. It is essential that this report is examined carefully before further radical change is imposed, and we shall play our part in that. As the proposed 10-year programme in the report will stretch across three Parliaments, it is important to reach cross-party consensus, at least on the major issues. I was glad to hear that the Minister undertook to involve opposition parties in the period up until next May.
We accept the Tomlinson objectives to raise core skills of literacy, numeracy and computer technology, improve vocational education from the age of 14 and to challenge and differentiate the most able more clearly. But it is a matter of some concern that the Government's programmes on literacy and numeracy are not working as we all hoped.
How does the Minister react to the recent CBI survey showing that more than a third of all employers thought that standards were inadequate and getting worse? How will the report help specifically in that area? And what changes will the government make? Does the Minister agree with the CBI when it says that an attempt to scrap all existing exams would be an unwelcome and unnecessary diversion from this urgent impasse in standards?
In debates on the recent Bill on higher education there were calls on all sides for higher quality vocational training. I agree. Vocational education has

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not had the attention that it deserves—not only from one party but across all parties for generations. It is against that background that we shall study Tomlinson positively. It is not just the name that we give to a programme of study that counts but what that programme contains and how rigorously and independently it is assessed.
The Tomlinson recommendations on vocational education go to the heart of an abiding weakness in British education that we all have a duty to address. Whether they are the right solution will be a matter for consideration in the months ahead, and I hope that your Lordships' House will have an early opportunity for a debate.
I must ask for clarification on a few points of detail. Does the Minister agree with the implication of Tomlinson, and of some recent research, that there has been grade inflation? Is he content that more than 20 per cent of all A-level students should have the highest grade? Tomlinson recommends that only 5 per cent should get his proposed A** grade. The fact that an A-grade has to be further differentiated may suggest it is too widely offered. Does the noble Lord agree in principle that fewer sixth formers would get the very highest grade?
Do the Government now intend to scrap the revised AS-levels that they recently introduced? If so, do they have any idea of returning to the old AS or half A-level, or of liberalising the regime in education so that schools can choose other examinations and qualifications that are currently banned?
Will the Minister confirm that, as the Prime Minister himself has argued, school league tables have been a valuable and useful tool for parents? Does he agree that external assessment at 16 is an essential condition not only for those league tables, but for employers, as argued by the British Chamber of Commerce? Will the Minister please inform this House whether he supports that view?
There may well be benefits in a diploma which combines academic and vocational achievements. Surely that should not replace but include GCSEs and A-levels. Will the Minister make it clear that Her Majesty's Government will not abolish the GCSE and A-level examinations, but will instead act to increase the rigour and proportion of external assessment?
As I said at the beginning, this report offers us a great opportunity and a real chance for progress in an area that is of great concern to us all. We cannot afford to waste time debating the abolition of a well understood and respected system of GCSEs and A-levels. Our duty is to work to raise standards for all pupils, not water them down to the cost of our children, employers and future society.
5 p.m.
Baroness Sharp of Guildford: My Lords, I, too, would like to thank the Minister for repeating the Statement made in the other place; I also thank Michael Tomlinson for the final version of his report which fleshes out some of the earlier proposals that he made in his interim report.
The noble Baroness, Lady Seccombe, said that over the past two decades we have had too much messing about with the examinations system. My noble friend Lady Williams of Crosby, the right honourable leader of my party, reminded me that 25 years ago she put forward proposals for the reform of the A-level examination. We have, indeed, waited a very long time for such reforms.
Broadly speaking, we on these Benches very much welcome the proposals that have been made by Mr Tomlinson. In particular we welcome the recognition in the wider diploma not just of exam results but also of other achievements at school, particularly achievements in the field of leadership, in such areas as community studies and in sports, and that these merit recognition when a student leaves school.
We welcome the key emphasis on literacy, numeracy and ICT maintained from the primary curriculum through to the secondary curriculum. As I understand it, all levels of the diploma, even the entry level, will require some acknowledgement of achievement in basic skills. What I am not clear about is whether that achievement is to be at level 2, which would imply at least a C pass in GCSE today, whether an entry level diploma requires such a pass, and, indeed, whether the foundation level diploma requires in mathematics, English and ICT the equivalent of a C pass in GCSE. It is not clear to me whether that is the case.
We also welcome the proposed shift from taking examinations at specific ages to taking examinations when students are ready for them. We have for a long time advocated what I call the "music grade" system of examinations in these more specialised areas so that a student could, for example, mix a grade 3 in French with a grade 8 in physics and chemistry. It seems to us very sensible that one should have this modular, unitised system. Indeed, we are pleased to see it emerging here. It mixes very well with the kind of proposals that we have made in relation to higher education where we want to see what we call our "climbing frame" for learning extended so that the modularity can be built on from 14 onwards through not only to 19 but also into the higher education sector.
We welcome the proposed integration for the academic and vocational streams of learning so that those leaving school and pursuing vocationally based courses slot into the same system. You can have grade 8 based qualifications in plumbing or in joinery as much as in physics or in chemistry. Allowing young people from 14 onwards to study vocational subjects both in FE colleges and, on occasion, on work based courses, could help to motivate them and make the maths, English and ICT that they will be studying more relevant, and give greater prominence to vocational routes to qualifications at levels 2, 3 and 4 which many parents and teachers do not know about and underestimate the value of.
I would like to put four questions to the Minister. First, if teacher assessment is to replace external assessment at the GCSE age 16 exams—these would be in the specialist areas where, as I say, in the future I believe that we are looking to what I call the "music

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grade" exams—are we going to professionalise internal assessment by, for example, picking up the Secondary Heads Association proposals that some teachers should become effectively chartered examiners? Secondly, is the aim ultimately that all young people should aspire towards the advanced diploma at level 3 at age 19 rather than just the level 2? At the moment on the whole the aim is that everyone should achieve at least level 2. Is the ultimate aim that we should move towards level 3?
Thirdly, implementation requires collaboration between schools and the FE sector and, for that matter, the world of work. As the Minister will know, there is a major problem at the moment in that pay scales in schools and the FE sector differ fairly substantially so that those teaching A-levels in the two sectors can have pay scales that differ substantially. Can the Minister give us an assurance that the Government intend as a matter of urgency to address those differentials in pay scales so that individuals may attain the basic right to equal pay for equal work?
Fourthly, if young people are to benefit from this more personalised approach to learning, enabling each of them to a degree to pick and mix courses according to abilities and preferences, they will need better information, guidance and counselling on careers than they receive at the moment. Can the Minister give us an assurance that high on his list of priorities is bringing careers guidance and the Connexions service within this framework?
We on these Benches think that these proposals are very exciting. They look forward to the kind of framework that we think is needed in the 21st century using constructively the e-learning framework and, for that matter, e-examining. Equally, we are aware that we cannot jump from here to there overnight. There will be a long, 10-year process of evolution. To our mind the greatest danger lies in taking only half the loaf. These proposals make sense as a whole; there is little point in implementing a few and leaving others aside.
5.8 p.m.
Lord Filkin: My Lords, in rising to thank both Front Benches for the generally warm welcome—albeit tinged by perhaps a different emphasis in terms of the questioning that both noble Baronesses gave to this extremely important report—I shall slightly irritate the Front Benches and the House as I shall not be drawn too much into what we specifically think or what we specifically do for the very good reason that I indicated earlier; namely, that we shall put out our considered response in a White Paper in early 2005.
That is not just a stalling mechanism; it is for the good reason that we think that the importance of the issues and the quality of the work in the Tomlinson report is such that it merits reflection at this stage rather than instantaneous reaction by Ministers and, I suspect, by any of us as politicians. It matters to us all to get this right rather than to go for a quick sound
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bite. Therefore, I hope that the House will bear with me if I am less than crisp in my responses compared with what I would normally wish to be; it is for good reason.
The noble Baroness, Lady Seccombe, remarked that it was important to reach cross-party consensus on these issues. She is right in principle. That was mentioned by my right honourable friend the Secretary of State for Education in the Statement that he gave in another place. I refer to the serious attempt to brief opposition Front Benches on those issues.
We want to try to achieve a broad measure of support on where we are moving forward because one does not want such an important agenda to be disturbed by the twists and turns of political chance. If—as we believe—these agendas are enormously important, we must be able to move forward on them, whichever party is in government. Noble Lords will be surprised to hear that I hope that my party is in government for many years to come! However, we should not be so hubristic that we do not countenance the possibility of an alternative. Of course, that does not mean that any of us have an absolute veto on every issue. It is not a case of the lowest common denominator consensus; we are trying to reach a consensus on why these issues matter—I think that there is a broad consensus on that—and how we then make real seizure on closing the gap between where we are at on some of these problems now and what we need to do to address them. I position it in that way and I am sure that the discussions that have been characterised so far will not stop at this point.
The noble Baroness asked if we agree with the CBI that too many people enter the world of work with inadequate basic skills. Yes we do. It is incredibly important that people have good functional English, mathematics, ICT skills and communication skills. As well as knowing trigonometry they should understand how many sevens make seven-eighths. These are practical considerations for the world of work. Part of the challenge that the Tomlinson report has been asked to address is how to do that and it is clear on this matter.
I will not now go into the hoary old chestnut of grade inflation. Most of us recognise that the A-levels we took in the past are different from those that students take now. They are different in the form and thrust of the evaluation. We commend those students who have reached the highest grades, but we also agree that the universities have difficulty identifying the very highest achievers in that context.
We want to provide stretch and challenge to the very highest achievers too, as we do not want any of our young people to coast when they could be stimulated by a higher standard to go further.
School league tables have been valuable and we believe that they will continue to be so, both as information to parents and as a mechanism for stimulating schools to raise their educational attainments. Both parents and schools have a right to know this information. It bears on the question of the degree and form of external validation and assessment

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to make sure that there is a robust ability to compare performance between schools. Those are issues for the White Paper.
Until the noble Baroness, Lady Sharp, reminded me, I had not realised that the case for A-level reform had been so mature in its genesis. As ever, it is good to be reminded of those things.
I appreciate her welcome for the emphasis on achievement of basic entry skills. I note her question about whether basic level 2 is required for basic skills at the entry grade. My recollection is that it is level 1. If I am wrong I will come back to her on that.
The noble Baroness asked challenging and difficult questions. Most of those are in the nature of our subsequent response. It would be wonderful if we thought that all pupils could ultimately achieve advanced level 3. Whether that is too utopian is a subject for reflection.
The noble Baroness will not be surprised that I will not be drawn at the Dispatch Box on the subject of increased pay to schools and FE colleges.
She made an interesting and important point on information and guidance. I will take that away to discuss with officials. If there is to be a richer system of offers there must be good information to help people navigate their way through it with an understanding of the implications it has for their career path.
While I have disappointed the House in not giving decimal point answers, I hope that noble Lords can bear impatience until early 2005 when we make our full response. We look forward to further discussion and debate then.
5.14 p.m.
Lord Dearing: My Lords, I welcome the report by Mike Tomlinson and his colleagues.
With all the conviction that is only possible for someone who has to consult nobody and is accountable to nobody, I say that there will be relief and rejoicing throughout the education profession that there is a good chance of consensus on a way forward. The last thing we want to do to our teachers and learners is to march them up to the top of the hill and then to march them down again in a few years. This is very great news and I welcome the Minister opening the opportunity for consensus. From the comments of the noble Baronesses, Lady Seccombe and Lady Sharp, I can see that it lies there.
I come to this matter with some baggage. The previous Government invited me to do a report on 16 to 19 qualifications in 1996. One of my recommendations was that, instead of the present two levels of achievement—GCSE and A-levels—there should be four: entry level, foundation, intermediate and advanced. I am delighted that I might have got that bit right.
I am also delighted that there is an emphasis on the core skills. When I was doing my job, employers made that point again and again. They have been saying for the past 100 years that the standards in English,
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functional mathematics and nowadays ICT are not adequate. There is not a lot of grumbling about the third, but there is about the first two.
One of the main justifications for the diplomas is that to get them it is mandatory that people achieve the required standards for each of the appropriate levels in the core skills. That is the only way of making them happen. People have to do them. I recommended that there should be an AS in the core skills. It never happened because there was not the demand from admissions tutors or from industry. That has to be embedded. It is important to have this, but there is no point having it unless the elements in it have been agreed in advance with employers and the universities.
One of the very good things about Mike Tomlinson's recommendations is that he says that we should not rush. We should do the detailed research, validate it, run pilots and so and on. We have all said how important these things are but continually employers say that they are not happy. Let us get them in.
I also welcome the emphasis Tomlinson places on a much better approach to vocational qualifications. If we are to solve the problems of getting more and more people into learning, then we must use vocational qualifications and these must have standing, relevance and progression paths. These do no not exist at the moment.
My last point concerns the examination of diplomas. If we are going to move away from external assessment at intermediate and entry levels to assessment within the schools, let us proceed carefully and cautiously, first establishing the institute of assessment, getting it going and having chartered examiners. If we mess that up we shall do great damage. Proceed with care and caution.
Lord Filkin: My Lords, I thank the noble Lord, Lord Dearing. I had forgotten that he had in many ways already made these recommendations in 1996. I commend him for his foresight.
He touched on the importance of ensuring that the detail of this is tested with both universities and employers to make sure that we get it right. I totally agree with him on that.
He is absolutely right that one of the fundamental tests of these changes—depending on how we respond when we come back to them—is whether they address the historical tendency of our system not to give an appropriate set of opportunities and stimuli for vocational education, but simply to focus on academic excellence. I do not wish to belittle the importance of academic excellence, but we have a greater challenge in our education system than just that.
On his wise words about proceeding with care on a school-based assessment system, again I nod in support. On this agenda we have made clear that we wish to strengthen the confidence in the world outside on the quality and value of educational attainments rather than to weaken it in any respect. That will be the

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test we bring to any proposed changes, so people will have greater confidence that these qualifications have meaning, validity and relevance.
The Lord Bishop of Chester: My Lords, I add a general welcome to the report before us. The involvement of the Church of England in secondary education is growing markedly. It is also strong in primary education. However, egged on by the noble Lord, Lord Dearing, there is the prospect of up to 100 new secondary schools having a Church of England character about them. Most of them are situated in areas of general deprivation. We are happy to accept that together with the recommendations in that context.
The report seems to chase after that Holy Grail, which many before have chased, for a system which encourages all teenagers to reach their optimum in a recognised level of attainment in those key teenage years. Our rate for the drop-out of teenagers from education has been terrible in recent decades.
I noted that the Minister was shy in some of his answers, but I want to tempt him to comment further on two issues. First, on glancing through the report there seems a need particularly to recognise the professional status of teachers in new ways. The noble Baroness, Lady Sharp, mentioned that pay scales do not uniformly contribute to that.
Teacher pay has increased well in recent years, which is a considerable achievement, but there must be a commitment at least to maintain that level. However, as additional responsibility must be placed upon teachers in the assessment regime, the dignity and honour which often surrounds teachers on the continent must be developed. One of the differences between the systems of education on the continent and in this country is that the teaching profession is regarded differently.
Will the Minister comment further on the development of the A + and A + + grades? At first sight, that seems to answer the question whether there is grade inflation or whether the sheer numbers who are achieving the present A grade are doing so well; it is beside the point. However, the more A + and A + + grades are awarded and allow on the record of attainment the fact that people have undertaken modules of first-year undergraduate character at level 4, the more there is a danger that some schools will be better at delivering those grades than other schools.
There has always been a problem that ultimately schools which are more academic seem to have an advantage on the playing field. The dilemma of the Government's policy is that more one emphasises choice in education the more one ends up with winners and losers. There is a danger that those schools which are for whatever reason lower down the league tables will find it hard to compete with schools which have a more established track record of delivering A +, A + + and the other achievements on the record of attainment. There is therefore a need to build in checks and balances.
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When I was an admissions tutor at Durham University, for popular subjects such as English and law we often had applicants who were predicted three As and we had to choose between them. We interviewed them. I know that there are many problems with interviews but something was set against the paper predictions. Does the Minister therefore agree that alongside the A-level proposals there is a need for checks and balances to maintain a level playing field for all applicants to university?
Lord Filkin: My Lords, I am pleased to receive the broad support of the Church for these changes. The right reverend Prelate speaks for the Church and as a serious educationalist in our society.
On his first question of recognising the qualifications and professionalism of teachers, that story has become stronger in recent years. Teachers have felt more valued and their recognition in society is greater than it may have been some years ago. The Government have certainly been pleased to be part of the process of strengthening the confidence of the profession.
I shall not make pay statements or even reply on the agenda from the Dispatch Box. The right reverend Prelate the Bishop of Chester will not be surprised by that in the slightest. Pay is always an issue, but other things are also important to the confidence and the capacity of the profession to engage. I pay tribute to the way in which the teaching profession has in many ways rebuilt its confidence and power to raise itself to some serious educational challenges we have put in place.
The right reverend Prelate is right to raise the anxiety about the A + and A + +, but he is not right to imply that we should not have a system that tests the most able. We should be testing the most able and trying to have a system of evaluation which draws them to work harder and to raise their standards. To believe that we should suppress them just because there may be difficulties of competitiveness seems to be wrong.
Nevertheless, the right reverend Prelate is right that there is an issue for employers and to a greater extent for universities in recognising that different environments lead to the potential for equally bright students to attain different results. We have engaged on that issue in this House in a number of recent debates. In focusing on it, we must try to ensure that regard is paid to the different environments rather than say that we should not stimulate the most able to be more stretched by our current examination systems. We must want both.
Lord Addington: My Lords, does not the Minister agree that this is a golden opportunity to get rid of one of the great bores of the summer by scrapping the name "A-level"? It is an almost universally accepted fact that A-levels were most difficult "when we did them". They have changed—they are no longer the one-off examination designed for entrance to a degree course where the final paper indicated what had gone before and did not involve a great amount of course

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work, as with degrees. They have become course-work modular-based projects to send students on to course-work and modular-based degrees.
The great mistake that governments made was to fail to change the name. Will the Government assure us that they will change the name and ensure that this illusory gold standard is removed? It will make the journalists work harder during the silly season because we are merely giving them the chance to compare apples with pears and chalk with cheese and to do some very sloppy work.
Lord Filkin: My Lords, Tomlinson says that while the name "A-level" would disappear in time after the diploma was introduced, much of the content of A-levels would continue as part of the diploma. Clearly, Tomlinson is saying that the name "A-level" will go but not the content. In answer to both points, my reply is that we will wait and reflect and issue our response to the White Paper early in the new year.
However, we shall not scrap anything until we are confident that we have something better in its place and a clear route of achieving that. We do not want to destabilise the system prematurely in advance of putting in place something better. That is why we will be resistant to implying that these changes will be made instantly or that we shall instantly put a gun to the head of any one part of the system until the time is right to put in place something better. Without giving the noble Lord a more detailed response, I repeat that we must be measured about the issue. We do not want to destabilise the system—we want to put in place a better one while recognising that much of the present system will be in place for many years to come during the transition period.
Lord Mackay of Clashfern: My Lords, these things should proceed deliberately and I am pleased that the Minister has decided that some time will be taken before the ultimate decisions are made. Has he had advice from those in the department who came up through the vocational route?
Lord Filkin: My Lords, I am grateful for the wise words of the noble and learned Lord, Lord Mackay. I think we used the rather ghastly phrase "planned devolution" as the process of change, but I think that hits what he was talking about on the head.
In truth, I do not know the specific answer to his question but I am sure that the answer must be "Yes", because it would be appalling if it were not so. I shall check.
Baroness Wall of New Barnet: My Lords, does my noble friend agree that the Tomlinson report reinforces the Government's agenda on building skills that is already in place? In fact, as has already been suggested, the critical comment from the CBI this morning was that the priority for employers is building on basic skills. We are already trying to work together with business to do that, which is reinforced by Tomlinson.
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I declare an interest, as I work as a consultant with DfES and the trade unions in this area. Does my noble friend agree that the Government's overall skills agenda focuses on the groups across industry that have shortfalls and does he welcome the fact that Tomlinson has emphasised the technical side of qualifications, to which my noble friends have referred? Young people should feel that it is just as credible to take vocational qualifications as it is to move into higher education.
Lord Filkin: My Lords, I thank my noble friend for her question. The CBI's position has been much flaunted in the media. Our understanding of the CBI's position is that the reforms proposed by Mike Tomlinson have been discussed in detail with it. Charles Clarke senses very strong support from Digby Jones. The CBI reflects the concerns of many of its members in its regions, which are held for good reasons, about whether adequate basic skills are in place to fit people for the world of work that they must enter. Both these issues are relevant to this agenda.
I agree with her that the historic undervaluing of the technical skills as being for those who are not quite so bright—and vocational skills are in danger of being viewed in the same way—has been one of the impediments that we have carried as a society. If we are to be a competitive society in an increasingly competitive world, we cannot afford to carry on like this.
Lord Walton of Detchant: My Lords, on this occasion I do not wish to make excessive use of the retrospectoscope, but in 1992 I had the privilege of chairing the Paul Hamlyn Foundation National Commission on Education, which published its report, Learning to Succeed, in 1993. Most of the principles in the Tomlinson proposals, which I welcome, were set out in that document.
I shall ask the Minister two questions. One of the principles of the diploma that we greatly favoured—we proposed it should be called the general education diploma, but the name does not matter—was that those who were following the vocational route might be able, through credit accumulation and transfer, to continue to acquire these qualifications, even in post-18 employment. I would be grateful if the Minister would tell me whether that is part of the Tomlinson proposals. The second question is whether, bearing in mind the variability between different schools, he is satisfied that the in-school assessment proposed for this diploma will be adequately validated between different educational establishments.
Lord Filkin: My Lords, I pleased to have the support of the noble Lord, Lord Walton, on this report. I should mention to the House that I am taking the names of Peers who have spoken in support in this debate and, should there come a time when we wish to move forward in a White Paper and legislation, I shall be calling in this level of support and reminding noble Lords of their words.

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On the first question about whether it will be possible to continue the diploma post-18, for example on the vocational route, he is absolutely right that that is what Mike Tomlinson is recommending. One can see why that should be so. I shall not repeat what I previously said on in-school assessment but we are alive to the importance of sustaining and improving the confidence of employers, universities and the world outside about the validity, comparability and standards of educational tests. In-school assessment is one of the issues that has to be looked at to see whether it can meet that test.

Constitutional Reform Bill [H.L.]
5.34 p.m.
House again in Committee (on Recommitment) on Clause 41.
On Question, Whether Clause 41 shall stand part of the Bill?
Lord Henley: I appreciate that this has already been debated but I shall intervene to make one or two points of a procedural nature. In doing so, I regret that the noble and learned Lord the Lord Chancellor is not able to be here today—I think he told us last week that he had to go to Liverpool and Newcastle—because the questions I wish to put are really directed at him. But, no doubt, the noble Baroness will provide a perfectly adequate explanation in her usual charming way.
When we originally debated the group of which Clause 41 stand part is part, which was the group based on Clause 17 stand part, the noble and learned Lord, Lord Lloyd, made the comment in opening that whoever put together the group of amendments before us deserves a prize of some kind. I have never seen a group of amendments remotely like it before.
I remember a time when I was in a similar position to the noble Baroness. Very often, as a Minister there was a temptation to put together pretty large groups to try to get through the business as quickly as possible. One would start off with as big a group as one could get and messages would come from the other side suggesting changes and then further changes. In the end, one accepted what was offered, normally, by the Official Opposition.
On this occasion, further remarks were made about the size of the group—I think that the noble Lord, Lord Brennan, complained about the size. Then, much more surprisingly, when the Minister in charge of the Bill, the noble and learned Lord the Lord Chancellor himself, came to wind up the debate on this group of amendments, he made the remark that he rather agreed with his noble friend Lord Brennan that the group was indigestible. There are too many items in one group. Quite obviously, his eyes were bigger than his stomach on this occasion, if I can put it in those terms.
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I wish to make the point that, although I can see that there were arguments for having a large group so that there could be a general debate on the question of the Supreme Court, it denied the House the chance to debate some of the detail on the Supreme Court, although we have found other ways of doing it. Various pleas were put in to get the grouping right when we come to this subject on Report. I hope that the noble Baroness will give us an assurance that, when it comes to Report, the noble and learned Lord will not be quite as ambitious as he was and will allow the House to debate not only the general principle but, once that matter has been resolved, also the details that are dependent on that group.
I have another point but I do no know whether it should be put to the noble Baroness, to the noble and learned Lord or to the Whips' Office. It is very small but rather important point. As noble Lords will know, whenever we debate lists of amendments in Committee or on Report, below the heading on the list of groupings is the mantra that says:
"Although every effort is made to secure agreement to these groupings, they remain informal and not binding. It is therefore open to any Peer to speak to an amendment in its place in the Marshalled List".
I think that it is very important that the House is always reminded of that form of words so that noble Lords can be reminded that, even if matters have already been debated, they can come back to them in their usual place. It is possible that later today or on the fifth day of Committee we shall wish to come back to certain amendments. If that is the case, I shall certainly seek to notify the noble Baroness.
Although that form of words appeared on the groupings list today, last Monday—I have a copy of the groupings list for that day—that mantra did not appear, and it rather raised my suspicions that the Government Whips Office was again trying to improve matters for itself by speeding up debate on the Bill. I should like an assurance from the noble Baroness that I am being over-suspicious and that possibly I have a conspiratorial mind. I should like an assurance that it was a mistake, that there is no intention of dropping those words and that we shall see them on the groupings list on every occasion that it is necessary.
Baroness Ashton of Upholland: I am grateful to the noble Lord, Lord Henley. Indeed, he is correct in his summation of what happened last week. I can say only that the groupings were agreed through the usual channels and that therefore this grouping stood because it had been agreed. Having said that, I entirely support the remarks of the noble Lord, Lord Henley, and those made last week by my noble and learned friend and, indeed, by the noble and learned Lord, Lord Lloyd, that, although the groupings would possibly be considered to be satisfactory in Committee, they would certainly not be satisfactory at Report.
Therefore, I give an absolutely clear undertaking that we intend to look for much smaller and more digestible groupings with the opportunity to debate

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these issues on Report at length and in detail as appropriate. I appreciate that for some noble Lords that may seem to be a little late in the day. None the less, as I said, this grouping was agreed through the usual channels.
I also agree with what the noble Lord said about informal groupings and the opportunity for noble Lords to speak. Members of the Committee know only too well that, for ease of running the business, it is useful to group amendments and to stick to those groupings if we can. In that way, they will receive a better service from those on the Front Benches who have to try to reply in good order. However, as noble Lords also know very well, one can always speak to one's amendment at any point if one wishes to do so.
I am absolutely certain that it will simply be the case that the words were omitted. I have no doubt that the Whips Office will ensure that they are included on future occasions. On that basis, I hope that the noble Lord will feel able to withdraw his opposition to the clause standing part.
Lord Goodhart: Before the noble Baroness sits down, perhaps I may add a short complaint about the groupings. When I arrived this morning at about 11 o'clock, I found on my laptop a draft set of groupings which was e-mailed on Friday afternoon—a day when the House was not sitting—with a request for alterations to the groupings to be sent by 10.30 this morning. I am glad to say that there was a response to the one request that I made, although it came outside the cut-off time. But it seems to me that we should pay a little more attention to the practicality of ensuring that draft groupings are circulated in time.
The Earl of Onslow: Perhaps I may also have an undertaking from the noble Baroness. This is in absolutely no way a criticism of her because I think that she is answering our questions with charm and doing her level best to answer them properly. However, it seems slightly odd that the noble and learned Lord the Lord Chancellor, who is intent on mucking up the constitution, is not here to do so himself. Can we have an undertaking that he will be here throughout the whole of the Report stage and that he will not go off gallivanting around the country?
Baroness Ashton of Upholland: In response to the noble Lord, Lord Goodhart, my understanding is that we cannot form groupings until all the amendments have been tabled. I did not receive my copy of the groupings list until Friday evening and therefore was unable to start work on addressing the issues until then. Therefore, my weekend was rather busy too.
I shall look at this matter because I appreciate that it is important—not least because, frankly, if people are to change the groupings, the sooner I know, the better the service I can give the House. But the problem
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probably arose due to the time by which the amendments had to be submitted, which meant that we could not make the groupings until the last minute.
Lord Goodhart: I think that the normal practice has been to ask for any amendments to be submitted by noon. I had assumed that that would be the case on this occasion but we were asked to table them by 10.30 a.m.
Baroness Ashton of Upholland: I am sure that the noble Lord is right in thinking that the amendments would not be required to be submitted until noon on Friday. The grouping would then take place and noble Lords would be notified.
Perhaps we can discuss outside the Chamber whether there is a better method of getting this information across. However, to some extent, we are in the hands of noble Lords who wish to table amendments. The sooner we have them and the sooner we know that the list of amendments is the final one, the faster we can group them and the more satisfactory the process. Therefore, perhaps we can do some work on that.
In reply to the noble Earl's question, there is no desire on the part of my noble and learned friend to be anything other than a good servant to your Lordships' House, although, on occasion, there will be longstanding business that must be dealt with. I looked forward to the opportunity of taking various parts of the Bill through the Committee stage. Having felt that my noble and learned friend had dealt with some of the major issues in our deliberations in Committee last week, in part I am looking to take back to my noble and learned friend comments for the Report stage. I hope that, in that spirit, the noble Earl will feel that there is no disrespect to the Committee. Rather, I hope that I can be of as equal service as my noble and learned friend.
5.45 p.m.
The Earl of Onslow: The noble Baroness's sincerity, ability and charm are receiving no form of criticism from me whatever. It simply seems to me that we are dealing with something of extreme importance and that the Minister should be here himself, even if he makes a pig's ear of it and has to be rescued by the noble Baroness and the noble Lord sitting behind her, who is an ever-present help in trouble.
Lord Henley: I conclude by thanking the noble Baroness for that assurance. As ever, I want to be as fair as possible. Therefore, perhaps I may give an assurance to the noble Lord, Lord Goodhart, that I received the e-mail on Friday or Saturday by means of the remote access available under the parliamentary computer system and I was able to respond to the Government Whips Office some time late on Sunday afternoon. But, again, like the noble Lord, my understanding was that normally one has until about 12 o'clock to comment on any further draft list. That can sometimes be quite difficult if, like me, one has to travel down early on a Monday morning from Cumberland, as that rules out any further remote

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access to the parliamentary computer network. Nevertheless, I managed to receive something today and, so far as I am concerned, the list of groupings seems to have been dealt with satisfactorily. Therefore, I have no intention of pressing my opposition to Clause 41 standing part of the Bill.
Clause 41 agreed to.
Clause 42 [Officers and staff: appointment by Minister]:
[Amendment No. 88BQB not moved.]
Baroness Carnegy of Lour Baroness Carnegy of Lour moved Amendment No. 88BR:
Page 16, line 4, leave out "may" and insert "shall"
The noble Baroness said: In moving Amendment No. 88BR, I shall speak also to Amendment No. 88BU, which stands in the name of my noble friend and myself.
Listening to the debate on Amendment No. 88BQ, which was dealt with before the Statements were read, I found myself wondering whether these two amendments should have been grouped with that one because, in a sense, they are on the same subject. However, having listened to the Minister's reply, I was very glad that we had kept them separate.
In replying, the noble Baroness suggested that Clause 41, which we were discussing under the previous amendment, was not the key clause for debate. As I understood it, she suggested that, when discussing that subject, the key debate should be on Clause 45, and it is to Clause 45 that Amendment No. 88BU refers.
These two amendments relate respectively to Clauses 42 and 45 and to the incomprehensible fact that, under these clauses, it is left entirely to the Minister's discretion whether he or she provides accommodation to the Supreme Court, whether he or she equips, maintains and manages that accommodation, and whether he or she provides staffing for the Supreme Court. Clause 42, which relates to staffing, and Clause 45, which relates to accommodation, are, on their own, completely astonishing.
Of course, we shall all read very carefully what the Minister said about the amendment to Clause 41, because it was a complicated reply and I do not think that I have taken it in fully. However, I think that when it proposed that the subject should be addressed in Clauses 42 and 45, the Law Society of Scotland may have used the same reasoning that the Minister used. I do not know. We shall see as time goes by. Not only must the Minister provide accommodation and maintain it and provide staff, but we have repeatedly said, both on the previous Committee day and today, that that should be arranged before the court is set up. Last week the press reported that the Lord Chief Justice himself took that view, which I thought was interesting.
Amendment No. 88BR would place a mandatory duty on the Minister to appoint such officers and staff as he thinks appropriate for the Supreme Court, and
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Amendment No. 88BU to provide, equip, maintain and manage the accommodation as he thinks appropriate. The Law Society of Scotland feels strongly that those two functions should be mandatory on the Minister. I hope that when the Government table the amendments that are now promised and we have further debate on them, they will take on board that simple point of view from the Law Society of Scotland, which seems to me to have engaged in some very good thinking, and that those provisions will be made mandatory. The word in respect of all these matters should be "shall", and I am sure that the House will make sure that that happens before the court goes into action. I beg to move.
Lord Mackay of Clashfern: I happen to be an honorary member of the Law Society of Scotland, but that does not affect my view of this particular issue. It would make for consistency between the words used in Clause 41 and the later clauses in which the word "may" appears if the word "may" were replaced by the word "shall", as the Law Society has suggested.
The Earl of Onslow: It is absolutely incomprehensible to me that the Minister "must ensure" in Clause 41 and "may" in Clause 43. What happens if he just cannot be bothered to do it? He is not forced to do so by the Bill. The Bill simply gives him a discretionary power. Surely, as a matter of pure logic, it should read "must". I know that,
"the word must is not to be used to princes … little man",
but on this occasion "must" should be "must".
Lord Carlisle of Bucklow: It seems to me that these amendments apply not only to Scotland but also to the whole of the United Kingdom. If so, they raise again the point made by the noble Viscount, Lord Bledisloe, in an earlier debate. As was said at that stage, when the Minister said that it was unnecessary to put in the word "premises", as a requirement on the Minister to provide appropriate premises as well as services, when one looks at Clause 45, it can be seen that the Minister is required to provide, equip, maintain and manage such Court houses, offices and other accommodation as he thinks appropriate. Therefore, there was a totally subjective test on premises, whereas on other matters the Minister was arguing that it was an objective test in relation to the requirement to provide an efficient and effective system of support. That enhances the importance of the substitution of the word "must" for "may" and the importance of returning at some later stage to Clause 41 to ensure that it is not in conflict with Clause 45 by apparently placing subjectively on the Minister a lower requirement to provide premises than he has to provide for other matters. At the end of the day, as the noble Viscount, Lord Bledisloe has said, the premises are immensely important in deciding whether or not it is appropriate that we should have a Supreme Court.
Lord Kingsland: In view of what has been said in the course of the debate on this and the previous amendment, I find the word "may" in Clause 45(1)

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quite incomprehensible. Is it suggested that the Minister will have the option not to do those things? If not, then why does the word "shall" not appear there?
Baroness Ashton of Upholland: I have this morning discussed with officials the difference between the words "shall" and "may". In my short experience in your Lordships' House, the words "may" and "shall" have played a huge part in some of my deliberations.
Let me clarify the point about the discretion, because it is very important to place it on the record so that Members of the Committee can reflect on it. The discretion is not whether to provide accommodation or staff; it is whether the Minister should provide them directly or whether they are to be provided through staffing arrangements under Clause 43, or accommodation arrangements under Clause 45(2).
Having said that, I have enormous sympathy, as I am quite sure my noble and learned friend will, with what Members of the Committee have said; namely, that there is no question whatever but that accommodation, officers and staff must be provided. The issue is a linguistic one of how best that can be expressed on the face of the Bill.
I should like to reconsider this matter. As I have already indicated, we plan to table amendments at Report stage. I am sure that we will find a way of capturing what the Committee is seeking. I would suggest that it has already been captured, but clearly the Committee feels that we need at best to look again at the question so that I or my noble and learned friend can ensure that it is fully understood.
There is no question in my mind that the purpose behind this amendment is to ensure that these measures are provided. The question is how it is put on to the face of the Bill to ensure that we can delegate certain aspects of it—perhaps in relation to cleaning staff and so on—which would be right and proper and something that I am sure noble Lords would support, but in a way that the drafting of the Bill would allow. On that basis, I hope that the noble Baroness will feel able to withdraw her amendment.
The Lord Bishop of Chester: Before the Minister sits down, I should say that I do not think the distinction is purely linguistic. I take a certain personal interest in the matter because when the bishoprics were disendowed finally more or less in the 1940s, the measure stated that the Church Commissioners may have the power to provide housing for diocesan bishops. Over the years the bishops of the Church of England assumed that that meant "shall", but the legal advice that the Church Commissioners received with regard to their absolutely inalienable core obligations does not include the provision of housing to diocesan bishops because the word was "may" rather than "shall". I therefore believe that the distinction is not purely linguistic and that there is real merit in making the obligations absolutely clear.
Baroness Ashton of Upholland: The right reverend Prelate will not be surprised to hear that I do not wish to get in between the Church Commissioners and their
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legal advisers. I repeat that the word "may" refers to "how", not that it "must" be provided. That is the distinction. However, as all Members of the Committee looked slightly bemused when I gave that indication, we will consider the matter further.
Lord Mackay of Clashfern: What the Minister has said reminds me that there certainly was a judicial sensitivity when in the past a proposal was made for so-called outsourcing in relation to the services of court staff. Therefore, I believe that careful thought is required about the extent to which the power to outsource, if that is the right expression, would be used in circumstances in which the people involved are close to the judicial process.
Baroness Ashton of Upholland: The noble and learned Lord is right to raise that matter. However, I go back to the points that I made earlier today about efficient and effective provision, which those involved would also be happy for me to make, in terms of the right kind of outsourcing. Having said that, however, there are clearly opportunities to delegate in order to get particular staff within the provision. We need to make sure that we have it right.
6 p.m.
Baroness Carnegy of Lour: I thank all noble Lords who have contributed to the debate. I am very glad to have moved the amendment because several facts have come to light.
The question of whether "may" means that the Government may cause this to be done through third parties or may do this themselves seems to me to be not a particularly good argument for using the word "may". The Bill must state that the Government must see that these things happen by whatever means. That is the point. I think that probably a wee bit of drafting has to happen. My noble and learned friend Lord Mackay of Clashfern pointed out that there needs to be consistency between Clause 41 and Clause 45, which is right. I meant to say that, so I am grateful to my noble and learned friend, who never misses a trick, for helping me in that way.
The Government have to do a lot of work, not only for this to happen but also to see that it is on the face of the Bill in a way that means that the Government have to do these things whether through a third party or themselves in the case of staffing or the provision of the accommodation. I hope that the noble Baroness takes that on board. In the mean time I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 42 agreed to.
Clause 43 [Staff: provision by third parties]:
[Amendments No. 88BRA and 88BRB not moved.]
The Duke of Montrose The Duke of Montrose moved Amendment No. 88BS:
Page 16, line 26, at end insert—
"( ) the Lord Justice Clerk;"
The noble Duke said: First, I apologise to the Committee for the fact that I was not able to be here during the course of the debate on the first amendment in Clause 41. However, as it has had relevance, I have done my best to catch up with what was said at that time.
In moving Amendment No. 88BS I shall speak also to Amendment No. 88BT. These amendments go back to the whole question of consultation, about which we had discussion earlier. Amendment No. 88BS ensures that the Lord Justice Clerk is included in the list of senior judges. This, again, is a point raised by the Law Society of Scotland.
The list of judges contained in Clause 43 with whom the Minister should consult before making staffing arrangements includes many officeholders in the legal system of England and Wales. The list omits the office of Lord Justice Clerk as one of those senior officials in Scotland. The Lord Justice Clerk is the second most senior Scottish judge after the Lord President of the Court of Session. The Lord Justice Clerk sits in both the Court of Session and the High Court of Justiciary and takes precedence over all, barring the Lord President and other Senators of the College of Justice.
We raise this question because of the need for appropriate Scottish representation but also to cover eventualities when the Lord President of the Court of Session is not available. There might possibly be a moment when by some misfortune the Lord President of the Court of Session is either too ill or perhaps has passed away and has not been replaced, or there might be other issues. It is a matter of having equitable consultation of the appropriate parties in the United Kingdom.
The only other question I should like to ask the Government, if the Minister is able to reply, is whether she has any view of what this consultation will entail. It would be interesting to know whether the Government are merely going to pass notice to the various parties or whether they would require more response and interchange between the Government and those consulted.
Amendment No. 88BT adds a list of various legal bodies. Clause 43 allows the Minister to make staff provision for the court with third parties. The Minister is obliged to consult senior judges before making such appointments but no other bodies. That ties in with the intervention from the noble and learned Lord, Lord Mackay, who said how various people had sometimes been upset by the appointment of third parties, perhaps to jobs that would have been done, as one might say, in-house rather than by outsourcing, which I think is the word he used. The Law Society of Scotland believes that the proper administration of the court is a matter of importance to the whole legal profession, not simply the senior judges. This amendment ensures that there will be consultation with the legal profession in each jurisdiction in the United Kingdom. I beg to move.
Lord Maclennan of Rogart: I rise briefly to support the noble Duke in respect of the proposed insertion of
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the words "the Lord Justice Clerk" in the list of consultees. I believe that this is an appropriate recognition of his seniority in the Scottish system. My only experience of having direct contact with the senior judiciary in Scotland is when I was consulted, as a Member of Parliament, about the possibility of removal of someone from the Bench. On that occasion I was consulted by both the Lord President and the Lord Justice Clerk who clearly felt that in such a matter both should pronounce and both should hear what I had to say. They are not exactly Siamese twins but they have a role which it seems to me they very often seem to exercise together.
Baroness Carnegy of Lour: I think I am right in saying that the noble Lord, Lord Maclennan, was of course a Scottish MP but an English lawyer, so he brings a particular insight to these matters.
The noble Baroness may or may not know that the Lord Justice Clerk has been the second most important judge in Scotland for 500 years. So, it is a little peculiar that he is left out of the list of consultees. The Master of the Rolls and the President of the Queen's Bench Division are in the list as the second and third most important judges in England and Wales, so in fairness and for practical reasons, as my noble friend the Duke of Montrose said, he should be included in the list.
A number of amendments make this point. When my noble friend and I talked about this we thought perhaps it was right to discuss them when we reach the subject to which the list applies. However, we shall not need to spend long discussing this matter, particularly if the noble Baroness accepts my point, as I hope she will, about who should be included in the list. If that does not happen, there may be a little trouble.
Lord Mackay of Clashfern: I think it must be just an error that this particular office bearer was not included in the list because he is of the equivalent status to some of those who are mentioned in the English system. I hope that the noble Baroness is in a position to accept the amendment today. That would seem to me to be right.
However, in relation to this clause, here the Minister is being given the power to fix the fees in the Supreme Court. My understanding is—I am sure that I shall be corrected if I am wrong—that at present, the power to fix fees in the Supreme Court of England and Wales—that is, the present Supreme Court—requires the Lord Chancellor to secure the agreement of three out of four of the heads of division. So, it seems to me that there is something to be said for the Minister, if he is to do the fixing of fees, being required to secure the consent of the President of the Supreme Court. I do not suggest that he needs to secure the consent of all in this list, but certainly that would seem to be the corresponding provision to that which presently exists, as I recollect, in relation to the Supreme Court.
As regards Amendment No. 88BT, there is much to be said for the view that in fixing fees in the court, the profession should be consulted; that is, the Bar and the solicitors' branch. That is basically what Amendment

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No. 88BT proposes. I hope that the Minister is in a position to accept that amendment or at least to indicate that in due course she will accept it.
Lord Hope of Craighead: I can offer some assistance, because I was at one time the Lord President of the Court of Session, the other of the twins to whom the noble Lord, Lord Maclennan, referred, and I think I was consulted by him on the occasion he mentioned.
Where the Lord President is not available for the time being, there is another formula the Minister might like to consider, which appears in a number of Scottish Acts, such as the Criminal Procedure (Scotland) Act 1995. That formula is "the Lord Justice General"—or "the Lord President", as the case may be—"whom failing the Lord Justice Clerk". That would at least ensure that the Lord Justice Clerk was mentioned on the face of the Bill, and is a solution to the problem that would certainly be acceptable in Scotland.
In the light of my own experience, the amount of consultation built into this clause is enormous. With great respect to the noble and learned Lord, Lord Mackay of Clashfern, the clause deals not with fees but with accommodation, although the question recurs later on regarding fees. There is room for distinction according to the importance of the subject matter, which is why, in some places, the Lord Justice Clerk is specifically mentioned, and is consulted. The matter to which the noble Lord, Lord Maclennan, referred, was the removal of a sheriff, plainly an important issue, on which both senior judges were consulted and had to express their own views. On something such as outsourcing of staff, I would have thought that one voice would be enough. The formula I have suggested would be appropriate there. I would not dissent from the idea that, when it comes to fees, the Lord Justice Clerk might have an independent voice.
Lord Mackay of Clashfern: I am, of course, aware that Clause 43 deals only with the provision of staff, but it is the list of people who are to be consulted in Clause 43(5) that, in my view, makes it appropriate that the Lord Justice Clerk should be mentioned. As far as Scotland is concerned, he is of an equal status with a number of those mentioned as being consulted in England, and it would be right to provide for that. I am sure the noble and learned Lord, the Lord Chancellor, as well as the Minister, would like to be fair to Scotland, particularly with regard to the noble and learned Lord the Lord Chancellor's roots.
The fee point arises in Clause 47, where there is a similar list of people to be consulted. I thought it only right to mention that, in that part, consultation is slightly less than what is required.
Viscount Bledisloe: I agree with the noble Duke that to consult six English judges and only one Scottish judge is inequitable, but I would suggest that he has propounded entirely the wrong solution. The answer is to strike out a large number of the English judges, as there are far too many people being consulted anyhow. The Lord Chief Justice will be the head of the
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judiciary, and can, with perhaps one assistant, represent them all. I suggest that next time the noble Duke produces his pruning scissors rather than his spade.
Lord Evans of Temple Guiting: It is my honour to be the government spokesman for Scotland in this House, and I would like to start by thanking everybody who took part in this brief debate. There is no question that the consultation will be genuine, or that we will be fair to Scotland. I give that undertaking as we look at a number of amendments this evening.
These amendments add to the groups to be consulted on the authorisation of third party provision of staff to the Supreme Court. Amendment No. 88BS adds to the list of those to be consulted by the Minister when he is considering an order under Clause 43. My brief tells me—although the discussion tells me something quite different—that it is not quite clear what the specific interest of the Lord Justice Clerk would be over and above that of the Lord President of the Court of Session, given that, as now, there will he no appeal from the High Court of Justiciary.
I have listened to the discussion, and we will take away the points that have been made. We feel that this is not the time for this question to be considered in detail, for the Government are currently considering possible changes to the proposed governance and resourcing arrangements for the Supreme Court, and government amendments to this part of the Bill will appear on Report. Obviously we will take this evening's discussion into account.
6.15 p.m.
Amendment No. 88BT adds to the groups to be consulted if an order is being contemplated to authorise the provision of staff to the Supreme Court by a third party. The amendments add extra layers of consultation to that already proposed by the Government, which may or may not be a good thing. While the Government consider it appropriate to consult with the senior judiciary on staffing arrangements for the court, it would be cumbersome for the Minister to have to consult additional layers of the judiciary and the bodies representing the legal profession on the detail of the provision of court support staff. It is not clear what these additional consultees would add to the views of the most senior judges. Similar provisions for the courts of England and Wales do not require consultation of the professional bodies, and there does not appear to be any reason why a different approach should be taken for the Supreme Court.
The noble and learned Lord, Lord Mackay of Clashfern, talked about securing the consent of the President. The provision to which the noble and learned Lord refers is Section 130 of the Supreme Court Act 1981. That clause was repealed by the Courts Act 2003, and replaced by Section 92 of that Act, which does not require judicial concurrence—one of the changes with which the senior judiciary were in agreement.
Given my explanation, and the undertaking that we will come back on Report with amendments that deal with the matters we have been discussing in these clauses, I would be grateful if the noble Duke would withdraw his amendments.
The Duke of Montrose: This has been a most interesting debate, and I thank all noble and learned Lords, and all other noble Lords, who have contributed to it. The Minister is talking about making major changes, and it is difficult for us to know what he will come up with. I was interested to hear the noble and learned Lord, Lord Hope of Craighead's, proposal for a middle way by employing the phrase "whom failing the Lord Justice Clerk". The Government could look at whether they wish to reduce the actual numbers by using that mechanism.
The legal bodies may represent the interests of those who would be affected by the hiring of third parties, and, as such, they might have something to contribute. Whether they would feel they were being adequately represented by the President of the Court of Session is not for me to say.
I did ask if the Minister could tell me more about the level of consultation he thought might be appropriate in this particular Clause. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 43 agreed to.
Clause 44 [Services: provision by third parties]:
[Amendment No. 88BTA not moved.]
Clause 44 agreed to.
Clause 45 [Accommodation]:
[Amendments Nos. 88BTB to 88BUA not moved.]
Clause 45 agreed to.
Clause 46 [Annual report]:
[Amendments Nos. 88BUB and 88BUC not moved.]
The Duke of Montrose The Duke of Montrose moved Amendment No. 88BV:
Page 17, line 20, at end insert—
"(3) The Minister must also send a copy of any annual report to—

(a) the Scottish Parliament;

(b) the Northern Ireland Assembly; and

(c) the National Assembly for Wales."

The noble Duke said: Amendment No. 88BV relates to the annual report from the Supreme Court. It concerns another question raised by the Law Society of Scotland.
The Minister's accountability for the court is enhanced by the requirement in Clause 46 for him to send the annual report to both Houses of Parliament. However, because the court is a United Kingdom body, it is important that the report should also be sent to the Scottish Parliament, the Northern Ireland
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Assembly and the National Assembly for Wales. That will increase accountability and reinforce the court's standing as a United Kingdom body. I beg to move.
Lord Renton: This is an essential amendment. When the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales were set up, they had certain powers—indirect powers for some of them—relating to their local legal systems. It is absurd that they should not be kept as well informed as both Houses of Parliament.
Lord Maclennan of Rogart: I support the amendment. The jurisdiction of the Supreme Court, in part at least, could directly affect the interpretation of the devolution settlement. The voices and views of the Scottish Parliament should, in particular, be considered when the report is being issued.
Baroness Carnegy of Lour: I support my noble friend's amendment. It is simple courtesy that the court's report should go to the devolved assemblies and the Scots Parliament. The Scots Parliament may be interested in the charges that are made to litigants in Scots courts. We do not know the answer to that question yet, but it may be of great interest to the Scots Parliament. It will certainly be interested in the way in which taxpayers' money is spent on, for example, the resolution of devolution issues.
It is an important amendment, and I hope that the Minister has been given permission to accept it now. We do not want to put off such things. It is a necessary addition to the Bill.
Lord Hope of Craighead: I also support the amendment. It is not just the devolution issues that will concern the Scottish Parliament; the whole of Scots private law is devolved to the Scottish Parliament. Among the matters that it may have to consider is the question of the jurisdiction of the House of Lords over issues of private law. In some areas, such as social security issues that relate to children, there is no appeal to the House of Lords. If we translate that position to the Supreme Court, questions may arise about whether the jurisdiction should be enlarged or other jurisdictions reduced. There is a strong practical reason why the Scottish Parliament should be kept informed of the activities of the Supreme Court. The amendment should be accepted.
Lord Evans of Temple Guiting: I am delighted to say that the Government have absolutely no objection to the principle behind the amendment. It is, of course, right that the devolved administrations be kept fully aware of the operation of the Supreme Court, as it will be the Supreme Court of the United Kingdom. The Government had envisaged that the annual report would simply be made available to the devolved administrations by convention, rather than on a statutory basis.
The importance of ensuring that the devolved administrations are adequately informed about matters relating to the Supreme Court means that we

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are sympathetic to the intentions behind the amendment. However, I hope that the noble Duke will withdraw it at this stage, as the Government will, on Report, table a comprehensive package of amendments to the clauses on resourcing and governance to reflect the agreements reached in the Select Committee on the Bill. Those amendments will affect the detail of the responsibilities for preparing, laying and publishing the annual report. In preparing them, we will consider with great sympathy the amendments tabled by the noble Duke, the Duke of Montrose, and the noble Baroness, Lady Carnegy of Lour. I hope that, with that absolute undertaking, the noble Duke will withdraw the amendment.
The Duke of Montrose: I was interested to hear the Minister's reply. It was slightly longer than we had hoped. We had hoped that he would have accepted the amendment as it stood. It is always interesting to hear the Government saying how many things they wish to make available by convention, when we are dealing with a totally new body and do not know what the convention is.
In the circumstances, I shall read over what the Minister said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 46 shall stand part of the Bill?
Lord Henley: I want to add a brief footnote to the "may" and "must" debate initiated by my noble friend Lady Carnegy of Lour with regard to Amendments Nos. 88BR and 88BU.
I noticed that the Bill says that,
"The Minister must prepare an annual report".
He "must" also do something in Clause 41, but we are back to "may" in the other clauses. That underlines the point that a degree of consistency might be more appropriate in Clauses 41 to 46.
Lord Renton: The use of the word "must" with regard to the responsibilities of Ministers has been rare in statute law. The word "shall" has always been preferred and is a slightly more courteous word. I hope that the Government will think about it again and replace "must" with "shall".
Baroness Ashton of Upholland: We certainly shall.
Clause 46 agreed to.
Clause 47 [Fees]:
Viscount Bledisloe Viscount Bledisloe moved Amendment No. 88BW:
Page 17, line 31, at end insert "and must ensure that the levels of fees are such that the average fee cost of bringing appeals to the Supreme Court do not in total exceed, in real terms, the cost of bringing such appeals to the House of Lords in February 2004"
The noble Viscount said: We come to the thorny question of the costs of the new Supreme Court and how they will be borne. We know neither the cost of creating the Supreme Court nor the cost of running it, although we can be totally confident that they will greatly exceed any estimate that we are finally given by
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the noble and learned Lord the Lord Chancellor, not because his estimate will be any worse than anybody else's but because government estimates are always inadequate.
We are discussing the Government's desire to recover the entire cost of the Supreme Court—other than those involved in criminal appeals and in cases in which legal aid is granted—from litigants. They propose to do that in two ways: by bumping up the fees charged in the Supreme Court a long way above those currently charged in the judicial House of Lords; and by spreading the unrecovered burden across the fees of all litigants in the United Kingdom—certainly in England and Wales, as they face some difficulties in doing it in Scotland. Basically, the litigant is to pay.
The whole concept has met with great opposition and disapproval. That opposition was eloquently expressed by the noble Lord, Lord Brennan:
"Making litigants the revenue source of paying for a Supreme Court takes a lot of swallowing. The court exists only to try points of general public importance which need resolution for the public good. There will be some costs—yes—but having it run by the litigants of the nation is not really appropriate. Some other way should be devised".—[Official Report, 11/10/04; col. 69.]
Not only will the Supreme Court decide points of general public importance, very often it will have to decide those points due to some defects in the statutory drafting of the instruments which govern the case in question and will have to sort out that which should never have arisen if Parliament had done its job better.
6.30 p.m.
Secondly, the court will frequently have to sort out points that arise, because previous pronouncements of the highest court in the land have either been less than totally clear or have involved, as so many things do, the law of unintended consequences, which have led to new points. Not only is the point often not of the litigant's own making, but it is the fault or consequence of the acts of the public bodies.
There are two aspects to the recovery of fees. One is the general charging of part of the cost to litigants in all forms of litigation. Unfortunately, that is not within the scope of the Bill, so I cannot table any amendment to prevent that gross injustice. But we are suggesting that there should be a limit on the fees charged in the House of Lords. When the professions gave evidence to the Select Committee, the Law Society suggested that no fees should be charged at all and that the whole of this clause should be struck out. In my customary moderation, I make only a more minor suggestion—that the overall level of fees charged in the Supreme Court shall not exceed, in totality and in real terms, the level of fees currently charged in the judicial House of Lords.
I describe that carefully because, when discussing this matter in the Select Committee, the Lord Chancellor pointed out that it might become appropriate to vary fees between different kinds of litigation. For example, perhaps those who bring tax appeals should pay a larger proportion, or that petitions for leave to appeal should cost more and the actual appeal should cost less. The amendment allows

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the Lord Chancellor total freedom on that matter and just says that the overall fee revenue for the average case shall not exceed in real terms what it is now. I venture to suggest that that modest proposal is highly desirable and that the venture of the Government, by imposing these new costs to accord with some dream or principle of theirs, should not fall upon individual litigants. I beg to move.
Lord Goodhart: We entirely agree with the noble Viscount, Lord Bledisloe, about the undesirability of using fees from the courts within the three different jurisdictions in the United Kingdom to subsidise the costs of running the Supreme Court. That is undesirable for the reasons expressed by the noble Lord, Lord Brennan.
However, we have some difficulty with the amendment, which would be unworkable. But a case has been made for requiring any fees order under Clause 47 to be added to the list in Clause 106 of the orders that have to be made under the affirmative procedure. That would give a degree of higher parliamentary oversight than the present arrangement under which such an order would not require the affirmative procedure.
Lord Kingsland: Given that I have put my name to the amendment, your Lordships will not be surprised to hear me rise to support the comments of the noble Viscount. Lord Bledisloe.
In the course of the deliberations of the Select Committee on the Bill, the Bar Council, among others, spoke particularly powerfully on this matter, believing that the extra costs that the Supreme Court would entail ought to be borne by the Government.
The Appellate Committee of your Lordships' House deals mainly with issues of law that are of public interest. In many cases, at least one of the two litigants is, if not in an almost perpetual state of impoverishment, at least relatively hard up. It would be more than a great shame if cases such as that were not, in future, fought in the Supreme Court, simply because the level of fees was too demanding.
Lord Donaldson of Lymington: Perhaps I may use the amendment as a peg upon which to revert to the question of consent by the judiciary, raised by my noble and learned friend Lord Mackay of Clashfern, with whom I normally find myself in complete agreement. I also sympathise with him for not knowing whether an Act had been repealed. It was an experience that I had when sitting in court, which was even more embarrassing—particularly as it was regarding a subject which every law student knew about but I had failed to understand.
It is not an altogether good idea to ask judges for consent. I was one of the judges who had to consent when fees were proposed by the noble and learned Lord. Although I speak for myself, other heads of the division may have had somewhat similar feelings. I consented although I profoundly disagreed. That may sound very odd, but I felt that the concept of
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recovering from litigants the whole of the costs of running the courts was completely wrong and that we should recognise that the provision of justice was a public service. I was faced with the fact that the provision of ways and means was essentially a matter for the Government and it did not seem right to me that, however much I might disagree, I should withhold consent. I am glad that the law has been changed so that the current heads of division will not be faced with that problem. That should be borne in mind if the question of consent is pursued further.
Lord Mackay of Clashfern: I understand the difficulty. I have had discussions about amendments to fees orders in the past and I understood the difficulties faced by the heads of division. Apart from the suggestion made by the noble Lord, Lord Goodhart, of having further parliamentary scrutiny of such an order, it is quite difficult to devise a system that will really work by way of control—but this amendment is a pretty good attempt at it. Some form of control is highly desirable, although the real question is whether the costs that will be incurred in this new Supreme Court venture are of such a character that they have an effect on whether or not there should be a Supreme Court at all; and of whether the very cost-efficient arrangements that we have now are not substantially better. That argument is much deeper than this matter. I appreciate that now the rules have been changed for the Supreme Court—and I suppose that it would not be right to have a rule of consent in respect of the President of the Supreme Court—I find it difficult to imagine that any other effective control mechanism could be devised.
Baroness Ashton of Upholland: This has been an interesting debate. I say to the noble Viscount, Lord Bledisloe, that the critical factor is the impact of putting the measure in primary legislation. As the noble Lord, Lord Goodhart, indicated, it is unworkable. Such legislation will be enforced and the Supreme Court will be here for—I hope—a great many years. It would be difficult to reflect that in primary legislation. In 2054 one might be looking at a different charging regime and a different level. It is therefore not an appropriate measure for primary legislation.
The Government will also resist the amendment for other reasons. The two key principles to which we are committed are access to justice and full cost recovery for civil work. That principle, as noble Lords have alluded to, was announced by my noble and learned friend Lord Irvine on 19 November 1998. More recently those noble Lords involved in the passage of the Courts Act on 12 November 2003 will recognise that it was accepted by Parliament.
The policy is based on the principle that we need to target scarce public resources appropriately and therefore recovering most of the costs of the courts through fees ensures that we do that. We spend a great deal of our time in Parliament thinking about how best to ensure we use public money well and wisely. There is always a recognition of the art of the possible within limited resources. Here is an example of that.

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As the noble and learned Lord, Lord Donaldson of Lymington, indicated, they are proper decisions for government to take; I accept that he has views on that matter. As noble Lords will know, these policies are set out in the Treasury's fees and charges guide, which goes back to 1992 as far as I can trace. The noble and learned Lord, Lord Mackay of Clashfern, will remember it from his time as Lord Chancellor. It sets out that fees should be set to recover full costs, subject to any agreed subsidies.
We are mindful of the need to provide access to justice rather than raise fees directly in the Supreme Court. It is our intention that the costs of civil work should be shared between all civil litigants before the courts below the Supreme Court. In effect that would place a small premium on all civil fees.
I will give noble Lords a figure: in the estimates I have been given the premium will be around 20 pence to 50 pence per fee. I do not believe that in practical terms noble Lords would see that that would prevent access to justice or overtly affect the use of civil justice. The first thing I would do if I were given that premium would he to ask for the figures on which the premium was based. If the noble Viscount agrees, I shall write to him formally with more detail about the premium and place a copy of that letter in your Lordships' House and copy it to the noble Lord, Lord Kingsland, and the noble Lord, Lord Goodhart. That is the order of the amount we are describing.
Viscount Bledisloe: When the noble Baroness says that the fees will go up by 20p to 50p, does she mean the overall fees of the case or every item of fee that goes to make up the fees? Some of them are quite small and 50p on them could be quite a lot, adding up to a large total.
Baroness Ashton of Upholland: The noble Viscount makes a good point. It says here, "20p to 50p per fee". I hope that before I sit down I will have clarified that point for the noble Viscount. Either way, these are very small sums. I will indicate to noble Lords precisely how the fee is arrived at. It is our contention that it will not have a dramatic effect on access to justice, which is a critical part of what noble Lords have considered of enormous importance.
It is worth saying that we see the Supreme Court providing judgments of huge benefit across a wider use by those who use the civil jurisdiction. It is per fee, not per case, which is what the noble Viscount was after. I hope that that clarifies the issue, but I will write and set out the figures in greater detail so that noble Lords will be fully aware of them.
The Duke of Montrose: May I go back a little to see whether I can understand what was put forward by the noble and learned Lord the Lord Chancellor on 11 October? He said that fees would be charged,
"throughout the whole of the civil justice system".—[Official Report, 11/10/04; col. 75.]
That sounded like what the noble Viscount, Lord Bledisloe, was saying: that there could be an accumulation. If various legal documents were being produced, the 20p to 50p would keep adding up.
6.45 p.m.
Baroness Ashton of Upholland: The noble Duke is correct. I have confirmed that to the noble Viscount. I shall endeavour in writing to him to give two or three examples of the cumulative effect, which I think is what he is seeking me to do, to ensure that my argument that it will not prevent access to justice and that the fees are small nonetheless stands up. That will be important for noble Lords to consider before the next stage.
As I said, those figures are based on our present estimates and I will make sure that we have more details. On the twin principles that the Government believe it is important to recover full costs—which has been around for some time, at least, as I said, since 1992—and that we wish to ensure that any premium is sufficiently low so as not to prevent access to justice for the reasons for which noble Lords are concerned; and on the basis that the figures are small—conditional on my having satisfied the noble Viscount and others that the cumulative effect is still small—we should accept that and the noble Viscount should withdraw his amendment.
Lord Carlisle of Bucklow: Before the Minister sits down, will she tell the Committee of any advantage that she sees in having a Supreme Court in place of the present Judicial Committee that justifies the increase in fees?
Baroness Ashton of Upholland: There are two questions in what the noble Lord said. The first is the principle, which has been well debated in your Lordships' House. I have a suspicion that the noble Lord and I would take slightly different views on it. I shall not take up the Committee's time on it except to say that I fully support what we are seeking to do; I believe that it is ambitious and right.
The second question is whether it should have an additional cost. I refer to the fact that if one is going to make these changes we must ensure that it is done properly, as noble Lords have said many times today. That includes accommodation, making sure there is the right support mechanism and so on, but also using public money wisely and well and doing that in a way that ensures that the accommodation is proper and appropriate but not that we are frivolous in what we seek to do.
Because we are passing on the full costs we are also duty bound to be mindful of the consequential impact of that additional cost on the litigant and therefore need to be modest in the best possible use of the word.
Lord Carlisle of Bucklow: I was not questioning the Minister's remarks that there would be additional costs and that if we have a Supreme Court, additional costs will certainly be necessary in the way that she said. I was inquiring about the advantage of having the change at all.
Lord Mackay of Clashfern: Before the noble Baroness sits down, I had understood from the explanatory memorandum and from discussions since that the figures she mentions are for other civil courts. These are the amounts that are going to be added to fees charged in other civil courts throughout the United Kingdom to finance the Supreme Court, but the fees in the Supreme Court will be of the order of 10 times the fees presently charged in the House of Lords. That is a considerable separate consideration: to multiply the fees by 10 times in the House of Lords is a big move.
Baroness Ashton of Upholland: The figure I can give the noble and learned Lord immediately is that we anticipate that approximately £0.5 million will be recovered through direct fee incomes from the Supreme Court. I will of course notify the noble and learned Lord how that breaks down in individual cases. I am not convinced that that brings us anywhere near the increase that he is looking for.
Viscount Bledisloe: The noble Baroness referred to the principle which governments have established that fees of some courts and the cost of some courts should be fully recovered from litigants rather than being provided by the taxpayer in accordance with the more established and proper principle that one of the duties of government for which we pay our taxes is to provide a justice system. We cannot buck that entire principle, but I am suggesting that once one gets to the Supreme Court, which, as the noble Baroness said, provides judgments of enormous importance to a wide range of society and not just the litigants, that principle should be abandoned at least to the extent of not charging the extra that comes from this exercise of the Government's in political correctness to the individual litigant.
The noble Lord, Lord Goodhart, said that my amendment was unworkable, and the noble Baroness took that up. I confess that I find no difficulty in commercial life in giving effect to what are, in fact, retail prices index clauses for increasing money, so I see no great reason why there should be difficulty in controlling them.
The difficulty in the suggestion of the noble Lord, Lord Goodhart, of dealing with the matter by a statutory instrument is that while the Government maintain their general principle that everything shall be recovered, it would be difficult for anyone faced with a statutory instrument to say that the fees which recover the cost in full should not be passed. If the Government would abandon that principle and say that we should charge sensible fees which do not render resort to the Supreme Court impossible for the middle rich or the middle poor, then the noble Lord's suggestion would have some substance.
I continue to maintain the theory that it is entirely wrong that all the costs should fall upon litigants rather than upon the state. For the moment—but only for the moment—I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Carnegy of Lour Baroness Carnegy of Lour moved Amendment No. 88BX:
Page 17, line 37, at end insert—
"( ) the Lord Justice Clerk;"
The noble Baroness said: In moving Amendment No. 88BX, I should like to speak to Amendment No. 88BY. As the noble Viscount, Lord Bledisloe, has said, Clause 47 allows the Minister to make an order to provide for court fees to help defray the costs of the Supreme Court.
Amendment No. 88BX would add the Lord Justice Clerk to the list of senior judges to be consulted before that order is laid. We have had the discussion about that. I am not sure if my noble and learned friend Lord Mackay of Clashfern and the noble and learned Lord, Lord Hope of Craighead, felt that this was a suitable place for the Lord Justice Clerk to be consulted. If they do, I hope that the Government will accept the amendment in the same way they have accepted previous amendments in principle.
Amendment No. 88BY would widen the consultation. When the Minister was asked whether lawyers and their organisations should be consulted on staffing and the smooth running of the Supreme Court, he seemed to think that that was not of interest to lawyers and they should not be consulted. As a Minister with his feet in the Scotland Office, I hope that he has consulted and knows that politicians in Scotland think that lawyers are not interested in staffing the Supreme Court. Likewise, I hope that the Minister feels that lawyers have an interest in the level of fees, possibly in Scottish courts and certainly in other civil courts across the United Kingdom, which will help defray the costs of the Supreme Court.
Lawyers should surely have a say in what the fees are. They have a huge interest, I should have thought. The public have a huge interest, but they are consulted through Members of Parliament who have the order laid before them. If they feel it is too much, they will not accept the order. Surely lawyers should have a say in this, and I hope that if the Minister has not consulted in Scotland about this he will do so.
In asking the Government to widen the consultation, I should like to ask three questions. They concern the Law Society of Scotland, and they certainly concern me. First, do the Government realise that the setting of court fees in Scotland is devolved under the Scotland Act? It does not sound as if they do. Secondly, what happens if the Scottish Executive says no to increasing fees in Scotland or providing finance of any other sort? We need to know. Thirdly, and very importantly, do the Government intend, in England and Wales, and perhaps in Scotland if it is decided that it applies there too, that litigants in the lower courts who will have no access to the Supreme Court should also pay a surcharge for this purpose?
It seems to the Law Society of Scotland, and I agree, that it should be a matter of principle that those who, should they need it, have no right of appeal on a given issue to the Supreme Court—such as a crofter in Scotland litigating in the land court or someone going to the small claims court—should not have to

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contribute to the Supreme Court. It simply would not be fair. Surely that is right. I should be most grateful if the Minister can reassure us that that principle will be observed wherever the surcharge on fees is imposed across the country. This is closely linked to the amendment on widening consultation before laying the order. I beg to move.
Lord Renton: I strongly support these amendments, especially Amendment No. 88BY. I do so not merely because I became a member of the Bar of England and Wales in 1938, when I was in my twenties, and again when I was nearly 60, but because it is vital that the Bar of England and Wales and the other professional bodies mentioned in the amendment should be consulted. Otherwise, in fixing the various rates of fees, exemptions, and so on, without any consultation the Minister could be wrong, and that would be most unfortunate. So, if I may have the attention of the Minister who is replying to the debate, I hope that the Government will give this matter serious consideration and their full support.
7 p.m.
Lord Evans of Temple Guiting: I am delighted to say that we accept these amendments in principle. Amendments to Clause 47 add additional layers of consultation to those already proposed by the Government. The Government consider it is appropriate for the good operation of the court for there to be consultation with senior representatives of the judiciary when making staffing arrangements for the court and when making an order to prescribe Supreme Court fees. For that reason, we are content to accept in principle additional consultation with the Lord Justice Clerk and the legal professional bodies listed.
However, I hope that the noble Baroness, Lady Carnegy of Lour, will not press her amendments at this stage as it has been drawn to my attention that they may not be absolutely correct in every point of technical detail. We would welcome the opportunity to table government amendments on Report, reflecting the substance of these amendments.
The noble Baroness asked three questions. Yes, we are fully aware that court fees are a devolved matter. I am afraid that I did not catch the second question, but we will look at it in Hansard and take what has been said into account when looking at the amendments we plan to bring forward. On the noble Baroness's third question, this is a matter which we will discuss with the Scottish Executive.
We accept the amendments in principle and we will table further amendments which, if they do not satisfy the noble Baroness, we will have the opportunity to revisit on Report.
Baroness Carnegy of Lour: I am very grateful to the Minister for saying that he accepts the amendments in principle. It is difficult to see, looking at the amendments, how the drafting can be tricky, but I take his word for it.
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I asked three questions. First, I asked whether the Government realised that the setting of fees in Scotland is devolved under the Scotland Act. Secondly, I asked what would happen if Scotland said no to making these contributions. It is important for us to know that.
My third question was about litigants who do not have the right of access to the Supreme Court. The Minister said that he would be consulting on the matter in Scotland. It is not a Scottish question; it is a United Kingdom question. Should litigants who are litigating in a court which does not have access to the Supreme Court—I gave Scottish examples because those were the ones that came to my mind—have to pay for the Supreme Court? It seems quite wrong. I should have thought that the Government would have looked at that principle. If they have not, I hope the Minister will now tell me that they will now do so.
Lord Hope of Craighead: I wonder whether I may make one brief comment in reply to the question posed by the noble Baroness as to what happens. I think that I am right in saying that there is a power to levy fees in the courts in Scotland, but it is under a Scottish enactment called the Courts (Scotland) Act of, I think, 1897. It is a 19th century statute.
My understanding is that if it comes to the bit, it would be necessary either to amend that statute or amend the Bill in order to provide a power for exercise over the Scottish courts. That, in turn, I should have thought, would require some consultation with the Scottish Parliament.
The issue that has been raised is therefore a matter of very considerable importance and it does affect the extent of the powers which the Secretary of State would be able to exercise over fees in Scotland.
Lord Evans of Temple Guiting: I am most grateful to the noble and learned Lord, Lord Hope of Craighead, for that contribution.
The noble Baroness, Lady Carnegy of Lour, asked what would happen if Scotland said no. We plan that the precise mechanism for giving effect to a measure of Scottish funding for the Supreme Court is discussed with the devolved authorities. This will be covered in the package of amendments which the Government will be bringing forward at Report. To anticipate a failure in discussion is not, in my view, a very helpful position for me to take this evening. I have had many discussions over the past year or so with the Scottish Executive on very complicated issues and have had very little difficulty in coming to agreement with it. I am not prepared at the moment to anticipate that we will not be able to agree on this matter.
As to the third question, the Scottish Executive has agreed that Scotland's share of the cost of civil work will be met through the transfer of an agreed amount from an appropriate budget.
The area which has been mentioned, therefore, has been actively discussed with the Scottish Executive. Those discussions will continue and we will be

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bringing forward amendments at Report. As I said earlier, I hope that at that stage we will be able to satisfy the noble Baroness, Lady Carnegy of Lour.
Baroness Carnegy of Lour: I thank everyone who has contributed to this discussion. It is extremely important. I particularly thank the Minister for what he has just said which, if he had not had a message from somewhere, I do not think he would have mentioned. He has in fact answered the question which my noble and learned friend Lord Mackay of Clashfern asked on 11 October. The Lord Chancellor at that time said that he was avoiding a clear answer as to whether Scotland would be contributing in some way by saying that discussions were going on. Obviously they have gone on and something has been agreed, and I am sure that is of great interest to the Committee. I thank him very much for that.
We shall await with interest the amendments that are to come. The Report stage will clearly be a most exciting occasion. In the meantime, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendment No. 88BY not moved.]
Clauses 47 agreed to.
Clauses 48 to 50 agreed to.
Schedule 11 agreed to.
Clause 51 [Interpretation of Part 2]:
Lord Evans of Temple Guiting Lord Evans of Temple Guiting moved Amendment No. 88CA:
Page 18, leave out lines 21 to 25.
The noble Lord said: The effect of these amendments to Clause 51 is twofold. First, when defining "high judicial office" in Part 2 of the Bill, the drafting has hitherto relied on the Interpretation Act 1978, in which "High Court" and "Court of Appeal" mean those courts in England and Wales and in Northern Ireland. Explicit reference is now made to the Court of Appeal in England and Wales and in Northern Ireland, and the High Court in England and Wales and in Northern Ireland. This is simply a technical amendment.
Secondly, the amendments bring into effect proposals, as agreed in the concordat, that anyone appointed as Lord Chancellor on or after 12 June 2003, when the reforms to that office were announced, should not be treated as holding "high judicial office" and so eligible to sit judicially in a variety of ways, by reason only of that appointment.
The amendments are drafted so as not to go too far and to erase the holding of high judicial office and its incidence by reason of the holding of the office of Lord Chancellor. Thus, in the event that a person already holding high judicial office is appointed as Lord Chancellor, that person should not be prevented from sitting as a judge again once his or her term of office as Lord Chancellor has ceased. This also ensures that an ex-Lord Chancellor who does not hold high judicial office will not be able to act as a judge in the Supreme
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Court. It does not affect the rights of previous Lord Chancellors, appointed prior to 12 June 2003, to sit as a judge. I beg to move.
The Deputy Chairman of Committees (Baroness Fookes): I point out that if the amendment is agreed, I cannot call Amendment No. 88CB, by reason of pre-emption.
Lord Renton: At present, the Chancery Division is a division on its own, separate from the Queen's Bench Division and the Family Division. The theoretical head of the Chancery Division is, I understand, the Lord Chancellor, but the actual head is the Vice-Chancellor. I should have thought that some reference should be made in the description of senior judges to whoever is head, or going to be head, of the Chancery Division.
Lord Evans of Temple Guiting: I have to say that I do not know the answer to that question, but I shall take advice, write to the noble Lord and put a copy of the letter in the Library.
The Duke of Montrose: As we have been notified that it may not be possible to call my amendment, Amendment No. 88CD, I should like to say a few words on the subject. This is the same question of the status and position of the Lord Justice Clerk. It seemed to me that, in a list of senior judges, the argument that his name should be included was unanswerable. There are many officers of the legal system of England and Wales included in the list, but only the Lord President from Scotland and the Lord Chief Justice from Northern Ireland are included. The Government seem intent on including their amendment in the Bill, but I should have thought that the argument would still hold.
Lord Evans of Temple Guiting: May I say to the noble Duke, the Duke of Montrose, that we have taken on board the points made in earlier discussions? I give him an absolute assurance that I have not said anything in relation to the amendment that closes down commitments that I made earlier on consultation and looking again at the list of people to be consulted.
On Question, amendment agreed to.
[Amendments Nos. 88CB and 88CC not moved.]
The Duke of Montrose The Duke of Montrose moved Amendment No. 88CD:
Page 18, line 32, at end insert—
"( ) the Lord Justice Clerk;"
The noble Duke said: I do apologise; I gather that the pre-empted amendment was Amendment No. 88CB rather than Amendment No. 88CD. I misunderstood the call. We may have had the Minister's answer already, but I beg to move.
Lord Evans of Temple Guiting: As we know, the amendment would add an additional judge to the list of senior judges in Clause 51, with the intention of ensuring that there is a specific senior Scottish judicial voice in the appointments process, particularly if the Lord President of the Court of Session is a candidate for the vacancy under consideration.
The Government have great sympathy with this amendment and see it as a matter of great importance that all the devolved administrations are adequately consulted during the appointment process. Indeed, the Government see the potential risk of no Scottish judge being consulted, and amendments, principally to Clause 21, are being worked on for Report with a view to ensuring that there is always consultation of at least one senior judge from each part of the United Kingdom in relation to every appointment to the Supreme Court.
I therefore hope that the noble Duke will for the moment withdraw his amendment. The Government can see potential difficulties with the amendment tabled today, as Scottish consultation would not necessarily be secured simply by adding the Lord Justice Clerk to the list of senior judges, since the Lord Justice Clerk might also be disqualified on grounds of being a candidate for that appointment. The amendments that the Government will table will seek to achieve the same as the amendment tabled here today, but without specifically mentioning the Lord Justice Clerk.
I hope with that explanation that the noble Duke will feel able to withdraw his amendment.
7.15 p.m.
The Duke of Montrose: I thank the Minister for explaining his views in that way. The argument seems rather complicated, so I should like to take it away. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 88CE not moved.]
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 88CF:
Page 18, line 37, at end insert—
"( ) In this Part—
(a) "high judicial office" means office as a judge of any of the following courts—

(i) the Supreme Court;

(ii) the Court of Appeal in England and Wales;

(iii) the High Court in England and Wales;

(iv) the Court of Session;

(v) the Court of Appeal in Northern Ireland;

(vi) the High Court in Northern Ireland; or as a Lord of Appeal in Ordinary;

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(b) a person appointed to the office of Lord Chancellor on or after 12 June 2003 who holds, or held, office of a kind referred to in paragraph (a) ("the qualifying office") is to be regarded as holding, or having held, high judicial office only if—

(i) he has ceased to be Lord Chancellor by virtue of that appointment, and

(ii) he holds, or held, the qualifying office otherwise than by virtue of that appointment as Lord Chancellor."

The noble Baroness said: I beg to move.
Lord Mackay of Clashfern: The amendment has an effect with regard to Lord Chancellors appointed after 12 June 2003, which is of course rather an important date for some people. Would it be feasible for someone who held the office of Lord Chancellor after that date to be eligible to sit on the supplementary panel of the Supreme Court? That seems a possible way forward, which would enable a person with judicial qualities to be the Lord Chancellor without sitting as a judge—because I think that we are all agreed that during his term of office, he should not sit as a judge.
It would secure a degree of judicial quality to make someone who was appointed Lord Chancellor, after he ceased to be Lord Chancellor, eligible to sit in the Supreme Court as a member of a supplementary panel. So far as I understand the amendment, that possibility is presently excluded. However, I suggested in a letter to the noble and learned Lord the Lord Chancellor some time ago that I would not like to see him excluded. He offered to consider the matter further—so I hope that the matter might be kept open, in case it should happen. It seems a reasonable way in which to look for judicial qualities in the Lord Chancellor—qualities which in my view, notwithstanding the proposed changes, would be highly desirable.
Lord Renton: While supporting my noble and learned friend very eagerly, may I presume to add one small point? Surely it is desirable that the head of the judiciary should occasionally keep in touch and refresh himself by sitting with the judiciary.
Lord Evans of Temple Guiting: I am grateful to the noble and learned Lord for his suggestion. Clearly my noble and learned friend the Lord Chancellor is still considering his letter, otherwise his thoughts might have been reflected in my speaking notes. However, we have heard what the noble and learned Lord has said; it is an interesting suggestion, and we shall take it away and consider it. We shall ask my noble and learned friend the Lord Chancellor to answer the letter as soon as possible.
On Question, amendment agreed to.
Lord Evans of Temple Guiting Lord Evans of Temple Guiting moved Amendment No. 88CG:
Page 19, line 7, leave out subsection (4).
On Question, amendment agreed to.
Clause 51, as amended, agreed to.
Clause 52 agreed to.
Schedule 12 [The Judicial Appointments Commission]:
Lord Henley Lord Henley moved Amendment No. 88CGA:
Page 196, line 39, after "must" insert "not"
The noble Lord said: We now come to the first part of Part 3, which deals with the Judicial Appointments Commission, as set out in Schedule 12.
I tabled one amendment, and the noble Lord, Lord Borrie, has tabled half a dozen others. I congratulate him on waiting until 7.20 p.m. to speak to his amendments. I suspect that we are both merely probing the Government's intentions at this stage about the composition of the Judicial Appointments Commission, but as will be seen, we are probing them from different viewpoints.
Part 1 of Schedule 12 sets out that there will be a commission with a chairman and 14 other commissioners. The chairman must be a lay member and then, in considerable detail and in a highly prescriptive manner, the schedule describes who should be the other 14 commissioners. Five must be judicial members, and paragraph 2(3) sets out who those judicial members must be. That paragraph states:

"(a) 1 must be a Lord Justice of Appeal;

(b) 1 must a puisne judge of the High Court;

(c) 1 must be either a Lord Justice of Appeal or a puisne judge of the High Court;

(d)1 must be a circuit judge;

(e)1 must be a district judge".

Paragraph 2(4) states that:
"Of the Commissioners appointed as professional members"—
of whom there must be at least two, and I assume no more than two—

"(a) 1 must be a practising barrister…

(b) 1 must be a practising solicitor".

As I said, our approach is very much a probing one, as it is desirable that we have a chance to hear the Government's views as well as the views of other Members of the Committee.
We thought that it might be better for the commission to have a majority of non-lay members. The simplest way of giving it a bare majority would be not to make the chairman a lay member but to make him one of the judicial or professional members. I appreciate that I am in the presence of much better mathematicians, but if my mathematics are right, out of the 15 there would be at least eight non-lay members and only seven lay members.
The amendments of the noble Lord, Lord Borrie, set out a different approach, which I shall leave him to explain. It would obviously reduce the number of judges, so by definition his Amendment No. 88CGC increases the lay presence from five to seven. The chairman who we have suggested should not be a lay member would remain a lay member.
In trying to decide the right balance, we thought that it would be more desirable to have a greater number of professional members. Obviously it is a matter of balance, and I should be interested to hear what the noble Baroness will say. As the commissioners will be advising on the appointment of the judiciary, those who know other members of the profession will be aware of abilities, and we shall be discussing the question of appointments being made on the basis of good character and merit. They will be best placed to reach a judgment. I appreciate that others may hold different views, and the Government will no doubt set out in detail why they take their view.
Before I sit down, I have a further question about amending the order in due course. The Government have set out a prescriptive approach by saying who should be in the commission and where they should come from. Paragraph 5(1) states:
"The Minister may by order amend any of the…provisions"
relating to composition. We appreciate that this is one of the very few orders that would have to be by affirmative resolution, if I have read Clause 106 correctly. There may be other matters that must be by affirmative resolution, but we shall come to that in due course. The Government obviously feel that it might be necessary to change the composition of the Judicial Appointments Commission. They recognise that it is a serious matter, and that is why they have suggested affirmative action. However, I am interested to know, having been so prescriptive initially, in what circumstances they would envisage changing the composition of the Judicial Appointments Commission.
I look forward to hearing the Government's views and those of other Members of the Committee. I beg to move.
Lord Borrie: It may be helpful if I speak to my amendments now as they are grouped with the amendment of the noble Lord, Lord Henley.
I do so following advice from the existing Commission for Judicial Appointments, which does not make judicial appointments and does not even recommend such appointments. It investigates complaints about the application of the appointments procedures for judges and Queen's Counsel, and conducts audits of the High Court appointment process. The present commission comprises a chairman, Sir Colin Campbell, vice-chancellor of the University of Nottingham, and known to me for many years as someone of very high reputation, plus seven other commissioners. None of them are practising lawyers or judges. They were first appointed by the previous Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, in 2001. The commission is required to report regularly to whoever is the Lord Chancellor of the day.
I refer to that because, as I have followed the commission's advice in my amendments, I emphasise that it is speaking from experience in the past three years of auditing the appointments process. That has led it to welcome the Government's proposals for a

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Judicial Appointments Commission, which would have a lay majority, to appoint or recommend the appointment of judges. It would have not only a lay chairman, which the noble Lord, Lord Henley, is against, but a lay majority, to ensure the introduction of what it calls a modern, accountable, fair and transparent selection process.
The existing commission's experience of its audits and complaints investigations into current processes is that potentially suitable candidates may be excluded from consideration. One of the perceptions of current appointment processes that the commission recognises is a tendency to favour candidates in the image of the existing judiciary. Another perception is that appointment depends on the support and, indeed, the patronage of the senior judiciary, whose views are sought in the Lord Chancellor's Department before appointments are made. Because of that they take the view from their three years' experience that a number of potentially well qualified candidates may currently even exclude themselves because they do not think that they will have a chance of appointment.
7.30 p.m.
In the view of the Judicial Appointments Commission, and myself in putting forward its views today, the Government have been too cautious. They have been fairly bold, I should say, but too cautious in the way in which they have set out what the new commission should comprise in the Bill. Of course, members of the judiciary and, indeed, members of the practising legal profession need to be well represented on the new Judicial Appointments Commission, but the Bill allows for only six lay members, including the chairman, out of a total of 15. I accept that the total of 15 is probably the optimum total for the Judicial Appointments Commission. Therefore, I do not propose to increase it or reduce it but to keep the same total. However, I propose in my amendments that there should be eight lay members instead of six; that is, a lay chair and seven other members.
The Bill suggests two legal practitioners, and I have not sought to alter that. One tribunal member is suggested, and I have not sought to alter that, and one lay magistrate member is suggested, and I have not sought to alter that. What I have sought to alter through my amendment is that the proposed five judicial members should be reduced to three. It is a question of balance and the amendments are carefully drafted, as I say not by myself but by the existing commission. They are meant to ensure the human resources, legal expertise, transparency, independence and impartiality necessary to give confidence to all the stakeholders: the judiciary, the legal profession and the general public. It is thought that these amendments will help to establish that confidence.
A few days ago I was mildly surprised to receive from the Law Society, which represents the solicitors of England and Wales, support for my amendments. If I was cynical, it is because I have known Law Society briefings in the past and they do not usually agree with my view. However, it agrees that there should be a
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majority of lay persons on the Judicial Appointments Commission. I wish to quote a few sentences of the Law Society. It states,
"the main focus of the work of the Commission",
under the Government's plans,
"especially in the early years, will be the development and application of transparent, fair and efficient recruitment processes that secure appointment on merit from the broadest possible field of qualified candidates".
The Law Society continues:
"A strong lay element on the Commission would help engender a wholly new culture surrounding judicial appointments that seeks out and welcomes applications from candidates of ability from non-traditional backgrounds",
including, I suppose, solicitors. The Law Society continues:
"It makes sense for the majority of members of the Commission to have expertise in areas that will constitute the main thrust of its work—and this will help ensure that members of the Commission bring diverse experience and backgrounds to its work".
As regards the very last of the six amendments that are grouped with the amendment of the noble Lord, Lord Henley, one can understand that there should be the possibility—as there is in the Bill—of effecting an increase in the numbers of any one of the categories of membership in the case of what the noble Lord, Lord Henley, described as the Government's rather prescriptive approach resulting in the lists needing to be altered in the future.
However, it seems to me that it is desirable to limit the discretion to ensure that lay members continue—as they should from the beginning, I think—to comprise a majority of the membership of the Judicial Appointments Commission. If that basic structure could be altered, it would alter what Parliament might wish to put in place in the Bill.
Lord Lloyd of Berwick: Before the noble Lord sits down, will he do the arithmetic for us again? As I do the arithmetic, in addition to the five lay members, which is in accordance with the Bill, one lay justice member makes six, the lay chairman makes seven, and the holder of an office under Part 3, also lay, makes eight. Does not that make a lay majority?
Lord Borrie: With respect to the noble and learned Lord, I am following the way in which the Bill is set out. The lay justice of the peace does not count as a lay member because, presumably, he or she is engaged regularly in judicial work. If the noble and learned Lord looks at the Bill as it stands at the moment, the lay justice does not count as a lay member—that is a separate category.
Lord Goodhart: I want to explain why we on these Benches are unable to support Amendments Nos. 88CGB to 88CGG in the group spoken to by the noble Lord, Lord Borrie. However, we support Amendment No. 88CGH.
First, as regards the numbering, while a lay justice is technically not qualified as a lawyer, he or she is engaged in judging and cannot therefore be regarded as a lay member in the sense that it is actually used.

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Similarly, the representative of the tribunal who comes under Part 3 of Schedule 14 will more than likely be someone who has legal qualifications.
In principle we would like to have a majority of lay members on the Judicial Appointments Commission. That is the case in Scotland. As the noble Lord, Lord Borrie, pointed out, the idea is, indeed, supported by the Law Society and by the commission for judicial appointments. We also believe that the concordat is of major importance. For a constitutional change of this significance the concurrence of the judiciary, although perhaps not absolutely essential, is certainly very highly desirable. We are not willing to prejudice that concurrence by trying to unravel central elements of the concordat unless we are convinced that the terms of the concordat are seriously wrong. For that reason my noble friends Lord Maclennan of Rogart and Lord Holme of Cheltenham, who were members of the Select Committee, and I agreed with the decision of the Select Committee to approve the numbers for membership set out in the concordat.
There are two purposes behind the setting up of the new Judicial Appointments Commission. One is to remove the possibility of political bias in appointments by the Lord Chancellor. That has certainly happened in the past and is, we believe, a real risk in the future if a Judicial Appointments Commission is not set up. The second purpose is to improve the process of appointment of the judiciary, in particular but not exclusively by widening the pool from which judges can be appointed. We believe that the concordat goes as far as possible in meeting the first purpose; that is, removing political bias in appointments. On the second purpose of improving the process of appointment, we regard the concordat as a fair compromise for securing the agreement of the judiciary. We believe that even without a majority of lay members the Judicial Appointments Commission will substantially improve the process.
The Commission for Judicial Appointments—which at present has no direct involvement in the process—has already brought about considerable improvements. We commend it for the work that it has done. But it is right to move with some caution. The suggestion made by the Commission for Judicial Appointments in its latest annual report that Parliament should disregard the concordat is misguided.
We have added our names to that of the noble Lord, Lord Borrie, on Amendment No. 88CGH.
Baroness Ashton of Upholland: I am sorry to intervene but Amendment No. 88CGH has been degrouped at the noble Lord's request.
Lord Goodhart Lord Goodhart: Amendment No. 88CGH was degrouped at my suggestion. Unfortunately, the noble Lord, Lord Borrie, has already spoken to it.
Lord Borrie: No, indeed I have not.
Lord Goodhart: In that case I am happy to leave that as an explanation of why we are unable to agree with the amendments tabled by the noble Lord, Lord Borrie, in this group.
Baroness Carnegy of Lour: The speeches so far have all been made by qualified barristers. A lay voice may not come amiss in this debate.
The critical issue is: who is going to be good at spotting who would make good judge? I am pitching myself to be appointed to this commission as a lay person. A lay person on the committee would have problems in deciding who would make a good judge. Such a person might also be more susceptible than lawyers to political bias. It is possible that I might sit there thinking, "I am a good socialist. I think that person would make good socialist decisions. I think I will have him". I do not suppose that I would say that but I might. I wonder whether this enthusiasm for more lay members will necessarily fulfil the purpose for which the commission is set up.
I suspect that the Law Society supports the amendments tabled by the noble Lord, Lord Borrie, because, as he indicated, this might increase the chances of a solicitor becoming a judge. There might be a greater enthusiasm for what the lay members might consider the underdogs of the legal profession. I suspect that that is a rude thing to say, but that might be the feeling.
I can understand why there is an argument that people who are in touch with judges, who know the role and who know what a good judge looks like have the edge when it comes to making these judgments. Lay people are needed, but I am not sure that their number should be increased. I see the sense in the argument for a lay chairman, although my noble friend on the Front Bench prefers a legally qualified chairman. There is an argument both ways.
We should be careful about having too many lay people on a body which chooses somebody who has professional qualifications and a background that enables them to fulfil the very difficult role of a judge. I speak as somebody who has sat as an honorary sheriff and knows the problems.
Baroness Ashton of Upholland: We have rehearsed some of the debates and discussions that have gone on in determining how best to put forward the composition of the commission. We have two propositions before us: the noble Lord, Lord Henley, argues that the majority should be professional; the noble Lord, Lord Borrie, argues that the majority should be lay members. But there is a general consensus that the number of 15 members is about right.
It is clear from the views expressed around the composition that the expertise of the serving judiciary and the wider breadth of knowledge and expertise that those who are neither judges nor lawyers bring, particularly in selection procedures at a high level, need to be brought together in the commission in an appropriate fashion.
I agree with the noble Lord, Lord Henley, that the role of the judges in the commission is crucial. They understand at first hand the demands of the vacancies that the commission seeks to fill and they will test directly the applicants' legal skills and knowledge. The

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composition set out in Bill is designed to ensure that there is an adequate range of input from the various jurisdictions and different levels of seniority.
The Government take the view that the commission will need magistrate and tribunal members. Those are the largest single groups of appointments by far as noble Lords are aware, with a number of important differences from other judicial appointments, and we need to have their markedly different perspectives and experience alongside the other judges.
In arriving at the number of judicial members on the commission we have also borne in mind the European Charter of the Statute for Judges, which advocates a judicial majority on appointment commissions.
The barrister and solicitor member will represent the legal profession from which the judges are chosen. Their current working experience will be valuable to the commission in its efforts to broaden the pool of applicants and so achieve a Bench which is more reflective of our wider society.
In response to points raised by my noble friend Lord Borrie, the last thing I wish to do is to cast into doubt the hugely valuable contribution that the members who are not lawyers will make to the commission. First, they will bring in recruitment and human resource expertise, which will be needed to determine how best to run the appointment system. Five members should be sufficient to give a range of perspectives from elsewhere in the economy and public life.. More generally they will emphasise the commission's independence from the judiciary and executive, and will form the link in the commission between the judiciary and the public.
The Government have very carefully considered the arguments that all this means that there should be a majority of non-lawyers, not just form the largest single group. We still take the view that—for the reasons I have set out—it is better to ensure that the composition of the commission,
"adequately represent[s] the different voices that are required to be heard in the appointments process".
I turn now to the chairman of the commission. We carefully considered the arguments for either a judicial chair or a lay chair. As the noble Baroness, Lady Carnegy of Lour, has indicated, chairing the commission will be a sizeable commitment—if not full-time, then certainly close to it. That would not allow a senior judge to devote to the commission the attention it needs and continue to sit as a judge. As the Lord Chief Justice has explained,
"a lay chair will be able to devote the time to this role that such a post deserves".
Moreover, the chairman will play a key role in planning the commission's programme and how it is carried out. In this work there is great advantage in looking for someone with extensive experience in selection procedures elsewhere. I respectfully submit that these factors tip the argument in favour of a lay chair and the judiciary agrees this approach.
We therefore believe that the composition and membership of the commission as set out in the Bill is right. We consider it is an important strengthening
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factor that the balance we have struck should have the agreement of the Lord Chief Justice as set out in the concordat.
I turn briefly to the point raised by the noble Lord, Lord Henley, about changing the composition. That is based on the concordat. It is a best guess and a reasonable compromise. Experience of the JAC in action may show that we need a slightly different balance of members, but we cannot see any scope for a better balance. I have no living examples to give the noble Lord. Therefore we have allowed, as set out in paragraph 5 of Schedule 12, that by affirmative resolution the Minister may bring forward amendments subject to the safeguards that he cannot decrease the numbers. The Lord Chief Justice must agree and the affirmative procedure will apply.
On the basis that we have sought through good consultation the best balance for the commission, I hope that the noble Lord will withdraw the amendment.
Lord Henley: As I made perfectly clear in relation to my amendment—and I imagine the same applies to the noble Lord, Lord Borrie—at this stage I was merely probing the Government's intentions. I thought it was important and necessary that the Committee had a chance to debate the proposed composition of the Judicial Appointments Commission.
I hope I have not got him wrong, but the noble Lord, Lord Goodhart, seemed to imply that because this was part of the concordat we should accept it as it is. I accept the importance of the concordat. However, the Government see that under paragraph 5 of the schedule there might be an occasion when they may need to amend it and they propose to do so not merely on their own with the agreement of the Lord Chief Justice but by obtaining the affirmative consent of both Houses. They therefore believe it a right and proper matter for this House to discuss and I too was keen to do so.
The amendment was a probing amendment and as the noble Lord, Lord Borrie, said, it is a question of balance. Different views can be put forward one way or the other. I want carefully to consider what other Members of the Committee and my noble friend have said and look carefully at what the Government have said. Perhaps I will return to the matter perhaps with other suggestions on Report. Until then, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 88CGB to 88CGG not moved.]
Lord Evans of Temple Guiting: I beg to move that the House be now resumed. In doing so, I suggest that the Committee stage begins again not before 8.52 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Foetal Alcohol Syndrome
7.52 p.m.
Lord Mitchell Lord Mitchell rose to ask Her Majesty's Government how they intend to reduce the incidence of foetal alcohol syndrome.
The noble Lord said: My Lords, binge drinking and alcohol abuse is a subject right at the heart of the Government's public health agenda. What I would like to address this evening is a little known sub-set; foetal alcohol spectrum disorder and its particular and narrower excess, the chronic foetal alcohol syndrome. I am raising this matter in your Lordships' House not only because this disorder is so tragic but also because it is totally preventable.
Foetal alcohol spectrum disorder is an umbrella term, which describes a wide disability that afflicts one in a hundred of all live births in the developed world. At its most benign, it probably encompasses attention deficit disorder in children, as well as other behavioural problems. At its most malign, it manifests itself as the full foetal alcohol syndrome.
The syndrome is estimated to affect between one and three in every 1,000 live births. FASD occurs because the foetus in the womb is unable to breakdown alcohol that has crossed from its mother's bloodstream, via the placenta, into its own bloodstream. In its early life, when the blood filtration system is underdeveloped, the foetus is totally unprotected from the alcohol circulating in its body—without a liver, alcohol remains a poison. As a poison the alcohol can cause permanent brain damage to the developing foetus.
I must declare an interest in that a dear friend of mine adopted a child who was three years old. Today she is a teenager the same age as my own twin sons. She has been diagnosed as having the full syndrome. I have been able to witness at first-hand how this one child has grown into a young person, frustrated by her own inability to be like her peers. She is increasingly angry, increasingly desperate and increasingly isolated. She will never be able to enjoy an independent life. I watch helplessly as I contrast her to my own sons and as I see her suffering and her adoptive mother suffering with her. My friend is spearheading the NO-FAS campaign in the UK.
In most cases, FASD children look pretty normal, but some do have certain facial characteristics. They may be somewhat underweight and smaller than average children, but to the untrained eye they seem much the same physically as anyone else. Typically, they continue to pass as normal, until they reach early puberty, then they tend to be abandoned by their playmates. They adopt new and younger friends, only to be dropped again when they too reach puberty. Eventually, such children become friendless. Their peers outgrow them and leave them behind. Unable to hold down even the simplest of jobs, in adulthood they become totally dependent on families and friends. They become a massive economic burden on society and many become homeless and many end up in prison. The truth is that they are permanently damaged. The irony is that it is all totally preventable.
So why is it that little is being done to address this issue? There seem to be two principal reasons. The first is that the Government are not convinced of the scale of the problem. The second is that they do not believe that they need to take any further action to alert young women to the dangers. I would like to deal with both issues.
The Department of Health collects data on foetal alcohol syndrome via the Hospital Episode Statistics. They measure finished consultant episodes and according to their numbers, in the year 2002–03 the total number of FAS FCEs was 128. Other numbers are dramatically different. FASD has been studied at great length throughout the world, but most work has taken place in the United States. Studies there have been conducted by highly respected academics and medical authorities in leading universities and hospitals. Reassuringly all the studies whether in America or elsewhere hone down to the same conclusions; that one in 100 live births results in some form of the disorder, of which between one and three in 1,000 result in the full syndrome. These figures have also been confirmed by the World Health Organisation.
Now if these figures were to be applied to the 750,000 live births each year in the United Kingdom, the results should be as follows: that 7,500 children should be born with the disorder, of which 2,000 should have the full syndrome. So if the world-wide experts say the incidence of the syndrome in the UK should be 2,000 annually, how can it be that the department says that its tally of FAS cases is barely over a hundred?
Well, I hardly feel it is because of our national temperance. Were binge drinking an Olympic sport, not only would our country win the gold medal, but they would give us the silver and bronze by way of a consolation prize. It must be the methodology of gathering data and its diagnosis.
In the UK, the syndrome is diagnosed predominantly by geneticists who look for typical facial features. But few FASD babies exhibit these features. It must also be said that awareness of FASD even among the medical profession is scant and that in consequence positive diagnosis of many cases simply does not occur, unless of course we are culturally different from the rest of the world. In some ways we are different. In our country there is a greater incidence of binge drinking, a greater incidence of unprotected sex and a greater incidence of teenage pregnancy. It simply cannot be that in the UK FASD is one-twentieth of the total that occurs elsewhere.
The second instance of the department's reluctance on this matter centres on the responsibility to alert the public to the risks taken by pregnant women who drink. Few young women are aware that alcohol, even a small amount, increases the risk that their baby will be born with some form of defect. The department recommends that a pregnant woman can drink a few units of alcohol per week during pregnancy. But how many women know this? And what constitutes a unit? To most of us a unit means a glass or two of wine. But

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wine glasses in pubs are getting bigger and bigger. So how large is a glass? How much liquid does it contain? How alcoholic are its contents? And what happens if the weekly quota of alcohol is consumed in one evening on a critical day in the pregnancy?
Today the alcohol industry is deliberately jazzing up its products. Old-fashioned bitter, for example, which has an alcoholic content of 3.8 per cent, is being rapidly replaced by fashionable, more expensive beers where the alcoholic content is close to 6 per cent. The same is true of alcopops. What does that say about the value of using the unit as a measure? It means that it is imprecise and uncertain. Anyhow, it seems to me that few young people have the vaguest knowledge of what a unit is.
On my desk, I have two cans of Guinness; one bought in New York and the other bought in London. The American can has the following warning printed on the side:
"Government Warning - according to the Surgeon General women should not drink alcoholic beverages during pregnancy because of the risk of birth defects".
The British can is silent on the subject. Why is this?
The department says it is because the American experience shows that labelling has had virtually no impact at all on the prevalence of alcohol misuse in the United States. In which case, could somebody please tell me why we label tobacco products? Could he tell me why drugs such as Sudafed have warnings about taking them while pregnant? Furthermore, could he tell me why we are considering labelling food products to highlight salt content, as well as foods that cause obesity? I f labelling works in the case of tobacco, drugs and food, am I seriously being told that it does not work in respect of alcohol? I am informed that in France and in Poland, their Governments are now committed to introducing labelling to warn of the dangers to the unborn child.
So why not does that not happen here? Labelling, of course, is not the cure but it could be the first step the Government could take to start to inform those who are vulnerable and to demonstrate their commitment. They could also insist that warnings are posted on products associated with pregnancy, such as pregnancy test kits and baby magazines, as well as on notices in clinics and surgeries. Finally, on this subject, why do the Government not state clearly that if a woman is pregnant, or is thinking of becoming pregnant, it is best not to drink?
I am coming to the end of what I have to say, but I cannot finish without directing a few warning words to the alcohol industry itself. For its own protection, it would do well to study what has happened to the not too dissimilar tobacco industry and to draw the lessons. Tobacco today is fighting for its life under the onslaught of multiple legal cases around the world. Just like tobacco, the alcohol industry targets the young and impressionable. The marketing men, the advertising industry and the sports sponsors all conspire to make alcohol cool. I would like to see them behaving as responsible citizens, alerting their
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customers to the dangers, whilst balancing the fun and enjoyment that comes from sensible and informed drinking.
Having said all that, at the end of the day it is not the drinks industry that must take the lead, it is our Government. On 15 September at Prime Minister's Questions, my right honourable friend the Prime Minister, when asked a question about foetal alcohol syndrome, said:
"On the specific issue of foetal alcohol syndrome, we know that excessive drinking may affect the brain of a developing foetus. The evidence is absolutely clear, and I am sure that responsible women who are pregnant will take account of it".—[Official Report, Commons, 15/9/04; col. 1264.]
I am delighted that the Prime Minister is so supportive, but, as we know all too well, not all women are responsible and not all women are informed.
I look forward to the rest of the debate and, in particular, to my noble friend's reply.
8.3 p.m.
Lord Chan: My Lords, I thank the noble Lord, Lord Mitchell, for securing this debate on foetal alcohol syndrome. I wholeheartedly support him in his concern for this serious and irreversible developmental abnormality in the foetus, as the result of pregnant women drinking alcohol during pregnancy. However, the damage of foetal alcohol syndrome is fully preventable, as the noble Lord, Lord Mitchell, has said if women abstain from alcohol for the nine months of pregnancy.
Foetal alcohol syndrome was identified some 30 years ago and advances have been made in diagnosis, surveillance, prevention and intervention, particularly in North America, but more work remains to be done. This timely debate reminds us that the Health Survey for England in 2002 reported that an increasing number of women were drinking in excess of the recommended maximum of 21 units of alcohol per week and that 3.6 million women, mostly 16 to 24 years of age, were drinking over 14 units per week. That figure included half a million women drinking over 35 units per week. Women in professional occupations were drinking more than women in unskilled households.
The main thrust of organisations such as Alcohol Concern, the national agency on alcohol misuse, has so far been to focus on the broader mental, physical and social problems associated with excessive drinking by the habitual or binge drinker. Health impairment includes liver damage, accidents, stroke and mental illness. Birth defects are mentioned in passing without specifically naming foetal alcohol syndrome; at least, that is what I found in the Alcohol Concern leaflet on the Internet. Another document, Prevention and reduction of alcohol misuse, an evidence briefing published by the Health Development Agency in June 2002, makes a brief statement in its introduction:
"Alcohol is also closely linked with preventable harm associated with pregnancy (10 per cent of children of alcohol-dependent mothers suffer from foetal alcohol effects)".

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In North America, both in Canada and in the United States of America, foetal alcohol syndrome and related disorders have been specifically highlighted since 1996 in an important public health approach to preventing alcohol misuse in pregnant women. For example, the Ministry of Children and Family Development of the Government of British Columbia published community action guides on the prevention of foetal alcohol syndrome in 1996, which ran to about 50 pages. The US Congress in 1998 recognised the significance of a co-ordinated effort to address the concerns related to foetal alcohol syndrome. The Secretary of the US Department of Health and Human Services was directed through the Public Health Service Act, Section 399G, to establish a national task force on foetal alcohol syndrome and foetal alcohol effect. The terms of reference of the national task force were to:
"Foster coordination among all government agencies, academic bodies, and community groups that conduct or support FAS and FAE research, programs and surveillance; and…otherwise meet the needs of populations impacted by FAS and FAE".
On 17 May 2000, in accordance with Public Law 92–463, the task force was chartered. Authority to establish the task force was delegated to the Centers for Disease Control and Prevention's National Center on Birth Defects and Developmental Disabilities. This came as, in 2002, the US Centers for Disease Control and Prevention (CDC), based in Atlanta, Georgia, identified foetal alcohol syndrome as an important and eminently preventable disorder. Guidelines for the referral and diagnosis of foetal alcohol syndrome were published in July 2004.
Foetal alcohol syndrome, as described by the noble Lord, Lord Mitchell, is a spectrum of disorders caused by prenatal exposure of the foetus to alcohol. Abnormal facial features, such as small eyes, growth deficiencies and central nervous system problems in a baby born to a mother who drank alcohol regularly during her pregnancy form the basis of diagnosis of FAS. The neurological defects in FAS include impaired memory, low intelligence, poor attention span and difficulties in communication, vision and hearing.
Alcohol-related neurodevelopmental disorder (ARND) and alcohol-related birth defects (ARBD) are terms used when the diagnostic features of foetal alcohol syndrome are present but at mild or less severe levels. Problems found include learning difficulties, poor school performance, and difficulties with mathematical skills, memory, attention and judgment. In alcohol-related birth defects, problems arise with the heart, kidneys, bones and hearing.
Foetal alcohol syndrome rates vary widely depending on the population studies. The Atlanta CDC studies show foetal alcohol syndrome rates ranging from 0.2 to 1.5 cases per 1,000 live births in different areas of the United States. If that range of rates were applied to babies in the United Kingdom, we could expect at least 700 to be affected each year.
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The noble Lord, Lord Mitchell, gave us other figures to compare with the paltry figure of 128 detected in our Hospital Episode Statistics.
The American CDC states that there is no known safe amount of alcohol that a woman can drink while pregnant, nor a safe time at which she can do so. Of course, a number of developmental birth defects can display diagnostic similarities to foetal alcohol syndrome. But foetal alcohol syndrome is the one abnormality that is totally preventable if pregnant women are informed that drinking alcohol in pregnancy can cause it and abstaining from alcohol can prevent it.
In view of the long-term disabilities occurring in people with foetal alcohol syndrome, should Her Majesty's Government not consider a review of this condition with a view to preventing it? There are other causes of long-term disabilities in children which require expenditure, but foetal alcohol syndrome is totally preventable.
Finally, a campaign to warn young women of the dangers of alcohol for the foetus may be the start of a community programme to reduce alcohol misuse among them. We know that the incidence of binge-drinking of alcohol has been increasing over the past 10 years or more. A campaign such as the one that we are discussing this evening may be a useful approach in stemming the tide of accepted alcohol drinking among women.
8.12 p.m.
The Earl of Listowel: My Lords, I rise briefly to speak in the gap. I take this opportunity to draw your Lordships' attention to a particular group of children who may be at special risk of this syndrome—that is children of care leavers or those who, as children, were in care.
As noble Lords may be aware, about 80 per cent of children in care are there as a result of abuse or neglect or because of family breakdown. The rate of mental disorders among those in care is four times higher than that of the general population, and for the 10 per cent of those children in residential care, the rate is seven times higher than for the general population.
The rate of teenage pregnancy in that group is two and-a-half times higher than that of the general population, and a child horn to a woman who has been in care is two-and-a-half times more likely to be in care himself during his childhood.
The point that I am trying to make is that that group might be particularly susceptible to drinking too much during pregnancy or perhaps being pregnant at too early an age. Therefore, we may first take the practical step of being very careful to ensure that they are fully informed about the dangers of drinking during pregnancy and, secondly, watching the group to discover whether there is indeed such a problem in this area. I understand that recent research has shown that unfortunately there is a worrying level of drug misuse among that group. I do not know whether any research has been carried out into alcohol use by that group.

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I also believe that this is an opportunity to compliment the Government on their very responsible investment in building a capacity of foster carers in the residential care system and the schools system, but to emphasise that they are starting from a very low base and that they really must work very hard to keep that momentum going forward to prevent the kinds of outcomes that we have discussed today, such as foetal alcohol syndrome and all the other adverse outcomes that we know are associated with such poor childhood experiences.
I thank the noble Lord for bringing this very important issue to our attention, and I look forward to the Minister's response to the debate.
8.15 p.m.
Baroness Neuberger: My Lords, I, too, would like to compliment the noble Lord, Lord Mitchell, on engendering this debate and drawing our attention to the issues surrounding foetal alcohol syndrome.
As we have heard from the noble Lords, Lord Mitchell and Lord Chan, a great deal is known about foetal alcohol syndrome, but I would also argue that there is still more to learn. According to the World Health Organisation, anything between 0.33 and 9.7 per thousand live births develop foetal alcohol syndrome, but many people would argue that far more children are born with foetal alcohol syndrome or that a number within that spectrum are affected by alcohol drunk by their mothers.
Dr Raja Mukherjee of St George's Medical School—I declare an interest as I used to be on the medical school's council—believes that many more babies are affected, up to one in 100, and argues that many of them have been incorrectly labelled as having behavioural problems. We know that extreme cases have abnormal facial features and often have nervous system problems. They are the obvious ones, but others may have behavioural problems as a result of alcohol in the womb, who are incorrectly diagnosed as having attention deficit hyperactivity disorders.
As both noble Lords have said, we are seeing an apparent explosion of behavioural problems and there also appears to be an explosion of drinking among young girls and women—and binge drinking at that. The question is whether the two are connected, as some definitely tend to suggest, or is there perhaps a third or indeed a fourth factor?
In April 2004, the Minister argued that:
"It is difficult to assess the relative impact of excessive maternal drinking and other factors such as maternal socio-economic status, maternal age at the birth and maternal nutrition during pregnancy".—[Official Report, 19/4/04; col. WA 10.]
He should have added "maternal nutritional status before pregnancy".
It seems to me that other factors need to be taken into account here and that there is considerable evidence that poor diet, both during and before pregnancy, has a powerful effect on the development and health status of future children. Those, too, are matters about which something could be done. It is not only foetal alcohol syndrome that has something
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doable about it. Something can also be done about the nutritional status of young women. We seem to be seeing in young women, particularly before pregnancy, an odd combination of very poor diet and binge drinking at the same time.
To give just a little light relief in this very serious debate, there is a wonderful scientist, David Barker, at the Medical Research Council in Southampton—again I should declare an interest as I used to be a member of the council—who, as a result of conducting a survey of women between the ages of 18 and 35 in Southampton, which represents the rest of the UK very well, decided to pay the women of Southampton a compliment and organised a photographic exhibition of them to say "thank you". He drew lots as to who would take part in the photographic exhibition. There are some wonderful portraits of the women. There were also some portraits of the contents of their fridges. Of all the fridges that were portrayed in that random selection of women in Southampton between the ages of 18 and 35—precisely the women about whom we should he concerned in this debate—one of the most alarming revelations was that only one had any green vegetables in it, and one family, interestingly, did not have anything in the fridge except some alcohol and their pet rat.
It seems to me that we need to take some of these issues into account. If these young women are eating an appalling diet, paying great attention to keeping thin, and with a lot of binge drinking on the side, there are other factors we have to take into account. I wonder whether we should not think that there is a more complex picture here of the effects of a poor nutritional start plus heavy drinking in pregnancy. Should we not also ask whether there is a socioeconomic link? Whatever, the picture appears to be gloomy for many of our children, but does not appear to be altogether simple. Nor, of course, as both noble Lords have said, is it inevitable.
It is quite clear that better information could and should be given to women who are pregnant and women who are thinking of getting pregnant. Our standard alcohol strategy is not enough. Government advice to women who are pregnant or trying to get pregnant that they should not drink more than one to two units of alcohol a week is probably not adequate either. We and they need to know more about it. Most people do not really know what one unit consists of. Pregnant women need to know and understand the dangers that they are facing with a bit more certainty.
Clearly, there are things that could be done about that. There could be better education in ante-natal classes about alcohol, although the most vulnerable groups probably do not go to ante-natal classes. Equally, there is a question about the labelling of alcohol. We should be asking the Minister whether she will encourage the drinks industry to put warning messages on bottles and cans. There was the news today that Scottish&Newcastle are, for the first time, putting some kind of warning on bottles and cans, and that is a very good sign. The noble Lord, Lord Mitchell, has been pushing for that for some time and wants to see what is happening in the United States.

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More than that, it seems to me that perhaps the Minister and some of us could be taking issue with the Portman Group, which represents the alcohol industry. One of its representatives, Jim Minton, told BBC News Online in September of this year,
"Women who are pregnant or planning to become pregnant should seek advice from a medical professional about recommended levels of drinking appropriate to their circumstances",
That seems a bit mealy-mouthed, somewhat understated, one might say. Could not the Portman Group support precisely what Scottish & Newcastle has announced today and let us see some serious attempts by the industry to label bottles and cans so that people know that if they drink large amounts of alcohol they will almost certainly damage their unborn children and perhaps if they drink any at all that may be true too?
Given the uncertainty of the precise extent of the problem and the complications of disentangling one kind of developmental damage from another, should not The Government now be willing to encourage greater research in this area? Will the Minister make a commitment to greater sponsorship of research in this area? Will she look at the potential link between binge drinking among women and the exponential growth in behavioural disorders and see whether there is really a link there?
Will she also look at whether the figures that were cited by the then Health Minister, Hazel Blears, in 2002 were accurate? Those are the figures that were drawn from the Hospital Episode Statistics (HES) data, which showed that in 2000 there were 0.07 cases per thousand live births in the UK. That seems astonishingly low. It seems to me that there is something wrong with our recording as well as some of the thinking around what we should be doing about it. Perhaps then, if we could get the data right, we could look at the extent to which the link is strongest among women of lower economic status with poorer nutrition who drink heavily. It appears that they are at greater risk of foetal alcohol syndrome than middle class women drinking the same amount of alcohol at the same time.
Indeed, in a private conversation over this past weekend with the immediate past president of a faculty of public health medicine, Professor Siân Griffiths, she argued that we should be thinking far more about issues of maternal deprivation and young maternal deprivation than purely about the link between alcohol and pregnancy. It is a more complicated picture than that.
Clearly, in the United States, women are blamed for harming their foetus if they drink at all. Our guidance here does not say, "Don't drink at all". One might argue whether it should. Equally, we know that those who plan pregnancies tend to stop smoking and drinking alcohol. It is those who do not plan their pregnancies—those who are raped, or are too drunk to know what they are doing, and then get pregnant—who may be running the greatest risks.
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There are women for whom the issues may he much more complicated than simply that they drink too much. I particularly want to thank the noble Earl, Lord Listowel, for raising the issue of young women—girls, really—who leave care and then get pregnant. They have a complicated set of issues to face, and clearly they are at far greater risk. Blaming them for drinking during pregnancy will not help.
To sum up, I ask the Minister to consider three things: first, whether the Government will consider labelling bottles and cans of alcoholic drink, at least giving information beyond the present alcohol reduction strategy; secondly, whether there can be a real push towards further research into both the incidence in the UK of foetal alcohol syndrome, and associated disorders, and the general link with deprivation and poor nutrition, following the evidence we already have on that; thirdly, if the Minister will encourage vastly improved health education in schools—so that long before they become pregnant, we hope, girls know the risks—and, of course, in antenatal care.
We should not succumb to the "blaming women" syndrome that has become commonplace in the United States. Here in the UK we have to think differently. We must know the incidence, and provide more information, but we also need to encourage research in those complex, linked areas of alcohol abuse, deprivation, and poor nutrition before and during pregnancy. Will the Minister comment on whether research in that area could go higher up the research council's list?
8.26 p.m.
Earl Howe: My Lords, this is one of those debates where, though the number of speakers may be few and the attendance sparse, the issue under discussion is of profound and far-reaching significance. I take my hat off to the noble Lord. Lord Mitchell, who has done so much to champion the cause about which he has spoken to us so compellingly this evening.
Like him, I shudder when I start reading what teenagers and young people do to themselves when they go out for an evening and start knocking back the drink. British teenagers are among the heaviest drinkers in Europe, and, when it comes to binge drinking, the quantities of alcohol being consumed are going up, not down. The term "lager loutette" has unfortunately entered the language. I am the first to say that there is much to be applauded in the Government's alcohol harm reduction strategy, published last March, but Ministers must know as well as anyone how big the mountain is that has to be climbed. Nobody believes that this is a problem for the Government alone to solve; it has to be a co-ordinated effort between government, industry, the voluntary sector, schools and many others. But I am sorry to say that if we look in the strategy for anything concrete about foetal alcohol syndrome, we look in vain—the strategy contains practically nothing about it.
The noble Lord, Lord Mitchell, has spoken about the incidence and prevalence of FAS and its often devastating consequences. One problem, as he rightly

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acknowledges, is trying to get a handle on how widespread the syndrome is. Those who exhibit physical characteristics directly symptomatic of FAS are a minority of sufferers; the majority can only be diagnosed in other ways. It is clear from reading the literature that a large number of cases are probably not being diagnosed at all. I agree entirely with what the noble Baroness has just said in that regard. This is especially probable when we bear in mind that FAS is a spectrum disorder—that is, a disorder characterised by a variety of symptoms depending on whether it is mild, moderate or severe.
The incidence of FAS recorded in the UK is considerably lower than estimates made by the WHO across a range of different countries. Obviously one has to make allowances for different levels of alcohol consumption in those countries, but it seems likely that in the UK we are not accurately recording the true incidence. That is a particular worry. Although one half of the problem is what more we ought to do to dissuade women from drinking when pregnant, the other half is what more we should do to help children who are born with the condition. If we do not sufficiently recognise the condition when it is in front of us, we are not in a position to fashion a proper policy or assess the effort required to tackle the problem. Nor can we help the women and children who need to be helped in a timely way.
I suspect that, if the various barriers to diagnosis were to be magically removed and we were suddenly confronted with the true incidence of FAS, the pressure on the Government to do more than they are doing would be very great. As it is, even with the information that we have before us, the Government's response to the issue seems less than satisfactory. Among doctors who specialise in the field, there is consensus that, for a pregnant woman, no level of alcohol is safe. NOFAS—the National Organisation on Foetal Alcohol Syndrome—is right in what it has said about that. Clearly, the message that goes out should not be one that instils panic into women who may be pregnant and may have had a couple of drinks, but, in the light of recent evidence from, for example, the University of San Diego and Queen's University, Belfast, and the excellent work of Professor Raja Mukherjee at St George's Hospital Medical School, should not the warning messages be changing?
The Government's official recommendation is that mothers-to-be should limit themselves to one to two units of alcohol a week. I wonder whether the time has not come when the message should in essence be, "If you are a mother-to-be, the only sensible level of alcohol consumption, at any time during your pregnancy, is zero. But if you must drink, do not go above one to two units per week". Rephrased in that way, the advice would be better balanced. It would adopt a more precautionary stance without being alarmist.
The Government's alcohol harm reduction strategy is partly predicated on a so-called "sensible drinking message". For the population at large, that may be totally appropriate. The Government's approach has been to encourage the alcoholic drinks industry on a
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voluntary basis to put the sensible drinking message on bottles and cans. I have no problem with that, but should we not encourage the industry to go a little further by including a separate message for pregnant mothers? For non-pregnant women, the "sensible" recommended limit is 14 units a week, but 15 units of alcohol a week is the level at which a baby's birthweight starts to be adversely affected. Someone taking 14 or 15 units all in one go is doing herself and her baby serious harm. That point was made by the noble Lord, Lord Mitchell. I understand that the drinks industry will contribute to a fund that, among other things, will provide information to young people about alcohol misuse. We need to ask what place, if any, FAS will have in that scheme.
I hope that the Minister will agree that education and information are vital, if the incidence of FAS is to diminish—the education and information not just of women but, I suggest, of health professionals. For health professionals, the focus, as much as anything, should be on recognition and diagnosis. Dr Raja Mukherjee of St George's believes that up to one in 100 children affected by FAS are not being identified. That surely points to the need for research into bio-markers, to identify at-risk women and at-risk newborn babies.
Neurological damage caused in utero can result later in a child who is disruptive and hard to manage. The majority of FAS sufferers have behavioural problems. Research carried out at the University of Washington has found that, of a selection of school-age children diagnosed as having FAS, 60 per cent had been suspended or expelled from school or had dropped out; 60 per cent had been in contact with the police for a suspected criminal offence; and 50 per cent had been confined in some way, either in prison or in a mental hospital.
Those findings should ring alarm bells with us. FAS in a child or young person requires compassion, understanding and treatment, not punishment. Nothing can be done to cure the primary disability—the impairment of brain function. But a stable, nurturing home environment and sensitive education can do much to alleviate behavioural abnormalities. Maximising the potential of affected children is dependent on giving them encouragement and instilling a sense of achievement. It depends on teaching appropriate social behaviour and social skills. It depends on constant input from trained adults. All of that rests upon early diagnosis.
When a child reaches adolescence he or she needs to be closely supervised. If he is given too much freedom, there is a risk that he will be manipulated by others and sucked into undesirable company. The trick is to look for opportunities where the individual feels some independence, but which is none the less safe—supervised employment, sport or perhaps an artistic endeavour.
Trying to incorporate an FAS child in mainstream education can lead to that child dropping out of school; but worse, if the FAS has not been identified, the child's difficulty in complying with instructions, whether through lapses of memory or through

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difficulty with comprehension, can be mistaken for defiance. That is a very dangerous misdiagnosis. Parents can find themselves on the receiving end of accusations of poor parenting, or even abusive parenting, in exactly the same way that parents of children with ADHD or autism run the risk of wrongful allegations. Those conditions, too, require specialist diagnosis.
Against that background, I am extremely concerned that the provisions of the Anti-Social Behaviour Act are being implemented on the ground in a way which ignores everything that we have been discussing. It is an Act which is all about protecting the community—no more, no less. I am receiving reports from bodies such as BIBIC, the British Institute for Brain Injured Children, that indicate an attitude on the part of police officers that can only be described as oblivious. In one case, an officer was asked what he would do if confronted with a disruptive child. The reply was that if the "perpetrator" behaved anti-socially then the police would take a strong line. When asked what they would do if the child had a learning difficulty which led to challenging behaviour the reply was that the child "had to learn to behave in an accepted manner". No special help was being put in place as it was all about "protecting the public". In taking that line the officer was not being uncaring or unpleasant; he was simply doing his job in the best way he knew. But because of his lack of understanding about conditions such as autism, ADHD and FAS, it was clear that he regarded bad behaviour in children as predominantly the parents' fault.
That is a sentiment which we hear rather often from the Home Office at the moment. I must therefore ask the Minister what guidance, if any, has been issued to police forces and other bodies on the implementation of the Anti-Social Behaviour Act; and whether such guidance takes account of genetic and non-genetic mental conditions in children, which may point to a therapeutic rather than a punitive solution to disruptive behaviour. It would be completely wrong for the law to be enforced in a way which rode roughshod over such children.
All that points once again to the need for greater public awareness of FAS and for early identification of sufferers. The cost of looking after such children is, in many cases, very substantial; but the earlier the diagnosis, the more the cost can be kept down. I hope that the Minister will be able to hold out the prospect of further government engagement on the issue when the public health White Paper is published later this year. For all the reasons referred to tonight, there really is a great deal of ground to be made up.
8.39 p.m.
Baroness Andrews: My Lords, like all noble Lords who have spoken in this excellent and—as usual—expert debate, I am grateful to my noble friend Lord Mitchell for the opportunity to follow up the remarks he made some time ago in a more thoughtful and considered way than we were able to then. I am particularly pleased to welcome the noble Baroness,
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Lady Neuberger, to the Front Bench and appreciated what she said about the context in which we are considering the relationship between alcohol and pregnant women.
I thank all noble Lords, including the most opportunistic of all, the noble Earl, Lord Listowel, who brought to our attention some very vulnerable young people and made some important points; and the noble Lord, Lord Chan, for the international dimension by which he measured what we are doing in the UK. I thank particularly my noble friend Lord Mitchell, who, as the noble Earl said, has taken this very much as a personal and professional campaign and has been a powerful advocate and champion of people with foetal alcohol syndrome and their children.
I have a lot to say and I will have to go rather fast. We have a duty to be clear in what we are saying to pregnant women about the risks of drinking. No drinking is totally risk-free. Drinking during pregnancy can put the developing foetus at risk in many different ways, including miscarriage. In the interim analysis for the alcohol harm reduction strategy, which devoted some pages to FAS, we considered a range of issues connected with FAS.
Although there is relatively small risk, there is clearly the potential that some heavy drinkers will develop FAS, with all the personal consequences that we have heard so graphically described tonight on the basis of evidence from all around the world.
I would like to pay tribute in that context to the work of the National Organisation for Foetal Alcohol Syndrome. I have looked at its website and read its reviews. There is no doubt that it provides essential support and information to such families. I know that colleagues at the Department of Health are always prepared to meet its representatives to discuss their concerns.
I want to start with what we can agree on because there are issues on which we can agree; notably that FAS is preventable and that the evidence suggests that it is caused by excessive alcohol consumption. The problem is that the definition of "excessive" seems to differ for individual women. The noble Lord, Lord Chan, said that more should be done. The noble Baroness, Lady Neuberger, said that we need to learn more. Indeed we do. We know quite a lot, but it seems that this is a relatively recent syndrome about which a great deal more research could be carried out. There seem to be no hard-and-fast rules about why some women are more vulnerable than others.
Evidence suggests that most women who drink heavily—more than 35 units per week—will not go on to have a baby with FAS. On the other hand, as the noble Baroness, Lady Neuberger, said powerfully, there is a range of other factors that also affect maternal and child health; particularly, I agree, about pre-maternal nutritional syndromes. We know a great deal more than we used to about fish oils, for example, and fruit and vegetables. We need to take that and socio-economic conditions into account when we are looking for explanations of vulnerability.

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In this country there is uncertainty about the scale. Reputable medical expertise has concluded over the past 10 years that FAS is difficult to diagnose, especially as the child develops; and it is difficult to establish the scale of the problem, particularly if nothing is known about the mother's drinking habits. We can also agree that it is difficult to make a robust or agreed estimate of the prevalence of FAS. Noble Lords have quoted different figures, including the WHO figures, which show a wide spectrum. It is true that our figures for FAS in the UK may be on the cautious side, but we have deliberately chosen the Hospital Episode Statistics because they are the most certain. Having said that, rather than debate the statistics, perhaps I may say that not only do I believe that statistics are influenced by different methodologies and definitions but under the circumstances I am happy to offer my noble friend Lord Mitchell the opportunity to put his figures and evidence to the Department of Health, which will be glad to look at them. I notice that he quoted from more recent French figures. That offer goes to all noble Lords who have spoken.
However, I disagree with my noble friend in that we certainly think that we need to take further action. We are not complacent. Our responsibility in government is to reduce the known risks; that means improving the information and support available to all pregnant women, particularly those at greatest risk. Again, I pick up the point of the noble Earl, Lord Listowel. Some of the most vulnerable young women may be binge drinkers; others may be older women who are chronic drinkers. The message needs to be different in each case.
The Department of Health advises women who are pregnant or who are trying to get pregnant to drink no more than one to two units of alcohol a week. Again, that evidence is based on the soundest, most consistent and most independent medical and scientific judgment available. Based on a major review of research studies, it has been standard since 1995 and has not been challenged by the medical establishment. In the absence of any more compelling evidence or any pressure or desire from the medical profession to change this, it remains our current advice. The whole history of the way we make public health policy in this country is that we base it on evidence. If that evidence should change, we would change our working practice.
We try to make sure that this advice reaches pregnant women in ways and places we know it can reach them: face to face in the surgery; with the health visitor; in the home; directly through leaflets called Drinking for Two which are aimed at pregnant women; through women's magazines; through health publications targeted at women and, increasingly, through health websites.
This seems to be getting through to women. The infant feeding survey, which monitors women during pregnancy, was last carried out in 2000. We will do another one next year, so we will look at it again. The survey found that nearly 30 per cent of women gave up drinking entirely during pregnancy and only 1 per cent drank more than 14 units per week—about one and a half bottles of wine. So of the 600,000 live births each
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year, about 6,000 women fall into that category. That seems to indicate that women are increasingly aware of the risks.
For those women who are already addicted and have serious problems, a range of specialised help is available. They can get help from surgeries, referrals, helplines and specialised treatment services. We are auditing these specialised treatment services to establish how many we have and how many we need.
I should like to focus specifically on what else we intend to do. We are intent on doing more. I have been asked tonight why we do not tell pregnant women not to drink, full stop. Why do we not make the message clearer? Why not target pregnant women? Why not remove the confusion caused by measurements in units?
On the first point, for the message on alcohol and pregnancy to be effective in the face of the weight of the evidence—we know this from all the work we have done on drugs—it must be credible. If we say, "Do not drink", while our scientific evidence says that it is safe to drink one to two units, we would not be believed. We know that once you lose the trust of people whose behaviour you are trying to influence and change, they are likely to dispute the evidence which is sound.
Secondly, why not simply ensure that all alcohol containers carry warnings? The alcohol strategy says quite clearly that we will,
"completely overhaul the way we present the messages".
The DoH is co-ordinating and conducting the review of sensible drinking messages. By next year, we will have a new platform. It is a significant step change in our communications; it covers all government departments, the drinks industry and the voluntary sector. It will look at testing which messages and which media work. It will involve the public in developing these messages, as we have done in other areas. It will consider the different genders and look at how we can target different types of drinkers. We are also looking at better targeting. While we cannot anticipate the outcome, there may well be specific messages targeted on pregnant women and on binge drinkers.
These changes also mean that we will look at how we can spread the message by way of universal and compulsory labelling. We must put this in the European context because we are looking, with Europe, at a whole range of compulsory labelling improvements which may well include alcohol and go beyond what we can say at present. We are looking at how it is possible to move to compulsory messages, and we will take advantage of our EU presidency next year.
In the mean time, we are working with the drinks industry on developing a voluntary labelling scheme. I am delighted that Scottish&Newcastle has come forward voluntarily with a responsible drinking message.
We hope that we can develop the range of messages. We certainly could look at a suite of messages composed for different people, including a message on drinking in pregnancy. I would say to my noble friend Lord Mitchell that we have made it clear in the alcohol

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strategy that, if the range of industry action we envisage does not have the impact we wish to see, we will assess the need for additional steps.
We are well aware that measuring alcohol in terms of units is not satisfactory. The NAS documents the problem. It is difficult to find an alternative which is scientifically valid and which is also simple; but that is the challenge that the alcohol strategy has set and, yes, if we do decide to stick with units, we will look at how that can be presented in a better way.
As to the question posed by the noble Earl about training and support, it is because it is difficult to diagnose that we are now looking at improving training for doctors. We are looking at a new range of training modules, which will include alcohol and FAS. Crucially, we need to make sure that doctors establish the history of drinking during pregnancy. The Chief Nursing Officer and the Deputy Chief Medical Officer are working as training champions.
We are improving our commissioning framework and the Department of Health is co-ordinating the research strategy. We do need to raise our game. We need to plot, and to fill, the gaps in our knowledge.
In response to the specific question the noble Earl asked, I am sorry that I am not able to go into any detail about what we are doing for these particular children. I would simply say that it is in the context of everything we are doing in schools in terms of emotional literacy, to raise the support and expertise that we put into our schools in relation to children with behavioural difficulties. However, the guidance on the anti-social behaviour orders does say that if an individual has a disability, a practitioner with specialist knowledge should be involved in the assessment process to help establish whether that behaviour is a result of disability and how it should be addressed. It should also look at undiagnosed problems. I would be very happy to write to the noble Earl in that regard.
I am afraid that I now have to finish this rather speedy review, but I feel sure that the public health White Paper will, on the basis of the consultations, put a major emphasis on alcohol, because those problems have been brought to the attention of the Government so forcefully, not least in this debate. I hope that I have given the noble Lord, Lord Mitchell, some room for comfort and some hope that we are indeed taking this very seriously.

Constitutional Reform Bill
8.53 p.m.
House again in Committee (on Recommitment) on Schedule 12.
Lord Borrie Lord Borrie moved Amendment No. 88CGH:
Page 198, line 4, at end insert "and the chairman of the Commission"
The noble Lord said: I am not surprised that the noble Lord, Lord Goodhart, thought that I had already spoken to this amendment in the course of discussing the six amendments which were considered before the adjournment.
One of those amendments was concerned with the power of Ministers to alter the categories of various types of people who should be upon the Judicial Appointments Commission. This amendment is to say that, whatever is finally agreed—and I have already spoken to the effect that I hope that it will be a lay majority on the Judicial Appointments Commission—it will only be altered by ministerial decree if not only the Lord Chief Justice but also the chairman of the Judicial Appointments Commission agrees with the Government.
It seems to me very appropriate indeed that the chairman, who is concerned more than anybody with the day-to-day working of the commission, and how people work well together and so on, should have a say if there is to be any alteration in the numbers of people in any particular category of members on the Judicial Appointments Commission.
I am most grateful to the noble Lords, Lord Goodhart and Lord Maclennan of Rogart, for supporting and putting their names to the amendment. I beg to move.
Lord Goodhart: The names of my noble friend Lord Maclennan of Rogart and myself are down to this amendment. Before the adjournment I argued that it was undesirable to undermine the concordat, as that document was of very considerable importance and should not be unravelled unless we felt that it was in some respects seriously defective. We do not feel that it is, so we were unable to support previous amendments moved by the noble Lord, Lord Borrie. However, this amendment falls into a different category.
The system for changing the size of the Judicial Appointments Commission is not a central point of the deal between the Lord Chancellor and the judiciary and is not mentioned in the concordat. Therefore, we do not feel inhibited from supporting an amendment to that particular provision. Requiring the agreement of the Lord Chief Justice to any alteration to the size of the commission is reasonable in itself, but it creates an uneven playing field. A change in size should require consensus between the lay and judicial members of the commission, which can best be achieved by requiring the agreement of both the Lord Chief Justice and the chair of the Judicial Appointments Commission who, as the Bill stands, will be a lay person.
In those circumstances, we believe that the amendment is appropriate. If the Government wished to go ahead without the consent of the Lord Chief Justice and the chair of the commission, they could do so, but only by primary legislation. The use of secondary legislation should therefore require not only

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an affirmative resolution procedure and the consent of the Lord Chief Justice, but also the consent of the chairman of the commission.
Lord Henley: I wish to make one point—other than the point that we have no particular objections to the ideas behind the noble Lord's amendment. He used the expression "ministerial decree" when referring to the provisions in Clause 106, and said that it would be an affirmative resolution. In other words, he said that although it might be a ministerial decree, with the support, rightly, of the Lord Chief Justice, as the noble Lord. Lord Goodhart, said, and, if this amendment were accepted, of the chairman of the commission, it would need the consent of both Houses.
I remind the House of the recent very sad death of Lord Russell, who I might call my noble kinsman, since he always addressed me as such in all social security debates. He was a Member of this House who took very seriously indeed affirmative resolutions and the power of this House occasionally to object to them. That is not something that this House or another place should ever give up, which is why I commented on the use by the noble Lord, Lord Borrie, of the phrase "ministerial decree". We should remember that we have our own rights, too.
I am grateful that on this occasion the Government have decided that the process should be done by affirmative resolution and that they should look to the consent of both Houses in looking for any change in the commission. Having said that, we have no objection to the amendment.
9 p.m.
Baroness Ashton of Upholland: I agree with the noble Lord, Lord Henley, on two counts. First, affirmative resolutions are important to both your Lordships' House and another place. I also agree that Lord Russell, who is sadly no longer with us, played an enormous part in ensuring that affirmative resolutions were taken seriously. I shall miss him.
The difference between us is straightforward. Of course, we would expect the Minister to consult the chairman of the commission about proposed changes. Indeed, although it is not a matter that requires to be stated in the Bill explicitly, I am happy to give a commitment that such consultation will take place. It is a much bigger step to make that amount to a veto on making such changes whatever the circumstances. There are possible circumstances when one would wish to make a change perhaps when the commission did not sufficiently recognise that such a change needed to be made.
We believe that, with the support of the Lord Chief Justice, affirmative resolutions from both Houses and in consultation with the chairman, we have the right balance. That is the difference between us, and on that basis I hope that the noble Lord will withdraw his amendment.
Lord Borrie: I am grateful to the noble Lords, Lord Goodhart and Lord Maclennan of Rogart, for
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supporting my amendment. I am grateful, too, to the noble Lord, Lord Henley, for pointing out my error in referring to the matter as "ministerial decree" because, as he rightly pointed out, it is a ministerial proposal, subject to affirmative resolution.
I am somewhat disappointed by my noble friend's response but grateful to her that she regards consultation as normal procedure in this sort of case. I continue to feel that if the Lord Chief Justice has a right of veto—to use my noble friend's word—so should the experienced chairman of the Judicial Appointments Commission who will be concerned on a day-to-day basis with all those matters. Any change in the categories of membership would particularly affect the commission's working. I shall bear in mind what has been said and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 12 agreed to.
Clause 53 agreed to.
Schedule 13 [The Judicial Appointments and Conduct Ombudsman]:
Lord Henley Lord Henley moved Amendment No. 88CGJ:
Page 207, line 39, leave out sub-paragraph (2).
The noble Lord said: I shall also speak to Amendments Nos. 88CGK and 88CGL. One has to say that with some care at this hour of the night.
They are again merely probing amendments, which arise from the thought that I believe it right and proper for the Committee to say and hear something about the provisions of Clause 53. It is a simple clause which states:
"There is to be a Judicial Appointments and Conduct Ombudsman…Schedule 13 is about the Ombudsman".
My three amendments relate to Schedule 13, which say what the ombudsman is about. In passing, I should make a drafting point as someone who is not familiar with the technicalities of drafting. As one goes through the schedule, we see that there is a lot about the ombudsman. We are told:
"Schedule 13 is about the Ombudsman".
We are told who he cannot be, the terms of the office, salary and expenses. Interestingly again, the Minister "may",
"pay to the Ombudsman such remuneration".
There is no "shall" or "must", but no doubt the ombudsman is capable of negotiating his own terms.
We are then told something about the "Acting Ombudsman", the "Status of the Ombudsman", "Powers of the Ombudsman". It seems that he does not have any powers. He does not have the power,
"to borrow money … to hold real property … to appoint staff".
There are later arrangements whereby the Minister can do that for him.
There is then something about "Delegation of functions" and "Reports", but there is nothing at this stage about the functions of the ombudsman, which I find odd. For that, one has to turn back from the schedules to Clauses 82, 83, 84 and 85 which refer to the ombudsman's functions.
My first question comprises a rather technical drafting point that I would like to put to the Government. Would it not have been possible, rather than jumping from Clause 53 to Schedule 13, to Clauses 82, 83, 84 and 85, to have them all together, or are there good and proper drafting reasons why that is not proper? That I do not know. It might be that it is better to have Clauses 82 to 85 where they are and leave Clause 53 where it is. However, I would be very grateful if the Minister could help me on that.
As regards the particular probing amendments that I have put down, they are not amendments of any real consequence other than the fact that it is right and proper that we should look at certain parts of the Bill. My first question relates to my first amendment in this group, Amendment No. 88CGJ, which seeks to delete sub-paragraph (2) of paragraph 1 of Schedule 13. Subparagraph (2) contains a list of those who cannot be appointed as the ombudsman. In effect the Government are saying that they do not want anyone who is a lawyer to be appointed as the ombudsman. They have ruled out barristers and solicitors in England and Wales, advocates in Scotland, members of the Bar in Northern Ireland and holders of judicial office. Will the Government explain why they consider that the ombudsman should not be someone with a legal background? I am sure that there are very good reasons for that, but no doubt the Government will set that out.
In the second amendment in the group, Amendment No. 88CGK, I merely suggest deleting from paragraph 2(2) of Schedule 13 the words "as such" with regard to the definition of what a practising barrister is. In paragraph 2(2) a barrister is described as "practising as such". Do the words "as such" add anything whatever? That is a flippant aside but if the noble Baroness, Lady Ashton, could help me on that I should be more than happy.
The third amendment in the group, Amendment No. 88CGL, concerns the report that the ombudsman has to produce during the course of the year. It would be helpful if the Government could say a little about what they are proposing in this regard. I am particularly worried about paragraph 14(2) to Schedule 13 which states:
"The Minister may by direction require the Ombudsman to deal, in reports or a particular report under sub-paragraph (1), with matters specified in the direction".
What exactly is the Minister suggesting that he might have to direct the ombudsman to do'? Is the ombudsman not—if we appoint the right person—supposed to be a grown-up man or woman capable of deciding themselves what ought to go into reports? No doubt there are very good reasons why that provision has been included and no doubt the Government will assist us on that point.
Finally, I return to the words "must" and "shall". Paragraph 14(4) of Schedule 13 states:
"The Minister must lay before each House of Parliament a copy of any report provided to him under sub-paragraph (1)".
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I am grateful for the use of the word "must" in that regard. I believe that my noble friend Lord Renton suggested earlier that the word "shall" was always thought to be a politer version of "must". However, I believe that on this occasion it is right and proper that the Minister lays the relevant material before the House. I suggest that "must" ought therefore to remain as "must" and should not be changed to "shall". I again assure the noble Baroness that these are merely probing amendments. I beg to move.
Baroness Ashton of Upholland: I am grateful to the noble Lord, Lord Henley, for so succinctly laying out the rationale behind his amendments. I begin by discussing the issue that the noble Lord raised about the way in which the Bill has been put together. I refer to Clause 53, Schedule 13 and Clauses 82 to 85. As the noble Lord will know, the Bill has been drafted by parliamentary counsel. I understand that it is normal to have the main functions of the ombudsman on the face of the Bill and details of the appointments and so on in schedules. It is then normal to have clauses creating new bodies at the start of a part, and for the rest of the part to set out those functions. Therefore the commission comes first, then the ombudsman, then the commission's functions, then the ombudsman's functions. That is the logic behind that. I hope that is a reasonable parliamentary answer and that it satisfies the noble Lord.
I am grateful to the noble Lord for describing his amendments as probing ones. It gives me the opportunity to say a little bit about each of the areas that he has indicated to be of importance.
I will begin with why we have ruled out those of a judicial or legal background from the post of ombudsman. It is of the greatest importance in these kinds of posts that we avoid any possible public perception of a lack of independence. As the noble Lord knows this is not a new principle. There are a number of comparable posts—for example, the Legal Services Complaints Commissioner and the Legal Services Ombudsman—where we have similar provisions. When dealing with complaints, it is right to prevent the ombudsman being a member of a group that is the subject of complaints. These schemes have not been hampered by a lack of professional expertise none the less. That is the principle behind it—to ensure that it is clear there is independence.
I take the point raised by the noble Lord on Amendment No. 88CGK about the words "as such". This makes it absolutely unequivocal that he should practise as one of the group of lawyers specified, which is the disqualifying factor. I am not sure if taking two words out of the Bill will necessarily provide a strengthening of its rationalisation. That is my understanding of that point. I will look at it again but that is parliamentary counsel drafting to make sure that it is absolutely clear.
Concerning the annual report, it is normal that the public—and your Lordships' House—are provided with a report on activities and expenditure. That is an essential element. It is particularly important when looking at individual complaints that the ombudsman

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is able to publish a report on these areas. Parliament is entitled to have the benefit of the ombudsman's views based on experience and knowledge of the complaints that he is handling on how the new appointments and complaints handling systems are working.
The noble Lord asked about the words "specified in the direction" in Schedule 13, paragraph 14(2), relating to specific issues to be addressed. This is a common device to enable the Minister to ask the ombudsman to look at a report on specific issues. The example that came to mind comes from education, which I feel I know a little bit about. For example, we might want to look at the impact of the new fee structure in higher education on part-time students and the Minister might wish to ask somebody reporting in that area to look at that. The ombudsman might equivalently be asked to look at how particular appointments are made, regardless of whether there have been complaints. In other words, that involves using that expertise not to direct in the negative sense but to find out particular areas where there might be a genuine interest.
As to "must" and "shall", I am grateful that the noble Lord agrees with us that in this context "must" is the right word to use, and I hope on this basis that the noble Lord will withdraw his amendment.
Lord Henley: Obviously I was always going to withdraw these amendments. They are merely probing amendments and I am grateful for the various explanations that the noble Baroness has given. No doubt the order in which the various clauses are arranged is logical. It makes for rather confusing reading, particularly when Clause 53 states that,
"Schedule 13 is about the Ombudsman",
and then we find that it is about the ombudsman but does not say what he has to do so we have to look somewhere else. I am glad I have found where the somewhere else is.
I am also grateful to the noble Baroness for her explanation about what the Minister had to say about the directions that might be issued under paragraph 14(2) on Report. Like her, I have some small experience of the world of education and I suspect that I was showing undue suspicion when I saw the words:
"The Minister may by direction require".
I have a similar suspicion about other wording later in the Bill and I hope that the noble Baroness will be able to allay my fears, as on this occasion. I thank her for her explanations and beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 88CGK and 88CGL not moved.]
Schedule 13 agreed to.
9.15 p.m.
Clause 54 [Merit and good character]:
Lord Henley Lord Henley moved Amendment No. 88CGM:
Page 19, line 27, leave out subsection (2).
The noble Lord said: This is another probing amendment as I simply seek clarity from the Minister. It relates to Clause 54(2), which states:
"A person must not be selected unless the selecting body is satisfied that he is of good character".
I want first to ask a particular question on an issue that worries me, but no doubt there is a simple explanation. In Clause 106, to which we referred earlier when dealing with paragraph 5 of Schedule 12, two provisions require the affirmative resolution procedure. One was paragraph 5 of Schedule 12, which I understand, and the other was in Clause 54. I see no order-making powers in that clause and I am therefore confused about the reference to it in Clause 106. No doubt there is a simple explanation which the noble Baroness will be able to give me. If necessary, I shall keep talking to ensure that the answer gets to her in due course. It is on its way.
Secondly, can the noble Baroness define "good character"? No doubt when many years ago I did my Bar exams and knew a tiny bit of law we were all familiar with the expression. Presumably it appears in statute on many occasions, but it would be helpful if the Minister, on behalf of the Government, could lay out her definition of the expression. That would assist the Committee. I beg to move.
Baroness Ashton of Upholland: The reference to an affirmative resolution being required under Clause 54 is a mistake by parliamentary counsel, I am told. I hate to blame parliamentary counsel but it should not be there and it will not be there at future stages.
I have no idea whether the noble Lord is the first to spot the mistake, but I can reassure him that I had no briefing on the subject. The noble Lord can assume what he wishes from that, but I am grateful to him for drawing attention to the matter.
As regards the substance of the probing amendment, the provision exists to ensure that people cannot be selected who are considered inappropriate to hold judicial office because of criminal conviction or some other complaint against them from a professional body such as the Bar Council, the Law Society or the General Medical Council which has been upheld.
It will be for the commission to determine how it satisfies itself of that matter without unduly prying into matters which are not relevant to the candidate's fitness for office. It might be helpful as it is standard practice in the current system to ask candidates to disclose convictions; whether they have had financial judgments made against them; whether they have been involved in proceedings because of non-payment or delayed payment of tax; any relevant actions for professional negligence; any disciplinary or complaints processes; and anything in their private or professional life which might be a source of embarrassment to themselves or the Lord Chancellor if it became known in the event of appointment. They are the current requirements.
It is normal practice to check on such issues, for example, with the relevant professional body. Under the Bill, it will be for the commission and not the

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department to consider those issues and conduct the necessary checks. I submit that this is a standard and normal way of proceeding and we would want to have that on the face of the Bill. I hope that in the light of that explanation the noble Lord will feel comfortable in withdrawing his amendment. I am grateful to him for picking up the mistake.
Lord Carlisle of Bucklow: I must confess that the other day I was slightly surprised to learn from someone that it was suggested that he was unsuitable to be considered for judicial rank as he had been disqualified from driving because of three convictions for speeding. Although I fully accept the words "good character", I hope that the Minister will agree that one has to use them sensibly and recognise that there is a difference between the types of involvement in criminal law that people may have had.
Baroness Ashton of Upholland: Obviously, one cannot comment on an individual case about which one knows nothing. The commission will need to consider for itself how it determines that and to look at the facts in individual cases. There are occasions—and I am not suggesting that this is one—where individuals have a particular penalty but there is more substance underneath it. It would be for the commission to determine.
Lord Henley: In my 26 years in this House, this is the first time that I have discovered a mistake in a piece of legislation, whether on the Back Benches or as a Minister. I am very grateful for confirmation from the noble Baroness that I have achieved something. I hope that an appropriate amendment will come forward from the Government in due course on Report. More seriously, I want to look very carefully at what the Minister said about good character, particularly in the light of the intervention from my noble friend Lord Carlisle, for which I am most grateful. It might be that we would want to come back to this on Report. At this stage, the best thing for me to do is to withdraw the amendment and consider what the Minister had to say. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Henley Lord Henley moved Amendment No. 88CGN:
Page 19, line 29, leave out subsection (3).
The noble Lord said: In moving Amendment No. 88CGN, I shall speak also to Amendment No. 88CGAC and I suspect that I ought to throw in Amendment No. 88CGQ at the same time, although it has been grouped separately, which is probably my fault. I think that that would assist the Committee and move us on somewhat faster. In a rather sparsely attended Chamber, I am not sure to what extent we can have a valid discussion on this subject but we will see how we go. It may be that we shall have to come back to this matter later on.
These amendments relate to the question of selection on merit and the conflicting demand—some would say that it is conflicting, but I think that the
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Government would not accept that—that there must be appropriate encouragement of diversity in the range of persons available for selection. We have a further amendment, Amendment No. 88CGQ, where we say very firmly that merit must be taken into account and that under no circumstances must diversity overtake it.
Last week, a consultation document was issued by the noble and learned Lord the Lord Chancellor, which I have not yet read in detail. I have seen a great deal of comment on it in the press. The comment that I was most sympathetic towards was made in the Telegraph by Tom Utley. Broadly speaking, he said that we have a very fine judiciary, that there is no bias in the judiciary and that it is of the highest standard. He said that "it ain't broke"—as we have said on many other occasions—so there is no need to fix things as time itself will resolve this problem. I think he suggested that ultimately the best option in terms of responding to the Lord Chancellor's consultation document was to tick the box saying "Do nothing". I have often been a believer in the "do nothing" option, and on this occasion I think that Tom Utley is right.
I have glanced briefly at the consultation document and, as I said, we may want to return to this matter at a later stage when we have all had more than just a short weekend in which to consult on it. However, briefly, it sounds all very fine and dandy to say that we want to encourage diversity, just as we want to appoint solely on merit, but is it really the case that the two are incompatible?
The second point that one needs to address is: where does diversity end? We obviously know what the noble and learned Lord the Lord Chancellor and those who have written forewords to his book are getting at when they refer to "diversity". They wish to see a larger number of women among the judiciary—that is fair enough; they wish to see a larger number of people from the ethnic minorities to reflect the population of the country; and, rightly, they wish to see a greater number of disabled people coming in to the judiciary. But the idea behind diversity, as set out by the Government, is that as far as possible the judiciary should reflect the broad composition of the nation at large.
What I want to know most is: where on earth does this end? How can we ever have a judiciary that is totally diverse, as the Bill and the consultation paper seem to suggest? Do we want to have the appropriate number of stupid people sitting as members of the judiciary? Obviously we do not want to have the appropriate number of people who are not of good character. We have already dealt with that, and I dare say that that is quite a large section of the population. How many bad lawyers or, to take an extreme example, how many bigots do we want sitting on the judiciary? We want none of those because we want good lawyers appointed on merit.
But if we want our judiciary to reflect entirely the broad span of the population, which seems to be what diversity is all about, presumably that means that we must include the stupid people, those not of good

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character, the bad lawyers, the bigots and many more that I could think of. No doubt the noble Baroness can also think of many others who could be included.
I hope that that does not sound too flippant. I do not want to be flippant but I think that when, for very good reasons, the Government say that they want to increase and encourage diversity, first, they should define it slightly better and, secondly, they should think very hard about how diversity and merit can be reconciled to ensure that, in the end, no one is appointed other than on merit. I beg to move.
Lord Goodhart: We on these Benches take a somewhat different line from that of the noble Lord, Lord Henley. Of course, what he said was perfectly true in the sense that the judiciary neither can nor should reflect the membership of society as a whole. We do not, for example, expect judges to be appointed under the age of 25, although a substantial proportion of the population is under that age. We do not expect judges to be appointed from those who have no legal qualifications, although only a small proportion of the population as a whole has the necessary legal qualifications. But we do want to see a fair crack of the whip for all those who fall within the necessary restrictions that must be imposed on the population as a whole.
We do not see any necessary conflict between appointment on merit and the encouragement of diversity among those who apply for judicial appointment. It is clear that it is highly desirable that those who are appointed should be appointed on merit, and we entirely accept that that is the right principle. However, the evidence from the Commission for Judicial Appointments and others has shown that there are serious holes in the playing field, if I can put it in that way. For instance, the present system is plainly skewed in favour of successful advocates. Among other things, that is a skew against solicitors, few of whom have the same kind of experience of advocacy as most barristers have and therefore do not have the opportunity of presenting themselves to judges, who can then comment on them for the purposes of selection.
9.30 p.m.
It is also true that the system is skewed against perhaps not all but a significant proportion of women, in particular those who take a career break or a reduction in their level of practice because of family responsibilities. A good friend of mine, a woman who was a member of the Bar, who had two children, applied for silk and was refused. When she asked why she had been refused, she was told, "Your earnings have not been as good as they should have been in the past few years". She said, "I know that perfectly well. That is because I decided that I had to take a certain amount of time off to look after my young children". That should plainly have been disregarded, but it was riot.
It seems to us that there are people not selected for the pool who should be selected, and that one of the main roles of the Judicial Appointments Commission
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is to guard against the sort of unthinking, automatic refusal to take into account issues that, for instance, may explain the fact that earnings have been low. There are also issues concerning ethnic minorities. For instance, in the past members of ethnic minorities—fortunately, it is becoming considerable less true than it was—had difficulty getting into the kinds of chambers and practices that tended to be regarded as appropriate for appointment to the judiciary. That also needs to be corrected.
We therefore want to see a wider pool from which appointments can be made, because we believe that although the present system almost invariably appoints people who are highly qualified to do the job, it all too often overlooks some who might he equally or even better qualified to do the same job.
Baroness Ashton of Upholland: I, too, regret that the Chamber is sparsely attended when we are debating such an important issue. I am glad that the noble Lord, Lord Henley, has had sight of our document on diversity. There is also a video that I shall send to the noble Lord—I am sure that he will enjoy it immensely—which perhaps deals with some of the issues that he has raised.
I shall try to outline briefly the principles that underlie the issues and come to some conclusion. As noble Lords know, the guiding principle that underpins the selection of candidates for judicial appointment is strictly that of merit—in other words, the best candidate for the post. We agree with the noble Lord, Lord Henley, that that has been a major factor in achieving the current situation in which our judges are respected the world over. Therefore, our very firm view is that that fundamental principle should continue when the commission is established, and that it is of sufficient importance to be on the face of the Bill. There are different views as to how we define merit but our view is clear; that is, we should stick with the way in which this has been determined. That, I hope, will give some comfort to the noble Lord, Lord Henley.
The second amendment would prescribe that when selecting candidates for appointment of the Lord Justice of Appeal the Minister must not take into account the encouragement of diversity. It follows from what I have said so far, without in any way detracting from the vital importance of seeking to achieve a more diverse judiciary, that I have a great deal of sympathy with the intention behind the amendment tabled by the noble Lord, Lord Henley. However, I am not sure that it is the right way to achieve that.
First, we proposed an amendment to the Select Committee to ensure that it is for the commission to determine what constitutes merit rather than it being the subject of guidance. The judges agree with that approach. It would be for the commission to refine and improve our existing definitions of merit and, in my view, the members of the commission who are recruitment experts and not lawyers would be uniquely placed to do so.

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However, the Select Committee discussion prompted us to consider what more can be done to put the matter beyond doubt and to remove any suggestion that the merit criterion is in some way or other qualified by other considerations. In the light of that and in view of what the noble Lord, Lord Henley said, we shall table an amendment on Report that will seek a clearer and stronger formulation of the importance of the merit principle. I hope that that will give great comfort to the noble Lord, Lord Henley.
I am mindful of what the noble Lord, Lord Goodhart, said. Indeed, the document that we produced on judicial diversity is an important one. However, the critical factor in our determination to look at the issue of diversity is to ensure that we get the applications that we want. Perhaps I may say to the noble Lord, Lord Henley, that it is not a question of, "if it ain't broke, don't fix it". If one looks at the statistics—I am happy to provide them for noble Lords—of the numbers of women and men and members of ethnic minority communities within the judiciary and the legal profession, one begins to see that we have a huge pool of people. The issue really is that applications are not coming through from that wider group of people for the higher parts of the judiciary.
So, the thrust of our work on judicial diversity is to identify why it is that people are not putting themselves forward to become judges to take up higher office and to identify what we can do to sort out those issues if we can or indeed simply to encourage people. Noble Lords will probably know that I could talk about this for hours. One small example is that research which has been conducted in the past 20 to 30 years on why women do not come forward for appointments is that they are less confident in doing so and need to he reminded or even asked to do this. My noble and learned friend in Canada recently found that the Canadians have a system of simply keeping in touch by e-mail with those people who, by length of service, are eligible to apply. That made a difference in those who applied.
That is a small example but it is at the core of what we are trying to do; that is, to identify ways in which we can ensure that we receive applications and that we deal with the issues in an appropriate manner and, as the noble Lord, Lord Goodhart, said, in the case of women who take career breaks, that that is recognised in the appropriate way. However, the appointment must be on merit. The critical point about why diversity is relevant now is that we are losing out on talent. We have hugely talented people who are simply not coming forward. We want to see them do so.
I think that there is nothing in what I have said with which the noble Lord, Lord Henley, would disagree. I hope that there is nothing with which the noble Lord, Lord Goodhart, would disagree. On the promise of what I shall bring back on Report and with what I have
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said about the purpose of our work on diversity, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Henley: Of course I shall withdraw my amendment at this stage of the evening and I look forward very much to seeing the amendments to be tabled by the noble Baroness on Report. As I said, this is a fairly thin Chamber at this stage and this is a matter that possibly warrants greater discussion in something that might be termed "prime time".
Having said that, I very much look forward to seeing the video that the noble Baroness promised me. I promise that when I receive it I shall take it home, watch it and inwardly digest and learn all possible lessons, just as I hope in due course properly to examine the noble and learned Lord's consultation paper. As that was issued only on Thursday, I think that there are many Members of the Committee who will require slightly longer to examine it before we have a proper discussion on that subject. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 54 agreed to.
Clause 55 [Guidance about procedures]:
Lord Henley Lord Henley moved Amendment No. 88CGP:
Page 19, line 34, leave out from "Part" to end of line 1 on page 20.
The noble Lord said: My Lords, I will try to go quickly over some of my remaining probing amendments. I appreciate that the noble and learned Lord, Lord Lloyd of Berwick, will probably wish to get to his amendment on puisne judges before we break up soon after ten o'clock. Am I right in thinking we are due to adjourn at about ten?
Lord Evans of Temple Guiting: Yes.
Lord Henley: It is 20 minutes to ten now. Amendment No. 88CGP concerns the guidance that will be issued by the noble and learned Lord the Lord Chancellor about the selection procedure. We heard earlier from the Minister that the commission itself will decide on what "merit" means. If that is the case, why does it also need guidance from the noble and learned Lord on how to assess such persons for selection and other such matters, and on how to identify persons willing to be considered for selection? I might just have a suspicious mind, but I will be grateful if the Minister can assist me on that.
Baroness Ashton of Upholland: My Lords, I will be equally brief. The Government think it is important to issue guidance on assessing candidates, so they look at the full range of assessment methods, respond to developing good practice in other areas or to concerns about the effectiveness of existing methods, and use the various possibilities in ways that are appropriate, given the wide range of judicial appointments.
The Government do not intend to dictate what methods are used for a particular competition, but expect the commission to consider different ways of

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testing people for selection. Even so, some safeguards are obviously required to ensure the commission is not subject to undue or covert pressure, which is why guidelines require the concurrence of the Lord Chief Justice and must be laid before both Houses. I hope that will do the trick of allaying the noble Lord's fears.
Lord Henley: My Lords, I am grateful for what the noble Baroness has said. I will look at that carefully, but for the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 88CGQ and 88CGR not moved.]
Clause 55 agreed to.
Clause 56 [Guidance: supplementary]:
[Amendments Nos. 88CGS and 88CGT not moved.]
Clause 56 agreed to.
Clause 57 [Selection of Lord Chief Justice and Heads of Division]:
Lord Henley Lord Henley moved Amendment No. 88CGU:
Page 21, line 9, leave out ", unless the Lord Chief Justice agrees otherwise,"
The noble Lord said: My Lords, this is again a brief probing amendment. It arises from the fact that, under subsection (4) of Clause 57,
"If there is a vacancy in one of the other offices mentioned in subsection (1)"—
that is, Master of the Rolls, President of the Queen's Bench Division, President of the Family Division, or Chancellor of the High Court—
"unless the Lord Chief Justice agrees otherwise,"
the Minister
"must make a recommendation to fill the vacancy".
I ask this simple question out of ignorance: would the clause allow the Lord Chief Justice and the Lord Chancellor, if they so wished, to abolish unilaterally the post of, say, Master of the Rolls without any further ado, and without any consideration by any other body—just as, in June last year, the Prime Minister attempted, without consultation with this House or anyone else, to abolish the position of Lord Chancellor? I beg to move.
9.45 p.m.
Baroness Ashton of Upholland: My understanding is that the amendment is concerned with recognising that there could be occasions when it is preferable to hold a post vacant for a limited time because worse problems might be created through the almost inevitable consequential sequence.
If one of the heads of division were to die suddenly in office, it would not have been possible to plan for and recruit a successor. The small number of the best candidates to succeed the post holder might be engaged in cases that it would be highly undesirable to interrupt. In those circumstances, we would want to be able to leave the post vacant for a term, so that we could choose the right person. Equally hypothetically, if it were proposed to restructure the divisions of the High Court at some point, there might be
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circumstances in which leaving one or more of the existing head of division posts unfilled would be relevant. We have no plans for either situation, nor do we envisage any other similar circumstances.
The safeguard is that such a move could be taken by the Minister only with the agreement of the Lord Chief Justice, whose own post is an exception to the provisions. We think that that is the right kind of flexibility. I note what the noble Lord, Lord Henley, said about whether it meant that the two could abolish a post. I do not believe that it does. If I need to say anything further, I shall write to the noble Lord with clarification.
Lord Henley: I am not sure that I follow that. There seems to be no limit on the time before a recommendation must be made to fill the vacancy. It looks to me as if one of the posts could just quietly disappear without anyone, other than the Lord Chancellor and the Lord Chief Justice, saying anything about it.
I am sure that the noble Baroness and the Government speak with total good faith when they say that that would not happen. Nevertheless, I will, as always, read what the noble Baroness said and consider whether it is necessary to return to the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 57 agreed to.
Clauses 58 and 59 agreed to.
Clause 60 [Report]:
Lord Henley Lord Henley had given notice of his intention to move Amendment No. 88CGV:
Page 22, line 32, leave out paragraph (b).
The noble Lord said: I wanted to speak at some length on this group of amendments, but it would be unfair to do so at this stage. I do not expect a response from the Government now, and I will come back to the amendments at a later stage.
The amendments are concerned with the various reports that must be submitted to the Minister and with the material that the Minister might demand goes into such reports. It may be my suspicious nature again, but we are concerned particularly with whether the Minister might ask or insist on reference to the former political affiliations of some of those who are being reported about. However, I would prefer to speak to the amendments at greater length, and it would be better if, before we rose, we allowed the noble and learned Lord, Lord Lloyd of Berwick, to move his amendment on puisne judges.
[Amendment No. 88CGV not moved.]
[Amendments Nos. 88CGW and 88CGX not moved.]
Clause 60 agreed to.
Clause 61 [The Minister's options]:
[Amendment No. 88CGY not moved.]
Clause 61 agreed to.
Clause 62 agreed to.
Clause 63 [Selection following rejection or requirement to reconsider]:
[Amendments Nos. 88CGZ and 88CGAA not moved.]
Clause 63 agreed to.
Clauses 64 to 66 agreed to.
Clause 67 [Report]:
[Amendment No. 88CGAB not moved.]
Clause 67 agreed to.
Clause 68 agreed to.
Clause 69 [Exercise of powers to reject or require reconsideration]:
[Amendment No. 88CGAC not moved.]
Clause 69 agreed to.
Clause 70 [Selection following rejection or requirement to reconsider]:
[Amendment No. 88CGAD not moved.]
Clause 70 agreed to.
Lord Lloyd of Berwick Lord Lloyd of Berwick moved Amendment No. 88CH:
After Clause 70, insert the following new clause—

SELECTION OF PUISNE JUDGES
(1) This section applies to a recommendation for appointment as a puisne judge.
(2) A recommendation may be made only under section (The Minister's options).
(3) If there is a vacancy among the puisne judges the Minister must, unless the Lord Chief Justice agrees otherwise, make a recommendation to fill the vacancy.
(4) For the purposes of subsection (3) a vacancy arises only on a puisne judge vacating his office after the commencement of this section.
(5) A request for the selection of a person to be recommended must be made by the Minister to the Commission.
(6) Before making a request the Minister must consult the Lord Chief Justice.
(7) Sections (Selection process) to (Selection following rejection or requirement to reconsider) apply where the Minister makes a request under this section."
The noble and learned Lord said: I am grateful that we have reached my amendment tonight. Its purpose is to bring the process of selecting High Court judges into line with the process for selecting judges for the Court of Appeal. The process for the Court of Appeal is set out in Clause 66, which states that the selection panel will consist of four members: the Lord Chief Justice, the head of the relevant division, the chairman of the commission or his nominee, and one other lay member of the commission. So there will be two judicial and two lay members.
The purpose of my amendment is simply to make a similar panel available for the selection of High Court judges, except that I would add to those four a barrister and a solicitor, who would almost certainly be the professional members of the Judicial Appointments Commission. One would then have two judges and four members of the Judicial
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Appointments Commission—two laymen and two lawyers. I suggest that that would form a sensible panel for the selection of High Court judges.
As the Bill stands, the selection panel could consist of nothing but laymen. It would appear to be entirely at the discretion of the chairman of the Judicial Appointments Commission. There has been a suggestion that the panel should contain at least one High Court judge, but that suggestion has not yet found its way into the Bill. The trouble with having a panel consisting almost entirely of laymen—certainly a majority—would be that they would have little idea of what the job of a High Court judge really was and, perhaps, still less idea of who the best available candidates were.
The High Court judge is the key appointment in the entire judicial system. In many ways, it is more important than the appointment of judges in the Court of Appeal, although the High Court judge is not so senior. That is because he is in the front line of the defence of the liberty of the subject against the Government. First, any question of judicial review comes before a High Court judge in the first instance. The circuit judges and the inferior judiciary have no jurisdiction in relation to judicial review. Secondly, a High Court judge, unlike a circuit judge, is irremovable. So it is crucial to get the best people to be our High Court judges.
When I looked at how High Court judges would be appointed, or selected for appointment, I turned to Schedule 14 on page 212 of the Bill, where I found, half way down the page, that the puisne judges of the High Court were placed between non-judicial members of the Restrictive Practices Court and Masters of the Queen's Bench Division. When I saw High Court judges put in that position, I thought that there simply must have been a mistake.
There are currently about 35 members of the Court of Appeal and 100 High Court judges. The turnover is perhaps six or eight in the course of the year. To place the selection of High Court judges along with the selection of judges at the Court of Appeal would impose no great burden on the Lord Chief Justice, the head of the division and the two members of the Judicial Appointments Commission. In comparison, there are 632 circuit judges, 414 district judges, 731 deputy judges. The Judicial Appointments Commission will clearly have enough to do without also selecting appointments to the High Court Bench.
What are the qualities required for selection to the High Court Bench? Judicial qualities apart—which go without saying—the main qualification must be that they are to be the best legal brains available for the job. That is especially true when one thinks of the specialist High Court judges, such as those who sit in the commercial court, the Patents Appeal Tribunal and so on.
It is impossible to believe that a panel that might consist largely of lay people could make the best selection of judges for those offices. So important did I regard the selection of High Court judges that I took the opportunity, with the consent of the Lord Chief

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Justice, to write to all current High Court judges to find out what their views were. I had 25 replies, which was perhaps slightly disappointing. Of those, 16 agreed with my view. Seven would have agreed with my view but they felt that they were somehow bound by what had been agreed in the concordat. Only two were against my view.
So a great majority of the current High Court judges believe that High Court judges should be chosen in the same way as judges of the Court of Appeal. The role of the High Court judge is crucial. I cannot see any good reason for not having the same or a similar panel for selecting High Court judges as judges of the Court of Appeal. In selecting High Court judges we cannot afford to make a mistake.
This is a real attempt to make an improvement to the Bill. I hope that the Minister will see it in that way and that she will not say, "It is all in the concordat and therefore it's beyond anything we can do". It is not. The concordat is not the law of the Medes and Persians. If the Lord Chief Justice and the Lord Chancellor are agreeable to this there is no reason why we should not make a small improvement in the concordat, to bring the High Court judges into line with the judges of the Court of Appeal. I beg to move.
10 p.m.
Lord Carlisle of Bucklow: I realise that the time is late. If I had any doubt, the brief appearance of a scowling Chief Whip on the government side would have made that point to me. But this is an enormously important amendment. I should make it clear that I support the appointment of an appointments commission. If I might say so to the Minister, the Government have probably got its membership about right in that difficult area we discussed earlier. I was quoted in the Select Committee report as one of those members who would have felt that at the lower end of the judiciary there could have been an appointing rather than a recommending committee but nevertheless were persuaded that there were other reasons why we should go along with the recommending committee.
I totally disagree with putting the High Court judges on the same level as the recorders, the deputy recorders, the district judges, the circuit judges and on a different level to those of the Court of Appeal and the High Court—the Judicial Committee or the Supreme Court, whichever it may be. All I shall say at this stage, realising the time, is that I agree with every word that my noble and learned friend Lord Lloyd has said.
I should have thought that to any practising member of the Bar, in general practice, that was the big divide between being a High Court Judge or not being a High Court judge. A High Court judge has the power to sit in any part of the country. As the noble and learned Lord, Lord Lloyd, has said, he can be removed only by a petition taken through both Houses of Parliament. He is a unique representative of the judiciary in this country, far more so than the individual recorder, sitting in his own town or area.
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There are 104 High Court judges and 600-odd recorders. I feel that the noble and learned Lord, Lord Lloyd, is right that the appointment of High Court judges should be dealt with in the same way as judges in the Court of Appeal rather than by the Judicial Appointments Commission provided at an earlier stage. I realise that there has to be a break somewhere, but I think that the selection of a High Court judge is of vital importance. It is vital that on the body that appoints him should be those who, from their own professional knowledge, feel capable of making the decision on who would be the right High Court judge.
I shall not say any more in view of the hour, but I hope that the Minister will say that she will look at this again. It is a non-party political point, frankly—there are no party politics in which way a High Court judge is appointed. I hope that she will say that she will look at this again. If not, I hope that my noble and learned friend Lord Lloyd will raise the matter at another time so that we can consider it in a more fully attended Chamber at an earlier hour on another day.
Lord Goodhart: I recognise that we are now past the magic hour of 10 o'clock, but as the noble Lord, Lord Carlisle of Bucklow, has said, this is an extremely important amendment. Since I profoundly disagree with it, I cannot let it pass without explaining, as briefly as I can, why I do so.
The amendment is one that, once again, unravels a central provision of the concordat—the appointment of High Court judges by the commission. Instead, it proposes appointment by a special panel consisting of two senior judges, the chairman and another lay member of the commission, and two representatives of professional organisations. This panel is more weighted against the lay members than either the commission as a whole or the special panels which are set up for appointing heads of Division or judges of the Court of Appeal. Taking into account the existence of a casting vote, the lay members in the case of the panel suggested by the noble and learned Lord, Lord Lloyd, have two votes out of seven as opposed to two votes out of five on the other panels.
Furthermore, the professionals who are appointed to the selection panel are described here as direct representatives of their professional organisations and will not necessarily be the professional members of the Judicial Appointments Commission who will be selected by an appointments panel set up under Schedule 12.
The commission has the power, of course, to delegate its function to committees, including selection committees, but selection committees cannot be wholly made up of lay people because the committee is required by paragraph 21(5) of Schedule 12 to include at least one judicial member and one lay member.
I would have had some sympathy with the amendment of the noble and learned Lord, Lord Lloyd, if it had said that appointments to the High Court Bench must be made by the commission as a whole and cannot be delegated to a sub-committee of the commission. I do not think that it is right by any means as it stands.

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The noble and learned Lord referred to a poll he had taken by letter from the judges of the High Court. He took the view that 16 out of those judges amounted to a substantial majority of the whole of the High Court bench. That seems to me to be completely devoid of logic, because it is at least possible that those who did not reply to him did not reply either because they thought it was improper for them to state their views on the subject—as I suspect many of them did—or because they thought it was not worth bothering, if they did not agree with him. All that can be deduced from it is that at least 16 of the judges do disagree with the concordat.
I explained in the debate on the amendments of the noble Lord, Lord Borrie, why the concordat should not be unravelled. Those amendments would have operated in the other way: they would have strengthened the powers of the lay members. The amendments of the noble and learned Lord, Lord Lloyd, weaken the powers of the lay members, but I believe that the same argument applies. If one side starts to reopen the concordat, then the other side must be equally entitled to do so. That will lead ultimately to the destruction of the concordat, which I believe is of central importance to these reforms.
I object to these amendments on principle as well as because they are inconsistent with the concordat. I can understand—indeed I quite accept—why special panels are set up for the appointment of judges of the Court of Appeal and the Heads of Division, though I would not have been unhappy to leave those decisions too to the commission. Those are of course almost entirely promotions from the High Court. Indeed, I believe that the last appointment to the Court of Appeal or to the post of Head of Division of someone who had not previously sat as a High Court judge was the appointment of the noble and learned Lord, Lord Simon of Glaisdale, to be President of what was the Probate, Divorce and Admiralty Division many years ago.
The work of High Court judges is highly visible and promotion will depend very largely on the quality of their judicial work, and the other senior judges are undoubtedly in the best position to decide that. However, the great majority of High Court judges are appointed from practice; only very few of them are at present promoted from full-time appointments to lower courts. Unlike those who have sat for some time as High Court judges, it is not clear whether their personalities, if they are successful advocates, are necessarily suited to a position on a High Court bench.
I believe, therefore, that appointments to the High Court bench call for the full expertise of the commission, both judicial and lay. If we are to have an effective commission, we need to attract people of standing and expertise from the judiciary and from professional and lay people. In order to attract people of that standing, the commission needs to be able to appoint to the High Court bench as well as to the circuit bench and the lower judiciary. To remove responsibility for the High Court appointments from the commission would be to unbalance the carefully
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crafted deal between the Government and the Lord Chief Justice and would preserve too many of the unsatisfactory elements in the present system. I believe that the amendment is misguided.
Baroness Ashton of Upholland: I am very well aware of the passion with which the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Carlisle, have spoken. I am very grateful to the noble Lord, Lord Goodhart, for rehearsing some of the points I would have made, which makes me able to he more succinct at this hour.
The schedule order to which the noble and learned Lord referred follows the date and section arrangement of the legislation under which the appointment is made. There is no reflection on status within it, and I think it important to say that.
It is also important to say that the way in which we have determined the committees and sub-committees of the Judicial Appointments Commission is that they must include a judicial member and a lay member and they must not prescribe the procedure—leaving that for the appointments commission to determine. But we have provided that they must consult the Lord Chief Justice and another judge at the level of the post. As in the case of judicial members, we consider it inconceivable that they will not play a major role, but we can continue to discuss that.
Our starting point in drawing up the Bill and in the discussions with the senior judiciary which preceded that and which resulted in the concordat—which is an important element in the discussion—was that all candidates for judicial appointment should be selected by the new Judicial Appointments Commission. The detail of the procedure would be a matter for the commission to determine. However, on reflection, we considered that the selection of heads of division and Lords Justices raised special issues. They were referred to in the consultation paper which we issued in 2003 on a new way of appointing judges.
Although it is possible in theory that someone could be appointed from practice as a lawyer direct to the Court of Appeal, in practice all modern appointments have been by promotion from the High Court Bench. Similarly, in modern times the Lord Chief Justice and other heads of division have been appointed from the House of Lords, the Court of Appeal or High Court Bench and not as a first judicial post. Clearly, the promotion of existing senior judges raises rather different issues from the appointments which the appointments commission will usually make. There are also questions about the overall balance of skills and aptitudes among the leadership of the judiciary, which the JAC would not be well placed to address.
Our conclusion was that, while the appointments should remain within the formal remit of the Judicial Appointments Commission, as they do, special arrangements should be made to ensure that in considering the promotions decisions were taken by a special panel, which would include senior judges with direct first-hand experience of the judicial and other qualities of the candidates. That is what the Bill seeks to do.

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As the noble and learned Lord, Lord Lloyd, has said. High Court judges are extremely senior and important judges. As the noble Lord, Lord Carlisle, said, there is a big divide between them and the lower echelons—if I may describe them as such. I can see why, if it were a matter of status, they might wish to be appointed in the same way as Lords Justices and not in the same way as circuit judges. However, that is not what the argument is about.
It is true that some High Court judges are former circuit judges who have been promoted. Most, however, as the noble Lord, Lord Goodhart, said, are not. They are appointed from practice as lawyers, and their High Court posts are their very first full-time judicial post. The Lord Chief Justice and other very senior judges will not generally have any experience of their judicial performance. There is no reason, in our view, why the Judicial Appointments Commission should not be able to assess the qualities of those applying for appointment in the same way as it will assess the qualities of those applying for other first appointments. The crucial factor is that it is a first appointment, not seniority.
I could go on to talk about the specifics of the individual amendment, but I shall not, because I know that the noble and learned Lord is probing us to discuss the technicalities of the provision. I know that he has referred to correspondence with High Court judges, but I am sure that he accepts that the official position of the senior judiciary is that expressed by the Lord Chief Justice and his colleagues on the Judges Council in agreeing to the concordat and supporting the arrangements of the Bill. Those arrangements, however strongly the noble and learned Lord feels, would run counter to the views of the senior judges.
The arguments that apply to the promotion of senior judges do not apply here. Therefore, we believe that there can be no reason to make special arrangements, because the nature of the special arrangements that we made for the more senior judges are based on a different criterion—in other words, that it is a promotion. Under no circumstances should we be seen to lack confidence in the ability of the Judicial Appointments Commission to make fair and independent selection to the senior post. I agree with the noble and learned Lord that what we are trying to do is to recruit and employ the best. I believe that the commission will do that very well.
I hope, on the basis of my explanation of our policy, the noble and learned Lord will feel able to withdraw his amendment.
Lord Mackay of Clashfern: I may have misunderstood the Minister, but I believe that she said that senior judges would not have experience of the judicial qualities of the candidates for appointment as High Court judges, because many would be appointed from practice. Would it not still be a practice to have prospective High Court judges sitting as recorders for some time before appointment, so that an assessment could be made of their work actually in the office to which ultimately they would be appointed—the recorder being as near to the actual office as it is
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possible to be? There is something to be said for the view that the best way in which to see how people would be in a job is to try them in it for a while.
Baroness Ashton of Upholland: I entirely agree with the sentiment behind that. As the noble and learned Lord said, they are the ones who are being considered and are prospective in this context. We are debating the principle of who might be prospective, and would want to do that within the Judicial Appointments Commission.
There is a difference between that appointment and someone with a track record of experience who is being promoted. One is then looking for a different set of qualities and attributes, as the record of that individual as a judge is already known. The question is what additional qualities are required. In that context, we need to look at a different set of arrangements.
It is not that the noble and learned Lord is inaccurate, but simply that when looking at the first appointment, however one decides to test the ability and merit of the individual, he is not as well known to the senior judiciary, and needs to be within the remit of the Judicial Appointments Commission.
Lord Lloyd of Berwick: I am grateful to the Minister for taking such trouble to answer, but I need hardly say that I am not satisfied with her response.
I can see no ground for distinguishing between appointments to the High Court bench and appointments to the Court of Appeal. As the noble and learned Lord, Lord Mackay, said, most High Court appointments are made in perfect knowledge of how the man has behaved either as a recorder or a circuit judge. There will be knowledge of him appearing in the High Court, so that ground of distinction seems to me to fade away.
Having listened with care to what the Minister said, I am not persuaded. I propose to bring the matter back on Report. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 88CJ to 88CO not moved.]
Clause 71 agreed to.
Schedule 14 [The Judicial Appointments Commission: Relevant Offices and Enactments]:
[Amendment No. 88CP not moved.]
Lord Evans of Temple Guiting: I beg to move that the House do now resume.
Moved accordingly, and, on Question. Motion agreed to.
House resumed.

Christmas Day (Trading) Bill
Bill returned from the Commons with the amendments agreed to.
House adjourned at seventeen minutes past ten o'clock.