Lords Sitting of 15 March 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 Chelmsford.
Lord De Manleyhaving received a Writ of Summons in accordance with Standing Order 10 (Hereditary Peers; by-elections) following the death of Lord Burnham—took the Oath.

Prisoners: Diabetes
2.36 p.m.
Lord Harrison Lord Harrison asked Her Majesty's Government:
What further action they will take to improve the treatment of diabetic prisoners in HM prisons.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, from 1 April 2005, NHS primary care trusts will commission primary health services in almost all publicly run prisons in England. Mainstreaming prison health services in that way will bring about further improvements in the treatment of diabetics in prison, in line with the National Service Framework for Diabetes. Improvements will include better identification on reception, the establishment of specialist diabetes clinics in prison and closer links with NHS diabetes services, the introduction of retinopathy screening and practice-based registers, and improved continuity of treatment on transfer or release.
Lord Harrison: My Lords, I thank my noble friend for that Answer and for the welcome news that he conveys. However, does he appreciate that at the moment only 29 per cent of PCTs have a dedicated policy on diabetic prisoners? That leads to a mismatch between custodial and clinical care, which results in diabetic prisoners not doing their blood sugars well and having wrong diets, wrong meal times and, on occasion, inadequate physical exercise. In addition to what he proposed, will he study and possibly replicate the good practice at HMP Littlehey in Huntingdon, where supervision and clinics are provided in close partnership with specialist diabetologists from local hospitals?
Lord Warner: My Lords, my noble friend is right. HMP Littlehey ran one of the 18 pilot schemes, which we will roll out nationally in April. As he says, it has been a great success. The improvements taking place in prison health services have been mentioned by the Chief Inspector of Prisons. Some of the improvements in places such as Littlehey are shown in Diabetes UK's bimonthly magazine for March and April.
Baroness Masham of Ilton: My Lords, is the Minister aware that there are now specially trained
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diabetes nurses? Would it not be a good idea for them to train all the prison staff and prisoners on the needs of diabetic patients, who have hypos, pass out and have all sorts of problems if their sugar levels go too low? Are Canderel and Splenda—sugar substitutes—provided in prison for prisoners?
Lord Warner: My Lords, my grasp of the inner workings of the Prison Service do not extend to answering the noble Baroness's question on the availability of Splenda, but I will look into it. She made a more general point about nurses. We have made the transfer to the NHS taking responsibility for prison healthcare so that, from April, primary care trusts will be able to commission the services most appropriate for prisoners in their circumstances. The kind of ideas that she suggests will be one of the things that they will consider, I am sure.
Baroness Barker: My Lords, what progress has there been on the recommendation from the prison health service in 2002 that there should be a register of diabetic prisoners? In the Minister's response to the noble Lord, he talked about public prisons. What is the position in contracted-out prisons?
Lord Warner: My Lords, one matter that is being improved is that there should be a register of prisoners with diabetes. I cannot say what the precise arrangements are, but that is certainly one requirement that should be put in place. Another improvement is that a lot of work has been done on transfer out. An example is ensuring that NHS Direct credit cards are available. Prisoners can fill in a claim form—NHS HC1—for help with healthcare costs. Prisoners are also helped to get back on to GPs' lists on release.
Baroness Morgan of Drefelin: My Lords, now that the Department of Health has responsibility for healthcare in the Prison Service, will the Minister assure us that inmates will have access and the opportunity to take up the department's advice on healthy living, such as access to five portions of fruit and vegetables a day and regular exercise?
Lord Warner: My Lords, I am sure that primary care trusts will consider that issue when they consider services for the health of prisoners. I can reassure my noble friend by saying that the Government have put extra resources into prison healthcare. About £40 million extra will be spent over the next year or two on strengthening those services.
Lord Harrison: My Lords, will my noble friend work with his colleagues in the Prison Service to ensure that prison staff training is adequate? For instance, a distinction should be able to be made between a prisoner having a hypoglycaemic reaction and one who is simply acting up.
Lord Warner: My Lords, I am sure that the Prison Service will take account of those issues in the training of staff to achieve better integration between the

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custodial services and the health services, but I shall certainly draw the attention of the Prison Service to my noble friend's point.
Lord Hylton: My Lords, the Minister mentioned that almost all prisons are now covered by national health services. Which prisons or which categories of prisons are not yet covered?
Lord Warner: My Lords, there are two or three, but I cannot remember which, so I shall write to the noble Lord.

NHS Hospitals: Mixed-sex Wards
2.42 p.m.
Baroness Knight of Collingtree Baroness Knight of Collingtree asked Her Majesty's Government:
What steps they are taking to abolish mixed-sex wards in National Health Service hospitals.
Lord Warner: My Lords, we have set clear standards that require single-sex accommodation to be provided. Data collected for 2003 show that 97 per cent of National Health Service trusts provide single-sex accommodation. This is defined as single-sex sleeping areas, separate bathroom and toilet facilities for men and women and, for those trusts providing mental health services, safe facilities for those who are mentally ill.
The remaining 3 per cent of trusts are undertaking building projects and will be compliant when these are complete. We are currently collecting data for 2004 and will publish this in May. We expect this to show that the rate of compliance has risen.
Baroness Knight of Collingtree: My Lords, is the Minister aware that press reports in recent weeks have indicated that there is a doubt about the 97 per cent figure? Does he recall telling this House only last Wednesday that his Government keep their promises? Can he explain why a promise made in 1997 and again in 2001 to abolish all mixed-sex wards has still not been kept? The promise was made eight long years ago and those wards still exist.
Is the Minister also aware that, for many sick people who are conscious and aware of their surroundings, it is a gross indignity to be forced to be in a ward where there are members of the opposite sex? Is he not concerned that the most recent government diktat—that hospitals will be penalised if they do not get rid of mixed-sex wards and waiting lists—is liable to increase the problem?
Lord Warner: My Lords, I am not sure that I recall all of the noble Baroness's lengthy questions, but I shall do my best to respond to their spirit. I remind her and the House that the Conservative Party's policy on mixed-sex accommodation had exactly the same
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objectives as that of this Government. We have not changed the guidelines in any way from those that were issued on this subject before 1997. The difference is that they set no targets for their achievement, put no resources into it and cut the number of hospital beds by nearly 160,000, which made achieving single-sex accommodation far more difficult.
However, we have kept the promise that we made and perhaps I may refer the noble Baroness to the announcement made by my noble friend Lord Hunt on 13 January 2003, which showed that we had met the target of 95 per cent that we promised. I shall provide a few figures to help the noble Baroness with this difficult issue. There are about 10,000 general wards in the NHS and only between 100 and 120 do not have single-sex accommodation.
Baroness Royall of Blaisdon: My Lords, I welcome the information given by my noble friend the Minister, but I regret the fact that there are still some people who have to stay in mixed-sex wards. What are the Government doing in the interim to ensure that the dignity and privacy of patients who have to be in those wards are maintained?
Lord Warner: My Lords, I shall pick up a matter raised by the noble Baroness, Lady Knight—namely, the misreporting she described which, I think, appeared in the Sunday Telegraph. As was clear in that misleading newspaper report, it is always inevitable that there will be some clinical emergencies whereby hospitals have to take the most appropriate action for the patients involved. We are using the hospital building programme, on which the party opposite is usually notably silent, to improve the accommodation. While this Government have been in office, we have spent some £250 million on improving patients' privacy and dignity.
Lord Chan: My Lords, in mental health wards there is a high risk of problems with mixed-sex wards. Is the Minister entirely convinced that all our mental health hospitals have no mixed-sex wards?
Lord Warner: My Lords, the information that I have is that compliance with our guidance in mental health accommodation is even higher than in acute units. The latest data show that 99 per cent of mental health wards comply with our objectives.
Baroness Barker: My Lords, the Minister will be aware of the MIND report in September 2004, in which 25 per cent of mental health patients recorded having been in mixed-sex wards. Can he confirm that a significant number of children and young people are still held in mixed-sex psychiatric wards?
Lord Warner: My Lords, I do not have the data on children in psychiatric hospitals, but I can tell the noble Baroness that the MIND report used a different

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definition of single-sex accommodation. Moreover, the sample size was very small and included information from former users dating back as far as two years after they were in hospital.
Baroness Sharpies: My Lords, is the Minister aware that, last year, I stayed in one of the 3 per cent. of hospitals to which he referred, and that I was in a mixed ward? I agree with the noble Baroness opposite. It was extremely embarrassing; we all felt very uncomfortable.
Lord Warner: My Lords, I am sorry, but if the noble Baroness would tell me where she was, I shall let her know what the circumstances were.
Baroness Thomas of Walliswood: My Lords—
Lord Stoddart of Swindon: My Lords, this question goes back a long way. Perhaps the Minister will recall that in 1995 1 promoted, and this House passed—although the Commons did not—a Bill to outlaw mixed-sex wards. That was 10 years ago. Despite what Ministers on both sides of this House have said and the promises that they have made to get rid of such wards, they still exist. Will my noble friend the Minister assure me that staff in the National Health Service are being appraised of the view of this House, and of the population generally, that those promises should be carried out fully?
Lord Warner: My Lords, I think that people are being a little unfair on the NHS in this area. The NHS is confronted with the fact that this will go on under whichever government are in office. People will be admitted as emergency cases and hospitals will have to do what is right clinically and find the most appropriate placement for those individuals—men or women. I think that there is confusion in some noble Lords' minds about the difference between single-sex accommodation and single-sex wards. Earlier I said that the guidance on this issue has been exactly the same under this Government as it was under the previous government. The NHS guidelines require single-sex accommodation, which is defined as: single-sex sleeping areas, which may embrace bays rather than whole wards; separate bathroom and toilet facilities for men and women; and, for trusts providing mental health services, safe facilities for patients who are mentally ill. We have delivered those objectives, while the previous government did not.
Lord Hunt of Kings Heath: My Lords, does my noble friend accept that, over the past seven years, transforming this accommodation has been a massive undertaking and there has been substantial success in achieving the target? Is it not time that we started praising the NHS rather than continually knocking it?
Lord Warner: My Lords, I could not agree more with my noble friend. That is why we have consistently paid tribute to the hard work of NHS staff in
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delivering the improvements that we have seen in the NHS under this Government. The knocking copy comes from the other side of the House.
Earl Howe: My Lords, some months ago, my noble friend Lady Noakes tabled a series of Questions for Written Answer in an attempt to find out which NHS hospitals still have mixed-sex wards. The Government declined to supply that information. Why do Ministers believe that the public do not have a right to be told where mixed-sex wards are still to he found?
Lord Warner: My Lords, I go back to my earlier answers. I have been talking consistently about single-sex accommodation and not single-sex wards. I have gone to some trouble to try to explain that to the House and to noble Lords opposite. As I have said, a number of hospitals are not compliant, the reason being that they have outstanding building works, many of which will be completed in the next 12 months or so. As I said in my Answer, in May we shall be making public the results of the 2004 survey in this area.

Medical Graduates
2.52 p.m.
Earl Howe Earl Howe asked Her Majesty's Government:
Bearing in mind the future needs of the National Health Service, what actions they are taking to attract new graduates into the medical profession.
Lord Warner: My Lords. I think we are introducing a new institution of health Questions in this House.
Medicine continues to be a very popular choice, and English medical school intakes this autumn are planned to be more than 6,050—the highest figure ever. That will be more than 60 per cent higher than the 1997–98 intake. Since the extra places announced by this Government in 1999 came on stream, almost 8,200 more students have entered medical schools in England. These are the NHS doctors of the future.
In addition, some universities have introduced four-year fast-track graduate-entry medical degree courses. In October 2004, 691 students entered these courses in England against a planned figure of 590. NHS bursaries in the form of NHS-funded support in years two to four are also available to English-domiciled students undertaking the new four-year graduate-entry medical courses.
Earl Howe: My Lords, I thank the Minister for that helpful and positive reply. However, is he aware of the grave concern expressed this week by the BMA that, as a result of the financial cuts in prospect under the research assessment exercise, it will be impossible to increase the numbers of medical graduates that we need and that some long-serving academic doctors are now staring redundancy in the face? What comment does the Minister have on that?
Lord Warner: My Lords, on the subject of medical academics, through the UK Clinical Research

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Collaboration I commissioned Mark Walport of the Wellcome Trust to undertake a review into this issue. His report has been received; we are considering it and hope to make an announcement shortly. It will improve the career pathways for doctors who are pursuing a route of academic medicine. I do not think that we accept the BMA's figures on all aspects.
Lord Walton of Detchant: My Lords, does the noble Lord accept that the decision by various UK medical schools to introduce the fast-track route towards a qualification in medicine for science graduates is most welcome? For some years, I was a trustee of the Foulkes Foundation, which gave grants to people with PhDs in science to enable them to study medicine in the hope—largely fulfilled—that they would subsequently become doctors working in academic medicine. Will the Government do all they can to increase the number of science graduates entering medical schools and the number of schools that offer these fast-track routes to qualification?
Lord Warner: My Lords, we now have 14 medical schools offering four-year fast-track graduate entry. I pay tribute to the contribution that the noble Lord has made in this area. It has been a success, and the fact that, as I said in my Answer, the numbers are continuing to go up and that there were 100 more subscriptions than had been planned for in last October's intake gives testimony to the fact that this has been a great success.
The Earl of Onslow: My Lords, can the noble Lord help me as I am a genuine seeker after information? My daughter is a doctor and, when she did her houseman's training, there was no Working Time Directive. The directive has now cut the hours to a 44-hour week, if I am not mistaken. Before that, junior doctors were doing an awful lot more and gaining more training and more experience. How has the problem of what is, in effect, a reduction in productivity been overcome?
Lord Warner: My Lords, it has been overcome with the usual adaptation and ingenuity of the NHS, to which I pay tribute.
Baroness McIntosh of Hudnall: My Lords, I very much welcome the information that my noble friend has been able to give about the increase in the number of people entering the profession. However, can he say what the Government are doing to increase the interest that medical graduates are prepared to take in the rather less glamorous specialties? I have a particular interest in the current shortfall in specialists in psychiatric medicine. Can he say what efforts are being made to close the gap?
Lord Warner: My Lords, specialty areas continue to seem to be less popular with people qualifying as doctors. We continue to work with all the interested parties to try to ensure that there is a good understanding of the opportunities in those areas. I do
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not have the precise figures in the specialty that my noble friend mentioned but I shall look into it and, if I can shed any more light, I shall write to her.
Lord Alton of Liverpool: My Lords, can the Minister tell the House how many doctors and nurses now working in the United Kingdom are from Africa? Will he reflect on the criticisms made by the BMA yesterday that it is immoral to rely on thousands of people who are trained as doctors and nurses in Africa when we are not training enough graduates in this country to fill those needs?
Lord Warner: My Lords, people have a right to come here to train. We have a long tradition of helping doctors from around the world both to become trained and qualified and to improve their postgraduate qualifications. The number of home graduates accepted to study medicine in the UK increased from 281 in the 1994 intake to 1,303 in 2003. Therefore, the increase in numbers in our medical training schools comes predominantly from people from within this country, and we have undertakings and understandings with different countries not to over-attract people to come to work in this country, thus denuding them of medical and nursing expertise.
Baroness Barker: My Lords—
Lord McColl of Dulwich: My Lords—
The Lord President of the Council (Baroness Amos): My Lords, the Liberal Democrats.
Baroness Barker: My Lords, given that all 29 medical schools in this country have reported an over-subscription to their courses and that last year 120 people from the United Kingdom sought medical training in places as far afield as the Cayman Islands and Prague, can the Minister say what the Government are doing to ensure that there is a sufficient number of teachers of clinical medicine in this country?
Lord Warner: My Lords, I tried to address that issue when I responded to the noble Earl, Lord Howe.
Lord McColl of Dulwich: My Lords, what is the Government's attitude to the establishment of a private medical school, which will certainly increase the number of medical graduates?
Lord Warner: My Lords, it is for the General Medical Council to decide and determine the suitability of particular places to carry out medical training. There are no plans, as I understand it, for a particular school to be endorsed, but no doubt if in the medium to long term there is an expansion of medical school places, consideration will be given by the GMC to any proposals coming out of the private sector.

Overseas Students
3 p.m.
Lord Renton of Mount Harry Lord Renton of Mount Harry asked Her Majesty's Government:
Whether it remains their policy to encourage overseas students to come to English universities for their graduate and postgraduate courses.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Lord Filkin): My Lords, it is very much our policy to attract more international students to the UK. We recognise from the DfES international strategy the success and importance of the Prime Minister's initiative and emphasise our commitment to continue to expand the numbers of international students. We are currently considering a range of options for the recruitment of international students to the UK when the Prime Minister's initiative comes to an end in April.
Lord Renton of Mount Harry: My Lords, I declare my interest as a member of the council of Sussex University. About 20 per cent of the university's students are international and they make an important contribution to its income and to its international reputation and knowledge.
Will the Minister explain his statement that the Government seriously wish to attract more overseas students, against the background of the Home Secretary's two statements, first, that international students will not be allowed to appeal to an independent agent if their visa application to study here is refused—despite the fact that the Immigration Advisory Service points out that about 65 per cent of such appeals are successful—and, secondly, the rise in visa application charges from £155 to £250 for postal applications and from £250 to £500 for applications in person? Surely such measures are bound to put off young students from trying to come to universities in this country. They will look elsewhere instead.
Lord Filkin: My Lords, yes, I can. First, the regulatory impact assessment, published at the time the Home Office announced those charges, set out why the Home Office did not believe that that would have a significant impact by deterring applications to the UK from students wishing to study here. That is for a good reason; we are seeing growth rates of between 12 and 14 per cent in the number of students coming to the UK.
The second reason is that the appeal right is at this stage only a proposal. We do not recognise the figures of the Immigration Advisory Service from our data. In many cases, it is more sensible for the student to make another application electronically than to go through the delay of an appeal, which can take some months. Above all, I urge the noble Lord and others who have an interest in the matter to cast their eyes to the bigger picture rather than at
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the narrow tree of this issue, which is obsessing the House, and to look at the massive expansion in the potential of UK education exports over the next two decades. There is a massive market there for us if we can focus on it and seize it.
Lord Tomlinson: My Lords, I declare an interest as chairman of the London School of Commerce. Is my noble friend aware that overseas students should not only be encouraged to our universities but also to the high quality private providers who are working collaboratively with British universities? Is he also aware that the greatest encouragement to both those entering the universities and the private sector of higher education is the significant progress made in recent months by UK Visas in achieving a much smoother pattern in the issue of UK visas? I hope that my noble friend will assure the House that that progress will continue.
Lord Filkin: My Lords, yes, I can. UK Visas has committed to raising its standards as part of the service. Of course, the fundamental question is how much the noble Lord, Lord Renton, believes that taxpayers should subsidise the cost of administering visas to foreign students. Does he believe that the taxpayers should subsidise them totally or only in part, as we are currently proposing to do? The big issue is the enormous expansion that has taken place in HE and FE education over the past five years. We have almost doubled the value of UK education exports in this country and we intend to go further, in partnership with private sector providers, as was signalled, and we are confident that we will be able to do so, as the Chancellor recently indicated.
Lord Quirk: My Lords, has the Minister seen the report in the current issue of the Economist, which states that overseas student applications to this country have in fact fallen this year by a hefty 5.3 per cent? But is he aware that the universities will at least take heart from what he has said in response to the noble Lord, Lord Renton, about visa appeal matters, just as they took heart when the noble Lord, Lord Triesman, spoke on 8 February (col. 656) on the continuing "availability of an appeals system", the very day Her Majesty's Government announced their plans to remove it?
Lord Filkin: My Lords, I never want the House to take too much heart from anything I say from the Dispatch Box. There is a danger of getting the issue out of proportion. The question is how much taxpayers should subsidise foreign students and whether we believe that there will be a continuing expansion in the strength of UK educational exports. Yes, we do.
Furthermore, I would be disappointed if within a month's time we did not announce the next phase of the Prime Minister's initiative on going further in partnership with higher education, further education and business both to attract more students and to look at how we can promote exports of education through other means rather than simply the direct import of students into the country, important though that is.

Registration of Cancer Bill [H.L.]
3.7 p.m.
Lord Williamson of Horton: My Lords, on behalf of the noble Baroness, Lady Finlay of Llandaff, I beg to introduce a Bill to make provision about the registration of cancer and for connected purposes. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Lord Williamson of Horton.)
On Question, Bill read a first time, and ordered to be printed.

Serious Organised Crime and Police Bill
Lord Grocott: My Lords, on behalf of my noble friend Lady Scotland, I beg to move the Motion standing in her name on the Order Paper.
Moved, That it be an instruction to the Committee of the Whole House to which the Serious Organised Crime and Police Bill has been committed that they consider the Bill in the following order:

Clause 1,

Schedule 1,

Clauses 2 to 53,

Schedule 2,

Clauses 54 and 55,

Schedule 3,

Clause 56,

Schedule 4,

Clauses 57 to 78,

Schedule 5,

Clauses 79 to 105,

Schedule 6,

Clauses 106 and 107,

Schedule 7,

Clauses 108 to 118,

Schedules 8 and 9,

Clauses 119 to 123,

Clauses 142 to 146,

Clause 124,

Schedule 10,

Clauses 125 to 141,

Schedule 11,

Clauses 147 to 154,

Schedule 12,

Clause 155,

Schedule 13,

Clause 156,

Schedule 14,

Clauses 157 and 158,

Schedule 15,

Clauses 159 to 166,

Schedule 16,

Clauses 167 to 169

Schedules 17 and 18,

Clauses 170 to 174.—(Lord Grocott.)

On Question, Motion agreed to.

Criminal Justice and Police Act 2001 (Amendment Order 2005
Baroness Amos: My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That the draft order be referred to a Grand Committee.—(Baroness Amos.)
On Question, Motion agreed to.

Extradition Act 2003 (Part 3 Designation) (Amendment) Order 2005
Baroness Amos: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That the draft order be referred to a Grand Committee.—(Baroness Amos.)
On Question, Motion agreed to.

Immigration (Leave to Enter and Remain) (Amendment) Order 2005
Baroness Amos: My Lords, I beg to move the third Motion standing in my name on the Order Paper.
Moved, That the draft order be referred to a Grand Committee.—(Baroness Amos.)
On Question, Motion agreed to.

Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005
Baroness Amos: My Lords, I beg to move the fourth Motion standing in my name on the Order Paper.
Moved, That the draft regulations be referred to a Grand Committee.—(Baroness Amos.)
On Question, Motion agreed to.

Criminal Procedure and Investigations Act 1996 (Code of Practice) Order 2005
Baroness Amos: My Lords, I beg to move the fifth Motion standing in my name on the Order Paper.
Moved, That the draft order be referred to a Grand Committee.—(Baroness Amos.)
The Countess of Mar: My Lords, is there any reason why these Motions should not be moved en bloc?
Baroness Amos: My Lords, I understand that the Procedure Committee has to consider the issue and

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then put a proposal to the House. It will be considered at the next Procedure Committee meeting. I would very much like to move them en bloc.
On Question, Motion agreed to.

Constitutional Reform Bill [H.L.]
3.10 p.m.
The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): My Lords, I beg to move that the Commons amendments be now considered.
Moved accordingly, and, on Question, Motion agreed to.
COMMONS AMENDMENTS
[The page and line references are to Bill 18, the Bill as first printed for the Commons.]
The text of all the amendments can be found at: http://www.publications.parliament.uk/pa/Id200405/ Idbills/035/05035.1-4.html and subsequent pages.
COMMONS AMENDMENT
1 Clause 2, leave out Clause 2
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1.
In moving the Motion on Amendment No. 1, I shall speak also to Amendments Nos. 264, 265 and 593. The latter three amendments are entirely consequential on Amendment No. 1.
Your Lordships will recall spending—
Lord Kingsland: My Lords, I am most grateful to the noble and learned Lord for giving way. Would the noble and learned Lord be prepared to speak now to both the first and second line of amendments; in other words, to deal now with the issue of "Lord" and "lawyer"? Although they are in some senses distinct, in others they are intimately connected.
Lord Falconer of Thoroton: My Lords, that is a very sensible idea. I am more than happy with that suggestion.
Your Lordships have spent much time considering both the issue of "Lord", if I may call it that, and the issue of "lawyer". I urge noble Lords to reconsider your earlier position; to listen afresh to the arguments that we debated in some detail previously; to note and to listen to the other place and the arguments that were advanced to and fro there; and to note as well the overwhelming support in the other place for removing Clause 2 of the Bill and the restriction that the office holder must be a lawyer who is also in the other place.
In the year since the Bill was first introduced in this place, a huge amount of progress has been made. The concordat, which we debated at length while the Bill was
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passing through this House, has been referred to as an "historic" agreement, and I would agree. We have agreed in this place to significant reforms in setting up an independent Judicial Appointments Commission, a new United Kingdom Supreme Court and a fundamentally reformed office of Lord Chancellor. I am very grateful to the noble Lord, Lord Kingsland, for his acceptance on behalf of those opposite of, as he described it, the "new architecture of the office of Lord Chancellor". We have also accepted on this side of the House that the office of Lord Chancellor should remain, albeit with "the new architecture"—to use the words of the noble Lord, Lord Kingsland.
Looking back at the debates we have had on this issue, it seems to me that there is also agreement that the purely ministerial nature of the Lord Chancellor's role in the concordat does not lead inexorably to the conclusion that he or she could fulfil that role only by being a Member of this place. Accountability can be provided in either House for those functions. I think that we are also agreed that the use of the word "Lord" in the title of "Lord Chancellor" need not be confined to a Member of this place. We discussed previously the example of the Lord Privy Seal who could be in the other place, albeit described as a Lord.
The agreement in this place goes further. The special roles of the Lord Chancellor, on which we all agree in terms of the rule of law arid judicial independence, will require a special person. The holder of that office will need to be strong and independent, with sound judgment and wide experience.
Our differences come down to two issues: whether statutory provisions requiring the Lord Chancellor to be a Member of this place and an experienced lawyer—which is dealt with in the next group—will help or hinder the appointment of the best person for the job in terms of fulfilling that special role. Our argument, which I believe is right, is that such provision can only hinder our efforts to ensure that the best person for the job is appointed to fulfil the role.
I shall set out the many reasons that have led me to the conclusion that the amendment from the other place to remove Clause 2 should be accepted and that we should also remove the requirement for "lawyer" in Clause 3.
The main reasons put forward in support of what was Clause 2 have involved references to making sure that the Lord Chancellor is not in the "hurly-burly" or "political fray" of the other place, or is not—to use another phase used in the debate—"climbing the greasy pole". I believe that the assumption that that will be achieved by preventing the Lord Chancellor being a Member of the other place is fundamentally wrong.
I say in parenthesis that this place in 2005 feels very different from how it felt in 1997. I have no idea how different it feels to those who have been here since a very long time before that. I draw attention to one example. Would it have been normal 30 or 40 years ago to have the political debates that are currently criss-crossing the Dispatch Box, in the widespread belief—accurate or not, I know not—that a general election is coming? Would a Member of the Conservative Front Bench put down a

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Question, as the noble Baroness, Lady Hanham, did yesterday, on whether the Front Bench on this side of the House were going to purloin the Conservatives' policy on providing council tax relief for old-age pensioners?
I would respectfully suggest that this place has changed fundamentally. The way that this place now operates is based on coalitions between the three parties. Although they are changing coalitions, this is essentially a much more political place than it was five, 10 or 20 years ago.
The other aspect of the argument assumes that all Members of this place are older, towards the end of their careers, not looking for political advancement and very experienced, and that all Members of the other place necessarily are not in that position. That is clearly not the case and does a disservice to your Lordships' House and to Members of the other place.
I cannot understand why Members of this place think that all Members of the other place are so unsuitable for the office and that there should be an absolute statutory bar to exclude all of them unless they are willing to resign their seat and come to this House as though that were the only appropriate solution. What is so wrong with elected representatives that—leaving aside Clause 3 for a moment, which is the lawyer one—any person who becomes a Member of this place should be eligible for an office while an elected representative should not be?
We all know that Secretaries of State in the other place also exercise functions that require impartial decisions to be made on their merits. My right honourable friend the Deputy Prime Minister exercises quasi-judicial functions under the Town and Country Planning Act in determining planning appeals, yet I hear no one questioning whether, he and his predecessors who have fulfilled that important role in planning are fit to carry out that work because they are Members of the other place.
My right honourable friend the Secretary of State for Work and Pensions has responsibility for decisions made on awarding benefits—a responsibility that is vital to ensure that those in need get the benefits to which they are entitled. Yet I hear no one question whether the Secretary of State for Work and Pensions should be a Member of this place rather than the other place. Some would argue, although I am not one of them, that the Attorney-General should be a Member of the other place, despite the nature of his role as the ultimate source of legal advice to the Government.
To describe a Lord Chancellor from the other place as a "political appointee" is to forget that all Lord Chancellors have been political appointees in a similar sense. On the whole, the system has served us well. It is also to forget that many Members of this place are political appointees of one kind or another.
As for the other place being a "hurly-burly" of activity, I wonder, as I said earlier, whether your Lordships have reconsidered that, given the attention that proceedings in this place have had in recent months and the changes that have occurred in recent years.
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The office of Lord Chancellor has evolved over time. For example, we have escaped the tyranny of having to have a Bishop as Lord Chancellor. It continues to evolve.
Noble Lords: Oh!
Lord Falconer of Thoroton: I apologise to the Bishops, my Lords.
The department for which the Lord Chancellor is responsible is now responsible for a budget, as I have said on many previous occasions, of £3 billion. It continues to evolve with the magistrates' courts coming within its remit from next month. And this place continues to evolve. A statutory prohibition on the Lord Chancellor being a Member of the other place would, in my view, prevent the office evolving over time in response to the reforms on which we are all agreed.
We cannot legislate to ensure that the best person for the job is appointed; if we could, we would have done so already. Clause 2 may prevent someone whom your Lordships may consider strong and eminently suited to the office from accepting it because he also wants to continue to serve his constituents, and his constituents may continue to want him to be their representative.
I have outlined my strong conviction, but many others share my view that it is the person who holds the office that is important, not where he is a Member. Perhaps I may quote from the recent Constitutional Affairs Select Committee report on this. It stated:
"Although it may be more likely that someone in the House of Lords as at present constituted has the seniority and lack of aspiration towards further office which we considered desirable, it is by no means certain, and there will be suitable candidates for the post in both Houses. There does not, therefore, seem to be a compelling argument for insisting that the Lord Chancellor must be a member of the Upper House".
I move on to the second aspect of the debate, as the noble Lord, Lord Kingsland, suggested. I detected from earlier debates that some of your Lordships have formed the view that legal qualifications or knowledge gained through practice at the Bar, or being a judge, is needed to carry out the functions in the concordat effectively. As I have said, that is plainly not the case. The ministerial role for the Lord Chancellor in the concordat simply does not require that.
The Judicial Appointments Commission will be formed of people who are skilled in determining whether candidates for judicial office possess the relevant skills and experience. The Lord Chancellor will not need a legal qualification or a prescribed period of experience in legal practice to judge the merit of candidates, and the system is set up to ensure that any personal knowledge the Lord Chancellor has of candidates will not prejudice the selection process. Indeed, one purpose in creating a Judicial Appointments Commission is so that it will not be one person's knowledge—which, inevitably, will be intense in some areas but not in others—driving the process of judicial appointments.
The Attorney-General is the legal adviser to the Cabinet. He advises all Ministers and he can advise the Lord Chancellor. Should any legal issues arise about the

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operation of the process itself, the Department for Constitutional Affairs has a team of legal advisers, like any other government department.
So that leaves us again with the Lord Chancellor's special role in relation to the rule of law and independence of the judiciary. I am convinced that sound judgment in those matters does not depend on the application of forensic legal skills. What is needed is judgment, intellect, courage, stature and independence; an appreciation of our constitution and respect for its principles. It is those characteristics that have served Lord Chancellors, as they have served impressive political Ministers, so well over the ages. While many politicians and Lord Chancellors have had legal qualifications and experience, for Lord Chancellors, that has been as a result of the judicial functions of the office, which are now no longer to be performed by the Lord Chancellor.
In recent times, the Lord Chancellor plainly had to be a lawyer and a Lord because he presided over the Judicial Committee of the House of Lords. That requirement has now gone. The skills needed to be a judge are no longer needed by Lord Chancellors. I am certain that, even without their legal qualifications, Lord Chancellors would still have been able to carry out their special functions, and the rule of law and independence of the judiciary would still have their valued place at the heart of our constitution. The Lord Chancellor would be a guardian of that—lawyer or not.
We have a lot to lose if we reinsert the statutory requirement that was Clause 3. Many eminent people who could uphold the rule of law and independence of the judiciary with exceptional courage and determination may be disqualified. Many excellent legal minds may be disqualified from holding the office because they have pursued an academic career or just miss out on the practising requirement. The last time that we debated this, we identified a significant number of people who were not lawyers who, it was widely regarded throughout the House, would have been excellent defenders of judicial independence and the rule of law. All those people would have been excluded by Clause 3.
Legal experience does not necessarily mean a person will be the right one for the job. Other experience, such as previous experience as a Minister, are equally important. I have already set out how valuable my prior experience of ministerial office has been to me in my role as Lord Chancellor. I do not think that I need to reiterate the points about what the ministerial role should be. The issue is not about whether a lawyer could be a good Lord Chancellor. We all know, looking at history, that that is the case. The issue here is whether only a very senior lawyer can be a good Lord Chancellor based on a record of sustained legal practice.
Those are the arguments. We must try to make it as easy as possible to ensure that the right person gets the job. Neither of these limitations achieves that.
Moved, That the House do agree with the Commons in their Amendment No. 1.—(Lord Falconer of Thoroton.)
Lord Kingslandrose to move Amendment No. 1A, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 1, leave out "agree" and insert "disagree".
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The noble Lord said: My Lords, I shall speak also to Amendments Nos. 264, 265 and 593 and to Amendments Nos. 2 and 2A. The issue of Lord and lawyer has already been very fully debated in your Lordships' House on two previous occasions: first, in Committee on 13 July, I think, and, secondly, on Report on 7 December. On both occasions, the debate ended in a vote.
Off the Bill went and now it has come back with another place disagreeing with our belief that future Lord Chancellors should continue to be both Lords and lawyers. I do not need this afternoon to argue again the full case that was so beautifully argued by so many of your Lordships. I simply want to remind your Lordships of what I think are the key issues.
Your Lordships will recall that, when the Bill first came to us, the Minister who was to be responsible for its operation was the Secretary of State for Constitutional Affairs. Your Lordships were left in no doubt that future Secretaries of State for Constitutional Affairs would inhabit another place and would, in all likelihood, not be lawyers. We had a flavour of the status of future Secretaries of State by observing the status of the present Secretary of State for Constitutional Affairs, which is rather low in the hierarchy.
Unexpectedly, it proved impossible for the Government to abolish the position of Lord Chancellor in June 2003; so the noble and learned Lord had added to the end of his title, "arid Lord Chancellor". I think that he would agree that his main responsibility since appointment has been as a Secretary of State, rather than Lord Chancellor; although I am the first to recognise that he has fulfilled the responsibilities of Lord Chancellor impeccably.
In Committee, there was one crucial omission that has now been rectified and., I am glad to say, accepted by another place. That is the provision in Clause 1 placing a duty on the Lord Chancellor—whom, I am pleased to say, we replaced for the Secretary of State—to observe the rule of law. Clause 1 is headed, "The rule of law" and states:
"This Act does not adversely affect—

(a) the existing constitutional principle of the rule of law, or

(b) the Lord Chancellor's existing constitutional role in relation to that principle".

Later, in Clause 14, we find that future Lord Chancellors will be required to take an oath. Proposed new subsection (2) to Clause 14(1) states that future Lord Chancellors will,
"swear that in the office of Lord High Chancellor of Great Britain I will respect the rule of law, defend the independence of the judiciary".
So there have been two important changes since the Bill arrived in your Lordships' House, both of which have been accepted by the noble and learned Lord. The first is that, in future, the Minister will continue to be the Lord Chancellor; the second is that he or she will have a statutory obligation to observe the rule of law and will have taken an oath to that effect. The question before your Lordships, therefore, is whether the office of a future Lord Chancellor—statutorily bound to observe the rule of law and having taken an oath to that effect—is compatible with being a Member of another place.

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I, perhaps, might test your Lordships' patience by dilating for a moment on some recent constitutional history. Your Lordships will remember, in particular, that in the asylum legislation proposed in 2004 there was an attempt to introduce an ouster clause. Your Lordships will also remember that, very recently, in the Prevention of Terrorism Bill, there was an attempt to introduce an open-ended suspension of habeas corpus.
If the noble and learned Lord the Lord Chancellor had not been primarily the Secretary of State for Constitutional Affairs, but had been primarily the Lord Chancellor with his traditional and conventional responsibilities for the rule of law, neither the ouster clause nor the suspension of habeas corpus would have emerged from the Cabinet. They would never have seen the light of day.
A traditional Lord Chancellor, charged by convention with his responsibilities for the rule of law, would have stopped his colleagues in their tracks. It was only because the noble and learned Lord was saddled with the primary responsibility of being Secretary of State for Constitutional Affairs that he was unable to do so. Fortunately for the country, your Lordships' House stepped into the shoes of the Lord Chancellor and stopped both the ouster clause and the permanent suspension of habeas corpus.
Now, the mists have cleared; we find ourselves on the verge of an Act which will enshrine in statute the Lord Chancellor's responsibility to uphold the rule of law. It is my contention that that responsibility is incompatible with membership of another place. Membership of another place—
3.30 p.m.
Lord Maclennan of Rogart: My Lords, I am most grateful to the noble Lord. Lord Kingsland, for giving way. But I put it to the noble Lord that he is, perhaps inadvertently, idealising the historical role of the Lord Chancellor in recent times. I believe that the previous Conservative Lord Chancellor might not have gone as far as suggesting that he, in his role as Lord Chancellor, could either have stopped the Conservative Cabinet in its tracks if it had proposed something contrary to the rule of law or ever denied that. as a Member of a Cabinet, he was bound by collective responsibility for its decisions. The example I put forward is the denial of access to justice—an issue of great constitutional importance—which the noble and learned Lord, Lord Mackay. was unable to resist, when legal aid rules were substantially altered to cut access to the courts.
Lord Kingsland: My Lords, I am most grateful to the noble Lord for his intervention. If he will allow me to continue a little further, I think that he will get the answer to his question. I was about to argue that a Lord Chancellor responsible for upholding the rule of law in statute would find that responsibility incompatible with membership of another place.
Election to another place on a political mandate, which is to be implemented by a parliamentary majority by the mechanism of parliamentary sovereignty, is a
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reflection of the will of the electorate. By contrast, the rule of law is that part of our constitution which upholds the right of the minority against the majority. It upholds the right of the individual against the state.
How can a politician—elected on a popular mandate and bound by the convention of collective responsibility—when one of his colleagues insists that the popular will demands the ouster of the courts or demands the suspension of habeas corpus be part of that popular majority and, at the same time, uphold the rule of law? There must be a fundamental conflict between the statutory requirement of upholding the rule of law and, at the same time, the electoral requirement of doing the bidding of the majority.
The noble and learned Lord has based the whole Bill on the concept of separation of powers; but what could be a greater confusion of powers than to confuse the principle of parliamentary sovereignty with the principle of the rule of law? If the noble and learned Lord was an elected politician in another place, he would find it impossible to determine to which of the two he owed the greater duty. Therefore, constitutionally, it must be right that the person who defends the rule of law in our constitution is not an elected politician. The doctrine of separation of powers demands that.
I am also astonished to hear the noble and learned Lord suggest that anyone who is asked to do the job of Lord Chancellor could undertake it without being a lawyer. I am sure that your Lordships have had a very careful look at the Bill. For those of your Lordships who have done so, I am convinced that the inevitable conclusion must be that the post of Lord Chancellor could be undertaken only by someone who was not just a qualified lawyer but also someone who was very experienced in the law.
The Lord Chancellor will be asked to take the final decision on who should have a judicial appointment. He will be asked to exercise his judgment about the capacity of someone to be a judge. How can he do that without having the professional understanding of what the judicial task is about? The noble and learned Lord the Lord Chancellor shares also myriad responsibilities with respect to the management of the judicial system, including judicial discipline, together with the Lord Chief Justice. How can he do that unless he is a lawyer of equivalent status and standing to the noble and learned Lord the Lord Chief Justice?
For those reasons alone the Bill demands a lawyer, but there are two additional reasons. First, as the noble and learned Lord is well aware, the noble and learned Lord has removed all the judges from your Lordships' House—not only the judges from the Judicial Committee, but also the Lord Chief Justice, the Master of the Rolls and the Lord President. Without those judges the only lawyer left in the other branches of the political system will be the Lord Chancellor. It will be the Lord Chancellor to whom the judges will wish to talk. They will need to talk to someone for whom they have great jurisprudential respect. For that reason as well, the Lord Chancellor will need to be a lawyer.
Finally, many distinguished non-lawyers made the most compelling speeches in the debate on the Prevention of Terrorism Act. But the detailed analysis

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of what did or did not comprise the rule of law, in my submission, required legal expertise. The core of the debate about the rule of law in your Lordships' House was a debate about the law; and, indeed, about many extremely sophisticated facets of the law. How can a Minister defend the rule of law unless he has a thorough grasp of its components? In my submission, only a lawyer can do so. So, for those reasons as well, it seems to me inconceivable that your Lordships could come to any other conclusion but that the Lord Chancellor needs to continue to be a lawyer.
I recall in one of the earlier debates the noble and learned Lord the Lord Chancellor saying that there should be no constraint on the qualifications for Lord Chancellor because the Prime Minister should not be inhibited in his choice of the person for that position. I see the noble and learned Lord nodding in assent. In my submission, that is a bad argument.
The basis of the argument is that it is wrong that the Prime Minister, in taking any decision about anything in his political universe, should be constrained by anything. The problem for any Prime Minister about a Lord Chancellor who is a lawyer and Lord is that he is a constraint on executive power. I hope that is not the reason why the noble and learned Lord wants to remove that constraint.
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 1, leave out "agree" and insert "disagree".—(Lord Kingsland)
Lord Lloyd of Berwick: My Lords, in due course, I shall be moving the amendment which stands in my name. However, I understand that it has been agreed for the convenience of the House that we should say all that we have to say now and then move the amendment formally in due course.
Last December, this House saved the office of Lord Chancellor. I hope that does not sound too melodramatic. It is worth saying again because it has been put about—and was, indeed, put about by the Lord Chancellor himself—that all we had saved was the title of Lord Chancellor. That was never true and I am very glad that the Lord Chancellor has accepted today that it is his view that we have saved the office of Lord Chancellor.
Historically, as we know, the office has been held by a senior lawyer who has also been a Member of this House. The noble Lord, Lord Kingsland, has dealt primarily with the many arguments in favour of the Lord Chancellor being a Member of this House. I suggest that that convention is now so strong that it ought not to be broken. It is at least as strong, I would suggest, as the parallel convention that the Prime Minister should not be a Member of this House.
My task is the lesser one of persuading your Lordships that the Lord Chancellor should also be a lawyer, as he has also always been.
On 7 December, we voted in favour of retaining the office of Lord Chancellor as traditionally understood, save in two relatively minor respects. First, we agreed that he should no longer sit as a member of the Appellate Committee. But as, since the days of the
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noble and learned Lord, Lord Mackay of Clashfern, the Lord Chancellor has seldom done that, it was not a great matter.
Secondly, we agreed that the Lord Chancellor should no longer be the titular head of the judiciary—that title now falls to the Lord Chief Justice. But we intended, at least I believe we intended, that in all other respects the office should continue as before. We intended that the Lord Chancellor should continue to be the head of a great department of state responsible for the administration of justice. We also intended that he should be responsible, as a very senior member of the Cabinet, for representing the views of the judges in Cabinet and defending the rule of law. That is how the great Lord Chancellors of the past have seen their role.
3.45 p.m.
The House of Commons, by their Amendment No. 2, propose that the Lord Chancellor need no longer be a lawyer. That argument, if accepted, is obviously very important; it would bring about a very important change.
The arguments in favour of the change seem to be as follows. First, that as the Lord Chancellor is no longer to be a judge, he need no longer be a lawyer. That argument was, indeed, advanced today by the noble and learned Lord the Lord Chancellor. But it is such an obvious non sequitur that it need detain us no further.
The second argument—the more important argument—is that the Prime Minister should be free to choose the best man for the job. An example that has been given in the past is that if the choice lay between a Roy Jenkins on the one hand and a second-rate lawyer on the other, the Prime Minister should be free to choose Roy Jenkins.
Thirdly, as no one suggests that the Secretary of State for Defence should be a soldier, that the Secretary of State for Health should be a doctor, or that the Secretary of State for the Environment should be—I suppose—a builder, the argument is: why should the Lord Chancellor be a lawyer? To do the noble and learned Lord the Lord Chancellor justice, he did not advance that third argument before your Lordships today.
So I am left with the second argument, which I shall try to answer. I have said already that one of the most important—if not the most important—functions of the Lord Chancellor is to be the representative of the judges in Cabinet and a spokesman for their views. Putting it another way, he is to be the intermediary—or, if you like, the bridge—between the Executive on the one hand and the judiciary on the other hand. One does not need to be a far-seeing prophet to realise that that function will have an increasing importance in the years to come.
To do that job—to act as the intermediary or bridge—effectively, the Lord Chancellor clearly needs not only to have the confidence of the Prime Minister; he also needs to have the confidence of the judges. He will only have that confidence if he knows the legal system inside out before his appointment and if he understands the rule of law, in all its many

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ramifications, through his long training in the law. Above all, if I may put it this way, he must be a lawyer by instinct; a lawyer with an instinct for justice.
But even all that is not enough if he is not also a very senior lawyer. Nothing would undermine the confidence of the judiciary more than if the Lord Chancellor was still on the look out for another job; if he was still looking for political preferment when his particular job came to an end. That is why, as has been said so often during these debates, the Lord Chancellor needs to be at the end of his career—or at the peak of his career, put it how you will—and not half-way up the greasy pole.
It may be said that all that is so obvious; that the Lord Chancellor must so obviously be a lawyer, that it is hardly necessary to say so in the statute. I am not so sure. There is much in the Bill that to me at any rate hardly needs saying, but we have said it. As the noble Baroness, Lady Scotland, is so fond of saying, we are where we are. At the moment we are in the course of modifying the office of Lord Chancellor, but we must do so in such a way as to make clear the limit of those modifications.
That is why, when the Lord Chief Justice spoke in the debate on 7 December, he said that his own view and the view of the Judges' Council was that the Lord Chancellor should be a lawyer, and ideally should have the same qualifications as a High Court judge. He wanted a requirement to that effect, by which I understood him to mean that he wanted it written in the Bill, which is where it was until Amendment No. 2 was passed in the House of Commons. I suggest that those views should be paid great heed today.
One last point needs to be made. There is a wider question. The Lord Chancellor is no longer to be the head of the judiciary, but he is still the head of the legal profession, which is far wider than the judiciary, important though the judiciary is. It includes barristers, solicitors, magistrates, magistrates' clerks and, perhaps more important than ever, the court staff. They all look to the Lord Chancellor as the head of their profession. That is how he is seen throughout the common law world, and indeed elsewhere. It would be a tragedy if we were to spoil that image.
I want to remind your Lordships—and tell those of your Lordships who did not hear it—of what was said by my noble and learned friend Lord Cooke of Thorndon, formerly president of the Court of Appeal of New Zealand, in this House on 11 October. 1 regret that it is quite a long quotation, but it is so apt and not a single word is wasted. Those who heard him say it will never forget it. He said:
"What is the greatest legal office in the world? Before the Bill was conceived, there could have been little doubt that it was that of the Lord Chancellor. In a non-Gilbertian sense, he embodied the law of England. His—and it could be her—high status has been an enduring symbol of the commitment of the United Kingdom to the rule of law and the independence of the judiciary. That was not primarily because he sometimes sat as a judge—a practice which was falling into desuetude and is now being abandoned. That was incidental. It was because he was a senior Member of the House of Lords and of Cabinet—an illustrious and universally respected
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lawyer who was able to speak with authority for all that the law represents. He was a kind of guarantor or watchdog of legality at the heart of the constitution".—[Official Report, 11/10/04: col. 38.]
I suggest to your Lordships that that is all that needs be said.
Lord Lester of Herne Hill: My Lords, will the noble and learned Lord deal with one matter? He mentioned Roy Jenkins; does it count at all with him that my personal experience for two and a half years of the second Wilson government was that it was Roy Jenkins—neither a lawyer nor at that time a Member of this House—who as Home Secretary stood up for the rule of law against the left in cases such as the Shrewsbury Two and the Clay Cross councillors, when the lawyer members of that Government, fine though they were, were not as able to do so?
Does that indicate that an arbitrary exclusionary rule would keep away a fine person of that quality from acting as a Lord Chancellor?
Lord Lloyd of Berwick: My Lords, of course I accept everything that the noble Lord says. Roy Jenkins was unquestionably a very fine man and he might perhaps have made a Lord Chancellor, but he did not have the qualifications that I, and I believe the judges, regard as so important.
Lord Renton: My Lords, having agreed fully with what the noble and learned Lord, Lord Lloyd of Berwick, and my noble friend Lord Kingsland said, perhaps I may add a few further factors that arise as a result of my having been in both Houses for nearly 60 years. I should perhaps mention that for all but nine of those years I have been a Queen's Counsel and had at one time a busy practice and a great deal of part-time judicial work.
During my 34 years in another place there were no fewer than 20 Queen's Counsel spread across the House. In those days plenty of Labour Members were Queen's Counsel, but now there are only 10 Queen's Counsel in the House of Commons and eight of them are Conservatives. However, in your Lordships' House there are 34 Queen's Counsel spread across the House. I am glad to say that there are some in each party and on the Cross Benches who are active and successful in practice.
Therefore, I feel that the noble and learned Lord the Lord Chancellor when presenting his case, overlooked the reality of the situation of the profession. That is regrettable and fundamental. It follows that it would be unwise and impractical not to have the Lord Chancellor in your Lordships' House, as has happened for centuries with success. The repeal of Clause 2, which is what the Government are proposing, would be unwise, impracticable and against the public interest.
Lord Morgan: My Lords, I would like to speak strongly in support of what my noble and learned friend the Lord Chancellor said. I do so with the confidence of a non-lawyer, who tend to be unrepresented in these discussions.

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Many of the arguments that we have heard, which were powerfully put and which I respect, are based on the way things have been; that is the way it has been for generation after generation; century after century. We have been spared 1,000 years of history, which we heard in a previous debate, but let us take 1,000 years of history.
The point is that the job of the Lord Chancellor is different: he is fulfilling a different role. He is not head of the legal profession or the judiciary. He—or let us hope, she—cannot be a judge. There is an independent Judicial Appointments Commission to make appointments. He or she will not be in charge of internal discipline; on the contrary, as we have heard, the Lord Chief Justice will have that role, and his role will be enhanced as a result of the Bill.
I see no reason for the Lord Chancellor to be a lawyer. Lawyers do not have a monopoly of the understanding of the principle of the rule of law and of constitutional rights. The rest of us could use our fuddled brains to understand those matters as well. It is a matter of intelligence, not of background. The professional value is not necessary any more than—as we have heard—in other areas. The best Minister of Health we ever had was a Welsh coalminer. He knew nothing about medicine, but he fulfilled a role.
The role of the Lord Chancellor is constitutional. It is not to be a lawyer; it is to act at the interface between the judiciary and the Executive. It is to consider that role and to apply his intelligence and his understanding, which might even be historical understanding, to look at these matters. It is his role to see that the rule of law is preserved. He should have an outlook that is judicious but not necessarily judicial. He need not be a judge; he need not be a lawyer. He should, as we have heard, fulfil some of the other qualities that were fulfilled by the late Lord Jenkins of Hillhead.
We have no reason to confine the choice simply to those who are professional lawyers. On the contrary, I would go even further and agree with the Bar Council, which observed that it was highly desirable that the Lord Chancellor should not be a lawyer because that would give an impression of an incestuous professional expertise whereas the rule of law belongs to everybody, to every citizen, even to those of us who are not lawyers. That is what the Government are upholding; that is what they are doing in the Bill and I very strongly support them.
Secondly, I also see no reason why we should have the Lord Chancellor in your Lordships' House. The House of Lords was at its best last week in protesting, opposing and amending proposals on the Prevention of Terrorism Bill. I played my full part last week and am very proud of my role as a critic. That is what the House of Lords should be doing. It should be revising and amending, acting as a Chamber representing the community in defending civil liberties, located in the real world.
The House of Lords is at its worst in arrogating to itself a monopoly of wisdom and claiming that, for example, parliamentary sovereignty is in essential
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conflict with the rule of law and that it is for the elected people down the Corridor, not for us. Parliamentary sovereignty is a concept for us, too. We are a part of Parliament and it seems absurd to say that only a part of Parliament should consider that proposal.
Following last week's discussions on the Prevention of Terrorism Bill, it is even more important that the Lord Chancellor should be in the House of Commons because he is considering precisely the interface between the judicial handling of terrorist cases and the view of Ministers who can, as we know, often be arrogant. He should be accountable to the elected Members of the House in areas such as the working of judicial review. We need the strongest possible Minister to do that, whether he be a lawyer or not, drawn from the widest range of talent. As we heard earlier, there are plenty of examples of very strong Ministers who have taken that view in the House of Commons and very weak legal officers who have not taken that view, however great their list of qualifications and however lengthy their entry in Who's Who.
My noble and learned friend the Lord Chancellor made the point that this is an important Minister who will be handling a budget of £3 million or more—probably more—
Noble Lords: £3 billion.
Lord Morgan: I meant billion, my Lords—forgive me. I am not numerate, but £3 billion was what I meant to say. That is a very large budget, with lots of noughts at the end —too many for me. It clearly should be defended and justified by an accountable Minister in the House of Commons.
It is very important that somebody like the Lord Chancellor should be an open forum, accountable to Members of Parliament, to the public, to citizenry and not simply to an unelected House. I regret, therefore, that these proposals are challenged. I think that the House of Lords is seen at its very best if it adheres to its traditional role as a defender of freedom and does not emerge so strongly that it adopts an anachronistic and exaggerated posture which does not seem appropriate.
Lord Howe of Aberavon: My Lords, I yield to nobody in my admiration for the late Roy Jenkins, but I do not think that one case, however distinguished, really proves that point. I should like to deal with the arguments advanced by the noble and learned Lord the Lord Chancellor to a large extent by quoting some passages for which he was responsible, beginning with that very point.
It is of course clear that one could find some people of great distinction and angelic independence who have qualified as dentists or engineers. But what are the odds? The noble and learned Lord the Lord Chancellor gave us the answer in the debate on 7 December when he said:
"In many cases one will be much better off having someone in this House … it is 'mistrustful' of the other place to say that it could never produce anyone as good as someone from our place to perform that function".—[Official Report, 7/12/04; col. 775]

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We are not going that far. The noble and learned Lord is there asserting what we assert—it is much more likely that this place would produce someone of the right quality and qualifications. I repeat:
"In many cases one will be much better off having someone in this House".
That is the central point, partly for the reasons given by my noble friend Lord Renton.
Lord Falconer of Thoroton: My Lords, I do not think I said that it would be much more likely to find someone in this House. I think that the noble and learned Lord is confirming that.
Lord Howe of Aberavon: My Lords, I have quoted verbatim, with some care.
Lord Falconer of Thoroton: My Lords, the noble and learned Lord went on to say that I said such a thing was much more likely. I do not think that I did say that.
Lord Howe of Aberavon: Yes, indeed, my Lords. I shall read it again:
"In many cases one will be much better off having someone in this House … it is 'mistrustful' of the other place to say that it could never produce anyone as good as someone from our place to perform that function".
It follows from that, as night follows day, that it is much more likely we should get in this House somebody qualified for the task, as we would wish.
I turn to the wider question of the extent to which, in so many different. respects, the office of Lord Chancellor requires these dual qualifications. I shall quote from a passage which others will have heard before from a long submission made by this Government in November 2002—less than 12 months before the Prime Minister whimsically decided to abolish the office—to the Parliamentary Assembly of the Council of Europe. It is of some length but all of it is directly relevant. It says:
"The Lord Chancellor provides a counter-balance for the judicial branch against the centralised power of government and Parliament. Under this system. the head of the judiciary"—
that is no longer there but it matters not for this purpose—
"is made a Minister, duly accountable to Parliament for the public funds expended on the courts".
That is quite right but on that, too, there are false arguments advanced. The noble and learned Lord has often talked of the department spending £3 billion a year. The noble Lord, Lord Morgan, referred to that too. When the Leader of the House, the noble Baroness, Lady Amos, was appointed to her present position, she was then the Secretary of State for International Development in this House, with a budget of£3.6 billion. Nobody complained then that that was in some way unconstitutional.
Moreover, the Lord Chancellor himself has demonstrated that he is accountable to Parliament—to the other place—because the other place has developed its exercises to study his department and call him as a witness. We are stronger today, in practice, in our
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surveillance of the Lord Chancellor's Department as far as concerns the House of Commons. So all these arguments fall into place. I return to the quotation:
"At the same time, he is removed to the House of Lords, away from the full force of party politics. The Lord Chancellor is always a senior lawyer or judge, and therefore comes to government imbued with full understanding of legal culture and the rule of law. His tripartite role enables him to act as both a link and bulwark between the judiciary and the executive and the legislature. He can explain. defend and interpret each to the other".
Those are the words of this Government only a short time before debate on this issue started. The submission continues in paragraph 7:
"The Lord Chancellor is thus the judges' guardian and representative in the Cabinet and Parliament and, as necessary, vice versa. He exercises his responsibilities for judicial appointments and, where necessary, judicial discipline, as well as the management of the courts, in close and continuous consultation with the professional judges … In short, the existence of the Lord Chancellor enables the judiciary to maintain their independence, while ensuring that their legitimate interests and point of view are represented and protected at the highest levels of the other branches of government".
All those propositions are just as true today as when they were written in 1972.
The suggestion that this place has somehow become as crudely political as the other place, as the noble and learned Lord the Lord Chancellor implied, is not true. The noble Lord, Lord Morgan, discussed the role of this House in his interesting speech. It is more than just a revising chamber. It proved itself last week as being governed by anything but party politics; as the last guarantee against constitutional abuse—more than just the longstop, and not a theatre of party politics. The votes last week could have gone against what was being attempted even if not one Conservative Member of this House had voted at all. The Lords was exercising its function in a supremely important way, and to that extent it is much less political than another place. I do not pretend that we are all political virgins—we speak for ourselves—but we are much less political than the other place, and we have a constitutional role, which is why this is the place where the Lord Chancellor should be helping to guide and lead that role.
One asks oneself whether the Lord Chancellor's role has been substantially changed in relation to judicial appointments and discipline. It has been changed, but he is still the Minister through whom all those appointments and recommendations go into action. Clauses 106 and 107, which happen to deal with Northern Ireland, state that the power to remove or suspend a holder of judicial office is exercisable by the Lord Chancellor, and that a tribunal to consider the removal of the Lord Chief Justice may be convened by the Lord Chancellor. More specifically, to my surprise, Clause 105, which deals with High Court judges, says that
"a motion for the presentation of an address to Her Majesty for the removal of a person from any of those offices may be made—
(a) to the House of Commons only by the Prime Minister; and (b) to the House of Lords only by the Lord Chancellor".
That is an astonishing proposition. Does it not imply, as do many other things, that the Lord Chancellor should be a Member of this House? He is the only person authorised to take action of that kind.

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The point, as this document sets out in all those ways, is that it is the Lord Chancellor, who is a lawyer in this House, in whom these powers are vested. That ought necessarily to remain the case.
A similar argument can be advanced if one looks at the point that has already been touched on by my noble friend Lord Kingsland. Clause 1 of the Bill relates to the duty of the Lord Chancellor to uphold the rule of law. Again, I refer to a statement made in this House by the noble and learned Lord the Lord Chancellor. On 7 December he was dealing with the role of the Lord Chancellor in relation to Clause 1 when he said:
"Throughout the debates we have had on the rule of law, the contention has been that the Lord Chancellor has always had a role with regard to the rule of law, and that it is important that we do not inadvertently lose or diminish that role. There has also been general, if perhaps not universal, agreement that such a duty was a political one, but it was not a duty to be enforced in the courts. My amendment seeks to give effect to both these lines of argument; it acknowledges that the Lord Chancellor has a duty with regard to the rule of law and it acknowledges that that duty is not one that is cognisable as a matter of law. It will ensure that the rule of law features in the deliberations of the reformed Lord Chancellor in the same way as it does now with the existing Lord Chancellor. But it does so in a way that does not have wider, unintended effects". [Official Report, 7/12/04; col. 740.]
If the Lord Chancellor is endowed with those responsibilities to that extent with the express authority of the present Lord Chancellor, and no-one can look to the courts to enforce those duties in that way, how else are we to have confidence in the ability of the Lord Chancellor to fulfil t hose functions if he is not a senior lawyer? How else is he to command respect or authority in Cabinet? I have given other reasons in this House. It is fanciful to suggest that the office would not be fundamentally and mistakenly altered if these two propositions were not accepted by your Lordships' House.
4.15 p.m.
The Lord Bishop of Chelmsford: My Lords, the noble and learned Lord the Lord Chancellor reminded us that, deep in our history, these Benches had the office of Lord Chancellor. My understanding is that one or two of them fulfilled the office quite well. I assure him, however, that, despite the difficulties of the Church of England, we have no desire to have it back.
Our role is to listen carefully to this debate and not to intrude on the legal argument. There are just three things we have to bear in mind. First, there is the history of this Bill. We began with the Government abolishing the post of Lord Chancellor. That having taken place, it is not surprising that this House is exercising some caution in constructing the Bill to ensure that we hem the Executive in from taking unnecessary action of that sort again without legal defence. There is a history to this that we cannot avoid.
Secondly, the argument this afternoon is about the context, not personal capabilities. Is this House the better context for this office? Having had the privilege of being in this House for nearly six years—despite times such as the present, when political agendas are rather apparent—I have noticed how jealous the House is of its independence, and how important Members find the freedom to make
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their own judgments and to act accordingly. If we are to have an office whose independence is important—but is a political appointment, and that is a right relationship—we have to ask whether it is the context of the more political agenda that is properly pursued in the other place, and we should not in any way denigrate that, or the context of this House that is appropriate. That is at the heart of the argument.
Thirdly, constitutional reform should be introduced with great care. In this House we have a duty to watch over the constitution of our country. It might be the judgment of the House that even if we are cautious in this matter and restore these clauses, what we have achieved, from a bad start, is an important constitutional reform that does credit to Parliament, and to the Lord Chancellor. I do not think the restoration of these clauses undermines that achievement.
Lord Williamson of Horton: My Lords, I intervene briefly to support Amendment No. 1A, proposed by the noble Lord, Lord Kingsland. On balance. the continuity provided by the presence of the Lord Chancellor in this House and in the Cabinet is of value to Parliament and to government. We took this view before, and I stay with it.
I am sad that our late colleague, Lady Strange—Cherry Strange—who died last week, and who once said that she loved "our" Lord Chancellor, is no longer able to join her voice to ours today. We very much miss her, and her flowers.
I hope this amendment is adopted.
Lord Falconer of Thoroton: My Lords, I echo the kind words of the noble Lord, Lord Williamson. Lady Strange was indeed a very colourful presence whom we shall all miss very much. She was dedicated to the House of Lords and had a great love for this place and all that it stands for. She entered the House in 1986 and was one of the hereditary Peers to win election to the House in 1999. She will be remembered, as the noble Lord said, for bringing flowers to the House from her home in Perthshire, but of course she will chiefly be remembered for her commitment to the causes that she championed—in particular, foreign affairs and the provision for war widows. She became president of the War Widows' Association in 1990; she was also an author and novelist and continued her passion for writing in her contributions to the House Magazine.
I remember Lady Strange well when she attended the Cenotaph ceremony last November on behalf of the war widows—and my goodness, she was an impressive presence. Her presence here will be greatly missed arid I pass on my condolences on behalf of the House to all her family and friends.
Lord Borrie: My Lords, I am sufficiently an old-fashioned lawyer to think that at any rate in the foreseeable near future the Lord Chancellor would most desirably be in this House and a lawyer of substantial qualification, as set out in the Bill. But I do not believe that there should be a statutory requirement for either of those things. The noble and learned Lord, Lord Howe of Aberavon, has listed quite a number of provisions in this Bill that suggest that a lawyer would be the best person to

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exercise those powers, which still include important matters of appointment and discipline, and so on—they have not all disappeared into the realm of the Judicial Appointments Commission. As for the more traditional reasons of having someone with a prime responsibility in Cabinet to uphold and promote the rule of law and the independence of the judiciary, I see great value in having a lawyer of substantial experience in that job.
I accept a lot of traditional arguments, with regard to the Lord Chancellor being in this House, that it is desirable to have in charge of the Department for Constitutional Affairs someone who is at any rate just slightly removed from the midst of party politics. Of course, as has already been said, the Lord Chancellor in the past has to some extent been involved in party politics in most cases. As he is here, perhaps I should refer to the noble and learned Lord, Lord Mackay, who I believe was a judge rather than in party politics before he became Lord Chancellor. But Lord Hailsham, for example, was one of the most active politicians, even wishing to attain the leadership of his party at one stage in the 1960s. The situation has varied a great deal.
In recent times, in the main, once the Lord Chancellor has been appointed he has maintained that little bit of distance between himself and the hurly-burly of ordinary politics. In practice, for the reasons to which the noble Lord, Lord Renton. referred, the House of Commons now—compared with when he was first there, 50 years ago—has very few senior lawyers. If you accept, as I do, that it would be best to have a lawyer as Lord Chancellor, it would be difficult to find one in the House of Commons in the present day and age; certainly compared to 50 years ago, and earlier. A Member of Parliament and a senior practitioner are both so busy in their work that it is virtually impossible to combine the two.
So, in practice, I dare say that the Lord Chancellor in the foreseeable future will be from this House or will be created a Peer to sit in this House. That is much more likely than his being a Member of the House of Commons. But I do not see the need for a statutory requirement. Indeed, one can imagine the unlikely event of a senior lawyer being in the House of Commons, such as a former Attorney-General of a certain seniority, who might prefer to remain there and continue to serve his constituents rather than come up here. Well, if he was suitable for being Lord Chancellor, why not let him be appointed?
So let us have flexibility while saying that there should not be a statutory requirement for the Lord Chancellor either to sit in this House or to be a lawyer.
Lord Phillips of Sudbury: My Lords, I follow the noble Lord, Lord Borrie, in his observations, save in his conclusion. I believe that one must deal with the issue of whether the Lord Chancellor should be a lawyer and whether he should be in this House on the basis of generality. It is no good citing the exception, because it is the exception who proves the rule. Lord Jenkins has been cited on a number of occasions, and he is an exception that would have proved the rule. But it is no more legitimate to
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say of the Lord Chancellor that the exceptional non-lawyer might fill the post than it is to say that the exceptional private might make a good general, the exceptional nurse a good surgeon or the exceptional draftsman a good engineer. You have minimal qualifications to ensure that in less than perfect circumstances you are not landed, as you could be in this hugely important office, with someone who is plainly unfit to undertake the task.
It is not good enough for the noble and learned Lord, Lord Falconer, to cite the rather tenuous, quasi-judicial function of John Prescott as warranting the position that we have in this Bill. Other noble Lords have mentioned the vast raft of purely legal functions there are in this Bill. I wonder how many of your Lordships have had the stamina to look at Schedule 6, which relates to the protected functions of the Lord Chancellor. There are more than 300 protected functions—and in the past two years we have given the Lord Chancellor a huge number of protected, purely legal, and often complex functions. There were the Criminal Justice Act 2003, the Courts Act 2003 and the Communications Act 2003, as well as the finance, nationality and enterprise Acts, and so on.
In an age when the legislation that we pass is becoming more voluminous—we are up to 14,000 pages a year—and more complicated, to believe that a lay person could satisfactorily undertake all that and the major functions in the Bill to which the noble and learned Lord, Lord Howe, referred, is Cloud-cuckoo-land.
The noble Lord, Lord Kingsland, referred to the oath in which the Lord Chancellor says that he will defend the independence of the judiciary. How can a lay person satisfactorily do that without any knowledge of sitting as a judge and without any inside knowledge of the way in which the judiciary is subject to huge pressure, as it is? The exceptional person might be able to do that, but we deal with the generality.
Briefly, I shall address the question of why the Lord Chancellor should be in this House. I rather agreed with the remarks of the right reverend Prelate the Bishop of Chelmsford. Last week, like other noble Lords, I went down to the other place on three occasions to see how it dealt with our amendments to the Prevention of Terrorism Bill. I had been down there before, but I am bound to say that I was struck, not to say astonished, by the different tenor and feel of the proceedings there. In saying that I do not wish to disparage what Members do in that House; they are men and women elected and in the very heart of partisan politics. But it is unreal to suggest that it is a place suitable for the sort of considered, deliberate and I would hope objective constitutional considerations that are the principal function of the Lord Chancellor when he or she sits on those Benches.
I was struck by the intimidating atmosphere and noted in the three hours during which I sat there that only one woman MP had the confidence to stand up and speak. I noticed the intense partisanship. We should consider carefully whether it would be right to place a Lord Chancellor in that assembly, especially

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given its increasing anti-lawyer bias, which has been expressed by the present Home Secretary on more than one occasion recently.
I make two short points to close. First, the Lord Chancellor is a twin pillar with the Lord Chief Justice: the two are essential and mutually supportive. I do not believe that you can remove from the Lord Chancellorship his position in this House and attribute of being an experienced judge or senior lawyer without seriously undermining the balance of that relationship.
Finally, this is not our office to give away. The Lord Chancellor is the Lord Chancellor of the people of this country and these islands. It is an ancient office and one of very few offices which resonates with the public at large. It is one of the very, very few offices which still has public respect and trust. I do not see that it is open to us to deal with that office in the way that was originally suggested and is still suggested. I strongly urge noble Lords to support the Motion standing in the name of the noble Lord, Lord Kingsland.
4.30 p.m.
Baroness Whitaker: My Lords, I have a couple of mild observations. First, it is not quite right to talk about "the exception proving the rule" in any sense. It is a translation from the Latin and the word is "probat", which is mistranslated as "prove". It means "tries" or "challenges". The exception of Roy Jenkins did indeed challenge the rule.
Secondly, equally mildly, I am rather depressed by the idea that only a lawyer can stand up for the rule of law in Cabinet. It seems to me that the rule of law is actually not a legal principle. Various rules in law are indeed legal principles, but it would be self-referential in the extreme for the rule of law to be primarily only for a lawyer to represent. It is one of the most important—if not the most important—constitutional and democratic principles. Defending it may well normally fall to the Lord Chancellor in Cabinet. He or she will not lack expert advice in the elements of the rule of law, just as his or her counterparts in other departments have their expert advice. I remember from my days in the Civil Service that the task of the adviser to the Minister is to support, with expertise, a ferocious defence of the Minister's departmental values against differing interests. I have no doubt that that capacity would continue.
Lord Forsyth of Drumlean: My Lords, I shall be brief as I do not wish to repeat any of the arguments that have been made and I support the amendment of my noble friend Lord Kingsland. However, I wish to challenge something that the noble and learned Lord the Lord Chancellor said about the idea that the Prime Minister should be free to appoint whom he likes. The noble and learned Lord, Lord Lloyd of Berwick, pointed out that the present status of the Lord Chancellor as Secretary of State for Constitutional Affairs puts him pretty low
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down the pecking order in Cabinet. I appreciate that Cabinets do not meet very often these days, and that indeed it is not given access—
Lord Falconer of Thoroton: My Lords, the Cabinet meets once a week, and that is about as often as it met when the noble Lord was in it.
Lord Forsyth of Drumlean: My Lords, it has a meeting, but it does not perform the functions of Cabinets in the old days. Indeed, it is not even given legal opinions when major decisions that affect us all are being made, as the noble and learned Lord the Lord Chancellor knows only too well.
Cabinets seem to be a kind of rubber stamp for a small group within the Government. But in my day—speaking as a relatively junior member of a previous Cabinet—when the noble and learned Lord, Lord Mackay of Clashfern, was Lord Chancellor, he was a huge figure, set apart from the rest of us who were scrabbling our way up the greasy pole, as the noble and learned Lord, Lord Lloyd of Berwick, put it. He did not need to get elected and was not part of the political atmosphere. That is important because when he spoke, he spoke with authority which was detached from the political process. It seems to me that it is a great advantage to have someone in this House who is out of the political fray, and that anyone with any experience of the Cabinet would see that.
I do not wish to repeat the arguments about being a lawyer; they seem to me to stand. But I wish to pick up the point about the Prime Minister being free to choose whom he likes. It is entirely appropriate that the Prime Minister is constrained by having to pick someone who is a Member of this House and a lawyer. Without getting too close to the bone, if I look at some of the appointments that this Prime Minister has made, the old rules and conventions seem to be flouted daily.
The noble Baroness talked about the Civil Service. We have seen information officers, who used to be independent, replaced by political people in the Civil Service. Only yesterday, we saw the appointment of a Cabinet Minister as our Ambassador in South Africa. I do not know whether the Government have already sought agrément from the South African Government, or whether they intend to do so after the general election, but I do not know what qualifications a former Chief Secretary has to be our Ambassador in South Africa.
I could go on at great length and draw the attention of the House to other appointments that have been made by this Prime Minister that seem to be based on friendships and patronage. If ever there were an argument for this House constraining the freedom of the Prime Minister to appoint whoever he likes, it is based on the office of the Lord Chancellor—an appointment which is central to the rule of law and to our constitution as we understand it.
Viscount Bledisloe: My Lords, I get the impression that the House would like to bring this matter to a conclusion, but I want to make one point. Let there be no doubt that if this House allows Clauses 2 and 3 to be removed from the Bill, it will have abandoned any real attempt to retain the office of Lord Chancellor in any

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meaningful sense. The name will be retained, but little or nothing else. The point is that the Lord Chancellor should be at the apogee of his career and outside the hope of future preferment so that he can bring a degree of detachment to the roles given to him by the Bill to preserve the rule of law and the independence of the judiciary. It is virtually impossible for him to fulfil that function if he is still in the rat race to gain political promotion and still has the hope of ultimately reaching No. 10.
It is for those purposes that Clauses 2 and/or 3—in the long run, when we get to the final bargaining stage, it might be that one of them is acceptable; but at least one of them, and for the moment essentially both—must be preserved. Otherwise, we may just as well go back, give way to the Government completely, abolish the Lord Chancellor and have a Secretary of State.
Lord Goodhart: My Lords, we on these Benches—with the usual exception of my noble friend Lord Phillips of Sudbury, who may be described as the Helena Kennedy of our party—support Commons Amendments Nos. I and 2 and wish to see Clauses 2 and 3 deleted from the Bill.
The insistence that the Lord Chancellor be a Member of your Lordships' House rather than of the other place makes only one difference; that is, that the person appointed to the office will have no prospect of promotion to Prime Minister, Chancellor of the Exchequer or head of another major government department. Why is that thought to be a good thing? It is asserted by a number of noble Lords, including the noble Viscount, Lord Bledisloe, that it is, but it is surely no guarantee whatever of independence. If the Prime Minister wants a compliant Lord Chancellor, he will surely be able to find one. In any event, ambition to retain an office is a powerful incentive to comply with a Prime Minister's wishes. Someone with no prospect of further promotion may well be an extinct volcano who carries little clout with his colleagues.
There is no other government department in which drive and ambition can be regarded as a disqualification for holding office. There is no reason why it should be different for the Department for Constitutional Affairs. The DCA needs a strong and effective Cabinet Minister as much as any other department, someone who will fight for legal aid and access to justice and who has the clout to win that fight against his colleagues.
It is said that the office of Lord Chancellor is different because of his constitutional role as the defender in Cabinet of the rule of law and the independence of the judiciary. In relation to the independence of the judiciary, the role is shared by other Ministers of the Crown. That role is important, but it is amorphous, and it is very hard to pin down what it amounts to. Certainly, my noble friends Lady Williams of Crosby and Lord Rodgers of Quarry Bank, who served in the Labour Cabinets of the 1970s, have no recollection of the then-Lord Chancellor Lord Elwyn-Jones ever having raised constitutional issues in Cabinet, and I doubt that he was unique in that respect.
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We are to some extent in danger of confusing the roles of the Lord Chancellor and of the Attorney-General. The Lord Chancellor is not, and never has been, the legal adviser to the government, nor has he been the spokesman for the judiciary in the Cabinet. The role of legal adviser is that of the Attorney-General. It was the Attorney-General, not the Lord Chancellor, who advised the Government on whether the invasion of Iraq would be valid.
Ironically, there is a strong case for saying that the Attorney-General should be in the House of Lords, both on practical and constitutional grounds. On practical grounds, because the Attorney-General plainly has to be a lawyer and needs to be a respected lawyer in recent practice, something that is inconsistent with membership of the other place; and on constitutional grounds because the government and their legal adviser should be at arm's length from each other. The Attorney-General should be at least semi-detached from his colleagues, but the Lord Chancellor, as a member of the Cabinet, cannot be semi-detached in the same way.
In this debate we have over rated the future constitutional role of the Lord Chancellor, particularly since he is no longer the head of the judiciary in England and Wales; and under rated the future constitutional role of both the Attorney-General and, even more so, of the Lord Chief Justice as the head of the English judiciary. In future, it will plainly be the role of the Lord Chief Justice to act as spokesman for the judiciary, and he will be in a stronger position to do so than a Lord Chancellor ever has been. The main role of the Lord Chancellor when this Bill is enacted will be to be a departmental Minister of an important government department. His role as constitutional watchdog in the Cabinet will be as it always has been—informal. That role does not justify excluding the Lord Chancellor from the House of Commons, and thereby frequently excluding the person best qualified for doing the job from doing it.
I must also say that from outside your Lordships' House most people interested in this issue, including lawyers, would regard it as astonishing that your Lordships' House should insist that the office of Lord Chancellor should be restricted to Members of this House, even when the Lord Chancellor's judicial role is extinct and therefore no longer requires it. If we disagree with the Commons amendment, we will be portrayed as looking to the past and not to the future, and that portrayal would be correct.
The question of being a lawyer is a related but distinct issue. I see legal qualifications, unlike membership of your Lordships' House, as a positive factor in making the choice of Lord Chancellor. Other things being equal, it is better to have someone who has a legal qualification than not. I expect, therefore, that most Lord Chancellors will in fact have legal qualifications, but that is not essential, and it is surely more important to have the best person to do the job. As I said already, the main role of the Lord Chancellor will be to act as a departmental Minister.
The role of the Lord Chancellor requires knowledge of general principles of the constitution, rather than strictly legal knowledge. After all, we do not, even now,

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expect a Lord Chancellor to be an expert in, say, trust law, patent law or commercial law, or any particular branch of the law. Many people who are not lawyers have the kind of knowledge of the constitution that is necessary. I could name from among current Members of your Lordships' House, for example, the noble Lord, Lord Norton of Louth, or my noble friend Lord Holme of Cheltenham.
The Countess of Mar: My Lords, may I interrupt the noble Lord? I think that the noble and learned Lord, Lord Ackner, has been on his feet for some time.
4.45 p.m.
Lord Goodhart: My Lords, I apologise for not having noticed that. I give way to the noble and learned Lord.
Lord Ackner: My Lords, I am most grateful. I feel a bit like the elderly and one-time eminent QC who, in answer to his Lordship's former question, "Do you move, Sir Roger?", said, "Yes, but with difficulty".
I should like first to pay tribute to the noble and learned Lord the Lord Chancellor, whose footwork—
Lord Goodhart: My Lords, I apologise, but I am not sure whether that is an intervention. The noble and learned Lord has the right to address your Lordships' House after I have finished.
As I said, legal qualifications are one thing, but even more important are the competences to run a substantial government department and the ability to win Cabinet battles over funding and over slots for legislation, and the other roles that a proper Cabinet Minister must play. Up to now, and for some centuries past, the Lord Chancellor has inevitably had to be a lawyer, simply because he has been a judge and head of the judiciary in England and Wales. That will no longer be the case, but it would he a great mistake to impose a restriction that would limit the pool from which the Lord Chancellor could be chosen.
Lord Wedderburn of Charlton: My Lords, I am most obliged to the noble Lord. I have been thinking about his propositions as to the past. He offered the proposition that Lord Chancellors never offered legal advice to the government. Does he recall Lord Hailsham, who invariably stated the law for the benefit not merely of the government, but for all of us? Sometimes he stated it wrongly, it is true, but nevertheless he did so very often.
Lord Goodhart: My Lords, I am sure that the late Lord Hailsham was very free in giving his advice broadly, not only to the Cabinet but, as the noble Lord, Lord Wedderburn, said, to your Lordships' House and to the world at large. That is not quite the same function as being the government's official legal adviser, which I think a Lord Chancellor never has been.
It would therefore be wrong to restrict the pool from which the office of Lord Chancellor could be chosen. I hope very much that your Lordships' House will accept the amendments that have been inserted by the other place. If we do not do that, far from strengthening the
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office of Lord Chancellor we would be weakening it. We would in the public eye be weakening our own position, which has been greatly enhanced by our efforts of last week. We would be seen to be looking backwards rather than to the future.
Lord Ackner: My Lords, I am very sorry that I was interrupted in the course of paying a compliment to the noble and learned Lord the Lord Chancellor. I have watched his footwork as an advocate with enormous admiration. He has not only been consummate in his gathering together of the entirety of the subject, but like any really skilled advocate he has realised the weakness of his case from time to time and as a result. when obliged, has made concessions.
One of the concessions that he made was in the Second Reading debate, on 7 December 2004, was:
"The … Lord Chancellor, agreed with the basic proposition that his department—the Department for Constitutional Affairs—had to be strong enough to stand up to not just the Home Office… but to any department that might seek to infringe the rule of law".—[Official Report, 7/12/04; col. 761.]
In that debate—there is no doubt, because one can see it marked in the voting list—the noble and learned Lord, Lord Falconer of Thoroton, was acting as the Lord Chancellor.
The point of the noble and learned Lord the Lord Chancellor about being strong enough to stand up to another department places him in difficulty, because the ouster clause, which has been discussed very fully, was designed to stop the rule of law applying. It was designed to stop access to justice, which is the very essence of the rule of law, That particular clause was described by critics, from the Lord Chief Justice downwards, as a constitutional outrage. It should never have seen the light of day. It was the worst area of law in which access to the courts could be stopped, because the consequences in asylum decisions often sent people to their death.
The criticisms were voiced strong and loud on the publication of the Bill, and well before the debate in this House. There has never been any suggestion that the noble and learned Lord the Lord Chancellor was in any way deflected, even though the criticisms came from the Lord Chief Justice downwards, from arguing for that ouster clause as and when it came to this House. He remained quite defiant and wholly consistent: that clause was to stand.
What happened? Something quite dramatic and simple. Before the matter came into this House there was a list of speakers, because it was a Second Reading. On that list was the sacked Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg. He let it be known that he had put his name on that list to speak against the provision. One would have thought that a Lord Chancellor who had resisted criticisms up to that moment would have said, "Well, to hell with this! I shall stand fast, and I will support it in the debate".
It did not happen. Why not? Why did the Lord Chancellor not have sufficient bottle, strength and consistency of purpose not to do what he did: throw in the towel before the debate had started? That shows how important it is to have someone of stature, capable

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of standing up for the principles that matter. If this result can be achieved by a sacked Lord Chancellor merely putting his name down, does that not underline the need for someone of substance to say, "Do not do this, or there will be constitutional havoc"?
I respectfully suggest that it also underlines the necessity for a senior lawyer—I will deal with the lawyer issue in one moment—to be a senior member of the Cabinet, so that he can say to his colleagues, "Do not embark on this, it can only do harm".
Lord Elton: My Lords, does the circumstance that the noble and learned Lord, Lord Ackner, has just outlined not also underline the fact that a cessation of this office in this House would greatly diminish the authority and effectiveness of the House itself? Should we not have that in mind as well?
Lord Ackner: My Lords, I am very grateful. I thoroughly agree with and adopt, with respect, what has just been said.
Lord Goodhart: My Lords, since the noble and learned Lord to whom the noble and learned Lord, Lord Ackner, has just taken such exception is plainly a senior lawyer, does that not suggest, on the logic of his argument, that he should widen the pool of those from whom the Lord Chancellor could be selected?
Lord Ackner: My Lords, if the noble Lord, Lord Goodhart, is saying that the Lord Chancellor should not be a lawyer, I can deal with that very simply.
The noble and learned Lord, Lord Mackay of Clashfern, who has considerable public relations skill, went around the circuits visiting the court staff in order to understand better what, if anything, was troubling them and to show that they were cared for. This was very successful. It needs doing more nowadays, because the Treasury has acted with such meanness that there is constant change of staff in the county courts and an inadequacy of assistance and training.
It is difficult to understand how a non-lawyer could possibly cope with that situation. It is being overlooked by the Government, and by the noble and learned Lord the Lord Chancellor in particular, that one of the remaining obligations—and it is an enormous obligation—is running the court system. How can a person be expected to run a court system competently if he is not a lawyer with considerable experience?
I accept—this is almost my conclusion—that if the noble and learned Lord the Lord Chancellor does not do as the Prime Minister wishes, he can be fired there and then. It is, however, an expensive business to fire a Lord Chancellor, because they acquire a right to their not inconsiderable pensions immediately on appointment. There would be concern, therefore, that someone had been fired. If the Prime Minister decided that he would appoint someone of a lesser quality—someone who could be clearly relied upon as one of Tony's cronies—in the position of the person he had fired, then there would be an outcry. It would be so embarrassing that he would not embark on that situation.
1238
I think I have said all that I can expect your Lordships sympathetically to listen to. I strongly support both amendments.
Lord Falconer of Thoroton: My Lords, some of the burdens that any Lord Chancellor has to bear—as did the noble and learned Lord, Lord Mackay of Clashfern, whom I greatly admire—are the bricks and arrows of the noble and learned Lord, Lord Ackner. They were delivered as viciously to all my predecessors as to me. Without doubt, probably the strongest argument for keeping the Lord Chancellor in the House of Lords is that they are kept up to the mark by the noble and learned Lord, Lord Ackner.
There are two essential strands in the argument for the Lord Chancellor being a lawyer and a Lord. The first is that one of his jobs—and I accept this—is to uphold the rule of law and the independence of the judiciary, and that only a lawyer could do it. Secondly, that job requires somebody separate from the hurly-burly of politics, brave enough to stand up to all comers. Somebody at the end of his career, not on the greasy pole, is the person to do it.
First, I shall deal with the rule of law. As the noble Lord, Lord Goodhart, says, the Lord Chancellor is not the legal adviser to the Cabinet. The legal adviser to the Cabinet is the Attorney-General. In years gone by, there probably was friction between the Lord Chancellor and the Attorney-General on who was giving legal advice, but there is absolutely no doubt that the person who gave it should have been the Attorney-General. I can look around the Chamber and see a number of Attorneys-General who, in times gone by, bravely ensured that that was the position. The role of the Lord Chancellor is not to tell the Cabinet what the law is. It is to ensure that the rule of law is upheld. At the heart of the speech of the noble Lord, Lord Kingsland, was the idea that only someone who is not elected can put the rule of law first. I strenuously reject that assertion.
5 p.m.
The rule of law is an essential part of our constitution. It is not a question about the detail of the law, but of accepting that the state must comply with the law. If a court makes an order, the state has to accept it. If the Attorney-General advises the Government that an act contrary to the law will occur, it is the Lord Chancellor's duty to ensure that the Government do not act in that way. But the idea that, to comply with that essential tenet of our constitution, you have to be in this House is, with the greatest respect, absurd. What is more, it is an affront to the civil servants, the House of Commons and all other people who have to deal with the consequences of the rule of law. I emphatically reject the proposition that only people in this House know how to comply with the rule of law. That is not the basis for an argument that could be advanced for saying that the Lord Chancellor has to be in this House.

1239
The second argument is that, apart from two minor changes—namely, that the Lord Chancellor will no longer be a judge and the head of the judiciary—the Bill has not fundamentally changed the role of the Lord Chancellor. With respect to the noble and learned Lords, Lord Lloyd of Berwick and Lord Howe of Aberavon, the Bill has fundamentally changed that role. Until the Bill, that role was to be a judge and, as a judge, head of the judiciary. He sat in the Cabinet not only as a Cabinet Minister, but as the head of the judiciary—the leader of the judges, the person at the apex so far as the judiciary is concerned. The Bill will fundamentally change that, by statute.
It is not only that the Lord Chancellor will no longer sit as a judge—he will not; the noble and learned Lords, Lord Lloyd of Berwick and Lord Howe of Aberavon, were right to say that he had rarely done so in the years before I became Lord Chancellor. Much more fundamentally, the Lord Chancellor is no longer a judge. He is no longer the head of the judiciary. The connection between the judges and the Executive is now not contained in the person of one office-holder, but dealt with by the concordat.
The noble and learned Lords, Lord Lloyd of Berwick and Lord Howe of Aberavon, failed completely to see that the concordat represents a fundamental change. The noble and learned Lord the Lord Chief Justice and I have reached an agreement—one that this House and the Commons have endorsed in the Bill—that, from now on, the relations between the judiciary and the Executive should be governed not by the position of the Lord Chancellor, but by the terms of that concordat, with the Lord Chief Justice representing and being the head of the judiciary in England and Wales. To say that there has not been a change is not, I respectfully suggest, to understand what the Bill did and what the effect of the concordat was.
All that does not detract from the need for the Lord Chancellor to protect the rule of law and the independence of the judiciary, but there should be a clear understanding that he is not doing it any more as a judge and as head of the judiciary. He is doing it essentially as a politician. We have debated today whether senior lawyers are better defenders of the constitution than senior politicians. I do not know. I look around the Chamber and see senior politicians who have made very considerable personal sacrifices on points of principle. The noble Lord, Lord Carrington, resigned in 1982 on a point of principle. As it happens, no Lord Chancellor in recent times has resigned on a point of principle, and the noble Lord has resigned twice on points of principle. I do not suggest for a moment that the noble Lord should be the next Lord Chancellor; he looks disappointed.
I am also conscious of the big pay and the large pension that the Lord Chancellor would get if he resigned. However, just as politicians may regard the right thing to do as to act on a point of principle—they do so regularly—it may well be, in the long distant past, that Lord Chancellors wanted to hold on to office come what may, it being the last job in their career. I refer with
1240
respect to my predecessor, Lord Birkenhead. When confronted with a letter of resignation signed in blank by the Lord Chief Justice that allowed the government to get rid of the Lord Chief Justice at the flick of a finger—they did so a year later—he protested. It is hard to imagine more of an affront to judicial independence, but he did not resign.
I do not say that to undermine the many great holders of the office of Lord Chancellor. However, I earnestly ask the House to consider very carefully whether the best defender of the rule of law and the independence of the judiciary should not be decided on the merits of who is available to do the job at the time. If your Lordships can think of people who would not have met the criteria in Clause 2 and the former Clause 3—respectively, to be a Lord and a lawyer—who would have the courage, judgment, intellect and stature to uphold the rule of law and defend the independence of the judiciary, and would have made a good Minister, they should agree with the amendment from another place.
If noble Lords cannot imagine people who would not fulfil those criteria, they should vote for the amendments tabled by the noble Lord, Lord Kingsland, and the noble and learned Lord, Lord Lloyd of Berwick. However, I respectfully ask the House to consider what we did and agreed to in the Bill. It should consider the effect of the change, and respect politicians for their ability to recognise the rule of law and do an heroic job in another place.
Lord Kingsland: My Lords, it has been another extremely stimulating debate about "Lord and lawyer", and it is now my task to bring it to a close. I shall do so extremely tersely.
One point of detail that I want to take up before I summarise the arguments is over the role of the Attorney-General. The noble Lord, Lord Goodhart, asked, "What about the Attorney-General?". The noble and learned Lord the Lord Chancellor half-answered that question by saying that it was the duty of the Attorney-General to advise the Government on the law as it is. That is half the point. The other half is that it is the duty of the Lord Chancellor, bound by the doctrine of the rule of law, to defend the law as it ought to be. The Lord Chancellor is in the Cabinet to make sure that draft legislation for the future does not break the rule of law. By convention, the Attorney-General is rightly not in the Cabinet; so there is no possibility that he could in any circumstances ever substitute for the job of a Lord Chancellor.
Last week the noble Lord, Lord Goodhart, and I voted several times in the same Lobby to defend a number of very important constitutional principles. We would not have been put to the trouble if those matters had been killed at birth in the Cabinet. They were not. Sitting in the Cabinet was a Secretary of State for Constitutional Affairs, not bound at that time—as I have

1241
already admitted—by the rule-of-law doctrine, because he was appointed as a Secretary of State, not as a Lord Chancellor.
The noble and learned Lord did not prevent those proposals from coming out of the Cabinet. What possible confidence can the noble Lord, Lord Goodhart, have that a non-lawyer sitting in the House of Commons would do a better job? I suggest to the noble Lord, none whatsoever.
The noble and learned Lord sought to ridicule my assertion that there is a fundamental conflict of interest between being a politician in another place, elected on a popular mandate to do what the majority wish, and an individual whose fundamental task is to support the rule of law, which implies protecting the individual against the state and the minority against the majority.
It is plain that someone who holds those two roles would be deeply conflicted. That is absolutely plain. Any Cabinet Minister's local constituency, which sent him to Parliament to fulfil his party's mandate, would be deeply disappointed if that politician put the rule of law before what his electorate wanted. So, I continue to assert, with complete confidence, that there is a conflict between representing the rule of law, as laid down in the statute, and being an elected Member.
Above all, the position of the Lord Chancellor throughout the centuries has been a crucial check on the power of the Executive. There are very few checks left in our constitution on the power of the Executive. One of them is your Lordships' House in its diminished role under the Parliament Act 1949. The other is the presence of a Lord Chancellor in the Cabinet. If that presence and the noble and learned Lord's responsibility for the rule of law are removed, your Lordships' House is the only check left. We need as many checks as we can get against an over-weaning Executive and I wish to test the opinion of the House.
5.12 p.m.
On Question, Whether the said amendment (No. 1A) shall be agreed to?
Their Lordships divided: Contents, 215; Not-Contents, 199.

Division No. 1

CONTENTS

Ackner, L.

Bridgeman, V.

Allenby of Megiddo, V.

Bridges, L.

Alton of Liverpool, L.

Brooke of Sutton Mandeville, L.

Ampthill, L.

Brougham and Vaux, L.

Anelay of St Johns, B.

Burns, L.

Armstrong of Ilminster, L.

Buscombe, B.

Arran, E.

Byford, B.

Astor, V.

Caithness, E.

Astor of Hever, L.

Cameron of Dillington, L.

Bagri, L.

Campbell of Alloway, L.

Baker of Dorking, L.

Carr of Hadley, L.

Beaumont of Whitley, L.

Carrington, L.

Bell, L.

Cavendish of Furness, L.

Biffen, L.

Chadlington, L.

Blackwell, L.

Chalker of Wallasey, B.

Bledisloe, V.

Chan, L.

1242

Chelmsford, Bp.

Laird, L.

Chorley, L.

Lamont of Lerwick, L.

Colville of Culross, V.

Lane of Horsell, L.

Colwyn, L.

Lewis of Newnham, L.

Condon, L.

Lindsay, E.

Cope of Berkeley, L. [Teller]

Listowel, E.

Courtown, E.

Liverpool, E.

Cox, B.

Lloyd of Berwick, L.

Craigavon, V.

Lucas, L.

Crathorne, L.

Luke, L.

Crawford and Balcarres, E.

Lyell, L.

Crickhowell, L.

McAlpine of West Green, L.

Cuckney, L.

McColl of Dulwich, L.

Cumberlege, B.

Macfarlane of Bearsden, L.

Darcy de Knayth, B.

MacGregor of Pulham Market,L

De Mauley, L

Dean of Harptree, L.

Mackay of Clashfern, L.

Dixon-Smith, L.

Maginnis of Drumglass, L.

Donaldson of Lymington, L.

Mancroft, L.

D'Souza, B.

Mar, C.

Dundee, E.

Marlesford, L.

Eccles of Moulton, B.

Masham of Ilton, B.

Eden of Winton, L.

Mayhew of Twysden, L.

Elles, B.

Miller of Hendon, B.

Elliott of Morpeth, L.

Monro of Langholm, L.

Elton, L.

Monson, L.

Erroll, E.

Montrose, D.

Ferrers, E.

Moore of Lower Marsh, L.

Flather, B.

Morris of Bolton, B.

Fookes, B.

Mowbray and Storuton, L.

Forsyth of Drumlean, L.

Murton of Lindisfarne, L.

Fowler, L.

Naseby, L.

Freeman, L.

Neill of Bladen, L.

Freyberg, L.

Newton of Braintree, L.

Gardner of Parkes, B.

Northbourne, L.

Gilmour of Craigmillar, L.

Northbrook, L.

Glenarthur, L.

Northesk, E.

Glentoran, L.

Norton of Louth, L.

Goschen, V.

O'Cathain, B.

Gray of Contin, L.

O'Neill of Bengarve, B.

Greenway, L.

Onslow, E.

Griffiths of Fforestfach, L.

Oppenheim-Barnes, B.

Habgood, L.

Palmer, L.

Hanham, B.

Palumbo, L.

Hanningfield, L.

Patel, L.

Harris of Peckham, L.

Patten of Barnes, L.

Hayhoe, L.

Peel, E.

Henley, L.

Perry of Southwark, B.

Heseltine, L.

Peterborough, Bp.

Higgins, L.

Peyton of Yeovil, L.

Hodgson of Astley Abbotts, L.

Phillips of Sudbury, L.

Hogg, B.

Pilkington of Oxenford, L.

Holme of Cheltenham, L.

Platt of Writtle, B.

Hooper, B.

Plumb, L.

Hooson, L.

Plummer of St, Marylebone, L.

Howard of Rising, L.

Prior, L.

Howe, E.

Rawlings, B.

Howe of Aberavon, L.

Rawlinson of Ewell, L.

Howe of Idlicote, B.

Reay, L.

Howell of Guildford, L.

Rees-Mogg, L.

Hunt of Wirral, L.

Renton, L.

Hylton, L.

Renton of Mount Harry, L.

Inglewood, L.

Roberts of Conwy, L.

James of Holland Park, B.

Rogan, L.

Jellicoe, E.

Rotherwick, L.

Jenkin of Roding, L.

Ryder of Wensum, L.

Jopling, L.

Saatchi, L.

Kalms, L.

Sainsbury of Preston Candover,L

Kimball, L.

King of Bridgwater, L.

St John of Fawsley, L.

Kingsdown, L.

Seccombe, B. [Teller]

Kingsland, L.

Selborne, E.

Kirkham, L.

Selsdon, L.

Knight of Collingtree, B.

Sharples, B.

Laidlaw, L.

Shaw of Northstead, L.

Laing of Dunphail, L.

Sheppard of Didgemere, L.

1243

Skelmersdale, L.

Tugendhat, L.

Skidelsky, L.

Ullswater, V.

Slim, V.

Vinson, L.

Soulsby of Swaffham Prior, L.

Waddington, L.

Steinberg, L.

Wade of Chorlton, L.

Stewartby, L.

Wakeham, L.

Strathclyde, L.

Walker of Worcester, L.

Tanlaw, L.

Walton of Detchant, L.

Taverne, L.

Warnock, B.

Taylor of Warwick, L.

Waverley, V.

Tenby, V.

Wedderburn of Charlton, L.

Thatcher, B.

Wilcox, B.

Thomas of Gwydir, L.

Williamson of Horton, L.

Thomas of Swynnerton, L.

Wilson of Dinton, L.

Tombs, L.

Windlesham, L.

Trumpington, B.

Wolfson, L.

Wolfson of Sunningdale, L.

NOT-CONTENTS

Addington, L.

Garden, L.

Ahmed, L.

Gavron, L.

Alliance, L.

Gibson of Market Rasen, B.

Amos, B. (Lord President of the Council)

Giddens, L.

Gilbert, L.

Andrews, B.

Glasgow, E.

Ashton of Upholland, B.

Golding, B.

Barker, B.

Goldsmith, L.

Barnett, L.

Goodhart, L.

Bassam of Brighton, L.

Goudie, B.

Bhattacharyya, L.

Gould of Potternewton, B.

Billingham, B.

Graham of Edmonton, L.

Blood, B.

Greaves, L.

Bonham-Carter of Yarnbury, B.

Greengross, B.

Borrie, L.

Gregson, L.

Bragg, L.

Grocott, L. [Teller]

Brennan, L.

Hamwee, B.

Brett, L.

Harris of Haringey, L.

Brooke of Alverthorpe, L.

Harris of Richmond, B.

Brookman, L.

Harrison, L.

Brooks of Tremorfa, L.

Hart of Chilton, L.

Burlison, L.

Haskins, L.

Campbell-Savours, L.

Haworth, L.

Carlile of Berriew, L.

Hayman, B.

Carter, L.

Henig, B.

Carter of Coles, L.

Hilton of Eggardon, B.

Chandos, V.

Hogg of Cumbernauld, L.

Christopher, L.

Hollis of Heigham, B.

Clark of Windermere, L.

Howells of St. Davids, B.

Clarke of Hampstead, L.

Hoyle, L.

Clement-Jones, L.

Hughes of Woodside, L.

Clinton-Davis, L.

Hunt of Chesterton, L.

Cohen of Pimlico, B.

Hunt of Kings Heath, L.

Corbett of Castle Vale, L.

Johes, L.

Crawley, B.

Judd, L.

David, B.

King of West Bromwich, L.

Davies of Oldham, L. [Teller]

Kirkhill, L.

Dean of Thornton-le-Fylde, B.

Lea of Crondall, L.

Desai, L.

Leitch, L.

Dholakia, L.

Lester of Herne Hill, L.

Dixon, L.

Levy, L.

Donoughue, L.

Linklater of Butterstone, B.

Drayson, L.

Livsey of Talgarth, L.

Dubs, L.

Lockwood, B.

Dykes, L.

McDonagh, B.

Elder, L.

Macdonald of Tradeston, L.

Evans of Parkside, L.

McIntosh of Haringey, L.

Evans of Temple Guiting, L.

McIntosh of Hudnall, B.

Falconer of Thoroton, L. (Lord Chancellor)

Mackenzie of Culkein, L.

Mackenzie of Framwellgate, L.

Falkner of Margravine, B.

McKenzie of Luton, L.

Farrington of Ribbleton, B.

Mackie of Benshie, L.

Faulkner of Worcester, L.

Maclennan of Rogart, L.

Filkin, L.

McNally, L.

Fyfe of Fairfield, L.

Maddock, B.

Gale, B.

Mar and Kellie, E.

1244

Marsh, L.

Royall of Blaisdon, B.

Mason of Barnsley, L.

Russell-Johnston, L.

Massey of Darwen, B.

Sainsbury of Turville, L.

Maxton, L.

Sandberg, L.

Merlyn-Rees, L.

Sawyer, L.

Methuen, L.

Scotland of Asthal, B.

Michie of Gallanach, B.

Scott of Needham Market, B.

Morgan, L.

Sewel, L.

Morgan of Drefelin, B.

Sharp of Guildford, B.

Morgan of Huyton, B.

Shutt of Greetland, L.

Morris of Aberavon, L.

Simon, V.

Morris of Manchester, L.

Simon of Highbury, L.

Murphy, B.

Smith of Clifton, L.

Neuberger, B.

Smith of Leigh, L.

Newby, L.

Snape, L.

Nicol, B.

Steel of Aikwood, L.

Northover, B.

Stoddart of Swindon, L.

Oakeshott of Seagrove Bay, L.

Stone of Blackheath, L.

Oxford, Bp.

Strabolgi, L.

Parekh, L.

Temple-Morris, L.

Patel of Blackburn, L.

Thomas of Gresford, L.

Paul, L.

Thomas of Walliswood, B.

Pendry, L.

Thomson of Monifieth, L.

Peston, L.

Thornton, B.

Plant of Highfield, L.

Tomlinson, L.

Prys-Davies, L.

Tope, L.

Puttnam, L.

Tordoff, L.

Ramsay of Cartvale, B.

Triesman, L.

Randall of St. Budeaux, L.

Truscott, L.

Razzall, L.

Tunnicliffe, L.

Rea, L.

Turner of Camden, B.

Redesdale, L.

Uddin, B.

Rendell of Babergh, B.

Vallance of Tummel, L.

Rennard, L.

Varley, L.

Richard, L.

Wall on New Barnet, B.

Roberts of Llandudno, L.

Walmsley, B.

Robertson of Port Ellen, L.

Warner, L.

Rodgers of Quarry Bank, L.

Whitaker, B.

Rogers of Riverside, L.

Whitty, L.

Roll of Ipsden, L.

Wilkins, B.

Rooker, L.

Williams of Crosby, B.

Roper, L.

Williams of Elvel, L.

Rosser, L.

Winston, L.

Rowlands, L.

Young of Norwood Green, L.

Resolved in the affirmative, and amendment agreed to accordingly.
On Question, Motion, as amended, agreed to.
5.25 p.m.
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2. We have debated this and it is for the noble and learned Lord, Lord Lloyd of Berwick, formally to move his amendment to it.
Moved, That the House do agree with the Commons in their Amendment No. 2.—(Lord Falconer of Thoroton.)
Lord Lloyd of Berwickrose to move Amendment No. 2A, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 2, leave out "agree" and insert "disagree".
The noble and learned Lord said: My Lords, I beg to move Amendment No. 2A to leave out "agree" and insert "disagree". I have said all that I need to say on the subject.

1245
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 2, leave out "agree" and insert "disagree".—(Lord Lloyd of Berwick.)
5.27 p.m.
On Question, Whether the said amendment (No. 2A) shall be agreed to?
Their Lordships divided: Contents, 209; Not-Contents, 195.

Division No. 2

CONTENTS

Ackner, L.

Elliott of Morpeth, L.

Allenby of Megiddo, V.

Elton, L.

Alton of Liverpool, L.

Erroll, E.

Ampthill, L.

Ferrers, E.

Anelay of St Johns, B.

Flather, B.

Armstrong of Ilminster, L.

Fookes, B.

Arran, E.

Forsyth of Drumlean, L.

Astor, V.

Fowler, L.

Astor of Hever, L.

Freeman, L.

Bagri, L.

Freyberg, L.

Baker of Dorking, L.

Gardner of Parkes, B.

Beaumont of Whitley, L.

Gilmour of Craigmillar, L.

Bell, L.

Glenarthur, L.

Biffen, L.

Glentoran, L.

Blackwell, L.

Goschen, L.

Bledisloe, V.

Gray of Contin, L.

Bridgman, V.

Greenway, L.

Bridges, L.

Griffiths of Fforestfach, L.

Brooke of Sutton Mandeville, L.

Habgood, L.

Brougham and Vaux, L.

Hanham, B.

Buscombe, B.

Hanningfield, L.

Byford, B.

Harris of Peckham, L.

Caithness, E.

Hayhoe, L.

Cameron of Dillington, L.

Henley, L.

Campbell of Alloway, L.

Heseltine, L.

Carr of Hadley, L.

Higgins, L.

Carrington, L.

Hodgson of Astley Abbotts, L.

Cavendish of Furness, L.

Hogg, B.

Chadlington, L.

Hooper, B.

Chalker of Wallasey, B.

Hooson, L.

Chan, L.

Howard of Rising, L.

Chelmsford, Bp.

Howe, E.

Chorley, L.

Howe of Aberavon, L.

Colville of Culross, V.

Howe of Idlicote, B.

Colwyn, L.

Howell of Guildford, L.

Condon, L.

Hunt of Wirral, L.

Cope of Berkeley, L.

Hylton, L.

Courtown, E.

Inglewood, L.

Cox, B.

James of Holland Park, B.

Craigavon, V.

Jellicoe, E.

Crathorne, L.

Jenkin of Roding, L.

Crawford and Balcarres, E.

Jopling, L.

Crickhowell, L.

Kalms, L.

Cuckney, L.

Kimball, L.

Cumberlege, B.

King of Bridgwater, L.

Darcy de Knayth, B.

Kingsdown, L.

Dean of Harptree, L.

Kingsland, L.

Dixon-Smith, L.

Kirkham, L.

Donaldson of Lymington, L.

Kinght of Collingtree, B.

D'Souza, B.

Laidlaw, L.

De Mauley, L.

Laing of Dunphail, L.

Eccles of Moulton, B.

Lamont of Lerwick, L.

Eden of Winton, L.

Lane of Horsell, L.

Elles, B.

Lewis of Newnham, L.

1246

Lindsay, E.

Prior, L.

Listowel, E.

Rawlings, B.

Liverpool, E.

Rawlinson of Ewell, L.

Lloyd of Berwick, L. [Teller]

Reay, L.

Lucas, L.

Rees-Mogg, L.

Luke, L.

Renton, L.

Lyell, L.

Renton of Mount Harry, L.

McAlpine of West Green, L.

Roberts of Conwy, L.

McColl of Dulwich, L.

Rotherwick, L.

Macfarlane of Bearsden, L.

Ryder of Wensum, L.

MacGregor of Pulham Market,L

Saatchi, L.

Sainsbury of Preston Candover,L

Mackay of Clashfern, L.

Maginnis of Drumglass, L.

St, John of Bletso, L.

Mancroft, L.

St John of Fawsley, L.

Mar, C.

Sandwich, E.

Marlesford, L.

Seccombe, B. [Teller]

Masham of Ilton, B.

Selborne, E.

Mayhew of Twysden, L.

Selsdon, L.

Miller of Hendon, B.

Sharples, B.

Monro of Langholm, L.

Shaw of Northstead, L.

Monson, L.

Sheppard of Didgemere, L.

Montagu of Beaulieu, L.

Skelmersdale, L.

Montrose, D.

Slim, V.

Moore of Lower Marsh, L.

Soulsby of Swaffham Prior, L.

Morris of Bolton, B.

Steinberg, L.

Mowbray and Stourton, L.

Stewartby, L.

Murton of Lindisfarne, L.

Strathclyde, L.

Naseby, L.

Tanlaw, L.

Neill of Bladen, L.

Taylor of Warwick, L.

Newton of Braintree, L.

Tenby, V.

Northbourne, L.

Thatcher, B.

Northbrook, L.

Thomas of Gwydir, L.

Northesk, E.

Thomas of Swynnerton, L.

Norton of Louth, L.

Tombs, L.

O'Cathain, B.

Trumpington, B.

O'Neill of Bengarve, B.

Tugendhat, L.

Onslow, E.

Ullswater, L.

Oppenheim-Barnes, B.

Vinson, L.

Palmer, L.

Waddington, L.

Palumbo, L.

Wakeham, L.

Patten of Barnes, L.

Walker of Worcester, L.

Peel, E.

Walton of Detchant, L.

Perry of Southwark, B.

Warnock, B.

Peterborough, Bp.

Waverley, V.

Peyton of Yeovil, L.

Wedderburn of Charlton, L.

Phillips of Sudbury, L.

Wilcox, B.

Pilkington of Oxenford, L.

Williamson of Horton, L.

Platt of Writtle, B.

Wilson of Dinton, L.

Plumb, L.

Windlesham, L.

Plummer of St. Marylebone, L.

Wolfson, L.

Wolfson of Sunningdale, L.

NOT-CONTENTS

Addington, L.

Brooks of Tremorfa, L.

Ahmed, L.

Burlison, L.

Alliance, L.

Campbell-Savours, L.

Amos, B. (Lord President of the Council)

Carlile of Berriew, L.

Carter, L.

Andrews, B.

Carter of Coles, L.

Ashton of Upholland, B.

Chandos, V.

Avebury, L.

Christopher, L.

Barker, B.

Clark of Windermere, L.

Barnett, L.

Clarke of Hampstead, L.

Bassam of Brighton, L.

Clement-Jones, L.

Bhattacharyya, L.

Clinton-Davis, L.

Billingham, B.

Cohen of Pimlico, B.

Blood, B.

Corbett of Castle Vale, L.

Bonham-Carter of Yarnbury, B.

Crawley, B.

Borrie, L.

David, B.

Bragg, L.

Davies of Oldham, L. [Teller]

Brennan, L.

Dean of Thornton-le-Fylde, B.

Brett, L.

Desai, L.

Brooke of Alverthorpe, L.

Dholakia, L.

Brookman, L.

Dixon, L.

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Donoughue, L.

Michie of Gallanach, B.

Drayson, L.

Morgan, L.

Dubs, L.

Morgan of Drefelin, B.

Dykes, L.

Morgan of Huyton, B.

Elder, L.

Morris of Aberavon, L.

Evans of Parkside, L.

Murphy, B.

Evans of Temple Guiting, L.

Neuberger, B.

Falconer of Thoroton, L. (Lord Chancellor)

Newby, L.

Nicol, B.

Falkner of Margravine, B.

Northover, B.

Farrington of Ribbleton, B.

Oakeshott of Seagrove Bay,L

Faulkner of Worcester, L.

Filkin, L.

Oxford, Bp.

Fyfe of Fairfield, L.

Parekh, L.

Gale, B.

Patel, L.

Garden, L.

Patel of Blackburn, L.

Gavron, L.

Paul, L.

Gibson of Market Rasen, B.

Pendry, L.

Giddens, L.

Peston, L.

Gilbert, L.

Plant of Highfield, L.

Glasgow, E.

Prys-Davies, L.

Golding, B.

Ramsay of Cartvale, B.

Goldsmith,L.

Randall of St. Budeaux, L.

Goodhart, L.

Razzall, L.

Goudie, B.

Rea, L.

Gould of Potternewton, B.

Redesdale, L.

Graham of Edmonton, L.

Rendell of Babergh, B.

Greaves, L.

Rennard, L.

Greengross, B.

Richard, L.

Gregson, L.

Roberts of Llandudno, L.

Grocott, L. [Teller]

Robertson of Port Ellen, L.

Hamwee, B.

Rodgers of Quarry Bank, L.

Harris of Haringey, L.

Rogan, L.

Harris of Richmond, B.

Rogers of Riverside, L.

Harrison, L.

Rooker, L.

Hart of Chilton, L.

Roper, L.

Haworth, L.

Rosser, L.

Hayman, B.

Rowlands, L.

Henig, B.

Royall of Blaisdon, B.

Hilton of Eggardon, B.

Russell-Johnston, L.

Hogg of Cumbernauld, L.

Sainsbury of Turville, L.

Hollis of Heigham, B.

Sandberg, L.

Howells of St. Davids, B.

Sawyer, L.

Hoyle, L.

Scotland of Asthal, B.

Hughes of Woodside, L.

Scott of Needham Market, B.

Hunt of Chesterton, L.

Sewel, L.

Hunt of Kings Heath, L.

Shutt of Greetland, L.

Jones, L.

Simon, V.

Judd, L.

Simon of Highbury, L.

King of West Bromwich, L.

Smith of Clifton, L.

Kirkhill, L.

Smith of Leigh, L.

Layard, L.

Snape, L.

Lea of Crondall, L.

Stoddart of Swindon, L.

Leitch, L.

Stone of Blackheath, L.

Lester of Herne Hill, L.

Strabolgi, L.

Levy, L.

Taverne, L.

Linklater of Butterstone, B.

Temple-Morris, L.

Livsey of Talgarth, L.

Thomas of Macclesfield, L.

Lockwood, B.

Thomas of Walliswood, B.

McDonagh, B.

Thomson of Monifieth, L.

Macdonald of Tradeston, L.

Thornton, B.

McIntosh of Haringey, L.

Tomlinson, L.

McIntosh of Hudnall, B.

Tope, L.

MacKenzie of Culkein, L.

Tordoff, L.

Mackenzie of Framwellgate, L.

Triesman, L.

McKenzie of Luton, L.

Truscott, L.

Mackie of Benshie, L.

Tunnicliffe, L.

Maclennan of Rogart, L.

Turner of Camden, B.

Maddock, B.

Uddin, B.

Mar and Kellie, E.

Vallance of Tummel, L.

Marsh, L.

Varley, L.

Mason of Barnsley, L.

Wall of New Barnet, B.

Massey of Darwen, B.

Walmsley, B.

Maxton, L.

Warner, L.

Merlyn-Rees, L.

Whitaker, B.

Methuen, L.

Whitty, L.

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Wilkins, B.

Winston, L.

Williams of Elvel, L.

Young of Norwood Green, L.

Resolved in the affirmative, and amendment agreed to accordingly.
On Question, Motion, as amended, agreed to.
5.38 p.m.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3.
The amendments in this group are purely matters of drafting improvement and consistency and do not affect policy. They replace references to "the Minister" with references to "the Lord Chancellor" throughout the Bill.
As noble Lords have already indicated, the Bill as introduced in this House last year sought to abolish the office of Lord Chancellor, and therefore many functions were described in the Bill as being the responsibility of "the Minister". Since then, noble Lords are fully aware of the changes that have been made. To ensure that the Bill is consistent, I am therefore seeking to replace those references with ones to "the Lord Chancellor".
The amendments ensure that it is immediately clear to the public, without the need to cross-refer to another part of the Bill, that the Lord Chancellor is the Minister responsible for exercising these functions. This follows existing precedent that, where functions are vested in the Lord Chancellor in statute, they are vested specifically in that office.
Moved, that the House do agree with the Commons in their Amendment No. 3.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
Baroness Ashton of Upholland: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 4 to 6.
Amendments Nos. 4 and 5 amend Clause 6 to make provision for qualification of that clause in relation to Northern Ireland on devolution. Clause 6 was introduced in this House by the Lord Chief Justice and was agreed by his counterparts in Scotland and Northern Ireland. It provides that the Chief Justice of any part of the United Kingdom may lay written representations before Parliament on matters relating to the judiciary or the administration of justice within his jurisdiction.
The purpose of the amendments is to ensure that the devolution settlement for Northern Ireland is respected. By convention, this Parliament would legislate on transferred matters only with the agreement of the Northern Ireland Assembly. Therefore, on devolution, the Lord Chief Justice of Northern Ireland will be able to lay written representations before Parliament in relation to transferred matters only if they relate to a Bill before Parliament. This is similar to the provision made for Scotland in subsection (2).

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Amendment No. 6 inserts a new clause providing for the Lord Chief Justice of Northern Ireland to lay written representations before the Northern Ireland Assembly on matters which appear to him to be of importance relating to the judiciary or the administration of justice in Northern Ireland and which come within the scope of subsection (2). These are, in essence, matters being legislated on by the Northern Ireland Assembly. Amendment No. 273 amends Clause 119 to provide that this new clause extends only to Northern Ireland.
Moved, That the House do agree with the Commons in their Amendments Nos. 4 to 6.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
Baroness Ashton of Upholland: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 7 to 10. I spoke to these amendments with Amendment No. 3.
Moved, That the House do agree with the Commons in their Amendments Nos. 7 to 10.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
Baroness Ashton of Upholland: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 11.
This amendment makes provides for a new section to be inserted in the Judicature (Northern Ireland) Act 1978, corresponding to Section 1 of the Courts Act 2003. It will place a statutory duty on the Lord Chancellor to ensure there is an efficient and effective system to support the Supreme Court and county, magistrates' and coroners' courts in Northern Ireland, and that appropriate services are provided for those courts. It also requires the Lord Chancellor to lay before Parliament a report on how he has discharged his duty.
This clause will assist in bringing the Lord Chancellor's statutory responsibilities for Northern Ireland in line with his statutory responsibilities for England and Wales. Together with the provision in the Bill relating to the statutory responsibilities of the Lord Chief Justice of Northern Ireland as President of the Courts, it will help to clarify the respective roles of the executive and the judiciary, which is a fundamental objective of the Bill.
Moved, That the House do agree with the Commons in their Amendment No. 11.—(Baroness Ashton of Upholland.)
On Question. Motion agreed to.
Baroness Ashton of Upholland: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 12.
The amendment makes provision for a new statutory office and title of President of the Courts of Northern Ireland, which will be assumed by the Lord Chief Justice of Northern Ireland. It sets out the responsibilities of the President of the Courts of Northern Ireland and the courts to which the presidency applies. His
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responsibilities, which are similar to those already provided for in respect of the Lord Chief Justice of England and Wales, include representing the views of the Northern Ireland judiciary to Parliament, the Lord Chancellor and Ministers of the Crown generally; and when the Northern Ireland Assembly is restored, to the Assembly, the First Minister and the Deputy First Minister and Northern Ireland Ministers.
The amendment also provides that the Lord Chief Justice will be head of the judiciary in Northern Ireland, a post by convention held by the Lord Chancellor. The Lord Chancellor will continue to have ministerial functions for the courts, following the reform of the office, on a similar basis to that for England and Wales—for example, setting the organisational framework for the court system.
Moved, that the House do agree with the Commons in their Amendment No. 12.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
Baroness Ashton of Upholland: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 13 and 14.
The group to which I am speaking is a substantial one—in fact we have called it the "super group". It makes detailed and technical amendments to Schedule 4 in four separate areas. I shall, with reasonable clarity and speed, do a little scene-setting and list the affected areas.
Schedule 4 is one of the key parts of the Bill that gives effect to the concordat agreed between the Lord Chancellor and the Lord Chief Justice. It provides for the Lord Chancellor's current statutory functions relating to the judiciary and the organisation of the courts to be amended—so that they require consultation with or the concurrence of the judiciary—or transferred to the Lord Chief Justice or another senior judicial office holder.
These amendments are designed to complete the schedule and to make sure that it fully reflects concordat principles. They cover a number of individual functions in Northern Ireland under legislation that extends throughout the UK and introduces a new schedule in relation to Northern Ireland which corresponds to Schedule 4; provisions that support arrangements for the ending of the Lord Chancellor's ecclesiastical patronage and—as announced by the Government on 2 March 2004—their future exercise by the Prime Minister; arrangements for appointments and removals from tribunals which cover either the whole of the United Kingdom, or other parts of the United Kingdom in addition to England and Wales; and a number of corrections and updates to ensure that the transfer of functions is fully in line with the concordat.
I shall now speak briefly to the first of these areas and to Amendment No. 13 and the amendments grouped with it. These amendments cover a number of individual functions in Northern Ireland where the amendments generally create new roles for the Lord Chief Justice of Northern Ireland; and the introduction of the new schedule to which I have already referred.

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Amendments Nos. 13 and 14 amend Clause 13 to provide for the modification and transfer of the Lord Chancellor's functions in Northern Ireland and the introduction of a new schedule.
The amendments in the subgroup are mainly technical in nature. The amendments to Schedule 4 are intended to ensure that the schedule fully reflects the concordat principles. They deal mainly with arrangements for appointments to a number of tribunals established under legislation with UK-wide extent, but where the office holder is either appointed to sit exclusively in Northern Ireland or throughout the UK—but who in practice sits mainly in Northern Ireland—and with arrangements to replicate functions of the Lord Chief Justice of England and Wales already transferred in Schedule 4 for the Lord Chief Justice of Northern Ireland.
The Lord Chancellor's written evidence to the Select Committee, agreed with the Lord Chief Justice of Northern Ireland, laid out in some detail the future arrangements for the Lord Chancellor's court-related functions in Northern Ireland on reform of the office of the Lord Chancellor.
On the second subgroup, as stated to the House on 2 March 2004, the Crown's ecclesiastical patronage rights, currently exercised by the Lord Chancellor, will remain with the Crown. The basis of the Lord Chancellor's exercise of this patronage is historical, not based in statute. In future, that patronage will be exercised on the advice of the Prime Minister, who already deals with a range of ecclesiastical appointments. Passing the responsibility for exercising this patronage can be achieved through non-statutory means.
The amendments to the Pluralities Act 1838, the Ecclesiastical Leasing Act 1842, the Inclosure Act 1859, the City of London (Guild Churches) Act 1952 and the Pastoral Measure 1983 are consequential on that transfer. They will ensure that the ending of the Lord Chancellor's ecclesiastical patronage is satisfactorily completed and that any uncertainty is removed.
Subgroup 3 deals with the Lord Chancellor's powers to appoint people to and remove persons from tribunals with a UK-wide jurisdiction. Amendments Nos. 344 and 394 transfer the Lord Chancellor's duty to consult the Secretary of State for Health or the Chief Medical Officer in relation to certain tribunal appointments to the Judicial Appointments Commission.
The other amendments deal with tribunals with a UK-wide jurisdiction, or jurisdiction covering more than one part of the UK. These require special arrangements in relation to some appointing and delegating functions and removals from office. The power to remove normally lies with the Lord Chancellor, with the agreement of the Lord Chief Justice of England and Wales, but in relation to Scottish members removal should be with the agreement of the Lord President of the Court of Session, and in relation to Northern Ireland members, removal should be with the agreement of the Lord Chief Justice of Northern Ireland. The relevant judge in each case is referred to in the amendments as the "appropriate senior judge".
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I turn very briefly to subgroup D. It deals with miscellaneous technical amendments to Schedule 4. So Amendments Nos. 416 to 418, for example, provide for the Lord Chief Justice to appoint someone other than the Master of the Rolls to the head of civil justice. That of course brings the legislation into line with appointment procedures for the heads of criminal and family justice in Clauses 8 and 9 of the Bill. Amendment No. 342 transfers to the Lord Chief Justice the Lord Chancellor's powers to prescribe new business for the central office of the Supreme Court.
The remaining amendments are minor and technical, and I am sure that your Lordships will have read and noted them with care. The most significant change that we have made concerns how recorder appointments are renewed, in Amendment No. 324. The new provisions mirror what has been the practice for some time: automatic renewal of appointments except where there are grounds for non-renewal. That may be of interest to the noble Lord, Lord Kings land. The amendments also now require the Lord Chief Justice's agreement to grounds for non-renewal or removal from office, as well as any decision that those grounds are fulfilled in a particular case.
The remaining amendments correct how some existing functions of the Lord Chancellor are amended; provide for the Home Secretary to be involved in a new power relating to the making of criminal procedure rules; and ensure that the Lord Chancellor's functions relating to the making of rules are correctly reflected in the relevant provisions. I should add that all those amendments have been discussed with the judiciary, who are content with them.
Moved, That the House do agree with the Commons in their Amendments Nos. 13 and 14.—(Baroness Ashton of Upholland.)
Lord Mackay of Clashfern: My Lords, I think that I am right in saying that when a consultation document was issued about the subsidiary functions of the Lord Chancellor—for example, in relation to ecclesiastical appointments—it was asked whether it was any longer appropriate that such appointments should be made by a senior Secretary of State. Is the solution to that problem to transfer them to the Prime Minister?
Baroness Ashton of Upholland: My Lords, I take the noble and learned Lord's point with the degree of jocularity that I think he intended. We have made something even more sensible than it was before.
Viscount Bledisloe: My Lords, I should like to ask the noble Baroness about Amendment No. 116. At present, the Bill provides that the Master of the Rolls is the head of civil justice and allows the Lord Chief Justice to appoint a deputy for him. The amendment states that the head of civil justice is to be the Master of the Rolls or, if the Lord Chief Justice appoints another person, that person.
I see that it is perfectly sensible to have the power to appoint someone else if the Master of the Rolls does not want to do the job, but it seems rather demeaning to the Master of the Rolls who, until now, has always

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been regarded as an equivalent of the Lord Chief Justice, that the Lord Chief Justice can take away that function from him in his despite and say, "I am appointing one of your Lord Justices to perform that role, even though you would like to continue doing it". Is it really right that the Lord Chief Justice should now be given the power to treat the Master of the Rolls in that rather peremptory and contemptuous manner?
Baroness Ashton of Upholland: My Lords, I did not interpret what is proposed in the same way as the noble Viscount. As I understand it—and I checked this point because I had a feeling that he might raise it—that provision returns the Bill to the present position, which is that someone other than the Master of the Rolls could be appointed. As my noble and learned friend would be the first to say, it is important that someone takes the decision and that it is made in accordance with the new relationship between the judiciary and the Lord Chief Justice. So it ensures that the Lord Chief Justice is appropriately positioned with the Lord Chancellor.
On Question, Motion agreed to.
Baroness Ashton of Upholland: I beg to move that the House do agree with the Commons in their Amendment No. 15.
The purpose of the amendment is to ensure continuity if the office of Lord Chief Justice is vacant or if the office holder is unable to exercise his functions. Of course, we hope that those provisions will never be necessary, dealing as they do with circumstances such as unexpected resignation or death. They also deal with ill-health or other possible scenarios where the Lord Chief Justice is incapacitated. In such circumstances, it is essential that procedures are in place to ensure that the functions that fall to the Lord Chief Justice can be exercised on his behalf, to allow the smooth running of the judicial system.
The amendments provide that the functions of the Lord Chief Justice would fall to the next most senior head of division. In such a case, the full powers of the Lord Chief Justice would transfer temporarily to the next most senior member of the judiciary. The amendment provides an important safeguard in that any decision about whether the Lord Chief Justice is incapacitated must be agreed in writing by at least three of the four heads of division. It must be right that such a decision lies in the hands of the judiciary.
This is an important amendment. We hope that it will never have to be used, but we must ensure that proper safeguards are in place to ensure continuity in the judicial system.
Moved, That the House do agree with the Commons in their Amendment No. 15.— (Baroness Ashton of Upholland.)
On Question, Motion agreed to.
Baroness Ashton of Upholland: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 16 to 29. I have already spoken to them with Amendment No. 3.
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Moved, That the House do agree with the Commons in their Amendments Nos. 16 to 29.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
Baroness Ashton of Upholland: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 30 and 31.
Amendment No. 30 is the first in a group of amendments to give effect to the recommendation of the Select Committee on the Bill that,
"The Supreme Court of England and Wales and the Supreme Court of Judicature of Northern Ireland should be renamed and, when necessary to avoid confusion, the short titles of legislation relating to those courts should also be changed".
The Supreme Court of England and Wales is to be renamed "the Senior Courts of England and Wales" and the Supreme Court of Judicature of Northern Ireland as "the Court of Judicature of Northern Ireland". The renaming does not affect the courts in question in any way other than the names by which they will be known. The new names were selected in consultation with the senior judiciary in each jurisdiction, with a view to avoiding confusion not only with the Supreme Court of the United Kingdom, but with other courts.
The new clause introduced by Amendment No. 85 provides for the Supreme Courts of England and Wales and Northern Ireland, and also the Northern Ireland Supreme Court Rules Committee, to be renamed and for references to them in other legislation to have effect as references to them as renamed. In addition, the new schedule introduced by Amendment No. 487 provides for the legislation relating to the renamed courts to be retitled as appropriate, and also carries through direct textual amendments of references in other legislation that might otherwise give rise to confusion.
References at various points in the Bill also require amendment in line with the general renaming, and Amendments Nos. 30 and 31, 299, 341, 485 to 487, 489, 491 and 492, 496 to 499, 550 and 551, 553 and 554, 583 and 644 to 662 change those references as appropriate. Amendment No. 269 amends Clause 115 to make it clear that other references can be amended in line with the renaming. Amendments Nos. 621, 622 and 624 make minor consequential amendments and repeals arising from the renaming.
Moved, That the House do agree with the Commons in their Amendments Nos. 30 and 31.—(Buroness Ashton of Upholland.)
Lord Mackay of Clashfern: My Lords, what is the position of the Supreme Court of Scotland? Is that a matter for the Scottish Parliament to deal with?
Baroness Ashton of Upholland: My Lords, it is indeed for the Scottish Parliament to deal with.
On Question, Motion agreed to.
Baroness Ashton of Upholland: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 32 to 80. I spoke to them with Amendment No. 3.

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Moved, that the House do agree with the Commons in their Amendments Nos. 32 to 80.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
Baroness Ashton of Upholland: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 81 to 83. These amendments make provision relating to records of the United Kingdom Supreme Court and for the court's official seal. They were prepared in close consultation with the senior Law Lord.
The provision relating to court records is amended in one very restricted particular. Clause 52 as originally introduced amends the Public Records Act 1958 to provide for records of the Supreme Court to be public records, like those of any other court with United Kingdom jurisdiction or a jurisdiction not limited to Scotland or Northern Ireland. Provisions of the Public Records Act 1958 will apply to the records of the Supreme Court as to any other court within that framework, with an exception for which Amendments Nos. 82 and 83 provide by removing Clause 52 and substituting for it a revised clause. The exception is that the chief executive of the Supreme Court will have custody of the records of the court by virtue of his office as chief executive, rather than by virtue of a determination by the Lord Chancellor to that effect.
6 p.m.
In the normal course of events the outcome would be the same: the chief executive would be responsible for and have custody of the records within the terms of the Act because there is no other person whom the Lord Chancellor could rationally designate. But the amendment will mean that the process of determining who is to have custody, which would otherwise apply as for all other English or United Kingdom courts, will be avoided. That will further guarantee the court's independence from any appearance of outside interference.
Amendment No. 81 makes provision in the form of a new clause for the UK Supreme Court to have an official seal and for that seal to be judicially recognised so as not to require further proof of documents emanating from the court. The provision will serve the interests of certainty and transparency, and as a valuable guarantee of authenticity, on the model of provision, which has been made for numerous other courts established or consolidated in statute.
The new clause provides for the Supreme Court to have a seal and follows the model of Section 123 of the Supreme Court Act 1981 as to the effect of the seal. Accordingly, any document sealed with the seal of the court is to be received in evidence without further proof.
Moved, That the House do agree with the Commons in their Amendments Nos. 81 to 83.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
Baroness Ashton of Upholland: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 84. The aim of this amendment is to provide for the status of the new UK Supreme Court under the Northern Ireland Act 1998. Provision is made for the Supreme Court to be specified as an excepted matter in Schedule 2 to that Act, but for rights of appeal to the UK Supreme Court and legal aid for such appeals to be reserved matters in Schedule 3.
This ensures that the position of the new UK Supreme Court exactly reflects the current status of the judicial function of the House of Lords in relation to the devolution settlement for Northern Ireland. The amendment is intended merely to ensure that the new court is covered and to avoid any ambiguity about what is and is not excepted and reserved. It is not intended to change the status of the final court of appeal.
Moved, That the House do agree with the Commons in their Amendment No. 84.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
Baroness Ashton of Upholland: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 85 and 86. I have spoken to these amendments with Amendments Nos. 3 and 30.
Moved, That the House do agree with the Commons in their Amendments Nos. 85 and 86.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
COMMONS AMENDMENT
87 After Clause 57, insert the following new Clause—
"Encouragement of diversity
(1) The Commission, in performing its functions under this Part, must have regard to the need to encourage diversity in the range of persons available for selection for appointments.
(2) This section is subject to section 57.
Baroness Ashton of Upholland: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 87. Amendment No. 87 was originally the second of two amendments tabled by Mr Vaz, Mr Bottomley and three other members of the Constitutional Affairs Select Committee to give effect to the Select Committee's recommendation that the Judicial Appointments Commission should be under an explicit duty to promote diversity.
The Government had the opportunity to consider the issues raised with Mr Vaz and with the judiciary. In the course of those discussions, we came to the view that the purposes of the second amendment were entirely in line with the Government's thinking about the commission's role in increasing the range of applicants for appointment, yet escaped the possible problems of statutory provision on this topic. When the amendment was not reached in Committee on 1 March, it was therefore moved by the Government and accepted without debate but following a vote.

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It will have been clear in the extensive debates on this question that the Government have had considerable reservations about whether a statutory duty of that kind was the right way forward. That is not because we have any doubts about the importance of that issue to the commission's work. We expect the commission to work with the Government and the legal profession to encourage people who believe that they have the qualities and abilities we expect of our judges to put themselves forward for appointment, whatever their background; and to give them confidence that they will receive fair and open treatment. That is the way towards the wider range of judges that we and the judiciary are so keen to see.
The Government and, indeed, the judiciary were, however, extremely anxious that nothing in the Bill should appear to detract from the main principle in judicial appointments; namely, that all appointments should be made solely on merit. That is why we had originally planned to deal with diversity issues in guidance rather than in the Bill itself.
Careful consideration of this amendment has convinced the Government that it escapes the possible problems of statutory provision. First, the new duty escapes the most substantial problem of diluting the merit principle since it is expressly subject to the overriding duty to select on merit. Moreover, the new clause focuses on the separate topic of efforts to ensure that the widest range of applicants come forward.
There is another risk in provision in the Bill of the new duty being inflexible and insufficiently responsive to changing need. We consider that the new duty is also drafted in sufficiently general terms so as not to hamper the commission and to enable it to respond creatively over the years to changing perceptions of the problems and of their solutions.
I am therefore of the view that the new clause enhances the Bill. Our discussions with the judiciary indicate that it, too, regards this as a positive improvement. Indeed, the Lord Chief Justice and the Judges' Council Working Party on constitutional reform, chaired by Lady Justice Arden, were consulted about the amendment and confirmed their support for this extension of the commission's statutory remit.
They are satisfied that Clause 57 does not dilute the commission's duty to make appointments solely on merit. The Lord Chief Justice has consistently made clear that he hopes the commission will actively seek to widen the field of candidates from which judicial appointments are made. He sees that as an important element of the current drive to increase judicial diversity.
That is why, when it became clear in the circumstances of the final stages of the Bill in the Commons, where the Government were faced with the choice of losing the amendment completely or adopting it by having it formally moved by a Minister, the Government chose the latter. The House authorities and the Opposition spokesmen were, of course, informed of that contingency. But I accept that in the latter case, this might have happened at rather a late stage.
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I am therefore happy to commend this amendment to the House. I am satisfied that the amendment, which is expressed to be clearly subject to the clause dealing with selection on merit, runs none of the risks that I identified in relation to the first amendment. In the light of that explanation, I hope that noble Lords will feel able to accept the amendment.
Moved, That the House do agree with the Commons in their Amendment No. 87.—(Baroness Ashton of Upholland.)
Lord Kingslandrose to move, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 87, leave out "agree" and insert "disagree".
The noble Lord said: My Lords, at the outset, I should like to say that it is not my intention to press this amendment to a vote, in view of what the noble Baroness has just said. The whole question of diversity was dealt with in some detail in the Select Committee of your Lordships' House, and the summary of the debate appears in paragraphs 336 to 346 of the report.
In the outcome, as the noble Baroness has already indicated, the Select Committee recommended that the diversity provision form part of guidance rather than a direct obligation on the commission itself. That was because, on balance, the committee did not want—the noble Baroness has confirmed it—there to be any chance that the merits only requirement would be diluted.
What seems to have happened is that the recommended wording for the guidance has been promoted to the wording of an obligation that ought to be placed on the commission. I have no difficulty with that. The noble Baroness generously informed your Lordships' House that it arose rather late and in somewhat less than ideal circumstances in another place. It also provided evidence of some rethinking from the Government side, which took us rather by surprise.
Nevertheless, on the assumption that what the noble Baroness said about the principle of merits remaining not only the main principle but the exclusive principle—and that the diversity provision relates only to the pool of candidates that come forward—we are not just content with that, but think that it is a useful addition to the Bill. I beg to move.
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 87, leave out "agree" and insert "disagree".—(Lord Kingsland.)
Lord Maclennan of Rogart: My Lords. I find myself in agreement with the noble Lord, Lord Kingsland, both in his conclusions and in his recollection of the reasoning of the Select Committee. There is no doubt that the Select Committee was concerned to ensure primacy in the requirement that appointments be made according to merit. I think that our caution in our recommendation was justified.

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In recognising the desirability of seeking to widen the pool, I think that that should be a duty placed upon the commission—not a duty to displace the merit principle but a duty none the less. The Bill has marked an advance and what happened in another place is understandable and welcome.
Lord Clinton-Davis: My Lords, I support the merit principle, which is in no way incompatible with the principle upon which the Bill is based. The chances of appointing the best kind of people will be enhanced by the amendment. It is for that reason that I support it.
Lord Mackay of Clashfern: My Lords, I have no difficulty with the idea that Clause 57 maintains the principle of merit. However, I have a little difficulty with the wording that has been chosen in regard to diversity. The amendment requires the commission to,
"encourage diversity in the range of persons available for selection for appointments".
The range of persons available for selection for appointments is defined by the statutory requirements that a person must fulfil in order to be appointed as a judge or to one of the other appointments. How can the commission, in the exercise of its powers, alter that range? The answer, I think, is that it cannot.
The commission might be able to help encourage more people to obtain the qualifications that are necessary for an appointment, but the trouble with that is that it would not be an exercise of its functions, which are to nominate people for appointment. It does not have any function in enlarging the professional pool or anything of that kind.
That has always been a difficulty. My noble and learned successor and myself—and, no doubt, the present Lord Chancellor also—have been very anxious to appoint a diversity of people. The difficulty has been that the profile of the profession and the way in which the qualifications are attained—and who attains them—has tended to place a restriction on us. I am sure this is still the experience.
The provision refers to,
"the range of persons available"
for appointments in a way that I find difficult to apply to the state of facts. I am sure that I am right in thinking that it is not intended that the commission should have power to alter the statutory qualifications. Therefore, it will have to exercise its power for enlarging the range in some other way. That must mean enlarging the range of those who apply having attained the applicable qualifications. But the amendment does not say that. It refers to,
"the range of persons available for selection".
So "available" refers to the whole range of people who have the qualifications.
I am not clear how the commission will deal with that. I hope the Minister will make that clear.
Lord Lloyd of Berwick: My Lords, I, too, have some concerns about the new clause. Like everyone else, I remember the endless discussions we had on this aspect of the matter in the Select Committee. I thought
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we had reached the fairly clear conclusion that we needed to widen the pool but not in any way to touch the test, which was to be solely on merit.
The noble Baroness said that it is all right to include this new clause because it is made subject to Clause 57. But Clause 57 states that it is to be solely on merit. 1f it is to be solely on merit, I do not understand how there is room to have regard to anything else.
6.15 p.m.
Baroness Ashton of Upholland: My Lords, very happily, we are all in agreement—which is slightly disturbing at one level. The situation is as the noble and learned Lords, Lord Lloyd of Berwick and Lord Mackay of Clashfern, said: it is absolutely about merit.
It is then a question of how you make sure that applicants who have the right qualifications come forward. This is true in many walks of life—some of which I have been involved in—including, I suspect, the judiciary. This is why we are consulting at the moment on the whole question of diversity. People do not come forward in the numbers one would perhaps expect for a variety of different reasons which are not to do with qualifications.
In some walks of life—this is certainly true in the American experience in the 1960s and 1970s—it has to do with confidence: "This is not about me. I do not look like the people who are doing this and therefore I do not apply". This is also true for women who do not have the confidence to come forward in a world where they do not feel welcome. This is not because of the actions of other people but simply because they do not see themselves there.
So this is about how you make sure that within the qualifications—absolutely appropriately—people who can do the job come forward. Then, of course, the decision is made on merit. That is the way it should be and it is right and proper to include that proposition within the Bill in the way in which it is included. I think everyone agrees with the proposition.
Lord Mackay of Clashfern: My Lords, in that case, the phrase,
"in the range of persons available",
means "in the range of persons who apply". With great respect, that is not exactly what is said. It may be good enough. I do not know.
Baroness Ashton of Upholland: My Lords, parliamentary counsel would say that is what it says. Not being a lawyer, I am always beholden to parliamentary counsel.
As the noble and learned Lord, Lord Mackay, has said, this is about making sure that the group of people, the range of people and the breadth of people who come forward are properly qualified. Then, if one is thinking about diversity, one looks at that range and considers the diversity of applicants. But the central core issue that noble Lords were concerned about at previous stages of

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the Bill—with which the Government are absolutely at one with your Lordships' House—is that the appointments are then made on merit.
Viscount Bledisloe: My Lords, perhaps I may assist the Minister with an answer for the noble and learned Lord, Lord Mackay. Surely the only people available for selection are those who have applied. Many people may be qualified for selection, but they are only available if they apply. So the Minister is surely right to say that if the commission encourages people to apply, that is encouraging them to make themselves available for selection.
Baroness Ashton of Upholland: My Lords, I hope not to need help, but it is always great to get help from the noble Viscount.
Lord Morgan: My Lords, is it not in fact a principle that we observe in other areas of life? In academic life, for example, and no doubt in other professional areas, you seek to strike a balance between people who have the ability to do the job and other kinds of circumstances, including the social background, the context and the needs. It is not necessarily so unique a problem.
Lord Kingsland: My Lords, in the course of the debate in the Select Committee, I recall drawing the attention of the noble and learned Lord to Section 3 of the Justice (Northern Ireland) Act 2004, which inserted a similar provision into the Justice (Northern Ireland) Act 2002. There, having set out an exclusive merit test, it went on to say that that test was subject to the commission engaging in a programme of action which is designed to secure, so far as is reasonably practicable, that a range of persons reflective of the community in Northern Ireland is available for consideration by the commission.
The way in which that was interpreted, as I understand it, in the context of the Northern Ireland legislation, was to require the commission to set up a programme whereby certain active steps were taken in the career promotion of those who were less well represented in Northern Ireland society to ensure that, when the moment of judicial appointment came. they would be appropriately qualified.
For example, if you were thinking of making a High Court appointment, you might ensure that a woman who had a family and who necessarily was out of practice for, say, 10 years, would have the opportunity to go into a part-time judicial appointment which she could do for half the time. In that way she would keep up the career momentum, which would mean that 10 years later she would be in a reasonably good position to apply to be a High Court judge.
The way this is dealt with in the Northern Ireland legislation, therefore, is to go beyond simply doing a trawl and saying, "By the way, there's a post coming up, why don't you apply?", to include a structured programme by the commission in Northern Ireland
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over a considerable period of years actively to assist people who are less well represented to get on the right set of ladders.
The noble Baroness might like to go on the record as saying that what she had in mind was something of that nature rather than something that simply took place immediately before a selection was undertaken.
Baroness Ashton of Upholland: My Lords, I am grateful to the noble Lord, Lord Kingsland, who knows a great deal about the provisions of the Northern Ireland Act 2000, which came from the Criminal Justice Review and describes a system that is reflective of the community, which is a different language for a different set of purposes.
The consultation that we are conducting at the moment is designed to look at the barriers that prevent people from the legal professions from coming forward to consider entering the judiciary and promotion within the judiciary. It is not in isolation to think about the moment of appointment, as the noble Lord rightly said; it is about a programme that asks how we make sure that people come forward and think about becoming a judge. I would argue that the process whereby one has to think about future progression through the legal profession begins at school as well as at university.
We have no difficulty with placing on the record our desire to see a full programme. It is not yet fully in place because we are in the middle of our consultation, but we want to take steps to make sure that people come forward. Within the principle, as we have already identified, they are appointed on merit.
Lord Kingsland: My Lords, I am most grateful to the noble Baroness. In the light of what the noble Baroness said there may have been some advantages in staying with the solution devised by the Select Committee: if the rules are guidance rules they can be changed much more easily and one could, over a period of time, have endorsed and factored in the programme approach contained in the Northern Ireland legislation. Having said that, on balance I am minded not to press my amendment and beg leave to withdraw it.
Amendment No. 87A, as an amendment to Commons Amendment No. 87, by leave, withdrawn.
On Question, Motion agreed to.
Baroness Ashton of Upholland: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 88 to 93, to which I have already spoken in the debate on Amendment No. 3.
Moved, That the House do agree with the Commons in their Amendments Nos. 88 to 93.—(Baroness Ashton of Upholland)
On Question, Motion agreed to.
Baroness Ashton of Upholland: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 94.
The Bill currently provides that the Lord Chief Justice should be consulted about the content of the guidance to the Judicial Appointments Commission

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when it is being prepared. That is because much of the material covered by the guidance will be of interest to the judiciary and it is therefore necessary to ensure that the Lord Chief Justice is consulted about it during the course of its preparation.
It is also desirable to ensure that the Lord Chief Justice is consulted if the withdrawal of guidance is being considered. This minor Amendment No. 94 now makes provision for that. Both Houses will have the opportunity to consider guidance because it is subject to affirmative resolution, as is any revocation of the guidance.
Moved. That the House do agree with the Commons in their Amendment No. 94.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
Baroness Ashton of Upholland: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 95, to which I have spoken with Amendment No. 3.
Moved, That the House do agree with the Commons in their Amendment No. 95.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
Baroness Ashton of Upholland: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 96 to 100.
This is a large group of amendments to the provisions for appointing judges. Their purposes can, however, be briefly explained. The overall purpose of the changes is to make the processes which the Judicial Appointments Commission and the Lord Chancellor must go through in making judicial appointments as clear as possible; and to make it clear that the commission has the flexibility it will need to meet the range of requests that will be made.
We have often recognised the need for such provision in the continuing discussions with the judiciary on the way in which the Bill gives effect to the concordat, and in the light of debates in your Lordships' House and in another place. I will outline the areas in which the amendments make technical or minor changes of substance to the provisions, in the order in which they appear on the Marshalled List.
Amendments Nos. 98, 126 and 156 create duties on the Lord Chancellor to fill vacancies in the offices of Lord Chief Justice, the senior judicial posts and all offices listed in Schedule 12. Amendment No. 189 enables the Lord Chancellor to give the commission an indication of the number of appointments he expects to make in any particular class of judicial appointments. The commission is then obliged to identify persons that it would consider suitable to fill the expected vacancies. This ensures that current practice in relation to competitions to fill a number of vacancies in a single class of appointments can continue.
This process is preliminary to the selection process for individual posts, and the Lord Chancellor will only consider the merits of the individuals who have been identified by the process. At the end of such an
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exercise, therefore, the commission will have to give the Lord Chancellor a report which sets out only how far it is confident that it has a sufficient pool to meet the likely need, and any other matters which would enable the Lord Chancellor to decide whether he needs to take additional action.
The report will not identify the individuals who have been identified for the pool from which individual requests will be filled, unless the commission considers it necessary to do so. Names from the reserve list will normally only be put to the Lord Chancellor as he seeks selections for specific posts. Guidance to the commission will make it clear that the names should be released only in exceptional circumstances. There is a sensitivity about the names on the reserve list, as those people have not actually been selected for, and may never be offered, a specific judicial appointment.
The clause which enables the Lord Chancellor to withdraw or modify requests to the commission to select candidates for vacancies replaces Clause 82. An additional safeguard is that it now provides for requests dealing with specific vacancies to be withdrawn or modified only with the agreement of the Lord Chief Justice. Amendment No. 192 makes it possible for the commission to make arrangements for the preferred candidate for an appointment to be subject to health checks.
In the process of drafting these substantive, if somewhat technical amendments, counsel has taken the opportunity to reconsider the structure of all the clauses dealing with selection for appointments. The majority of the amendments are therefore either drafting amendments or amendments designed to incorporate the effect of the new clause that I have just explained. They considerably simplify the clauses which deal with the Lord Chancellor's duty to fill vacancies; the processes through which the Lord Chancellor asks the Judicial Appointments Commission to select candidates; and the Lord Chancellor's powers to select recommended candidates.
Those amendments—some 32 of them—do not affect the substance of the Bill, even though in some cases the clauses have been restructured to make them, I hope, significantly easier to understand.
Amendment No. 174 provides for the Lord Chancellor to consult with Scottish Ministers and other Ministers for certain tribunal appointments either where the person will sit in Scotland or where he is required to do so by legislation. Finally, I should mention that Amendments Nos. 158 and 191 delete Clauses 75 and 82, because these clauses have been replaced by the new clauses in Amendments Nos. 156 and 157 and Amendment: No. 190.
Moved, That the House do agree with the Commons in their Amendments Nos. 96 to 100.—(Baroness Ashton of Upholland.)
Viscount Bledisloe: My Lords, it is obviously sensible that there should be a position where the Lord Chancellor can say to a potential judge, "Before I appoint you I want you to be medically checked". If the medical check is unfavourable and there is any

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chance that the Lord Chancellor would or might not appoint that person, can we have an assurance that the candidate will be given a copy of that report and an opportunity to go to his own doctor or a doctor of his choosing and to submit a report that might come to a more favourable conclusion and persuade the Lord Chancellor that there was no bar to the appointment?
Baroness Ashton of Upholland: Indeed, my Lords, I can give the noble Viscount that assurance.
On Question, Motion agreed to.
Baroness Ashton of Upholland: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 101 to 216. I have spoken to these amendments with Amendments Nos. 3 and 96.
Moved, That the House do agree with the Commons in their Amendments Nos. 101 to 216.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
Baroness Ashton of Upholland: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 217 to 222. This is the first of a set of three groups of amendments reflecting work done to ensure that the concordat provisions are clearly and fully expressed and that the involvement of the Scottish and Northern Irish judiciary is properly allowed for in relation to tribunal appointments where most of the sittings will be in those jurisdictions.
In addressing all this, we were advised that the clarity of the provisions in the Bill would be enhanced by some reordering, hence the new clauses in the next two groups. The amendments in the first group are mainly drafting amendments and are all minor, but the provisions they amend are important since Clause 94 puts a judicial disciplinary system on a statutory basis for the very first time.
The judicial disciplinary system will involve the Lord Chancellor and the Lord Chief Justice working together. The Lord Chancellor will have the power to remove judicial office holders below the level of the High Court, with the agreement of the Lord Chief Justice. The Lord Chief Justice will have the power to give formal advice, warnings or reprimands to judicial office holders as a result of the disciplinary process, with the agreement of the Lord Chancellor.
These provisions faithfully reflect the concordat agreed with the judiciary. They build on the system that already exists but involve the Lord Chief Justice more fully in decisions to reflect the fact that he will be head of the judiciary. The Lord Chancellor's continuing role in disciplinary matters reflects the need for a Minister accountable to Parliament and as a representative of the public interest.
The more detailed framework of the disciplinary process will be contained in regulations made by the Lord Chief Justice with the agreement of the Lord Chancellor under Clause 96. The Lord Chief Justice also has the power under Clause 98 to make subordinate rules with the agreement of the Lord Chancellor which must
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be published but are not subject to parliamentary approval. That is because we envisage that the rules will contain a higher level of detail about how complaints and disciplinary procedures will work and may need to be revised and reissued fairly regularly.
Amendment No. 217 removes the possible problem of the drafting of the existing Clause 94 by making it clear that the provision in Clause 94(2) that the Lord Chief Justice may exercise his disciplinary powers only with the agreement of the Minister and in accordance with prescribed procedures does not affect what the Lord Chief Justice may do informally.
Amendments Nos. 218 and 220 correct references to disciplinary procedures and replace them with references to prescribed procedures. Amendment No. 221 clarifies the effect of suspending a judge. Clause 94 allows the Lord Chief Justice, with the agreement of the Lord Chancellor, to suspend a judge in certain circumstances when the judge is subject to disciplinary procedures. The amendment makes it clear that a judge who is suspended may not exercise the functions of his office but that his other rights are unaffected.
Amendment No. 222 makes it clear that disciplinary regulations made by the Lord Chief Justice will define when someone is subject to prescribed procedures or is under investigation for an offence. That will govern the exercise of the new power in Clause 94(7) which allows the Lord Chief Justice, with the agreement of the Lord Chancellor, to suspend a judicial office holder in those circumstances.
Moved, That the House do agree with the Commons in their Amendments Nos. 217 to 222.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
Baroness Ashton of Upholland: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 223 to 227. This group of amendments consists of changes to the discipline provisions in the Bill to ensure that it is fully consistent with the concordat over changes made in your Lordships' House. The changes concern the discipline regulations to be made by the Lord Chief Justice, the substantive powers of the ombudsman and the application of the disciplinary regime to tribunals with United Kingdom or Great Britain-wide jurisdiction.
The amendments to the regulation-making power are technical, and, most importantly, clarify that the regulations may confer functions on the ombudsman in connection with his functions under the Bill. Generally, it is intended that the concordat will be fully reflected in the detailed regulations.
The amendments also clarify the substance of the ombudsman's functions in line with the concordat. Unusually, the ombudsman will not be limited to the usual power to make recommendations, but will also be able to set aside decisions on disciplinary complaints and require they be investigated further, investigated again or reconsidered. Further changes were needed to distinguish between reports arising from a complaint and those where the Lord Chancellor or Lord Chief Justice

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had referred a general matter regarding the discipline regime to the ombudsman. Changes to achieve that have led to a significant reordering of the provisions to provide greater clarity and make the terminology more appropriate. They have also identified the need to make some other minor but important improvements. For example, they brought into focus the fact that the ombudsman needed some discretion when it came to time limits for applying to the ombudsman in relation to a complaint. He now has that discretion.
Moved, That the House do agree with the Commons in their Amendments Nos. 223 to 227.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
Baroness Ashton of Upholland: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 228 to 242. I have spoken to these amendments with Amendments Nos. 3 and 223.
Moved, that the House do agree with the Commons in their Amendments Nos. 228 to 242.—(Baroness Ashton of Upholland.)
On Question, Motion agreed to.
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 243 to 245. This group of amendments is largely concerned with the disciplinary powers of the Lord Chief Justice. As there are likely to be too many disciplinary complaints each year, in too many areas, for the Lord Chief Justice to deal with all of them personally, Amendment No. 243 makes it clear that he can delegate his disciplinary functions and thus share the complaints caseload with other senior judges.
The other two amendments concern the application of the disciplinary regime to tribunals with United Kingdom or Great Britain-wide jurisdiction. They make it clear that where a member of a tribunal with United Kingdom or Great Britain-wide jurisdiction sits wholly or mainly in either Scotland or Northern Ireland, it is not the Lord Chief Justice who will have disciplinary responsibilities in relation to them but the Lord President for the former and the Lord Chief Justice of Northern Ireland for the latter. They, too, may delegate their responsibilities to other senior judges.
Moved, That the House do agree with the Commons in their Amendments Nos. 243 to 245.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 246 to 249. These amendments have been spoken to already.
Moved, That this House do agree with the Commons in their Amendments Nos. 246 to 249.—(Lord Falconer of Thoroton.)
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On Question, Motion agreed to.
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 250 to 253. This is a small group of minor and technical amendments to Clause 104, which provides relevant definitions in relation to Part 4 of the Bill dealing with judicial appointments and discipline.
Amendments Nos. 250 and 251 make it clear that references to the High Court and to a Lord Justice of Appeal in Part 4 relate to England and Wales and not to the identically named institutions in Northern Ireland, which will have its own separate Judicial Appointments Commission.
Amendment No. 252 clarifies the definition of "prescribed" by stating that the power of the Lord Chief Justice to prescribe matters by disciplinary rules under Clause 98 is subject to the restriction of those powers in Clause 98(2), which requires certain matters to be dealt with in regulations, subject to parliamentary approval.
Amendment No. 253 defines when a vacancy occurs for the purposes of the provisions in relation to judicial appointments. The Lord Chancellor will have a statutory duty to make appointments to fill any vacancies except where the Lord Chief Justice agrees otherwise.
Moved, That this House do agree with the Commons in their Amendments Nos. 250 to 253.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 254 to 263. I speak to Amendments Nos. 254 to 263 and Amendment No. 589 which amend the Justice (Northern Ireland) Act 2002 to make provision in relation to the new office of the Northern Ireland Judicial Appointments Ombudsman and to provide a statutory power of disclosure of information, held by permitted persons, to the Northern Ireland Judicial Appointments Commission.
Amendment No. 254 inserts a new Section 5A into the 2002 Act to make provision for disclosure of information by permitted persons—for example, the police—to be made to the Northern Ireland Judicial Appointments Commission.
Amendments Nos. 255 to 263 establish the ombudsman's office and provide an interpretation of the different types of complaint which may be made to the ombudsman. They require the Northern Ireland Judicial Appointments Commission and the Lord Chancellor each to make arrangements for handling complaints made to them in relation to judicial appointments and provide the time limits within which the ombudsman may investigate a complaint where he considers an investigation necessary. Such a complaint essentially relates to appointments to a listed judicial office— that is, High Court judge and below. The ombudsman also has discretion whether or not to

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investigate complaints received at any other time. Any complaint made to the ombudsman must be in a form approved by him.
The amendments also make transitional provision to allow for an ongoing complaint to be transferred from the Northern Ireland commissioner to the Northern Ireland ombudsman upon the commencement of this section. The amendments provide that the ombudsman must prepare a report in relation to any complaint investigated by him, and in his report he may make recommendations for action to be taken by the commission or by the Lord Chancellor, including the payment of compensation. They provide that the ombudsman shall send his report in draft to the Lord Chancellor, and, if the complaint related to the Judicial Appointments Commission, to the commission also.
Before finalising his report, the ombudsman must have regard to any proposals they make for amendment, and if their proposals are not reflected in his final report he must include a statement of those proposals.
In addition to sending the finalised report to the Lord Chancellor and, where appropriate, the commission, the ombudsman shall send a copy to the complainant. The Lord Chancellor may refer to the ombudsman any matters related to the commission's procedure, and the ombudsman must report on his investigation to the Lord Chancellor. The amendments also require the commission and the Lord Chancellor to provide the ombudsman with such information or documentation as he may need to perform his functions.
The amendments also provide that any person who obtains confidential information, or to whom such information is provided, in relation to judicial appointments and discipline, must not disclose that confidential information without lawful authority. In addition, Amendment No. 589 inserts New Clause 3A into the 2002 Act which makes further provision in relation to qualification, tenure of office and powers of the ombudsman. I beg to move.
Moved, That the House do agree with the Commons in their Amendments Nos. 254 to 263.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
264 Clause 105, page 46, leave out from end of line 17 to "unless" in line 19 and insert "or, if the Lord Chancellor is not a member of that House, by another Minister of the Crown at his request.
(4) No motion for the presentation of such an address may be made"
265 Page 46, line 25, leave out from "and" to end of line 26 and insert "a person making such a motion in the House of Lords shall lay a copy of the report before that House before making the motion."
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 264 and 265. I have spoken to these amendments with Amendment No. 1.
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Moved, That the House do agree with the Commons in their Amendments Nos. 264 and 265.—(Lord Falconer of Thoroton.)
Lord Kingslandrose to move, as an amendment to the Motion that the House do agree with the Commons in their Amendments Nos. 264 and 265, leave out "agree" and insert "disagree".
The noble Lord said: My Lords, I beg to move.
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 264 and 265, leave out "agree" and insert "disagree".—(Lord Kingsland.)
On Question, amendment agreed to.
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 266.
This group deals with miscellaneous technical amendments to the general clauses and schedules at the end of the Bill. Examples of what some of these amendments do are as follows. Amendment No. 266 is a technical amendment that provides that the reference to enactment in Clause 18 includes Northern Ireland legislation. Amendment No. 272 provides for the affirmative resolution procedure to apply to orders under Clause 16. Other amendments in this group insert references into, or remove unnecessary references from, Schedule 15, the schedule of appeal. These amendments are purely consequential to the amendments made to Schedules 1, 4 and 14.
Moved, That the House do agree with the Commons in their Amendment No. 266.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 267 to 278. I have spoken to these amendments with Amendments Nos. 3, 4, 30 and 266.
Moved, That the House do agree with the Commons in their Amendments Nos. 267 to 278.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 279. This is the privilege amendment.
Moved, That the House do agree with the Commons in their Amendment No. 279.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 280 to 287. I have spoken to these amendments with Amendment No. 3.

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Moved, That the House do agree with the Commons in their Amendments Nos. 280 to 287.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 288 and 289. These are purely technical amendments to Schedule 1.
Moved, That the House do agree with the Commons in their Amendments Nos. 288 and 289.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 290 and 291. I have spoken to these amendments with Amendment No. 3.
Moved, That the House do agree with the Commons in their Amendments Nos. 290 and 291.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 292 and 293.
These amendments introduce a further exception to the general rule of concurrence in the practice direction functions of the Lord Chief Justice and the Lord Chancellor. This will bring the procedures fully into line with the concordat. At present, Schedule 2 to the Bill provides a uniform mechanism for making practice directions across all jurisdictions and at all levels of court. It provides that the Lord Chief Justice make practice directions with the concurrence of the Lord Chancellor, except where those directions relate to the application and interpretation of the law or judicial decision-making.
The exception to this general approach agreed in the concordat is where the practice direction relates to deciding the appropriate level of judge to hear particular classes of case. It was agreed that, for these directions, the Lord Chief Justice would only be required to consult with the Lord Chancellor, rather than seek his concurrence.
Amendments Nos. 292 and 293, and 296 to 298, agreed with the Lord Chief Justice, qualify the existing practice direction, making mechanisms in Schedule 2 to the Bill in relation to this class of practice direction. In cases where directions set out criteria for allocating judges to hear particular categories of case, the Lord Chancellor will be consulted rather than being required to give consent. This is in recognition of the fact that these kinds of directions are essentially matters for the judiciary, taking into account any ministerial view.
Moved, That the House do agree with the Commons in their Amendments Nos. 292 and 293.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 294 to 330.
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Moved, That the House do agree with the Commons in their Amendments Nos. 294 to 330.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 331.
This amendment will alter the Local Land Charges Act 1975 so as to give local authorities in England the power to set local land charge fees, except for personal search fees. Presently, although methods of keeping local land charge records vary considerable between local authorities, I set local land charge fees on a national basis with the concurrence of the Treasury.
For some local authorities these fees do not cover the cost of providing the service, while others may over-recover. Local fees that reflect the circumstances of each local authority will encourage local accountability, efficiency and transparency, and be fairer to local authorities and their customers. The intention to introduce this amendment. which implements an element of the September 2002 White Paper on local government, was announced by my noble friend Lord Rooker during the Committee stage of the Housing Bill last September.
This amendment will allow local authorities to set fees that, taken one year with another. will enable them to recover up to, but not in excess of, their costs of providing local land charge services. In setting and publishing fees, local authorities will have to have regard to such guidance as I may issue. An illustrative version of the type of that guidance has been placed in the Printed Paper Office and in the Library.
The amendment does not change the position in relation to fees for personal searches, where a full review will be undertaken before any decision is made; nor does it change the position in Wales, where, with effect from 31 December 2004, local land charge fees are set by the National Assembly for Wales.
Moved. That the House do agree with the Commons in their Amendment No. 331.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 332 to 454. I have spoken to these amendments with Amendments Nos. 3, 13 and 30,
Moved, That the House do agree with the Commons in their Amendments Nos. 332 to 454.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 455 to 460.
Schedule 6 to the Bill protects certain functions of the Lord Chancellor that relate to the judiciary, the courts and the Great Seal from transfer by order under Clause 18 of the Bill or by order under Section 1 of the

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Ministers of the Crown Act 1975. This is essential, given Clause 4 and the Lord Chancellor's particular duties in relation to judicial independence.
Amendments Nos. 456, 458 and 459 provide for the addition to, and deletion from, Schedule 6 of certain functions that the Lord Chancellor exercises in England and Wales.
Amendments No. 455, 457 and 460 amend Schedule 6 to provide for the protection of certain judiciary or court-related functions that the Lord Chancellor exercises in Northern Ireland. They ensure that protection is afforded to those functions on a similar basis to the protection already provided for England and Wales.
Moved, That the House do agree with the Commons in their Amendments Nos. 455 to 460.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 461 to 489.
Moved, That the House do agree with the Commons in their Amendments Nos. 461 to 489.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 490. The amendment is grouped with Amendments Nos. 494, 508 to 511, 513 and 516. This is a group of minor technical amendments which tidy up Schedule 10.
Moved, That the House do agree with the Commons in their Amendment No. 490.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 491 to 548. I have spoken to these amendments with Amendments Nos. 330 and 490.
Moved, That the House do agree with the Commons in their Amendments Nos. 491 to 548.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 549. The amendment is grouped with Amendments Nos. 552, 557 and 577; it is a group of minor amendments designed largely to bring the provisions regarding the appointment of the Judicial Appointments and Conduct Ombudsman into line with the corresponding provisions concerning the appointment of the members of the Judicial Appointments Commission.
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Moved, That the House do agree with the Commons in their Amendment No. 549.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 550 to 583. I have spoken to these amendments under Amendments Nos. 330 and 549.
Moved, That the House do agree with the Commons in their Amendments Nos. 550 to 583.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 584 to 588. These are all technical amendments.
Moved, That the House do agree with the Commons in their Amendments Nos. 584 to 588.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 589 to 592. I have spoken to the amendments with Amendments Nos. 254 and 266.
Moved, That the House do agree with the Commons in their Amendments Nos. 589 to 592.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.
COMMONS AMENDMENT
593 Schedule 14, page 221, line 18, at end insert—
"Judicature ( Northern Ireland) Act 1978 (c. 23)
(1) Section 12B of the Judicature (Northern Ireland) Act 1978 as substituted by section 6 of the Justice (Northern Ireland) Act 2002 (c. 26) is amended as follows.
(2) In subsection (3)(b) at the end insert "or, if the Lord Chancellor is not a member of that House, by another Minister of the Crown at his request."
(3) In subsections (4) and (5) for "Neither the Prime Minister nor the Lord Chancellor may make" substitute "The Prime Minister may not make, and the Lord Chancellor may not make or request the making of,".
(4) In subsection (7) for the words from "and the Lord Chancellor" to the end substitute "and a person making such a motion in the House of Lords shall lay a copy of them before that House before making the motion.""
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 593. I spoke to the amendment with Amendment No. 1.
Moved, That the House do agree with the Commons in their Amendment No. 593.—(Lord Falconer of Thoroton.)
Lord Kingslandrose to move Amendment No. 593A, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 593, leave out "agree" and insert "disagree".

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The noble Lord said: My Lords, I beg to move.
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 593, leave out "agree" and insert "disagree".—(Lord Kingsland.)
On Question, amendment agreed to.
Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 594 to 624. I have spoken to these amendments with Amendments Nos. 30, 264 and 266.
Moved, That the House do agree with the Commons in their Amendments Nos. 594 to 624.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.

Mental Capacity Bill
6.54 p.m.
Report received.
Lord Walton of Detchantmoved Amendment No. 1:
Before Clause 58, insert the following new clause—
(1) Nothing in this Act permits or authorises any decision made with a purpose of bringing about the death of a person ("P").
(2) A decision to withhold or discontinue a treatment, made for the purpose of avoiding harm or burden to P from that treatment, is not within subsection (1) even if made with the belief that it will bring about P's death."
The noble Lord said: My Lords, in moving the amendment, to which the noble Lords, Lord Carlile of Berriew and Lord Brennan, have added their names, I make it clear at the outset that there is no intention on our part to wreck the Bill. It is an extremely important Bill, and I am sure that all noble Lords wish to see it on the statute book at the earliest possible moment. I believe, too, that the objectives underlying the Bill, which the department and the noble Baronesses, Lady Ashton and Lady Andrews, have proposed, are ones that I and my colleagues share. However, the question that I have to put to your Lordships' House is whether the Bill as drafted fulfils those objectives, or whether there are any flaws or loopholes that need to be corrected.
I turn to the report of the Select Committee on Medical Ethics, which I had the privilege of chairing in 1993. We reported to this House in 1994, and the report was accepted by the House. I believe that it is relevant to mention some of the recommendations of that Select Committee, which were accepted by the House in a full and comprehensive debate.
First, the report accepted that informed consent is at the core of medical practice and that it is the patients' responsibility, having had all the implications of a form of treatment explained to them, to determine whether to accept that treatment. But we made it clear at that time, in accordance with the views expressed by a very large number of religious organisations, that any competent patient was fully entitled to refuse medical treatment
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after a full and detailed explanation, even if that refusal ultimately resulted in death, and we did not regard that as tantamount to suicide or assisted suicide.
Let me explain how we defined euthanasia. Of course, the original meaning of the term was simply a "gentle, easy death", but as years have gone by the term has come to be regarded as indicating a positive act intended to end the life of the individual, and an act that could have no other result than to cause death. "Voluntary euthanasia" was defined as when that act was carried out at the specific and carefully considered request of the individual who had asked for that to be undertaken. "Non-voluntary euthanasia" we defined as a situation in which an incompetent patient, unable to give or withhold consent, was subject to euthanasia on the advice and understanding, and with the agreement perhaps, of other parties; whereas "involuntary euthanasia" meant the putting to death of an individual who was fully capable of giving or withholding consent, which is totally abhorrent in civilised societies.
We rejected the term "passive euthanasia" because we preferred to use the term "a treatment-limiting decision". That refers to the recognition that there were circumstances when it was entirely appropriate to withhold or withdraw treatment if it was of no benefit whatever to the well-being of the individual as a person. Of course, one of the most notable cases in which that situation arose was that of Tony Bland, the young man who was crushed in the Hillsborough stadium disaster and who subsequently entered into a permanent vegetative state, meaning that the whole of his cerebral cortex was dead; he had no awareness whatever of his surroundings; he could breathe and his heart continued to beat; but he could not swallow and he had been fed for several years with a tube, which gave him food and fluid. That is one of the cases to which I shall return in a moment.
The Select Committee also promoted and approved the principle of double effect. That means that if it is necessary for a doctor and other members of a healthcare team, in order to relieve pain, distress and suffering, to give such doses of medication, whether pain relief, sedatives or both, as have the secondary consequence of shortening life, that would be totally acceptable in law and in medical practice.
I am grateful to the noble Baronesses, Lady Ashton and Lady Andrews, for the discussions that I have had with them and the correspondence that we have shared. Although there are still differences of opinion between us, I believe that our objectives and hopes in relation to the Bill are the same.
In Committee, there was some discussion about Clause 4(5) of the Bill that states that an action must not be motivated by a desire to end the life of the individual. At that time, we discussed the crucial difference between on the one hand, intention and purpose, which indicate the objectives and the intended outcome of a particular action, and, on the other hand, motivation and desire, which relate to the reasons why the outcome might be desired. At that time, we did not feel that the clause was sufficiently strong to fulfil the objectives that we wished to see included in the Bill.

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There has been a very striking degree of disagreement between distinguished lawyers on aspects of the Bill. Some of them are strongly in support of our amendment; some of them are very strongly opposed to it. In the past, it has been said that when a lawyer says, "With respect", he means, "I disagree"; when he says, "With great respect", he means, "You're talking through your hat"; and when he says, "With the greatest possible respect", he means, "You've gone off your head". Well, one lawyer said to me, "With the greatest possible respect, I do not think your amendment will fulfil the objectives that you seek". I leave it to the good sense of the House to determine whether that was justified.
The point that I particularly wish to make is that we are at one with the Government in wishing nothing in the Bill to be taken as legalising euthanasia. I am sure that that is what Clause 58 says. Equally, we do not wish to see anything in the Bill that would justify assisted suicide.
In the case of Tony Bland, the Select Committee that I had the privilege of chairing considered carefully whether it was right to continue giving him food and fluid by a tube inserted through his nose into his stomach. The universal medical opinion was that it was medical treatment and it was felt at the time that it could be withdrawn like any other medical treatment. But the nurses objected greatly and said that food and fluid were basic human rights that should not be withdrawn under any circumstances. In the end, we came to the conclusion that the outcome desired in the case of Tony Bland would have been equally well achieved by the removal of antibiotics, which were clearly medical treatment. In other words, there was no obligation on the healthcare team to continue with futile medical treatment that added nothing to the well-being of the individual.
As your Lordships are aware, the case of Tony Bland went to the High Court and the judge recommended that the feeding tube should be removed. It then went to the Appeal Court where three judges agreed, for different reasons. Finally, it came to the Appellate Committee of this House where nine Law Lords expressed their views on the case. As noble Lords are aware, the majority view was that the feeding tube should be removed because in every way it was not in Tony Bland's best interests for feeding to be continued. I believe that certain Law Lords, using the principle of mens rea, concluded that withdrawing the feeding tube intended death; in other words, that in a sense it could be construed as murder. But six of the nine noble and learned Lords did not suggest that that decision intended death, even though death was foreseen as a consequence of the action. They said that continuing treatment was not in Bland's best interests and could be construed as being harmful or burdensome to him.
Since that time, any request for the removal of the feeding tube of a patient in a permanent vegetative state, which has been considered by the healthcare team in consultation with the family and those close to the individual, has had to be referred to the High Court.
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The purpose of our amendment is to make absolutely clear that an advance directive, however framed, could not be used to justify assisted suicide because, under Clause 26, advance directive decisions must be complied with even if they are against the patient's best interests. This is a fundamental feature of the Bill. New safeguards in relation to advance decisions have been added by the Government. They provide significantly more safeguards than are now available under the common law, but they may make it impossible for doctors to argue that an openly and explicitly suicidal advance decision is invalid because it was made with a disturbed mind. This is something upon which I seek the comments and consideration of the Government.
I confess that I have been very puzzled by a letter that I know many noble Lords have received from the noble Baroness, Lady Ashton, about the adverse effects of the amendment that other noble Lords and I have tabled. In response to the view of the noble Baroness, Lady Ashton, that the amendment,
"would allow doctors to force non-beneficial treatment on patients in their last dying days",
the distinguished lawyer, Professor Finnis, has stated:
"It would not in any way permit this".
Similarly, it has been suggested to us by the BMA and lawyers advising it, that our amendment, as currently drafted, could be used to overturn the Bland judgment. Lawyers whom I have consulted say that there is nothing in subsection (2) of the amendment to prevent an assessment based upon best interests, as was concluded by six of the nine Law Lords in Bland who reached their decision without conflicting with subsection (1).
Finally, there is a suggestion in the letter from the noble Baroness, Lady Ashton, that accepting this amendment would overturn the principle of double effect. The point of subsection (2) in the amendment is to enshrine the long-established and well-accepted doctrine of double effect. The revised wording makes it even plainer. The doctrine of double effect has two aspects. It excludes the purpose of causing death and it allows death to be knowingly caused as a side-effect; in other words, a distinction must be drawn between the intention underlying an action on one hand and the consequences that may be foreseen but are not intended on the other. I believe that our amendment deals with that issue satisfactorily.
I look forward to hearing the Government's response. There has been a sincere and serious difference of opinion between lawyers on this. Some of them support the amendment and some of them feel that it is flawed and that it is unlikely to improve the Bill or to fulfil the objectives of preventing euthanasia and assisted suicide, maintaining support for the principle of double effect, and dealing with the question of withholding or withdrawing treatment in appropriate circumstances in the light of the medical situation. I beg to move.
Lord Carlile of Berriew: My Lords, it is always a pleasure to follow the noble Lord, Lord Walton of Detchant. He deploys his understanding of medical

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ethics alongside his medical knowledge with great skill, which guides us all for much of our time here. I apologise at the outset, as I have already to the Minister, if I am absent at some inappropriate moments later in the debate. I must deal with another public duty.
I confirm that it is not the intention of those of us who put our names to the new clause to wreck this extremely important Bill; very far from it. I have had the privilege recently of chairing the Joint Committee on the draft Mental Health Bill, which has still to report. I can properly say to the House that in that committee we will, as we have done throughout, recognise the great importance of this Bill as part of the reform of law affecting an important group of people in this country. The noble Lords, Lord Carter and Lord Rix, who are members of the Joint Committee on the Mental Health Bill, have certainly brought home to me how important this Bill is. I have been deeply grateful to both of them and to others.
I have also had the privilege of serving on the also still-to-report committee on the Assisted Dying for the Terminally Ill Bill, chaired by the noble and learned Lord, Lord Mackay of Clashfern, who I am pleased to see in his place. He would confirm, without giving anything away, that we have wrestled there—and I mean wrestled—with some extremely difficult issues. They are the same issues that give rise to the new clause, on which I and the noble Lord, Lord Brennan, have added our names to that of the noble Lord, Lord Walton.
I make it clear too at the outset that it certainly is not part of my intention, as the noble Lord, Lord Walton, said is also true of him, to overturn the Bland judgment in any way. We are lucky to have in the House sitting in front of me my noble friend Lord Lester, who was the amicus curiae, the friend of the court, in that hearing before the judicial committee of this House, and he can speak with great authority about it. I will make seven short points, which I hope will be capable of confirmation by the Minister. What she says as a Minister in this debate in this House may prove to be of considerable importance in the courts, lest there be any sense of ambiguity. Frankly, along with others, I seek a Pepper v Hurt-type statement from the Minister, which would assist the courts in the future.
First, it is self-evident, but it needs to be stated in the debate to satisfy me, that this is not a Bill that in any way introduces or permits assisted suicide. Secondly, this is not a Bill that in any way introduces or permits voluntary euthanasia. Thirdly, it is a broader principle that major changes that have deep-running ethical consequences should have separate legislation, particularly in the area of medical ethics. Fourthly, I hope that the Government will recognise that the withholding of treatment for the purposes of avoiding harm or burden to a patient from that treatment is conceptually entirely different from voluntary euthanasia and assisted suicide. It is the sort of work that palliative specialists do all the time. It is entirely appropriate, and it is an intellectual quantum leap away from voluntary euthanasia and assisted suicide.
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The fifth point is that I hope that the Minister will be able to give an assurance, so it is absolutely clear, that the law has not changed in that sense. Those who practise or encourage assisted suicide or voluntary euthanasia within the jurisdiction of the courts of this country remain at risk of prosecution after this Bill, just as they did before this Bill, together with an assurance that such prosecutions are fully considered by the Director of Public Prosecutions and the Crown Prosecution Service. I say that because it is important to avoid what could become a slippery slope given the emotion that the issues can raise and the misleading descriptions of events that often appear in newspapers. My sixth point is that I hope that the Government will confirm their determination that all powers exercised by third parties over the affairs of others will remain subject to the highest standards of scrutiny.
Finally, I hope that the Government recognise that what, when well, we anticipate of a fatal condition may be significantly different from what, when ill, we face in a fatal condition. I believe that to be a truism, and if so, then prior statements should of course be respected, but it should be clear that they are not always accepted. Circumstances may well change between the anticipation of a fatal illness and the experience of a fatal illness, and the affected person's state of mind may have changed with the circumstances. I shall be satisfied if assurances to that effect are forthcoming from the Minister. Many people who hold the same viewpoint as me about voluntary euthanasia and assisted suicide will likewise be reassured.
7.15 p.m.
Lord Brennan: My Lords, I apologise to the House in general and to the noble Lord, Lord Walton, in particular, for being a few minutes late for the debate. The reason is simple; while we debate the Bill in the Chamber, we also legislate by correspondence, and I had to look at the latest missive from my noble friend the Minister on my Amendment No. 55.
The chief merit of legislation on matters of this gravity should be clarity. The people who are concerned with the question of assisted suicide are interested in this debate to ensure that there is clarity about that topic. Clause 58, the new amendment that came in committee, Clause 4(5) and Clause 25(5) were all designed to protect the interests of everyone, and in particular the vulnerable, with regard to life-sustaining treatment. One further step remains to be clarified, and that is illustrated by the following. An advance decision may read as follows:
"I wish to commit suicide and to be assisted in that by the withholding of life-sustaining treatment and the managing of my resulting death shall then be in accordance with this advance decision".
To an inquiring mind looking at this Bill, such an advance decision, which deals with assisted suicide occurring by medical omission, could be a possibility. I am not saying it is; it could be. That is why the reassurances sought by both speakers so far are so important. If there is such a possibility that that form of advance decision might be binding, even though its intent is suicidal, and even though it would mean that

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a doctor would be required to stop treatment to enable the person to achieve that intent, such a state of affairs falls to be dealt with. That is why the amendment is before the House. As the noble Lord, Lord Carlile, pointed out, it is an ideal opportunity for the Minister to explain with clarity, if it is the Government's position, why that possibility of assisted suicide by omission does not arise.
The amendment is worthy of debate for the following reasons. First, the present law on assisted suicide would not embrace the state of affairs in which someone came to their death because a doctor stopped treatment on a request based on a suicidal intent. The omission, the stopping of the treatment, is neither wilful neglect nor an active step taken to further death.
So the first point is that the Suicide Act does not, on the face of it, apply to the circumstance I described. The second—the necessity of debate on this issue—is that in his letter of 18 January to Archbishop Peter Smith, my noble and learned friend the Lord Chancellor said that Clause 58 referred to the Suicide Act, which, he said, has no relevance to advance decisions. To make sense of that we must add, "Or anything done, or omitted to be done, pursuant to a valid and applicable advance decision". The Minister echoed those sentiments in Committee on 27 January, Hansard col. 1505.
We are therefore in a different legal circumstance, according to the framework of this Bill, whereby the process of an advance decision leading to the stopping of treatment may have to be considered as possible assisted suicide—or not, as the Minister may reassure us in due course.
If there is this possibility, however, the next concern meriting debate is the position of the treating doctors. On the face of it. the advance decision that I described would have to be carried out by a doctor, in the sense that they stopped treatment. There is no reassurance to be sought by saying "Let the courts decide if there is doubt", because the courts would look to this Bill to tell them what the law was.
These are genuine concerns. Like the noble Lord. Lord Carlile of Berriew, I want to emphasise that there is a plain legal and moral distinction between saying "in certain circumstances I do not want any more treatment, including ANH" and "I want to be helped to die". They are not the same. We do not want any elision of the two. We want clarity about the one and the other. That is the purpose of the amendment. It is not designed to provoke the idea that people will be subjected to their lives being continued by wholly unnecessary and uncalled-for treatment—not at all. It is not intended that either of the subsections should embrace theoretical, even bizarre, circumstances. The question is simple: does this Bill mean that you cannot expect to use an advance decision to assist your own suicide by having a doctor stop treatment?
The response to such a question, I hope, is not necessarily a lawyer's response. To use the phrase of my noble friend Lord Morgan in the last debate, even though we are lawyers, look at what we say for
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intelligence and not background. I am asking, I hope, an intelligent question. I hope the Minister's answer—or, if necessary, my amendment—is going to be clear.
We need to bear in mind that this state of affairs of advance decisions is the one part of the Bill concerning life-sustaining treatment that does not involve the concept of "best interests". The Bill expressly excludes whether it is in the person's best interests from the consideration of an advance decision. So Clause 4(5), helpfully and positively introduced by the Government, refers to cases other than advance decisions and says that, in determining best interests, account should be taken of the fact that there should be no motivation to desire death in relation to life-sustaining treatment. So Clause 4(5) does not help. Advance decisions stand on their own—hence the need for clarity.
It would be most unfortunate if this amendment were thought to affect the decision in Bland—whatever one's views as a lawyer or citizen might be about that decision. This amendment does not change the law. It does not introduce any new principle of criminal or civil justice. It seeks to clarify the existing law as best it can. It is simply not correct to say that it would undermine the decision in Bland. That is an unjustified fear. If it were justified, it could easily be remedied by a two-line amendment to permit the effect of the Bland decision-making process to continue as before.
When one looks at the critique, which was understandably advanced by the Government very late in the day, it is important to remember where we are, as we heard in the last debate. We are possibly at the end of this Parliament. There is a tight timetable for this Bill in another place. I understand only one hour will be allowed for Lords amendments. That means that we must give this amendment the very greatest consideration now.
In doing so, let me make the following points. It is not a consequence of this amendment that doctors could force non-beneficial treatment upon patients. It is in no way intended to cause that to happen. The fact that it is suggested that this amendment would deny people the right to refuse medical interventions to their bodies is, I fear, moving from the theoretical to the bizarre. It is not so intended.
It is intended, however, to deal with the principle of double effect. I have great admiration for the lawyers in the Department for Constitutional Affairs who have conducted work on this Bill. However, when the Professor of Law at Oxford University, an acknowledged international expert on law and ethics, says that this amendment settles the concerns about double effect, and one is met with the suggestion that he has got it upside down—that the amendment destroys double effect—I stand back a little. It may just be that the pressure of events in the passage of the Bill has lessened the edge of the intellectual acuity of some of the Government's lawyers. I prefer Professor Finnis's view.
These are genuine amendments to the Bill, seeking clarity on an important question. Some 40 or so of your Lordships thought it appropriate to put their names to it. As your Lordships will remember, in the

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14 December debate in another place, many were concerned, including on our Labour Benches, that we should have clarity about this matter. That concern remains.
If it is thought that Amendment No. 1 is too complicated or unnecessary, I invite your Lordships to consider, very briefly, my Amendment No. 55 as an alternative, to which I make four short points. The amendment refers to advance decisions. If it is included in the Bill, it will send exactly the same signal about advance decisions not being motivated by a desire to cause somebody's death as Clause 4(5). They mirror each other in seeking to serve the same social effect.
The Government have thought, very sensibly, that many people might turn up in circumstances where it is going to be plain to the doctors that the original decision was affected by depression, mental disorder or illness, and that is where the suicidal intent came from. In some cases, however, there may be no such evidence from the doctor, and no reason for doubt. Surely it is important to make clear, through either the Bill or ministerial statement, that the Bill offers no legal support to those who manifestly and expressly seek to use it to be assisted to commit suicide by omission.
7.30 p.m.
I close by pointing out that, at Second Reading, many of us welcomed the Bill, myself included because of my experience over 30-odd years in the law dealing with people who have suffered serious incapacity and their need for justice. That does not mean that I close my eyes to the reality of what might follow after the Bill if there is not clarity on the topic.
An advance decision used to be called a living will. A conference in Holland 10 or 15 years ago was entitled, "Living wills—the passport to euthanasia". The Euthanasia Society of America makes exactly the same connection between living wills and the onset of a debate on euthanasia. It is a reality. Although people listening to and participating in this debate may be extremely concerned that we are concentrating on too close an area, the aftermath that I have just anticipated could make the debate as important as those of us who tabled the amendment think it to be.
Baroness Knight of Collingtree: My Lords, the proposed new clause is extremely complicated. The matter is difficult to sort out for one good reason, which is that there is good intention from each side of the argument. There is no doubt of that. I echo what was said by the noble Lords, Lord Walton and Lord Carlile, in that none of us has any desire to prevent the Bill passing through. All of us can see the good in it but, because it deals with life and death, it can hardly be regarded with less than the maximum amount of care and consideration. We should get it right from the beginning.
I read with great interest the letter that has already been referred to from the noble Baroness, Lady Ashton, in which she said that the amendment was not necessary because Clause 58 states that nothing in the Bill changes the existing law on murder, manslaughter or assisted suicide. However, as the
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noble Lord, Lord Brennan, rightly reminded us, both the noble and learned Lord the Lord Chancellor and the noble Baroness have stated unequivocally that Clause 58 has no application to advance decisions. That may be the root of the concern that many of us feel, and why the amendment was tabled.
The letter that we all received deserves the greatest consideration. I strongly refute the suggestion that the amendment is not necessary. There is no doubt in my mind that, without it, the pro-euthanasia groups—my goodness, they are not only in existence, but extremely active—could easily within the law promote advance decisions in which the patient made a decision to die and have the essentials of life withheld from him. The Bill would then force doctors to help the patient to carry out that decision. That seems inescapable, hence the amendment. Doctors, nurses and other carers would be forced by the Bill to assist the patient to die.
The Bill makes advance decisions official. Clause 25 is specific about that. To have that clause in black and white in the Bill and then claim in Clause 58 that some advance decisions could not be carried out seems to be trying to face both ways. Whether that is the intention or not, we cannot have any doubt at all about such a serious matter. Either you can make advance decisions to refuse treatment or you cannot. What other construction can we put on that? If the Government do not intend to make hospital staff parties to suicide, why not accept the amendment? It does no harm whatever to the Bill, but clarifies the position.
The noble Baroness also pointed out that the amendment would allow doctors to force non-beneficial treatments on patients in their dying days, causing them to stay in hospital and prevent them dying peacefully at home. Some of us have had the benefit of the advice of one of the top legal experts in the land, who is from Oxford University. He says that the amendment would not in any way permit that. The same letter says that a court could not reach the same decision as in the Tony Bland case, because there too the decision was based on what was in Tony Bland's objective best interests, not on an assessment of harm or burden.
I agree with what has been said about the Bland decision. As a matter of fact, I agreed with that decision, but the legal expert to whom I referred says that the court would be free to reach the same decision as in the Bland case. Nothing in the second new subsection proposed in the amendment prevents an assessment based on best interests. Six of the nine judges in Bland reached their decision without conflicting with the first proposed new subsection.
The claims made by the noble Baroness in refuting the need for the amendment do not honestly stand up. I have the greatest respect and affection for her, but I ask her to consider that we are not in any way trying to wreck or spoil the Bill. In the speeches that I make, I shall take care to be very brief. However, we feel that it is essential that the Bill is absolutely clear and does away with the considerable confusion that will be there if we allow it to go through as it is.
Lord Lester of Herne Hill: My Lords, my only qualification for taking part in the debate is that I was

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amicus curiae in the Bland case, as has been said. I hope to address the House more in that capacity than in taking sides of any political nature. To prepare for the debate, I reread Bland and the cases used. I shall try, in a brief and non-technical way, to explain what I consider to be the existing English law and why I believe that the amendment will not be capable of achieving its intended effects, in the end. I say that with the greatest possible respect.
The Bill as it stands gives proper effect to the principles of English law that were recognised and developed by the courts and upheld by the five Law Lords—not nine; I do not know where another four have been found by anyone. There were only five of them, but they were unanimous. They upheld clear principles in Bland in 1993. The Bill also gives proper effect to the recommendations made by the Select Committee on Medical Ethics that were summarised clearly by the noble Lord, Lord Walton of Detchant, in his opening speech.
Bland would effectively be overruled by the amendment. The amendment is not in accordance with the principles that have been stated by the courts, as I shall try briefly to explain, and would upset the necessary and sensitive balance between the sanctity of human life, the individual patient's right to self determination—to decide whether to accept or reject medical treatment—and to dignity, all of which have been referred to by the courts and, in the case of a patient who lacks mental capacity to express his or her own wishes or to express those wishes when the patient had capacity, the duty of the doctor to give or withhold treatment according to what appears to be in the best interests of the patient.
Perhaps I may briefly explain. In Bland, the central question was whether artificial feeding and antibiotic drugs might lawfully be withheld from an insensate patient with no hope of recovery when it was known that if that were done the patient would shortly thereafter die. The five Law Lords made it clear that euthanasia by means of positive steps to end a patient's life, such as administering drugs by lethal injection to bring about the death of the old and infirm, the mentally defective or the physically imperfect, is unlawful. That was made perfectly clear in Bland and that is reflected in Clause 4 (5) and in Clause 58. It is one reason why the amendment tabled by the noble Lord, Lord Brennan, is, in my view, unnecessary.
The main amendment would mean that any decision, whether by a third party, such as a doctor, or deputy, or attorney, or by the patient in advance, to provide, withhold or withdraw treatment made with the purpose of causing the patient's death would be prohibited. Where the patient's death was foreseeable, the only exception, in subsection (3), would be where the decision-maker's purpose was to avoid harm or burden to the patient.
In the particular circumstances of Bland itself, the patient was permanently unconscious and was not being harmed or burdened by the treatment he was receiving. If the amendment were enacted, the exception would not apply and doctors would be obliged in law—I know that
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it is not the intention but it would be the effect—to continue to provide the treatment, perhaps for decades, as was true in the case of Tony Bland, even though it was futile, because the patient would never regain consciousness.
Although it is not its intention, the amendment would run counter to well-established English and human rights convention legal principles, and the ethical principles they reflect, summarised in Bland by the Court of Appeal and the House of Lords, and contained in the Bill.
Perhaps I may briefly explain and I am sorry to weary the House. It is well established that the principle of self-determination requires that respect must be given to the clear wishes of the patient so that, if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life might be or would be prolonged, the doctors responsible for the patient's care must give effect to his wishes, even though they do not consider it to be in his best interests to do so. A doctor must comply with clear instructions given by an adult of sound mind as to the treatment to be given or not, whether those instructions are rational or irrational.
The case that says that is Sidaway, which was decided by the House of Lords as long ago as 1985. That principle applies, even if, by the time the specified circumstances obtain, the patient is unconscious or no longer of sound mind. To that extent, the principle of the sanctity of human life must, the courts have made clear, yield to the principle of self-determination.
The proposed amendment would not permit effect to be given to the patient's right to decide to refuse consent to treatment, strongly endorsed by the Walton committee in paragraph 234 of its report—for example, Jehovah's Witnesses refusing blood by an advance decision, or patients with terminal conditions who did not wish to undergo a particular procedure. such as chemotherapy to treat cancer—where death was foreseeable and where the decision-taker considered the decision to be unwise or irrational, contrary to the common law and the human rights convention, as reflected in Clause 1(4) of the Bill. Competent adults are entitled in law to refuse treatment for any reason and to decide not to undergo it.
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It is also well-established that, where an adult patient is mentally incapable of giving his or her consent to treatment, no one, including the court, can give consent on the patient's behalf. Treatment in such a case may lawfully be provided by a doctor where the treatment is in the patient's best interests. That was decided in 1990 by the House of Lords in the case of F v West Berkshire Health Authority. It is also well established in Bland and its progeny that a doctor may refuse to continue treatment where death is foreseeable but the treatment is not in the patient's best interests because of its futility.
In my view—I am sure that the Minister will make the clarifying statements being sought—the amendment would over-rule or cause confusion, not

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only in relation to Bland, but, ironically, in view of what has been said by the noble Lord, Lord Brennan, in relation to the application of the double effect doctrine. That, as the noble Lord, Lord Brennan, knows better than I, was introduced by Thomas Aquinas in the Summa Theologica, when discussing the permissibility of self-defence. Killing one's assailant, Aquinas argued, is justified, provided that there is no intention to kill him. That humanitarian doctrine was brought into English law by the well-known Catholic jurist, Patrick Devlin—Mr Justice Devlin, later Lord Devlin—in his famous summing up to the jury in the trial of Dr Bodkin Adams, to explain the permissibility of action that causes serious harm, such as death, as a side effect of promoting some good end.
Double effect concerns situations where treatment is provided—for example, treating a cancer patient with life-shortening chemotherapy or administering morphine as part of palliative care for a patient with MND—and where doctors can foresee life-shortening as a secondary effect of the treatment.
The doctrine has its critics, none more than the noble Baroness, Lady Warnock, and including little me. But the over-ruling of the doctrine, which would be the unintended double effect of the amendment, without creating a new statutory defence to homicide, which is not contemplated by the movers of the amendment, would place doctors and nurses at risk of prosecution and patients at risk of unnecessary pain and suffering. That would be contrary to the approach of the Walton committee, which, as the noble Lord, Lord Walton, has pointed out, recognised, in paragraph 242, that the fact that treatment to relieve pain and suffering might mean that a patient's life might be shortened was no reason to withhold the treatment, as long as the doctor acted in accordance with responsible medical practice with the objective of relieving pain or distress and with no intention to kill. That represents present English law but I believe that it would be jeopardised by the amendment.
Finally, I apologise to the House for giving my best effort as a legal opinion in order to clarify such matters for those who do not have my kind of sad life.
Lord Carter: My Lords, these amendments attempt to deal with the situation of expressing suicide as an advance decision. Perhaps I should say at the outset that I am somewhat surprised that they were not drafted in those explicit terms if that was the intended objective.
In fact, as we have heard from the noble Lord, Lord Lester, they go much wider and, if accepted, would have effects on the whole operation of those parts of the Bill which deal with people who lack capacity and are terminally ill. Like other noble Lords, I have seen the briefing, the rebuttals and the rebuttals of rebuttals that have been circulated. I find the arguments of Professor Finnis unconvincing.
If these amendments are intended only to deal with express suicidal advance decisions—and I am convinced that they go much wider, whether intentionally or not—we should consider how many people would be affected.
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The vast majority of people who lack capacity will not have made an advance decision. As drafted, the Bill gives a proper, legal basis of protection for such people, but not if these amendments are accepted. Those who have made advance decisions—the much smaller number—are given a proper legal framework by the Bill as drafted but not as amended, if the amendments are accepted.
If the proposers of the amendment are correct in their view that this is its only purpose—and I very much doubt that—we are left with a tiny number of people who will have made express suicidal advance decisions, although the proposers argue that the numbers will grow as a result of campaigning by the Voluntary Euthanasia Society.
On Sunday, I discussed the matter with two retired hospital consultants with more than 70 years' medical experience between them. They had never seen an express suicidal advance decision. Other doctors I have talked to have said the same. We therefore have to contemplate an advance decision, perhaps made years in advance in writing and witnessed, expressly requesting assistance with suicide. I accept the Government's argument that no doctor would be compelled to act in such circumstances.
The amendments do not build on the welcome government amendments to Clause 4(5)—they disregard it, substituting "purpose" for "motivation". The amendments prohibit any decision— including advance decisions made by persons with capacity—where death is foreseeable. The amendments do overturn the Bland judgment. Anthony Bland could have lived "for many more years", to quote the judgment of Lord Keith of Kinkel. Clearly, his treatment was not harmful or burdensome.
In my view, it is absurd to argue that the jurisdiction of the courts in cases such as Bland is undisturbed by these amendments. I will repeat the words I quoted on Second Reading from the noble and learned Lord, Lord Browne-Wilkinson:
"I have no doubt that it is for Parliament, not the courts, to decide the broader issues which this case raises … it seems to me imperative that the moral, social and legal issues raised by this case should be considered by Parliament".—[Official Report, 10/1/05; col 45.]
If these amendments were accepted, Parliament would have decided and the courts should be bound by that decision.
Let me deal with the point about the nine Law Lords, produced by Professor Finnis. His nine judges include the one first-instance High Court judge and the three Court of Appeal judges who simply did not focus on the criminal law aspects of the case. The final judgment in Bland, which was unanimous, was given by the five-judge court in the House of Lords. A majority of the House of Lords—three of the five judges—addressed the issue of purpose or intention in the law of murder and were clear in their judgments that doctors treating Anthony Bland had a purpose of causing death. The amendments, based as they are on purpose, would do away with the long-established and well-accepted doctrine of double effect, which allows doctors to give treatment whose foreseeable side-effect is likely to shorten life.

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We have all received much briefing on this issue and many letters. It seemed to me—I thought about the matter very hard indeed—that the best way was to examine the effect of the amendments on a real situation if they became law. I took some careful advice to ensure that I was not misunderstanding or misinterpreting the amendments.
A family had two children who were both born with non-life-threatening disabilities. The son also had a heart condition and died when he was 19. When it was clear that he had little time left, the parents asked that he should not be kept in hospital supported by tubes and machinery to extend his life by only a short time. They asked for him to be allowed to die peacefully at home. This was a deliberate decision to withhold life-sustaining treatment which was not harmful or burdensome, which would not be allowed by subsection (2). In his last hours, he was given morphine to assist him. The doctor undoubtedly relied on the doctrine of double effect—which, as we heard from the noble Lord, Lord Lester, is done away with by subsection (1) dealing with purpose rather than motivation.
The daughter succumbed to a respiratory condition. She was on life support for 24 days, including artificial nutrition and hydration, but her heart eventually failed. Two attempts at resuscitation were successful. The parents were told that if the third attempt had been successful, there would have been substantial and irreparable brain damage. If she had lived with severe brain damage, these amendments would deny the parents the opportunity to take a decision to discontinue treatment. The treatment was not harmful or burdensome because their daughter was completely sedated throughout. They do not know what their decision would have been, but they should not be denied the right to make that decision.
Your Lordships will appreciate that I have thought long and hard before giving this true example, but I do think it is essential that the effect of these amendments is fully understood.
As a Roman Catholic, I am aware that there are others of my faith who do not share my views. I respect their sincerity, as I am sure they respect mine. We are all entitled to follow the dictates of our conscience, but not perhaps by attempting to impose them on others through legislation.
I will finish with a quotation:
"Normally one is held to use only ordinary means [to prolong life]—according to the circumstances of persons, places, times, and culture—that is to say, means that do not involve any grave burdens for oneself or another. A stricter obligation would be too burdensome for most men and would render the attainment of the higher, more important good too difficult".
Those were the words of Pope Pius XII to a conference of anaesthetists in 1958.
Baroness Ashton of Upholland: My Lords, I am sure that noble Lords are aware of the bravery of my noble friend Lord Carter's speech today. I accept what the noble Lords, Lord Walton and Lord Carlile, and the noble Baroness, Lady Knight, said about not wanting to wreck the Bill but to seek to get it right. I shall try
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to build on what has been said by noble Lords today to demonstrate that we believe that we have got the Bill right.
I shall focus, first, on what was said by the noble Lord, Lord Carlile, who cannot be here. I know where he is, and it is completely permissible for him to do what he is doing. I hope that he will be able to read the reassurances I give him.
I was concerned that my noble friend Lord Brennan thought that we were a little late in the day with our briefing. As he will know, we have had many meetings on the amendment during the months preceding this debate. It is not a new amendment. We have debated and discussed the issue with Professor Finnis and the Archbishop of Cardiff for a long time.
Furthermore, I say to my noble friend that I have the greatest respect for the legal profession, in particular for the lawyers in the Department for Constitutional Affairs. We went not only to those lawyers but also to the senior judiciary and to parliamentary counsel before fixing on our views. As any noble Lord who has tried will know, it is difficult to write the law which needs to stand in your Lordships' House. I am sure that my noble friend will accept that perhaps we have the expertise within government to know what works and what does not.
I begin with the points made by the noble Lord, Lord Carlile. The first point he made was that he wanted to be sure that this Bill did not introduce assisted suicide. It absolutely does not. Clause 58 is clear—the Bill does not change the law on assisting suicide.
The noble Lord, Lord Carlile, wanted to know that we were not introducing or permitting voluntary euthanasia. No. Voluntary euthanasia is murder or manslaughter and this Bill preserves the law on those matters. Again, that is in Clause 58.
The noble Lord said that if we were going to change the position, particularly around medical ethics, separate legislation would be required. That is absolutely right. This Bill has been very carefully drafted to preserve the legal rules on murder, manslaughter and assisted suicide. Clause 58 says so. It is impossible to stretch this Bill to allow euthanasia or assisted suicide. I would not be standing here if that were so.
Fourthly, the noble Lord said we should recognise that withholding treatment to avoid harm is different from voluntary euthanasia and assisted suicide. I agree. Withholding or withdrawing treatment where that treatment is not in the patient's best interests is not assisting suicide and it is not a breach of a doctor's duty; it is in accordance with the doctor's duty.
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On the fifth point raised by the noble Lord, Lord Carlile, it is clear that the law has not changed. Those who practise euthanasia or assist suicide in England and Wales will be prosecuted as now. That will be the case. Again, Clause 58 is clear: murder, manslaughter and assisted suicide are unchanged. The

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clear, understood legal framework with the obligation to consult under best interests will mean that it is easier to identify problems and to bring prosecutions.
Sixthly, the noble Lord said that he wanted to confirm that all the powers by third parties remain subject to the highest scrutiny. Yes, my Lords: all the decisions taken must be in the person's best interests objectively. The breach of the best interests obligation means that the attorney, or deputy, is acting without authority and is liable to be sued and removed from his position by the Court of Protection. The Public Guardian will investigate complaints about attorneys, for all attorneys will be on a public register.
All decisions must be taken in the person's best interests. Consultations are required; attorneys do not act alone. If a doctor thinks that an attorney is acting contrary to P's best interests, the doctor can ignore the attorney while seeking the guidance of the court. If the attorney acts contrary to best interests, he may be sued or even prosecuted. If a doctor fails to take action where the attorney is clearly acting contrary to best interests, he may be liable through negligence.
Finally, in response to the noble Lord, Lord Carlile, the Government recognise that there may well be a change in circumstances from the time that a person makes a decision prior to having a condition to the moment when he has a condition. The Bill recognises that a person's mind may change and that the circumstances may change. The tests of validity and applicability in Clause 25 deal precisely with that point. If a person acts contrary to the advance decision or if he does anything to demonstrate that the circumstances have changed—he may have changed his mind if the treatment has changed—in any situation where there is any doubt whatever, the doctor treats. Under the Bill, the doctor is not liable; he is protected if he treats in those circumstances. It is very clear that the Bill is skewed on the side of treating when there is any doubt whatever. That is a critical part of the Bill.
Perhaps I may go through the areas where I think the issues lie in relation to the amendments that have been put forward. I shall not repeat everything that has been said about "purpose". It has been covered by those who know far better than I do—not least the noble Lord, Lord Lester—how "purpose" is interpreted within the criminal law. But the reality is that the way in which the amendment has been framed would undermine Clause 58 completely. We inserted the clause to clarify the very point about which noble Lords—and, indeed, the Archbishop of Cardiff—were concerned. Ironically, we would have to remove Clause 58 if we were to accept the amendment.
It may seem completely unobjectionable to say that the Bill does not allow people to have a purpose of killing themselves or others. But, as I have said and as noble Lords who are involved with the criminal law know, "purpose" and "intent" have a key role in criminal law. This is the mental element of a huge range of crimes, including murder and manslaughter. Most crimes require, first, the doing of an unlawful act and, secondly, a mental element—usually intention or recklessness.
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Perhaps I may quote from the leading case on "intent" for murder:
"Where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be inevitable that he intended that result, however little he may have desired or wished it".
Those words were spoken by the noble and learned Lord, Lord Lane, the then Lord Chief Justice, in the case of Nedrick. The President of the Family Division, Dame Elizabeth Butler-Sloss, has said that there is no difference in principle in this context between "intention" and "purpose".
I stress that noble Lords need to be absolutely clear about five practical effects that would occur if the amendment were passed. First, it would prevent doctors balancing the benefits and burdens of treatment in their patients' best interests. Under the current law, doctors do that balancing act. They determine whether a treatment would be in the best interests of a patient. The Bill codifies and clarifies the best interests test. They do not just consider "harm" or "burden", which are not even defined in the amendment, and so it is not clear when treatment should be withheld.
Under the amendment, some doctors might feel obliged to force non-beneficial treatments on patients in their last dying days, or some might choose to interpret "harm" and "burden" very widely and be more likely than at present to withhold or withdraw treatment. All treatment has some level of burden to a person unless he has absolutely no awareness.
Let us not forget, too, that sometimes a treatment is simply of no benefit to a patient rather than being positively harmful or burdensome. None of us expects to be given treatments unless they would be of some benefit to us.
The second key difficulty with the amendment is that it would force people to stay in hospital rather than have the option of dying at home. Sometimes the key point is not the prevention of harm or burden but the provision of love and comfort. My noble friend Lord Carter put that very well. In the last few days of a person's life, a doctor may decide that it is not in the patient's best interests to provide a particular treatment, even though it would not be harmful or burdensome to him. It may be all too obvious that the person would rather die happily and peacefully at home, surrounded by the people he loves. The amendment would stop that happening—treatment would have to be given.
The third issue raised by the amendment is that it would stop people living their beliefs and making their own choices. Whether or not we agree with them—noble Lords have a variety of religious persuasions and none—Jehovah's Witnesses refuse blood through advance decisions. Christian Scientists are very concerned that they should not be forced to have medical intervention, as it is against their beliefs. Both groups refuse such treatment, even though they know that doing so might lead to death in certain situations.
The amendment would prohibit such decisions because it would apply to all decisions under the Bill, including advance decisions to refuse treatment made by a person with capacity. Advance decisions to refuse

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treatment would not be permissible if death were foreseeable unless the person wanted to avoid treatment that was harmful or burdensome. That is clearly not the case with the religious groups that I have identified. It is also often the case with people who refuse treatment simply because they understand what a particular procedure involves and decide they do not wish to undergo that treatment. So the amendment would lead to the quite bizarre situation where a Jehovah's Witness could refuse a blood transfusion while he had capacity but, when he lost consciousness, and thus capacity, he would have to be given blood.
The fourth issue, which has been raised by a number of noble Lords, is that the amendment would effectively overturn the Bland judgment. The amendment would not allow the courts to reach the same decision in a future case as they did in the case of Tony Bland and in 36 similar cases since. In Tony Bland's case, as the noble Lord, Lord Lester, and my noble friend Lord Carter and others have said, the doctors did, in strict legal terms, have the "purpose" of causing his death, since they foresaw his death as inevitable.
In that case, the treatment conferred no benefit, and was thus not considered to be in his best interests. So the doctors were not acting unlawfully as they had no duty to provide the treatment. Yet the treatment would not be caught by subsection (2) in this amendment, as it was not demonstrably causing harm or burden.
The amendment would do away with the established doctrine of double effect. As noble Lords know, that provides a legal defence against murder that enables a doctor to give pain relief if he judges it to be in the best interests of the patient, even though he is virtually certain that it will accelerate the patient's death.
Given the particular meaning of "purpose" in law, this legal doctrine could no longer apply under the amendment. The only thing that would matter was that death was foreseeable. The proviso in subsection (3) is of no comfort here, because double effect concerns the provision of treatment, not where it is withheld or discontinued. So the doctor would lose this legal defence and could no longer make such decisions in his patient's best interests.
Clause 4(5) resolves those points. We have included Clauses 58 and 4(5) to make explicit that the Bill does not permit euthanasia or assisted suicide, while avoiding the undesirable and distressing situations I have described. Clause 4(5) means that whatever a decision maker personally feels about, or wants for, the person he is treating, it must not affect his assessment of whether a particular treatment is in the patient's best interests. Professor Finnis suggests in his briefing that the clause would allow a decision maker to say:
"Death is in the person's best interests".
It absolutely does not. Clause 4(5) expressly disallows that.
Clause 4(5) does not change the law as it stands at the moment. But it does put it beyond doubt. All that matters is that the decision maker considers the range of treatment options available and the patient's objective best interests in respect of those treatments. Clause 4(5)
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cannot be interpreted to mean that doctors are under an obligation to provide, or to continue to provide, life-sustaining treatment where that treatment is not in the best interests of the patients. That is the case even where the patient's death is foreseen.
Sometimes it will be in a patient's best interests to receive life-sustaining treatment. Sometimes it will not. But in no case should a decision maker's desire to bring about someone's death—for whatever reason—be a factor in the best interests determination.
I turn to Amendment No. 55, tabled by my noble friend Lord Brennan. There are two reasons why I shall not be accepting the amendment. First, it is legally flawed; and, secondly, the Bill already deals with the concerns raised by noble Lords. It is easier to treat where capacity is in doubt under this Bill and it is extremely hard for a suicide note to qualify as a valid and applicable advance decision.
The amendment seeks to add a further condition to the applicability of an advance decision; namely, that it is not applicable to life-sustaining treatment if it is "expressly motivated" by a desire to be assisted to die.
The amendment is flawed because it is based on a legal impossibility. English law is clear that no person can ask for assistance in committing suicide by refusing treatment. There are three reasons. First, as my noble friend Lord Brennan himself pointed out on the second day in Committee, the Suicide Act 1961 makes it clear that anyone who assists in a suicide—who,
"aids, abets, procures or encourages"—
will commit an offence punishable by up to 14 years' imprisonment. Clause 58, which was widely welcomed, makes clear that the Bill does not change that position.
Secondly, the courts have made it clear that an autonomous adult who refuses treatment, whether contemporaneously or via an advance decision, is not committing suicide. That position was set out by the noble and learned Lord, Lord Goff, in the case of Anthony Bland and has since been confirmed by a number of subsequent cases.
Finally, in the case of Diane Pretty—a case well known to your Lordships—it was confirmed that it cannot be argued by someone that having a right to refuse treatment means that there should also be a right to assisted suicide. The courts threw that out. They are completely different things.
The Bill deals with concerns in other ways. We know that there is a significant link between mental illness and suicide. The BMA already advises that health professionals will conclude that a suicide attempt or an express statement indicating a wish to be helped to commit suicide, is not a sustained and competent expression of intention.
The common-sense view is that if someone with nothing seriously wrong with them refuses treatment in advance because they do not want to go on living—for example, an otherwise fit and healthy young person, a diabetic perhaps refusing insulin—there must be doubt about whether they have capacity to make that decision. Depression can affect the ability to weigh information relevant to a decision.

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So a doctor faced with an apparently suicidally motivated advance decision will have strong grounds for doubting the capacity of the person who made it. That doubt is enough under the Bill for the doctor to go ahead and treat the patient. Clause 26(2) protects a doctor from liability in battery if he provides treatment when he has any doubt at all that the advance decision exists, is valid or applicable. The Bill makes it easier for a doctor to treat in such circumstances than it is under current common law. So the people about whom my noble friend is concerned will be much better off under the Bill than now.
We included advance decisions in the Bill because we wanted to set out a clear framework for decision-making to replace what are unclear and poorly understood common law rules. The stringent conditions in the Bill make it more likely that doctors will err on the side of preserving life when faced with an apparently suicidal advance decision. For example, Clause 24(1)(a) requires an advance decision to refuse specified treatment. So a suicide note reading, "I want to die", will not qualify.
Clauses 25(5) and 26 require any advance decision regarding the refusal of life-sustaining treatment to be in writing, signed and witnessed. There must be a statement that the decision stands even if your life is at risk, and that statement must also be in writing, signed and witnessed. That is a lot of formalities for a rushed suicide note. Clause 25(2)(c) states that an advance decision is invalid if the person had acted inconsistently with it—for example, calling for an ambulance when they have attempted suicide. It is also not applicable where there are new circumstances of which the person was unaware when he made the decision, such as new medication, therapy or support, and there are reasonable grounds for believing that these circumstances would have affected his decision.
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In practice, we do not think that that is what people do. As I have made clear, the law on suicide, manslaughter and murder remains completely unchanged by the Bill, but the amendments could make it less safe—but this amendment in particular. Someone who went to the lengths of choosing an advance decision as a route to kill himself could apparently just keep quiet about what he was up to and then it would not be expressly suicidal.
The Bill provides a clear route for people to make decisions about themselves in an appropriate manner. I recognise the issues that noble Lords have raised. I understand the strength of feeling in your Lordships' House and I take it very seriously. For that reason, we have spent many days, weeks and months in discussion not only with the Archbishop of Cardiff but with many other groups, many noble Lords, the BMA, the GMC, the senior judiciary, and so on. I know that noble Lords are right in pushing me to be as clear as possible. We will ensure that in the code of practice, we work closely with the medical profession to ensure that the
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guidance is as clear as it possibly can be, to back up everything that I have said in your Lordships' House.
These are important and emotive issues and I know that we all speak from a degree of personal experience and deep feeling. I appreciate the commitment that so many noble Lords have put into their speeches today. We come near to the end of the parliamentary passage of the Bill. As I said, I have spoken with many noble Lords. The Lord Chancellor is categorically certain that the Bill is now legally correct. The BMA and the GMC want the Bill passed without the amendments. The many organisations—such as Mencap, the Alzheimer's Society and Age Concern—in the Making Decisions Alliance all want the same thing. We have one historic opportunity in 15 years to change for good the way that society thinks of and relates to millions of vulnerable people.
We have met the concerns that have been raised head—on, openly and with real commitment. The Government are absolutely certain—I am absolutely certain—that the Bill does what noble Lords want it to. If the amendments are carried, the impact would be extremely detrimental on people who lack capacity, on clinical practice and on the courts. I beg your Lordships not to accept the amendments.
The Lord Bishop of Oxford: My Lords, before the noble Baroness sits down, to a non-lawyer like me, Clause 58 seems crystal clear, but doubts have been raised by at least two noble Lords, the noble Baroness, Lady Knight, and the noble Lord, Lord Brennan, about statements made by the Minister and the noble and learned Lord the Attorney-General that Clause 58 in some way did not apply to advance directives. Has an ambiguity arisen in people's minds about that?
Baroness Ashton of Upholland: My Lords, I confess that I am not absolutely certain. I was hoping that the right reverend Prelate would speak before me so that I could have addressed all the points raised. There is no question about what Clause 58 does. Clause 58 states that the law is unchanged on the matters of murder and manslaughter and the law relating to suicide is also unchanged. That is as clear as we can possibly make it. There can be no ambiguity in that context.
Lord Alton of Liverpool: My Lords, before the Minister sits down and further to that point, does she recall stating in your Lordships' House on 27 January at col. 1505 of the Official Report that Clause 58 has no relevance to advance decisions, and that the Lord Chancellor himself said that in a letter to Archbishop Peter Smith on 18 January?
Baroness Ashton of Upholland: My Lords, I have just gone through in some detail the issues around advance decisions, making it clear when an advance decision is valid and applicable and when circumstances have changed. What is relevant is that you cannot, in an advance decision, ask someone to help you die. You cannot move into the world of assisted suicide, nor can you ask someone to murder you. That is absolutely clear.

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With advance decisions, we have been clear that people have a right, as autonomous human beings, to refuse treatment in certain circumstances. The difference in this Bill is that the clarity of those circumstances is there, as is the way in which doctors are protected if they have any doubt that they can treat people.
Lord Mackay of Clashfern: My Lords, the point that the right reverend Prelate raised is the only point that troubles me. Is there any sense in which the Minister has said that Clause 58 does not apply to advance directives?
Baroness Ashton of Upholland: My Lords, as the noble and learned Lord knows, Clause 58 does not change the position in terms of murder and manslaughter. Advance decisions, which are covered in other parts of the Bill, enable people to make decisions in advance of a time when they might lose capacity about certain kinds of treatment in respect of their health, welfare and other issues.
In particular, we have a provision to enable people to make a decision that they can, if they wish, refuse treatment that could be of a life-sustaining nature. But they have to have that signed and witnessed; they have to determine the treatment; they have to be specific; and they have to say what they are doing. That is not, in law, the same as enabling people to commit suicide or to murder someone. That is the point, in English law, as the noble and learned Lord will know.
Lord Walton of Detchant: My Lords, this has been a singularly interesting and well informed debate. It has demonstrated your Lordships' House at its best. Going back to the Select Committee on Medical Ethics, to which I have referred, the report in 1994 commended what were then called advance directives, and which are now called advance decisions.
The Select Committee did not wish them to be made legally binding, if only because of the view expressed at that time that the failure to update advance directives or advance decisions over a period of time might not take full account of advances in medical treatment which might render them inappropriate. However, since that time, these advance decisions, or advance directives, have become hallowed in common law. For that reason, I wholly accept the crucial importance of including them in the statutes as laid down in this Bill.
After hearing the arguments today, I am persuaded that there can be no way in which the acceptance of an advance decision could be construed as leading to assisted suicide. I have signed an advance directive that is lodged with my general practitioner. I have indicated that if I should become incompetent—perhaps there are signs already apparent; I am not at all certain of that—I would not wish to be subjected to certain forms of life-sustaining treatment that would be regarded as inappropriate or adding nothing to my well-being as an individual or doing any good in the long term.
For that reason, I confirm my view, long held, since that committee reported, that there are circumstances when, in the best interests of an individual, it is
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appropriate that medical treatment should be withdrawn or withheld. I also confirm the view that I expressed at the outset of this debate: it is entirely appropriate for any individual, given full information about the potential consequences, to refuse medical treatment even if that refusal ultimately results in death.
I do not believe, therefore, that it is appropriate to pursue this matter further. I have been much persuaded and swayed, I confess, by the outstanding contributions made to this debate by the noble Lords, Lord Lester and Lord Carter, and others. I have to say that my only wish in tabling these amendments was to make it absolutely clear that nothing in this Bill could justify voluntary euthanasia or assisted suicide. For those reasons alone, I wished this matter to be debated in the House.
In the light of what I have heard today, including the very clear, explicit and lengthy statement made by the Minister, I am now persuaded that these amendments, which were tabled with the best of possible intentions, could be open to serious misinterpretation and might have the effect of overturning the Bland judgment and of making the whole principle of double effect illegal.
The noble Lord, Lord Lester, referred to the very important case of Dr Bodkin Adams. I have never forgotten that case because, in court, a most distinguished physician of great seniority was asked whether, in his view, a certain dose of morphia given to one of Dr Bodkin Adams's patients must certainly have caused death. He said that, without any question, that was his interpretation. "Doctor, will you kindly look at this particular document? Here are her records to show that this lady had been given the same dose of morphia on four previous occasions and had survived without any ill effects". This kind of thing was the use of double effect.
Of course, double effect does not only imply giving pain relieving treatment; it also implies giving sedatives to relieve distress and suffering. I would not wish to see any mechanism in the Bill which would overturn that principle. Even though I know that certain philosophers regard the principle of double effect as hypocritical, it is not a view that I support.
For all of these reasons, after listening to this very interesting debate, I beg leave to withdraw the amendment.
Baroness Barker: My Lords, before the noble Lord sits down, does he agree that the Minister's full and commendably clear explanation contained within it answers to all seven points put by my noble friend Lord Carlile of Berriew, which will be extremely helpful not only to your Lordships but to those who, in future, are to implement the Bill?
When the noble Lord, Lord Walton, says that he does not intend to pursue his amendment further, can those of us who have considerable fears that the Bill

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may not reach the statute book take it from that that he will not pursue the issue at any further stage of the passage of the Bill?
Lord Walton of Detchant: My Lords, I said at the outset that this is not intended to be a wrecking amendment. Like all other noble Lords, I am sure, I wish to see the Bill succeed and reach the statute book.
Amendment, by leave, withdrawn.
Clause 58 [Scope of the Act]:
Baroness Knight of Collingtreemoved Amendment No. 2:
Page 33, line 7, at end insert—
"( ) No person, whether a healthcare professional or not, shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any way in the withholding or withdrawing from P of—

(a) any life-sustaining treatment: or

(b) nutrition or hydration, however provided,

where that person has a conscientious objection to such withholding or withdrawing."
The noble Baroness said: My Lords, we all know from earlier experience that in Bills of this kind, where a totally new official permission is being given to act in such a way as has been previously unacceptable, there will be some people who will find it morally wrong to take part in the activities newly permitted.
I hope there is agreement in all parts of the House that every citizen has a right to his opinion and no law must force people to act against their conscience. Even the noble Lord, Lord Carter, a few moments ago—I am very sorry that he is not still in his place—acknowledged that we are all allowed to have our own conscience and to abide by it. And yet, when we passed a previous Bill, this was not adhered to.
The point I have made frequently in the House about my concern over withdrawing food and liquid has been covered again and again in my mail—notably by nurses, who have said how upset they were to see "nil by mouth" and know that they had to watch a patient die because they were not permitted to give the very essentials for life itself.
I believe very sincerely that we have a duty to ensure protection for doctors and nurses who will find it morally wrong to withhold life-sustaining treatment or food and liquid. To my mind—I hope that I can carry the House with me on this—they must never be forced to do what is so clearly against their conscience.
There are two other amendments that read exactly the same; it is a question of tidying up the Bill and the amendments. I shall not repeat the argument; this is really one speech for three because the same argument goes for all three of them.
8.30 p.m.
We do not force those who have a conscientious objection to fight or to go to war even when our country faces mortal danger. We have religious freedom: people are allowed to carry through their conscience with regard to their religion, or lack of religion. None of us has a right
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to interfere with that. We have a democratic right to speak to and vote against any government with which we disagree.
But if the Bill goes through without the amendment, any doctor or nurse could be forced to withhold food and liquid from a patient in spite of his or her deep-seated—possibly religious or otherwise—beliefs against such a course. That cannot be right. Let us not be in any doubt that when a nurse has care of a patient in hospital she must abide by the notice on the bed written by the doctor who is chiefly in charge of that patient. If the order is "nil by mouth", the nurse must abide by that.
I cannot agree that that is correct, which is why I have tabled the amendments. It is difficult for me to see how anyone could vote against the amendment, because it would mean that they were standing up and saying, "No, in this instance, someone who does not want to do something which is basic—dealing with life and death—will be forced to do it". I cannot see on what grounds the Government of what is at least a partially free country could support that view.
I hope that we will not hear the argument that no doctor or nurse would ever be forced to hasten a patient's death in that way because sadly there have been many examples of precisely that. Tell that to nurses who have been threatened if they do not assist in abortions or those who have been given orders not to allow certain patients to be fed or to receive liquid.
I have stated that I have no intention of prolonging the debates on the Bill in what I recognise is a difficult situation with the end of the Session coming up shortly. Although I could say a good deal more I hope at least that my sincerity is clear and that my intention is just as clear that we must protect people who are in charge of such patients from ever being forced to do something against their belief. I beg to move.
Lord Alton of Liverpool: My Lords, I am happy to support Amendments Nos. 2, 4 and 10 tabled by the noble Baroness, Lady Knight of Collingtree, to which I have added my name. In doing so we return to an issue that we debated in Committee, where the noble Earl, Lord Howe, had tabled an amendment. I had tabled a similar amendment on the issue of conscience.
This is a logical debate to follow the one that we have just had. Conscience cuts both ways. A great deal was said in the earlier debate about personal autonomy and the rights of people to take decisions. Surely the question of autonomy for members of hospital staff, doctors, nurses and other personnel should also occupy some of our time.
This is a worthwhile Bill: I have said so throughout the debates. If the loophole to which the Archbishop of Cardiff and Professor John Finnis—who was referred to in the earlier debate—among others have pointed is not plugged, I would have great difficulty as a matter of conscience in supporting the Bill at Third Reading. Indeed, we may have sown the seeds of the Bill's destruction, I fear, because I know that there will be considerable opposition in another place unless we can deal effectively with that question between now and Third Reading.

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If we do not plug that loophole, members of staff in hospitals will have to deal with suicidally motivated advance directives and will be placed in a very invidious position. The noble Baroness, Lady Knight, points us to the question of what staff will do in those circumstances. Will they be required to go along with someone else's exercise of their autonomy or will they have the right to opt out?
This is not a theoretical debate but a very real one. I received a letter between our Committee proceedings and this evening from a hospital worker in Derbyshire. He wrote:
"1 hope you do not mind me writing to you about the situation in which I find myself. I have an opportunity to clarify the law in relation to abortion, euthanasia and religious rights in the workplace through a legal test case.
I am a hospital social worker at Derby City General Hospital working with older persons and adults with disabilities assessing risks for return home, providing support services and long-term residential and nursing care".
He goes on to say that he has a deeply held religious belief. He is the foundation governor of a local parochial school and chairman of the local parish pastoral council. The letter continues:
"Unfortunately, I have not been allowed to work at Derby City General Hospital for over a year due to my religious distress at abortion. My employer, Derby City Council Social Services are not willing to change my rarest of duties so that I do not have to go into a ward where abortions are involved or being performed, something I find very distressing. I have even been made to see a psychiatrist over my … Catholic views and told I have no grounds for grievance".
A barrister expert in religious liberties, Mr Paul Diamond, is now giving this gentleman advice, and he hopes to be able to take the matter to the courts. I think it is worth bringing this case to the attention of your Lordships this evening because it illustrates how people can be placed in a very invidious position because of their conscience.
I should like to draw your Lordships' attention to some other cases of which I am aware. A journalist whom I know who worked in Lancashire lost his job after he used the word "perish" in describing the statistics concerning abortion in that county. He was told that the term was too emotive and when he refused to withdraw it, he was told that unless he gave an assurance that there would not be a recurrence, he would lose his job. He declined to give such an undertaking and resigned.
Another case is that of Barbara Janaway, a medical secretary from Manchester. She was sacked from Salford Health Authority for refusing to deal with an abortion. An appointment had been made for a patient to attend the surgery. The woman asked for an abortion. The doctor declined and referred her to her own doctor, telling Janaway to take dictation, type the letter and contact the woman so that she could collect the letter. She refused on religious grounds, saying:
"I refused; my conscientious objection was that I was setting the ball in motion. I would have been responsible".
She was reported to the practice manager who told her to get into the real world. She responded:
"This is the real world".
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The health authority dismissed her for gross misconduct.
There is also the case of Mr Patrick McCrystal, whom I have met. He is a pharmacist who lost his job after he was told to dispense the abortifacient morning-after pill. When I met him in Northern Ireland, he explained to me the dilemma he faced over his deeply held religious beliefs. He said:
"It threw me into a professional and moral dilemma. I was a pharmacist and a man of faith in a profession trying to promote health and prolong life, and being asked to dispense a pill that terminates a new life. After wide consultation, prayer and heart-searching, I handed in my notice and left the post".
Despite being able to dispense 98 per cent of daily prescriptions, he has been unable to obtain anything other than a few days' locum work at the time he told me his story.
There is the case of the scientist I met in Manchester. Stephen Clark, aged 31, was sacked after he refused, on religious grounds, to monitor emissions from hospital incinerators used to burn aborted unborn babies. An environmental chemist with Greater Manchester Scientific Services Ltd, a subsidiary of Southern Water plc, his company obtained a contract with another company operating clinical waste incinerators. One of their plants, at Hope Hospital in Salford, took waste from 16 medical centres in the north-west. He discovered that among the waste were the remains of aborted babies, and said,
"I would no more monitor the stack at a hospital incinerator than I would the crematoria at Auschwitz".
He said the plant was being used for the incineration of human beings, and continued,
"I would have been taking part in a process which diminished humanity".
He was dismissed, and lost his case at an industrial tribunal.
These cases are illustrative of a new intolerance. We heard in the previous debate about the position of a Jehovah's Witness or a Christian Scientist, although Professor Finnis, who is much cited in our proceedings, would dispute entirely what has been said in the House this evening. If we are going to cite those kinds of cases to suit our argument that we should not close the loophole referred to in the previous amendments, when we come to consider the question of the right of a hospital worker not to be involved in following up decisions, made through advance directives, not to be involved in the withholding of food or fluid if they believe that is appropriate in that case, surely they should be given the opportunity to opt out of such treatments on conscience grounds.
The fact that I have had to refer to those cases, given that there is a conscience clause in the Abortion Act 1967, demonstrates that even that limited protection has not been adequate in protecting the kind of people I have referred to this evening. One also only has to look at the number of Orthodox Jews, Muslims, evangelical Christians or Roman Catholics who are now in gynaecology and obstetrics—and there are virtually none—to realise what the change in the law in 1967 did to people in those professions. My fear is that people involved in palliative or geriatric care

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would be placed in precisely the same situation if these amendments that the noble Baroness has placed before your Lordships this evening are not passed.
The Lord Bishop of Chelmsford: My Lords, the moral issues surrounding conscience are extremely complex. If I may illustrate from a personal experience as a bishop, some years ago a couple wrote to me to say that their vicar would not conduct their marriage because they were living together before marriage. I had to write to the priest and say that if he was not willing to conduct the marriage, he had a responsibility to find someone who would.
There is a moral duty upon us as professional people to ensure that people are able to have that which is their right in law. That does not require us to agree with their style of life or the decisions they have taken. It is our professional moral responsibility. I have heard what the noble Lord, Lord Alton, has said, and it is important that professionals are carefully protected. I am sure there are cases in the abortion field that need to be looked at carefully.
Nevertheless, if we enter into a professional duty, there are moral things that go with that. We must be careful, in shaping a law, not to undermine those professional responsibilities. How those things are balanced in the law is a delicate matter in terms of the moral principles at stake.
Lord Lester of Herne Hill: My Lords, the right reverend Prelate has anticipated something important that I would like to draw upon. First, however, I must declare an interest, in view of the noble Lord, Lord Alton of Liverpool, linking this with termination of pregnancies. I was counsel in a case brought by the Family Planning Association of Northern Ireland against the Minister regarding the lack of guidance given to healthcare professionals in Northern Ireland about what is and is not lawful. It is relevant to mention that in the context of the examples that have been given by the noble Lord.
As the right reverend Prelate has said, healthcare professionals, like other professionals, have the right to conscientious objection. That is a fundamental right, anchored in Article 9 of the ECHR and in common law. But equally, they have a duty, when their conscience prevents them from acting in a particular way—I speak particularly of healthcare professionals—to ensure that the patients' rights are also respected and to pass the patient to someone else who does not have that conscientious objection. I do not know about Scotland, but in England and Wales my memory is that the terms of service of healthcare professionals expressly preserves the right of conscientious objection, but equally has a procedure for ensuring that if a healthcare professional has such an objection, the patient can be treated by one who does not.
8.45 p.m.
In Northern Ireland, the problem was that there was no similar guidance provided and, of course, no statute. In the absence of statute, the Court of Appeal
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of Northern Ireland—that is, if I may say so, three judges of deep Christian religious faith—made it clear that there was an obligation on the department of state to provide that guidance and to ensure that the right to conscientious objection was preserved, and that the patients could have the advantage, or disadvantage, of being treated by others if they wished. All that was made clear in the landmark judgment last winter.
I listened carefully to the noble Lord, Lord Alton. Some of the examples that he gave, in my view, cried out for an effective remedy. I do not wish to waste the House's time by going into detail, but I shall briefly explain. Contracts of all kinds, especially when the state is involved, have implied in them human rights obligations and duties. Even if the contract did not make plain the right to conscientious objection, there would be an implied term to that effect. Furthermore, any court or tribunal would have to declare the common law compatibly with Article 9 of the convention, guaranteeing freedom of conscience; and, furthermore, any statute would have to be read and given effect, compatibly also. As the right reverend Prelate said, there would have to be a fair balance struck between the competing rights and interests.
Although it is helpful to have bad cases cited as the noble Lord, Lord Alton, did, I suggest that the victims of what seemed like abuses of power should seek competent legal advice. However, the amendment is completely unnecessary because the right to conscientious objection is anchored already in our legal system in a balanced way.
Lord Mayhew of Twysden: My Lords, I am very glad that my noble friend has moved the amendment because it highlights an aspect of these problems which is extremely sensitive and important. It may be that some nurses are confident expounders of the philosophic doctrine of double effect and so forth, and are quite able to navigate those difficult waters; but I should not think that there are many of them. There are likely to be many more who would feel extremely upset in their conscience at having,
"to participate in any way in the withholding or withdrawing … of … any life-sustaining treatment; or … nutrition or hydration, however provided",
as the amendment puts it.
It is clear that we have a duty of care towards those who work in hospitals, and that extends to providing satisfactorily for those who hold such views. I make it clear that I do not share them myself, but I recognise the sincerity of those who do and acknowledge an obligation to attend satisfactorily to them.
One advantage of our short debate is that we have been told by the noble Lord, Lord Lester, that the amendment is unnecessary. From somewhere I have it in my mind that the noble Baroness, Lady Ashton, indicated in correspondence that the amendment would be unworkable. If it is unnecessary because the law provides its measures through the Human Rights Act, it cannot be unworkable—or, at least, I trust that it is not. I cannot see why it should be unworkable, either.

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I do not wish to delay the Minister's reply any longer, but I want to indicate my strong support for my noble friend's amendment and my gratitude to her for moving it.
Baroness Masham of Ilton: My Lords, I have added my name to this amendment as this is a serious matter. We are discussing life and death tonight. One of the biggest problems is that lawyers and doctors so often interpret the law in different ways; that has been illustrated to us tonight. That is why the law must be clear. Vulnerable people must be seen to be safeguarded. That is why I support this amendment. People who feel that they must do the best for their patients must be free to follow their conscience and to opt out if they feel that they are doing the wrong thing.
Baroness Murphy: My Lords, I recognise the wording of this amendment, which is lifted from the Abortion Act 1967. I submit that that case is quite different from the provision of care and treatment in accordance with the patient's wishes. The General Medical Council's Duties of a Doctor states that doctors must make sure that their personal beliefs do not prejudice patient care. The Nursing and Midwifery Council's Code of Professional Conduct provides similar guidance to nurses. As we have heard, there is provision in the Abortion Act for patients to be transferred to the care of another person who has no problem respecting their wishes.
We cannot have a situation where there is no provision to respect the wishes of someone who has made an advance decision. This amendment would negate such a duty of care and would introduce a fundamental shift away from individual autonomy in the practice of medicine. The Bill would be much better off without it. As we have heard, there is provision for people to act in respect of their conscience, but that does not mean that they can move away from the responsibility to provide care by transferring the patient to another person. If we were to accept the amendment, it would be extremely confusing and very unhelpful. It would mean that many patients would not have their wishes respected.
Earl Howe: My Lords, my noble friend will know that I have great sympathy with the intention behind the amendment. I do not know her intentions about pressing the amendment. If she decides not to press it, I hope that the reason will be that the Minister has confirmed what the noble Lord, Lord Lester, said; that is, that this is an unnecessary amendment. In the light of correspondence that the Minister has been kind enough to send me, I believe that to be so, but I await her response.
I hope that, when she concludes this debate, my noble friend will answer this question. Would her amendment, as worded, not also apply to a situation
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where a patient with capacity refuses treatment? In other words, would it prevent doctors agreeing to a mentally competent patient refusing treatment?
Baroness Knight of Collingtree: My Lords, I shall answer my noble friend's question straight away. I have not tabled an amendment in order to diminish the rights of patients but to defend and protect those who carry out their duty as a nurse or a doctor. That is what the amendment is for.
There is not the slightest belief in my mind that anything in the amendment would in any way hamper the good care of the patient. Surely, it is obvious that anyone who is in hospital needs care. We are really not talking about advance decisions here; we are talking about food and liquid. Surely if the nurse in charge of a patient, or who has on her ward a patient, about whom it has been said, "nil by mouth", and she wants at least to moisten the mouth of the patient to make him or her comfortable, that nurse should be allowed to do that instead of abiding by the rule. If she cannot by conscience abide by the rule at the bottom of the bed, surely there would be other nurses who would do so, and she would see that the patient is cared for. We are not talking about a hard attitude towards patients; we are talking about a perfectly normal, British freedom for those whom we ask to serve us.
Baroness Barker: My Lords, might I briefly intervene? The noble Baroness makes the case that she has made all the way through the passage of this Bill, even in its consideration during the Joint Committee. I commend her persistence in pursuing what she believes to be an important matter. I simply point out that the noble Baroness made the same case to the Joint Committee—which included among its number former nurses—and it was of one mind that there is a world of difference between bad nursing practice, which is what she has just described, and which is in no way permitted by the Bill, and the deliberate withdrawal of treatment.
I was particularly struck when she again used the same example that she has used throughout about "nil by mouth" instructions. There are frequently good medical reasons why that instruction might be required. That is wholly different to the bad practice that she has been talking about. I hope that she has seen the correspondence to which the noble Earl, Lord Howe, referred, in which the Minister says:
"I promised to check GMC and BMA guidance on provisions for when a doctor does not want to carry out a treatment. Doctors are entitled to have their personal beliefs respected and will not be pressurised to act contrary to those beliefs. As I stated during Committee, where a doctor has a conscientious objection they may withdraw from the care of the patient. In doing so however they must ensure, without delay, that arrangements have been made for another suitably qualified colleague to take over their role, so that the patient's care does not suffer. The individual doctor does not necessarily have to arrange personally for a transfer of care, provided there are alternative means of doing so. However, the doctor must not abandon the patient or otherwise cause their care to suffer".
That has been the position since before this Bill, and it will remain the position after the legislation has been passed.

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The noble Baroness, Lady Knight of Collingtree, is right to draw attention to bad nursing practice, which is inexcusable, and is not in any way condoned by the Bill. For the reasons given by my noble friend Lord Lester and by the noble Baroness, Lady Murphy, this amendment is not necessary to address the bad nursing practice to which the noble Baroness, Lady Knight, is right to draw the attention of the House again.
9 p.m.
Baroness Ashton of Upholland: My Lords, I join the noble Baroness, Lady Barker, in recognising the incredible amount of work that the noble Baroness, Lady Knight of Collingtree, has done in keeping the issue of basic care on the agenda. The Department of Health is very alive to the issues and questions which the noble Baroness has raised about the quality of care that patients receive.
It is also true, as the noble Baroness, Lady Barker, says, that much of the argument of the noble Baroness, Lady Knight of Collingtree, refers to questions of basic care that should be provided to patients in all circumstances. That is an important aspect of the way we need to think through both how this Bill is amended and patient care for the future. I pay tribute to the noble Baroness, Lady Knight of Collingtree, for that.
The noble Earl, Lord Howe, is absolutely right that my argument is primarily that this amendment is not necessary. I take what the noble and learned Lord, Lord Mayhew of Twysden, said. He was talking about two issues: the duty of care, and the best interests of the patient. We have discussed many times, and no doubt will again, the critical importance of acting in the best interests of the patient at all times. The best interests will largely determine what happens, bearing in mind the role of advance decision within that.
The right to conscientious objection already exists. If a doctor, for example, has some form of conscientious objection to the withdrawing or withholding of life-prolonging treatment, he may withdraw from the care of that patient and make arrangements for another suitably qualified colleague to take over the role. The noble Baroness, Lady Barker, quoted from the GMC guidance on that. Every doctor has that right, both when a patient has capacity and when he lacks it. They have it, provided—and I am sure that noble Lords will accept this—that the care of the patient is not compromised in its exercise. We are looking to balance the important rights of the doctor to conscientious objection with the rights of the patient to decide what treatments he wants to receive or refuse.
The noble and learned Lord, Lord Mayhew of Twysden, is absolutely right to say that this applies to not only doctors but nurses. If I say "health worker", that would cover all of those professionals. The reason I focused particularly on doctors was that doctors are quite often cited as examples of those who are in the front line of that decision-making.
The noble Lord, Lord Alton of Liverpool, has raised a number of examples. It will not surprise him that I obviously cannot comment on those particular cases at
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this time, except to say that the rules of the law in both the Abortion Act and the GMC guidance about what health professionals should and can do on that basis are very clear. If the noble Lord wants to send me details of those examples, I shall be very happy to pass them on to my noble friend Lord Warner.
Lord Alton of Liverpool: My Lords, I am grateful to the Minister for saying that. I will certainly let her have those details, and they will, of course, be in Hansard as well. Does she not accept, however—given everything the noble Lord, Lord Lester of Herne Hill, has said to the House about how provision already exists to protect people, and all these conscience opportunities—that if people are being discriminated against in the manner I have described, then that protection is obviously not adequate? That is why we need the kind of measure being proposed by the noble Baroness.
Baroness Ashton of Upholland: My Lords, I do not accept that at all. Whether the protection is adequate should be judged on the basis of how it is carried out. If the noble Lord will give me the examples, we will investigate with certainty and determine what is happening in practice. Many times in my experience, both in the health service and in your Lordships' House, we discuss the issue of implementation of a law, rather than the law itself. The answer when an implementation issue comes up—if a law has not been implemented properly—is not to change the law, but to implement it effectively.
We are at Report stage, so I shall not attempt the ping-pong in which we would engage in Committee. The noble Lord will understand that.
The Bill does not change the current position. If the noble Lord has examples where the current position is not being enacted properly, I am happy to pursue those with the Department of Health. The noble Lord cannot say, however, that because he has three or four examples of it not being carried through, the law is somehow ineffective. We will investigate those issues he has specifically raised, and I will take those forward for him.
Baroness Knight of Collingtree: My Lords, I am most grateful. Has the Minister received any of the clear examples, of which there have been many, that led to this amendment—which seeks to defend people who are put in an impossible position? It does happen, and the worrying point is that unless there is a clear statement in the Bill that those looking after patients are also permitted to have a conscience, the same old troubles will go on. That is what worries me so much.
Baroness Ashton of Upholland: My Lords, I cannot make it any clearer than I already have. The position is as has been stated; the noble Baroness, Lady Barker, read it out. There is an absolute right of people to act within their conscience, providing that patient care does not suffer. I am sure that the noble Baroness, Lady Knight, will accept that. It is the position now and will be when the Bill is on the statute book.

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The noble Baroness cited some examples, but I do not have any such examples as I have had no letters to that effect. However, I do not take them lightly; I see them as serious. Rather like the discussions and debates that I have had with her about basic care—the question of moistening of the mouth and other issues that have deeply concerned her—the issues are not ones of legislation, but of ensuring that quality of care on the wards by the nurses, staff and others is always of the highest possible standard.
We are not in disagreement that doctors, nurses and others should be able to act in accordance with conscience about a particular issue; that basic care should be fundamental to the way in which patients are treated at all times; that best interests are a critically important aspect of a doctor or nurse's work; or about the duty of care. We are in disagreement about whether those are appropriate matters to be put in the Bill and the implications of that. I want to take the noble Baroness through a couple of the examples.
I want to address some situations in which a person might have a conscientious objection to withdrawing or withholding life-prolonging treatment. The first example is the obvious one, I suppose. If a person has made a valid and applicable advance decision to withhold treatment necessary to sustain life, but the doctor—it would be a doctor in this context—feels unable to follow it for reasons of conscience, he can arrange for that patient's care to be transferred to another health professional. It is vital that the care of the patient does not suffer. We have already had quoted to us the guidance from the British Medical Association and the General Medical Council on the issue.
As I indicated, the Bill makes the law clearer and safer. If delegation is not possible to another doctor—if a suitable practitioner cannot be found—the doctor has to respect the advance decision unless he is not satisfied that it exists and is valid and applicable. If he has any doubts about the existence, validity and applicability of the advance decision under the Bill, he may treat safely in the knowledge that he will not be prosecuted for liability. Of course, a person might also have a conscientious objection to the withdrawal or withholding of treatment necessary to sustain life where there is no advance decision to refuse treatment, but where that is in the best interests of the patient concerned. That would happen only very rarely, but in such a case the person can arrange for the care of the patient to be transferred.
The person will not be protected from liability if, for reasons of conscience, he provides treatment when that is contrary to the best interests of the patient concerned. For obvious reasons, that would not be appropriate. It must be right that we do not permit doctors to provide treatment contrary to what is in a person's best interests in those circumstances. However, I can hardly think of a case in which that might happen. The noble Baroness accepts that there will be circumstances in which, because of the nature of the patient's condition, it is better to withdraw the treatment—but not to withdraw the basic care that she has rightly highlighted so many times.
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The same rule applies where an attorney has refused consent. If the doctor objects to the attorney's decision, he must arrange for the patient's care to be transferred. Noble Lords recognise that, where the doctor has any doubts about the way in which the attorney is acting and thinks that he is not acting in the best interests of the patient, he can treat under the Bill and go to court to determine what should happen next.
All the way through the Bill, we encapsulate what already happens. Doctors are put in a position in which they have, under the GMC and BMA guidance, the right to exercise their conscience, and do so in a way that makes sure that the patient is cared for as we would wish. We have already indicated on several occasions the critical difference between what we are talking about and basic care, which is actually the nub of what the noble Baroness is most concerned about. We recognise that, in some circumstances, withdrawing life-sustaining treatment because a patient is about to die and the treatment is of no benefit to them—or, worse, is burdensome—may be right. We have made sure that decisions are made within the clinical practice that we have outlined, as the noble Baroness, Lady Murphy, said.
It is the doctor's right to have his personal beliefs respected and his right not to be pressured into acting against those beliefs. In the Bill, we have the right balance between the doctor's rights to act in that way and the patient's right to decide what he would want. That is something that we would all wish to exercise in consultation with medical advice, but, none the less, to feel that we had the ability to make some decisions ourselves.
So the amendment is unnecessary and the reason I ask the noble Baroness not to press it is that it is already there. I wrote to the noble Baroness to say that I have checked and confirmed that that is the case. I recognise that noble Lords are concerned about individual examples where things may not be going right. As I have already indicated, we will happily pursue those cases to ensure that those circumstances are looked into. However, that is not about making additions to the Bill, but about dealing with how things are working at present.
On that basis, I hope that the noble Baroness will feel able to withdraw the amendment.
Baroness Knight of Collingtree: My Lords, I wish that I could conclude this matter with the happy feeling, similar to that expressed by the noble Lord, Lord Walton, at the end of his speech, that all was for the best in the best of all possible worlds, that the Bill would manage to deal with all of our difficulties and worries, and that everything would be all right on the night.
I am not happy. On the other hand, I am perfectly convinced that the noble Baroness was sincere in what she said. I believe that she is as concerned about this matter as I am. I am concerned that there are others who obviously felt that conscience was not as important as I feel it is. But that is not the case with the

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noble Baroness. She has been very clear. When a Bill is implemented, those who have to work to it look very carefully at what was said in Parliament. The noble Baroness has left no doubt that she also feels that there are rights here that should be protected and, I hope, will be protected. In the light of what she has said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 [The principles]:
Lord Christophermoved Amendment No. 3:
Page 1, line 13, at end insert "and with a view to protecting him from abuse (whether physical, financial or of any other nature)"
The noble Lord said: My Lords, it is my happy task to speak to a long string of amendments. In different circumstances, I might have had a strong view about the grouping, because the amendments do not all fall into one piece. However, I am as conscious as any other Member of this House that we want to see this Bill passed and, therefore, I must substantially rely upon my noble friend the Minister, who has been so helpful to all of us throughout the passage of the Bill, to agree that if the House convinces her that there is some merit in some of these amendments, she will see what might be done about them even at the eleventh hour.
I suppose that the amendments with which we have been dealing thus far relate substantially, if not wholly, to legal arguments and, indeed, matters of conscience. But all the amendments in this group are practical amendments, based upon practical experience. It would be splendid if I could claim that they were all my unaided work, but they are not. Certainly, my practical experience over the past three years, with which I shall not weary the House again, led me to be interested in this matter. I have had considerable support from daily practitioners in the field—certainly from the master of the court, from two barristers working regularly in the field and from a solicitor, who, I heard only this morning, has been given an award for her significant contribution to elderly client work, particularly in elderly client law. So, there is no question that the provenance of these amendments is reliable.
There is a string of amendments—19 in all—and I worked out that at five minutes per amendment we could go past ten o'clock. I shall seek to avoid that. They cover three main areas: the principles; where the burden of proof lies; and notification.
I want to speak first about the principles. As I said on Second Reading, I support the change in the Title of the Bill from "incapacity" to "capacity", but I still believe that something was lost along the way. That is inevitable, because a different philosophy is brought to bear. I will not swear to it, but I do not believe that the word "protection" appears a great deal in the Bill. I have been told that it is "in best interests".
The people missing are those upon whom the light is shining—the people who are not visible. Often they are not visible to their families, where things happen to them which should not. I can see no convincing argument against my Amendment No. 3. It sends a
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message to a number of areas: to those who are in fear of abuse that there is a court of protection and that they can be protected; to those who may put folk in fear of abuse, and abuse includes undue influence which is a most common manifestation; to those who provide carers who can be tempted into a variety of forms of abuse; and to family, friends and advisers who see abuse happening.
The amendment should be linked with Amendments Nos. 103 and 105, which provide for visits to patients where the court has anxieties and give the court a responsibility for receiving reports from those who in good faith see something happening which they believe should not be happening.
Amendments Nos. 30, 31, 51, 52 and 53 deal with burden of proof. The Government have put forward Amendment No. 29, but it is limited in scope and I would argue that Amendment No. 31 is needed to supplement it. Amendments Nos. 51 to 53 seek to strengthen the protection of the patient. I have a note about the wording of Clause 22(3)(b), which is much narrower than the current wording in Section 6(5)(e) of the Enduring Powers of Attorney Act 1985. The wording of the Bill on this point is derived from the Law Commission report. At paragraph 7.58, the commission states:
"We have already recommended that an attorney under a CPA should be under a duty to act in the donor's best interests. It is therefore logical to use this terminology rather than that of unsuitability in relation to the court's power to displace an attorney".
It thus seems that the change was more one of adapting the test to fit the language of the draft—that is Clause 17 of the Law Commission's draft Bill—rather than a wish to make a substantive alteration to the law. This aspect of the Bill was not dealt with in making decisions, nor in the report of the Joint Committee, nor, I think, in another place.
There is existing case law on the meaning of the wording of Section 6(5)(e) of the EPA Act and in my opinion there is much to be said for incorporating an identical round of objection into the new regime. I entirely accept that as a matter of practice it makes little difference whether this ground of objection is contained in primary legislation or in regulations. However, the Law Commission intended its grounds of objection to be on the face of the Bill. Furthermore, to the best of my knowledge, there is currently no public commitment by the Government to bring forward regulations to include any wider grounds of objection.
Perhaps I may give some examples of the practical difficulties which people face. D is an elderly lady. She has two sons—A and B. B is resident abroad. She moves out of her own house and moves in with A, and she relies on him to help her with all aspects of her affairs. After some years, she sells her house and gives all the proceeds of the sale to her son A, not realising—this rings a bell with me, I might say—that she has a substantial capital gains tax bill on her former home.
At around the same time, she appoints A as her attorney under an EPA. Shortly afterwards, it is clear that her capacity is failing and A applies to register the

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power. B objects. The gift from D to A clearly requires investigation by an independent person. It is possible that it is wholly unexceptional. However, it may well be capable of being set aside for presumed undue influence as D clearly reposed trust and confidence in A, and the transaction calls for an explanation. There may also be a possibility of a gift being set aside for lack of capacity.
As matters currently stand, the objector merely has to show to the court that the possibility of undue influence or lack of capacity exists. He does not have to prove that there was, indeed, undue influence or a lack of capacity. It is enough that he can show that there is a conflict of interest between the donor and the attorney and that someone other than the attorney should be appointed by the court to investigate the transaction.
The possibility that the transaction may need to be set aside is enough to render the attorney unsuitable for the purposes of Section 6(5)(e). If, after appropriate investigations have been carried out by an independent person—usually an interim receiver—nothing untoward is discovered, the court may appoint the original attorney to act as receiver.
However, if D had created an LPA, which is what the Bill provides for, instead, the court would be obliged to register the power unless the objector, B, could demonstrate that A had behaved, or was behaving, in a way that was not in D's best interests or that he proposed to act in such a way. If A denied that the gift was procured by undue influence, it would seem necessary for the objector, B, to show that there had been undue influence or that D lacked capacity to make the gift. At present, the objector would merely have to show that there was a risk but, under the Bill, he would have to take his case ultimately either to the Chancery Division or to the county court.
I shall not go through a number of other examples that have been given to me but shall mention just one. Two brothers, one a senior civil servant and the other a university lecturer—so clearly not men of straw—were found to be unsuitable to be their mother's attorneys. Although she had appointed them to act jointly and severally, they refused to act together and neither was willing to let the other act separately. Neither trusted the other. Each was suspicious and critical of the other's actions and motives, and the impasse defeated the whole purpose of the power.
I have two principal amendments on notification—Amendments Nos. 23 and 27. At this point, again I thank my noble friend the Minister for the two occasions on which she met the small group of us who have been considering the Bill. I remember that on one occasion she was quite animated because she said that there had been changes in society and families were not now essentially relevant in this context. I accept that that is not what she said but that it is a very poor paraphrase of it.
I question whether it is wrong to leave out families. I suppose that in practice families would largely be written in anyway by the person making the act. But it
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is not always like that. The practitioners tell me that it is the ones that do not fit the norm that cause the real problems unless one ensures that something is done about it. That is especially important where the family is driven away. I am told that that is far more common than is imagined. Manipulative people seeking undue influence will, one way or another, drive families and friends away. I have personal experience of that.
I have produced a list. The noble Baroness is not keen on lists—neither am I when it comes to European elections. But the list follows that for intestacy. It seems to me that if that is what the law would say on intestacy, perhaps the law should say it when there may not be—or someone is seeking to do something to replace a person's capacity.
If I can believe what I read in the press, we also face the prospect, following the general election, of a new approach to civil partnerships being in line for change. There could be major complications unless we think carefully about this now. There are difficulties now in partnerships—not least in the area of pensions, as many of us who have had anything to do with that field will know. Will civil partners be left out like families are under the Bill? If so, I suggest it is wrong.
In Amendment No. 27 I have sought to meet the Minister's very genuine anxieties. In other words, the court may dismiss the reference to the family if the court is satisfied that no useful purpose is served by giving notice.
I do not wish to pursue the matter further; I simply want to say that this is a very important Bill; I support it and want to see it receive Royal Assent. I hold the view that the code, when we see the draft, may well be as important as the Bill itself. I hope that the many issues that cause us anxieties are in the code. The issues that I have raised, aside from the consequentials—of which there are several—are the genuine concerns of practitioners in the field. They are not dreamed up as theories. They are not things that arose specifically from my own experiences, although they were all reflected in that. As I said at the beginning, when the court master expresses anxieties and gives his full support to all these amendments, and two barristers and a practising solicitor in the field do the same, it seems to me that there is something here which we should address and try to do something about before it is too late. I beg to move.
Baroness Barker: I wish to make one or two small points. I feel compelled to do so because we are back in anorak territory on the Bill. I commend the noble Lord, Lord Christopher, on bringing forward these amendments. Throughout the proceedings, he and I have bored the House rigid with our endless concerns about financial abuse. I commend him for seeking to address the issue in a practical way.
The noble Lord prayed in aid the eminence of the counsel who advised him. My test for these things is the lady who lives next door to my mum who looks after a number of adults who lack mental capacity. If she is happy with them then I am too.

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Amendment No. 23 falls into the category of amendments that everybody dreads—a list. I want to check with the noble Lord, Lord Christopher, that his Amendments Nos. 14 and 15 would enable a donor to nominate someone who is not on that fairly lengthy list of people—for example, a cousin.
9.30 p.m.
In Amendment No. 23, tabled by the noble Lord, Lord Christopher, new paragraph 6A(3) states:
"A person is not entitled to receive notice … if

(a) his name or address is not known to the donee and cannot be reasonably ascertained by him".

The noble Lord will know that one case that inspired my interest in this issue hung precisely on whether a donee should have known about other existing relatives, which I assume would be capable of being tested in a court and, in particular, where it was found that the donee should have known, that it would be open to being tested.
The noble Lord, Lord Christopher, may inadvertently have caused some confusion in referring to civil partners: I think that he was talking about proposed reform of common-law partnerships of heterosexual people. But I take his point. With those two provisos, I welcome these amendments.
Baroness Ashton of Upholland: My Lords, perhaps I may first say to my noble friend that I am sorry if the grouping took him by surprise. We thought that it hung together. Something that I will not forget about this Bill is the happy sessions that I have had with my noble friend and his band of advisers who have been fantastic in allowing me to say what I think and test out various ideas, and who have then come back to me on them. I thank my noble friend for that because it has been extremely valuable.
I shall go through the core of these amendments, but I believe that I shall have the opportunity to talk to Master Lush—who has not been to see me yet—in the next 24 hours. I shall continue to look at this matter until Third Reading to determine whether there is anything further that we should do. Behind what my noble friend and the noble Baroness, Lady Barker, has said is the desire to ensure that we provide as much protection as possible, which I think that we have covered in the Bill. I shall therefore go through the points briefly, with the proviso that I have already given. When I talk to my noble friend outside your Lordships' House, perhaps he will be more reassured.
The Bill already achieves that kind of protection from abuse. Under Clause 1, there is the requirement that all acts and decisions made must be done or made in P's best interests. I do not think that any act or decision could ever be in P's best interests if it resulted in P suffering any kind of abuse.
We know that there have to be safeguards for the vulnerable. I know that my noble friend's fears for the elderly vulnerable are the motivation behind the amendments to Schedule 1 and the desire to
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preserve the entitlement of relatives to receive notice of the application to register the LPA. I was grateful that my noble friend corrected himself.
I said that families are different. I did not say that they were not very important. I simply said that families are not what they used to be. We have lots of different kinds of families. People have many strong relationships—for example, half-siblings, step-children, and different situations within families. I would like my noble friend to accept that his amendment would make this quite difficult. As noble Lords who have heard me speak on any previous Bill will know, I have a difficulty with lists, as they inevitably mean that people are left out and things are not dealt with appropriately.
I am also very clear that this provision is about the donor making a choice. Ultimately, the donor should say who they would like to have notified. It could be a relative, but there may not be any relatives around or the donor may be estranged from his or her family—so there would be little point in notifying a relative. Just because someone is related does not necessarily mean that he will care anything for the donor. He may even have his own selfish motives for showing an interest in trying to object to the donor's chosen attorney.
So the Bill provides freedom of choice, but it does not lose sight of protection. My noble friend has made it clear that he is worried about the coercion or pressure that could be put on someone to give a decision-making power to a person through a lasting power of attorney.
That is why the Bill provides that all applications to register a lasting power of attorney must be accompanied by a certificate from a person of prescribed description that, in his opinion, the donor understands what he is doing and that no fraud or undue pressure is being used to induce the donor to create that lasting power of attorney. It goes one step further than that. Where there is no named person, regulations may require two certificates of that kind to be provided. This is the balance that I feel we have struck within the Bill: freedom and protection working in tandem.
My noble friend's amendment to Clause 22 seeks to add to the grounds of objection an attorney's unsuitability. One person's suitability is another person's unsuitability. My noble friend's idea of unsuitability may not be mine. I suspect that a cross-section of society would turn out a very interesting set of ideas. However, I want to reassure my noble friend that the Bill already addresses these concerns. It adds clarity and creates a straightforward test: that if the donee or attorney has behaved, is behaving or even proposes to behave in a way that contravenes their authority or would not be in the donor's best interests, the court can direct the lasting power of attorney not to be registered or, if it has already been registered, it can terminate the appointment of the attorney. It is a good test that deals with the issue raised by my noble friend.
In addition, paragraph 12 of Schedule 1 provides for certain grounds of objection to registration to be prescribed. We shall of course be consulting on what those grounds should be. Although I do not want to pre-judge the outcome, it may well be that

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unsuitability, properly defined, will be one of those grounds. That might help to provide the kinds of checks and balances for which my noble friend is looking.
I turn now to my noble friend's amendments to Clause 56 which relates to the functions of the Public Guardian. My noble friend is seeking to add to the Public Guardian's functions by requiring him to bring under his umbrella not only his clients under the Bill—lasting powers of attorney donors, attorneys and deputies—but any person who, because they may lack capacity, will be vulnerable or subject to physical or financial abuse.
Of course we want people, as part of a caring society, to be able to report their concerns about someone they feel may be at risk from abuse. People can do this now through other bodies and I can reassure my noble friend that if the Public Guardian receives any such concerns—we have discussed this in the past 24 hours—they will be referred to the most appropriate agency, whether that be the police, local authority social services or other bodies.
As drafted, the difficulty would be that the amendment would have very wide implications for the Office of the Public Guardian because it could mean the Public Guardian would be given the inappropriate responsibility of directing a Court of Protection visitor to visit anyone about whom he may have received a report, whether a client or not.
The Public Guardian will have a client base and, what is more, a register of some of the most vulnerable people. He has already been given the function of receiving representations, including complaints, about the way in which a deputy or attorney is exercising his powers. Widening the scope of the Public Guardian's function in this way would, I fear, create duplication of effort and could cause unnecessary confusion and dispute between those with a remit for social care, which rests firmly with the Department of Health, and local authorities with social services functions.
I want to reassure my noble friend again that the Public Guardian will work together with other agencies to respond swiftly and in a co-ordinated way to any allegations of abuse that come his way.
We believe that this co-operation, together with the new improved safeguards for lasting powers of attorney, will ensure that people are further protected from risk of abuse. It seems to me that the Bill therefore provides new and improved protection for vulnerable people whilst safeguarding the right of someone with capacity to choose the person they want as their attorney. That seems to me to be the right balance of empowerment and protection. On the basis of what I have said, I hope my noble friend will feel able to withdraw his amendment.
Lord Christopher: My Lords, at this time of night, I certainly have no intention of seeking to divide the House on any amendment. However, I should like to say a few words on what my noble friend the Minister has said.
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There is a gap in credibility between the theory and the practice. I can only say that in a case which was very personal to me, the view of the marshal of the court was that if things had proceeded as they were proceeding, the lady concerned would almost certainly have had to leave her house and would have had absolutely nothing.
People who undertake these activities are very clever. They may not be very bright, but they are very clever. On the assurances about the fact that the court or the guardian will take action, people have to know that they can go there. I can only say that it appears that the world does not know that. The world needs to know and understand that and feel that there is something that it can do.
I hope that the Minister will find the time to have a talk with the court master, because it will be important to have her say that in his opinion this, that or the other is highly desirable in the Bill. There cannot be anyone in the land who knows more about what really goes on in this world than the court master. If he says that he needs something, we should contrive to give it. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 4 not moved.]
Clause 2 [People who lack capacity]:
Baroness Andrewsmoved Amendment No. 5:
Page 2, line 9, at end insert—
"( ) A lack of capacity cannot be established merely by reference to—

(a) a person's age or appearance, or

(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity."

The noble Baroness said: My Lords, I am extremely happy to have the privilege of introducing the amendment. My noble friend and I fought over introducing it: it brings good news to the House and I am delighted that it fell to me. It is a matter of great importance to a great many people outside the House. The question of including some form of antidiscrimination or equal consideration provision in the Bill has been a recurrent theme of our debates. Noble Lords will recall that we had a long and constructive debate in Committee.
We have also discussed the matter at length with stakeholders such as the Making Decisions Alliance and the Disability Rights Commission. My noble friend said in Committee that we fully understand the concerns in this area. I want to reinforce the belief shared across the House that no one should be assumed to lack capacity, excluded from decision-making, discriminated against or given substandard care and treatment simply, for example, as a result of disability.
As we have worked through the Bill's provisions we have come to understand that there are two related concerns where people want the Bill to make an extra effort to provide reassurance and to set a higher standard of expectation.

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The first concern is that people might be wrongly assumed to lack capacity simply on the basis of assumptions made about their appearance, age, disability or behaviour. The second is that best interest determinations may again be made solely on the basis of unjustified assumptions about disability, age or any other aspect of a person and that that person might be treated less favourably as a consequence of those untested presumptions or prejudices.
So we firmly believe—and my noble friend said in Committee—that the Bill's founding principles of assuming that someone has capacity and its central test of acting only in a person's objective best interests provides strong safeguards against prejudicial assumptions and decision-making.
I am happy to put it beyond doubt that prejudicial assumptions and prejudicial decision-making are entirely contrary to the Bill's ethos. We have worked long and hard on how to achieve that. I want to make that clear, because I want to pay tribute to the effort that my noble friend has put in to make that possible; and to the work of officials in getting something on to the statute book that is workable, makes sense and will address the problem.
It has not been easy, for particular reasons, but we have been able to make the concept of discrimination work in the context of the Bill to take it beyond the traditional definitions of discrimination that we had previously in legislation. I hope that it shows that we are very committed to the issue.
1 turn to the first concern over the non-prejudicial assessment of capacity. Noble Lords will agree that it would be completely wrong and contrary to the Bill's spirit if preconceptions or prejudicial assumptions were to influence an assessment of capacity in the first instance; for example, "He's got a learning disability, so why should we assume that he can make any decisions?" The Bill's assumptions of capacity and its decision-making approach mean that that should never happen. People should be assumed to have capacity until it is established that they lack it, and all practical steps have been taken to enable them to make their decision.
We want to be 100 per cent clear and to know that people understand that. That is why we have tabled Amendment No. 5 to Clause 2, which provides that a lack of capacity cannot be established merely by reference to a person's age or appearance, or a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity. That makes it abundantly clear. It also gives further emphasis to the Bill's principle that everyone should be assumed to have capacity until it is shown that they do not. For example, it is not acceptable to say, on the assumption that someone has a learning disability, that he cannot or will not want to make decisions about where to live.
The second concern is that acts done or decisions taken on behalf of people who lack capacity may be influenced by prejudice, and that people who lack capacity may be discriminated against and given less favourable treatment. We wanted to make sure that no
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one began a best interests determination with unjustified assumptions or prejudices. That proved remarkably difficult to do. Legal provisions to promote equal treatment all require an objective comparison with how others are treated, to show whether someone is being treated less favourably because of his race, disability, gender, and so on.
The statutory provisions work by setting up and comparing one set of people and conditions against another and requiring both to be treated without discrimination or no less favourably. However, that cannot work in the Bill, which deals with people who lack capacity in very particular and special ways, according to their needs and in their best interests. All our attempts to work in an "equal consideration" principle as broad as that foundered on this fundamental problem.
However, we persevered and have produced an amendment which is broadly similar to that tabled to Clause 2. It provides that a best interests determination must not be made merely on the basis of the person's age or appearance or,
"a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests".
That makes it clear that decision-making must start from a blank slate. People cannot say, "She is very old so it is not necessary to give her this treatment" or, "He has very severe physical disabilities, so it is obviously not in his best interests to have an operation".
Instead, there must be a full and objective best interests assessment in every situation. The Bill already requires that "all relevant circumstances" be considered, including the person's past and present wishes, feelings, values and beliefs. And anyone engaged in caring for the person, or interested in his welfare, must be consulted. There are no short cuts in the best interests test. It might well be decided, once all relevant circumstances have been considered, that it is not in the best interests of a very elderly person to have chemotherapy, but that cannot be assumed on the basis of age.
The wording of the amendments is very broad. "Condition", for example, captures a range of factors, including a person's learning disability or physical disability. It also covers temporary conditions such as drunkenness. That makes it clear that it is not acceptable to jump to the conclusion that a person with physical disabilities will have a terrible quality of life and therefore should not have treatment. "Appearance" is also deliberately broad, covering visible medical problems, disabilities, the colour of someone's skin, religious dress, and so on.
The amendments are legally sound; they are workable. They will have a practical effect on the two key points of the Bill—assessing capacity and determining best interests. They ensure that there is no place for unjustified and prejudicial assumptions at these two key junctures. We believe that they are an important addition to the Bill. We shall be able to expand on their effect and go into more detail on the presumptions that are to be avoided in the code of practice.
Finally, Amendment No. 6 deletes the word "general" from "general explanation" in Clause 3(2). When we introduced Clause 3(2) on Report in the

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Commons, it was designed to complement the existing provision helping a person to communicate his decision by providing that every effort should also be made to help him understand the information relevant to a decision. That amendment was welcome, both in Parliament and beyond. It was seen, rightly, as a significant strengthening of the Bill's provision for communication support.
There were, however, concerns about the term "general" in "general explanation". From the meetings we had with the MDA, I know that they were concerned that the term could allow health professionals to give superficial and inadequate explanations. In Committee in this House, the noble Baroness, Lady Greengross, said that it could make the provision open to bad practice.
We all agree that people with diminished capacity must be enabled in every way to make their own decisions. The intention behind the word "general" was to ensure that people are not thought to be unable to understand information relevant to a decision merely because they cannot understand a complex explanation, or one that is full of jargon. It was desired to require the relevant explanation is given in a way that is as easy as possible to understand.
We listened, however, to the representations of the MDA, and to what noble Lords were saying in this House. We understood the concern that the reference to "general" might encourage some cutting of corners, which is the last thing we want. We want the Bill to work in the real world and to make a real difference.
This provision already requires that an explanation be given to a person in a way that is appropriate in his circumstances, and we have decided to delete the word "general" and replace it with "an". That should leave no doubt that every effort should be made to explain information to a person in a way that is appropriate to his needs. Every effort should be made to help him understand, and therefore, importantly, to make his own decision.
I commend the amendments to the House. I hope they meet the concerns that were raised, and that noble Lords feel they improve the Bill in the way they wanted to see.
The Deputy Speaker (The Countess of Mar): My Lords, when I called this amendment, I regret that I forgot to say that there is a misprint on the Marshalled List. It should refer to page 2, line 11.
Lord Rix: My Lords, I realise we are getting near closing time, but I would just like to say a few words to add my wholehearted support particularly to Amendments Nos. 5 and 7, and to stress to your Lordships how important it is that we get this vital Bill onto the statute book before the prophecy of a forthcoming election comes to pass. In this, as the Minister has already said, I am fully supported by Mencap, the Disability Rights Commission and the Making Decisions Alliance.
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Fifteen years is too long for consultation to have taken place. I believe these anti-discrimination amendments will send a clear message to decision-makers, particularly to healthcare professionals, that they must not make "best interest" decisions about people with impaired capacity based on their own ignorance and prejudices.
The Minister will no doubt be aware that, during scrutiny of the Disability Discrimination Bill in this House, I successfully pressed to ensure that one of the new public sector's most important duties will be to tackle what many would describe as institutionalised discrimination against people with a learning disability throughout the healthcare service. These anti-discrimination amendments, alongside the requirement to consult with carers in best-interest decisions, will provide a further shield.
I should like to thank both Ministers for not giving up on these amendments, because I know that it has not been too easy for either of them. I also know that the results of their efforts will be supported by the whole of the disability sector. On their behalf, and on mine, my grateful thanks.
Baroness Wilkins: My Lords, I am grateful for these amendments, and the clarity with which the Minister stated them. They will make clear the assessments of someone's capacity to make decisions. Decisions being made for someone lacking capacity should not be based on prejudice or discriminatory assumptions.
The amendments meet the concerns that have been expressed by a great number of disability groups. I thank both Ministers for having listened so carefully, and for having brought them forward.
Baroness Barker: My Lords, I, too, add my thanks. On behalf of the noble Baroness, Lady Greengross, who is not here, I welcome Amendment No. 6, because that deals with the point that she made. I am sure that the result of that small change will be to ensure that there are stronger provisions on support and communication needs for those who need such explanations.
While congratulating the noble Baronesses, Lady Ashton and Lady Andrews, I must say how delightful it is to be in what is genuinely a Report stage. The Government have listened, in a great many cases, to what noble Lords said in Committee, and have gone away and reported back with changes. That is a wonderful and refreshing experience.
I very much welcome the amendments, particularly Amendment No. 7, because it is not in the determination of capacity that discrimination tends to happen quite so much as in the determination of what is in somebody's best interests. It is very important that the Government have conceded that amendment to Clause 4. I believe that it is fair to say that this is the most important set of amendments in the whole Bill. Noble Lords are fully aware of the fears that have been expressed by the disability lobby, which have been expressed in this House in very clear terms by, among others, the noble Baroness, Lady Chapman.

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The amendments appear in response to some that I moved in Committee. Mine used what I would say was the common working definition of "equal treatment", which one comes across in health and social care. To be honest, these amendments on first sight look a bit weird, and it was only when the Bill team was kind enough to take myself and the noble Earl, Lord Howe, through them in some considerable detail, as the noble Baroness, Lady Andrews, did this evening, that it was possible to see how they would work in practice, and that they would encapsulate a number of the forms of discrimination that people have concerns about. I am extremely grateful to the Minister for putting on record what is meant. I hope that the code of practice will go on to give further examples of how the provisions might work.
There is just one cause of discrimination which the Minister did not mention, and I listened carefully to what she said. I refer to the matter of language. It is frequently the case that people who have difficulties with language find themselves discriminated against in healthcare. I am sure that the Minister intended that to be included in the list, but it would be helpful to have that put on the record.
It is right that there are no short cuts to rooting out discrimination in practice. These are important amendments, which make the Bill safer for older people and those with disabilities, and thereby for everybody. I warmly welcome what the Government have done.
Earl Howe: My Lords, I briefly add my thanks to the Minister for having listened and responded so positively to the concerns raised in Committee on these important issues. I share the observations of the noble Baroness, Lady Barker, about how helpful it was to talk to officials on the wording of these amendments.
I would like to hope that the concern that she expressed just now is met by the wording of the amendment when it refers to,
"a condition of his, or an aspect of his behaviour".
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That seems to cover the kind of case to which the noble Baroness referred.
The amendments will bring enormous reassurance to disabled groups around the country and I congratulate the Government on having proposed these amendments.
Baroness Andrews: My Lords, my noble friend should take the credit for that. It is a great pleasure to have arrived at this conclusion. Language is covered by aspects of behaviour. It is a tribute to the work of this House that we have arrived at an understanding of the significance of the changes proposed, and have found a way to make them. It is a reflection of the good will and partnership around the House.
On Question, amendment agreed to.
Clause 3 [Inability to make decisions]:
Baroness Ashton of Uphollandmoved Amendment No. 6:
Page 2. line 30, leave out "a general" and insert "an"
On Question, amendment agreed to.
Clause 4 [Best interests]:
Baroness Ashton of Upholland Baroness Ashton of Upholland moved Amendment No. 7:
Page 3, line 3, leave out from "must" to "take" in line 5 and insert "not make it merely on the basis of—

(a) the person's age or appearance, or

(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

(2) The person making the determination must consider all the relevant circumstances and, in particular."
On Question, amendment agreed to.
Baroness Ashton of Upholland: My Lords, I beg to move that consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at two minutes past ten o'clock.