Lords Sitting of 8 February 2005

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

Higher Education: International Students
Lord Quirk Lord Quirk asked Her Majesty's Government:
What plans they have for a further programme when the Prime Minister's initiative of 1999 to attract more international students comes to an end in April.
Lord Triesman: My Lords, in the Department for Education and Skills international strategy, we recognised the importance of that initiative. We are currently considering a range of options for the recruitment of international students when the Prime Minister's initiative comes to an end at the end of April, in consultation with our funding partners and other stakeholders.
Lord Quirk: My Lords, I am grateful to the Minister for that encouraging response. The Prime Minister's initiative of 1999 has been of enormous benefit, primarily, of course, to UK universities, but also to other institutions, not least the private sector English language schools. However, does the Minister accept that the need now is greater than ever with such factors as the increased competition from the United States, as American universities recover from the setback to student numbers following 9/11, and from many other countries, including several within the European continent? Indeed, have not the Government introduced unwelcome help for the competition by imposing heavy visa charges on students wanting to enter for study in this country?
Lord Triesman: My Lords, I wholly agree with the noble Lord, Lord Quirk, that it is essential that we continue in our efforts. It is true that we are doing so in an increasingly competitive environment. Some European countries are now teaching in English to encourage students to come and there is competition around the world, although some countries that have been doing very well in the past—I think of the United States and Australia—have, for different reasons, been doing rather worse recently. America has imposed a very strict security regime around its visas. That has discouraged a number of students.
We compete on quality. We have a very high quality higher education system. That is the principal fact that we must ensure that people around the world know, and that is one reason why our figures are still rising.
Lord Taylor of Blackburn: My Lords, can my noble friend not answer the last part of the question of the noble Lord, Lord Quirk, by giving us a progress report on visa charges?
Lord Triesman: My Lords, I shall certainly do so. Yesterday, the Home Office announced that the visa
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charge would rise to £250. I have looked carefully at the background detail in the regulatory impact document to ensure that I understand the basis of the charging. The Home Office has said that, even on that basis, it will not recover the full cost, a point made in the regulatory impact assessment. The full cost is £335. On that basis, students will, in effect, receive a supplement of £85 towards that cost paid by the taxpayer. I say to noble Lords who are naturally concerned about the issue that it is well worth reading the regulatory impact document, because all the detail of the total price is there.
Baroness Sharp of Guildford: My Lords, why is it, therefore, that the Foreign and Commonwealth Office needs to charge only £36 for a visa applied for from overseas, whereas the Home Office is now charging—as the Minister says, at a subsidised price—£250?
Lord Triesman: My Lords, that is the price for a visa to continue to stay. I should probably try the patience of the House if I went through all the items that go towards that, but I make the point that the whole of the administration—the cross-checking, the availability of an appeals system and many other factors—is contained in the regulatory impact document. The case is made out in detail, which gives everyone the chance to explore it and judge it for himself.
Lord Baker of Dorking: My Lords, does the Minister accept that the Government have to do nothing to encourage international students to go to our universities, as, from now on, every university will recruit more international students at the expense of British students? That is the inevitable consequence of the Government's policy. Perhaps he would listen to the words of the chancellor of Oxford University, the noble Lord, Lord Patten, who said that universities should be free to charge whatever they want, provided scholarship schemes are in place.
Lord Triesman: My Lords, an unrestrained fee regime has been advocated in this House in major debates recently. All noble Lords know that we will not go that way; I said that only a short while ago.
It does not help us at all to paint a picture of despair. In making the initiative work, the Government started in 1997 with a base year of non-European international students of 109,940. We now have 174,575. We had a target increase of 50,000; in fact, we have increased by 64,635. That can hardly be evidence of anything going dramatically wrong.
Baroness Warwick of Undercliffe: My Lords, in declaring an interest as chief executive of Universities UK, I reiterate the concern expressed about the impact of the charges announced yesterday on recruitment in a highly competitive market. Will the Government undertake to carry out a review of the effect of those charges on the recruitment of international students?
Lord Triesman: My Lords, there is a constant review of the way in which fees in general and costs are changing. The impact of this change on the costs of

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students in an average year in higher education—averages can be deceiving but it is the only way to address the issue—will be 1.5 per cent. Although I am not complacent about sustaining competition in our universities, in comparison with others around the world, it is unlikely to override people's desire to come here for the high quality of the degrees and postgraduate work that they undertake.
Baroness Carnegy of Lour: My Lords, does the noble Lord appreciate that in 40 per cent of universities the number of overseas students has dropped, not increased? Is that good government?
Lord Triesman: My Lords, universities offer a very wide range of programmes. As the noble Baroness knows, what they offer is entirely a matter for them. In some cases they have been very successful; in other cases, less successful. It is all in the face of widespread international competition as everybody tries to get into the international student market. As a country and a system of higher education, taking the UK as a whole—there is no difference across the home nations in this respect—we have done extraordinarily well and greatly exceeded targets that many thought would be impossible to achieve.
Baroness O'Neill of Bengarve: My Lords, has the regulatory impact statement taken account of the extent to which those costs fall on UK charities which support overseas students in one way and another, particularly at the end of their courses, when they need extension visas?
Lord Triesman: My Lords, the modelling is there—and in detail—in the regulatory impact report. I urge noble Lords to read the report, and, if those are still matters of anxiety, to return to them.

Kiribati: Deputy High Commission
2.45 p.m.
Baroness Gardner of Parkes Baroness Gardner of Parkes asked Her Majesty's Government:
What proposals they have to replace the mission funds in Kiribati, South Pacific, following the proposed closure of the high commission there.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, the closure of the deputy high commission in Kiribati reflects the need better to align our resources with our priorities. The high commission in Fiji, which will cover Kiribati, will be able to bid for funds for Kiribati from the same Foreign and Commonwealth Office programmes as last year, including Chevening scholarships and sponsored visits. DfID has allocated £20,000 to Kiribati in 2005–06, and EU programmes for 2003–09 of 287.6 million for the region will also continue to be available.
Baroness Gardner of Parkes: My Lords, I thank the Minister for that reply. I am sure that she appreciates
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the diversity of the area, where the three closest islands—Tonga, which is Polynesian; Vanuatu, which is Melanesian; and Kiribati, which is Micronesian—all have quite different cultures and all will now come under Suva, which is in Fiji.
Is the noble Baroness aware that people are very concerned about the continuing small amounts of money? They are not talking about large amounts. Will the bidding process ensure that even small amounts are available? Does the noble Baroness appreciate how much the people of Kiribati have valued the small sums that have been available to them to help projects for the disabled, computer teaching or any small project particular to their society's needs? Can the noble Baroness reassure them that there is no cause to be concerned that they will be overlooked, or is there any way of earmarking something particularly for Kiribati?
Baroness Symons of Vernham Dean: Yes, my Lords, I believe that there is and that we can give them reassurance. I assure the noble Baroness that the decision on those closures was not taken lightly; it has been thought through. Kiribati will continue to receive the 11 million attributed to it from the ninth European Development Fund, of which the United Kingdom supplies nearly 13 per cent.
Last year saw community projects on protection of children's rights, for example, books and teaching aids and a radio equipment upgrade. There was also a BBC project. There is no reason why similar projects should not happen again next year. It is not about trying to cut those projects; it is about the savings that accrue from shutting the deputy high commission, not the money in the way that the noble Baroness suggested.
Baroness Hooper: My Lords, does the Minister not agree that because of the distances involved—there are some 3,000 miles between Christmas Island, to the north of the island group of Kiribati, and Tarawa, the capital—it will be almost impossible to cover the whole area adequately without a locally placed individual? Does she not also agree that the current deputy high commissioner and his wife, who are based in Tarawa, have been doing a first-class job and will be sorely missed?
Baroness Symons of Vernham Dean: My Lords, I am sure that the individuals will be sorely missed. As I said to the noble Baroness, Lady Gadrner of Parkes, a moment ago, the decision has been taken after a great deal of thought. Our high commissioner in Suva, in Fiji, is already accredited to Kiribati. When the deputy high commissioner departs, we plan to reinforce the staff at Suva to ensure that we maintain the United Kingdom's links with the Government of Kiribati. The high commissioner and his staff will make regular visits to Tarawa and will continue engaging at the same level with the government of Kiribati.
Lord Wright of Richmond: My Lords, will the noble Baroness confirm that the deputy high commission in Kiribati, like most missions, as I understand it, has had available a heads of mission fund, for which it is not

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necessary to bid to the Foreign Office, as it is money available for small projects at the discretion of the high commissioner or deputy high commissioner? Will the high commission in Suva still be able to draw on similar funds on behalf of Kiribati?
Baroness Symons of Vernham Dean: My Lords, that is a rather different question. It involves DfID funding for small projects. A number of our embassies are finding that that money has been realigned. That is going on throughout the Foreign Office, and that question is not strictly related to what is going on in Kiribati. It is an issue for our high commissioners and our embassies in general.
Lord Wallace of Saltaire: My Lords, we all recognise that it is difficult for the British Government to continue to fund missions in all 190 other member states of the United Nations. Have the Government taken a position on proposals for a European Union action service that could maintain collective missions in some of the smaller countries in which there is, in combination, sufficient European interest, even if there is not sufficient individual interest to justify a resident mission from any one EU member state?
Baroness Symons of Vernham Dean: My Lords, I know that the noble Lord is fond of reminding your Lordships that that is an important issue. It is important in several areas, but I do not believe that it is under active consideration at the moment with regard to the countries in the south Pacific.
I regret to say that I mentioned the BBC a moment ago in relation to a project in Kiribati. I am afraid that I misread part of my brief: there is no specific BBC project there. I misread something about the books fund.
Lord Blaker: My Lords, I declare an interest, in that I was responsible for organising the independence of Kiribati in 1979. Trying to cover Kiribati and the other islands from Fiji is no substitute for having a British deputy high commissioner in place. My noble friend mentioned the immense distances between the different parts of the islands. That is true of some of the other islands as well.
Can the noble Baroness reassure me about the economy of Kiribati? Has the proposal pushed in 1979 to license fishing fleets from other countries in the Pacific been successful?
Baroness Symons of Vernham Dean: My Lords, I am afraid that I cannot answer the specific point on the fishing fleet. However, I shall write to the noble Lord about it.
We have been talking about Kiribati—a collection of islands-as though that collection of islands were closely packed. The fact is that it is not. I understand the points that noble Lords make about the distances, but I say to the noble Lord and to the noble Baronesses, Lady Hooper and Lady Gardner of Parkes, that the distances that will be covered from Fiji are not hugely different from the current position in terms of the planes that might be used to cover those journeys.
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It is a difficult question, but ultimately we must decide the strategic priorities for expenditure in the Foreign Office. There are hard questions to answer, and we are facing up to them.

Directors' Remuneration
2.53 p.m.
Lord Smith of Clifton Lord Smith of Clifton asked Her Majesty's Government:
What is their response to the Deloitte report on the impact of the Directors' Remuneration Report Regulations of November 2004.
Lord Davies of Oldham: My Lords, the Deloitte report demonstrates the effectiveness of the Government's action in subjecting directors' remuneration to closer scrutiny by shareholders. As a result. the Government do not believe that further legislation in the area is necessary at this stage. However, there remains no room for complacency. The challenge for remuneration committees is to develop packages that effectively link remuneration to the creation of long-term value for shareholders.
Lord Smith of Clifton: My Lords, I thank the Minister for that Answer. I am sure that he will recognise—if I can borrow his favourite verb—that it is a rather shallow report. In the attempt to sample investors' opinion, only 24 institutional shareholders—the major ones—were sampled. No attention was paid to individual shareholders or smaller investors, perhaps because the DTI's specification did not include it. Why did it not include it? It is perhaps because it was meant to be a cheap piece of work.
The report reveals that there are poor criteria bearing on the relationship between success and remuneration. Many studies have shown that there is no correlation between performance and reward—indeed, in some cases, there is a negative one. Will the Government take up that vexed question in the near future?
Lord Davies of Oldham: My Lords, I note that the noble Lord is critical of the report, but the report has given rise to regulations that are working effectively. All British companies, whatever their size, are complying with the regulations effectively, meaning that there is greater transparency and that we have a better system for ensuring that companies are open about their annual reports than any other country in the advanced world. That is why the Government recognise that some minor improvements to the regulations might be effected. That is why we are open to consultation on that. But the main thrust of the report has been translated into regulations that are proving effective.
Lord Barnett: My Lords, does my noble friend agree that what the institutional shareholders said in response to Deloitte indicated that, although they did

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not want any more regulations, they wanted additions and extensions to existing regulations, to let shareholders, including small shareholders, know just how obscene are some of the salaries paid to some directors of companies that are actually making losses?
Lord Davies of Oldham: My Lords, the regulations have meant that the 350 major FTSE companies have given their reports in all openness to shareholders. It is for shareholders to make their judgment on the information provided.
I recognise what my noble friend says: there are areas in which we could make some improvement. However, the broad thrust of the regulations means that, if shareholders wish it, a vote is taken at the shareholder meeting about remuneration packages. We insist on and receive full disclosure about that. As I said, our company regulation is an example to the developed world.
Lord Marsh: My Lords, I have a cri de coeur to make on this subject—about which the Government seem almost as enthusiastic as they were about fox hunting. Does the Minister not believe that it is the easiest thing in the world to tell shareholders that, if they do not like what is happening in their company, it is a simple thing to sell those shares and buy some in a company that they like? Nowadays, most companies of any size publish the range of salaries.
Lord Davies of Oldham: My Lords, it is certainly the case that companies publish the range of salaries, and, as the noble Lord says, it is open to shareholders to withdraw their investment. However, I think that the noble Lord, with his usual fairness, would also recognise that, at one or two shareholder meetings, the board has been held to account on the level of remuneration for less than satisfactory performance. That is a reflection of the openness that the regulations guarantee.
Lord Wedderburn of Charlton: My Lords, does my noble friend accept that the matter was not put squarely before the Company Law Review Group? Would he like to refer the matter to such a group?
Does my noble friend also accept that disclosure is only one of many methods of influencing the direction of events in the company law structure? There are other methods that could be seized on to moderate the rapacious appetites of a group of British citizens who are encouraging increasing inequality in our society. Something like an anti-social behaviour order would be welcome.
Lord Davies of Oldham: My Lords, anti-social behaviour orders are certainly outside my brief. With regard to the general points made by my noble friend, there are, of course, areas in which we would want to see company practice improve. However, he will recognise that the crucial way in which power is exercised is access to the relevant information, which we can now guarantee.
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My noble friend is right. The Government should stay open to consultation on possible changes that could be made to the regulations. As I insist, they are working well, but they could be improved, and we are open to representations on that front.

Sudan: Darfur
3 p.m.
Lord Wallace of Saltaire Lord Wallace of Saltaire asked Her Majesty's Government:
Whether they are in favour of referring potential war crimes in Darfur to the International Criminal Court.
Baroness Symons of Vernham Dean: My Lords, our preference is for the ICC to be used in respect of the findings of the International Commission of Inquiry into the crimes in Darfur. However, the ICC statute provides that when a state is not a state party to the ICC statute, and Sudan is not, a referral of that state to the International Criminal Court can be made only by a decision of the Security Council. That will require consensus in the council. We are discussing the way forward with Security Council partners.
Lord Wallace of Saltaire: My Lords, I thank the Minister for that cautious and delicately phrased Answer. We understand that it is the United States and China which represent potential problems on the UN Security Council. We also understand that a small number of right-wing think tanks in Washington have built up the International Criminal Court into a threat to American sovereignty. Cannot Her Majesty's Government, as America's closest and most loyal ally, with a Prime Minister who is listened to better in Washington than any other, persuade the Bush Administration that on this occasion the International Criminal Court is, as the British ambassador to the UN has been widely quoted as saying, tailor-made for that and that the substitution of another expensive and inefficient ad hoc tribunal, as some in the United States wish, would be not just a second best but a fifth best?
Baroness Symons of Vernham Dean: My Lords, the noble Lord knows how much we have tried to persuade the United States to sign up to the ICC. It is not only the United States, but also a number of other countries, which have deemed it in their own national interest not to do so. The noble Lord was right when he said that it is not only the United States which has difficulty with this as one of the five permanent members of the Security Council; there are others in that position too.
The United States has brought forward proposals for prosecutions based on expanding the International Criminal Tribunal for Rwanda. That is one of the options likely to be discussed at the Security Council. We are open to a number of different options. This matter has to be pursued. I have been clear on where

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we would favour taking the issue, but we have to proceed on the basis of trying to persuade others to our point of view. The United States is not the only country that we have to persuade.
Lord Alton of Liverpool: My Lords, whether the issue is referred to the International Criminal Court or to a local African tribunal, is not the real problem the attitude of the Sudanese Government? Did the noble Baroness note the defiant speech made at the weekend in Darfur at El Fasher by the Sudanese Vice-President, Ali Osman Taha? He said:
"The Government will not accept any official to go to any (legal) organ outside this country".
Can the Minister confirm that last week in the sealed letter sent to the Secretary-General of the United Nations, more than 50 names were included of officials of the Sudanese Government, local officials or members of the Janjaweed who have been involved in the deaths of 70,000 people, the displacement of 1.7 million others and the razing to the ground of between 700 and 800 villages in Darfur? Now there is the staggering potential of catastrophe for 2.2 million people who are reliant on food aid. The crops have failed yet again and they are now in danger of being literally starved to death.
Baroness Symons of Vernham Dean: My Lords, there is no difference between the noble Lord, Lord Alton, and myself on the gravity of the situation in Darfur. I repeat that there is no difference at all. However, the question being addressed here is the right way to proceed in dealing with those very people who the noble Lord mentions as having been complicit in some extremely serious crimes in Darfur.
How can we take that forward? The noble Lord is right: the Government of Sudan will not refer themselves to the ICC. Under the statute of the ICC they cannot be forced to go there. The only way is for us to proceed by agreement in the United Nations Security Council on trying to bring to justice those who have been responsible for the worst crimes on the ground. The argument is not about the gravity of the situation. It is about the instruments available to us to try to deal with the issue.
Lord Astor of Hever: My Lords, following on from the question asked by the noble Lord, Lord Alton, what steps are the Government taking to ensure that the Sudanese Government do not block African Union monitors from investigating ceasefire violations?
Baroness Symons of Vernham Dean: My Lords, as the noble Lord knows, we have been engaged very heavily in trying to ensure that not only African Union monitors but also African Union troops on the ground are able to do their jobs properly. I understand that as of today there are 1,850 African Union troops on the ground. More are expected to be placed there within the next few weeks.
I fully acknowledge that that is not a huge number. But we have to look at the way in which we can try to bring the parties together. The Abuja talks must
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continue. We hope that they will continue at the end of this month. I understand that, currently, the African Union is talking to the parties concerned and that the United Nations is also very actively engaged on the ground. Our special representative, Alistair McPhail, is there. I assure your Lordships that we are very heavily engaged on that issue.
Lord Avebury: My Lords, did not the International Commission of Inquiry recommend that the sealed indictment be handed over immediately to the prosecutor of the International Criminal Court? Would it not be possible for the Security Council to so decide without prejudice to the question of which court would ultimately try those indicted? The prosecutor of the ICC would then be able to prepare the cases. If in its wisdom the Security Council decided to set up an ad hoc tribunal on the lines of the Abuja International Criminal Tribunal, the preparation could already have been done by the chief prosecutor for the ICC.
Baroness Symons of Vernham Dean: My Lords, yes. Of course it is possible for the Security Council to decide. But individual members of the Security Council have said that they will not; it is members who hold the veto. Everything that the noble Lord says may be true, in exactly the same way that everything that the noble Lord, Lord Alton, said, may be true. Indeed, the Government agree with much of what has been said.
But that is not the issue. The issue is what instruments are legally available to the international community to refer those names. It is not a question of whether it would be possible to do that without prejudice. It is a question of the political will to do so.

Serious Organised Crime and Police Bill
3.7 p.m.
Brought from the Commons; read a first time, and ordered to be printed.

Public Services Ombudsman (Wales) Bill [H.L.]
Lord Evans of Temple Guiting: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order:

Clause 1,

Schedule 1,

Clauses 2 to 10,

Schedule 2,

Clauses 11 to 27,

Schedule 3,

Clauses 28 to 34,

Schedule 4,

Clauses 35 and 36,

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Schedule 5,

Clauses 37 and 38,

Schedules 6 and 7,

Clauses 39 to 45.—(Lord Evans of Temple Gulling.)

On Question, Motion agreed to.

Disability Discrimination Bill [H.L.]
3.8 p.m.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Baroness Hollis of Heigham.)
On Question, Motion agreed to.
Clause 14 [Power to modify or end small dwellings exemptions]:
[Amendment No. 35 not moved.]
Clause 15 [General qualifications bodies]:
[Amendment No. 36 not moved.]
[Amendment No. 37 not moved.]
Clause 17 [Meaning of "disability"]:
Lord Skelmersdalemoved Amendment No. 38:
Page 42, line 32, at end insert—
"( ) In paragraph 2, after sub-paragraph (2) there is inserted—
"( ) Without prejudice to the operation of sub-paragraph (2), the mental impairment consisting of or resulting from depression that has ceased to have a substantial adverse effect on a person's ability to carry out normal day to day activities shall always be treated as if that effect is likely to recur if the person has had within the last 5 years a previous episode of such impairment which had a substantial adverse effect on the person's ability to carry out normal day to day activities for a period of 6 months or more.""
The noble Lord said: My Lords, in Committee the noble Lord. Lord Carter, put down an amendment on depression that the Joint Committee had suggested, but the Government rejected it on the basis that the effect of any impairment has to be continuous and long term. That is perfectly acceptable for all disabilities save one—depression, which in more than 50 per cent of cases recently studied was shown to have recurred.
I am no medic, but I am given to understand that the problem of long but erratic bouts of depression is not uncommon. Depression is characterised by separate episodes after which there can be a complete recovery. But that is not always so. I had dinner just last week with a 21 year-old who has only recently been diagnosed with depression, even though it is thought to date from her transfer to secondary school. Most acute episodes last no longer than six months and therefore do not meet the 12 months' rule in Schedule 1 to the Disability Discrimination Act 1995. Paragraph 2 of that schedule states:
"(1) The effect of an impairment is a long-term effect if—

(a) it has lasted at least 12 months;

(b) the period for which it lasts is likely to be at least 12 months; or

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(c)it is likely to last for the rest of the life of the person affected".

This might be covered under sub-paragraph (2), which states:
"Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur".
Alas, it is not. Although there is an underlying condition called dysthemia, it is, I am told, seldom true that this is the cause of longer-term depression. So the net result is that people with depression regularly face discrimination, particularly in the workplace.
I am advised that people who have recovered from an episode of depression can discover that they are never able to find paid work because of discrimination. Their ability to work is not reduced in any way except by stigma. This discrimination is so severe that the issue of whether or not to disclose on an application form a previous episode of depression is the single most vexed issue people can face when they are seeking employment. It also prevents people applying for jobs.
When including asymptomatic HIV and cancer, the Government made clear that the DDA should cover conditions that are known from case law to give rise to discrimination because of the stigma attached to that condition, even though in the case of cancer it might be short term. In my view, this reasoning should be applied to the case of depression. However, the Government have made it clear that they do not agree with an amendment that changes the definition of "long term" for the benefit of people with depression, so this amendment makes a much more modest proposal to cover those who have more than one episode.
Clearly, one would not want to include stress, about which I spoke in Committee, so the amendment has a period of six months' depression for the first episode as it is clinically most unlikely that stress will last as long or be so serious as to have a substantial adverse effect on someone's ability to carry out normal day-to-day activities. I beg to move.
Baroness Murphy: My Lords, I support the amendment tabled by the noble Lords, Lord Skelmersdale and Lord Higgins. I do so in order to clarify further the Government's approach to and understanding of the profound impact of certain kinds of major depressive disorder. Once again I refer to a clinical disorder which is recognised in the Diagnostic and Statistical Manual of Mental Disorders—in other words, what one might call the real McCoy, if I, as a clinician, can use that phrase to help other noble Lords. We are talking about real depression which is profoundly disabling.
In her response in Committee on 20 January, the Minister indicated that someone with a background of dysthymia—that is, a chronic lowering of mood—would be covered when a second episode of disorder occurred. But this is so rarely used by GPs and psychiatrists as a diagnostic phrase that it is not really useful. We know that a person with a major depression has a 70 per cent chance of having another within

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five years. Between these dates the stigma can be seriously profound and its impact upon a person's employment possibilities can be seriously disabling.
This is a modest amendment which tries to address the problems of those people with profound depressions that last a fair length of time and who suffer from them recurrently. I support the amendment.
3.15 p.m.
Lord Carter: My Lords, as I pointed out when we discussed this issue previously, the Joint Committee, which I chaired, recommended that people experiencing separate periods of depression which total six months over a two-year period should be considered to meet the long-term requirement. When the Minister replied, she said that that was inappropriate because this could be taken on board, as it were, only if the depression occurred as a result of a continuing impairment.
This is a point that we can make on a number of amendments. It arises from the way in which the 1995 Act is phrased and based on the medical model of the disability and not the social model. Indeed, in the Joint Committee we considered long and hard whether we should attempt to amend the 1995 Act to bring in the social model, but it was impossible because we would have had to start again and rewrite the whole Act. However, it makes the point that if we were working to the social model this kind of problem would not arise. The Joint Committee recommended that the DRC should explore the use of the social model. It will be interesting to hear from the Minister whether it is doing so and whether she feels that there is a way forward.
It is interesting also to note in passing that the recent report produced by the Cabinet Office Strategy Unit on disability steers well towards a social model of disability. I am sure that over the years this is the way in which we should go.
It seems to me that the Government have taken the point—with which we agreed in the Joint Committee— that if we are to build on the 1995 definition, the underlying impairment will be the deciding factor. But there is a real problem with intermittent impairment. So, if that is the case, perhaps there is a way through this. Are the Government ensuring—perhaps through the Department of Health and other appropriate bodies such as the DRC—that GPs are fully aware of the implications of the DDA as it is now?
In her answer in Committee, my noble friend was clear that episodes of short-term depression would be covered if they arose from an underlying impairment which had long-term effects. The problem is how we get from one to the other. Whether this should be done through guidance to GPs, the code of practice or whatever, there is a real problem of definition. This arises, as I say, from the decision we are faced with in basing this legislation on impairment and not on the effects of impairment on the person. Perhaps this could be met by linking the periods of depression to
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some kind of long-term recurring situation or an underlying impairment. That may be a way of solving the problem.
Lord Tebbit: My Lords, we gave this issue a great deal of thought in the Joint Committee, under the chairmanship of the noble Lord, Lord Carter, and we all agreed that the stigma which is attached to mental illness is still there. I am not against stigma in all circumstances—it can be a very valuable part of the way we live—but it is extremely unfair in the way that it affects people who have suffered mental illness.
As the noble Lord, Lord Carter, said, we considered going to the social model, on which a number of Members of the Committee were very keen. I was less so. I always have echoing in my head on these occasions the words of the late Enoch Powell:
"Beware the adjective 'social' for wherever it is used it will surely reverse or negate the meaning of the word to which it is applied".
I will leave your Lordships to brood upon that on your way home this evening.
So I was not attracted to that particular way of dealing with matters. I was attracted very much to the concept on which we settled, which virtually amounted to totting up. At the Committee stage, the Minister indicated that perhaps there could be, or should be, the concept of a continuous illness which had episodes with periods of calm in between, and one would then take the whole of the length of episode. I think that that is a very constructive approach—it may well be better than totting up—but we are still uneasy about how it will operate in practice. If the Minister could reassure us about that, it would make it easier for me not to support my noble friend's amendment. Otherwise, I might do so.
Lord Ashley of Stoke: My Lords, I do not agree with the noble Lord, Lord Tebbit, in his assessment of the value of stigma. I think it is wholly had. However, I support him in the change of concept, which is a possible way forward. A simpler way forward is to accept the amendment because the noble Lord, Lord Skelmersdale, has compromised and is asking for only a small part of what we asked for in Committee. This is a wholly reasonable amendment because depression is the one disability that is made worse by discrimination. That in itself should encourage the Government to be sympathetic. I do not understand their stand because it is illogical. The Bill would be anomalous if they refuse this amendment. I hope that my noble friend will be able to accept it.
Lord Addington: My Lords, I shall be brief. Noble Lords who have been dealing with the Bill have been trying to square the circle on depression. There is clearly discrimination based on preconceptions about what depression means. It is thought that people will not be able to do things. The model that we are using does not fit depression, the most common of mental conditions. I hope that the Government will he able to move some way towards our position in Committee on the amendment of the noble Lord, Lord Skelmersdale. Something must be done. If this is not it, will the

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Government give us some assurance about how it will be done? There is a problem and we need to deal with it. This would seem to be the best time to do so.
Baroness Hollis of Heigham: My Lords, this has been a short but moving debate. I welcome the contribution of the noble Baroness, Lady Murphy, who has experience in this area. I wonder whether the division between the Government's approach and that of the noble Lords who have spoken this afternoon is more apparent than real. I welcome the opportunity to clarify the Government's thinking on this matter.
I do not think that this amendment does what it should do. However, there is a problem to be met by a social model or whatever. One only has to look at employment figures to see that people with what we might call quite mild depression have a harder time getting into employment—or back into employment—than people with severe physical disabilities. There is no dispute between us about the degree of continuing stigma associated with depression and the difficulty of addressing it in ways that work within the framework of the DDA.
I shall try to explain our thinking rather more fully than I did in Committee. Clause 17 deals with the definition of a disability. As it stands, this amendment would modify the definition of "long-term" in Paragraph 2 of Schedule 1 to the DDA by extending coverage to people with two or more episodes of short-term depression where the substantial effects of the first episode lasted at least six months and occurred within the previous five-year period. Behind this discussion lies whether those two episodes are the tips of an iceberg—an underlying condition—that have broken water or whether they are unconnected and discrete. For the most part, only a clinician can judge that. That is the discussion between us.
From where I stand, a person might have two instances of depression three years apart—I shall explain circumstances in which that might occur—that would not be evidence of an underlying condition and would not appropriately invoke the protection of the DDA. But a person could have two episodes of depression not three but five years apart that should invoke the protection of the DDA because both episodes are related to the same underlying condition. That is the distinction that I am trying to draw.
The DDA is intended to cover people who are disabled in the generally accepted sense of the term. That is reflected in the current definitions. In Committee, my noble friend described people who suffer short but profound episodes of severe depression. I am not trying to suggest that there is any direct physical analogy, but people can have a severe infection in a broken limb that has substantial adverse effects that do not last for more than a few months. As all of us will know from personal experience, such people may have problems with their employers because of absence records or the need for time off for hospital appointments or physiotherapy. But none of us would suggest that such a situation should come within the framework of the DDA.
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The DDA is intended to provide protection where an impairment has recurrent effects. Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is treated as continuing to have that effect if the effect is likely to occur. That is the example given by the noble Baroness; I think that she said that there is a 75 per cent chance of a recurrence within five years. That is exactly the condition that is appropriately picked up by the Bill as drafted. I hope that the noble Baroness agrees with my reading of that. Therefore, conditions with effects that recur sporadically or for short periods qualify for protection under the Act provided that they are part of the same underlying impairment.
As the noble Lord, Lord Tebbit, said, we are not trying to tot up how often the symptoms of the impairment occur. If they occur more than once—or even just once, but it is regarded as belonging to an underlying condition—they are covered. That is the wise way forward. The mechanistic way—for example, doing arithmetic and keeping records of how long episodes lasted; when a patient visited the doctor; what the records say; whether the doctor less than frank about how severe a case was; and so on—is not sensible. Instead, we are taking advice from clinicians. If the episode is indicative of an underlying impairment, the person is covered whether another episode happens in a year, or in five, eight or 10 years, because that person will continue to have a propensity—I am not sure that I am using the appropriate language—and therefore needs to be protected in the situation as described. I think that that is the right approach.
If we take any other approach, we get a different dilemma. At any point in time, about 10 per cent of adults suffer depression. One in 10 new mothers suffers postnatal depression. One in two of those who marry is likely to divorce, which is likely to generate a period of grief or depression. Almost all of us are likely to lose our parents. That produces grief and depression for many of us. Very many of us—indeed, most women—will lose a spouse, often after a period of draining medical care. We should also bear in mind redundancy, bankruptcy and homelessness. All of these events can give rise to periods of quite severe depression. It would be unnatural for a woman who lost both parents within three weeks and a husband a few years thereafter not to grieve and to suffer from depression. But such events would be discrete episodes that could be dealt with by a rest, a good diet, supportive friends or medical support. In no sense would they be indicative of an underlying condition. They would be discrete episodes.
That is why I think that our approach is better. Let us say that someone—perfectly legitimately—suffers from depression as a result of losing a parent, for whatever reason, and then, five years later, loses his job in difficult circumstances and suffers from another period of depression, in the sense that he goes to the doctor saying that he is depressed and so on. Those are discrete, unconnected life events which have hit that

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individual hard, but they do not suggest that, in terms of the DDA, he has a "long-term impairment" for which he needs its protection.
We are trying to make a distinction between those separate life events, which we do not think should come within the protection of the DDA, and other episodes that belong to an underlying condition, where we believe the general practitioner is best qualified to guide and steer that person through. It does not matter whether those episodes are one, five or 10 years apart. They belong to the underlying condition and the sufferer will continue to receive protection—and rightly so.
What I am happy to do—and I will seek the noble Baroness's advice on this—is to see whether we need to do anything further to ensure that general practitioners in particular are well aware of the need to draw this distinction as appropriate so that they can give the necessary help. I will talk to the DRC. I am very happy to ask my honourable friend the Minister for Disabled People to talk to the Department of Health to see whether we can do anything further to promote understanding on the issue. But I would hope that your Lordships would agree that the Government's approach is appropriate.
3.30 p.m.
Lord Tebbit: My Lords, I am grateful to the Minister for giving way. She is describing the difference between what we might describe as externally caused depressions and those that are internal—those which, undoubtedly in my view, spring from some form of disorder within one, not from the circumstances in which one finds oneself. I can agree very largely with her on that distinction. I am not quite sure that I would go all the way with her from there, but she certainly makes a valid distinction.
Baroness Hollis of Heigham: My Lords, I am grateful to the noble Lord, Lord Tebbit. That is precisely what I was trying to say. Because I do not have the clinician's vocabulary, I was trying not to use the terms "external" and "internal". The degree to which one responds to a life event may also depend on one's own makeup and mental health and the degree of one's fatigue perhaps from a nursing background and so on. That is why it is not so clear-cut.
The noble Lord is, however, absolutely right. I was trying to make that distinction. Somebody may be unfortunate enough to have two or three battering life events but none the less manage to pick himself up over time in such a way that those events cannot suggest a period of discrimination with an employer. The person might, for example, say, "My mother has died. It has set me back, but I have had some counselling and I am now fine". That seems very different from a situation where one has episodes due to an underlying illness, propensity or impairment, such that the person needs the protection of the DDA.
We are drawing that line. But, as I say, I am happy to take this forward by seeking further medical advice and the like to ensure that GPs identify the condition and situation of people whose depression is an
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underlying impairment. I hope that with those assurances the noble Lord will feel able to withdraw his amendment.
Lord Skelmersdale: My Lords, I am in a slight quandary. The basis of the amendment has been supported all around the House with the exception of the Minister. I am particularly grateful to the noble Baroness, Lady Murphy, who called this a "modest amendment seeking to correct a wrong". And it is a wrong.
I do not know how many of your Lordships know about the case of Taylor v Sunterra Europe Ltd. Taylor first suffered a depression in 1993, and then again in 1996. He was treated with medication and counselling until 1998. He was then employed from April to July 1999, at which time he was told his employment would be terminated. On dismissal he experienced an episode of depression. Yet he was not covered by the Disability Discrimination Act because, in intervening periods, he did not suffer any substantial adverse effect on day-to-day activities. Furthermore, at the time of the applicant's employment and at the date of the hearing, the applicant was free of any substantial adverse effects.
This amendment would have stopped that stone-dead, because clearly—almost to quote the Minister—this is an episode which was indicative of a repetitive problem and the Act did not come into play. On that basis, I wish to test the opinion of the House.
3.36 P.m.
On Question, Whether the said amendment (No.38) shall be agreed to?
Their Lordships divided: Contents, 138; Not-Contents, 131.

Division No. 1

CONTENTS

Addington, L.

Dundee, E.

Allenby of Megiddo, V.

Dykes, L.

Ampthill, L.

Elliott of Morpeth, L.

Avebury, L.

Elton, L.

Beaumont of Whitley, L.

Ezra, L.

Biffen, L.

Falkner of Margravine, B.

Blatch, B.

Finlay of Llandaff, B.

Bonham-Carter of Yarnbury, B.

Fitt, L.

Bridges, L.

Flather, B.

Brooke of Sutton Mandeville, L.

Fookes, B.

Brougham and Vaux, L.

Fowler, L.

Buscombe, B.

Freeman, L.

Byford, B.

Garden, L.

Caithness, E.

Gardner of Parkes, B.

Campbell of Alloway, L.

Geddes, L.

Carnegy of Lour, B.

Goodhart, L.

Chalker of Wallasey, B.

Greengross, B.

Clement-Jones, L.

Hannigfield, L.

Colwyn, L.

Harris of Richmond, B.

Cope of Berkeley, L. [Teller]

Hayhoe, L.

Courtown, E.

Higgins, L.

Craigavon, V.

Hodgson of Astley Abbotts, L.

Cumberlege, B.

Holme of Cheltenham, L.

Dean of Harptree. L.

Hooper, B.

Denham, L.

Hooson, L.

Dholakia, L.

Howard of Rising, L.

Dixon-Smith, L.

Howe, E.

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Howe of Aberavon, L.

Pilkington of Oxenford, L.

Howell of Guildford, L.

Plumb, L.

Hunt of Wirral, L.

Redesdale, L.

Jenkin of Roding, L.

Renfrew of Kaimsthorn, L.

Kimball, L.

Roberts of Conwy, L.

Kingsland, L.

Roberts of Llandudno, L.

Knight of Collingtree, B.

Rodgers of Quarry Bank, L.

Lang of Monkton, L.

Roper, L.

Lawson of Blaby, L.

Russell-Johnston, L.

Lester of Herne Hill, L.

Ryder of Wensum, L.

Linklater of Butterstone, B.

Saltoun of Abernethy, Ly.

Liverpool, E.

Sandberg, L.

Livsey of Talgarth, L.

Sandwich, E.

Luke, L.

Scott of Needham Market, B.

Lyell, L.

Seccombe, B. [Teller]

McAlpine of West Green, L.

Selsdon, L.

Macfarlane of Bearsden, L.

Sharp of Guildford, B.

MacGregor of Pulham Market, L.

Shaw of Northstead, L.

Mackay of Clashfern, L.

Sheppard of Didgemere, L.

Maddock, B.

Shutt of Greetland, L.

Mancroft, L.

Skelmersdale, L.

Mar and Kellie, E.

Smith of Clifton, L.

Marlesford, L.

Soulsby of Swaffham Prior, L.

May of Oxford, L.

Steinberg, L.

Mayhew of Twysden, L.

Stoddart of Swindon, L.

Methuen, L.

Strathclyde, L.

Michie of Gallanach, B.

Swinfen, L.

Miller of Hendon, B.

Taverne, L.

Molyneaux of Killead, L.

Thomas of Gresford, L.

Montrose, D.

Thomas of Walliswood, B.

Morris of Bolton, B.

Tordoff, L.

Mowbray and Stourton, L.

Trenchard, V.

Moynihan. L.

Ullswater, V.

Murphy, B.

Vallance of Tummel. L.

Murton of Lindisfarne, L.

Wade of Chorlton, L.

Neuberger, B.

Wakeham, L.

Noakes, B.

Wallace of Saltaire, L.

Northesk, E.

Walmsley, B.

Oakeshott of Seagrove Bay, L.

Warnock, B.

Onslow, E.

Weatherill, L.

Park of Monmouth, B.

Wilcox, B.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Desai, L.

Ahmed, L.

Dixon, L.

Amos, B. (Lord President of the

Drayson, L.

Council)

D'Souza, B.

Ashton of Upholland, B.

Dubs, L.

Barnett, L.

Elder, L.

Bassam of Brighton, L.

Evans of Parkside, L.

Berkeley, L.

Evans of Temple Guiting, L.

Bhatia, L.

Falconer of Thoroton, L. (Lord

Bhattacharyya, L.

Chancellor)

Billingham, B.

Farrington of Ribbleton, B.

Blackstone, B.

Faulkner of Worcester, L.

Boothroyd, B.

Filkin, L.

Borrie, L.

Fyfe of Fairfield, L.

Bragg, L.

Gale, B.

Brett, L.

Gibson of Market Rasen, B.

Brooke of Alverthorpe, L.

Giddens, L.

Brookman, L.

Gilbert, L.

Burlison, L.

Golding, B.

Campbell-Savours, L.

Gordon of Strathblane, L.

Chan, L.

Goudie, B.

Chorley, L.

Graham of Edmonton, L.

Christopher, L.

Gregson, L.

Clark of Windermere, L.

Grocott, L. [Teller]

Clarke of Hampstead, L.

Harris of Haringey, L.

Clinton-Davis, L.

Harrison, L.

Condon, L.

Hart of Chilton, L.

David, B.

Haskins, L.

Davies of Coity, L.

Haworth, L.

Davies of Oldham, L. [Teller]

Hayman, B.

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Henig, B.

Puttnam, L.

Hilton of Eggardon, B.

Quirk, L.

Hogg of Cumbernauld, L.

Radice. L.

Hollis of Heigham, B.

Ramsay of Cartvale, B.

Howells of St. Davids, B.

Randall of St. Budeaux, L.

Howie of Troon, L.

Rendell of Babergh, B.

Hughes of Woodside, L.

Richard, L.

Hunt of Kings Heath, L.

Roll of Ipsden, L.

Irvine of Lairg, L.

Royall of Blaisdon, B.

Jones, L.

Scotland of Asthal, B.

Jordan, L.

Sewel, L.

King of West Bromwich, L.

Sheldon, L.

Kinnock, L.

Simon, V.

Kirkhill, L.

Smith of Leigh, L.

Lea of Crondall, L.

Stone of Blackheath, L.

Leitch, L.

Symons of Vernham Dean, B.

Lipsey, L.

Taylor of Blackburn, L.

Lofthouse of Pontefract, L.

Temple-Morris, L.

Macdonald of Tradeston, L.

Thornton, B.

McIntosh of Hudnall, B.

Tomlinson, L.

MacKenzie of Culkein, L.

Triesman, L.

Mackenzie of Framwellgate, L.

Truscott, L.

McKenzie of Luton, L.

Tunnicliffe, L.

Mallalieu, B.

Turnberg, L.

Marsh, L.

Turner of Camden, B.

Mason of Barnsley, L.

Uddin, B.

Maxton, L.

Wall of New Barnet, B.

Merlyn-Rees, L.

Warner, L.

Mitchell, L.

Warwick of Undercliffe, B.

Morgan of Drefelin, B.

Wedderburn of Charlton, L.

Nicol, B.

Whitaker, B.

Parekh, L.

Whitty, L.

Patel of Blackburn, L.

Wilkins, B.

Pendry, L.

Williams of Elvel, L.

Plant of Highfield, L.

Williamson of Horton, L.

Prys-Davies, L.

Woolmer of Leeds, L.

Young of Norwood Green, L.

Resolved in the affirmative, and amendment agreed to accordingly.
3.45 p.m.
Lord Skelmersdalemoved Amendment No. 39:
Page 42, line 32, at end insert—
"( ) In paragraph 4(1) before sub-paragraph (a), leave out the words from "to" to the end and insert "have a substantial adverse effect on the ability of the person concerned to carry out day to day activities only if it also affects one or more of the following capacities—"."
The noble Lord said: My Lords, I tabled the amendment because I am advised that as a result of court cases, there is a certain lack of clarity in the Act about the day-to-day activities which determine whether a person is disabled. Currently, employment tribunals and courts are reading the list of activities in Schedule 1 as being finite. This list of mobility, manual dexterity, physical co-ordination, continence, ability to lift or carry every-day objects, speech, hearing or eyesight, memory and ability to concentrate, learn or understand and the perception of risk of physical danger, is, as your Lordships can see, almost exclusively a list of physical capacities, with the result that the current definition of disability fails properly to cover the day-to-day activities, or rather difficulties, experienced by people who are mentally impaired.
In Committee, the Minister agreed that there was a problem and I was interested in her response—rather like her response to the previous amendment—that it could be cured by a toughened-up code of guidance

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for courts and tribunals to cover the point, rather than, as the noble Lord, Lord Carter, requested to add the ability to care for oneself, the ability to communicate and interact with others and the ability to perceive reality.
So, with the permission of the noble Lord, Lord Carter, I am trying again. This amendment, which replaces the introduction to paragraph 4(1) in Schedule 1 to the 1995 Act, is intended to toughen up the Act rather than the guidance. I believe that central to the Government's approach to the definition of impairment is that the list of capabilities I have mentioned as already being in Schedule 1 needs to be shown as present in a disabled person and in addition that there is a substantial adverse effect on day-to-day living. Examples would include sleeping, eating, going out, working, cooking and so forth. Both those effects need to be considered by the courts.
The trouble is that the Act does not say that: it does not distinguish between "capabilities" and "activities". Indeed, the results of the court cases I have discovered clearly show that the items listed in Schedule 1 are treated as an exhaustive list of day-to-day activities and not capabilities. It is a point recognised both by the task force and the Disabled Rights Commission. It is not a subtle or exoteric difference but impacts directly on the way evidence is gathered, cases are argued and judgments delivered by courts and tribunals.
For example, the Employment Appeals Tribunal dealt last year with two cases. In the first case, the Environment Agency v Mr Sevens, the tribunal considered only loss of concentration and incontinence and not his other symptoms—suffering nightmares and grinding teeth in his sleep. The Employment Appeal Tribunal called those "irrelevant factors" and therefore not a reason to overturn the original tribunal's decision. In other words, tribunals treat the existing list as being exhaustive, as I said.
In the second case—Manchester City Council v Sharon Romano—the tribunal stated:
"Even if the tenant has an impairment, that is only material in determining whether he or she is disabled, so far as it has an adverse effect on his or her ability to carry out 'normal day to day activities'".
When the case went to appeal, the court found that that was a correct statement of the law. In other words, a mental impairment on its own is not enough to comply with the DDA.
While in Committee, I was excited by the idea of spiced up guidance to the court. On reflection, such guidance will not be enough to cure the problem, as it can cover only what is in the Act, however tough it is. The guidance is not statutory: it needs a peg in legislation upon which to hang. My suggestion for that peg is the addition of the word "also" to make it clear that impairment exists in its own right and that the list helps to define it. I beg to move.
Baroness Hollis of Heigham: My Lords, I think that there is a way of meeting the concerns of the noble Lords, Lord Skelmersdale and Lord Higgins, without further amending the meaning of "disability" in the
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Act. A person cannot be disabled for the purposes of the DDA unless he or she has a physical or mental impairment.
After impairment comes "effect". The impairment must have a substantial and long-term adverse effect on the ability of the person to carry out normal day-to-day activities, all of which is set out in Section 1 of the DDA 1995. Normal day-to-day activities are not defined in the DDA, but they are things that are generally regarded as normal for most people, such as going shopping, making a hot drink, getting in and out of bed, getting up from a chair, personal grooming and dressing, talking to people, writing a letter, reading, watching television or listening to the radio, and so forth. However, it does not include specific types of work or specialist activities such as playing a musical instrument because those are not normal day-to-day activities for most people.
Schedule 1 to the Act supplements the definition of "disability" in Section 1. Paragraph 4 of Schedule 1 has rules about when an impairment is to be taken to affect the ability of a person to carry out normal day-to-day activities. For the impairment to qualify, it must affect at least one of an exhaustive list of matters set out in paragraph 4. For example, a person with cerebral palsy whose impairment affects their physical co-ordination might show that the item in the list affected would be "mobility" or "manual dexterity".
We have heard today from the noble Lord that the problem is that courts and tribunals are confused about the purpose of this list. The noble Lord, Lord Skelmersdale, complained that they are taking it to provide an exhaustive list of day-to-day activities rather than "capacities" which an impairment might affect. Mind has kindly provided us with an analysis of case law. Although we might disagree with its claims of the extent of any misunderstanding it is clear that there is a problem in some individual cases.
The Government view is that the problem lies with a misreading and not with the law. We believe that any concerns around this part of the definition of "disability" can be addressed by clarifying the statutory guidance. We will consult all those who have expressed an interest in this issue when we draw up revised guidance. The guidance will also be presented in draft to Parliament for it to consider before it is issued. The Disability Rights Commission agrees that this is the right approach. On this, as on other amendments, it does not wish to see the Bill delayed. In the light of these explanations and assurances I ask the noble Lords, Lord Skelmersdale and Lord Higgins, to withdraw their amendment.
Lord Skelmersdale: My Lords, I was interested in that answer. The Minister feels that guidance will continue to be good enough and I well understand that nobody wants to delay the Bill. Indeed, I do not want to delay it myself—and I am not alone. If the Government feel that any amendments passed in your Lordships' House should be taken out of the Bill or amended in another place, they can do so. To a very great extent, the timing is in their hands.

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As far as normal day-to-day activities are concerned, I still suspect that guidance will not be enough. However, I do not feel that this is an amendment that I need to press. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Tebbitmoved Amendment No. 40:
Page 42, line 33, leave out subsection (3).
The noble Lord said: My Lords, I hope that I will not detain the House too long on this matter either, but I believe that the paragraph to be inserted in Schedule 1 to the 1995 Act under Clause 17(3) is objectionable both in principle and, even if this principle were to be accepted, it is objectionable in its scope.
To my mind, we should not enact legislation which purports to make true what is manifestly not true. I found myself agreeing overwhelming with the opening remarks made by the Minister just now in her reply to the previous amendment that a person cannot be disabled unless he has a mental or physical impairment. That is a very sound principle. Unfortunately, this paragraph undermines it. I hope that we shall not disagree over this matter as we have disagreed over my view expressed on other legislation, that we should not seek to legislate that what is untrue is true.
4 p.m.
As drafted, the clause would deem to be disabled certain categories of persons who have no disability; that is to say, it would say that black is white and white is black. It provides that a person who has cancer, an HIV infection or multiple sclerosis—and those three conditions only—is deemed to have a disability and hence to be a disabled person. Curiously, it goes on then to state that regulations may provide that that provision does not apply to persons with a cancer "of a prescribed description", and that such a regulation may be,
"framed by reference to consequences for a person of his having it"—
that is, having cancer. Here we really do enter into a world previously inhabited only by Lewis Carroll, where words mean what Ministers say that they mean.
Let us take a particular case—a well known one. Mr Chris Smith, the former Culture Secretary, told us last week that he was diagnosed as HIV positive 17 years ago. Happily, Mr Smith is well. He says that he suffers no symptoms, and he is clearly not disabled, and I hope that he will not be disabled by the infection which he has but which these days can frequently be maintained under control. But in law Mr Smith would be disabled if the Bill was enacted as drafted. I do not believe that he wants to be disabled; in the judgment of most of us, he is not disabled.
I understand that the reasoning—if that is not too strong a word—behind the paragraph is that a person with one of the three conditions that I mentioned will at some time in future become disabled. But I am more
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disabled than Mr Chris Smith, although I do not come within the scope of these provision. My disabilities—impaired hearing and vision, failing memory, weakening muscles, which are familiar to most of us in this House—are all attributable to advancing age.
Old age causes more disabilities than any other condition and is avoidable only in one way, by dying young, which is not an option that is attractive to most of us. As somebody said recently, no one wants to be 80 until they are 79. Yet we, the elderly, are not provided for in this schedule, nor should we he. When our disabilities become such as to disable us, then rightly we will not be deemed to be disabled but actually disabled. God willing, Mr Chris Smith will not be disabled until old age nobbles him as it has so many of us.
Curiously, the logic of my argument seems to be accepted in respect of those diagnosed with cancer but not HIV or multiple sclerosis. I should like the whole of the paragraph to be excised from the Bill. But if it is not, surely other progressive diseases such as motor neurone disease or Parkinson's disease should be added to the exclusive category in this paragraph. After all, they are progressive diseases, just as much as the three which are mentioned.
I have no doubt of the good intentions of those who sought these provisions in the Bill. But in legislation good intentions do not always create good law. That has been part of the burden of the case that the Minister has made this afternoon on a couple of occasions already, on one of which, I accepted her arguments. For that reason. I cannot accept that this paragraph should be in the Bill, and I commend the amendment to the House. I beg to move.
The Deputy Speaker (Baroness Turner of Camden): My Lords, I remind the House that if Amendment No. 40 is agreed to, I cannot call Amendments Nos. 41 and 42 because of pre-emption.
Lord Addington: My Lords, getting to know the noble Lord, Lord Tebbit, in the process of considering the draft legislation, I found that he had a very subtle hand with which he wielded a stiletto or scalpel. Here he has very successfully done that by not concentrating on the disability discrimination part of the Bill. He may well have a case in saying that the list of conditions should be more exhaustive, but it includes conditions which lead to discrimination before symptoms show.
We deal with other forms of discrimination in other legislation, and ageing is a good example of that—or we are considering dealing with that issue. The discriminatory effect of the conditions mentioned in the paragraph, once they are known—certainly when they are feared and when the old wives' tales dig in—has had an effect on people's lives. If we concentrate on that aspect, the wording as it stands is justified.
There is not much more to say on the matter. The conditions may not be disabilities in themselves, but discrimination certainly does occur.
Lord Skelmersdale: My Lords, my noble friend Lord Tebbit, has produced a very interesting

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argument as to why the three conditions—and hence the paragraph—should not be included in Schedule 1. I believed that during the discussions in the Joint Committee my noble friend had come to a conclusion, when he said on 24 March in the Joint Committee report that,
"surely the most significant cause of disability is old age".
Apparently not.
The fact of the matter is that this Bill is about the effects of the disabilities themselves, not the reasons why the disabilities have occurred. The three conditions fit into two groups, with HIV and cancer in one group, where there is stigma attached even in the early stages, and multiple sclerosis in another. I suppose one could say in retrospect that that last was an accident waiting to happen. We all believed that multiple sclerosis was included in the definition of the Act until the case against the University of Surrey. Eventually, the Employment Appeal Tribunal found that it was not included and said that it fell outside the definition of progressive conditions in Schedule 1. So that is a discrete category.
I believe—and the Minister will correct me if I am wrong—that the other two conditions are included because of the stigma attached to them. People are frightened of what they do not understand and treat people with HIV and cancer differently from how they would those with other, perhaps unnamed, disabilities. It is for those reasons that I have always been content that multiple sclerosis, HIV and all cancers—and we shall get on to cancers in a minute—should be mentioned specifically in the provisions. So I am afraid that I cannot follow my noble friend's reasoning.
Lord Carter: My Lords, I should just point out that the Joint Committee considered this matter, and the evidence that we received was overwhelmingly in support of the Government's intention to introduce these three conditions into the Bill. We welcome the extension of the definition to include HIV, cancer and multiple sclerosis. As the noble Lord, Lord Skelmersdale, said, everyone believed that multiple sclerosis was covered until there was a court case which showed, surprisingly, that it was not. Therefore, it was included. The point that the Government are dealing with here relates to the discrimination and the stigma and not the actual disability.
On the other point that the noble Lord, Lord Tebbit, made about extending the provision to other conditions, we recommended that all progressive conditions covered under the DDA when they begin to have an effect should be included from the point of diagnosis.
The Government accepted the principle of the recommendation but said they would ensure that there were sufficient powers in the Act to enable the definition of "disability" to be amended should that prove necessary in the light of future evidence. That would meet two of the committee's concerns. It would allow further progressive conditions to be covered more effectively when the need arose and would provide flexibility in the event that case law emerged which showed that the definition was not working in the way intended.
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It would be helpful if my noble friend the Minister could confirm that these powers are in the Bill.
Baroness Hollis of Heigham: My Lords, this amendment would mean that the Bill would no longer include provisions which would treat people with HIV infection, cancer and multiple sclerosis as disabled people for the purposes of the DDA from the point at which they are diagnosed with the condition and before any adverse effects of the condition may have emerged.
For HIV and some cancers we have evidence to show that disability discrimination starts early, at the presymptomatic stage. This discrimination is often reinforced by other prejudicial attitudes deriving from fear and ignorance but that does not make it any the less disability discrimination which the Act ought to deal with.
In particular, evidence in the form of research reports, newspaper articles, and so on, suggests that there is still widespread fear and prejudice against people with a diagnosis of' HIV infection. The noble Lord, Lord Tebbit, mentioned the example of my right honourable friend Chris Smith. One can see from his history just how finely balanced a judgment some people must make when disclosing their HIV status. From his experience one can draw exactly the opposite conclusion from the one drawn by the noble Lord, Lord Tebbit; namely, that Chris Smith did not feel able to declare his HIV status even though, so far as he was concerned, he was well, able to climb the Munros with John Smith, and so on. However, he did not feel able to declare his HIV status because of the prejudice he considered he would then face. He and the Government considered that that prejudice should be protected against in the form of this Bill. As I say, I think you can read the Chris Smith experience in exactly the opposite direction from that suggested by the noble Lord, Lord Tebbit.
Chris Smith told the Highbury and Islington Express:
"I want to demystify some of the mythology … There's still a lot of fear and ignorance about HIV and the more we can demonstrate to people that it's a liveable, treatable condition like many others and not something to ostracise people for the better … The world was very different when I came out as gay. There was a lot more homophobia around and I thought it was important to say 'Yes, I'm gay, so what? Let's get on with being an MP' … Mr Mandela spoke out after his son died from AIDS … It made me think if he could try and lift the taboo surrounding HIV in those exceptionally difficult circumstances then this was something I could do".
I deduce from that story of someone I am proud to call a friend that he felt that the fact that he suffered from HIV, even though it did not in practical terms disable him, would none the less have led to some of the same consequences in terms of the world's responses to any statement he had made on that. That is what I draw from his experience.
Recently, Marie Stopes International and Interact Worldwide published their findings from a World AIDS Day survey highlighting that significant numbers of British citizens still have prejudicial attitudes to people living with HIV. The report by the National AIDS Trust and the Sigma Research report,

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Outsider Status, brought to light the fact that a fear of dismissal prevents many people from disclosing their HIV status to their employers.
In October 2004 BBC News Online carried a report about an employee who initially received support from his employer, having told the latter of his HIV status. I believe that he was ostracised by those with whom he worked. Having DDA protection from diagnosis would have supported that person in that difficult situation and it would do the same for all those who are diagnosed as having been infected with this virus when they are at the vulnerable stage of coming to terms with it.
This evidence supports the recommendations of the Disability Rights Task Force which recognised that people with HIV infection were experiencing disability discrimination at a point before symptoms or effects emerged and said that the protection of the Act was required much earlier on. This is what the subsection does; we must not lose it.
We shall discuss cancer. The task force identified the need for additional protection for people with some cancers. These are cancers which are likely to require substantial treatment. We have responded to that in this Bill. We had understood that people with multiple sclerosis would be protected but we needed to clarify the law as a result of the court case. That is what we are doing.
There is an argument that if we treat some people with progressive conditions as disabled people from the point at which they are diagnosed, we should do the same for all of them. We agreed with this in principle but we are not persuaded that there are any additional conditions which are inadequately covered. Other serious illnesses such as motor neurone disease—I pressed my officials on this—or muscular dystrophy are identified when the symptoms show. At that point the DDA comes into effect in any case. That is why they are not included in the list of identified illnesses in which there can he asymptomatic possession of a disability before it results in an impairment of a substantial kind in people's daily lives.
We have widespread support for the clause from the DRC, the Disability Charities Consortium, the Terrence Higgins Trust, the National AIDS Trust and the Multiple Sclerosis Society. We are dealing with those few conditions where there may be an impairment in the perception of the employer and others in advance of the obvious visibility of symptoms which would automatically bring someone within the protection of the DDA. We consider that in those exceptional cases we need this additional power. I hope that having heard the views expressed all round the House the noble Lord, Lord Tebbit, will accept that this is a decent, humane and proper way forward. I hope that he will withdraw the amendment.
4.15 p.m.
Lord Tebbit: My Lords, I thank the noble Baroness for her reply. I sometimes wonder how she manages to maintain her place as a Minister in this Government. She is so reasonable and so competent that she shines like a
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candle in a dark world among the incompetents and ne'er-do-wells who, I should add, we find principally at the other end of the Corridor.
I still draw the opposite conclusion about Mr Smith's case to that which the noble Baroness draws. The fact that he has said in public that he has been HIV positive for the past 17 years indicates to me that attitudes—I almost said social attitudes but I felt a tap on my shoulder from the shades of Enoch Powell—have changed over that time.
I doubt very much whether there is a stigma attached to cancer. There is a fear attached to cancer in many people's minds, but I do not know anyone who does not want to go out to dinner with someone because the former has heard that that person might have cancer. Indeed, the noble Baroness was on slightly thin ground when she referred to the distinction in her mind between conditions which are not diagnosed until symptoms appear and those which are diagnosed before symptoms appear. I do not know too many people who regularly go to their doctor and say, "Doctor, I might have cancer. I do not have any symptoms. There is nothing which causes me to conclude that I might have cancer, but would you test to see whether I do"? That is an unlikely proposition.
I think I know when I am beaten. I have the feeling that to press this amendment this afternoon would perhaps be something rather worse than the Charge of the Light Brigade. I would not have as many people as that following me.
Of course, I shall withdraw this amendment, but the noble Baroness should not be surprised if, perhaps in another place, her colleague who will be answering there will have to make the case not for excluding this paragraph, because it is unlikely that one would achieve that, but for adding a number of other conditions, most notably but not exclusively motor neurone disease. I will leave that thought with her, but fortunately she will not have to answer that argument. It would be harder than answering the arguments that I have put today on this issue. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Skelmersdalemoved Amendment No. 41:
Page 42, leave out lines 37 to 39.
The noble Lord said: My Lords, it is my personal regret that not all your Lordships join with the disability charities in welcoming the Government's decision to add multiple sclerosis, HIV and cancer to the list of disabilities covered by the Bill from the point of diagnosis. These are all potentially progressive diseases. It has been put to me that all progressive diseases—the point made by my noble friend Lord Tebbit—should be covered in the Bill. While there is logic to this, it is not the subject of this group of amendments. Our concern is the decision of the Government that they should take an order-making power to have some cancers, the so-called "non-serious" cancers, excluded from the Bill.
The term "cancer" covers a wide range of conditions, and it is the most likely cause of death if, as I do, you count heart disease separately from stroke.

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I declare an interest as vice-president and former chairman of the Stroke Association. The Office for National Statistics has said that cancer accounted for 26 per cent of all deaths in 2003, so we owe it to everyone to look carefully at those cancers which may or may not be excluded from the Bill. We know that the Government are consulting on basal cell skin cancer, commonly known as rodent ulcers, most squamous cell carcinomas of the skin, and in situ cancerous growths of the cervix and uterus, which we are told are likely to be treatable successfully by cone biopsy, and non-melanoma skin cancer.
I am told by Macmillan Cancer Relief, although the Minister has not confirmed it, that Bowen's disease and in situ cancers that do not affect the full skin thickness and can normally be treated initially, easily, and simply, are also under consideration. It was also revealed in Committee that melanomas and cancerous cells of the uterus may be included.
I do not pretend to be a doctor, but I know that once cancer of any kind gets a grip on the body it will spread, and if it spreads to a major organ it will, sooner or later, cause fatal damage and ultimately death. The fact is that having been diagnosed with cancer, no matter how minor the cancer may be for the individual, it can have a serious impact—this is another answer to my noble friend Lord Tebbit who has escaped us—when it comes to employment, travel insurance and life insurance, which is necessary to secure mortgages. It is clear that the stigma and ignorance that surrounds cancer is at the root of the discrimination against people affected by cancer. Indeed, the Government have admitted as much. The stigma and ignorance apply to all cancers at the point of diagnosis, not just the major ones, such as breast cancer or cancer of the oesophagus.
There is always going to be an effect on someone's life. The Minister made the point in Committee that a one-off intervention may be less onerous and have less daily impact than dealing with a broken shoulder. That may be, but the fact is that after removal of a cancerous lump, follow-up investigations are invariably required to ascertain whether the surgeon has cut it all out. As the Minister and I agreed on Second Reading, the severity, or spreadability, of a cancer depends essentially on the speed of the patient presenting it to a doctor, the doctor recognising it, and prompt treatment being given. I am reliably informed that a melanoma more than one sixteenth of a millimetre deep is most likely to lead to more serious and spreading cancer. I am afraid that I found the Minister's answer to that dismissive: "Well, if it does, the patient comes back under the ambit of the Act".
A quick reading of the debate in Committee shows that the Minister was on a losing wicket. No Member agreed with her that it was sensible for the Government to have a list of cancers to be excluded. The Minister said:
"I am trying to isolate the cancers—perhaps it is unfortunate that we call them 'cancers' rather than anything else".—[Official Report, 20/5/05; col. GC 358.]
I take the point, but surely what matters is what other people think; one's neighbours, family, friends, and what extra premium an insurance company will charge for a one-off but possibly continuing intervention. As
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to whether they should all be called cancers, the fact of the matter is that they are, at least in common parlance. The Bill makes no provision for separating out and defining what should and should not be called a cancer. People who have a diagnosis of one of the excluded cancers have a cancer. The noble Lord, Lord Ashley, said in Committee:
"The Government's provision in the Bill is a prescription for confusion … I cannot believe that the great British public will be able to identify clearly which is which".—[Official Report, 20/5/05; col. GC 355.]
I could not have put it better myself. I beg to move.
Lord Ashley of Stoke: My Lords, I hope that my noble friend Lady Hollis will look favourably on this, since she was unfortunately unable to do so in Committee. I have a few points to make. First, again I do not agree with the noble Lord, Lord Tebbit, about stigma not being attached to cancer, at least not as much as it used to be in the olden days. This is a purely subjective point of view, and either of us can be right. In my experience, people still are as terrified of cancer, and it is still as much of a bombshell of a word that stops all thought, all arguments, and raises fear and apprehension among anyone who is told. This is very unfortunate.
Secondly, my noble friend Lady Hollis said a few moments ago on a different amendment that she was against keeping records. Presumably. that comment was intended solely for that amendment. If this amendment is resisted, we will have the keeping of records. People who want to know where they stand on cancer, and whether their cancer is included will have to look at the records. Imagine the dialogue. "You have cancer. Let us see the British National Formulary to see what kind of drugs you are treated with. What sort of cancer is it? Unimportant? Very important? Rather important?". It could go on and on, and be even more confusing than looking at mere records. Any doctor or any surgeon who is able to say definitively, "That cancer is not serious", is sticking his neck out. Maybe doctors can do that, but my feeling is that they would be very apprehensive and very chary of categorising any cancer as not serious. We know that there are greater and lesser cancers, but to say so categorically may leave them vulnerable. It would be a very big step, and we will reach that stage if this amendment is not accepted.
I simply do not see anyone who is not concerned by the word "cancer". With all the education in the world, all the experience, and all the medical knowledge, cancer is still cancer. Although medicine has moved forward, public perceptions have remained static. Until you can change these public perceptions, we need this amendment.
Lord Carter: My Lords, I listened carefully to the arguments produced on this by my noble friend the Minister in Committee. All of us can agree from our experience that we have known people who have had what I would describe as a minor incident, usually skin cancer, which has been dealt with by one visit to hospital and that is the end of it. As I am sure your

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Lordships know, Members of this House have had that experience, and they would not regard themselves as disabled.
I tried to produce an amendment to deal with this, saying that if the Government intend to introduce such regulation to prescribe certain sorts of cancers, they should be absolutely certain that this would not lead to discrimination. From the explanation that I received from my noble friend, and in a letter that I think was circulated, it was clear that I had drawn the amendment much too tightly, so it would have led to all sorts of judicial review and so on. I might have used a phrase about the Government prescribing, having had a reasonable expectation on the basis of the evidence before them after consultation.
4.30 p.m.
As I understand it, the intention is not to deal with discrimination against people with cancers that do not require substantial treatment. However, the Government have not seen evidence that such discrimination is occurring. We have all received evidence, although I cannot remember it coming from anyone except Macmillan Cancer Relief. There is clearly some difference between the evidence that the Government have seen and the experiences suggested in the House.
Because of the February break, we have three weeks between Report and Third Reading, which is very unusual. Before Third Reading, would it be sensible for the Government to get together with the relevant bodies—the DRC, the Marie Curie Research Foundation, Macmillan and so on—to review the evidence that those organisations have? Then we could consider at Third Reading the process of consultation, the way the regulations—if they are used—would be drafted, and whether there is any way to approach the matter from the angle that I adopted previously, which was whether the Government were reasonably satisfied on the evidence before them that the prescription would not produce discrimination.
I am not clear that the regulations will be affirmative or negative. If they were affirmative—if we had the chance to discuss them—that would be helpful. I shall be interested to hear what my noble friend says.
Lord Walton of Detchant: My Lords, at first sight, new sub-paragraph (2) looks entirely reasonable, because it is perfectly clear that certain people with minor forms of skin cancer cannot be regarded as being disabled, in the normal course of events and in everyday parlance. Where exactly would the Government draw the line? What kind of prescription would they introduce? There are cancers, such as the basal cell carcinoma of the skin often referred to as a rodent ulcer, which are not life-threatening and do not metastasise. However, in my professional career, I have seen such rodent ulcers—neglected because the patients did not seek advice—eroding the skull and tissues to such an extent as to constitute a very significant disability.
If one is to talk about skin cancer, what about melanomas? As noble Lords know, malignant melanoma is often a progressive and fatal disease. My
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concern about the clause is how on earth the exclusions could be properly prescribed so as not to be discriminatory.
Lord Oakeshott of Seagrove Bay: My Lords, moved by the previous two speeches, I want briefly to declare an interest—I hope that it is not a stigma. I have had rodent ulcers. I have been over to St Thomas' a couple of times and am assured that there is no further problem; indeed, my father had them for some time. That does not feel like a disability. I certainly do not feel in any way discriminated against or likely to be so.
In the spirit of what was said by the noble Lord, Lord Carter, I wonder whether it is possible for the Government to consult and think further to see whether a line can be drawn. I feel uncomfortable about pressing any particularly strong point of view, to be honest; I am merely speaking from my personal experience.
Baroness Darcy de Knayth: My Lords, I put my name to the amendment and would like to support it strongly. I very much back up what was said by the noble Lord, Lord Carter. I hope that the Minister will have time to consult. If not—at the very least—I hope that she will give a very firm assurance in Hansard that the Government will not bring in the measure until they have consulted the DRC, Macmillan Cancer Relief and others.
Baroness Howe of Idlicote: My Lords, I shall be very brief. Having listened to the debates in Grand Committee and today, I am convinced that there must be some changes. To have certain cancers excluded cannot be right, given that we are very much talking about perceptions. They are either all in or all out. I hope that the noble Baroness will be able to take note of what has been said, by an arrangement to bring forward something acceptable at Third Reading or by agreeing to the amendment.
Baroness Hollis of Heigham: My Lords, most of us speaking today acknowledge that this is an uncomfortable area, to use the words of the noble Lord, Lord Oakeshott, because most of us have experience within our family and friends of a range of cancers, and know that we can no more group them together than a range of orthopaedic illnesses or problems. They are very different in terms of the effect—and the disabling effect—on the individual. That is why we are dealing with what is rightly a highly sensitive issue.
I want noble Lords to consider for a moment the policy and the implications of changing it. The policy was developed in response to the recommendation of the Disability Rights Task Force in 1999, which found little evidence of discrimination against those people with a cancer likely to require minor treatment. At paragraph 11 of its report, it stated:
"We saw little evidence, however, that there was discrimination against those with, say, benign tumours requiring no treatment or some skin cancers which might require minor treatment. We therefore felt that deeming everyone with cancer, irrespective of whether significant treatment was required or not, as disabled would not be publicly acceptable".

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That was the Disability Rights Task Force's advice to the Government, partly on the basis of which we framed the policy that we have. We should take its remarks extremely seriously. In all honesty, since that report, I have not seen evidence to suggest any change in its view—not the Government's view—on cancers requiring minor treatment attracting discrimination in the same way as cancers that require substantial treatment, either in employment or among service providers such as the insurance industry. If we had evidence of systematic discrimination, we would be concerned.
There are 20 or so cancer charities, all of which—including Macmillan Cancer Relief—were sent on 19 December a copy of the Government's consultation document, asking for their views. The consultation period does not end until some time in March, so there is still plenty of time to respond, but 19 of the charities have not sought to respond on the issue at all. Macmillan—it says that it did not receive the document, which I do not understand, as it was sent out with the others—is the only one that has.
I shall pick up the point made by the noble Lord, Lord Walton of Detchant. There is no hidden agenda. Paragraph 4.10 of the consultation document on the Bill lists the most common cancers that are considered not normally to require substantial treatment. Some were mentioned by the noble Lord, Lord Skelmersdale. They are basal cell carcinomas—rodent ulcers, as they are often called—most squamous cell carcinomas of the skin. Bowen's disease, in situ skin cancers that do not affect the full skin thickness and can he treated easily and simply, and in situ cancer of the cervix uteri that it is likely can be treated successfully and fully by cone biopsy.
Paragraph 4.12 states:
"The Government recognises, however, that it could be unfair to exclude a person with one of these cancers which does not normally require substantial treatment from protection under clause 17, if he or she was, exceptionally, considered to require substantial treatment".
In other words, the point made by the noble Lord—which I hope was well taken by me—that a person may come late to diagnosis and the condition continues, or that exceptionally the condition may develop into something more serious, is explicitly covered by the consultation document to the Disability Discrimination Bill, and the list of those cancers that we propose should be excluded is based on the steer of the Disability Rights Task Force report.
The implications have changed. The task force considered whether people with any type of cancer should be covered from the diagnosis, and concluded that they should not because it wanted to protect the integrity of the definition of "disability" in the Act. This is not about trying to catch as many people as possible, but about ensuring that disabled people properly enjoy civil rights that have been improperly denied them for too long.
I defer absolutely to the medical expertise of the noble Lord, who I am sure will intervene if I am incorrect. I understand that a person who is diagnosed with a basal
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cell carcinoma faces the inconvenience of a visit to the outpatients department, but it is a simple procedure to remove the cancer and that would normally be the end of it. Are we seriously contemplating that such a person is disabled and should continue to be treated by the DDA as such for life? I do not think that that is right. I acknowledge that some people will be frightened and may assume the worst when they are diagnosed with cancer. It may be generational: older people still talk about the big C in ways that younger people do not. Sometimes that fear is justified, but at other limes it is not.
We do not accept that a person who has a cancer requiring minor treatment would consider themselves to have a long-term disability. We have had no evidence that employers, service providers or the general public would accept it as disability. That goes for cancer that can be quickly treated and eliminated as much as for other short-term physical or mental conditions.
How can we promote a wider understanding of disability and of the discrimination that it attracts, and address it in civil rights language if we deem all people who have ever had treatment for a cancer. such as squamous cell carcinomas, or a rodent ulcer that has been easily and completely eliminated, to be disabled?
We all have experience of cancer, whether personally or among members of our family or friends. Someone in my family died of cancer. Another close friend had a minor skin complaint—a cell carcinoma—for which she effectively had lunch-time treatment. The first would have been amused and the second would have been rather shocked, but both would have been astonished if they were treated in the same way as coming within the framework of the DDA. I continue to believe that our approach is the right one.
I turn to the questions raised by my noble friend Lord Carter, and rightly pressed by the noble Baroness, Lady Darcy de Knayth. We are currently consulting on whether we have got the list of excluded cancers right and what should be covered by the term "substantial treatment".
At this stage it might be helpful if I were to clarify—I am sorry for any misunderstanding—that malignant melanomas are distinct, dangerous, difficult to remove, and require precautionary monitoring lest they recur and further treatment is required. That means that they are always likely to require substantial treatment, and will always come within the framework of the DDA.
We shall consider carefully the evidence that we receive in response to this consultation which closes on 18 March this year. Your Lordships have concerns, and, as you know, I do my best to try to meet those concerns. Following the remarks of my noble friend and the noble Baroness, Lady Darcy de Knayth. I want to give the House an undertaking that we will not exercise the regulation-making power to exclude any cancer from the extended definition of disability provided for by Clause 17(3) of the Bill until we have reviewed what evidence may be available about discriminatory behaviour towards people with those

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cancers. Of course, all relevant bodies, including the Disability Rights Commission, Macmillan, and so on, will be embraced in that consultation exercise.
4.45 p.m.
Lord Ashley of Stoke: My Lords, will that review include discussions with the DRC, Macmillan and other such organisations?
Baroness Hollis of Heigham: My Lords, yes; absolutely. It will include the DRC and all the relevant organisations that wish to partake in the discussions. If they have evidence we should and will respond. If there is evidence, why would we not move? If there is no evidence, why should we move?
My noble friend pressed me on this, but, of course, we shall have a further chance to be held to account should we be moved to exercise those powers. They would have to be done by regulation, and I am perfectly willing to consider further whether such regulations should be affirmative, thus allowing further consultation based on evidence. I shall consider the matter in good faith and come back to your Lordships' House with something that I hope will be helpful so that it can be perfectly properly scrutinised.
I hope that your Lordships will accept that the Government are pursuing the matter appropriately and that it is a wise and proper approach. If the evidence exists the exemptions will not be applied. But if the evidence does not exist, there can be no reason not to apply the exemptions. If evidence that we do not now have because of the current state of medical knowledge subsequently becomes available five or eight years down the road, we can revisit the regulations, remove the exemptions and bring them within the framework.
I ask your Lordships to accept that our approach must be based on evidence and information to maintain the integrity of the Bill. I hope that your Lordships will agree that I have done my best to respond to the concerns expressed. I accept that people—especially older people—fear the word "cancer", but I have no evidence that there is discrimination on the minor skin conditions requiring one-off treatment, as listed in the report. We are following the path laid out for us by the disability task force, but beyond that we shall go to further consultation and discussion with the organisations. Given that a change in the regulations to establish an exemption would have to come by resolution, I am perfectly willing to consider whether such resolution should be affirmative.
Lord Walton of Detchant: My Lords, before the noble Baroness sits down, perhaps I may raise a point on the definition she quoted from the disability task force. Benign tumours are by definition not cancer.
Baroness Hollis of Heigham: My Lords, I am grateful to the noble Lord. I am happy for him to
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intervene and correct any misunderstanding or misleading information that I may inadvertently have given to the House.
With those assurances, I hope that I have addressed the concerns of my noble friend and the noble Baroness, Lady Darcy de Knayth. As I said, if the evidence is there following consultation, the Government would not wish to exempt. In any case, even if the Government were to argue that there was no evidence, exemption would have to come by regulation to your Lordships' House. I am perfectly willing to consider whether such regulations should be affirmative. If even at that stage evidence comes up, the issue can be revisited. I am concerned to maintain the integrity of the Bill.
Despite the numerous cancer charities that exist in this country, I have had no evidence that there is an issue. The charity Macmillan is concerned. I was grateful to receive the help and support of Macmillan in my family when we had serious cancer. There is no doubt that such organisations speak from experience of cancer patients. But so far we have had no support from any other organisation, including cancer organisations. We can revisit the matter as we need to. We are seeking to address the situations suggested by the noble Lord, Lord Walton of Detchant.
I hope that your Lordships feel that the Government have moved some way from their original position at Second Reading. We are seeking to address your Lordships' concerns, but those concerns, if we are to respond, must be evidence based. If they are we would move; if they are not we should not move. Therefore, I ask the noble Lord, Lord Skelmersdale, to withdraw his amendment today.
Lord Skelmersdale: My Lords, before the Minister sits down, I am sure her commitment to consultation the first time round is widely accepted. Will she put such a provision in the Bill, so that we can be sure that in future consultation takes place when, as is inevitable, there is a need to alter the list from time to time?
Baroness Hollis of Heigham: My Lords, I have taken advice on this. Whether it is over the next weeks before Third Reading, the consultation will take place fairly shortly. Apart from that, I have taken advice and my remarks in today's discussion will carry the weight the noble Lord wishes.
Lord Skelmersdale: My Lords, I am extremely grateful to all noble Lords who have supported me on this amendment. It has been a long-running saga and, yes, I do accept that the Government have moved a long way in my direction. I am very pleased that consultation is going on and will continue to go on until the Government produce the list and lay the orders.
Given the interest around the House, that is a very good extra reason why such orders should be affirmative rather than, as they are at the moment, negative. I was very pleased to hear the Minister's remarks on that.

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The most telling point came in the intervention at the end of the Minister's speech by the noble Lord, Lord Walton of Detchant, when he said that, by definition, rodent ulcers and so on are not cancer. That is the problem with the Bill.
Lord Walton of Detchant: My Lords, forgive me, rodent ulcers are cancer; benign tumours are not cancer.
Lord Skelmersdale: My Lords, I stand corrected. Benign tumours are not cancer. That is exactly the problem because the clause talks about cancer. One does not know what is covered and what is not. But all this will be explored during the consultation.
On future consultations, I am not convinced by the noble Baroness's answer. As we all know, no government—unless by an intervention in an Act of Parliament—can bind their successor. I was told originally that such a commitment as the Minister has just given on consultation would be covered by Pepper v Hurt. So I naturally took legal advice and was told that Pepper v Hart comes into play only when there is a lack of clarity in the Act of Parliament. It is quite clear that there is no lack of clarity in this particular Act of Parliament and therefore it will not. Perhaps the Minister can think about that in the next two or three weeks between now and Third Reading.
Baroness Hollis of Heigham: My Lords, before the noble Lords sits down and decides what to do about his amendment perhaps I may make two points. First, he says he does not know what is in and what is out. I do him the courtesy of assuming that he has a copy of the Disability Discrimination Bill consultation document, which lists these things in paragraph 4.10. So there should not be any discussion or dispute about that. Secondly, I have said that before any regulations can be introduced we would have consultation. We expect that consultation to be fairly soon. I have also said that those regulations are available. It is a question for the House whether they should be affirmative. So I cannot see what more the noble Lord could reasonably want in terms of checks on the good faith of government on this: it is built in.
Lord Skelmersdale: My Lords, I hope I was in the process of explaining that I do not doubt the good faith of the Government in this area, but I have quite natural suspicions of some future government. That is not unusual, especially when one is speaking from the Official Opposition Front Bench. I have no doubt that the noble Baroness in her turn did so some years ago.
The noble Baroness in her last intervention almost caused me to change my mind. But I am not going to change my mind; I shall await the outcome of the deliberations between now and Third Reading and if it is necessary to change my mind, I believe that that will he the time to change it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 42 not moved.]
[Amendments Nos. 43 to 46 had been withdrawn from the Marshalled List.]
Schedule 1 [Minor and consequential amendments]:
Baroness Hollis of Heighammoved Amendment No. 47:
Page 53, line 23, at end insert—
"(ca) regulations under section 31AE(1) that make provision as to remedies;"
The noble Baroness said: My Lords, I can be very brief. The amendment implements the recommendation of the Delegated Powers and Regulatory Reform Committee that the affirmative resolution procedure should apply to all regulation-making provisions for remedies in relation to discrimination by general qualification bodies and not just those made the first time the power is used. We accept that. We are able to accept the recommendation. I beg to move.
Lord Skelmersdale: My Lords, the noble Baroness has a very good record in accepting the recommendations of the committee. I am delighted that she has done so on this occasion.
On Question, amendment agreed to.
[Amendment No. 48 not moved.]

Inquiries Bill
4.56 p.m.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): My Lords, on behalf of my noble and learned friend Lord Falconer of Thoroton I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
Clause 11 [Duration of appointment of members of inquiry panel]:
Lord Kingslandmoved Amendment No. 32:
Page 5, line 11, leave out "consult" and insert "secure the agreement of"
The noble Lord said: My Lords, I rise to move Amendment No. 32. We had a long discussion about this amendment in Grand Committee and I was delighted to have strong support both from the noble Viscount, Lord Bledisloe, and the noble Lord, Lord Laming, from the Cross Benches.
I do not intend to repeat the analysis to which the clause was subjected at that stage; suffice it to say that, as far as I am concerned, no problems are presented by Clause 11(2) or part of subsection (3)(a). But that part of subsection (3)(a) which includes the expression,
"for any other reason",

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and subsections 3(b), (c) and (d) all give the Minister wide scope to remove a member for improper or illegitimate reasons.
Our view is that Clause 11(6) does not go far enough to check the discretion of the Minister. It places only the obligation to consult on the Minister. We believe that the Minister should not only be obliged to consult but also to obtain the approval of the chairman.
We take that view, first, because of our general philosophy about the appropriate balance of power in the Bill between the Minister on the one hand and the chairman on the other; and, secondly, because, frankly, it is common sense to take that view. In practice, the Minister is likely to find it almost impossible to remove a member of an inquiry board if the chairman of that board is opposed to it, without being faced with the prospect of the chairman's resignation. I beg to move.
5 p.m.
Baroness Ashton of Upholland: My Lords, I am again grateful to the noble Lord for explaining the issue that concerns him. I agree that it is very unlikely that a Minister would remove a panel member against the wishes of the chairman, because the chairman has the ultimate, extremely powerful option of going public with any objections to that.
However, my two concerns remain as to why it is important to retain the provision. The first was drawn out by the noble Lord, Lord Laming, who is not in his place today, which concerns the responsibility for an inquiry. If there were to be a removal and the chairman's consent were needed, that would put the chairman in the difficult position of being publicly made to take responsibility for a decision that may attract a lot of attention.
Our view is that we should ensure that the chairman gets on with finishing the inquiry. Ultimately, the Minister must take responsibility for appointing the panel members and for any changes made. Secondly, we have placed with the Minister responsibility to ensure that resources are used effectively, so we need to ensure that the Minister can deal with very unlikely circumstances that may arise, perhaps concerning a loss of confidence that requires removal. Again, it is important that the Minister should take that responsibility.
I promised the noble Lord, Lord Kingsland, that I would consider the wording of subsection (3)(a) concerning "any other reason". In considering that, we felt that it was important to cover eventualities that we cannot foresee. Therefore, we feel that we need to leave those words in. It is not a wide power, because it falls within the context of the clause. It is a standard phrase; I have checked. It is used in numerous pieces of legislation—for example, the Sex Discrimination Act 1975 and the National Heritage Act 1980. It allows us to encompass situations that we cannot predict. For example—perhaps one that has resonance at present—if a member of a panel were to disappear
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in circumstances that suggested that he had been involved in a natural disaster, but there was no certainty, it would enable us to act on that basis.
I have thought carefully about the clause; I have thought carefully about where the responsibility should lie; but I must tell the noble Lord, Lord Kingsland, that it is right that it rests with the Minister and that, in this context, we have got the relationship about right. On that basis, I hope that he will feel able to withdraw the amendment.
Lord Kingsland: My Lords, while, of course, being grateful for the Minister's reply, I cannot disguise the fact that I am extremely disappointed by it.
I submit that the Minister has two options. The first and better option is to adopt our proposal and add the expression in our amendment to Clause 11(6). The alternative, on which noble Baroness dilated towards the end of her speech, would be to reduce the scope of the various paragraphs under subsection (3).
Extremely unconvincingly, in my view, the noble Baroness sought to explain why she felt that the expression,
"or for any other reason",
should remain. That expression is cast in the widest possible form. It will give the Minister discretion to remove a member of an inquiry simply because he does not like the direction in which that member was tending in what he said during the inquiry. It could be open to the most abject abuse by the Minister. If the noble Baroness is correct in expressing the real intentions of the subsection, I should have thought it only right that she should have provided herself with proper protection by narrowing the definitions in it.
Nevertheless, the noble Baroness has said what she said to your Lordships. In those circumstances, I beg to withdraw the amendment, but assure her that I shall return to this matter on Third Reading and hope that, meanwhile, she will think again.
Amendment, by leave, withdrawn.
Clause 12 [Power to suspend inquiry]:
Lord Goodhartmoved Amendment No. 33:
Page 5, line 27, at end insert—
"( ) The Minister shall lay a notice under subsection (1) before each House of Parliament, together with a statement of his reasons for suspending the inquiry."
The noble Lord said: This amendment, in my name and that of my noble friend Lord Smith of Clifton, is entirely covered by government Amendment No. 36, which is acceptable to us. In those circumstances, I shall simply move Amendment No. 33 formally to start the debate. I beg to move.
Lord Evans of Temple Guiting: My Lords, I am most grateful to the noble Lord, Lord Goodhart, for agreeing that government Amendment No. 36 answers his concerns. We should be most grateful if noble

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Lords would accept our amendment, because it contains the necessary provision for the devolved Administrations as well.
Lord Goodhart: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 34 not moved.]
Lord Evans of Temple Guitingmoved Amendment No. 35:
Page 5, line 29, at end insert—
"( ) Before exercising that power the Minister must consult the chairman."
The noble Lord said: The amendment requires the Minister to consult the chairman of the inquiry before suspending it. That reflects concerns raised in Committee and formalises what we believe would be the normal practice in any event. I beg to move.
On Question, amendment agreed to.
Lord Evans of Temple Guitingmoved Amendment No. 36:
Page 5, line 32, at end insert—
"( ) Where the Minister gives a notice under subsection (1) he must—

(a) set out in the notice his reasons for suspending the inquiry;

(b) lay a copy of the notice, as soon as is reasonably practicable, before the relevant Parliament or Assembly."

On Question, amendment agreed to.
[Amendment No. 37 not moved.]
Clause 13 [End of inquiry]:
Lord Kingslandmoved Amendment No. 38:
Page 6, line 5, at end insert "after consulting with and securing the agreement of the chairman"
The noble Lord said: Clause 13 refers to circumstances in which an inquiry may be brought to an end. Clause 13(1) states:
"For the purposes of this Act an inquiry comes to an end—
(a) on the date, after the delivery of the report of the inquiry, on which the chairman notifies the Minister that the inquiry has fulfilled its terms of reference, or"—
and this is the point material to my amendment—
"(b) on any earlier date specified in a notice given to the chairman by the Minister".
As I said in Committee, there seems to be no constraint whatsoever on the circumstances in which the Minister may bring an inquiry to an end. The clause is one of astonishing breadth. I think that I am right to say that I have strong support from both the noble Viscount, Lord Bledisloe, on the Cross Benches, and those on the Liberal Democrat Benches.
The Government have furnished your Lordships' House with an amendment; but I submit that it does not go far enough. My attention is particularly drawn to the words of the noble Lord, Lord Evans of Temple Guiting, in Committee, when he said, in broad terms, that the purpose of the clause is to deal with situations where an
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inquiry is no longer needed. In other words, it has become otiose—entirely surplus to requirements. He continued:
"In constructing this clause, we have clearly not done what we intended to do".—[Official Report, 19/1/05; col. GC 261.]
That is a brave admission from the government Benches by one so green in experience, even though so confident and eloquent.
At the very least, the grounds for ending an inquiry should be in the Bill. If the interpretation made by the noble Lord, Lord Evans, of the clause's purpose is correct, I see no reason why the paragraph should not say simply, "an inquiry can be brought to an end where it serves no further useful purpose" or some such form of words. Instead we have the government amendment, which for the reasons that I have given, is not satisfactory. I beg to move.
Lord Goodhart: My Lords, Amendment No. 40 in this group is tabled in my name and that of my noble friend. It proposes simply that,
"The Minister shall lay a copy of the notice before each House of Parliament, together with a statement of his reasons for terminating the inquiry".
It coincides with government Amendment No. 39.
I have some sympathy with the views expressed by the noble Lord, Lord Kingsland. It is well arguable that his proposal is the proper course to take; certainly I would not object to its being taken. I am not sure whether I would go so far as saying that it is essential to take that course because ultimately the Minister must be accountable for the termination of the inquiry. For that reason, it is essential that he place his reasons before Parliament so that they can be challenged, if necessary, in Parliament. Ultimately, the burden must rest on the Minister.
I am not convinced that it is essential, for those purposes, that the Minister should get the agreement of the chairman. It would be an unhappy situation if an inquiry continued when the Minister wanted to end it and the chairman did not. In that case, the better option is to end the inquiry and for the Minister to defend his action in Parliament. We will accept Amendment No. 39 and not move our Amendment No. 40.
Lord Evans of Temple Guiting: My Lords, I am grateful to the noble Lord, Lord Goodhart, for accepting government Amendment No. 39, which accepts the principle, to which we have agreed, that any notice ending an inquiry early should be laid before Parliament.
Amendment No. 38, tabled by the noble Lord, Lord Kingsland, seeks the consent of the chairman to the early termination of an inquiry under subsection (1)(b). Amendment No. 39 contains a requirement to consult, but we do not agree that there is a need to require the chairman's consent. That power is included in the Bill so that there is a way in which the inquiry can be brought to a close when it is clear that it is no longer needed. There could be all

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sorts of reasons for that; our problem is predicting them all. A Minister must be able to ensure that public money is not wasted by continuing if there is no point.
We understand absolutely the concerns about the potential for abuse of those powers but we believe that the requirement to explain the reasons to Parliament will act as a strong safeguard. In addition, any unreasonable or improper decision to terminate an inquiry early can always be challenged through judicial review. If the chairman disagrees with a decision to end an inquiry and the Minister ends it anyway, the chairman has a powerful option available to him: he can make his views public, no doubt prompting detailed public media and parliamentary scrutiny of the decision.
We think that it would be very unwise for any Minister to attempt to end an inquiry without the chairman's agreement, unless he was absolutely certain that he could justify the decision to Parliament, the courts and the public. Having said that, I agree with the noble Lord, Lord Kingsland; my views as read out in Committee were much firmer than those in the brief that I have been given today. We considered and tried to construct a list of all the possible reasons but gave up because we believed that we could not capture all the reasons why an inquiry might not be needed, or needed to be closed down. Obviously, parliamentary scrutiny of the reasons is an alternative safeguard.
We have done our best. In the light of my remarks, I hope that the noble Lord, Lord Kingsland, will be satisfied and prepared to withdraw his amendment.
5.15 p.m.
Lord Kingsland: My Lords, one of the many reasons why I admire the noble Lord, Lord Evans of Temple Guiting, so much is that he is a man of transparent honesty. I can think of very few occasions when I have heard from the government Benches an admission that what had been said at an earlier stage of the Bill was exactly as it was interpreted by the opposition Front Bench. I am most grateful.
However, sometimes change is for the worse. In this case, the amendment that the Government have tabled on Report is worse than it would have been had it reflected what the noble Lord, Lord Evans of Temple Guiting, said in Committee. In my submission, this matter is curable in precisely the same way as the situation in relation to Amendment No. 32 is curable.
If Clause 13(1)(b) expressed the circumstances in which an earlier date would be appropriate, we would be in a much better position to accept the Government's approach. If the Government are right in saying that there are a very limited number of circumstances in which a committee's deliberations would be brought to an end prematurely, and they will only be circumstances in which the committee can serve no useful purpose, surely it is not beyond the skills of the parliamentary draftsman, together with the appropriate Ministers, to devise a form of words that reflects that exactly. That is all we ask.
Lord Evans of Temple Guiting: My Lords, I am probably breaking all the procedural rules by rising
698
again. In the light of this discussion, we would like the opportunity to think, yet again, about the clause. We will come back to the noble Lord, Lord Kingsland, before Third Reading. We hope that we can satisfy what seem to be absolutely legitimate concerns.
Lord Kingsland: My Lords, I am most grateful. I do not think that the noble Lord, Lord Evans of Temple Guiting, should apologise for coming back. Although this is Report stage, the Bill was debated in Grand Committee in the Moses Room and therefore this is the first opportunity that we have had to deal with those matters on the Floor of the House. In my submission, therefore, it is wholly appropriate that greater flexibility should apply to our deliberations. I am most grateful to the noble Lord for his response. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Evans of Temple Guitingmoved Amendment No. 39:
Page 6, line 7, at end insert—
"( ) Before exercising his power under subsection (1)(b) the Minister must consult the chairman.
( ) Where the Minister gives a notice under subsection (1)(b) he must—

(a) set out in the notice his reasons for bringing the inquiry to an end;

(b) lay a copy of the notice, as soon as is reasonably practicable. before the relevant Parliament or Assembly."

On Question, amendment agreed to.
[Amendments Nos. 40 and 41 not moved.]
Clause 14 [Power to convert other inquiry into inquiry under this Act]:
Baroness Ashton of Uphollandmoved Amendment No. 42:
Page 6, line 22, at end insert—
"( ) Before exercising that power the Minister must consult the chairman."
The noble Baroness said: My Lords, in Grand Committee, the noble Lord, Lord Kingsland, raised several issues relating to Clauses 14 and 15. I promised to give them further consideration. As noble Lords will recall, the clauses deal with the conversion of inquiries.
Amendment No. 42 will require the Minister to consult the existing inquiry chairman about the proposed conversion. I think that I said in Committee that we would expect that to happen in practice in any event.
Amendments Nos. 46 and 47 will, I hope, deal with a concern expressed by the noble Lord, Lord Kingsland, in Grand Committee about the power of the Minister to remove panel members on conversion. Amendment No. 47 will remove the power of the Minister to terminate the appointments of the original panel at the same time as he converts the inquiry. Amendment No. 46 will ensure that a panel member cannot be removed from the panel later on for having an interest or association that the Minister was aware of at the time of conversion.

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In essence, the amendments protect the panel from being removed as a result of conversion. If the Minister takes a decision to convert an inquiry, he must be satisfied that the panel can continue as it stands. I beg to move.
Lord Kingsland: My Lords, I am most grateful to the noble Baroness for responding in the way that she has to the discussion that we had in Committee about Clauses 14 and 15. The noble Baroness will recall that we had two concerns about the powers contained in the clauses.
The first concern was one of principle. The Bill seemed to us to contemplate retrospectiveness in the management of existing inquiries. After the Bill became an Act, it would give a power to the Minister, in effect, to close down ongoing inquiries and replace them with inquiries under the Bill. That would give rise to two issues, one of which is far more important than the other.
The first is that it would provide a new procedure to an ongoing inquiry. We could see the force of doing that, if formal procedures were not proving to be satisfactory in dealing with the matter under review. Our other concern was that an inquiry might be closed down and replaced in order to get rid of members who were saying and doing inconvenient things and replace them with placemen. It is on that issue that the noble Baroness has been helpful, not only in the wording of the amendment but in the reassuring things that she said about them. In those circumstances, I simply want to thank her for tabling the amendments.
On Question, amendment agreed to.
Baroness Ashton of Uphollandmoved Amendment No. 43:
Page 6, line 30, at end insert—
"(6) The Minister may at any time after setting out the terms of reference under this section amend them if he considers that the public interest so requires.
(7) The Minister must consult the chairman before—

(a) setting out terms of reference that are different from those of the original inquiry, or

(b) amending the terms of reference under subsection (6)."

On Question, amendment agreed to.
Baroness Ashton of Uphollandmoved Amendment No. 44:
Page 6, line 30, at end insert—
"(8) Section (Minister's duty to inform Parliament or Assembly) applies, with any necessary modifications, in relation to—

(a) converting an inquiry under this section, or

(b) amending an inquiry's terms of reference under subsection (5),

as it applies in relation to causing an inquiry to be held, or amending an inquiry's terms of reference under section 5(2A)."
On Question, amendment agreed to.
[Amendment No. 45 not moved.]
Clause 15 [Inquiries converted under section 14]:
Baroness Ashton of Uphollandmoved Amendment No. 46:
Page 6, line 39, at end insert", and for the purposes of section 11(5) is treated as made by the Minister on the date of conversion"
On Question, amendment agreed to.
Baroness Ashton of Uphollandmoved Amendment No. 47:
Page 6, line 40, leave out subsections (3) to (5).
On Question, amendment agreed to.
[Amendment No. 48 not moved.]
Clause 16 [Evidence and procedure]:
Lord Howe of Aberavonmoved Amendment No. 49:
Page 7, line 20, after first "to" insert—
"(a)"
The noble and learned Lord said: My Lords, I apologise for the fact that the legislative train that has been steaming so rapidly along the last stretches of line will now move a little more slowly for a time. I shall try to avoid the risk of simple repetition of the helpful debate that we had in Grand Committee on the points raised in Amendments Nos. 49, 50 and 51.
I draw attention in particular to the extent to which there is a significant difference between Amendment No. 50 and Amendment No. 51. That is a result of my consideration of what was said in Grand Committee, of subsequent discussions with a number of people, and of a study of the Public Administration Committee of the other place, to which I have already paid tribute.
Amendment No. 50 was the original amendment. It was based on the rather wide-ranging advice given by the noble and learned Lord, Lord Phillips of Worth Matravers, before the BSE inquiry. It can be said to be very subjective and wide-ranging and to raise a presumption. Having considered that, I propose to replace it with Amendment No. 51, which is manifestly more objective and restrained and more related to proportionality. It says:
"the extent to which any person or organisation who may be the subject of criticism in course of, or as a result of, the proceedings may, as a matter of fairness, require legal representation".
That is a more restricted proposition.
I understand the need that has been made clear to be concerned, when considering the management of inquiries, about the need for economy as well as expedition. I have great sympathy with the amendment proposed by my noble friend Lord Goschen, with the speech that he made in Grand Committee and with the speech made by the noble Lord, Lord Lester of Herne Hill. From Crown Agents to Bloody Sunday, the need for economy is overwhelmingly established. It is not just mentioned in the Bill but stressed—rightly so. However, the other aspect that is, at the very least, equally important is the need for justice in the management of the inquiry or, to put it another way, the need to avoid injustice and the need for fairness.

701
At the heart of my case for the amendments is my conviction that it would be a grave mistake to omit from the primary legislation that is intended to set the framework for inquiries in general for years to come any reference to that aspect of the matter and leave it to regulations for the whole field. Expenditure and justice must both be mentioned in the same tone of voice in the legislation.
There is a misapprehension that continues in the mind of some people, and I can understand why. It is that lawyers inevitably, irresistibly, inescapably add to the cost and burden of an inquiry.
Lord Garel-Jones: Surely not.
Lord Howe of Aberavon: My Lords, I am delighted by that support from my noble friend.
The fact is that lawyers can and do save money, as well as time. For an example of an inquiry that was prolonged by their absence, one need only refer again to the inquiry conducted under the noble and learned Lord, Lord Scott of Foscote. I was struck by one aspect of it, and I re-examined it over the weekend. It is the amount of time devoted in that inquiry to the question of the legality of public interest immunity certificates, at the time when those certificates were given on the advice of the then Attorney-General, Sir Nicholas Lyell. In that area, the noble and learned Lord, Lord Scott of Foscote, held that the then Attorney-General had acted on a mistaken basis of law.
When the report was debated in this House two years later, the law had been changed by the legal system, by the judges. All the Law Lords who spoke on the topic in the House agreed that Sir Nicholas Lyell's advice was absolutely right, as the law had been in 1992, when he gave the advice. More decisively, Lord Williams of Mostyn conceded as much in the debate. So, one had the proposition that was at the heart of the finding of error on the part of the Attorney-General not having been argued by advocates before the inquiry but only argued so far as the Attorney-General was able to do it in his role as a witness. It had a great deal of time devoted to it. That is a very good example of the proposition of waste of time in justice and the matters about which I am complaining.
5.30 p.m.
To illustrate the extent to which lawyers can be helpful and sensibly managed, I should like to remind noble Lords again of the wide-ranging instructions given by the noble and learned Lord, Lord Phillips, at the setting up of his inquiry into BSE. He gave great encouragement to the role that lawyers can play. He said:
"In many cases the assistance of lawyers in identifying and preparing the evidence will be essential … I would hope that those Departments or other bodies which played a major part in the story will instruct Counsel to attend the hearing, or at least those parts of the hearing with which they are particularly concerned, in order to assist with the presentation of evidence, or any other way that may appear desirable".
702
Beyond that, he continued, in respect of matters which,
"deserve further urgent investigation … it will be very desirable to have legal representatives present to whom we can turn for assistance".
At that stage, that may conjure up the prospect of the inquiry being riddled with lawyers waiting to pounce at every point. In fact, as the noble and learned Lord, Lord Phillips, explained in a speech given on 5 December 2001 in the City of London, what happened was different from what might have been feared. He said:
"Most witnesses who had played leading roles in the story had legal representation. We made it plain that they were welcome to have their lawyers sitting beside them but that lawyers were expected to play a backseat role at the hearing. A short opening statement and a little re-examination was acceptable, but in essence, the proceedings were to be inquisitorial not adversarial".
The point is that the lawyers were there. They were ready, able and willing to speak, if invited to do so or if the need arose. They helped the noble and learned Lord, Lord Phillips, substantially in completing the inquiry more expeditiously rather than less.
Perhaps I may say that I had much the same experience in the Ely hospital inquiry, which, on the face of it, was a formidable operation. We had 52 witnesses. We wrote, as it were, "Salmon" letters to 44 members of hospital staff and 254 letters to relatives or friends of patients. Representing the different parties before me were three members of the Bar, two trade union officials and one solicitor.
One advantage of the modesty with which we conducted the proceedings was that, of the junior members of the Bar, one of them went on to become—25 years later—the Attorney-General, about whom I have just been speaking, and one of the others is now Lord Justice Potter who is in the Court of Appeal. They were then young, very competent, seedling lawyers. I remember to this day that the closing address made by Nicholas Lyell, as he then was, decisively shifted the judgment that we gave in respect of his client, the chief male nurse.
However, more importantly, we completed that inquiry with only 15 hearing days for the taking of evidence. So it is possible to show that lawyers assist the expedition as well as increase the fairness of an inquiry. Perhaps I may say without undue immodesty that a lot depends on the experience and performance of the panel of the inquiry and on the extent to which it gets guidance from the accumulated wisdom of departments.
That is why the Government's proposal to establish a unit in the centre of government, which is not attached to any department, where the collective wisdom of government of the kind that has been gathered in the Public Administration Committee report, is such a valuable one. It would enable lawyers to be available when they should be available, but to be guided by the inquiry in a sensible and productive fashion.
All of those arguments were underlying the central discussion that took place in Grand Committee when a number of colleagues were less than enthusiastic about

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the amendment that I had put forward. However, almost all of them laid more than a seed of hope for my central argument. The noble Lord, Lord Goodhart, said:
"My view is that the Salmon report goes too far for modern times".
He referred to the mounting expense. I am not sure why it is inevitable for there to be such mounting expense. I shall return to that point later on. The noble Lord went on courteously to say:
"So I cannot say that I disagree with what the noble and learned Lord, Lord Howe, said. He undoubtedly has a very strong point to make. But one has to look at these issues with proportionality in mind".
That is the lesson that I would draw from that discussion. He continued:
"I do not think that the chairman should be invited to start with any presumption for or against the giving of legal representation. It depends on the circumstances of each case".—[Official Report, 19/1/05; GC 272.]
That was echoed by virtually all the speakers. The noble Lord, Lord Lester, after we had discussed our client relationship, made the same point in a different way. He said that,
"fairness requires anyone who is in serious risk of pains and penalties to be legally represented. I also agree that there are serious cases where the right to cross-examination should be allowed … I thought that what happened in the Scott inquiry was not fair".
He closed by saying,
"So I am entirely sympathetic with the object of the amendment".—[Official Report, 19/1/05; GC 273–274.]
The noble Viscount, Lord Bledisloe, who, perhaps I may say is never knowingly understated with regard to his impressive style of advocacy, expressed the fear without prescribing a legal fiesta. He delivered the other phrase that impressed me so much, which was,
"to raise, as I fear the noble Lord's amendment does, an almost irrebuttable presumption that if anyone may have cause to apprehend the possibility of criticism and may reasonably wish to be legally represented, he is allowed to do so, is to perpetuate the present system which the public see as an abuse and a gross waste of money".—[Official Report, 19/1/05; GC 274–275.]
I understand that reasoning, which is why I have changed the drafting substantially to avoid any longer raising a presumption of that kind. Hence, there is balance in Amendment No. 51. It is objective, proportionality is at the heart of it and there is no presumption. The overriding test is contained in the words,
"as a matter of fairness".
That is not my phrase. It was used by the noble and learned Lord, Lord Cullen, which he was unable to recall when I spoke to him last night about it. It came not from any evidence submitted by him, but from his instructions for the Piper Alpha inquiry. Paragraph 15 of the paper distributed by the noble Baroness before Christmas stated that,
"Lord Cullen allowed people to be parties 'if they were able to show an interest, in some aspect of the subject matter of the inquiry which as a matter of fairness required protection by such [legal] representation".
That is the right approach.
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A clear reference to the need for the inquiry to address itself directly to that factor as much as it does to the avoidance of undue expenditure is an essential provision that should appear in the Bill, without any presumption either way. I say "without any presumption either way": I have withdrawn my presumption.
I draw attention, as I think I did in Grand Committee, to one of the closing sentences of paragraph 15, which states:
"To mitigate concerns that rules will lead to more claims for representation there could be a presumption against legal representation unless the chairman is satisfied certain circumstances apply".
That illustrates how easy it would be for the chairman to put the burden of proof in relation to the right to legal representation on the applicant for such benefit. The paragraph continues:
"The Inquiries Bill places the chairman under an obligation to have regard to costs in his running of the inquiry so the chairman must consider cost implications of permitting legal involvement".
I would not disagree with that. The obligation in that respect is right and "must" is not too strong. But the same burden, the same duty, should rest upon the chairman to consider the question of legal representation, without any presumption, in the light of the circumstances of the inquiry and as a matter of proportionality.
The Minister said—one so easily lapses into sexist metaphors—with her beguiling charm, how much we could rely upon the regulations that are yet to be born, as they are entitled to be, as a result of the Bill. But if one looks at the phraseology adopted in paragraph 15 one sees—in the words of one cynical lawyer or another—that, even in an affidavit, the truth will out. Here one finds paragraph 15 revealing the way in which the department might think about it, unguided, if there is not a proposition of the kind for which I ask on the face of the Bill.
I am prepared to concede that as long as the Minister is there she may well put her weight against such a fearful presumption as now appears in the text—but, who knows, when Cathy goes, might Clarke be far behind, or whatever? One cannot make any presumptions about the benignity of future holders of the office, even in the event of a change of government, for which we all devoutly pray.
I turn now to the report of the Public Administration Committee of the other place. It is a very impressive and comprehensive document. I draw attention to paragraph 101, where it is said:
"Only Lord Howe, sharply critical of the Scott inquiry argued for retention of the full Salmon principles".
I may have been "over-Salmonised". I have never argued for their retention in full. The last sentence of the paragraph of my own evidence which is quoted states:
"We do need to introduce these principles there within reason. and where it is appropriate".

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In paragraph 104, the Committee sums up in this way:
"The Inquiries Bill is in some ways an attempt to redress the worst excesses of the Salmon principles which have reached their nadir in the Saville Inquiry. The time has clearly come to reformulate the Salmon principles".
I do not quarrel with that. But "reformulate" does not mean discard or disregard.
The paragraph continues:
"We recommend that the procedures followed by inquiries in the last ten years should be reviewed. In particular there should be a re-evaluation of how to ensure fairness within the inquisitorial process while minimising the adversarial, legalistic element of inquiries".
Those, too, are well-chosen words which refer to the need to ensure fairness. The emphasis attached to the need for fairness is very well judged.
The words,
"while minimising the adversarial, legalistic element of inquiries",
are also well chosen. Minimising but not eliminating is the burden of the argument that I have sought to deploy before your Lordships. That is fortified by the much wider guidance given in the document produced as a result of the request made in 1996 by the noble and learned Lord, Lord Mackay of Clashfern, to the Council on Tribunals to offer its advice in the light of the recommendations of the noble and learned Lord, Lord Scott, because those recommendations clearly avoid the trap of a presumption one way or another.
Paragraph 7.15 of the Council on Tribunals report of 1996—I do not propose to read it again—describes well enough the extent to which the Salmon principles could be over-applied. On the other hand, it indicates many ways in which the chairman can and should make use of and control the way in which lawyers perform in the services of the inquiry.
Paragraph 7.14 demonstrates that lawyers can be useful for opening statements, oral testimony. evidence-in-chief, and sometimes cross-examination and re-examination. It concludes by stating,
"In short, although legal representation should not be regarded as an automatic right"—
I agree with that—
"and the inquiry should prevent any abuse of the opportunity to be heard, it may be counterproductive to start from the position that legal representatives will only be heard exceptionally. The inquiry should be ready to exercise its discretion in favour of hearing legal representatives and oral testimony and allowing cross-examination whenever it seems appropriate".
It is that balanced approach which I urge upon your Lordships.
The closing paragraph of this over-lengthy presentation is drawn from paragraph 2.9 of the 1996 report, which states that,
"the objectives of effectiveness and fairness should not, as a matter of principle, be sacrificed to the interests of speed and economy".
They should not as a matter of principle, in my submission, be omitted from this Bill. This is a topic on which Parliament is rightly exercising its duty to insist on the inclusion of that matter. I beg to move.
5.45 p.m.
Lord Lester of Herne Hill: My Lords, I shall not repeat anything that I said in Grand Committee. While I entirely agree with the closing words of the noble and learned Lord, Lord Howe of Aberavon, about fairness being the overriding principle, I shall briefly seek to explain why I do not feel able to give wholehearted support to his watered-down, diluted amendment which now creates no presumption either way.
My starting point is Clause 16(1) which states;
"Subject to any provision of this Act or of rules under section 38, the procedure and conduct of an inquiry are to be such as the chairman of the inquiry may direct".
I take it—I am sure the Minister can confirm this—that, in acting under Clause 16 and all the other provisions, there is an overriding common law duty for the chairman to act fairly. In making rules under the rule-making power, I also have no doubt that the Minister will be able to confirm that the rules must ensure the overriding objective of fairness in the procedures to be adopted by an inquiry.
If that were not the case, there is no doubt that the administrative court would be able to give effective relief by way of judicial review if any inquiry were to act unfairly in the procedures that were followed. That would apply whether a person faced criticism of any kind or for any other reason. Whatever the position may be about a court of law, it is quite clear under the public law of the United Kingdom that any body or public authority charged with the responsibility of carrying out an inquiry under statutory powers must act fairly.
One element in fairness is, obviously, the need for there to be effective legal representation in circumstances where it would be unfair for that not to apply. One characteristic example of that is where a person is in jeopardy not of the possibility of "any" criticism, as the amendment of the noble and learned Lord, Lord Howe, would put it, but of the possibility of criticism seriously damaging to that person's reputation. In that case, a chairman would be well advised to have regard to the needs of fairness in ensuring that there should be legal representation.
We do not have the proposed rules to be made under Clause 38, but it is in those rules that one would expect procedural fairness to be spelled out by the Lord Chancellor in order to ensure that all inquiries are, as far as possible, conducted fairly. I ask myself what is added in the amendment of the noble and learned Lord, Lord Howe of Aberavon, that is not in common law and is not, therefore, redundant.
The chair is to have regard to,
"the fact that any person or organisation who may have cause to apprehend the possibility of criticism in the course of, or as a result of, the proceedings may reasonably wish to be legally represented at the inquiry".
Were any chair not to do that on an application by such a person, there would again be the possibility of judicial review, not only on grounds of fairness but also on grounds of irrationality, because the chair would not be having regard to a relevant factor. So I do not feel that putting this into primary legislation is necessary.

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Doing so singles out one aspect only, the aspect about which the noble and learned Lord, Lord Howe, feels most strongly. If I may say so, jokingly, he pursues it like Captain Ahab pursuing Moby Dick. I understand why, but the zeal that he has shown, which is commendable, has now reached the point where the amendment does not serve a practical, useful purpose. Fairness should be spelled out in the rules, the common law and the protection given by the common law.
Finally, what the report of the Public Administration Select Committee, Government by Inquiry—in the passage significantly headed "Fair Play" which begins at paragraph 100—had to say about this is important and persuasive, as anyone who has read the report will see. After taking evidence, the committee was worried about the trap of legalism and about lawyers taking over inquiries and turning them into expensive, dilatory and protracted proceedings. The committee explained why and recommended that procedures should be reviewed. In particular, it recommended that there should be a reevaluation of how to ensure fairness within the inquisitorial process, while minimising the adversarial, legalistic element of inquiries. It suggested that good practice should be codified, possibly though the rule-making powers contained in the Inquiries Bill.
I think that that is the way forward. I hope that we will have sight of the draft rules at an early stage and will have an opportunity to debate them. For those reasons, and also because there is now to be no presumption either way, I would not regard the amendment as necessary or desirable.
Lord Mackay of Clashfern: My Lords, before the noble Lord sits down, can he help me with a question that is troubling me a little? Would it be possible in the procedural rules to determine that lawyers should not be allowed in these inquiries at all as a matter of general provision?
Lord Lester of Herne Hill: My Lords, I would say that it would not be possible. To exclude the right of legal representation or the opportunity for it where a person is facing serious pains and penalties in the course of an inquiry would be so unfair that, if it were to be put forward as a rule-making provision, the Lord Chancellor would face a serious risk of a successful judicial review.
Baroness Ashton of Upholland: My Lords, I am grateful for the contributions that have been made. I intend to be extremely brief. I am sorry that my beguiling charm completely failed to work on the noble and learned Lord, Lord Howe, but I am very grateful to him for returning to what I know is a very important issue to him. I understand that in his revised amendment he is seeking to achieve a balance between fairness and economy. The noble Lord, Lord Lester, is right in everything he said, especially about the inquiry's common-law duty.
At present, I remain not against the spirit of the amendment but, because this is a complex issue, we believe that this is much better dealt with in the procedural rules after proper, detailed consultation,
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including with noble Lords. I could also refer to various passages in the Public Administration Select Committee report to back up my argument. We need to look at the rules, not least to see how they can assist the chairman in decisions on legal involvement throughout an inquiry, so that representation contributes to the objective of a fair inquiry without having any adverse effects on the length and cost of the proceedings.
As the noble and learned Lord, Lord Howe, has said, this is one of the topics put forward in the document that I placed in the Library before Christmas. We will consult properly on the rules and I shall be very grateful for the input that I hope will be given by noble Lords, not least the noble and learned Lord, Lord Howe. I intend to ensure that we have detailed conversation with him.
There is no question that legal representation can play an important part in helping inquiries to establish the facts and in ensuring that witnesses and those with a direct interest in the inquiry are treated fairly. But inquiries are not trials. It has been the practice of many recent inquiries to keep legal representation, in particular, the cross-examination of witnesses by the legal representatives of other witnesses, to a minimum. That is the direction in which inquiries are going.
I have said to the noble and learned Lord that I shall do two things. I have made a commitment that there will be full and proper consultation on the rules. and I intend to ensure that it happens. As I have already indicated to the noble and learned Lord outside your Lordships' House, I shall look again to see whether there is anything that I can do within the Bill that does not breach the principle that I have already outlined. I shall continue the dialogue with the noble and learned Lord between now and Third Reading. My brevity is very deliberate. It is not meant to be disrespectful. In that spirit, I hope that the noble and learned Lord will continue his conversations with me and we will continue to explore how best to meet his legitimate concerns.
Lord Howe of Aberavon: My Lords, I am most grateful for the way in which the Minister has presented her position, beguiling as it is. I am delighted to be beguiled. I hope that she will forgive me if I conclude by recapping the central point.
Everything that she said about what can be dealt with in the regulations is right. Some very helpful advice is given in the report from the other place on the Irish approach. It breaks down the different kinds of representation that could be allowed, and so on. I am more than happy to take part in consultation about the regulations.
However, I use the strongest language that I can to urge her to analyse the logic of what has been said by the noble Lord, Lord Lester. If, in fact, the need for fairness is so obvious in and central to the common law—which indeed it is—and if, as he said, any well conducted chairman should immediately say to himself, "That chap is in jeopardy, so I must be fair", why is it redundant to put that in the Bill? I am passionately devoted to the inclusion in the Bill of the

709
need to avoid undue public expenditure. I devoted years of my life to trying to achieve that objective. I cannot see why it is unacceptable to the noble Lord to include the other factor. The two have to be balanced, just in case the rule-makers are not as instinctively responsive to the common law as he is, and just in case a stray chairman, from time to time, fails to respond to them in advance.
The extent to which it is said that judicial review can be the answer to this worries me. If the risk is to be avoided at the cost of the added expenditure of judicial review as the only escape, I beg the Minister to consider the wisdom, common sense and acceptability of including this proposition alongside expenditure. What harm would it do? What evil could come of it? The details could be filled in with regulations on all these points. There is a risk that this opportunity for Parliament to draw the attention of the rule-makers to this principle could be overlooked for no good reason.
6 p.m.
Lord Lester of Herne Hill: My Lords, before the noble and learned Lord sits down, would he be content if the Bill made clear that there had to be fair procedures? If that was written into the primary legislation would that meet his point?
Lord Howe of Aberavon: My Lords, I am grateful to the noble Lord for intervening because that is the point that I have encapsulated in my latest amendment. It is a phrase drawn from the noble and learned Lord, Lord Cullen. I have no special attachment to the precise nuances of the burden of proof—I share everyone's lack of enthusiasm for presumptions either way. But I do think that attention should be directed to this.
I hope that the noble Baroness will be beguiled by the provisional concession made by the noble Lord, Lord Lester. He must have remembered a phrase that we share with each other. It is a quotation from the American judge, Learned Hand:
"The spirit of liberty is the spirit which acknowledges that it may not always be right."
I am grateful to him as well as to the noble Baroness.
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 50 and 51 not moved.]
The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton)moved Amendment No. 52:
After Clause 16, insert the following new clause—
"Public access to inquiry proceedings and information
(1) Subject to any restrictions imposed by a notice or order under section 17, the chairman must take such steps as he considers reasonable to secure that members of the public (including reporters) are able—

(a) to attend the inquiry or to see and hear a simultaneous transmission of proceedings at the inquiry;

(b) to obtain or to view a record of evidence and documents given, produced or provided to the inquiry or inquiry panel.

710
(2) No recording or broadcast of proceedings at an inquiry may be made except—

(a) at the request of the chairman, or

(b) with the permission of the chairman and in accordance with any terms on which permission is given.

Any such request or permission must be framed so as not to enable a person to see or hear by means of a recording or broadcast anything that he is prohibited by a notice under section 17 from seeing or hearing.
(3) Section 32(2) of the Freedom of Information Act 2000 (c. 36) (certain inquiry records etc exempt from obligations under that Act) does not apply in relation to information contained in documents that, in pursuance of rules under section 38(1)(aa) below, have been passed to and are held by a public authority.
(4) Section 37(1)(b) of the Freedom of Information (Scotland) Act 2002 (asp 13) (certain inquiry records etc exempt from obligations under that Act) does not apply in relation to information contained in documents that, in pursuance of rules under section 38(1)(aa) below, have been passed to and are held by a Scottish public authority."
On Question, amendment agreed to.
Clause 17 [Restrictions on public access etc]:
Lord Kingslandmoved Amendment No. 53:
Page 7, line 27, leave out "either or both of the following ways" and insert "the following way".
The noble Lord said: My Lords, we debated this amendment at length at Committee stage. In those circumstances I can be telegraphic in my presentation. The Minister will recall that one of the themes of the debate that we had at Committee stage was the imbalance of power between the Minister on the one hand and the chairman of the committee on the other.
Clause 17 is perhaps the locus classicus of that phenomenon. This clause gives the Minister the power, through a restriction notice, to prevent the public from attending the proceedings and to prevent evidence given in the proceedings and documentary evidence from becoming public. I accept that it is proper that the chairman of the inquiry should have this power. The chairman of the inquiry is often asked to balance the interests of the individuals, who might be adversely affected by the proceedings, on the one hand, against the interests of national security, for example, on the other. The chairman will normally have his feet well under the table before he has to make these balancing judgments.
By contrast, having set up the inquiry, the Minister should then stand back and leave its running to the chairman. It is, in my submission, wholly inappropriate for him to intervene, suddenly, on day 20, for example, and say, "There is an important consideration of national security here. I have exercised my balancing power and in those circumstances, prohibit this piece of evidence from being made public." The Minister is simply not in a position to make that judgment. He cannot be in a position to balance the interests of the individuals who are likely to be adversely affected by the inquiry against the public interest.

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The restriction order, which is a power given to the chairman in the Bill, is wholly adequate protection for all the interests which are of concern to the Government in casting this clause. The Minister is aware of my opinions as I have expressed them at Second Reading and Committee stage. I do not intend to delay your Lordships' proceedings any further. I beg to move.
Lord Lester of Herne Hill: My Lords, I am grateful to the Minister and her officials for having met me to discuss my concerns about Clause 17. I would like to explain such concerns and seek something on the record to meet them.
I have in mind the powers under Clause 17 and a similar power under Clause 23(4). As the noble Lord, Lord Kingsland, has pointed out they are powers to restrict the free flow of information in relation to inquiries. They relate to whether it is accepted that the Minister or the chairman, as public authorities within the meaning of the Human Rights Act, are under a duty in exercising the restraining powers to do so in a way which is compatible with the right to free expression in Article 10 of the European human rights convention.
If that is the position, the Minister or the chairman has to act reasonably and proportionately in an objective sense and would have to justify the scope and effect of any restriction in terms of the case law under Article 10 of the convention read with the Human Rights Act. There is the separate question about public access to inquiries. I am satisfied that there is no obligation to hold a public inquiry in relation to Article 10. What I seek from the Minister is an assurance that it is accepted that Ministers and chairmen of inquiries must exercise their prior restraint powers compatibly with Article 10 and the right to free speech.
Lord Goodhart: My Lords, I am grateful to my noble friend for raising the point about Article 10, which I fully support. I wait with interest to hear what the Minister says.
As regards amendments moved by the noble Lord, Lord Kingsland, we certainly took the view in Grand Committee that there was a good deal of force in them. Our position has been considerably affected by the fact that government Amendment No. 67, which we have not yet reached, will mean that a restriction order or restriction notice will apply only up to the date at which the inquiry comes to an end. After that, any material in the hands of the Minister, which is accessible under the Freedom of Information Act, will be disclosed on request, subject to the exemptions.
Everybody recognises that there are some circumstances in which part or all of some inquiries are more appropriately held in private than in public. In those circumstances there may be some occasions on which it is more appropriate for that decision to be taken by a Minister who is accountable to Parliament
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than by a chairman of the inquiry panel who is not so accountable. In those circumstances, we do not feel that we are able to support the amendments moved by the noble Lord, Lord Kingsland.
Viscount Bledisloe: My Lords, while I see force in what the noble Lord, Lord Kingsland, is proposing, is he not going too far in the opposite direction? I can understand why he says that at day 20 of an inquiry, when the chairman is fully in the saddle, it is for the chairman and not the Minister to decide what to control. But when setting up an inquiry or before an inquiry has got under way, why should a Minister not say, "I am setting up this inquiry but I should like to make it plain from the start that information in the following categories will not be disclosed and will not be disclosable"? Alternatively, he could say, "Certain parts of the inquiry, relating to x and y, shall be held in private". It would then be open to the proposed chairman to say, "I don't want to embark on an inquiry on that limited basis. If you're going to restrict it as much as that, you won't get me".
Surely, at that stage when the Minister knows all the details from the chairman, he should be allowed to impose restrictions on the inquiry. People can then say that they do or do not want an inquiry on that basis.
Baroness Ashton of Upholland: My Lords. I say to the noble and learned Lord, Lord Howe, that if the spirit of liberty is as he says I am indeed a free woman.
I say straightaway to the noble Lord, Lord Lester, that where the exercise of the power in Clause 17 engages Article 10, the Minister or the chairman must of course act compatibly with Article 10.2. That means that the exercise must be both necessary and proportionate. I am grateful to the noble Lord, Lord Lester, for discussing the matter with me. I believe that that addresses the point which he is keen I should place on the record.
I shall briefly deal with the issues which have been raised. We believe that when setting up an inquiry the Minister must be sure that witnesses are not endangered and that national security is not at risk. The Minister has to be satisfied about the effective use of public funds and has to set up the inquiry in a way that will allow it to get to the truth most effectively. Decisions about privacy must be part of that process.
Under the Bill, for example, if much of the information will be sensitive, it is much better to have a single decision about public access at the start, which can be challenged, rather than numerous applications for public interest immunity throughout the inquiry, which can cause delays.
These powers are not new. Existing legislation such as the Children Act 1989 and the Police Act 1996 have explicit powers for Ministers to hold inquiries, or part of inquiries, in private. Unlike the provisions in the Bill, those powers are not qualified by the legislation in any way.
For the first time, we have set out the reasons for which a Minister can hold an inquiry in private. The Bill actually restricts Ministers' current powers in this respect. It creates a clear structure in which decisions

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about public access and privacy must be made. Clause 17 draws on the reasons for which restrictions have been justifiably placed on public access in the past, including decisions that have been upheld in the courts.
My submission is that during an inquiry you cannot always predict what will arise. Ministers must be able to ensure, for example, that the UK complies with the European Convention on Human Rights. If the disclosure of information would breach individual rights under the ECHR, Ministers must be able to issue restrictions to protect those rights. If the inquiry panel breaches the individuals' ECHR rights, it is the Minister, not the panel, who will be taken to court in Strasbourg.
It is not fair, in our view, to place the responsibility solely on the chairman to weigh up the wider public interest all the time when conducting his inquiry, particularly if he has no expertise in security, international relations, economic matters or whatever the relevant field might be. The job of the chairman is to get to the truth in the most effective way possible. It is the Minister's job to protect the wider public interest.
A restriction notice would not stop any information from going to the chairman and the rest of the panel. Of course, if the chairman was not happy with the notice, he could say so publicly. I believe that that carries a tremendous amount of power.
The clause sets out very clearly the circumstances in which restriction notices can be justified. It is in the business of safeguarding the public interest, preventing real harm and making the inquiry effective. Any unreasonable or improper restrictions could, and undoubtedly would, be challenged in the courts.
For the reasons I have given, I hope that the noble Lord, Lord Kingsland, will withdraw his amendment.
Lord Kingsland: My Lords, I am most grateful to the Minister and to all noble Lords who have spoken in the debate. I shall respond briefly. The noble Viscount, Lord Bledisloe, asked whether it would not be all right if the Minister, at the outset of the inquiry, imposed certain constraints—for example, with respect to public security—and made that a condition for the chairman to abide by when undertaking the inquiry. That, for me, would not be a problem because it could form part of the terms of reference of the inquiry.
My concerns relate to the issue of a restriction notice in the course of an inquiry. It is then that the interests of the individuals who might be adversely affected by the ultimate decision of the inquiry emerge and become clear. But they will become clear only to the chairman. Therefore, when it comes to measuring the various public interests which are expressed in Clause 17, it is, in my judgment, only the chairman who can make an appropriate balancing judgment.
I shall not repeat the arguments I made at the outset and certainly not those I made in Committee. This is, for us, an important point of principle and therefore I would like to test the opinion of the House.
6.16 p.m.
On Question, Whether the said amendment (No. 53) shall be agreed to?
*Their Lordships divided: Contents, 61; Not-Contents, 162.

Division No. 2

CONTENTS

Anelay of St Johns, B.

Howe of Idlicote, B.

Astor of Hever, L.

Howell of Guildford, L.

Attlee, E.

Inglewood, L.

Baker of Dorking, L.

Kimball, L.

Brougham and Vaux, L.

Kingsland, L.

Byford, B.

Knight of Collingtree, B.

Chalker of Wallasey, B.

Laird, L.

Colwyn, L.

Liverpool. E.

Cope of Berkeley, L. [Teller]

Luke, L.

Denham, L.

Lyell, L.

Dixon-Smith, L.

Mancroft, L.

Eccles of Moulton, B.

Marlesford, L.

Elton, L.

Mayhew of Twysden, L.

Feldman, L.

Morris of Bolton, B.

Ferrers, E.

Noakes, B.

Flather, B.

Northesk, E.

Fookes, B.

Norton of Louth, L.

Fowler, L.

O'Cathain, B.

Fraser of Carmyllie, L.

Park of Monmouth, B.

Freeman, L.

Rees, L.

Gardner of Parkes, B.

Seccombe, B. [Teller]

Geddes, L.

Selborne, E.

Glenarthur, L.

Skelmersdale, L.

Harris of Peckham, L.

Stewartby, L.

Hayhoe, L.

Strathclyde, L.

Henley, L.

Swinfen, L.

Higgins, L.

Tebbit, L.

Thomas of Swynnerton, L.

Hooper, B.

Ullswater, V.

Howe, E.

Wade of Chorlton, L.

Howe of Aberavon, L.

Wilcox, B.

NOT-CONTENTS

Acton, L.

Clinton-Davis, L.

Addington, L.

Corbett of Castle Vale, L.

Ahmed, L.

Darcy de Knayth, B.

Allenby of Megiddo, V.

David, B.

Alton of Liverpool, L.

Davies of Oldham, L. [Teller]

Amos, B. (Lord President of the

Desai, L.

Council)

Dholakia, L.

Andrews, B.

Dixon, L.

Archer of Sandwell, L.

Drayson, L.

Ashton of Upholland, B.

Dubs, L.

Avebury, L.

Dykes, L.

Barnett, L.

Elder, L.

Bassam of Brighton, L.

Evans of Parkside, L.

Beaumont of Whitley, L.

Evans of Temple Guiting, L.

Berkeley, L.

Farrington of Ribbleton, B.

Bhattacharyya, L.

Faulkner of Worcester, L.

Blackstone, B.

Filkin, L.

Bledisloe, V.

Finlay of Llandaff, B.

Borrie, L.

Gale, B.

Bragg, L.

Gibson of Market Rasen, B.

Brooke of Alverthorpe, L.

Giddens, L.

Brookeborough, V.

Gilbert, L.

Brookman, L.

Golding, B.

Burlison, L.

Goldsmith, L.

Campbell-Savours, L.

Goodhart, L.

Carter, L.

Gordon of Strathblane, L.

Carter of Coles, L.

Goudie, B.

Christopher, L.

Greengross, B.

Clarke of Hampstead, L.

Greenway, L.

Clement-Jones, L.

Griffiths of Burry Port, L.

715

Grocott, L. [Teller]

Patel of Blackburn, L.

Harris of Haringey, L.

Pendry, L.

Harris of Richmond, B.

Pitkeathley, B.

Harrison, L.

Plant of Highfield, L.

Hart of Chilton, L.

Prys-Davies, L.

Haskins, L.

Radice, L.

Haworth, L.

Ramsay of Cartvale, B.

Henig, B.

Razzall, L.

Hilton of Eggardon, B.

Rendell of Babergh, B.

Hogg of Cumbernauld, L.

Renwick of Clifton, L.

Hollis of Heigham, B.

Richard, L.

Holme of Cheltenham, L.

Roberts of Llandudno, L.

Hunt of Kings Heath, L.

Rodgers of Quarry Bank,L.

Janner of Braunstone, L.

Rogan, L.

Jay of Paddington, B.

Roper, L.

Jones, L.

Rosser, L.

Judd, L.

Royall of Blaisdon, B.

Kilclooney, L.

Russell-Johnston, L.

King of West Bromwich, L.

St. John of Bletso, L.

Kirkhill, L.

Sandberg, L.

Lea of Crondall, L.

Sawyer, L.

Leitch, L.

Scotland of Asthal, B.

Lester of Herne Hill, L.

Sheldon, L.

Lipsey, L.

Shutt of Greetland, L.

Livsey of Talgarth, L.

Simon, V.

Lofthouse of Pontefract, L.

Smith of Leigh, L.

Ludford, B.

Stern, B.

McDonagh, B.

Stone of Blackheath, L.

Macdonald of Tradeston, L.

Sutherland of Houndwood, L.

McIntosh of Hudnall, B.

Symons of Vernham Dean, B.

MacKenzie of Culkein, L.

Taylor of Blackburn, L.

Mackenzie of Framwellgate, L.

Temple-Morris, L.

McKenzie of Luton, L.

Thomas of Gresford, L.

Maclennan of Rogart, L.

Tomlinson, L.

Maddock, B.

Tordoff, L.

Mallalieu, B.

Triesman, L.

Mar and Kellie, E.

Truscott, L.

Masham of Ilton, B.

Tunnicliffe, L.

Mason of Barnsley, L.

Turnberg, L.

Maxton, L.

Wallace of Saltaire, L.

Merlyn-Rees, L.

Walmsley, B.

Michie of Gallanach, B.

Walton of Detchant, L.

Mitchell, L.

Warner, L.

Monson, L.

Warwick of Undercliffe, B.

Morgan, L.

Watson of Richmond, L.

Morgan of Drefelin, B.

Whitaker, B.

Morris of Aberavon, L.

Whitty, L.

Northover, B.

Wilkins, B.

Oakeshott of Seagrove Bay, L.

Williams of Elvel, L.

O'Neill of Bengarve, B.

Williams of Horton, L.

Palmer, L.

Woolmer of Leeds, L.

Parekh, L.

Young of Norwood Green, L.

[*See col. 742]
Resolved in the negative, and amendment disagreed to accordingly.
6.28 p.m.
[Amendments Nos. 54 to 56 not moved.]
Lord Kingslandmoved Amendment No. 57:
Page 7, line 40, leave out "inhibit the allaying of" and insert "cause"
The noble Lord said: My Lords, the Minister sent me a letter about this amendment which I have read but not clearly understood. I continue to adhere to the view that my amendment would have no effect on the substance of the matter. It is no more nor less than a more elegant way of expression. I beg to move.
Baroness Ashton of Upholland: My Lords, I am desperately sorry that my letter to the noble Lord did
716
not do the trick. In our discussions around Clause 17, we are looking at when a chairman or Minister is considering issuing a restriction notice balancing up different factors. The factor that will usually weigh heavily in favour of disclosure is the one affected by this amendment:
"the extent to which any restriction on attendance, disclosure or publication might inhibit the allaying of public concern".
I will not repeat everything that I said in Grand Committee. I appreciate that the provision is not the most elegant of phrases, but I believe that it is the most appropriate. Of course, as the noble Lord would expect, I have gone back and checked his amendment to see whether it would have the same effect or whether there was a more elegant way of describing the provision. My deliberations have resulted in my view that we have indeed got the right phrase.
As I said in my letter to the noble Lord, what we are seeking to do with an inquiry is to allay public concern. Whatever the event that has triggered the particular need for an inquiry, our objective is to allay public concern. There may be other objectives, but that is the central concern. Therefore, if one looks at the factors that weigh around the disclosure, one must consider that a restriction on attendance would inhibit the allaying of that public concern. So it links back to the purpose of an inquiry, which is precisely to allay that concern. If withholding material or issuing a restriction will inhibit that process, that is a good argument for not imposing it. That is why we believe that the wording in the clause is more appropriate.
6.30 p.m.
With regard to Amendment No. 58, when deciding whether it is in the public interest to issue a restriction notice or order, it makes sense for the Minister or chairman to have regard to any risk of harm or damage that could be caused if the information was made public. The effect of the amendment proposed by the noble Lord, Lord Kingsland, would be to remove the requirement for the Minister or chairman to have regard to the risks caused by disclosure, and instead to introduce a new requirement to have regard to the risk of harm that could be caused by not publishing the information. Given the definition of "harm or damage" in subsection (5), we do not believe that that would make a lot of sense in most cases.
We have seen from past experience that some inquiries can proceed most effectively, and ultimately allay public concern, with some restrictions on public access. We do not want to force inquiries to abandon the types of effective and legitimate semi-private models that have been developed by the Department of Health, for example, when those models have proved to work well. So Clause 17 allows those types of procedures to be followed, if they can be justified. The starting point is always that there should be full public access but, at the end of the day, if the inquiry will be faster, more effective or even less costly in private, and will still deliver a valuable and widely accepted report, we should not rule out that option.

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Clause 17 provides that the Minister or chairman should consider the extent to which a restriction would improve the efficiency or effectiveness of the inquiry or reduce costs. The amendment proposed by the noble Lord, Lord Kingsland, would remove that option. I would be concerned that such a change could hamper the ability of the Minister or chairman to ensure that an inquiry takes the most effective form. For that reason, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Kingsland: My Lords, as I said, I do not agree that my amendment would have the effect that the Minister claims. I believe that it would simply more felicitously express what the Minister seeks to express herself. Since the matter does not go to the substance of the clause. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 58 to 60 not moved.]
Lord Kingslandmoved Amendment No. 61:
Page 8, line 14, at end insert—
"( ) In proceeding under this section, the chairman must start from the presumption that public access should not be restricted."
The noble Lord said: My Lords, this amendment is about the presumption that public access should not be restricted. In Grand Committee on 19 January the Minister said:
"My notes state that I accept that the presumption would be even more apparent if we started with subsection (6) and then followed it with subsections on restrictions, but it does not say in my notes that I shall therefore go away and rewrite the clause. I shall reconsider the matter but the amendment does no more than is already in the Bill". —[Official Report, 19/1/05; col. GC 290.]
The Minister was kind enough to say that she would reconsider the matter. She accepts that the presumption would be even more apparent if the clause had started with subsection (6). I note that the Government have not tabled an amendment at this stage on the matter. Does that mean that the Minister is not prepared to move on the issue at all? I beg to move.
Baroness Ashton of Upholland: My Lords, I agree with the noble Lord, as I did in Committee, that the starting point for inquiries must be full public access. What I thought to do with Amendment No. 52, which has been accepted, was to draw out the parts of Clause 17 on public access and put them in a separate clause beforehand to make it even clearer that public access is the starting point. I hoped that in doing that I had kept my promise about making the matter even clearer. Perhaps I may ask the noble Lord to reflect on that fact and tell me if he feels that I have failed. But it was partly to keep the promise to him that I have done what I did and inserted the new clause after Clause 16, in Amendment No. 52. I hope that he will feel able to withdraw his amendment on that basis.
Lord Kingsland: My Lords, I am most grateful to the Minister for drawing our attention to that amendment, which of course I have seen. I must say that it did not immediately strike me as having the
718
effect that she says it has, but I shall go away and reflect and if necessary return to the matter on Third Reading. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ashton of Uphollandmoved Amendment No. 62:
Page 8, line 15, leave out subsections (6) and (7).
The Deputy Speaker (Baroness Fookes): My Lords, I remind the House that if this amendment is agreed to. I cannot then call Amendment No. 63 because of pre-emption.
On Question, amendment agreed to.
[Amendments Nos. 63 and 64 not moved.]
Clause 18 [Further provisions about restriction notices and orders]:
Lord Goodhartmoved Amendment No. 65:
Page 8, line 40, leave out subsection (5).
The noble Lord said: My Lords, in moving Amendment No. 65 I shall speak to Amendments Nos. 68 and 69.
This group of amendments raises another freedom of information issue. Under the Bill as it is now drafted, restrictions on the release of information under a restriction order or notice remain in force for 30 years from the end of the inquiry unless revoked in the interval by the Minister. Our amendments would bring the restriction order or notice to an end at the end of the inquiry so that disclosure thereafter is governed by the Freedom of Information Act 2000 and remove those parts of Clause 18 that apply only after the end of the inquiry.
Government Amendment No. 67, to a considerable though not complete extent, achieves that result. But that amendment, unlike ours, does not remove subsection (5), which provides that restrictions may continue in force indefinitely. It seems therefore that a restriction order may apply to an individual witness after the end of an inquiry, even though it does not apply to a public authority, because of Amendment No. 67.
Could, therefore, a restriction order be applied to prevent a witness repeating to the media his own evidence to the inquiry? What would be the justification for that if the Official Secrets Act 1989 did not apply? Can an indefinite restriction order be justified under Article 10 of the ECHR? Should some provision be made, short of judicial review, for a person subject to a restriction order or notice to challenge it? I am sorry if my questions have caused some consternation. I beg to move.
The Deputy Speaker: My Lords, I remind the House that if the amendment is agreed to, I cannot call Amendment No. 66 because of pre-emption.
Baroness Ashton of Upholland: My Lords, I fully agree with the noble Lord, Lord Goodhart, that restriction

719
notices and orders should not prevent the disclosure of information from inquiry records under the Freedom of Information Act. That has always been our policy. The original draft of the Bill achieved that, but some modifications are needed if the exemption in Section 32 of the Freedom of Information Act is not going to apply.
Government Amendments Nos. 66 and 67 ensure that restriction notices and orders will not apply to any information held by a public authority once an inquiry is over. I do not agree that it is right to go further than that and stop all restriction notices and orders at the end of an inquiry. Restrictions have an important role quite separate from inquiry records. They can be vital in protecting sensitive or private information, by preventing people who have heard it as a result of the inquiry from passing it on. There is no intention that someone who gives evidence to the inquiry could not repeat that. Article 10 would, indeed, be engaged and apply under those circumstances.
As I indicated during the Grand Committee sessions, I have also brought forward Amendment No. 70 to ensure that a Minister could not vary a restriction notice or order in such a way as to make it more restrictive. I hope that answers the point made by the noble Lord, Lord Goodhart, and that he will therefore feel able to withdraw the amendment.
Lord Goodhart: My Lords, as I understand it, therefore, the position is that a restriction order, if it continued after the end of the inquiry, would engage, or potentially engage, Article 10. I refer to the Minister's answer to the inquiry of my noble friend Lord Lester. The retention of at any rate part of subsection (5) would not prevent information being disclosed where there was no justification under Article 10 for keeping it secret. While I am a little concerned that that is not in the Bill as I think it may give people a misleading impression of the position, nevertheless I am prepared to accept that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ashton of Uphollandmoved Amendment No. 66:
Page 8, line 41, after "documents" insert "("disclosure restrictions")"
On Question, amendment agreed to.
Baroness Ashton of Uphollandmoved Amendment No. 67:
Page 9, line 1, leave out subsection (6) and insert—
"( ) After the end of the inquiry, disclosure restrictions do not apply to a public authority, or a Scottish public authority, in relation to information held by the authority otherwise than as a result of the breach of any such restrictions."
The Deputy Speaker: My Lords, if this amendment is agreed to, I cannot then call Amendment No. 68 by reason of pre-emption.
On Question, amendment agreed to.
[Amendment No. 68 not moved.]
[Amendment No. 69 not moved]
Baroness Ashton of Uphollandmoved Amendment No. 70:
Page 9, line 8, leave out from "suitable" to end of line 9 and insert—
"(a) revoke a restriction order or restriction notice containing disclosure restrictions that are still in force, or
(b) vary it so as to remove or relax any of the restrictions."
On Question, amendment agreed to.
Clause 19 [Powers of chairman to require production of evidence etc]:
Baroness Ashton of Uphollandmoved Amendment No. 71:
Page 9, line 22, after "inquiry" insert "panel"
The noble Baroness said: My Lords, in moving Amendment No. 71, I wish to speak also to Amendments Nos. 95, 96, 97 and 102. These amendments are a set of clarifications. They make it absolutely plain that these references to the "inquiry" are references to the inquiry panel or those working on its behalf. We felt it was appropriate to make these amendments to ensure that no confusion is caused. I beg to move.
On Question, amendment agreed to.
Lord Goodhartmoved Amendment No. 72:
Page 9, line 32, leave out from "section," to end of line 33 and insert—
"( ) his evidence, or the production of any documents or things which he is required to produce by the notice, would not give any material assistance to the inquiry, or
( ) the burden of producing any document or thing which he is required to produce by the notice would be disproportionate to the assistance likely to he given to the inquiry by their production,"
The noble Lord said: My Lords, in moving Amendment No. 72, I wish to speak also to Amendment No. 74.
The order in a court case for disclosure of documents is a powerful order made by a judge and perhaps involving time and expense to the person against whom the order is made. Orders will not normally be made for fishing expeditions; that is, a trawl through documents to see if anything unexpected but helpful turns up. Production orders may be made in inquiries by a chairman who is not a lawyer and not familiar with the law on disclosure. It seems to us that the chairman should be given some guidelines on the circumstances in which the order could be made.
The Bill as drafted applies if a person,
"cannot reasonably be expected to comply with such a notice".
That is a vague phrase and could be regarded as being a high hurdle to get over. It suggests, to my mind at any rate, that only great physical difficulty, or something like it, in producing the documents would suffice.
Our amendments provided that there should be two tests for objecting to an order. One is that the documents requested were irrelevant and therefore could not assist the inquiry in any way. The second is that while

721
documents might have limited relevance, the burden of producing them would be disproportionate to the assistance which their production would provide to the inquiry.
The Government did not accept those but have come back with an alternative formula in Amendment No. 73. This seems to impose a test which constitutes a lower hurdle than Clause 19(4) as it now stands. Does the Minister believe that the new amendment is sufficient to prevent fishing expeditions and a disproportionate burden on the person against whom a disclosure order is sought? I beg to move.
The Deputy Speaker: My Lords, if this amendment is accepted, I cannot call Amendment No. 73 by reason of pre-emption.
6.45 p.m.
Baroness Ashton of Upholland: My Lords, I agree completely with the noble Lord, Lord Goodhart, that it is important to ensure that the chairman does not use the powers of compulsion in relation to information that is not necessary, which could lead to undue demands on individuals.
I accept that subsection (4) of Clause 19 might not adequately cover the situation in which an inquiry chairman asked for irrelevant material—the fishing expedition—because it focused more on the practical difficulties of obtaining that material.
Government Amendment No. 73 has exactly the same purpose as Amendment No. 72 in the name of the noble Lord, Lord Goodhart. The noble Lord will know that I try to accept amendments but sometimes the wording has to be rewritten. As I say, my notes say that government Amendment No. 73 has exactly the same purpose as Amendment No. 72, which I hope allays the noble Lord's concern. Amendment No. 73 allows individuals to claim that it is not reasonable "in all the circumstances" to require them to produce evidence. That will cover practical difficulties, but will also cover the situation in which the evidence will not be of material assistance to the inquiry. It will also cover any other unforeseen situation in which the use of powers of compulsion would be unreasonable, so it goes a little further than the noble Lord's amendment. I hope that that answers the noble Lord's concern and that he feels able to withdraw his amendment in favour of government Amendment No. 73.
Lord Goodhart: My Lords, I am very grateful to the Minister for that reply. I am certainly very happy to accept her explanation of the intention of the government amendment. Therefore, I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ashton of Uphollandmoved Amendment No. 73:
Page 9, line 33, leave out "he cannot reasonably be expected" and insert "it is not reasonable in all the circumstances to require him"
722
The noble Baroness said: My Lords, this amendment has already been spoken to. I beg to move.
On Question, amendment agreed to.
[Amendment No. 74 not moved.]
Clause 21 [Risk of damage to the economy]:
Lord Goodhartmoved Amendment No. 75:
Page 10, line 15, leave out from "in" to end of line 17 and insert "avoiding a risk of damage to the economy outweighs the public interest in the information being revealed"
The noble Lord said: My Lords, in moving Amendment No. 75, I wish to speak also to Amendment No. 76. These two amendments represent the only respect in which the Government have not broadly accepted the freedom of information arguments which we put forward in Grand Committee.
Amendment No. 75 would reverse the outcome which would happen under the Freedom of Information Act where there is an equal balance between public interest in disclosure and the public interest in refusing disclosure. Under Section 2 of the Freedom of Information Act 2000, where there is an equal balance, there is to be disclosure. The same principle should apply under Clause 21.
However, Amendment No. 76, which of the two amendments I prefer, raises a more fundamental question and seeks to leave out Clause 21. Why is Clause 21 necessary? The Crown, or the other objector, can make a case either to the Minister, or to the chairman of the inquiry, for the imposition of a restriction order or notice on the evidence that the relevant witnesses are going to give. Damage to the economy is a ground for an exemption, although not an absolute exemption, under Section 29 of the Freedom of Information Act.
Clause 17(5) of this Bill provides that damage to the economic interests of the United Kingdom is a matter to which the Minister or chairman must have regard in deciding whether to make a restriction order or notice. What on earth does Clause 21 add? Why are the Government objecting to its removal? It seems to me to be simply surplus. The interest of the Bank of England, the Treasury, or whoever else is concerned here with the economy of the United Kingdom, is perfectly adequately met by the other provisions in the Bill. I beg to move.
Lord Kingsland: My Lords, I simply add that we entirely share the views that have just been expressed by the noble Lord, Lord Goodhart.
Baroness Ashton of Upholland: My Lords, I agree that when a person making the assessment of public interest is fully informed, information should be released when public interests are equal, which is the issue raised by the noble Lord, Lord Goodhart, around the Freedom of Information Act.
However, inquiry panels would not be fully informed. European law prevents tripartite authorities—that is, the Treasury, the Bank of England, and the Financial Services Authority—from passing some information to inquiry panels, including in many cases information needed to assess where the balance of the public interest

723
lies. Because inquiry panels would often be assessing public interests while unaware of the true extent of the likely damage to the economy, it is right that information should be released to inquiry panels only when public interest in disclosure clearly outweighs public interest in avoiding the risk of damaging the economy.
I reassure the noble Lord that authorities would not make an application under Clause 21 when information that is at hand would be disclosed under the Freedom of Information Act. In other words, that is when the Treasury has assessed balancing public interests, while fully informed of all relevant facts, and has concluded that the public interest in avoiding damage to the economy does not outweigh the public interest in disclosure.
The noble Lord is particularly concerned as to why we need Clause 21, and what it adds to what we already have. I have tried to indicate that it is a different and a tougher test than the test of disclosure in Clause 17, and it is deliberately more general than that test. For example, the matters to which the panel must have regard under Clause 21 are not stated as they are in Clause 17. We recognise that when assessing the Clause 21 submissions, the panel will have incomplete background information, which is because Community law has restrictions that do not allow tripartite authorities to release all the relevant background information. We have it here as an additional safeguard to Clause 17 because of the different circumstances that apply; and that is the reason for it.
Where you have an informed body, where it is weighed up—despite my attempts to get this completely wrong in Committee—the balance is in favour of the Freedom of Information Act requirements. Where we know that a body will not have complete information, we have looked at that balance and thought again. Where we recognise that because of the nature of the disclosure regime that would apply around Community law, it is right and proper to have greater clarity in the Bill. Clause 21 enables these tripartite bodies to go to the panel and make a submission, and it will be for the panel to determine the outcome of that submission.
I hope that is helpful to the noble Lord, and I am happy to discuss it further with him. On that basis, at least for the moment, he may be able to withdraw his amendment.
Lord Goodhart: My Lords, I am not entirely satisfied with the response. Clause 21 states:
"The panel must not permit or require the information to be revealed, or cause it to be revealed, unless satisfied that the public interest in the information being revealed outweighs the public interest in avoiding the risk of damage to the economy".
Subsection (4) states:
"'Revealed' means revealed to anyone who is not a member of the inquiry panel".
My assumption is that the Crown, the FSA, or the Bank of England, is coming to the inquiry with information that it is going to disclose to the inquiry, so the panel does in fact see it. Therefore, the panel is in a perfectly good position. It is the panel that must take the decision as to whether it is satisfied about the balance of the public interest. It is not the Crown, the
724
FSA, or the Bank of England that takes that final decision. Really, I still find it extremely difficult to see how this adds anything to the protections that are already there—the right to go and ask the chairman for a restriction notice.
However, I am happy to take up the proposal from the Minister to discuss the matter further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 76 not moved.]
Clause 22 [Submission of reports]:
[Amendment No. 77 not moved.]
Clause 23 [Publication of reports]:
Lord Kingslandmoved Amendment No. 78:
Page 11, line 6, leave out "Minister, or the chairman if subsection (2) applies," and insert "chairman"
The noble Lord said: My Lords, the substance of this amendment has been dealt with in considerable detail both on Second Reading and in Committee. I can therefore be extremely terse.
Essentially, this amendment is directed against the power of the Minister to determine what parts of a public inquiry report can be published. The noble Baroness well knows that it is my view that the contents of the final report should be a matter entirely for the chairman; otherwise we will be in a situation whereby a chairman, before he agrees the final version, will have to check it with the Minister. My preoccupations, as the noble Baroness well knows, are especially with Clause 23(4)(b) and the additional criteria set out in subsection (5)(a) and (5)(b). I beg to move.
7 p.m.
Baroness Ashton of Upholland: My Lords, Clause 23 is designed to reflect what have been differing practices in past inquiries. Generally, an inquiry submits its report to the Minister, and the Minister then publishes the report. That has certainly been the practice for many past inquiries. The clause allows for the chairman to publish instead, so that can be done in cases where it is more appropriate.
Until now, there has been no general statutory obligation to publish inquiry reports, and therefore no limit on the types of information that could be withheld. Yet we have still seen the vast majority of inquiry reports published in full, even for some inquiries—the Penrose inquiry into Equitable Life, for example—that have been wholly private. We fully expect that to be the case for future inquiries as well.
We have given only limited powers to withhold information from publication. We shall shortly come to a government amendment that ensures that those powers could not be used to prevent disclosure of any information under the Freedom of Information Act, so there would be clear limitations to them. Under that amendment, a person could make a request under the Act for any information that had been withheld from a report. As a result of the usual operation of the Act,

725
there would then be a right of appeal to the Information Commissioner. Any decision to withhold information is, of course, reviewable by the courts.
That is the principle behind the clause—to bring into the Bill the ability to publish a report, to make clear the role of the Minister and the issues concerning publication. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Kingsland: My Lords, I am most grateful for the noble Baroness's response. Her amendment, while welcome, does not go far enough to meet my central concern. However, I shall not put the amendment to the test tonight, but shall go away and reflect on whether I can come up with a further amendment that might take the noble Baroness a little further down the road that I want her to take, without perhaps going as far as this amendment. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 79 to 85 not moved.]
Baroness Ashton of Uphollandmoved Amendment No. 86:
Page 11, line 32, at end insert—
"( ) Subsection (4)(b) does not affect any obligation of the Minister, or any other public authority or Scottish public authority, that may arise under the Freedom of Information Act 2000 (c. 36) or the Freedom of Information (Scotland) Act 2002 (asp 13)."
On Question, amendment agreed to.
[Amendments Nos. 87 and 88 not moved.]
Baroness Ashton of Uphollandmoved Amendment No. 89:
After Clause 23, insert the following new clause—
"LAYING OF REPORTS BEFORE PARLIAMENT OR ASSEMBLY
Whatever is required to be published under section 23 must be laid by the Minister, either at the time of publication or as soon afterwards as is reasonably practicable, before the relevant Parliament or Assembly."
The noble Baroness said: My Lords, the amendment introduces a new clause to ensure that the final published report must be laid before both Houses of Parliament. The noble Lord, Lord Kingsland, proposed a similar amendment in Grand Committee that I promised to take away and consider further. Amendment No. 89 supplements a number of other amendments designed to provide greater parliamentary involvement in the inquiry process. It also provides parallel requirements for the devolved administrations to lay reports before their own parliaments or assemblies. I beg to move.
Lord Kingsland: My Lords, I simply express my gratitude to the noble Baroness.
On Question, amendment agreed to.
Lord Goodhartmoved Amendment No. 90:
After Clause 23, insert the following new clause—
"INQUIRIES INTO LOSS OF LIFE

(1) Where an inquiry involves investigation into loss of life, this Act shall apply with the following modifications.

(2) No restriction notice may be given by a Minister.

(3) It is the duty of the chairman to arrange for reports of the inquiry to be published.

(4) Subsection (1) of section 8 shall have effect as if the words following "party" had been omitted.

(5) Subsection (4) of section 37 shall not apply to an award of amounts in respect of legal representation which is reasonably required for the representation of family members of persons whose deaths are a subject of the inquiry."

The noble Lord said: My Lords, this is a new amendment concerning a matter not raised in Grand Committee. It is based on the report of the Joint Committee on Human Rights on the Bill, which was not published until after the Bill had finished its time in Grand Committee.
The Joint Committee was concerned whether the Bill satisfied the requirements of Article 2 of the European Convention on Human Rights in cases of inquiries into loss of life. Under the law as laid down by the European Court of Human Rights and subsequently applied by the courts of the United Kingdom, an investigation under Article 2 must be independent of the Government.
The Joint Committee was concerned whether a number of provisions in the Bill satisfied that test. Those provisions included: the Minister's power to make a restriction notice; the Minister's power to decide what material in the report is to be withheld from publication; the possible appointment to a panel of a member having a direct interest in the subject matter or a close association with an interested party; and the absence of any express reference to providing legal representation for families of those whose deaths were the subject of the inquiry.
Amendment No. 90 is intended to cover those points. Does the Minister believe that the amendment is necessary to meet the concerns of the Joint Committee on Human Rights? If not, how can those concerns be met? I beg to move.
Baroness Ashton of Upholland: My Lords, I am grateful to the noble Lord. He will have seen me scrabbling around on the Front Bench, which was to find a copy of my noble and learned friend's letter to Jean Corston, the chair of the Joint Committee on Human Rights. I hope that a copy found its way to the noble Lord today. He may want to discuss issues regarding that letter with me before Third Reading, which I shall be happy to pick up. However, it has only just arrived with me too, so I am not as up to speed with it as I would like. I shall try to deal with the amendment and see whether that will help him as well.
The noble Lord will not be surprised if I say that the majority of notable inquiries have been established in recent years to investigate circumstances in which loss of life has tragically occurred in some way. In some cases Article 2 has been engaged, but in others it has not. For the reasons that he outlined, he has proposed the

727
amendment so that there should be a separate provision for inquiries involving loss of life. We are clear that the inquiries under the Bill must be capable of contributing to the discharge of the state's obligation, under Article 2 of the European Convention on Human Rights, to provide an effective investigation into a death the circumstances of which suggest state involvement in some way. Such inquiries must meet certain standards of independence and public scrutiny to meet the criterion of being "effective".
As I said, my noble and learned friend has written to the Joint Committee on that. I hope that the noble Lord, Lord Kingsland, has a copy of the letter, and I will ensure that other noble Lords who have participated today also receive copies. We are satisfied that the Bill enables us to establish inquiries that will comply with the requirement to hold an effective investigation where Article 2 is engaged. As the noble Lord, Lord Goodhart, knows well, both the Government and the inquiry panel will be public authorities for the purposes of the Human Rights Act and will be under a duty to exercise their powers under the Bill in a way compatible with Article 2. There is no need for an amendment specifically to require them to do so.
I am concerned that the amendment—it goes much wider than the point that the noble Lord seeks to address—would cause some confusion in the way in which the provisions would need to be applied. I shall not go into detail, because I do not think that that was his intention; he seeks to ensure that the issues concerning Article 2 are effectively dealt with, as opposed to trying to set up separate inquiry routes, unless I have completely misread what he seeks. Our contention is that the matter is satisfied in the Bill. I hope that the noble Lord will have the opportunity to look at the letter from my noble and learned friend, and perhaps to discuss with him or me any other issues that he would like to raise.
Lord Goodhart: My Lords, I have a copy of the letter dated 6 February which I think is the one to which the Minister is referring. It gives me a good deal of reassurance as to what is necessary. The matter has been of particular concern in Northern Ireland where there are issues regarding inquiries into deaths. Such inquiries should be conducted in a way that satisfies the criteria of Article 2. I feel considerably reassured, but if I have further concerns I shall raise them before Third Reading. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 25 [Scottish inquiries]:
Baroness Ashton of Uphollandmoved Amendment No. 91:
Page 13, line 4, leave out from "reference" to end of line and insert "of the inquiry must not require it"
On Question, amendment agreed to.
Clause 26 [Welsh inquiries]:
Baroness Ashton of Uphollandmoved Amendment No. 92:
Page 13, line 21, leave out from "reference" to end of line and insert "of the inquiry must not require it"
On Question, amendment agreed to.
Clause 27 [Northern Ireland inquiries]:
Baroness Ashton of Uphollandmoved Amendment No. 93:
Page 13, line 38, leave out from "reference" to end of line 39 and insert "of the inquiry must not require it"
On Question, amendment agreed to.
Clause 29 [Joint inquiries]:
Baroness Ashton of Uphollandmoved Amendment No. 94:
Page 15, line 24, at end insert ", or section 31,"
The noble Baroness said: My Lords, this is a minor amendment relating to joint inquiries. It ensures that when there is a change of responsibility for an inquiry under Clause 31 that results in two or more Ministers being responsible, the inquiry is recognised as a joint inquiry. I beg to move.
On Question, amendment agreed to.
Clause 32 [Offences]:
Baroness Ashton of Uphollandmoved Amendments Nos. 95 to 97:
Page 16, line 30, after "inquiry" insert "panel"
Page 16, line 32, after "inquiry" insert "panel"
Page 16, line 39, after "inquiry" insert "panel"
On Question, amendments agreed to.
7.15 p.m.
Clause 33 [Enforcement by High Court or Court of Session]:
Lord Borriemoved Amendment No. 98:
Page 17, line 18, at end insert "or
(c) does any other thing which would, if the inquiry had been a court of law having power to commit for contempt, have been contempt of that court,"
The noble Lord said: My Lords, the purpose of the amendment is to replicate what appears currently in Section 1 of the Tribunals of Inquiry (Evidence) Act 1921. Amendment No. 99 is intended to replicate Section 20 of the Contempt of Court Act 1981. Both are amendments to Clause 33, which is concerned with the enforcement of earlier Clauses 17 and 19, which empower the chairman of the inquiry to require by notice someone to attend and give evidence or to produce documents of the inquiry, and to impose restrictions on attendance at the inquiry or restrictions on disclosure of evidence or documents.
The means of enforcement provided by Clause 33 are to enable the chairman to certify a failure to comply with the requirements to the High Court, or the Court of Session in Scotland. The court then has

729
power, after hearing evidence or representations, to order enforcement as if the matter had arisen in court proceedings.
The 1921 Act contained similar provisions, but they were broader than what is currently in Clause 33 of the Bill. Indeed, the 1921 Act covered anything that would amount to contempt of court if the tribunal inquiry had been a court of law. My amendment would replicate that broad provision of the 1921 Act and bring it into the Bill. As it stands the Bill does not cover the whole gamut of conduct that may distort or inhibit the ability of the inquiry to do its job, which is to get at the truth of the matter being inquired into. That is just as important for an inquiry held in future under the Bill as it is for any court of law proceedings.
I note that Clause 32(2) covers another specific kind of conduct that would amount to contempt if it related to legal proceedings—doing something intended or believed likely to have the effect of,
"distorting or otherwise altering any evidence",
or preventing evidence being given. I suppose that that would cover the intimidation of witnesses so that relevant evidence may be withheld from the inquiry. It also no doubt covers bribery of witnesses so that evidence may he withheld, made up or tailored to suit the interests of the provider of the bribe. I should be glad if my noble friend would give me reassurance on that.
I am not sure whether Clause 32(2) or any other provision of the Bill would cover a newspaper article or television documentary that might unduly influence witnesses at the inquiry or, indeed, members of the inquiry, so disabling it from getting at the truth.
I recall that that was a problem for the Edmund Davies inquiry into the Aberfan disaster. Lord Salmon said in 1969 that the law of contempt should apply, albeit in a modified form, to inquiries. The trouble is that potential witnesses may have previously been cross-examined by expert interviewers—say, on television—and become committed to a version of the story that they then told, and perhaps were paid for telling, before the official inquiry even began.
The Bill picks selectively on only some aspects of the law of contempt to apply to inquiries. As it does not apply more comprehensively it seems clear that if abuse or, more seriously, missiles are thrown at the inquiry panel, or if one of the panel is assaulted, such contempt—which would be contempt in a court—is not covered. Sadly, I do not think that the potentiality for violence in public bodies has lessened since 1921, as demonstrated by the attack a few years ago—a precedent when it occurred—on a woman judge at the Old Bailey. Many additional security provisions have now had to be made for courts of law. I do not think that inquiry panels are immune in this day and age from some attack.
730
Of course, there is always the possibility of a prosecution or a civil action by a member of the inquiry panel for a common assault. But the possibility of a finding of contempt, which has a particular resonance, is a better deterrent.
Inquiries under the Bill, rather than more informal inquiries which we have discussed, will be instituted only when there is public concern. That is right at the beginning of the Bill. Setting up an inquiry will not be an everyday occurrence. Inquiries need to be as free from interference as a court of law. Certainly they are not courts of law, as has been said many times in our debates. They are not adversarial but investigative. If they are worth setting up to look into a matter of public concern, their proceedings should be as well protected as those of courts of law, irrespective of whether the chairman of the tribunal or the inquiry is a judge, a legal figure or someone else. That seems to be irrelevant to the need to protect the inquiry and its integrity.
There is nothing automatic about Clause 33 either as it stands or as I propose.
The chairman is given discretionary powers. If he certifies that a matter should go to the High Court because it is sufficiently serious, that court also has discretion as to the powers of enforcement.
In relation to Amendment No. 99, which is grouped with Amendment No. 98, I have already said that this in effect replicates Section 20 of the Contempt of Court Act 1981, applying the 1981 Act to tribunals of inquiry. The 1981 Act in general imposes a strict liability involving a fine or imprisonment—up to two years' maximum—in respect of publications which create a substantial risk of serious prejudice to the ability of a court, or of course an inquiry, to do its job.
General discussion of the subject matter of an inquiry is not contempt under the Tribunals of Inquiry (Evidence) Act, if the risk of impediment or prejudice is merely incidental to that general discussion. The purpose of the two amendments is to enable inquiries set up under the Bill to be as free from dangerous interference with their proceedings as possible. I beg to move.
Baroness Ashton of Upholland: My Lords, I am very grateful to my noble friend for tabling these amendments and for the time that he has given me and my officials in talking through the issues. This is an issue that we gave significant consideration to when preparing the Bill. I understand why my noble friend has suggested it, but I do not believe that the changes are appropriate.
Contempt is a concept associated with the courtroom. Inquiries are not courts, which I know my noble friend accepts, but in recent times inquiries have moved away from a court-based model.
My noble friend will recall that in bringing forward the Bill we incorporated legislation from different areas in order to create a new comprehensive Bill. In doing so, we were conscious that the 1921 Act is exceptional in that it incorporates the law on contempt. Most modern inquiry legislation draws on the provisions of Section 250 of the

731
Local Government Act 1972, which does not include any provisions on contempt. Instead, Section 250 makes it a summary offence to fail to comply with an inquiry or to destroy or tamper with evidence. We opted for that approach in Clause 32(2).
The Bill has been influenced, as my noble friend pointed out, by the findings of the Salmon committee on contempt in 1969, which recommended that the law on contempt should apply in a narrower form to courts. While not replicating the concept of contempt, we have incorporated the committee's recommendations into the offences in Clause 32.
The committee felt that it was very important not to curtail media comment about the inquiry. However, it considered—and my noble friend was concerned about this area—whether some media interviews or articles could be intended or likely to prejudice the inquiry. The wording in Clause 32(2), which is similar to the Salmon committee's recommendation 4, is aimed at covering such situations. Inquiries therefore will still have the powers and protections they need to operate effectively without applying the law of contempt. My noble friend will probably be aware that there is a further problem with the amendment as a result of the different references to the "course of justice" and the "administration of justice" in the Contempt of Court Act. These are concepts which are key for court proceedings, but which do not make much sense in the context of inquiries which, as we have said many times in the passage of the Bill, are all about public confidence.
I hope on that basis that my noble friend will feel able to withdraw his amendment.
Lord Borrie: My Lords, I am most grateful for my noble friend the Minister's response. I understand more since I have had consultations with her and heard her speech this evening. The Government have considered these matters of interference with inquiry proceedings most carefully. I am particularly grateful to her for indicating that Clause 32(2) can properly be interpreted as covering certain forms of interference, such as television and press interviews with potential witnesses. I was and am concerned about that.
I still do not fully understand why all the provisions of the Tribunals of Inquiry (Evidence) Act 1921 were not included because there may be gaps, and who knows what types of interference with inquiry proceedings may emerge in future. It is a pity that for some of them certain discretionary powers will not be in the hands of the inquiry chairmen and on his reference in the hands of the High Court. I shall of course consider the Minister's words most carefully. For the moment, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendment No. 99 not moved.]
Clause 36 [Payment of inquiry expenses by Minister]:
Baroness Ashton of Uphollandmoved Amendment No. 100:
Page 18, line 25, leave out "reasonably"
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The noble Baroness said: My Lords, in moving Amendment No. 100, I shall speak also to government Amendments Nos. 104, 105 and 106.
Amendment No. 100 requires the Minister to meet all expenses, as opposed to all expenses "reasonably" incurred in holding the inquiry.
I am grateful to the noble Lords, Lord Goodhart and Lord Smith of Clifton, who tabled a similar amendment in Grand Committee. I undertook then to consider whether inclusion of the term "reasonably" in this context added anything to the Bill.
I recognise that the term raises questions about how "reasonably" might be defined and who would meet expenses considered unreasonable. There are other provisions in the Bill to safeguard costs that negate the need to qualify here what expenses the Minister must agree to pay. Therefore, the term "reasonably" serves no purpose.
Government Amendments Nos. 104, 105 and 106 clarify some of the arrangements for payment of expenses to witnesses. It is only fair that people asked to assist the inquiry by providing evidence can be given their travel and similar expenses in advance. In particular, as there are criminal sanctions as well as a civil enforcement procedure in the Bill for failing to comply with notices to attend, it cannot be right that an individual should be forced to expend his own money in order to avoid a criminal charge. Amendment No. 104 ensures that situation would not arise.
Amendments Nos. 105 and 106 ensure that the chairman always has the power to pay witness costs, although that power is subject to any qualifications and conditions imposed by the Minister. They remove the possibility under that current draft that the Minister could fail to notify the chairman that he has the power to pay any costs at all. I beg to move.
Lord Goodhart: My Lords, these amendments seem to me to be an improvement to the Bill. I am happy to welcome them.
On Question, amendment agreed to.
[Amendment No. 101 not moved.]
Baroness Ashton of Uphollandmoved Amendment No. 102:
Page 18, line 30, leave out "is acting outside its" and insert "panel is acting outside the inquiry's"
On Question, amendment agreed to.
[Amendment No. 103 not moved.]
Clause 37 [Expenses of witnesses etc]:
Baroness Ashton of Uphollandmoved Amendments Nos. 104 to 106:
Page 19, line 4, after "incurred" insert ", or to be incurred"
Page 19, line 15, leave out from "section" to "is" in line 16.
Page 19, line 17, at end insert "and notified by him to the chairman"
On Question, amendments agreed to.
Clause 38 [Rules]:
Baroness Ashton of Uphollandmoved Amendment No. 107:
Page 19. line 21, at end insert—
"(aa) the return or keeping, after the end of an inquiry, of documents given to or created by the inquiry;"
On Question, amendment agreed to.
Clause 40 [Interpretation]:
Baroness Ashton of Uphollandmoved Amendments Nos. 108 to 110:
Page 20. line 33, at end insert—
""public authority" has the same meaning as in the Freedom of Information Act 2000 (c. 36);"
Page 20, line 33, at end insert—
""the relevant Parliament or Assembly" means whichever of the following is or are applicable—

(a) in the case of an inquiry for which the Treasury is responsible, the House of Commons;

(b) in the case of an inquiry for which any other United Kingdom Minister is responsible, or one for which the Secretary of State exercising functions by virtue of section 42(2) is responsible, the House of Parliament of which that minister is a member;

(c) in the case of an inquiry for which the Scottish Ministers are responsible, the Scottish Parliament;

(d) in the case of an inquiry for which the National Assembly for Wales is responsible, that Assembly;

(e) in the case of an inquiry for which a Northern Ireland Minister is responsible, the Northern Ireland Assembly:"

Page 20, line 40, at end insert—
""Scottish public authority" has the same meaning as in the Freedom of Information (Scotland) Act 2002 (asp 13);"
On Question, amendments agreed to.
[Amendments Nos. 111 and 112 not moved.]
Schedule 2 [Minor and consequential amendments]:
Baroness Ashton of Uphollandmoved Amendment No. 113:
Page 27, line 10, leave out paragraph 14.
The noble Baroness said: My Lords, this amendment removes a consequential change to the Tribunals and Inquiries Act 1992, which make clear that inquiries under this Bill were outside the remit of the Council on Tribunals.
The amendment will not change the legal position. Inquiries under the Bill will not fall within the remit of the Council on Tribunals. The council's role extends only to inquiries which a Minister has a statutory duty to hold—like planning inquiries—and to inquiries where there is a statutory power to hold and that the Lord Chancellor has designated within its remit by order. Inquiries under the 1921 Act, for example, are not within the council's remit.
The amendment would leave open the option of designating these inquiries within the council's remit by order at a later date, if that were felt to be appropriate. I beg to move.
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On Question, amendment agreed to.
[Amendment No. 114 not moved.]
Clause 46 [Repeals and revocations]:
[Amendment No. 115 not moved.]
Schedule 3 [Repeals and revocations]:
Lord Kingslandmoved Amendment No. 116:
Leave out Schedule 3.
The noble Lord said: My Lords, this amendment refers to Schedule 3 and has been moved simply to give the noble Baroness the opportunity to make a statement about the relationship between Clauses 14 and 15 and Schedule 3.
As I understand it, towards the end of our previous proceedings, the noble Baroness stated that Clauses 14 and 15 referred solely to non-statutory inquiries. Subsequent correspondence with the noble Baroness revealed that their scope is somewhat wider than that. I believe that it covers some statutory inquiries that do not have powers of compulsion. I should be most grateful if the noble Baroness would confirm or otherwise that information. I beg to move.
Baroness Ashton of Upholland: My Lords, I am most grateful to the noble Lord, who will remember well the confusion that I got myself into at the end of Grand Committee. I will attempt to do precisely what the noble Lord wants.
Clause 14 could be used to convert statutory inquiries as well as non-statutory inquiries. I think that that is the essence of what the noble Lord wanted me to say. I am extremely grateful for the opportunity to put on the record that that is indeed what I meant.
Lord Kingsland: My Lords, I am most grateful to the noble Baroness. In those circumstances, I feel compelled to withdraw my amendment.
Amendment, by leave, withdrawn.

Mental Capacity Bill
7.30 p.m.
Baroness Ashton of Upholland: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Elton) in the Chair.]
Clause 41 [Codes of practice: procedure]:
[Amendments Nos. 172 to 177 not moved.]
Clause 41 agreed to.
Lord Alton of Liverpoolmoved Amendment No. 178:
After Clause 41, insert the following new clause—
"NOTIFICATION AND REPORTING OF DECISIONS

(1) The appropriate authority shall make provision by regulation for the maintenance of a record of all medical treatment decisions made by deputies and by donees of lasting powers of attorney, and the related information specified in subsection (5) below, and for that purpose the appropriate authority shall also make provision by regulation for the collection of such information from NHS bodies, local authorities and any other public bodies the appropriate authority shall stipulate.

(2) For the purposes of subsection (1) above it shall be the duty of such bodies from whom such information is to be collected, in accordance with the regulations prescribed in subsection (1) above, to maintain a record of any medical treatment decisions affecting any person in their care or for whom they are responsible where such decision is made by a deputy or by a donee of a lasting powers of attorney appointed under this Act, together with the related information specified in subection (5) below.

(3) The appropriate authority shall prepare and present a report on such medical treatment decisions and related information.

(4) The report shall be laid before Parliament and published before 31st December in each year.

(5) The report shall contain—

(a) a summary, by type of treatment, of medical treatment decisions made by deputies and donees of lasting powers of attorney within the reporting period, indicating—

(i) where such decisions resulted in the withdrawing and withholding of medical treatment;

(ii) where such decisions resulted in the withdrawing and withholding of life-sustaining treatment;

(iii) where such decisions were followed by a serious adverse event or reaction in relation to P within the meaning of Article 2, paragraph O of Directive 2001/20/EC;

(iv) where such decisions were followed by the disability or continuing disability of P;

(v) where such decisions were followed by the death of P;

(b) a summary of all applications to the Court in relation to those medical treatment decisions;

(c) a summary of all offences reported and convictions recorded in relation to those medical treatment decisions; and

(d) a summary of the cost to the National Health Service of legal proceedings arising out of any of those medical treatment decisions."

The noble Lord said: The amendment standing in my name and that of the noble Lord, Lord Brennan, and my noble friend Lady Masham of Ilton would insert a new clause that deals with the notification and reporting of decisions. The amendment is intended to provide a framework for monitoring decisions made by court-appointed deputies and attorneys.
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The Government are aware of the real fears about the powers that the Bill vests in proxy decision-makers, especially as regards end-of-life decision-making. A practical way of responding to those fears is to provide a framework within which Parliament can monitor the decisions being made by deputies and attorneys. I do not want to place a great burden on health authorities and I am conscious that people are already very busy, but most of the information that would be collected under the amendment is anyway in the public domain and would have to be collated. Perhaps the Minister will confirm that and tell us whether the amendment would require anything onerous that is not already being done.
The amendment would allay some of the fears that people have about the implications of the Bill. however much we have been able to address some of those concerns during our proceedings. For instance, trends and patterns could be observed so that if it appeared that decisions to withdraw life-sustaining treatment, especially artificial nutrition and hydration, were being made with increased frequency, further investigation could be conducted and abuses uncovered.
On the second day of Committee, on Thursday before last, the Minister announced that the Government would be bringing forward an amendment on Report to remove the power to make decisions relating to life-sustaining treatment from court-appointed deputies. I welcome that amendment; that is a positive step forward and I was very glad that the Government announced it. It goes some way to address the concerns that my amendment, Amendment No. 178, which was of course tabled before the government announcement, was intended to address.
However, I remain concerned about the lack of scrutiny to which the decisions of attorneys will be subject. Hence the amendment. The maintenance of a proper record comprising all the information set out in subsection (5) would allow Parliament effectively to police the legislation.
My amendment makes clear that the report laid before Parliament every year would need to contain the following information. First, there would be:
"a summary, by type of treatment, of medical treatmert decisions made by deputies and donees of lasting powers of attorney within the reporting period".
That would indicate, first,
"where such decisions resulted in the withdrawing and withholding of medical treatment";
secondly,
"where such decisions resulted in the withdrawing and withholding of life-sustaining treatment";
thirdly,
"where such decisions were followed by a serious adverse event or reaction in relation to P within the meaning of Article 2, paragraph O of Directive 2001/20/EC"—
that is the European directive defining what is a serious adverse reaction; fourthly,
"where such decisions were followed by disability or continuing disability of P";
and, fifthly,
"where such decisions were followed by the death of P".

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My amendment goes on to include, in paragraph (b),
"a summary of all applications to the court in relation to those medical treatment decisions";
in paragraph (c),
"a summary of all offences reported and convictions recorded in relation to those medical treatment decisions";
and, finally,
"a summary of the cost to the National Health Service of legal proceedings arising out of any of those medical treatment decisions".
I do not believe that the preparation and maintenance of such a record would place too onerous a requirement on attorneys, deputies or medical professionals.
This weekend, it was reported—some Members of the Committee will have seen the reports in the newspapers—that the Secretary of State for Health has sought permission from the Court of Appeal to intervene in the Leslie Burke appeal because of the cost implications to the NHS of granting patients the right to receive nutrition and hydration delivered by artificial means (ANH).That was a front page story in the Daily Mail headlined,
"Too costly to be kept alive".
It stated that the Secretary of State was involved in a row about terminally ill patients.
Having heard what we have from the noble Baroness and her noble friend during the course of our proceedings, I know that they will be able to lay those fears to rest. I hope that they will take this opportunity to do so because, needless to say, it has launched yet another avalanche of letters from people who are concerned about the Bill.
Nevertheless, helpfully, that highlights anxieties—especially, as we heard in Committee, from disabled people themselves. Some kind of reporting procedure on the lines outlined by myself, the noble Lord, Lord Brennan, and my noble friend Lady Masham in this amendment would give us the chance to monitor what happens after the Bill is enacted. If patients were granted the right to request and receive any medical treatment, such as dialysis or chemotherapy, that would have significant resource implications for the NHS. We are all aware of that.
However, ANH is not the same as that kind of treatment; it is a different matter. If the Government and the medical profession had not been so dogmatic about the classification of ANH as medical treatment, then vulnerable patients such as Leslie Burke would not have felt the need to go to court to be granted the right to receive adequate nutrition and hydration. In a sense, the Government have therefore created a rod for their own back.
I have to say that as a layman and not a medic the idea that patients could be denied ANH because of resource implications would cause me profound problems. It would be pretty scary, and I notice from the affirmation of the Ministers that they would share that view. For that reason alone, however, it is important to introduce to the Bill a notification and reporting system so that decisions
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can be recorded. In that way, if evidence emerged that resource considerations played a part in the provision of ANH or any other medical treatment to those who lack capacity, then action could be taken.
If, for instance, we saw a blip emerging in some part of the country, such as Stockport, action could be taken. Let us take the example that my noble friend Lady Masham gave earlier of the involvement of someone like Doctor Shipman. In such an area, if someone were using this legislation for purposes that were never intended, and if there were reporting every year on the basis for which I am arguing, it would rapidly become apparent and it would then be possible for the Government to do something about it. But if we do not collect the data we will never know, and we will not be in a position to take effective action. Without the notification and reporting mechanism that I propose there will be no effective way to verify whether the legislation is producing the promised benefits for those who lack capacity.
This is a very reasonable amendment. I hope that the Government will accept it. If they do not like its wording, I will be happy for them to come back with something better on Report. I beg to move.
Lord Walton of Detchant: The motivation underlying the amendment is unexceptionable. There are many issues arising out of the speech of my noble friend Lord Alton which make the amendment worth serious consideration. I agree wholly with his point about withdrawing food, fluid and nutrition from a sentient patient; under no circumstance would I contemplate it. As your Lordships' House has considered previously, and as the High Court and the Court of Appeal have considered, the issue that arises in relation to patients in a permanent vegetative state is totally different.
However, my concern is that, until the Government achieve their objective of computerising all medical records so that all information about decisions made on behalf of and for patients can be retrieved, the amendment could impose upon the staff of health authorities and others an intolerable burden which might be unacceptable. Already, doctors, nurses and other healthcare professionals in the NHS are under an increasing burden in reporting on issues relating to waiting lists and a huge number of other government initiatives. That takes them away from their primary concern of patient care.
My only concern, which I express in all conscience to my noble friend, is that if the amendment were agreed, until the full computerisation of medical records in the NHS has been achieved, it could impose on NHS staff an intolerable burden that might be impossible to fulfil.
Baroness Masham of Ilton: My Lords, I support my noble friend Lord Alton on this matter. We must think carefully about the problem of Shipman and the danger that patients can be in. There must be some provision. I look forward to the Minister's reply; I hope that it is a successful one.
Baroness Ashton of upholland: My Lords, I am very grateful to the noble Lord, Lord Alton, for giving me the opportunity to address briefly the Daily Mail article. I know that that is why the noble Lord raised the matter.
It is true that the Department of Health has applied to join the GMC in the Burke appeal but it did so because it seeks clarity. It believes that ANH should always be provided where it is in the patient's best interests. Where patients request ANH they should receive it. However, the judgment could be read as allowing patients to request any life-sustaining treatment, even if it was harmful to the patient or if the treatment was not available, such as a transplant or a very expensive, experimental treatment that in the clinical judgment of doctors was not appropriate or in the patient's best interests. Those are the only grounds on which the Department of Health has joined the appeal.
I take issue slightly with the noble Lord's remark about what he called the "dogmatic" view about ANH. I know that he benefited, as I did, from the meeting with Mr Rob George. who as a palliative care expert talked about why ANH was a treatment and about the importance medically of thinking of it as such and not as the equivalent of food and water. The reason is that it is invasive; it requires blood to be taken; it runs the serious risk of infection, and so on. I am in the company of medical staff, so I shall be quiet about that from now on otherwise I will be in danger of pretending that I know things when I do not. However, I do not think that I have said anything contrary to the views of those noble Lords.
I understand why the noble Lords, Lord Alton and Lord Brennan, and the noble Baroness, Lady Masham, have tabled the amendments. I sympathise with their aim to ensure that appropriate mechanisms are in place to assess how donees of lasting powers of attorney or deputies perform their functions and ultimately to protect vulnerable people. However, I am concerned about prescribing that in legislation; I do not think that the noble Lord will be surprised to hear me say that. Nor am I sure that creating a database of the numbers and types of decisions about medical treatments made by lasting power of attorneys and deputies is necessarily the best way to address the noble Lord's concerns.
Naturally and rightly, we are very concerned to ensure that inappropriate decisions are not made about medical treatments—and not just by donees of lasting powers of attorney and deputies. That is why, for example, the National Patient Safety Agency has introduced a national system for reporting and learning from patient safety incidents, which is gaining international recognition and praise.
By the end of December, all 607 trusts in England and Wales were linked to the National Reporting and Learning System. In parallel, the National Patient Safety Agency will run a comprehensive training programme to enable NHS staff to use the new reporting system effectively. The agency is already training staff to use the techniques of root-cause
740
analysis, giving them an investigative tool to analyse and understand the real, root causes of the adverse incidents that they experience and to take action at a local level to prevent them happening again. That is supported by the 31 patient safety managers based in each strategic health authority region across the country.
Where decisions about medical treatment are made by donees of lasting powers of attorney and deputies, we expect that to be recorded in the patients' medical records. That will be an important part of training and guidance for healthcare professionals in implementing the Bill. They will not make such decisions in a vacuum because healthcare professionals will be closely involved in the decision process. Where healthcare professionals or friends and relatives have concerns about the decisions made by attorneys or deputies, they will have access to the Office of the Public Guardian to voice their concerns, and ultimately to the Court of Protection to challenge those decisions.
As part of the plans for implementing the Bill, we are taking steps to ensure that the Office of the Public Guardian will be in a position to monitor the role of deputies. There will also be a record of disputed decisions that have come before the Court of Protection. The confidentiality of those concerned will be protected.
The Court of Protection will keep records of cases, including those involving medical treatments. The Public Guardian Office is reviewing what IT and record-keeping systems will be necessary to support the new court. We envisage that it is likely to include a breakdown of cases involving deputies and donees of lasting powers of attorney.
As for recording the medical treatment decisions taken by attorneys and deputies, the amendment would, as the noble Lord, Lord Walton of Detchant, implied, result in the need to create a new system to record the number and types of decisions about medical treatment made by attorneys and deputies. As we have discussed in Committee, decisions about life-sustaining treatment are complex. I am not sure that simply measuring the number and types would give a clear enough picture of whether such decisions were appropriate. Simply adding up each decision would not demonstrate whether the right decision was made. In our earlier discussions, the noble Baroness, Lady Finlay of Llandaff, described how decisions were made day by day and hour by hour in many cases.
The emphasis of the Bill is on focusing on a person's best interests and making decisions in that context. I am not convinced about separating out information about the number and type of decisions that are, in a sense, made without reference to the best interests test. It might give only a partial view.
Inevitably, there would be difficulties in capturing some of the information suggested, as the NHS does not collectively capture information about whether a treatment has been withdrawn or withheld. As I have said, it is difficult to determine what "life-sustaining" means; there is no neat category. In Committee, we have discussed the fact that, in certain circumstances,

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treatments such as antibiotics could be life-sustaining, and, in other cases, they would not be. ANH is not always used for life-sustaining reasons; it may be used to help a patient in intensive care to recover more quickly, although their life would not be in danger if they did not receive that treatment.
That is a long way of saying that I have great sympathy with the noble Lord, but I am not convinced that collecting the information purely for the purposes of preparing an annual report to Parliament is the best use of inevitably limited resources. I have tried to indicate some of the other ways, through the Office of the Public Guardian and the National Patient Safety Agency, in which we have tried to deal with some of the questions that the noble Lord and the noble Baroness, in particular, raised.
I hope that, on the basis of what I have said, the noble Lord will be able to reflect on whether I have captured within the work of those two organisations in particular some of his concerns. Perhaps the noble Lord will reflect with me before Report on whether there is any more that I could do.
Lord Alton of Liverpool: I am grateful to the Minister. Could she identify the areas that, she feels, would be in addition to those that she has already identified about which information will already be in the public domain through the Office of the Public Guardian and others?
My noble friend Lord Walton of Detchant raised a proper concern about not creating a bureaucratic nightmare for people in the NHS, and I agree with what he said. However, if the information is already in the public domain, even if it is only a partial view—we heard all the caveats that the Minister just entered—it would be better than no view. We could be left with no way of monitoring the way in which the legislation works. That is what inspired me to table the amendment in the first place, and it is why I would like to explore the issue a little further with the Minister.
Baroness Ashton of Upholland: The issue about having a partial view is twofold. The first question is whether one collects information that gives a complete picture because one has all the information. The aspect that I was referring to was the collection of information without the benefit of considering the individual's best interests and the decisions that have been made in that context.
It is difficult to see how information on the number and types of decisions would provide what the noble Lord seeks; namely, information on whether people are being protected correctly, how the decisions are made and what are the results. My partiality is that I do not think that it will take the noble Lord to where he wants to go. For the Public Guardian, the kind of supervision that will be sought—for example, of deputies—will relate to whether the person is appropriate and carrying out the risk assessment of the case. I have a list of things that I will send to the noble Lord, rather than taking up the Committee's time.
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The fundamental question is how we get information that will tell us, in general, about how decisions are applied, both in a clinical context and beyond that. We are looking to make sure that the necessary training and support is available through the National Patient Support Agency. There is an interesting potential in that that the noble Lord and I can perhaps explore. The second thing is the support available through the Office of the Public Guardian to deputies, in particular. As I said, I will indicate the kind of work that it will do.
I am not convinced of two things. One is that it needs to be in the Bill. The second is that, if one were using resources to address the issues about which the noble Lord is concerned, this is the way forward. I know how limited resources will inevitably be in the area—we will talk again on Report about the resources for advocacy, for example—and I am not entirely convinced that we will achieve what the noble Lord wants by collecting the information in that form.
Lord Alton of Liverpool: I am grateful to the Minister for the points that she has made to the Committee. I shall reflect further on the matter.
I think of the Abortion Act 1967 in this context. A careful reporting procedure was put in the Bill because of the concerns that people raised during its passage. In the past couple of years, there has been the example of that remarkable young Anglican clergywoman, Joanna Jepson, who has gone to court over the issue of cleft palate abortions. She was able to find out about it by a careful analysis of the reporting of all the 184,000 abortions that had occurred in the previous 12 months. By going through it and finding the grounds on which the abortions were permitted, she discovered that abortion on the ground of a cleft palate had taken place, I think, at 34 weeks' gestation and has been able to challenge that in the courts. More importantly, she has opened up a widespread and important debate about eugenics and whether such things should be permitted.
Whatever one's view of that—I would obviously side with her on the issue—it is in the public interest to have transparency, so that we can know why decisions are made. If that does not require the collection of new information that is not being collected anyway—I am happy to accept the point made by my noble friend about the use of computerised record-making in this context—it is not unreasonable for Parliament to say that it would like to be kept informed, as the years go by, about the trends and about the reasons why the legislation is being used in a particular manner.
On the basis of what the Minister said, I would like to think further about the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Elton): I must inform the Committee that the number of noble Lords voting "Not-content" in the second Division this afternoon was 163, not 162, as announced.
Clause 42 [Ill-treatment or neglect]:
Earl Howemoved Amendment No. 179:
Page 24, line 37, at end insert—
"( ) is appointed by the Secretary of State for Works and Pensions"
The noble Earl said: In moving Amendment No. 179,1 shall speak also to Amendment No. 180. As a preface to my remarks, I apologise for the slight typing error in Amendment No. 179, which, I think, was not the fault of the Public Bill Office.
It would be helpful to the Committee if the Minister were able to comment briefly on the provisions of the clause and, in particular, explain exactly the gap in the current criminal law that the new offence of ill treatment or neglect is aimed at filling. Currently, there are the offences of assault and battery, causing actual bodily harm or causing grievous bodily harm, for example, but I take it that the new offence runs wider than that type of case.
The mention of donees of lasting powers of attorney and court deputies suggests that we could be talking about much wider sorts of wrongful behaviour, such as depriving a person of the financial means of acquiring the necessities of living or failing to ensure that someone receives proper day-to-day care. Given the potential for relatives to make decisions that are aimed at their interests of inheritance, financial abuse does not always fall clearly within the Theft Act. Even when it does, prosecutions are rare. Even more rarely does the person who has been abused get financial redress or their money returned.
8 p.m.
It would also be useful if the Minister could confirm my understanding that the new offence might capture a nurse or carer who failed to provide basic palliative care to a mentally incapacitated person who is terminally ill. If that is so, I would have thought that that would act as a further reassurance to those who fear otherwise—that even where a decision is taken to withhold or withdraw artificial nutrition and hydration from someone who is terminally ill, there can never be a valid reason for depriving anyone of basic physical care and failure to do so could be criminal.
Can the Minister say whether a local authority or a local government officer might render themselves liable under this clause if, for example, there were a local authority care home for adults with learning difficulties and the conditions at the home, including the standards of care, were allowed to deteriorate to a completely unacceptable state? There was a case of exactly that kind in my own area only a few years ago. In such a situation, would it be only the care home manager who would be deemed as having the care of the residents or would the liability extend further upwards?
We spoke in an earlier debate about appointees acting under the authority of the DWP. The Minister very helpfully referred to discussions within government which are designed to make sure that the spirit of the Bill
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and the substance of the codes of practice will be adopted by appointees who have responsibility for incapacitated people living on benefit. I should he glad if the Minister could say whether a neglectful appointee might be caught by the new offence if he failed to fulfil his obligations in a gross and serious way.
My final question relates to the relationship between this clause and Clauses 6 and 11. When are protective measures reasonable for restraint and when do such actions amount to ill-treatment? The Minister will obviously not be able to give me any sort of precise answer, but the question is a very real one in practice.
It seems to me that the code of practice will need to address this very difficult area. For example, temporary restraint in an emergency would almost certainly not amount to ill-treatment. Continuing measures that serve to confine an individual significantly for a length of time could be another matter. There may well be justification for such measures in certain cases, but a carer should not have the responsibility of taking such a decision unsupported. There should be a standard review mechanism to include a second opinion to protect both the patient and the carer in such situations. I am sure that Members of the Committee would find it helpful if the Minister could say something about this issue also. I beg to move.
Baroness Greengross: I support the points raised by the noble Earl. I should like to start by talking about "undue influence". The Master of the Court of Protection, when giving evidence to the Joint Committee, said that possibly 20 per cent of current EPAs are abused in some way. The issue of "undue influence" may arise when a person who lacks capacity can very easily be said to have given the attorney sums of money. There are many cases where people have received large sums in such ways, yet receipt of the money has not been overturned in any way because the law does not sufficiently cover the issue. If someone is found to have knowingly financially gained from the person's lack of capacity, surely that should count as a criminal offence.
Solicitors for the Elderly—an organisation that deals daily with people affected in this way—supports the amendment. Individuals can have appointees to collect state benefits, but they ought to be brought under the protection of legislation. SFE says that the Office of the Public Guardian could do one-off orders which are similar to the current short orders administered by the DWP.
As regards appointees, Age Concern—of which I am a vice-president—gets many reports directly from the public as well as from finance officers working in local authorities. These reports refer to appointees who are not spending the money on the person's behalf. There was recently a case where the appointee refused to hand over the benefit to pay for the care of the person. In that case, it ran to several thousand pounds.
Sometimes only very small sums are involved. in order to provide for personal expenses. Some people have only their rather nastily called "pocket money", amounting to about £18. Bearing in mind that that is all that some

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people get after paying for their care, it is vital that it is paid in full and not held back. A recent Age Concern case concerned a man in a care home who never had enough money to spend, for example, on toiletries. His wife, who was the appointee, was using the money for herself.
The knowledge that such actions could be considered a criminal offence might act as a deterrent to those who might not always appreciate that they are doing something wrong. They may think that it is okay, but we know that it is not. There is a case for making it a criminal offence.
Baroness Masham of Ilton: The noble Earl referred to the need for basic physical care. Perhaps the Minister saw the recent "Dispatches" programme on BBC4. If she did—the noble Lord, Lord Warner, did—she will have seen a really shocking state of basic physical care and neglect in two national health hospitals. When I saw the programme I said to myself, "These patients have capacity, although they are vulnerable. Heaven help those who have no capacity. What on earth would happen to them?".
Will the Department of Health conduct an inquiry on this situation? The situation cannot continue. We have an opportunity now to get something into the Bill that will protect everyone who is vulnerable.
Baroness Ashton of Upholland: I am afraid that I did not see the programme—I was probably here. I recognise the issue that the noble Baroness has raised. I cannot speak for the Department of Health, but the whole purpose behind the Bill is to empower and protect some of the most vulnerable people in our society. As we continue in Committee and go on to further stages, I hope that that will become more apparent, particularly as the noble Baroness has a great interest in these issues. That is what these debates are for.
I fully understand what noble Lords are seeking to achieve with the amendments and I shall try to deal with all the points that have been raised. I think there is a general acceptance of, and greeting for, the clause because it creates a new offence of ill-treatment or wilful neglect. The noble Earl asked why it was important that we should have done that. We are trying to capture individuals who are in a position of trust, care and power over people and who then abuse them while they are in their care. This also applies to donees of lasting powers of attorney and court appointed deputies. It is a specific offence designed to do that.
The noble Earl will not be surprised to learn that I cannot give him chapter and verse of what is missing within other areas of criminal law to require this new offence but, at present, offences that are aimed at tackling the abuse of vulnerable adults require the perpetrator to perform some kind of positive action, if I can call it that; there is no offence of wilful neglect involving an omission or act as there is for children. So this clause makes a provision for wilful neglect, the part that is missing. Why it should be missing I do not know, but that is the part that has not been there
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before and that is why the inclusion of this offence is very important. It demonstrates, not least, that we are taking the abuse of vulnerable adults very seriously, something which noble Lords have indicated is very important.
The offence is in part aimed at neglect and tackling abuses that stem from a failure to act. At Report stage in another place we added an amendment to extend the scope of the offence to cover enduring powers of attorney. While this was welcomed, it is clear that noble Lords are still concerned that because DWP appointees are handling only financial matters they might not be considered as having "care of the person" and, as such, would fall outside the scope of the offence. Again, we made clear during the Report stage in the other place that, in the majority of cases, the appointee will have the care of the person and will therefore be covered by the offence.
Officials from my department have been meeting with colleagues from the DWP and are now working together to ensure that the guidance from the Department for Work and Pensions is consistent with the Bill and with the code of practice. Ministers from the Department for Work and Pensions have readily agreed to review their appointment process in the light of the Bill. In particular, where it is appropriate and practical, they will adopt the codes of practice as guidance to those assessing capacity. Guidance will also adopt the best interests principle.
Because the appointeeship system is an integral part of the system for paying state benefit, it is appropriate of course that responsibility for appointees should remain with the Department for Work and Pensions. The department acknowledges that lack of post-appointment monitoring is a potential weakness in the system. Therefore it has agreed to look at the options for introducing a monitoring system. There is no easy solution and the resources necessary to monitor more than half a million appointees will need to be considered. The department will look at reviews, targeted monitoring and working with local authorities. All of the ways in which the system can be monitored will be examined. In the mean time, the department will act quickly to revoke appointments where allegations of mismanagement are made.
Noble Lords will be aware that benefit appointees operate in Scotland as well as in England and in Wales and that we already have different maximum sentences for conviction on indictment. To make any further changes would increase the inconsistencies between the two pieces of legislation and, therefore, departmental Ministers will be looking at their own legislation in this context. I hope that the current work I have described in terms of reviewing appointeeships will give comfort to noble Lords who are concerned to ensure that this issue is dealt with properly.
I can assure the noble Earl, Lord Howe, that palliative care is covered. The example given by the noble Earl is absolutely right. Care home neglect is also covered. One example would be the Longacre situation, which the noble Earl will remember well. Who is liable, in a sense, is a question of who has care

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of the person, and the courts will determine that. It could be the care home manager, the individual carer or both. The courts will make the decision about who, in its view, had care of the person.
Amendment No. 180 makes it an offence unduly to influence a person for one's own advantage in order to deprive them of their property. I understand the principle behind the amendment. Where a person who has the care of a person who lacks capacity essentially uses that person's funds for his own benefit he will, of course, be guilty of theft. It is a wide-ranging offence which includes the misappropriation of funds and property where there is an intention permanently to deprive.
On the other hand, if a person has care of an individual, or has a lasting power of attorney, an enduring power of attorney or is a deputy and he pressurises the individual lacking capacity to spend those funds on him rather than on food or vital services such as heating and intends to cause the individual to be ill-treated or wilfully neglected, he may well be liable under this offence.
In addition, attorneys or deputies have a number of civil duties in relation to the person who lacks capacity, as well as the duty to act in the person's best interest. An agent—that is, a deputy or the holder of a lasting power of attorney or enduring power of attorney—will also have a fiduciary duty towards the individual. That means that the agent must not benefit himself but must benefit the principal. An attorney or deputy who fails to act in a person's best interests could be removed by the Court of Protection. Any breach of a fiduciary duty could lead to the attorney or deputy being sued.
I hope that that covers the questions asked by noble Lords and that I have covered the issues around theft raised by the noble Baroness, Lady Greengross. It is necessary to have evidence in order to prosecute. There is a role for the public guardian in investigating complaints, taking cases to court to remove a lasting power of attorney or deputy, and referring cases to the police or Crown Prosecution Service where appropriate.
The noble Earl, Lord Howe, raised the issue of restraint. I am reminded of the provisions in the early part of the Bill and the need to make decisions in the least restrictive manner. They cover all kinds of restrictions. However, I shall think about what the noble Earl has said and write to him. I hope that the explanations 1 have given have satisfactorily covered his main points and that he is able to withdraw his amendment.
8.15 p.m.
Earl Howe: This has been a useful debate. I am grateful to the Minister for so fully covering all the points that have been raised. I am grateful also to noble Lords for their support.
The main point to have arisen from the Minister's remarks is that this clause is designed to encompass all forms of neglect, not only direct physical neglect but also indirect neglect where an attorney or a deputy causes the
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incapacitated person to suffer neglect. The fiduciary capacity of the attorney or deputy is very important in this context. That is an extremely helpful clarification.
I am grateful to the Minister for her remarks on appointees. They did slightly go over ground that we trod in earlier amendments, but they were extremely helpful. The question of the dividing line between legitimate restraint and illegitimate abuse is extremely difficult. I am glad that the Minister is going to give it further thought. It is a point that a number of quarters have raised with me. We clearly do not want carers who feel nervous or uncertain about what they can do to protect the wellbeing of somebody without laying themselves open to a charge of ill-treatment. It is a question that is not so very different from, "How long is a piece of string?". Nevertheless, there ought to be reassurances for carers who are sometimes placed in very difficult situations. Perhaps, as I suggested earlier, a second opinion might be sought in certain problematic circumstances. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 180 not moved.]
Lord Goodhartmoved Amendment No. 181:
Page 24, line 43, leave out "5" and insert "10"
The noble Lord said: This is a probing amendment that deals with a short point in Clause 42. I decided to look for the background for that clause and found that it seems to be based, loosely, on Section 1 of the Children and Young Persons Act 1933, which is still the statutory basis for the crime of wilfully ill-treating or neglecting a child. Under the 1933 Act, the maximum penalty for ill-treatment or neglect was imprisonment for two years. The present maximum term of imprisonment under the 1933 Act has been raised by subsequent legislation to a period of 10 years. While I am not in principle a believer in the virtues of long terms of imprisonment, I wonder why the maximum penalty for ill-treating or neglecting a person lacking capacity is only half the maximum penalty for ill-treating or neglecting a child. I beg to move.
Baroness Ashton of Upholland: This is an interesting question, and I am grateful to the noble Lord, Lord Goodhart, because I have had to go and find the answer to it.
As the noble Lord will know, but other noble Lords may be unaware, the period of imprisonment was increased to five years as that made the offence an arrestable one and people can be arrested for it without a warrant under Section 24 of the Police and Criminal Evidence Act 1984. It was one of the key aims of the Disability Now campaign Justice for Survivors, launched in December 2003 which was aimed at ensuring that victims of cases like Longacre were properly protected and the culprits properly punished.
I can assure the noble Lord that we did look carefully at the possibility of increasing the maximum sentence, as it is proposed, but we recognise that the increase to five years has brought it more in line with other serious assaults on individuals, including the offences of inflicting grievous bodily harm and assault occasioning

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actual bodily harm. It would therefore be strange to have an offence which causes harm by neglect, with a maximum penalty which is greater than the maximum penalty for GBH, for example.
I also checked that for the offence in the Children and Young Persons Act 1933—which covers not only ill treatment and neglect but wilful assault, abandonment and exposure, and which requires likelihood to cause unnecessary suffering or injury to health, even where a child has died—the penalty on conviction was increased from two to ten years by Section 45 of the Criminal Justice Act 1988. The matching Scottish offence was subject to the same change. There was no doubt a good policy reason for the significant change at that time, but I cannot find what it was. I therefore cannot help the noble Lords to understand why the law relating to children is out of step—if that does not sound too awful—with other aspects of the law. The equivalent offence in the Adults with Incapacity (Scotland) Act 2000 has a maximum penalty of two years.
Five years brings the Bill into line with other aspects of crime. It is actually the law relating to children which is out of step, again if that does not sound too terrible. I hope that I have answered the noble Lord's point.
Lord Goodhart: I am grateful to the Minister for explaining the cause of the distinction, which puzzled me when I first saw it. I now understand the reasoning behind this. I am glad that there has been an opportunity for research and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 42 agreed to.
Clause 43 agreed to.
Clause 44 [The judges of the Court of Protection]:
Lord Goodhartmoved Amendment No. 182:
Page 25, line 17, leave out "Lord Chancellor" and insert "Lord Chief Justice"
The noble Lord said: In speaking to Amendment No. 182 I wish also to speak to Amendments Nos. 183 to 185. This group and the following group are a matter for lawyers rather than mental health experts, so the mental health experts in the Chamber can now take a rest.
The purpose of this group of amendments is to transfer responsibility for the appointment of judges of the Court of Protection from the Lord Chancellor to the Lord Chief Justice. The Bill describes these not as an appointment but as a nomination. The nomination will be of existing judges who will retain their existing ranks in the judicial hierarchy. There will be no cases of first appointment or of promotion. They are therefore a matter of judicial deployment.
When the Constitutional Reform Bill comes into force this will cease to be a matter for the Lord Chancellor. It will not become an appointment for which the Judicial Appointments Commission is
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responsible but will come within the scope of the powers of the Lord Chief Justice, as part of his responsibility for deployment of judicial power.
I recognise that these amendments are premature, as it is not appropriate to enact them until the Constitutional Reform Bill is in force. It is therefore not my intention to press them, either today or at any subsequent stage. However, I would like to ask whether the amendments in the names of myself and the noble Baroness, Lady Barker, are in fact a correct forecast of what will happen, or what is expected to happen, when the Constitutional Reform Bill comes into force. If not, what other arrangements will be made? I beg to move.
Baroness Ashton of Upholland: I am neither a lawyer nor a mental health expert. The noble Lord, Lord Goodhart, will forgive me if I have a sense of déjá vu in the light of the legislation we have discussed in the past 24 hours. I congratulated the noble Lord on spotting this point at Second Reading.
The noble Lord, Lord Goodhart, rightly said that Clause 44 gives the Lord Chancellor the power to nominate judges to sit in the new court of protection, which is in keeping with the current role of the Lord Chancellor. If the Constitutional Reform Bill is enacted, the changes will be introduced to bring these functions into line with the agreement reached between the Lord Chief Justice and the Lord Chancellor, which we know lovingly as "the concordat".
An amendment of the kind proposed by the noble Lord will therefore need to be made if the Constitutional Reform Bill is passed in its present form. My notes say "Nothing is certain in politics"; that is certainly true. We cannot assume that the Bill will finally be enacted in the form in which it leaves this House. This Bill is not the only one affected by the Constitutional Reform Bill. A number of pieces of legislation have been enacted since the Bill was introduced in your Lordships' House.
The noble Lord, Lord Goodhart, will know, but other Members of the Committee may not, that the Constitutional Reform Bill provides that such legislation can be amended by affirmative resolution. Such an order will be made concerning all the affected legislation once we have received Royal Assent. I hope that that addresses the noble Lord's concern and that he is able to withdraw his amendment.
Lord Goodhart: That does indeed provide the expected answer to the question raised by the amendment. It is as I expected and I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 183 to 185 not moved.]
Clause 44 agreed to.
Clauses 45 to 47 agreed to.
Clause 48 [Applications to the Court of Protection]:
[Amendment No. 186 not moved.]
Clause 48 agreed to.
Clause 49 [Court of Protection Rules]:
Lord Goodhartmoved Amendment No. 187:
Page 27, line 31, leave out subsection (1) and insert—
"( ) There are to be rules of court (to be called "Court of Protection Rules") governing the practice and procedure to be followed in the Court of Protection.
( ) Court of Protection Rules are to be made by a committee known as the Court of Protection Rules Committee."
The noble Lord said: The purpose of the amendments in this group is to set up a rules committee for the Court of Protection instead of having rules made by the Lord Chancellor or by someone to whom the Lord Chancellor has delegated that responsibility. Earlier we debated the right of a Minister to delegate powers.
The movement is towards having independent rules committees. The Courts Act 2003 added a Criminal Procedure Rules Committee and a Family Procedure Rules Committee to the long-standing Civil Procedure Rules Committee. The purpose of Amendment No. 187 is to provide for a committee to make the rules.
Amendment No. 187 is not in itself complete: it would require a number of further provisions. For example, the Courts Act provides the rules made by rules committees to be approved by the Lord Chancellor. That has not been altered by the Constitutional Reform Bill and would need to be incorporated into this Bill if the principle were accepted.
It is true that the Court of Protection will be a smaller operation than the family or criminal courts, but it will have an equal need for rules. I see no reason why rules committees should not be set up as a statutory body. The rules committee will be made up of people with real experience in the field and Amendment No. 188 sets out a suggestion of how the committee should be constituted. Again, it is based loosely on the make-up of the Family Procedure Rules Committee. I suggest that it should consist of the president of the Court of Protection and three other judicial members of it; the Public Guardian; one legal practitioner with experience of the Court of Protection; two visitors, one general and one special; and two people with experience of people who lack capacity. The judicial members will be appointed by the Lord Chief Justice; the others by the Lord Chancellor. That matches the proposals for the Family Procedure Rule Committee as amended by the Constitutional Reform Bill. That seems to be the right balance, but I am not wedded to it.
Although I remember that at Second Reading, the Minister indicated that it would be inappropriate to have a separate statutory rules committee for the Court of Protection because it was a substantially smaller body than the family or criminal courts, nevertheless it seems in principle right and in accordance with modern practice that bodies which are separate courts should have separate rules committees with the responsibility, subject to the involvement of the Lord Chancellor, of making the rules for that court. I beg to move.
8.30 p.m.
Baroness Ashton of Upholland: We considered very carefully how best to make rules for the Court of Protection. As the noble Lord, Lord Good hart, has indicated, rule committees have been an effective way of making rules for the civil, criminal and family jurisdictions. They are useful—if not essential—when the rules need to cover a range of courts and will affect a wide range of people in slightly different contexts so that it is necessary to seek a representative view.
However, as the noble Lord indicated, at Second Reading I felt—and I remain of the same position—that in comparison with the family, civil and criminal jurisdiction, the Court of Protection will have a small and highly specialised jurisdiction. Therefore, I do not agree that there is the same need to ensure that views are sought from different types of court and types of work.
The noble Lord has helpfully suggested who might be included on such a committee. He may not be surprised to hear that I have this thing about including lists in Bills, as noble Lords who have heard me before will know. The minute that there is a list on the face of the Bill, everyone either wants to add to it or it cannot be expanded easily to increase or amend the membership—or whatever is on the list. I am deeply reluctant on almost every occasion to include lists in primary legislation, especially in this case.
I agree that we need to consult a wide range of people—the court's senior judge, other judiciary, lawyers with experience of this area of work, the Public Guardian, Court of Protection Visitors, and so forth, all of whom are rightly included in the noble Lord's amendment. However, there is another very important group of people who I think are not sufficiently catered for in Amendment No. 188.
The Public Guardianship Office has a consultative forum that includes many stakeholders whose views represent the users of the court. This includes a number of groups representing people who lack capacity—such as Age Concern and the National Association of Citizens Advice Bureaux, and lay and professional receivers. This body has been very helpful in allowing the Public Guardianship Office and the court to ensure that the needs of their users are taken into account. In particular, they ensure that those who lack capacity and those who care for them—whose views might not otherwise be listened to—have a voice.
I do not want to leave out—as I am sure the noble Lord would not want to leave out—users of the service and others with a direct interest in it, and would therefore prefer to approach the most appropriate people depending on the subject of the rules under consideration.
We want to create a court that is accessible, informal and built around the needs of its users. Frankly, I think we can do that better if we pursue a more flexible approach to making rules than the one that the noble Lord has indicated so far. On the basis that that is the way that we would approach this matter, which is partly what the noble Lord is searching for, I hope that he will feel able to withdraw his amendment.
Lord Goodhart: I naturally have some regret that the Minister is unable to accept what I believed to be a

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reasonable proposal, but it is not one which is in any way critical to the Bill. Having heard what the Minister has to say, I shall leave it at that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 49 agreed to.
[Amendment No. 188 not moved]
Clauses 50 and 51 agreed to.
Clause 52 [Fees]:
Baroness Barkermoved Amendment No. 189:
Page 29, line 19, at end insert—
"( ) exemption from fees where a deputy is appointed totally in relation to state benefits and such capital that accrues from state benefits"
The noble Baroness said: I apologise for not having been here earlier, but I had to work and I have only just got back.
The amendments are small and technical, but meaningful. The provisions on fees may seem of minor importance in the great scheme of things, but it means quite a lot to the people who take on the work of deputies and, particularly, appointees, who go to considerable lengths to assist people who themselves have very little income. Therefore, it seems to us that it would he wholly reasonable to permit the Lord Chancellor the power not only to charge fees but to order that there be a remission of fees, particularly with regard to very small sums of money.
Having spoken to people who act as deputies and, particularly, as appointees, I know that they often go to considerable lengths, often at their own expense, to do the right thing for people. Therefore, we believe that it is important that the incapacitated person should not be financially disadvantaged by having to cover the costs of things such as appointeeship from small sources of money. Those costs are covered by the DWP, so there would be no need to transfer funds across to the Office of the Public Guardian to ensure that costs could be met.
The aim of the other amendments in the group is to require that there is widespread consultation about fees and the power to advertise any remissions of fees. We have spoken before, in Committee, about the costs of registering, and how that may be a deterrent to some who want to take on the duties of a lasting power of attorney. The amendments are minor but could make a significant difference to some people who are doing things for people who do not have much money. I believe that that is an important thing to do. I beg to move.
Baroness Greengross: I support the amendments. One reason for not transferring appointeeships to the Court of Protection was that it would give a huge amount of work to the Office of the Public Guardian. But that could be dealt with under a single order, giving the person directions to administer the person's benefits in their best interests and complying with all the conditions in relation to benefit claims and payments. If appointeeships were
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transferred to the Office of the Public Guardian and were caught, the cost would transfer from the DWP to the office. It would be interesting to know what budget the DWP has for the appointment and monitoring of appointeeships. That could be transferred to the Office of the Public Guardian, if it were to take over the appointeeship. It could then appoint the staff who would be necessary to undertake that administrative work.
Many organisations, including Age Concern, were involved in discussions on the remission scheme and making it more open and public. Two years ago, in May 2003, I instigated a debate in the Chamber on fees and the fee remission scheme. These amendments would put on the face of the Bill what is now largely happening in practice; namely, that there is consultation with bodies of people who represent those paying the fees when they are being set, and that the fee remission scheme is properly advertised.
Baroness Ashton of Upholland: I am grateful for the opportunity to talk about Clause 52 and the making of fees orders for the Court of Protection.
As the Committee is aware, Clause 52 allows the Lord Chancellor to make fees orders in respect of anything dealt with by the Court of Protection. Fees orders can set out the scales or rates of fees and arrangements for fee exemption, reduction and remission. In thinking about fee setting, remission, exemption and reduction of fees for the new Court of Protection we have looked very carefully at current practice in the other civil courts.
The principle here is that we believe it is right that people should pay a fair price for the court's work on their behalf, but it is also right that fee reduction and remission arrangements exist so that no one is prevented from going to court if paying the fees would cause them financial hardship, or if there are other exceptional circumstances. That is the principle behind what we have sought to do in this clause.
I turn first to Amendment No. 189. This amendment would provide a specific power to make fee exemptions in relation to cases where a deputy is appointed only in relation to state benefits and any capital accruing from them.
I say at the outset—I do not think that the noble Baroness, Lady Barker, will be surprised at this—that it would be very unusual for a financial deputy to be appointed solely in relation to state benefits. As the noble Baroness, Lady Greengross, said, it is very likely that the Department for Work and Pensions would establish an appointeeship. I cannot give the noble Baroness the figures regarding what the Department for Work and Pensions spends in this area. There are half a million appointees. I am not sure that one would be able to obtain the figures in any event. Certainly I shall ask the department if it has any figures that might be of value and let the noble Baroness have that information.
If an application were for a welfare deputyship, it is possible that fee exemption would apply in any case, as it is our intention that people on very low incomes and with few assets will be exempt from paying fees. Under

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current practice, if a person has savings and assets of less than £12,000, the whole court fee is normally waived. This would normally capture people in receipt of benefits.
I do not want to accept the amendment as it would place the Court of Protection in a different position from the magistrates' courts, county courts and Supreme Court, which have exactly the same provision on fee exemption, reduction and remission as is contained in the Bill. Fee exemptions are not made because of the type of application but the means of the applicant.
It is also the case that anyone who feels that he or she cannot afford to pay a fee will be able to apply to the court for remission of all or part of the fee. The court will have discretion to remit fees if payment would cause financial hardship or if the circumstances are otherwise exceptional. I assure Members of the Committee that arrangements for fee remission and exemption will continue.
As the noble Baroness said, Amendment No. 190 would require the Lord Chancellor to consult on fees. Clause 52(3) already requires the Lord Chancellor to consult the appropriate judges. This amendment would require him also to consult other bodies representing people who lack capacity. I agree completely with the intention behind the amendment but I do not believe that it is necessary to put it in the Bill.
Consultation should extend beyond the judiciary. That is the case now and it will remain so. Currently, before the Lord Chancellor sets fees, the Court of Protection and the Office of the Public Guardian consult a wide range of stakeholders who form part of the consultative forum to which I referred earlier. The forum includes representatives from organisations including Age Concern, the Alzheimer's Society, Help the Aged, Mencap, Mind and Scope as well as professional groups. Fees are also discussed with the Office of the Public Guardian's Professional Receivers' Forum and local authority receivers.
Clause 52(4) requires the Lord Chancellor to take reasonable steps to bring information about fees to the attention of people who are likely to pay them. Again, this reflects provisions that are contained in the Courts Act 2003. Amendment No. 191 would require the Lord Chancellor to publicise the arrangements for fee remission as well.
I assure the Committee that the Office of the Public Guardian's current information on fees always includes information on fee remission and reduction. If someone needs further advice, staff at the Court of Protection and Office of the Public Guardian are on hand to give it. The fees information on the Office of the Public Guardian's website also gives details about fee remission. This practice will, of course, continue.
I hope that I have addressed the concerns of the noble Baronesses, Lady Barker and Lady Greengross, and that they feel able to withdraw the amendment.
8.45 p.m.
Baroness Barker: The response of the noble Baroness was extremely helpful and it is important to have those points on the record. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 190 and 191 not moved.]
Clause 52 agreed to.
Clauses 53 to 55 agreed to.
Clause 56 [Functions of the Public Guardian]:
Earl Howemoved Amendment No. 192:
Page 30, line 40, after "maintaining" insert—
"(i)"
The noble Earl said: In moving Amendment No. 192, I shall speak also to Amendments Nos. 193 and 196. These amendments would add to the proposed safeguards in relation to lasting powers of attorney. Amendment No. 193 proposes that the Office of the Public Guardian should keep a separate record of those LPAs that are in use. That would include both those that are in use prior to the person losing capacity and those that are used once the person has lost capacity. If the information on the LPA instrument is kept up to date, which I know the Government are committed to bringing about, it will enable the Office of the Public Guardian to target those LPAs that should be monitored.
In some cases, the Office of the Public Guardian might well find that the person has regained capacity, and that would be part of the updating process. The Joint Committee that scrutinised the draft Bill recommended that there should be,
"an additional safeguard mechanism by which the Court of Protection or the Public Guardian could monitor the use of LPAs with a view to preventing the abuse and exploitation of a donee's powers".
I agree with that.
The amendments offer some suggestions as to the way in which the Office of the Public Guardian could undertake additional monitoring. If attorneys were aware that there was random monitoring, that would certainly help to prevent abuse. Currently, I understand that the Office of the Public Guardian is developing a risk assessment method of deciding on the level of monitoring of receivership cases. It would be worth considering whether a similar system could be developed in relation to LPAs. For instance, those LPAs where no one is named to be informed of registration or where the only person named was a close relative of the donee could trigger such a risk assessment.
The Bill also currently lacks any form of check by the Office of the Public Guardian regarding whether a person is suitable to be a donee. Amendment No. 196 imposes a duty on the Office of the Public Guardian to undertake checks in relation to bankruptcy and whether the person is listed on the protection of vulnerable adults list. I am aware that we have covered these issues in other amendments, but the point remains important. I hope that the Minister will not

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give me an entirely disappointing reply. I am sure that she appreciates the point of principle at stake. I beg to move.
Baroness Barker: I support the amendments in this group, in particular Amendment No. 196 in the name of the noble Earl, Lord Howe. I will speak briefly to Amendment No. 194. We put this down as a probing amendment, because I could not see anywhere in the Bill a power for provision of public information about lasting powers of attorney and the appointment of deputies. The reason for putting in what perhaps may seem a rather obvious provision is the fact that, in the course of dealing with older people as I do, one comes across many occasions where people have concerns about powers of attorney being misused or abused. They really have no idea where they should take those concerns. The work of the court and the Office of the Public Guardian is not well understood. It is a function that someone begins to understand only once they have come up against something that has gone wrong. At that point, they are scrabbling around to try to figure out what they should do.
There is a very important public information role to be performed. It would be preferable for there to be the power to do that and promote that actively long before abuse arose. That is the reasoning behind that small amendment.
Baroness Greengross: I would very much like to support the amendments. I want to point to the other problem that sometimes arises. Although this is a sort of private arrangement, the Government have introduced a system of enduring powers of attorney and future, lasting powers of attorney. There are horrible cases of serial abuse. It is very easy to have a big scam going on with vulnerable people at its heart. You need only two or three people to set up an abuse ring, so to speak.
We need some system that would make it easier to make that unlikely. There should be a system of referencing and cross-checking that someone is not targeting two or three vulnerable people and making a lot of money from abusing their situation. It is unfortunate, but such dangerous things happen.
Baroness Ashton of Upholland: All the amendments look to add to the functions of the Public Guardian set out in Clause 56. They are all concerned with putting additional safeguards in place to protect against abuse, particularly of lasting powers of attorney. I sympathise with what Members of the Committee seek to achieve. It is because of that concern that we have put a number of safeguards in the Bill, including the requirement to register lasting powers of attorney before they can be used, the certificate stating that the person has capacity and that they are free from fraud or undue pressure, and the provision for the notification of named people.
A key issue running through a number of the amendments is that of striking the right balance between, on one hand, adequate protection of donors of lasting powers of attorney, and, on the other,
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allowing people to make their own decisions without interference from the Public Guardian or anyone else. I will discuss the amendments in turn, beginning with Amendments Nos. 192 and 193.
One of the functions of the Public Guardian is that he should establish and maintain a register of lasting powers of attorney. As the noble Earl knows well, the amendments would require the Public Guardian to maintain a separate register of lasting powers of attorney where notification of their use had been received. In a sense, that relates back to Amendment No. 46, which proposed that the Public Guardian should be notified when a power of attorney is to be used for the first time. As I discussed during our debate on Amendment No. 46, a second registration would not necessarily achieve the result that Members of the Committee seek. For one thing, the power might be used once and then not used again for many years. I gave the example of someone who needed help following a road accident but then made a full recovery.
During our earlier debate, the noble Earl made the important observation that the LPA being registered for the second time would provide a good opportunity for the Office of the Public Guardian to send the attorney information reminding him of his duties, or perhaps the most recent revision of the code of practice. I agree that it is important that attorneys should receive reminders of how they should act, as well as up-to-date information and guidance. That is especially true in cases where the lasting power of attorney may have been drawn up many years before, registered at that point, and has then sat in a drawer until the donor has lost capacity and it was decided to use it.
We discussed the issues of those at their most vulnerable making a lasting power of attorney and the opportunity for people to, in a sense, coerce them at that point. People might create lasting powers of attorney long before they might need to use them.
I do not think that the second registration is the best way to achieve this, partly because circumstances vary so much. In some cases, the second registration might happen a very short time after the first, while in others there may be a long period in between.
The system proposed by the noble Earl would mean that the public guardian contacted donees once, which is when the lasting power of attorney was first used. I think that we can do a lot better than that. I should like attorneys to be reminded often of their duties and responsibilities. I want them to get regular reminders of the work of the Office of the Public Guardian.
Good initial guidance for those acting as attorneys could help them to be proactive in seeking up-to-date information from the OPG. I would expect the advice on drawing up an LPA to say that if the LPA is registered but then not used for a long time, the attorney should contact the OPG when he does want to use it.
When discussing the code of practice, I have said that I expect it to be revised fairly frequently. We shall need to ensure that if any changes are made to the guidance on

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LPAs, attorneys have the revised version drawn to their attention. The best way of achieving this will be considered as part of the public consultation on the code.
I am sure that the OPG will be using new technology to disseminate information and to remind us effectively and efficiently. It may he that in 10 years' time —I can hear myself in the next remark, as I was talking about text messages only a couple of days ago—the OPG will be sending regular e-mails and so on to attorneys. Technology certainly enables us to think about different ways of keeping in touch with those who are registered. There are many ways of ensuring that there is regular contact between the OPG and attorneys.
I do not think that a second register is the best way of achieving that. However, I am grateful to the noble Earl for setting us off on a train of thought. If we want people to think about their own future, we could perhaps increase the number of years between registration and use. There are also issues about the revisions in the code of practice that I would wish to deal with. I hope that my plans and ideas on that will go some way to addressing the noble Earl's concerns.
Amendment No. 194, tabled by the noble Baroness, Lady Barker, refers to the provision of public information about lasting powers of attorney and the appointment of deputies. I am sure that the noble Baroness will realise from what I have been saying that I am very sympathetic to the intention of the amendment. We envisage that the public guardian will become the focal point for information about mental capacity issues, particularly around the value and use of deputies and LPAs. The OPG already produces information in this area and we would expect the new public guardian to continue to do so. That includes leaflets, accessible guidance and website information.
The amendment would make the provision of information in this area an explicit function of the public guardian. I should therefore like to consider further the noble Baroness's proposal as it has a great deal of merit.
I believe that the next amendment in the group has not been formally moved. I have no idea what the procedure is, but I shall sit down and allow the noble Baroness, Lady Chapman, to speak to it.
Baroness Masham of Ilton: That is kind of the Minister. My noble friend Lady Chapman will now speak to Amendment No. 195.
Baroness Chapman: I very politely waited to speak to Amendment No. 194, but I did not and missed my moment. I shall not be that polite again.
Amendment No. 195 is designed to safeguard those who lack capacity from others who become over-zealous and overstep the scope of their legal powers. Not only does it allow the person who lacks capacity, or indeed is alleged to lack capacity, legally to question a decision; it would allow an independent advocate to act. That would increase the responsibility of the public guardian so that there was a legal requirement for the patient and independent advocate to be heard.
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That is not stated clearly in Clause 56(1)(h). I am sure that the Minister will claim that that is covered in subsection (1)(h), but by making that specific we will ensure that nobody forgets the patient's rights.
I accept that some people who lack capacity will be unable to represent themselves; hence, the second part of my amendment. I believe that the more lacking in capacity a person is, the stronger is the need for an independent voice to be heard on his or her behalf. I have been specific in the use of the words "care and treatment" in the first part of the amendment, and "decision or decisions" in the second part.
My reasoning is that if a discussion is taking place about care and treatment, particularly the withdrawal of treatment, there need to be safeguards in place to ensure the court-appointed deputy or the donee of a lasting power of attorney, who will have the right to make the ultimate decision, has no vested interest—for example, no financial gain is to be made.
If the amendment were to be accepted, it would allow people who lack capacity an opportunity to question their care and treatment decisions or a totally independent person to do so on their behalf.
9 p.m.
Baroness Ashton of Upholland: I am grateful to the noble Baroness for speaking to Amendment No. 195. I shall address the concerns she has raised.
The Public Guardian will supervise and investigate complaints about two groups of people: those appointed as deputies by the Court of Protection and those whose applications for lasting power of attorney have been approved and registered by him. These people, and the people lacking capacity for whom they act, will in effect, be his client group.
The amendment would extend that client group. It would require the Public Guardian to deal with concerns and complaints raised by anyone who lacked capacity, or was alleged to lack it, or by an independent advocate. I understand the reasons behind the amendment. It would make the Public Guardian a focal point for those who lack capacity. someone to whom they could always turn. In many ways, I expect the Public Guardian to be seen as such a focal point. He will be a valuable source of information for anyone who has concerns about issues concerning people who lack capacity, whether raised by the person lacking capacity or anyone else on his behalf. Those concerns will undoubtedly cover a very wide range of subjects.
However, I would not expect the Public Guardian to deal directly with all concerns or complaints about someone who lacks capacity. For that reason I do not believe that the amendment works. If the Public Guardian did act in all cases, he would be trespassing on the responsibilities of others, frankly, with more expertise. I would expect him, or staff in his office, to direct the person to the appropriate authority or dispute resolution mechanism.

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So, for example, someone with concerns about a care home would be directed to the Commission for Social Care Inspection. The Public Guardian would not be involved in dealing with representations on such a matter, unless it involved how a lasting power of attorney or deputy was exercising his powers. Someone involved in a family row could be told about appropriate dispute resolution mechanisms, such as mediation, that they may wish to pursue, or the Court of Protection.
So, in a sense I accept the principle of the focal point behind the amendment, but I think that it is about directing people to the appropriate sources of support and help in that context.
I turn to Amendment No. 196. The noble Lord seeks a number of further measures to protect donors of lasting powers of attorney. I shall take the two parts of Amendment No. 196 together. The first part proposes that the Public Guardian should monitor a random sample of lasting powers of attorney that are in use. The final part proposes that the Public Guardian should undertake an assessment of the need for future monitoring of a lasting power of attorney where no one is named by the donor to be notified of the lasting power of attorney's registration; or in other circumstances where monitoring is warranted in the opinion of the Public Guardian.
We should always remember that people choose their attorneys when they have capacity to do so. In most, if not all, cases they will choose a person they trust. A system of random sample monitoring could represent a significant intrusion on the affairs of those donors and donees who were selected as part of that sample. I am not convinced that it would be an effective deterrent for the small number of cases where a donee might act unscrupulously.
I understand the concern about cases where the donor of a lasting power of attorney does not nominate anyone to be notified of the registration of their lasting power of attorney. Of course, there might be perfectly good reasons why a person would choose not to notify anyone about the registration. They might prefer to keep their arrangements entirely private. There might he family difficulties. But to provide an extra safeguard in that situation and in response to a recommendation from the Joint Committee, the Bill already requires a second person to certify that the donor has capacity and is making the lasting power of attorney free from any fraud or undue pressure.
We think that that is an appropriate extra safeguard. I do not believe that the absence of people to notify should mark out a lasting power of attorney as different to others or be seen as a trigger for possible future monitoring.
We discussed bankruptcy and the POVA list at a previous Committee sitting. The Bill already states that someone who is bankrupt cannot be appointed to act as a financial lasting power of attorney. We have listened to concerns about how to ensure that the provision is not ignored. We have therefore decided that the Office of the Public Guardian will check to see
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whether prospective financial attorneys are bankrupt when a lasting power of attorney is registered. If the donee is bankrupt, the lasting power of attorney will be invalid.
I explained earlier in Committee that, as things stand, it would not be possible for the Public Guardian to check whether donees were on the POVA list. The forthcoming Bichard recommendations offer us an opportunity potentially to address that shortcoming. I can give a clear commitment that the Public Guardian will make a check on the bankruptcy register and that we are considering how a similar check on the POVA list might be possible. Given that relatively straightforward, I hope, but lengthy explanation, I hope that noble Lords will feel able to withdraw their amendments.
Lord Christopher: The way in which the Bill has been conducted is a remarkable testament to how this House can work. If anything can be seen as an example, it is this. I start with my noble friend downwards because that is the way it has been. I hope that she will reflect on which checks and balance are appropriate.
My point is not about these amendments per se but about what I see as a lacuna in the Bill; that is to say, those who need protection but will not get it under the Bill. I do not want to repeat myself, but we must have some provision for those who are uncomfortable with what they see happening, particularly regarding someone's financial affairs and to a lesser degree their physical well-being—I refer mostly to elderly people—and who have nowhere to go to get something done about it. It may be a bank employee, a solicitor or stockbroker who says, "Something is wrong in the state of Denmark and we think that someone should look it".
There are other parts of the Bill where such a provision could feature but it is important that someone has the power to receive information, to make inquiries to see whether that information is valid and, if it is, to know what should be done about it. I hope that my noble friend can indicate that she will give the matter thought.
Baroness Ashton of Upholland: I am very grateful to my noble friend, although I think that things go upwards rather than downwards from me. My noble friend raised two points. First, do those worried about what is happening to somebody feel protected if they decide to whistle-blow? Secondly, to whom do they whistle-blow? I have already had the privilege of discussing the matter with my noble friend and I have committed to looking at those two issues.
I remember from our debates on the Children Bill, in which the noble Earl, Lord Howe, and I participated, every time we look at cases of tragedies of one kind or another involving the vulnerable, there are people who knew, thought or suspected that something was wrong. They either did not think that they should, or could, tell somebody else or did not know who to tell. The two things that I want to look at in this context are, first, ensuring that people feel that they can

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whistle-blow, and then getting to those who come across a suspicion of abuse or who are concerned the information that they need to do something about it. I am very happy to consider both issues.
Baroness Masham of Ilton: What does the Minister think of the case of Leslie Burke, a man who has a degenerative brain condition? He has said:
"I want to know I won't be left to die".
There are many people with this sort of condition who are worried; they just want to live their life out whatever it may be, and they do not want to be left to die without a drink or some food.
Baroness Ashton of Upholland: We touched on the Leslie Burke case at the beginning of the debate. I must say again that the purpose of the Bill is to empower and protect; it is never about denying people the care that they need, whether it be basic care or the treatment that would help to support them.
As the noble Baroness will know, the issues for the Department of Health arising from the Leslie Burke case have related to the clarification of what is meant by the broad judgment. I have made it as clear as possible that there is no question that I, anyone else in the Government or anyone else in this House would wish to see people denied food and water or basic care, if that were appropriate. However, it must also be clear that treatment must be appropriate and in someone's best interests.
Baroness Barker: I thank the noble Baroness for her warm response to Amendment No. 194. I was slightly disappointed that she did not text me to tell me that she was going to be so good to me.
When the Minister is reflecting on it, will she consider two things? The first is the existing level of abuse of powers of attorney. When Master Lush came to talk to the Joint Committee, he talked about abuse in about 20 per cent of cases. That is a huge proportion. We can draw a contrast with the way in which people consider wills. People witness wills and see that as a serious thing. They know what to do, if they think that a will is not being observed.
Many noble Lords, not least the noble Lord, Lord Christopher, and the noble Baroness, Lady Greengross, who spoke on an earlier amendment, are driving at the fact that there is a need to make people aware that powers of attorney are of that order. If people are aware that things are going wrong, they need to know where to go to and what they can do.
I understand what the Minister says about them being private arrangements, but we cannot let it go on, if we suspect that abuse is at that level. I hope that, when the Minister reflects on my amendment, she incorporates the points so eloquently put by the noble Lord, Lord Christopher.
Baroness Ashton of Upholland: It is very important. Master Lush has been to talk to us about it. We are thinking carefully about how we deal with the issues.
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As the noble Baroness rightly says, it is about enabling people to realise the importance of the matter and to take the opportunity, if they are concerned, to act.
Earl Howe: Once again, it has been a good short debate, and I am grateful to the Minister for her helpful reply. I found the intervention by the noble Lord, Lord Christopher, very welcome. I agreed entirely with what he said. If I may say so, he put it extremely well.
The grave concerns that exist—the noble Baroness, Lady Barker, just referred to the abuse of enduring powers of attorney—should lead all of us to view the Bill as an opportunity to add in safeguards against the risk of abuse. That is where we are all coming from. We agree that there should be safeguards; it is just a question of how we arrive at what is most useful and practicable. I will be extremely glad if my earlier proposals on communication between the Public Guardian and attorneys have set the Minister off on a productive train of thought.
Doubtless, we will return to these matters at a later stage. I am sure that we will want to read carefully what the Minister had to say before we come back with further proposals. For now, it is appropriate for me to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 193 to 196 not moved.]
9.15 p.m.
Lord Kingslandmoved Amendment No. 196A:
Page 31, line 17, at end insert—
"( ) providing to P's donee of a lasting power of attorney an annual set of accounts on the financial status of P."
The noble Lord said: I hope that Members of the Committee will forgive me if I spend more time than is normal in opening a single amendment. I have two reasons for craving your indulgence in this respect.
First, what I shall have to say about Amendment No. 196A in relation to the Public Guardianship Office applies with equal weight to the other amendments that I propose to move; those are, Amendments Nos. 196B to 196F. I promise Members of the Committee that I shall be correspondingly telegraphic when I come to introducing the individual amendments.
The second reason why I would like to have a little time in opening is because, in order to illustrate the scene I want to set about the Public Guardianship Office, I need to refer to a recent Parliamentary Ombudsman report.
The administrative and statutory background to the office is worth recalling. Under the Mental Health Act 1983, the function of the Court of Protection, which is, as Members of the Committee know, an office of the Supreme Court, is to protect and manage the property and affairs of those who, through mental disorder, are incapable of managing those matters for themselves. The 1983 Act provides for the court to appoint a receiver and for the receiver to do any such thing in

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relation to the property and affairs of the patient—now referred to as the client—as the court may authorise.
The PGO is the administrative arm of the court. On 1 April 2001, it took over the mental health functions that were previously undertaken by the PTO, which also included the work of the Courts Funds Office and Trust Division. Where the court is unable to appoint a suitable receiver, it can appoint the chief executive of the PGO to act as a receiver of last resort. In those circumstances, the clients' affairs are assigned to a case worker in PGO's receivership division. The case worker acts under the delegated authority of the court and has day-to-day responsibility for the client.
Politically, the PGO is accountable to the Lord Chancellor's Department for the services that it supplies to its clients. On 29 March 2001, the then noble and learned Lord the Lord Chancellor made a speech forecasting the new responsibilities that the PGO would have when it gained its legal authority two days later on 1 April 2001. In paragraph 3 of the statement made by the noble and learned Lord, Lord Irvine, he said:
"The Public Guardianship Office is committed to making a difference to its clients. It will not be remote: it will work in partnership with Receivers, and others, to protect and manage the financial affairs of some of the most vulnerable members of society. The Public Guardianship Office will deliver better customer service, and will be more accessible to its clients. For Receivers, this will mean a vastly improved advice and information system, available locally wherever possible—a service which supports as well as monitors. It will be a personalised service, designed to meet the needs of individuals. The staff of the Public Guardianship Office will be fully trained, effectively led and managed, and equipped with the tools to do a difficult job in a modern environment".
In the following paragraph, the noble and learned Lord continued:
"This Framework Document sets the framework in which the Public Guardianship Office will operate it also sets out the Public Guardianship Office's responsibility to all those who use its services and its ultimate accountability to me".
As your Lordships are well aware, the Public Guardianship Office is responsible for the affairs and for the care of some of the most vulnerable members of our society. Moreover, the money the PGO is handling is either private trust money or state benefit money to which the clients are entitled.
The extent to which the PGO was failing to meet the standards that might be expected of a public authority charged with these tasks was first brought to my attention towards the end of 2001 by Lord Iliffe, a former Member of your Lordships' House. He had been in correspondence for some time with successive chief executives of the PGO over the management—or should I say mismanagement—of the affairs of his first cousin and next-of-kin, Miss Elizabeth Laurence, for whom the PGO acted as official receiver. Over the next few months I followed the course of this correspondence with a rapidly growing sense of disbelief.
On 9 May 2002 an opportunity arose to draw the attention of your Lordships' House to the likelihood that the PGO was experiencing severe organisational
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deficiencies. This was the occasion of the debate in your Lordships' House on the Court of Protection (Enduring Powers of Attorney) (Amendment) Rules 2002, prayed against by the noble Baroness, Lady Greengross.
In that debate I asked a number of questions, to which I either did not get an answer at all or to which I had a holding letter and a further delay of over a year. I did eventually receive some information about the financial and control accounting procedures of the PGO—I shall make further references to that later on—but I received no answers at all to my questions about the manner in which the Lord Chancellor's Department ensures proper accountability to it by the PGO.
I put a number of questions to the noble Baroness the Minister at the time. I asked what resources in the Lord Chancellor's Department are devoted to supervising the PGO. I asked will there be a specific unit in the Lord Chancellor's Department, bearing in mind the undertakings given by the noble and learned Lord, Lord Irvine, on 29 March, to fulfil the heavy burden the noble and learned Lord had placed upon himself. I asked how regularly would the Lord Chancellor want to examine the systems that were supposed to be in place either to monitor the PGO's own receiverships or the conduct of outside receiverships. I asked how did the Lord Chancellor's Department assess the quality of care that was provided to the clients. To none of these questions did I receive a reply.
Meanwhile, earlier in that year, Lord Iliffe had managed, after a raft of correspondence, to persuade the PGO to agree to an independent audit of Miss Laurence's affairs; but by the beginning of 2003 it was clear that even that was not getting close to the root of the problem.
Accordingly, on 20 February 2003, through the good offices of Mr Robert Key, Miss Laurence's MP, a complaint was made to the Parliamentary Ombudsman that the PGO had failed properly to manage the affairs of Miss Laurence. In particular, it was asked why the PGO had failed to conduct a full audit of Miss Laurence's accounts. It was asked to investigate why a payment of £10,928.51 made from her trust fund had never reached her accounts. It was asked to investigate why a payment of £6,731.01, made by her trust fund in December 2000, had taken until April 2002 to reach her account. It was asked to investigate why other payments to her account had been delayed. It was asked to investigate why payments totalling £1,425 had been wrongly withdrawn from her account. It was asked to investigate why there had been a delay in refunding her receivership fee of £1,750. It was asked to investigate why unnecessary restrictions had been placed on the quality of the life that she was able to enjoy. More generally, it was asked to consider whether the PGO had failed to address issues relating to its internal control and accounting procedures. Finally, it was asked to consider whether the PGO had displayed gross negligence in dealing with Lord Iliffe's correspondence.

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The ombudsman's report was published last November and has upheld every single one of Lord Iliffe's complaints in the most uncompromising and trenchant terms. Fortunately, the professional analysis to which the receivership accounts were subjected did not disclose fraud, only gross negligence. 1 turn to page 13, paragraph 35, of the report to draw your Lordships' attention to the observation made on this aspect of the investigation. Although fraud had not been identified, the ombudsman would nevertheless,
"have to agree with Lord Iliffe that poor record keeping and inadequate systems inevitably mean that there is a higher risk of fraudulent activity being able to take place".
Of the disappearance of the two larger sums of money—£10,928.51 and £6,731.01—the ombudsman stated that the disappearance of these funds,
"represents a significant systemic failing which could cause those trying to monitor the accounts considerable frustration and inconvenience. What is perhaps even more alarming is the fact that the two occasions when this occurred in this case were some ten years apart, highlighting that this problem had not been identified over an unacceptably long period of time, which in turn suggests a totally unacceptable level of scrutiny of all such accounts throughout that time. Given that PGO were looking after the affairs of people amongst the most vulnerable in the country, that exceptionally poor administration merits the very strongest criticism".
Lord Iliffe was deeply concerned when the senior caseworker told him that the delay in recrediting certain moneys to Miss Laurence's account had, in part, been caused by the fact that the location of the money had had to be detected before Miss Laurence could be reimbursed. At page 20, paragraph 47, of the report, the ombudsman comments:
"I think it highly unacceptable for it to be suggested that PGO's duty as a public body dictates an approach which means errors will not be rectified as soon as they are discovered".
A further cause of Lord Iliffe's concern was the failure of the PGO to take account of Miss Laurence's needs. In particular, the tone and content of one letter sent by the PGO to Miss Laurence's carer, were described at page 23, paragraph 53, of the ombudsman's report as,
"extraordinarily insensitive and inappropriate, and merit the Ombudsman's strongest criticism".
At page 24, paragraph 54, the ombudsman went on to observe:
"The evidence clearly shows that Lord Iliffe's later comment to the Chief Executive (in their meeting of 30 January 2002) that he felt that Miss Laurence was being treated as a number was sadly apt".
This point cannot be overemphasised. The ombudsman returned to it in paragraph 57 on page 26, where he stated:
"Whilst I appreciate that the PGO as Receiver has to be assured that funds are properly managed, they also need to have regard to the fact that carers have a very demanding role which is often both physically and mentally exhausting. A carer plays a highly significant role in the client's life and it seems to me that they should he accorded appropriate respect, and dealings with them should be handled with due sensitivity. It also seemed likely to me that many of those family members to whom PGO have transferred Receiverships would also be carers, and would probably need some level of support in carrying out their Receivership duties. I therefore ask the Chief Executive whether
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they anticipated being able to provide such support, and whether he was satisfied that the training now being given to the PGO staff highlighted the need for staff to be sensitive to these sorts of issues."
I am pleased to say that, as a result of all these events, culminating in the ombudsman's report, all the problems that Miss Laurence faced with respect to her financial affairs now appear to have been resolved: and it is not just Miss Laurence who has benefited from this. Indeed Miss Laurence's case, through the efforts made on her behalf by Lord Iliffe, has led to many other clients who would not otherwise have benefited having their affairs rearranged in a manner which has improved their conditions of care.
9.30 p.m.
On page 9, paragraph 27, we learn that. as a consequence of what I might refer to as the Miss Laurence case, the PGO have carried out reviews of all their clients. The papers show that in April 2003 the chief executive of the PGO reported that 1,060 external cases had been reviewed, as a result of which 97 instances of cash losses had been identified, which together amounted to about £100,000. This money was misallocated as a result of deficient financial systems and general mismanagement.
I am delighted to say that, through the reforms which the PGO has been undertaking as a consequence of Miss Laurence's case, there has also been a dramatic overhaul by the agency of its own internal accounting procedures. At page 13, paragraph 36, the ombudsman comments:
"It is quite clear from the papers I have seen that the major reviews that PGO initiated in May 2002 onwards were in direct response to the concerns raised by Lord Iliffe in relation to Miss Laurence's case. Further, the decision to extend the quality audit to those cases which had already been transferred from PGO's receivership to that of a panel or family member was also in response to Lord Iliffe's own suggestion that that would he the most appropriate way forward".
The changes which the PGO has made are summarised in paragraphs 27 to 29 of the ombudsman's report. The ombudsman here says:
"PGO had accordingly commissioned a further external review of its cashier's branch by consultants to assess the extent of the problems highlighted … That review had been completed on 26 March 2003. One of its conclusions was that it confirmed there had been 'a long-term systemic failure to manage [client] accounts in line with modern professional standards. Client accounts have never been audited'. A number of action points were noted which, it was stated, 'should finally bring the Receivership Branch into good order, and leave it fit for purpose for the future'. To take those action points forward, PGO formed a Receivership Project Group comprising representatives from Internal Assurance division, Performance Monitoring Unit, Court Funds Office, Official Solicitor and Public Trustee and Finance Division to take 'an integrated approach to rectifying and monitoring the management of receivership cases and receivership cashiers' … The Receivership project had a wide scope, including a management review of the regulation and statutory requirements, definition of procedures and controls, the reconfiguration of the accounting system, reconciliation of bank accounts, preparation of stewardship accounts for the previous two years, specification of the staff training required, and following through on the action points arising from the quality review".
It is clear that very substantial changes for the better have taken place in the PGO. What remains for us to deal with is the system of democratic accountability of

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the PGO to the Lord Chancellor's Department; in other words, the political dimension. I have already said that the PGO deals with the most vulnerable people in our society. Quality of care to those clients is the yardstick by which we measure the achievement of the PGO.
It seems to me that, previously, the PGO has had a dual role. On the one hand, it has itself acted as a trustee for a large number of clients. On the other hand, it has acted as a regulator of private trustees who have looked after clients' money. So it has been both an operator and a regulator. The amendments which we have tabled are intended to ensure that the system of political accountability is just as secure as we hope the new system of financial accountability will prove.
Amendment No. 196A would ensure that someone other than the PGO is able to scrutinise the annual accounts of a client. Under the current system, the PGO produces client accounts on an annual basis. All such accounts are confidential to the Court of Protection and cannot be released to other parties without the court's permission. The ombudsman's report raises serious concerns regarding the management of clients' finances. In the case of Miss Laurence, as we have heard, a number of payments from her trust fund to the PGO effectively disappeared.
The catalogue of errors that have been vividly illustrated by the report of the Parliamentary Ombudsman is sufficient illustration of the need for change in this area. If Lord Iliffe or indeed the next of kin of any client whose money turned out to be mismanaged had had an annual report of the accounts of the client, that report would have highlighted such errors and allowed them to be called to the attention of the PGO with much greater ease. I beg to move.
Lord Goodhart: My Lords, the story that the noble Lord, Lord Kingsland, just told us about the problem that Lord Iliffe had relating to Miss Laurence's money not being looked after by the PGO raises serious questions. Indeed, the only doubt is whether the noble Lord's proposed amendment goes far enough. The gross incompetence of the PGO as shown in the ombudsman's report is quite extraordinary. Indeed, it suggests that things have gone so far that disciplinary proceedings against members of the staff for the complete failure to carry out their duties would have been called for.
There is of course a problem. The PGA is a very small department in terms of the Government as a whole and is of very little interest or concern to other parts of the Government. The DCA should consider the whole future of the PGO's fund management duties. The question certainly arises whether the fund management functions would be better if they were contracted out and the PGO were left simply with a regulatory function. This matter goes beyond anything that can be dealt with in this Bill and I hope that the DCA will examine the case carefully and conduct a proper investigation into long-term solutions. Otherwise, there is a risk that whatever
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improvements have now been achieved, in a few years' time, the inertia and incompetence may creep back again.
Baroness Andrews: My Lords, I completely understand why the noble Lord, Lord Kingsland, felt that it was so important to put that very grave story on the record. He has been an assiduous champion of that particular case, but I know that his concerns go very much to the heart of the whole administration of the Public Guardianship Office. We are very grateful for the opportunity tonight, in the context of the amendment, to respond to the issues. I can take issue with nothing that he said about the course that that case took—the grave errors of judgment, degrees of incompetence and delays. In the ombudsman's report, he made it clear in sharp language that he was pretty shocked by what he found. It would be tempting to go into some of the detail and quote some of the more positive things that he said in response, but we completely take the point. Everything that the noble Lord said about the quality of care we completely endorse on this side of the Committee.
9.45 p.m.
The noble Lord laid out his case, and I was going to make a general case in response to the notion of the public trustee. However, first, let me just say that not only do we regret the entire saga but we very much take the point that great improvements have come from it. We are very pleased that the case in question was resolved. We are even more pleased that the opportunity was taken to correct processes and systems, and the ombudsman himself paid tribute to that. The noble Lord did us the courtesy of spelling out some improvements that have been made; I could mention quite a few more, as I have a list in the back of my file which goes further than that. The purpose is to keep those matters on the record.
The changes that have been made in accounting processes, accountability and the way in which case working is dealt with are significant improvements. More exactly, the use of call centres has been abandoned and calls are now routinely directed to case work teams. That is a small change, but one that will make a big difference to the individual.
On a point made by the noble Lord, Lord Goodhart, we have created in this Bill a Public Guardian whose functions will be different; he will have no functions of receivership. Those functions are now no more. He has three functions: he will act as a registration body for LPAs, as a supervisory body for deputies and LPAs and as an investigative body. He will be a regulator. There will be no more confusion, in fact. Following from that saga, we now find that his functions as the receiver of last resort are being exercised in only 240 outstanding cases—down from 3,000.
We fully expect, by the time the Bill becomes law, that there will be no more such cases. That will be combined with the degree of supervision which will be built in to the system, when there will be a process of

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consultation before we settle on the details. I should very much like to tell the noble Lord, in view of his professional and personal interest, that we would very much welcome his participation in that process to determine what is the right degree of supervision and how it is best managed. That is something that officials and Ministers would warmly welcome. Those four changes represent my response to the "stall" as it has been set out.
In terms of the accounts in general, in view of what I have just said, the Office of the Public Guardian produces accounts only when it is acting as the receiver of last resort. As I have said, there are now only 240 such cases. Under the Bill, we are not going to be a receiver or deputy and we will not be in the position of handling accounts. That will be the responsibility of the LPA or deputy.
The amendment presumes that the Public Guardian provides accounts to the donee, but the Public Guardian has never done that for enduring powers of attorney. So the amendment is slightly misplaced, in that sense, because the Public Guardian is not in a position to do that. To follow the logic of the amendment, it would require the Public Guardian to receive accounts from all the donees of LPAs to check them, then report back to the attorney and take action. I know that in fact we are talking only about the financial donees, but the proposal is not necessary because what it suggests is not done.
I reiterate what my noble friend has said several times: as regards the role of LPA, these are often private family matters. We must be careful as regards the degree of intrusion that we encourage and enable. Certainly we want to make attorneys aware of their responsibilities and we will provide clear guidance on that. However, we do not want to deter people from agreeing to take on what can be a very sensitive and difficult responsibility by being too heavy-handed.
The important thing is that there should be safeguards in the system. Significantly—I hope that this will reassure the noble Lord—donors of financial LPAs will be advised that they can, if they so choose, stipulate in their financial LPA that they wish the attorney to provide annual accounts to the Public Guardian or to any other third party for checking. That is a front-line defence. Therefore, the Public Guardian can check accounts not only if he is asked to do so but also if someone raises a concern. Concerns can be raised by different sorts of objectors at all stages. If an objector raises concerns about a prospective attorney at the registration stage, the court may add a requirement for the donee to lodge accounts if that would alleviate the concerns of the objector. That is a second line of defence.
Anyone can raise a concern with the Office of the Public Guardian if they fear that an attorney of a registered LPA is not acting properly. The court will then be able to direct that the attorney should lodge accounts. We believe that is robust. They could be "one-off" accounts or annual accounts. They could be lodged with the court, a solicitor, an accountant or, indeed, a third party.
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In the broader context the code of practice makes it clear to financial attorneys that they should keep accounts. We intend to issue guidance to reinforce that message. Obviously, the nature of the accounts will depend on the nature of the finances and the degree of sophistication and complexity—we would expect that. We also intend that the staff at the OPG will he able to advise the attorney on the nature of the accounts that lie should keep. That may take the form of booklets to be distributed in different places.
The code will let attorneys know that they have a fiduciary duty to act in a way that benefits the donor and not the attorney. Attorneys will be reminded that they are under a duty to have regard to the code in all its legal force and that failure to do so could be raised in any court. They will also be told that the Public Guardian or the court can ask them to submit accounts at any time. That addresses the narrow point of the amendment. The broader point is that this is a function which now passes away from the Public Guardian with the loss of receivership functions.
As I said, we take very seriously what the noble Lord said. Clearly, there is a fresh spirit and intent with regard to the Public Guardian. It is sad to reflect that some of those lessons have had to be learnt in rather tragic circumstances but the Committee can have full confidence that there will be much better supervision in the future.
Lord Kingsland: I am most grateful to the noble Baroness for her very full reply in response to my opening remarks.
First, I thank the noble Baroness very much indeed for effectively endorsing the conclusions of the ombudsman's report. For the rest of our debate on these amendments I would like to draw a line under all those issues. Let us assume that the confidence that the ombudsman now reposes in the changes in the accounting procedures and so on in the existing PGO have had the effect that the noble Baroness hoped they have had. Let us now concentrate on the question of political accountability, under which heading I include issues such as the one that we are dealing with under this amendment.
I readily accept that the amendment may not be appropriately worded for the situation that is envisaged by the Bill. I must say, at the outset, that it was only late this afternoon that I appreciated that the Bill envisaged that in future the PGO would not handle any client money itself. I was under exactly the same misapprehension as the noble Lord, Lord Goodhart. The noble Baroness said, "Well, by the time the Bill becomes an Act the remaining 240 trust funds will have been passed to the private sector". I wonder why the noble Baroness is so confident about that. She cannot be so far-sighted as to know exactly when the Bill will become an Act. What makes her so certain that it will be possible to find a home for these 240 remaining funds by that date, which may well be a few months away? Looking at the noble Baroness, Lady Ashton, I expect that she wishes that it were a few weeks away.

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The purpose of this amendment is to give the country confidence that these new trust funds, handled by the private sector, are being properly and responsibly managed in accordance with the principles of trust law. The single most important characteristic that is required in relation to those principles is transparency. Everyone involved in the caring process needs to know what is going on financially. For the vast majority of clients, there will not be much money available. Every penny that goes towards their welfare will count. It is vital, therefore, that we are confident that they are getting what they merit and, at the same time, that the money is being spent responsibly. That is what I am after in my amendment.
The noble Baroness talked about codes and guidelines. Indeed, it is appropriate that the detailed rules about how transparency and accountability are achieved ought to be contained in these codes and guidelines. I know that the noble Lord, Lord Goodhart, would agree that it would be nice for us to get a flavour on paper of what the noble Baroness is talking about. It would help our later deliberations on the Bill, on Report and at Third Reading, if we could have some sense of what we are talking about here in a bit more detail and about how this accountability and transparency will be established. I am not, of course, asking for complete drafts of these things; that would be unrealistic.
There is one other important thought to express in this context. Although the financial side and the caring side are in some sense distinct—the financial side looked after by the trustee, the caring side looked after by the carer and from time to time overseen by the visitor—we must ensure that the two are nevertheless integrated. That is something else that I am looking for from the Bill; or at least I am looking for in the codes and guidelines that are made under the Bill. It is no longer acceptable that the system of financial provision on the one hand, and the physical system of care on the other, should operate in completely separate compartments as they often have in the past. The noble Baroness has already impressed me with her grasp of the subject, so I am sure that her mind will already have turned to this matter. We need to look at that aspect of the situation as well.
The Committee has been extremely indulgent in hearing me out on what has, after all, been the first of these amendments. I promise to meet the undertaking that I gave earlier that I will be more telegraphic in the way in which I approach the remaining amendments.
10 p.m.
Baroness Andrews: The reason I have confidence that we will meet the target of getting rid of all the cases is that, since 2000, we have placed 3,000 cases with private receivers. Over the past 10 months—since April 2004—we have placed 520 of them. We have a good track record and people are coming forward.
Lord Kingsland: I entirely accept that. I think that the noble Lord, Lord Goodhart, and I agree that this
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is the direction that events will have to take. However, as from last November, we have the evidence of the ombudsman's report; so we know that we have to be especially wary of transferring the remaining 240 accounts unless we can be absolutely certain that the system of accountability and transparency will be in place. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kingslandmoved Amendment No. 196B:
Page 31, line 25, at end insert—
"( ) Regulations under this section may not be made unless a draft of a statutory instrument containing the regulations has been laid before and approved by both Houses of Parliament."
The noble Lord said: The amendment was suggested by Age Concern. It enables me to revisit the issue of LPAs, which may be entered into as a result of undue influence from those with criminal intent where the fact of undue influence might not otherwise be spotted. What I am worried about, and what worries Age Concern, is the possibility of a serial scam involving the same individual preying on a series of elderly people—perhaps using the same complicit witness each time—with the objective of stealing from them.
The purpose of the amendment is to make sure that the Public Guardian would have a duty to cross-reference key data in the register of LPAs. In that way, he would more easily be able to identify such scams if the names kept cropping up. I hope that the Minister will be able to give some sort of reassurance about the systems that will be in place to meet the kind of concerns that I have outlined. I beg to move.
Baroness Andrews: I shall speak to Amendment No. 196BA. We are alive to the concerns that the noble Lord has raised. Age Concern is greatly worried that abuse is minimal and that vulnerable people have maximum protection.
Clause 56(3) lists the subjects on which regulations may be made about how the Public Guardian carries out his functions. The amendment would add to that list of functions, which in our court makes for a problem initially. The amendment refers to the cross-referencing of data contained in the LPA instruments that the Public Guardian will hold on his register of LPAs.
That is not necessary, primarily because there is already provision for the Public Guardian to cross-reference in situations where it will be most effective. For example, if someone applied to be a deputy, the Public Guardian could check to make sure that there was not already an attorney in place. If the concern is about serial donees, he could check to see whether the donee was acting for other donors. We have provisions to meet those concerns.
We also have a problem about the notion of such a specific function of the Public Guardian. His functions are essentially to register LPAs and to investigate concerns, not to cross-reference information. That might be enabling, but is not a function. Those extra safeguards are in the Bill, and to add a more sophisticated level would probably be disproportionate. When we come to

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consider our systems for developing and supervising, we shall be looking at robust IT systems that can meet the problems identified by the noble Lord.
Lord Kingsland: I am grateful to the noble Baroness for her response. In those circumstances I shall do nothing more than beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 196BA not moved.]
Lord Kingslandmoved Amendment No. 196C:
Page 31, line 45, at end insert—
"(7) The Public Guardian acts as trustee in respect of monies he receives on behalf of P.
(8) In exercising his functions as trustee under subsection (7) the Public Guardian must exercise such care and skill as is reasonable in the circumstances, having regard in particular—

(a) to any special knowledge or experience that he has or holds himself out as having, and

(b) to any special knowledge or experience that it is reasonable to expect of a person acting in the course of that kind of business or profession."

The noble Lord said: In view of what the noble Baroness said about the Public Guardian no longer acting as a trustee in respect of moneys he receives on behalf of a client once the Bill is on the statute book, it is plain that Amendment No. 196C is surplus to requirements. I wonder whether the noble Baroness will confirm my interpretation. I beg to move.
Baroness Andrews: The noble Lord has saved me hours of time explaining it again. He is absolutely right. I would also say that the Public Guardian has never been a trustee. There has been a confusion of nomenclature which has not least confused the noble Lord. I shall leave it there.
Lord Kingsland: I am grateful to the noble Baroness for informing your Lordships' House that the Public Guardian has never been a trustee in law. I understand that the Public Guardian is not a trustee but an agent in law. That is one of the reasons why I tabled the amendment. Had the Public Guardian remained responsible for the trust funds, it would be appropriate for him to have been subject to all the responsibilities to which a trustee in private law is responsible. That is now all water under the bridge. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 56 agreed to.
Clause 57 [Court of Protection Visitors]:
Lord Kingslandmoved Amendment No. 196D:
Page 32, line 27, at end insert—
"( ) A Court of Protection Visitor must write a report after any interview with P conducted under this section and a copy of the report must be sent to P's donee of a lasting power of attorney."
The noble Lord said: The amendment would require the Court of Protection visitor to write a report after any interview with the client, and a copy of the report to be sent to the client's donee of a lasting power of attorney.
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The amendment was foreshadowed in some of my earlier remarks about the importance of integrating the financial dimension of a client's life with the care dimension. The two are technically separate and ought to be properly integrated. In the light of what was said earlier, I wonder whether the amendment goes far enough. We may need to devise other ways of linking the work of visitors with donees of lasting power of attorney to ensure that the financial resources available not only match the requirements of the client but maximise the benefits that the client can get from the money spent on them. I beg to move.
Baroness Andrews: My Lords, the visitors are very like the Lord Chancellor's visitors. They are the eyes and the ears of the court. They will visit people under the court's jurisdiction and provide reports about the circumstances and needs of those under their care.
The Public Guardian will work with the court to establish a strategy that will determine when these visits will be carried out and who will be visited. Perhaps I may write to the noble Lord to give him such detail as we have about the role of the visitors. This is useful background information. In view of the time, it might be helpful to the House if I were to do that. I shall address the amendment as it stands.
The amendment seeks to provide that in every case where a visit is carried out it is followed by a written report, and that a copy of it would automatically be provided to the donee. The most important thing to say to reassure the noble Lord is that it is already established practice—although it is not a mandatory requirement—for a written report of a visit to be supplied to the court following a visit by a Lord Chancellor's visitor. There are no plans to alter that. The written report will continue to remain a vital part of the process.
However, we do not want to see removed the right of the court to ask for a verbal report. That is the effect of the amendment. It is important to keep the flexibility because in situations of extreme urgency we need to allow the court to accept an initial verbal report in the interests of making a timely decision. It may well be in the best interests of that person if the visitor were able to provide a verbal report, which would then be followed up by a written report.
New terms and conditions for Court of Protection visitors will necessarily be required when the Bill is implemented. It is anticipated that such terms will allow for some flexibility. The important thing I should like to stress to the noble Lord is that if there is an oral report there will always be a written report following it up. But we do not want to take that flexibility away.
In terms of access, the noble Lord has a very important point. At the moment, Section 103(8) of the Mental Health Act provides that visit reports must not be released to any third party without the express consent of the court. But it is already established practice for the court to allow disclosure, and the court and Public Guardian recognise that receivers often find it reassuring to receive such a report. We would want to retain that policy of informed disclosure.

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However, the amendment causes us a problem. Although my noble friend has highlighted the argument in favour of automatic disclosure, there will be cases where to do so will not be in the interests of the person involved. The court might commission a visitor to visit the donor because there have been allegations of financial abuse concerning the attorney. The purpose of the visit might be to interview the donor to gather information about the circumstances. Automatically providing a copy of the report would alert the attorney to the investigation and could well prejudice further progress. So that is the problem that we foresee. We do not want to fetter the discretion of the court and the Public Guardian. We need them to be able to exercise judgment when disclosure would be appropriate.
I am sure that the noble Lord will entirely take that point. I hope he feels able to withdraw his amendment on that basis.
Lord Kingsland: My Lords, I am most grateful to the noble Baroness for her reply. Clearly, in the case of Miss Laurence there was a complete breakdown between those who were supposed to be reporting on her care and those who were supposed to be providing her with her money. So, while I entirely accept the noble Baroness's reservations about my amendment, at the same time she must surely agree that the status quo is unacceptable and that, if my scheme is not a suitable way forward, then the obligation must be on the Government to come forward with an alternative scheme which will work.
As I understand it, at the centre of this Bill is the notion of care—the quality, suitability and relevance of care to the vulnerable person. The picture portrayed by the noble Baroness is one that we need to convert into black letter law, so that we can be sure that the person, the client, comes first. I should be most grateful if the noble Baroness would be prepared, between now and Report, to talk to me about the appropriate way forward. I am perfectly happy to withdraw the amendment, but I should not be happy for the Bill to be silent on the issue.
Baroness Andrews: Yes, I give the noble Lord that assurance and my noble friend and the chief executive of the PGO would be delighted to meet him to discuss those concerns. One thing that I did not say is that the Bill introduces a new provision, so that visitors will be able to visit donees and deputies, not just the client, as is the case at present. It will be possible to use that as a way to engage with those responsible for making decisions. That is a definite step forward, but we would be very pleased to discuss those issues, and any other concerns of the noble Lord.
Lord Kingsland: I am most grateful. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 57 agreed to.
Lord Kingslandmoved Amendment No. 196EA:
After Clause 57, insert the following new clause—
"THE BOARD OF PUBLIC GUARDIANSHIP SUPERVISION

(1) For the purposes of this Act, there is to be a non-executive board, to be known as the Board of Public Guardianship Supervision.

(2) The Board is to be appointed by the Lord Chancellor.

(3) The Board is to consist of no fewer than 9 members, of whom at least three shall be a registered medical practitioner and at least three shall be a certified or chartered accountant.

(4) It is the duty of the Board to supervise the Public Guardian—

(a) in the exercise of his functions with regard to this Act, and

(b) on any matter relating to or arising out of the exercise of those functions.

(5) The Public Guardian must make monthly reports to the Board on matters which the Board thinks are relevant and must provide the Board with such other information as the Board may reasonably require.

(6) If the Board has a concern about any aspect of the Public Guardian, including his discharge of his functions, the Board may make a special report to the Lord Chancellor and the Lord Chancellor must publish that report unless requested not to do so by the Board.

(7) The Board must prepare an annual report on its activities and that report must be included in the annual report laid before Parliament under section (Annual report)."

The noble Lord said: The amendment would create a new institution that I have chosen to call the board of public guardianship supervision. I hope that your Lordships will accept that I have the highest admiration for the noble and learned Lords, Lord Irvine and Lord Falconer, successively Lord Chancellors. Although I have had many political disagreements with them, I have admired the way that they have both carried out their work as heads of department.
Because they have so many preoccupations, it came as no surprise to me that the PGO came rather low on the list of their priorities. That was very much reflected in my dealings, especially with the noble and learned Lord, Lord Irvine, throughout the early and middle stages of the saga of Miss Laurence. Gradually, I formed the view that, although constitutionally the Lord Chancellor was politically responsible for the PGO, in effect, the political distance between the LCD and the PGO was just too great. There needed to be some intermediate institution, more focused on the work of the PGO with members of relevant experience.
That is by no means rocket science. We can all think of a large number of regulators in the United Kingdom that have a general responsibility to a particular department and a chief executive but a non-executive board between the two. I think, for example, of the regulation of much of our competition law. That seemed to me to be a suitable model for the new relationship between the LCD and the PGO.
So, in my Amendment No. 196EA, I have chosen to intermediate the board of Public Guardianship supervision, a non-executive board of no fewer than nine members of whom at least three should be registered medical practitioners and at least three should be certified or chartered accountants. I think

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that the noble Baroness can see what I am getting at by the composition—it is my idea of integrating the care function with the trusteeship function.
The Public Guardian will have an obligation to make reports—monthly, I say—to the board on matters that the board thinks are relevant and must provide the board with such other information as it may reasonably require. If the board has any concern about any aspect of the Public Guardian, including the discharge of its functions, it may make a special report to the Lord Chancellor who must publish that report unless requested not to do so by the board.
The board is the product of my experience of dealing, on the one hand, with the LCD, and on the other, through Lord Iliffe, with the PGO, in relation to one particular case. But it is clear from the report of the ombudsman that what happened to Miss Laurence had happened, to a greater or lesser degree, to 100 other people. In my submission, the Government will have to think up some very cogent arguments to dismiss this amendment. I beg to move.
Baroness Ashton of Upholland: I am grateful to the noble Lord for his comments about my noble and learned friend. To borrow a word from the noble Lord's dictionary, I shall be "telegraphic" in my response.
I hope that, during our meeting to look at the issues, we might cover the noble Lord's proposal in more detail. My noble and learned friend has overall responsibility for the PGO, but as one of his junior Ministers I take some responsibility. It is very high on my list of priorities.
I recognise what the noble Lord seeks to do. Some of the elements of his amendment are already catered for in our work with our advisory board, which includes non-executive directors who bring direct business expertise. The board meets quarterly; it reviews performance; and it has a robust monitoring scheme, which is very important. It also has a business plan, an annual report against the performance targets, and an audit committee, chaired by a non-executive director who is an experienced accountant, and including representatives from the National Audit Office. At the moment I think that we should recreate that body in some form for the new office.
I accept completely the need for external expertise of a non-executive nature. I agree completely that we need financial expertise in particular on audit and accountancy. I agree that we need regular monitoring. I disagree, perhaps, on whether we need to set up a separate board, with all the costs involved, which ultimately would be borne by the clients, and on whether monthly rather than quarterly reporting is an appropriate use of resources.
Having listened carefully to the noble Lord's points, I ask him to withdraw his amendment. I hope that before Report we can discuss whether my proposals meet the noble Lord's underlying concerns, in order for him to feel reassured.
Lord Kingsland: I am most grateful to the noble Baroness for the manner in which she has responded
780
to my proposal. I will be very happy, before Report, to discuss this proposal and her suggestion of an alternative model that tries to achieve the same objective. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kingslandmoved Amendment No. 1961:
After Clause 57, insert the following new clause—
"ANNUAL REPORT
The Lord Chancellor must lay an annual report before Parliament on—

(a) the discharge of the Public Guardian's functions;

(b) the extent to which, in his opinion, the objectives of the office have been met; and

(c) such other matters as the Board of Public Guardianship Supervision may from time to time direct."

The noble Lord said: The amendment would give Parliament an opportunity, at least once a year, to debate the affairs of the PGO and to make sure that the legislation in this House and another place, whatever its final form, is properly respected. It is a vital part of the chain of accountability, and I commend it to the Committee. I beg to move.
Baroness Ashton of Upholland: I am entirely sympathetic to the intention behind the amendment. The Public Guardian should, of course, be accountable to Parliament and to the public for the exercise of his functions, and it is right that we should know how well he is carrying them out.
We fully expect the Public Guardian to report annually on the exercise of his functions, the extent to which the objectives of his office have been met and any other matters of interest. We would, of course, want to lay that report before Parliament, so I would like to consider more fully how we can make those expectations explicit in the Bill.
Lord Kingsland: I am most grateful to the noble Baroness. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 58 agreed to.
[Amendment No. 197 not moved.]
Clause 59 agreed to.
Schedule 3 agreed to.
Clause 60 [Interpretation]:
[Amendments Nos. 198 and 199 not moved.]
Clause 60 agreed to.
Clause 61 [Rules, regulations and orders]:
Lord Goodhartmoved Amendment No. 200:
Page 34, line 12, at beginning insert "An Order in Council under paragraph 32 of Schedule 3 and"
The noble Lord said: Clause 61(2) says:
"Any statutory instrument containing rules, regulations or orders made by the Lord Chancellor or the Secretary of State under this Act, other than regulations under section 39 or an order under section 64 … is subject to annulment in pursuance of a resolution of either House of Parliament".

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In other words, that is the negative resolution procedure. Paragraph 32 of Schedule 3 says:
"Her Majesty may by Order in Council confer on the Lord Chancellor, the court or another public authority functions for enabling the Convention to be given effect in England and Wales".
That is the application of the Hague Convention on the International Protection of Adults.
10.30 p.m.
The Order in Council that enables a convention to be given effect to in England and Wales ought to be subject to the negative resolution procedure. But since it is not a rule or a regulation, nor is it an order made by the Lord Chancellor or the Secretary of State under the Act, it appears that it is not subject to any parliamentary procedure under Clause 61. It is probably appropriate that it should be subject to the negative resolution procedure. I beg to move.
Baroness Andrews: I am grateful to the noble Lord for his magnificent job in introducing his amendment. He is right. Amendment No. 200 would make any Order in Council—to confer functions on the Lord Chancellor, the court or another public authority, but only for enabling the Hague Convention on the International Protection of Adults to be given effect in England and Wales—subject to the negative resolution procedure.
I understand that there are concerns that an Order in Council made under this authority would not be subject to any parliamentary procedure. Looking at the relevant provision in the Bill, I sympathise with the principle behind the amendment. I am certainly prepared to revisit the issue at Report and bring forward an appropriate amendment. It is very useful to have had that short debate. The Delegated Powers and Regulatory Reform Committee already thought that this power was subject to the negative resolution procedure; we intend to make that so.
Amendment No. 201 would make any regulations under Clause 39 to adjust the role of the independent consultee service subject to the negative rather than the affirmative resolution procedure. It is unusual for Members of the Committee to ask the Government to move from affirmative to negative procedures.
Lord Goodhart: If it is convenient, perhaps I may deal with Amendments Nos. 201 to 203. Amendment No. 201 probably got there in error, so it can be disregarded. Amendment Nos. 202 and 203 deal with a question that was raised by the Delegated Powers Committee. As a former member of that committee I of course always support, in principle, its recommendations.
I think the committee got it wrong on the code of practice that we dealt with last week. Paragraphs 6 to 8 of the report say:
"Schedule 3 gives effect in England and Wales to the Convention on the International Protection of Adults … There are delegated powers at paragraphs 32 and 33 of the Schedule, each subject to negative procedure".
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As we have just seen, of course, paragraph 32 was not subject to negative procedure; it was not subject to any procedure at all. After describing what paragraph 32 does, the report continues:
"In addition, paragraph 33(1) enables the Lord Chancellor by regulations to make provision: (a) giving further effect to the Convention; or (b) otherwise about the private international law of England and Wales in relation to the protection of adults. By paragraph 33(2)(b) the regulations may amend Schedule 3 to the bill. So this is a Henry VIII power, albeit a very limited one.
So far as the power in (a) is concerned, we consider the fact that the provision must be to give further effect to the Convention to he a sufficient limitation to justify the negative procedure. But the power in (b) is not restrained in a similar way, nor is there a satisfactory explanation of this power in the memorandum … We suggest therefore that the house may wish to invite the Government to explain more fully the purposes for which the apparently wide power in paragraph 33(2)(b) is needed: and we recommend that, in the absence of a satisfactory explanation, the affirmative procedure should apply".
I therefore invite the Government to explain more fully the purposes for which the apparently wide power in paragraph 33(2)(b) is needed.
Baroness Andrews: I am sorry that the noble Lord continued reading to that point. I can give him a solid answer on what we are going to do but I do not have briefing on why we are doing it at this point.
Amendments Nos. 202 and 203 would make any regulations giving further effect to the Hague Convention or otherwise about the private international law of England and Wales in relation to the protection of adults made under paragraph 33(1)(b) of Schedule 3 subject to the affirmative resolution. As the noble Lord said, currently the negative resolution procedure would apply. Again, these amendments have been prompted by the report of the Delegated Powers and Regulatory Reform Committee.
The committee recommended that while the negative resolution procedure was the appropriate level of scrutiny for regulations made under paragraph 33(1)(a) of Schedule 3, the affirmative resolution procedure might be more appropriate for the regulations made under paragraph 33(1)(b) of Schedule 3, given the wide powers it entails. We accept that paragraph 33(2)(b) regulations may indeed amend Schedule 3 and that therefore this is a Henry VIII power, although quite a limited one.
We intend to revisit the regulations under paragraph 33(1)(b), taking into account the recommendations of the Delegated Powers and Regulatory Reform Committee, and bring forward the appropriate government amendment on Report. However, the negative resolution procedure already afforded under paragraph 33(1)(a) is sufficient; we do not have a problem there.
I am tempted to say that I will write to the noble Lord and explain a little more about why we need the power but I am not entirely sure that I would get much support from my officials. Anyway, I will advance that promise.
Lord Goodhart: I am grateful to the noble Baroness. In the circumstances, I am happy to withdraw the amendment.

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Amendment, by leave, withdrawn.
[Amendments Nos. 201 to 203 not moved.]
Clause 61 agreed to.
Clause 62 agreed to.
Schedule 4 [Provisions applying to existing enduring powers of attorney]:
Baroness Greengrossmoved Amendment No. 204:
Page 52, line 8, at end insert "notwithstanding"
The noble Baroness said: In moving Amendment No. 204, I shall speak also to Amendments Nos. 205 and 206. As it is the last grouping I shall be very brief. One can think of dreadful puns about enduring debates and lasting for ever and other horrible things, but I shall be quick.
The amendments concern the transitional arrangements in regard to enduring powers of attorney and lasting powers of attorney. They seek to ensure, first, that attorneys under enduring powers of attorney should come under the provisions of the Bill and should have the same obligations to follow its principles as anyone else. There is concern that Section 1 does not apply to EPAs.
The second point is that, given the long lead-in once the Bill receives Royal Assent. individuals will be unsure whether they should continue to use an EPA or wait until the LPAs come into force. We are dealing with people who have full capacity when they appoint someone and then lose their capacity afterwards, perhaps many years later. Where a person has not lost capacity, there should be a simple way of converting the enduring power of attorney into a lasting power of attorney to encourage more people to come into the new system. I beg to move.
Baroness Andrews: We admire the intention behind the amendment to make existing unregistered enduring powers of attorney subject to Clauses 1 to 4 of the Bill. It would make them subject to all the principles of Clause 1, the key principle of best interests, and also to the provisions for assessing capacity in Clauses 2 and 3.
We very much sympathise with the noble Baroness's intentions. She has made them clear throughout the Bill and her expertise has been invaluable to us in ensuring that we stick to the principle of best interests. It seems only right that EPAs should follow the same principles and standards of conduct but, for logistical reasons, it will not be possible.
People who execute EPAs prior to the implementation of the Mental Capacity Bill will have a legitimate expectation that they will be able to use the EPA in the future on the same basis on which it was created and that it will have the same legal effect. It would be unfair to change the rules. Indeed, we cannot apply Clauses I to 4 retrospectively to unregistered EPAs. Registered EPAs would not be affected by this amendment.
It would not only be unfair, it would also be impossible. The noble Baroness knows the situation very well. Changing the rules for EPAs would mean that we have to inform every donor and appointed attorney
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of the changes. But EPAs do not have to be registered until the donor loses capacity, so there is no record of every EPA in existence. We would be introducing a major unfairness. We have no way of contacting the people concerned or of informing them of the changes. I am sure that noble Lords will applaud the sentiment, but will agree that the problem is insoluble in these terms.
Amendment No. 206 would have the effect of converting EPAs into LPAs. It would cause confusion by leaving us with three types of power: the EPA, the converted EPA that is really an LPA, and the LPA. That is the problem with transitional arrangements. It would be far easier for people who have an unregistered EPA, provided that they have capacity, to tear it up and create a new LPA to replace their EPA.
Although the principles of the Bill will not formally apply to EPAs, all attorneys still have duties, including a fiduciary duty, towards the donor. The existing duties are very similar to LPAs, but EPAs are more limited because they relate to property only. We will be promoting the principles of the Bill as good practice for anybody involved with people lacking capacity. When the Bill is passed, we will encourage people to replace their existing EPAs with LPAs. We will address the problem in the information that we will put out. I hope that that will solve many of the problems that the noble Baroness foresees. It is not feasible to do what she suggests. I hope that she will be able to withdraw her amendment on that basis.
Baroness Greengross: I thank the Minister for her reply. It would be excellent if people change over, but there will be a lot of people who are muddled and unsure. I hope that when we get to the next stage of the Bill, the noble Baroness will be able to give us more details about how people will be encouraged to make the change over. That would be extremely helpful. It will require some resources and a system for letting people know that, as the Minister said, a good way for them to change over from an EPA would be by putting it in the bin and starting afresh with an LPA. I look forward to hearing more about how that might he done and about making sure that people who have an EPA benefit from the provisions that the Bill introduces. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 205 and 206 not moved.]
Schedule 4 agreed to.
Remaining clauses and schedules agreed to.
House resumed: Bill reported with amendments.

Children (Contact) and Adoption
A message was received from the Commons that they concur with the Lords that it is expedient that a Joint Committee of Lords and Commons be appointed to consider and report on any draft Children (Contact) and Adoption Bill presented to both Houses by a Minister of the Crown, and that the Committee should report on the draft Bill by 26 May 2005, and have ordered:
That a Select Committee of six honourable Members be appointed to join with the Committee appointed by the Lords to consider the draft Children (Contact) and Adoption Bill.
That the committee shall have power—

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

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

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(iii) to report from time to time;

(iv) to appoint specialist advisers;

(v) to adjourn from place to place within the United Kingdom; and

That the quorum of the committee shall be two.
House adjourned at sixteen minutes before eleven o'clock.