Sitting of 16 October 1990

Preamble
The House met at half-past Two o'clock
PRAYERS
[MR. SPEAKER in the Chair]

TEES AND HARTLEPOOL PORT AUTHORITY BILL
Order for Third Reading read.
To be read the Third time on Thursday.

SHARD BRIDGE BILL
Order for consideration read.
To be considered on Thursday.

SMITH, KLINE & FRENCH LABORATORIES, AUSTRALIA, AND MENLEY & JAMES, AUSTRALIA BILL [Lords]
Bill read a Second time, and committed.
Oral Answers to Questions
  HEALTH

    Nurses' Pay
    Mr. Ieuan Wyn Jones: To ask the Secretary of State for Health when he last met representatives of the Royal College of Nursing to discuss nurses' pay.
    The Secretary of State for Health (Mr. Kenneth Clarke): I last met representatives of the Royal College of Nursing formally on 1 February when I informed them of the Government's decision on the 1990 review body reports.
    Mr. Jones: Does the Secretary of State agree that there is a lack of confidence in the clinical grading appeals procedure and that matters will get worse, because there are fewer members of the slimline health authorities to hear and determine appeals? If NHS trusts are set up, there is even the prospect that the appeals procedure and clinical grading will disappear altogether in NHS hospitals. What does the Secretary of State propose to do, first, to speed up the appeals procedure and, secondly, to restore confidence in the system and thus morale in the profession?
    Mr. Clarke: The situation on grading appeals is something of a disgrace and it is entirely the fault of the nursing trade unions. [HON. MEMBERS: "No."] Yes, it is. When we first drew up the new grading arrangements, I put it to the nurses' trade union leaders that the existing appeals system would not work when dealing with all the appeals, because each individual case is dealt with as though it were a magistrates court hearing—one by one. I invited them to take part with me in discussions about streamlining the appeals procedure, but they refused. They preferred the existing Whitley council procedures. I hope that they will reflect upon that and that they will come back and have some sensible discussions about a proper appeals procedure. I have always suspected that some of
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    the trade unions, at least, prefer the nurses to be left with a sense of grievance which they can play upon rather than tackle the problem of getting the gradings right.
    Mr. John Greenway: May I advise my right hon. and learned Friend that last Saturday my wife went back to Hammersmith hospital for the 25th anniversary reunion of the nurses who, with her, went to that hospital in 1965? During that visit they were amazed to discover that there were twice as many nurses on the wards and that many patients were sent home for the weekend due to the improvement in clinical techniques and methods. Does not that demonstrate not only that there are more nurses but that when the Government's reforms are in place—[HON. MEMBERS: "Get on with it!"]—and these appeals are out of the way there will be every opportunity for the nursing profession to establish itself much more, which will enable nurses to feel that they have a much greater relationship with the hospital where they work?
    Mr. Clarke: My hon. Friend's wife may have had the misfortune to work in the national health service during the years when a Labour Government allowed nurses' pay to fall 21 per cent. behind inflation. It is now 40 per cent. ahead of inflation since we came to office. The profesesion is becoming well paid and much better staffed. The grading system gives nurses a much better career structure, as all nurses would recognise. It is high time that we got rid of the anomalous appeals system so as to enable the grading structure to work. Nursing is now a better-staffed and better-paid profession, with a better career structure than ever before. Nurses will get a great deal out of our improved and reformed national health service.
    Several Hon. Members rose—
    Mr. Speaker: Order. I request hon. Members to ask brief supplementary questions. Then we shall get further down the Order Paper.

    Community Care
    Mr. Illsley: To ask the Secretary of State for Health what representations he has received regarding funding arrangements for the Government's community care proposals.
    Mr. O'Brien: To ask the Secretary of State for Health what progress has been made on the implementation of the community care proposals contained in the National Health Service and Community Care Act 1990.
    Mr. Norman Hogg: To ask the Secretary of State for Health what representations he has received from local authorities regarding the Government's proposed changes in the organisation of community care.
    Mr. Andrew Welsh: To ask the Secretary of State for Health what representations he has received from organisations on the new arrangements for community care; and if he will make a statement.
    The Minister for Health (Mrs. Virginia Bottomley): We have received many representations on all aspects of our community care proposals. Those views informed the Government's decision on the phasing of community care and the local authority settlement announced by my right hon. Friend. the Secretary of State for the Environment on 19 July. The implementation of our proposals is

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    continuing to the timetable outlined by my right hon. and learned Friend the Secretary of State in his statement to the House on 18 July.
    Mr. Illsley: Is the Minister aware that many poll-tax-capped authorities such as mine in Barnsley are in considerable chaos following the collapse of the Government's proposals for community care? They are having to make cuts of up to £1 milliion and will face further cuts. Has the Minister discussed that in detail with the Department of the Environment to ensure that there will be adequate funding for those authorities next year?
    Mrs. Bottomley: There is no reason for the hon. Gentleman to blame the difficulties of his local authority on the decision to phase the implementation of the full community care proposals. It is clear that his local authority, and many others, will be able to develop their plans further and improve the management of their services. The fact that his authority has been charge-capped suggests that it could well invest some time in ensuring that it has the cost-effective and efficient services for the community once the policy is fully implemented.
    Mr. O'Brien: I remind the Minister of the letter that I sent her colleague the Secretary of State on 25 September and the acknowledgement that I received on 28 September. Attached to that was a letter from my constituent, Mrs. June Cadman, who cares for 70 mentally handicapped people, in which she explained the hardship faced by the people in her charge. The letter also contained an appeal for assistance for Leeds city council and Wakefield city council social services department.
    Because of the poll tax and the standard spending assessments, it is impossible for local authorities to help private homes. When will the Minister do something to help those people, to sustain those in need of care and attention and to help carers? May we have some assistance, please?
    Mrs. Bottomley: There is a project under way in the hon. Gentleman's constituency, involving the regional health authority, the housing department and the local authority, for the relocation of mentally handicapped people in the community. I am sure that my right hon. and learned Friend will reply to the hon. Gentleman's letter shortly. There is much to be done in the provision of care for mentally handicapped people and I am pleased that the hon. Gentleman is as concerned as we are to ensure that services for this needy group improve.
    Mr. Norman Hogg: As the Government did not think that community care in Scotland was worth a statement last July, when they announced the two-year delay, what advice is the Minister giving her right hon. and learned Friend the Secretary of State for Scotland, as there is much difficulty among local authorities in Scotland which are strapped for cash because of Government cuts and the inefficiency of the poll tax? A two-year delay in implementing community care looks extremely optimistic.
    Mrs. Bottomley: I urge the hon. Gentleman to speak swiftly to my hon. Friend the Minister of State, Scottish Office, who announced on 26 September the full plans for implementation in Scotland. It would be presumptuous of me as an English Minister to make further comment on plans for north of the border.
    Mr. Andrew Welsh: Where is the caring face of a Government who delay implementation of community care and starve the system of money for vulnerable groups such as elderly and disabled people? What is the Minister doing to bridge the financial gap between social security benefits and the costs of community care, or between revenue support grant and the costs of community care for local authorities? If the Minister tries to implement this scheme on the cheap she will simply create a recipe for social disaster.
    Mrs. Bottomley: Personal social services spending has increased by 47 per cent. in the past 10 years. That is a substantial increase, quite apart from the extra money available through the social security system. My right hon. Friend the Secretary of State for Social Security has made it clear that he is considering closely the income support questions. This year's settlement for local government would be regarded by my hon. Friends as generous and even Opposition Members would regard it as fair.
    Mrs. Currie: Is my hon. Friend aware that in Derbyshire the postponement of the community care reforms was met with a great sense of relief, because Derbyshire county council was nowhere near ready and implementation too soon would have put many people's lives and welfare at risk? Is she further aware that the first action of Derbyshire county council in response to poll tax capping was not to cut its administration, its local government newspaper or its publicity, but to cut entirely the grant to the Derbyshire coalition of disabled people?
    Mrs. Bottomley: That is yet another item in the catalogue of appalling decisions made by Derbyshire county council, which I understand has increased its staff by 8,000 since the Labour party took control. It is clear that many local authorities need those two years. The Select Committee on Social Services made it clear that there is a pressing timetable to implement the changes by next April and I have no doubt that health authorities, voluntary organisations, the private sector and local authorities will need to spend that time training and thinking through the management and cost-effectiveness of their proposals for care in the community.
    Mr. Thurnham: When considering funding, will my hon. Friend bear in mind the far greater cost-effectiveness of the voluntary sector in providing community care, especially for the mentally handicapped?
    Mrs. Bottomley: Once again, my hon. Friend leads me to comment on the comments of my hon. Friend the Member for Derbyshire, South (Mrs. Currie) about Derbyshire. Local authorities whose first decision is to cut support for the voluntary sector are thoroughly misguided. The voluntary sector has an excellent tradition of providing care in the community. That is why, for example, we especially identified the voluntary sector to support drug and alcohol misusers in the new specific grant announced by my right hon. and learned Friend the Secretary of State in July.
    Mr. Bowis: Is my hon. Friend now able to put at rest the genuine worries about funding of those running halfway houses for people coming out of alcohol and drug detoxification units? Without that service, it is difficult for such people to find their way back into a real life in the community.
    Mrs. Bottomley: My hon. Friend rightly identifies that especially needy group, who are costly in terms of services and who most certainly need a development of provision. He will know that there has been careful discussion with those organisations, which resulted in the specific grant announced in July. We believe that it will be possible for their valuable services to grow and to develop.
    Mr. Robin Cook: As these will be the last health questions before the uprating statement, can the Minister tell us what hope there is for all those residents on income support who now find that they cannot pay what their private home charges? What does she have to say to those elderly people who have had their personal allowances confiscated, who cannot buy toothpaste or newspapers and who cannot pay for stamps, and who still cannot pay the weekly cost of their home? How can she defend the double standard by which those on income support are put in the shared bedrooms with the poorer services? As it was the Government's decision to delay the community care programme for two years, what do Ministers intend to do for all those elderly and disabled residents who cannot wait until 1993 to pay this week's bill and are likely to be turned out if they try?
    Mrs. Bottomley: The hon. Gentleman knows full well that matters of uprating are for my right hon. Friend the Secretary of State for Social Security. However, it remains the case that local authorities will continue to make plans for care in the community. We remain committed to a mixed economy of care. It is important that local authorities, voluntary organisations and the private sector provide for the frail and the vulnerable. The hon. Gentleman always speaks as though resources were no object. One has only to consider—I hope that the poor and the vulnerable will do this—the record of the Labour party when in government. There has been a substantial increase in resources. I can make no further announcements without anticipating the comments of my right hon. Friend the Secretary of State for Social Security.

    Children Act 1989
    Mr. Bell: To ask the Secretary of State for Health what progress has been made on the implementation of the Children Act 1989.
    Mrs. Virginia Bottomley: We are consulting on the regulations guidance and rules of court necessary to implement the Act on 14 October 1991–363 days away. A comprehensive training and dissemination programme is under way.
    Mr. Bell: I am grateful to the Minister for that reply. As the Children Act 1989 came about partly as a result of events in Cleveland, does the Minister agree there are now proper multidisciplinary procedures in Cleveland for the handling of alleged child sexual abuse cases? Is not it a fact that the Cleveland child abuse crisis is at an end? Given the situation in Cleveland, is not it a pity that other authorities are acting as if we had never passed a Children Act through this Parliament? Would not it be helpful if we could advance the date of implementation from October 1991?
    Mrs. Bottomley: I fear that it is not possible to advance the date from October 1991. The training programme, involving social workers, court staff and many others, will
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    clearly be taxing for them to implement by that timetable. However, I can confirm that the social services inspectorate's report on Cleveland, which was published on 7 June this year, made it clear that good progress has been made, especially in the area of inter-agency working. It is essential that the lessons are learnt time and again that effective child protection means effective and trusting communication between local authorities, police departments, education departments and health departments. Cleveland has made great strides forward and I hope that many other local authorities will learn those lessons and ensure that they have the same working practices.
    Mr. Holt: Will my hon. Friend take it from me that, far from having gone away, the spectre of Cleveland has raised its head again this week? One of the two doctors at the heart of the whole affair, Dr. Wyatt, is now being systematically helped by his cohorts of two or three years ago in his efforts to get his job back in its previous form—which involved diagnosing children as sexually abused and thereby causing much distress to children, parents and grandparents in my constituency and throughout Cleveland. Will my hon. Friend make every effort now, today, to see that this attempt is knocked on the head straight away?
    Mrs. Bottomley: I well understand the concern that my hon. Friend has expressed. I can assure him that steps have already been taken by the health authority to resolve the matter. None of us can underestimate the seriousness of the situation that arose in Cleveland, but I believe that the lessons have been learnt. The important point is that the information should be disseminated to ensure that other local authorities across the country learn those lessons—to protect children and, above all, to respect the role of parents.
    Mr. Tom Clarke: Does the Minister accept that there will be profound disappointment at the fact that, following Royal Assent, an Act which arose from a great deal of consensus on both sides of the House is to take two years to implement? As the Government have declined to accept the views of the Central Council for Education and Training in Social Work, precisely what proposals do they have for essential training and what progress have they made in their commitment to family courts?
    Mrs. Bottomley: I believe that it is rather naive to think that the Children Act could be implemented in its full complexity any faster than is proposed. For example, 80 sets of regulations have to be produced. We are just producing the 20th issue of draft guidance, out of a collection of 30. It is a major task, involving local authorities, voluntary organisations, the police, health authorities and many others. We have a full training programme under way and £10 million worth of resources, in a ring-fenced sum, have been committed to ensure that that training takes place.
    We are talking not only about the detailed implementation of the Act but about the updating of "Working Together", the seminal document which advises all those involved of the vital importance of proper and effective communication. So often in child abuse cases, it is communication that goes wrong.
    The hon. Gentleman will know that great progress is being made in the integration of the law concerning various aspects of the family—not only children. I recently

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    announced a review of adoption law and we are also discussing divorce law. We believe that such developments will lead progressively to the creation of the conditions necessary for the establishment of a full family court.
    Mr. Sims: My hon. Friend is correct that the Children Act is an extremely complex piece of legislation, and it is probably one of the most important to emerge from Parliament this decade. I am sure that she is aware that practitioners in the field are enthusiastic about the provisions as they learn about them, but is she also aware that there is genuine concern that there may be insufficient resources to implement the proposals correctly? Can she give an assurance that resources will be available?
    Mrs. Bottomley: We are committed to ensuring that the Children Act is fully and effectively implemented. None of us can tolerate the existence of child neglect and abuse in our modern society. We have fewer children in care, but there are many children on the at-risk register. It is incumbent on us all—whether as politicians in local or central government or as members of the community—to protect those children. We have a major training programme, and the other resource aspects are the subject of regular discussions between the Department and the local authority organisations. I cannot give any further information about the personal social services allocation until after the autumn statement next month.
    Several Hon. Members rose—
    Mr. Speaker: Order. We are making rather slow progress this afternoon. [HON. MEMBERS: "It is the Minister's fault."] I am anxious to get on.

    Social Work
    Mr. Harry Barnes: To ask the Secretary of State for Health what steps are taken by his Department to monitor the ability of individual local authorities to carry out their statutory social work functions.
    Mrs. Virginia Bottomley: The Department's social services inspectorate keeps the Department informed about the provision of personal social services by individual local authorities.
    Mr. Barnes: Does the Department of Health read the reports and take action based on them, because it seems to me that the Department has little idea of what goes on in local government? For example, when the hon. Member for Derbyshire, South (Mrs. Currie) asked a question it seemed that she had also written the brief from which the Minister gave her answer, as it did not relate in any way to the problems and needs of Derbyshire. What extra money will be provided for the function and operation of the Children Act? The local authorities concerned have asked for £140 million. Will anything like that sum be available?
    Mrs. Bottomley: The information about what happens in Derbyshire comes from our "Key Indicators" document. That valuable document, which we produce annually, gives information about precisely how local authorities are spending their resources. In Derbyshire, one in three people over 75 receives a home help, free of charge. I do not believe that that is targeting resources or looking to value for money. That does not show a sense of responsibility in the provision of services.
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    With regard to resources for the Children Act, the hon. Gentleman, like others, will have to await the decisions and outcome of the autumn statement when he will discover the precise sums involved. I hope that the hon. Gentleman will encourage Derbyshire social services to use that money cost effectively and to resist the gimmicks so often identified by my hon. Friends.
    Mr. Gerald Bowden: In monitoring the social work functions of local authorities, has my hon. Friend the Minister had an opportunity to consider the way in which the London borough of Southwark discharged its duties at Grove Park children's home? If the disclosures in The Sunday Correspondent magazine are correct, is not it evident that children in the so-called care of Southwark are at even greater risk than if they were not in Southwark's care?
    Mrs. Bottomley: My hon. Friend has mentioned that home, which is in his constituency, to me before. The outrage and horror of many who saw precisely what was happening at the Grove Park children's home is shared by us all, and I am pleased to say that the home has closed. I have asked the social services inspectorate to report to me urgently on the provision of residential care for the difficult, turbulent bunch of teenagers in the capital cities. The easiest ones to foster are fostered, but residential homes have to cope with an extremely difficult and troublesome group. We look to the social services inspectorate once again to report back on that and I will certainly have urgent discussions with my hon. Friend the Member for Dulwich (Mr. Bowden) about it.

    Sanderson Hospital, Gosforth
    Mr. Cousins: To ask the Secretary of State for Health when he proposes to visit the Sanderson hospital, Gosforth.
    The Parliamentary Under-Secretary of State for Health (Mr. Stephen Dorrell): I have no immediate plans to do so.
    Mr. Cousins: Does the Minister accept that the Sanderson hospital is the last long-stay hospital for the elderly in Newcastle which does not face closure? It is part of a hospital group—the Royal Victoria infirmary—which is dithering over opt-out and has to make panic cuts to save £400,000 of overspending up to August. The site would make wonderful executive housing, or can the Minister assure us that there is still a place in the NHS for small kindly hospitals which care for patients who cannot easily be packaged or priced?
    Mr. Dorrell: I am not sure whether the hon. Gentleman was advocating the sale of the site for high-value executive houses, but I assure him that it is NHS policy to continue to use the Sanderson hospital for the care of the elderly, for which it currently has a distinguished record.

    General Practitioners
    Mr. Barry Field: To ask the Secretary of State for Health how many practices have now expressed an interest in joining the general practitioners' fund-holding scheme; and how many he estimates will meet the eligibility criteria and be ready for fund holding in April 1991.
    Mr. Jacques Arnold: To ask the Secretary of State for Health if he will make a statement on progress being made with applications for practice budgets for general practitioners.
    Mr. Kenneth Clarke: Around 350 practices are preparing for fund-holding status from 1 April 1991, and I have been much impressed by the quality and commitment to the scheme of the practices concerned.
    Mr. Field: Does my right hon. and learned Friend agree that, while a tiny minority of doctors continue to dispense their own brand of politics, the vast majority are playing an increasingly active part in the delivery of better health care throughout the country? Is it true that on the Isle of Wight a high percentage of doctors have applied to become fund holders?
    Mr. Clarke: I am glad to say that on the Isle of Wight three practices have been attracted by the idea of having much more control of how NHS money is spent on the isle. Those three practices cover about 30,000 of the residents, which is about one quarter of the population, so there is a particularly high level of interest on the isle. I also agree with my hon. Friend that the experience of fund holding and of the contract is proving very beneficial. Contrary to all the inventions of last year, the amount of time spent with patients is increasing, the amount of minor surgery is increasing, the amount of time spent on health promotion is increasing and the number of practices carrying out child surveillance is increasing. The number of staff and nurses employed by the practices has increased and they are all earning more money. No doubt the fund-holding practices in the isle intend to add to those achievements if they proceed with their applications.
    Mr. Arnold: Is not the approach that we should follow in respect of GPs' practice budgets one of slowly, slowly catchee monkey? Surely the objective is that we should get the finances to where the patients are and give the clout to general practitioners' practices. Would my right hon. and learned Friend care to contrast that with the full-blooded enthusiasm of Opposition Members to continue with a vast centralised bureaucracy?
    Mr. Clarke: The pace at which we proceed with fund holding is being determined by the rate at which GPs come forward to volunteer for the scheme. We have 350 practices still actively preparing for next year and many more practices are interested in coming along the year after that. They include some of the people who represented doctors in last year's rows about the scheme and the British Medical Association has now set up a separate group to represent those fund holders, which shows that we are winning converts in quite a lot of places.
    I agree with my hon. Friend that the interest of the profession in new developments and what they have achieved from the contract is in stark contrast with the negative positions that have been taken by the Opposition in their sole desire to turn the clock back, if they ever get the chance, to the old bureaucratic and less effective national health service.

    Hospital Services, Southend
    Mr. Teddy Taylor: To ask the Secretary of State for Health if he will pay a visit to Southend-on-Sea to inspect the hospital services.
    Mr. Dorrell: I have no immediate plans to do so.
    Mr. Taylor: Is the Minister aware that, for many years, our excellent hospitals in Southend have had to cope with being seriously underfunded in comparison with other districts because they happen to be in an overfunded region? As a new system of funding based on capitation is coming in in April, can the Minister assure Southend that that fairer system will result in something being done about consistent underfunding?
    Mr. Dorrell: I can confirm that, by national standards, Southend has been underfunded over a long period. It is one of the intentions of the reforms that will come in next April that we achieve a fairer distribution of funding around the country. That will not happen overnight, but it is our clear intention that it should happen over a reasonably short period.
    Sir Bernard Braine: Is my hon. Friend aware that it is not an inspection that is needed, nor even an admission that our district has been underfunded for many years past? We want some action.
    Mr. Dorrell: My right hon. Friend has an Act on the statute book which sets in place the machinery that will allow funds to flow in the way in which he desires. Action is coming.
    Mr. Cohen: When we see it we shall believe it. Is the Minister aware that Southend, like in my area of Waltham Forest, is covered by the North East Thames regional health authority, that that authority has recently slashed its capital programme and that many important developments have been cut as a result? When will the Minister do something about increasing that capital programme for a change?
    Mr. Dorrell: Since 1979 the NHS capital programme has increased by 57 per cent. in real terms. I wish that I could believe the hon. Gentleman when he says that he will believe it when he sees it. He has seen it for more than 11 years and apparently still does not believe it.

    Patient Care
    Mr. Andrew Mitchell: To ask the Secretary of State for Health what initiatives are being taken to promote a better quality of care for patients.
    Mrs. Virginia Bottomley: Better quality of service and care for patients is at the heart of the NHS reforms. Key ways of achieving that will be the devolution of responsibility to local level and agreements between purchasers and providers with clearly specified quality standards.
    Mr. Mitchell: Is not my hon. Friend's response an eloquent testimony to this Government's commitment to the National Health Service at a time when an aging population and welcome medical advances mean that there is a great deal to be done? Is not that a contrast to the capital-cutting, hospital building programme-cutting Labour Government who used to be in power?
    Mrs. Bottomley: I thank my hon. Friend for his words. In the words of my right hon. Friend the Member for Castle Point (Sir B. Braine), we believe in action, not words, and in putting quality at the forefront of our plans for the health service. My hon. Friend will know that the

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    scheme in his constituency is one of our national demonstration projects, focusing on quality. The children's out-patient department received £110,000 from the Department last year, once again making sure that the patient and the patient's family are at the forefront of health care.
    Mr. Kennedy: Given that the Minister is trying to reduce junior hospital doctors' working hours and to improve patient care in that way—as well as the working environment—what will be the effect on that of the national initiative on the opting out of hospitals as they seek self-governing trust status? Will junior hospital doctors be more or less likely to enjoy better working hours and better working conditions?
    Mrs. Bottomley: I am pleased that the hon. Gentleman has referred to our determined effort to tackle once and for all the unacceptable problem of some junior hospital doctors working unacceptable hours—unacceptable to them and to patients. Although considerable progress has already been made, we are determined to see further action in the specialties, hospitals and grades where the difficulty persists. I assure the hon. Gentleman that hospitals that become NHS trusts will, of course, abide by the manpower arrangements that have already been established, not only for junior hospital doctors' working hours, but in order to achieve a balance and to meet the safety net requirements.
    Dame Jill Knight: Does my hon. Friend concede that there are differing ideas among different patients about what constitutes quality of care, which often have nothing to do with medical care? Some patients want to be in a room by themselves, to have better food or not to be in a mixed ward. How are the proposals progressing that would allow patients to pay something towards achieving those objectives?
    Mrs. Bottomley: I greatly appreciate my hon. Friend's contribution. My hon. Friend the Under-Secretary of State recently announced an initiative to allow patients who wish to do so to pay for the extras that make such a difference to their patient care. I remind the House and my hon. Friends of the national quality exhibition that will take place in Birmingham in a fortnight, which will demonstrate practically the many quality initiatives which, above all, seek to make sure that patients, their wishes, interests and concerns will come first and be given the priority that they deserve.
    Ms. Harman: Does the Minister accept that a key factor in achieving quality of care for all patients is ensuring that they get the treatment that they need when they need it? Is not the Minister aware that hospitals throughout the country, such as Westminster, are closing wards to all but emergency admissions because of shortage of money? The Minister says that the Government believe in action, not words when it comes to quality health care, but why do the action and the words mean offering cuts to the Treasury instead of saving services for patients who need them?
    Mrs. Bottomley: It is rich for the hon. Lady to refer to action, not words. The Conservative party has increased the number of in-patients, and out-patients, and increased the number of day cases. On all fronts, there has been an improvement in the health service, leading to better patient care. However, we want to ensure that we continue to see perinatal mortality at a record low level, and that we see
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    not only a reduction in the number of women dying from cervical cancer, but an increase in the number of coronary artery bypass grafts and kidney treatments. That is why my right hon. and learned Friend the Secretary of State announced last week a programme of health targets to ensure that we continue to focus our efforts on clear, concrete and practical achievements and continue to build a better health service.
    Mr. Cormack: Does my hon. Friend accept that one group of patients has, tragically, received bad care? I am referring to the haemophiliac AIDS victims. Does she further accept that if the Government believe in action, not words, we cannot be satisfied with the response that we have received so far?
    Mrs. Bottomley: I understand my hon. Friend's words. He will have heard my hon. Friend the Under-Secretary of State in last night's debate. The fact is that there was no case of neglect in those cases. However, we accept the great tragedy and that is why such significant resources have been made available to the families, who were so grievously affected, amounting to an average of £28,000 each. However, we cannot expect that every time there is a tragedy in the health service, when there is no professional neglect, there will be instant compensation, because the implications for us all and for all health care would be enormous.

    NHS Trusts
    Mr. Cummings: To ask the Secretary of State for Health if he will make a statement on the progress made on public consultation following proposals for the formation of self-governing hospital trusts.
    Mr. Kenneth Clarke: A total of 66 units have applied to become national health service trusts in the first wave, which will become operational in April 1991. Regional health authorities are currently consulting on applications from potential trusts within their regions. I shall announce my decision on each application after I have had an opportunity to consider the outcome of the public consultation.
    Mr. Cummings: The Minister will be aware that Newcastle Royal Victoria infirmary is preparing for self-governing trust status in 1991. Is he further aware that in the run-up to 1991, 50 per cent. of children's surgical beds are to be closed for an indefinite period, thus denying a three-month-old baby in my village the chance of major surgery? Will the Minister confirm that the cash crisis in Newcastle Royal Victoria infirmary and the bed closures are part and parcel of a softening-up exercise to enable the infirmary to opt out easily next year?
    Mr. Clarke: Newcastle Royal Victoria infirmary is an extremely successful hospital, which, together with the other hospitals in Newcastle, is expanding the service, and has been doing so rapidly during recent years, thus consuming additional resources. I believe that it is the location of one of the biggest building sites in Newcastle, where the next phase of development is being financed at present. It is most unfortunate that some people in Newcastle, who are surrounded by an expanding and improving service, spend their time trying to make allegations about a part of the service where the health authority has chosen its priorities in order to live within

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    the ever-increasing sum of resources allocated to it. Doctors, nurses and others in Newcastle have expressed an interest in having more control over their own affairs. I am now considering the application in the light of the public consultations.
    Mr. Nicholas Winterton: My right hon. and learned Friend is fighting hard for additional funds for the national health service in his negotiations with the Treasury, about which I am delighted. Can he assure me that he is fighting for additional funds for the whole of the national health service, not just for hospitals that are prepared to put in a submission for self-governing status?
    Mr. Clarke: Of course, I am buoyed up by my hon. Friend's support for my current negotiations, and am glad to have him on my side. The Government's duty is to ensure that funds are available to carry out the policies to which we are committed. We have to equate that with the need to keep down inflation, which we have done successfully in previous years. The past two public spending rounds have increased the cash available to the national health service by 20 per cent.—a better two-year record than any Labour Secretary of State could ever claim or would ever be likely to claim. My hon. Friend will have to wait to see what happens in the third year.
    Mr. Robin Cook: Did the Secretary of State see last week's survey in Tory Sutton and Cheam, which found that among 6,000 residents there was a majority against the local application of six to one? As the Secretary of State cannot carry Sutton and Cheam, would he care to name to the House a single poll of the public that has come out in support of his proposals?
    Mr. Clarke: Those surveys are usually carried out on the back of extremely misleading propaganda put out by organisations financed by the Labour party and trade unions. I am considering serious applications by those who work in the hospitals and public consultations that address the issues, not the allegations about opting out of the national health service and other nonsense disseminated by the Labour party. The hon. Gentleman must know perfectly well from his personal experience that there is considerable enthusiasm among the staff and those closely involved in many of the applications for self-governing status. I shall judge them all on whether I believe that those attractive plans can be successfully carried forward to improve the service to patients.
    Mr. Michael Morris: Is my right hon. and learned Friend aware that the consultation documents are full of information about how the various trusts will provide the capacity to fill up the hospitals, but are less informative about how they will actually achieve that? Will he ensure that any representation that is received and accepted contains a fulsome part showing how the extra resource will be made available?
    Mr. Clarke: I am glad that my hon. Friend is studying the application documents, which is more than most people are doing who are organising local straw polls up and down the country. As my hon. Friend will know, the success of any hospitals in the new national health service will depend on the quality of care that they achieve, the quality of service that they give to GPs and patients and their ability to lag referrals. Some of the applications for self-governing status come from the finest hospitals in the
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    country and they are confident that if they are given more chance to run their own affairs, free from the old bureaucracy, they will attract more patients and resources under the new system.

    Cholesterol
    Mr. Dalyell: To ask the Secretary of State for Health if he will make a statement on his proposals for taking action against cholesterol-related problems, in the light of the responses he has had to the document of the departmental working party paper on cholesterol.
    Mr. Dorrell: The report from the standing Medical Advisory Committee was widely circulated with an invitation to respond by 31 October. When those responses are received, I shall be in a position to consider what action may be needed.
    Mr. Dalyell: Since coronary heart disease kills about 143,000 people in this country, putting us very near the top of the league, over what period will the £25 million announced by Lady Hooper be spent in relation to cholesterol blood-related problems?
    Mr. Dorrell: The hon. Gentleman may have heard my right hon. and learned Friend announce last week that he was intending to set up a portfolio of health targets, arid he identified coronary heart disease as a specific target: he wanted a 25 per cent. reduction in premature deaths associated with coronary heart disease by the year 2000. The amount of money that the hon. Gentleman identifies will clearly be used towards the achievement of that objective.

  Prime Minister

    Engagements
    Mr. Madden: To ask the Prime Minister if she will list her official engagements for Tuesday 16 October.
    The Prime Minister (Mrs. Margaret Thatcher): This morning I had meetings with ministerial colleagues and others. In addition to my duties in the House, I shall be having further meetings later today. This evening I hope to have an audience of Her Majesty the Queen.
    Mr. Madden: May I ask the Prime Minister a question of which I gave her office notice earlier today? Will she take this opportunity to condemn Pol Pot and the Khmer Rouge for the mass murder of more than 1 million innocent Cambodians; and will she tell the House what action she and the Government are taking to stop Pol Pot and his allies marching back to power so that they can murder still more millions of innocent Cambodians?
    The Prime Minister: I am grateful to the hon. Gentleman. We have repeatedly made clear our utter abhorrence for the Khmer Rouge and all that it stands for. We have never given support of any kind to the Khmer Rouge. Our aim over many years has been to prevent a return to the atrocities of the Pol Pot years, and, as a permanent member of the United Nations Security Council, we are working to achieve that through a comprehensive political settlement.
    Mr. Lester: Does my right hon. Friend agree that those of us who seek to prevent the return of the Khmer Rouge

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    should wholeheartedly support the Supreme National Council which has now been established, comprising both internal and external Khmers, and that we should wholeheartedly support the comprehensive political settlement which, in annex 2, deals with disarmament, with mines, with caches of weapons, with the return of refugees and with free elections? Does she further agree that, as the British Government recognise neither the external Khmers nor the Hun Sen regime as a legitimate Government, we should talk equally to both sides?
    The Prime Minister: I am grateful to my hon. Friend. I agree with him that we should support the efforts of the five permanent members of the Security Council. This is another example of the five permanent members working very closely together. The Supreme National Council includes Hun Sen, Prince Sihanouk, Sonn San and the Khmer Rouge—those are its components. I agree with what my hon. Friend said.
    Mr. Kinnock: On the exchange rate mechanism, does the Prime Minister recall that on 20 September she was adamant, in her own words, that
    "the Madrid conditions won't be changed and they include getting inflation near to the European average"?
    Whatever happened in the following two weeks to make her completely cave in?
    The Prime Minister: The right hon. Gentleman will have heard what my right hon. Friend the Chancellor said in his excellent statement. Several conditions were laid out in the Madrid statement. A number of them had been fully achieved; some others were on the way. The most important was progress on the free movement of capital; the next, progress on free trade in financial services; the next, progress on the single market and further progress in competition policy. Monetary conditions here made possible a reduction of 1 per cent. in interest rates. Yes, we could have gone on further and waited until inflation had visibly come down, but so many of the conditions had been met and there was so much speculation about when we were going into the exchange rate mechanism that we took advantage of the excellent opportunity—[Interruption.]
    Mr. Speaker: Order. These are very important matters.
    The Prime Minister: —of the excellent opportunity of monetary conditions' coming within their limits to end all the speculation about when we should go in and go in, just one year after we had increased interest rates to 15 per cent., just before the Tory party conference.
    Mr. Kinnock: If the Prime Minister is so confident about her judgment, why will she not simply come to the House next week and speak in the debate? Is not it now obvious that her own personal position on this issue is utterly impossible to justify, and that she is just plain frit?
    The Prime Minister: Unlike the right hon. Gentleman, I have a most excellent Chancellor, an excellent Treasury team and a superb—[Interruption.]
    Mr. Speaker: Order.
    The Prime Minister: —and a superb Secretary of State for Trade and Industry. I shall be here answering questions every Tuesday and Thursday, and I hope that one day the right hon. Gentleman may know how to ask a good one.
    Mr. Mans: Does my right hon. Friend agree that a responsible policy on the environment must be both practical and realistic, and that to insist on the reduction of CO2 emissions around the turn of the century, while at the same time discounting the future use of nuclear power, increasing the use of fossil fuels such as coal and promoting cheaper petrol, makes no sense whatever? Does she agree that that policy is highly environmentally damaging as well?
    The Prime Minister: I agree with my hon. Friend. If one wants to reduce emissions of carbon dioxide, one of the best ways is to support nuclear power. Recently we have also seen a substantial increase in the price of oil and petrol, without attempting to put it up further. Any promises that are made should be capable of being fulfilled, and the earliest date on carbon dioxide emissions when we can fulfil this promise is the year 2005.
    Mr. Wallace: To ask the Prime Minister if she will list her official engagements for Tuesday 16 October.
    The Prime Minister: I refer the hon. Gentleman to the reply that I gave some moments ago.
    Mr. Wallace: Does the Prime Minister agree that the honourable and decent way forward in the tragic case of the 1,200 haemophiliacs suffering from the AIDS virus is to offer far more generous compensation than has been the case up to now, rather than continuing to fund ever-increasing fees for lawyers to argue the toss over the matter?
    The Prime Minister: The Government have already made available some £34 million to the haemophiliacs who are suffering from this very grievous happening, as an ex gratia payment without prejudice to their taking legal action in the courts. Obviously, we wish to know the legal position before any further payment is considered.
    Mr. Alexander: Has my right hon. Friend had time to notice British Rail's 25 per cent. pay offer to its track-laying and signalling staff? Does she agree that pay awards of that order will merely outrage fare-paying passengers, stoke up inflation and put off further the day when we can reduce interest rates still more?
    The Prime Minister: If my recollection is correct, certain recommendations about signalling were made after the Clapham accident that must be taken into account when one judges that settlement. I am sure that my hon. Friend would agee that it is absolutely vital that we live up to the safety standards required of us by the report following that terrible accident.
    Mrs. Fyfe: To ask the Prime Minister if she will list her official engagements for Tuesday 16 October.
    The Prime Minister: I refer the hon. Lady to the reply that I gave some moments ago.
    Mrs. Fyfe: Does the right hon. Lady remember saying 15 months ago that lowering United Kingdom inflation was the most important of the Madrid conditions? If that is no longer the case, when and why did she begin to change her mind and decide that the right hon. Member for Blaby (Mr. Lawson) was right?
    The Prime Minister: Had the hon. Lady listened yesterday and earlier this afternoon, she would have heard the Chancellor and I both say that a large number of the

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    conditions had already been met and that there was an opportunity to go into the exchange rate mechanism. We took that decision and it was right. It has been warmly welcomed and I am amazed that Opposition Members are being so small minded about it. Did not they want us to go in?
    Sir Jim Spicer: Many hon. Members know the Kuwaiti ambassador, but not many know that three weeks ago his brother-in-law was seized by the Iraqi forces, taken away and tortured for 16 days, and then taken back to his home to be executed in front of his house and family. Will my right hon. Friend assure the House that people who perpetrate such crimes will not escape punishment?
    The Prime Minister: We all share the revulsion that has been expressed about that brutal act and we have seen the Amnesty International report about many other brutal acts conducted daily by Saddam Hussein in Kuwait. That makes it clear that we must deal with this man. I agree with my hon. Friend that he must be made answerable for these terrible crimes and must withdraw from Kuwait so that the legitimate Government of Kuwait can be restored. I join my hon. Friend in sending our sympathies to the Kuwaiti Government on this terrible brutality.
    Mr. Bernie Grant: To ask the Prime Minister if she will list her official engagements for Tuesday 16 October.
    The Prime Minister: I refer the hon. Gentleman to the reply that I gave some moments ago.
    Mr. Grant: Is the Prime Minister aware of the indignation and outrage felt by Cypriots in my constituency about the Government's two-faced attitude to invasions? Troops have been sent to Saudi Arabia as a result of the invasion of Kuwait, but absolutely nothing has been done about the Turkish invasion of Cyprus. Is the Prime Minister—[Interruption.]
    Mr. Speaker: Order. Mr. Grant.
    Mr. Grant: Is the Prime Minister aware that the international financial bandit Mr. Asil Nadir and his company, Polly Peck, have made their money by stealing property, orange groves and hotels from Greek Cypriots who are living in exile in my constituency? Will she do something—[Interruption.]
    Mr. Speaker: Order. This House is for putting forward views that hon. Members feel strongly about. We have a right to do that.
    Mr. Grant: What will the Prime Minister do to prevent this carpetbagger, Mr. Nadir, from bringing his money, his ill-gotten gains, out of the north of Cyprus into this country in order to bail out his company, Polly Peck?
    The Prime Minister: Perhaps the hon. Gentleman has forgotten that the events in Cyprus that led to the Turkish invasion and the toppling of Makarios happened during
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    the lifetime of a Labour Government and the decision not to invoke the guarantee was that of the then Foreign Secretary who is now the noble Lord Callaghan. The hon. Gentleman will be fully aware that we wish to see the state of Cyprus continue bi-zonal and bi-communal and that we fully support the efforts of Mr. Perez de Cuellar, the United Nations Secretary-General, to bring that about. The hon. Gentleman knows full well that the matters that he raised in the latter part of his question are under investigation by the serious fraud squad.
    Mr. Aitken: Will my right hon. Friend comment on the recent press interview given by the general commanding the British forces in the Gulf, in which he said that he expected that further British troops who are still under training would be deployed in that area? Does my right hon. Friend agree that while that policy may well be welcome and right, it would be preferable for such anouncements to be made in the first place in Parliament?
    The Prime Minister: My hon. Friend is aware that the full armoured brigade is on its way there. I know of no intention to send any further people. Obviously, the brigade goes with its full support staff, including the engineers and the full hospital staff, which is not the 8,000 of the armoured brigade but about 11,000 in all. That is a part of the support for the armoured brigade.
    Mr. Fearn: To ask the Prime Minister if she will list her official engagements for Tuesday 16 October.
    The Prime Minister: I refer the hon. Gentleman to the reply that I gave some moments ago.
    Mr. Fearn: Is the Prime Minister aware that 39 countries have now ratified the United Nations convention on the rights of the child? When will this country ratify those excellent terms? What are we waiting for?
    The Prime Minister: I signed the convention on behalf of the United Kingdom when I was at the United Nations; to ratify it, it would have to come before the House.
    Mr. Harry Greenway: Is my right hon. Friend aware that Mr. Tony Wilbraham, a Baghdad hostage and father of my constituents Joanne and Paul, could die as soon as Christmas from advanced lung cancer? Will she do all that she can to secure his early release together with that of his wife, who is standing by him and nursing him, and of other sick hostages who, so far, Saddam Hussein has not had the compassion to release?
    The Prime Minister: We have every sympathy with Mr. Wilbraham and his family and also with the others who are suffering from terminal illnesses and being so wickedly detained by Saddam Hussein. It shows the true nature of that person. As my hon. Friend knows, our ambassador is still in Baghdad, and he is making strenuous efforts to ensure that those people are released. We utterly condemn Saddam Hussein for not releasing them.

Questions to Ministers
3.30 pm
Mr. Michael Meacher: On a point of order, Mr. Speaker. I wish to draw to your attention to, and to seek a statement on, a matter that arose yesterday, and which I believe constitutes a serious abuse of the proper procedures of the House. Yesterday, immediately before Social Security Question Time, I happened to come across a set of abandoned papers, of which I have full copies with me. When I was able to examine them more closely after questions, I discovered that they were photocopies of 14 oral questions tabled to Social Security Ministers for that day, together with the replies that were to be given by Ministers—[Interruption.] I am sorry that the Prime Minister does not wish to know about this breach of procedure by her party.
The answers in the photocopies were, indeed, exactly the answers that were given by Ministers. In addition, there were 16 pages of briefing, in each case headed with the title "Bull points", putting substantial defensive arguments in favour of the Government's case. It is clear that that material was circulated among Government Back Benchers to assist them at Question Time. It is also clear that the drafted ministerial replies could have come only from the Government. The briefing sheets all had code figures, which I know from my experience in government are used by Whitehall officials. It is a clear abuse of the procedures of this House that advice and briefing from civil servants, which are supposed to be tendered privately to Ministers, are then secretly made available to the Government's supporters for partisan use in the Chamber.
In the past, it has been alleged that the Government were packing the Order Paper with favourable planted questions; it now appears that they are packing Question Time with favourable planted answers. I ask for a full inquiry into the matter and that a statement be made by the Secretary of State when that is complete.
Mr. Speaker: The hon. Gentleman gave me notice during Question Time of his intention to raise that matter. There is no objection to general briefings, and, as the hon. Gentleman said, he knows from his own experience that such briefings are frequently given. However, it is a discourtesy to right hon. and hon. Members who are to ask questions to reveal the proposed answers in advance, and I hope that that practice—if it has occurred—will cease.
Mr. Anthony Beaumont-Dark: We are used to bogus and hypocritical points of order being raised in this House.
Mr. Speaker: Then I judge that this is not to be one of them.
Mr. Beaumont-Dark: I withdraw the word "hypocritical", but more than one Opposition Member has told me that they have been asked to sign questions that they did not even understand—let alone understand the answer. The hon. Member for Oldham, West (Mr. Meacher) suggests that there is something hypocritical in the Government's actions, but if the Opposition ever came to office—which God forbid—they would do exactly the same things for which they are criticising the Government for doing.
Mr. Speaker: I have already made my own views absolutely clear.

NEW MEMBER
The following Member took and subscribed the Oath:
Edward O'Hara Esq., for Knowsley, South.

BILL PRESENTED
  WAR PENSIONS (DISREGARD)
  Mrs. Alice Mahon, supported by Mr. Jeremy Corbyn, Ms. Dawn Primarolo, Mr. Harry Barnes, Mr. Bob Cryer, Mr. Dennis Skinner, Mr. George Howarth, Mr. David Hinchliffe, Mr. Harry Cohen, Mr. Bernie Grant and Mr. John Battle, presented a Bill to provide that income from war pensions shall be disregarded for the purpose of assessing entitlement to any benefit payable out of the Social Security Fund or the National Insurance Fund: And the same was read the First time; and ordered to be read a Second time on Tuesday 23 October and to be printed. [Bill 197.]

  STATUTORY INSTRUMENTS, &c.
  Mr. Speaker: With the leave of the House, I will put together the three motions relating to statutory instruments.
  Ordered,
  That the draft Housing (Grants for Fire Escapes in Houses in Multiple Occupation) (Prescribed Percentage) (Scotland) Order 1990 be referred to a Standing Committee on Statutory Instruments &c.
  That the draft Parliamentary Constituencies (Scotland) (Miscellaneous Changes) Order 1990 be referred to a Standing Committee on Statutory Instruments, &c.
  That the draft Local Government Boundaries Commissioner (Northern Ireland) Order 1990 be referred to a Standing Committee on Statutory Instruments, &c.—[Mr. Patnick.]
  Mr. Speaker: Ten-minute Bill. Dawn Primarolo.
  Mr. Chris Mullin: On a point of order, Mr. Speaker.
  Mr. Speaker: Order. We are past the time for points of order, but I will hear the hon. Gentleman.
  Mr. Mullin: I was on my feet previously, Mr. Speaker. When I attempted to table a question for the Secretary of State for Defence, asking whether British service men or any other employees of his Department had been involved in providing military training—
  Mr. Speaker: Order. The hon. Gentleman is not in order to read out a disallowed question. The matter to which he refers has not been brought to my attention, and if the hon. Gentleman feels strongly, as evidently he does, perhaps he will come to see me. However, he cannot raise that matter openly in this Chamber.
  Mr. Mullin: Further to that point of order, Mr. Speaker. My question was blocked. On the one hand, the Government want us to believe that they are not giving aid to Cambodian resistance fighters, and on the other, they decline to answer questions about that matter.
  Mr. Speaker: Order. I have no responsibility for questions being blocked.

Statutory Minimum Wage
3.38 pm
Ms. Dawn Primarolo: I beg to move,
That leave be given to bring in a Bill to make provision for the introduction of a statutory minimum wage; to make provision in respect of related duties and responsibilities of employers and wages councils; and for connected purposes.
Members of Parliament enjoy a statutory minimum wage, and it seems wholly wrong that one should be denied to the most poorly paid members of our society. The Government's so-called economic miracle has proved a mirage, especially for the low-paid in our society.
In Hansard on 17 May 1988, the Prime Minister argued that proof of the success of her economic policies was that
"Everyone in the nation has benefited from the increased prosperity".—[Official Report. 17 May 1988; Vol. 133, c. 801.]
I emphasise her word "everyone". That is the so-called trickle-down theory, but the hallmark of that theory under the Government has been the growth of inequality. The gap between the rich and the poor has increased due to the Government's economic and social policies.
The trickle-down theory originated in America, as so many of the Government's ideas do. John Kenneth Galbraith, an American economist, likened the trickle-down theory to the idea that if one feeds sufficient oats to a horse there will eventually be something for the sparrows. He noted that this theory was more popular with the horse than with the sparrow, which is no surprise. We note that directors awarded themselves pay increases in excess of 33 per cent. last year at the same time that the Government told the low-paid to cut their requests for decent wages.
To give an idea of the scope of low pay, I shall quote from evidence from the south-west region, where my constituency is situated, using Government statistics from the new earnings survey, which shows that the region is riddled with dramatic inequalities between men and women, part-time and full-time workers, non-manual and manual workers. The picture highlights, almost to the point of caricature, the fact that the Government's free market policies bring a divided society where economic affluence for some is paid for by poverty pay for many. It is appalling that people who work long, hard hours, sometimes six or seven days a week, should have to claim benefit to attempt to make ends meet.
Pay inequality has reached record levels. The 1990 new earnings survey shows that, in 1979, the lowest paid 10 per cent. of manual workers earned 68·3 per cent. of average pay. In 1990, the figure has dropped to 63 per cent., and it is lower than at any time since records began in 1886. The gap between the best paid and the lowest paid—pay inequality—is worse in 1990 than it was in 1886.
During the past 10 years, the best paid workers have received real pay increases 16 times greater than those for workers on low pay. The causes of low pay are manifold, but it is clear that, without intervention from Westminster, the south-west, like all other regions, will continue to have widening pay inequality and entrenched low pay.
The single market may well make matters worse by enabling more social dumping, whereby European companies can join relocating United Kingdoms firms to exploit the region's low pay.
A major cause of the poverty experienced by hundreds of thousands of workers and their families, in the south-west and elsewhere in the United Kingdom, are the
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Government's policies, which encourage the spread of low pay and inequality. The Government's lone opposition to the social charter, the proposed abolition of the wages councils, the threat of benefit suspension for unemployed people who refuse to take low-paid jobs, and encouragement for employers to pay benefit level wages in temporary wage top-up schemes all bear witness to that.
In the south-west, three quarters of a million workers—half those in employment—earn wages below the poverty line of £4·16 per hour; 400,000 workers, of whom eight out of 10 are women, would benefit immediately from the introduction of Labour's plans for a statutory minimum wage of £3·10 per hour.
The majority of workers in the south-west earn less than the Council of Europe's decency threshold of £4·32 an hour. Women are twice as likely to be lower paid than men and part-time workers are two and a half times more likely to earn less than £3 an hour. More and more firms are illegally underpaying their workers, but few are prosecuted, since the wages councils have been marginalised and isolated by the Government. We need to introduce a statutory minumum wage and to strengthen the statutory duties of the wages councils to enforce wages and to protect workers who go to them with complaints of low pay.
These rights must be extended to part-time and home workers, thus following the example of the European Community, which is developing the idea of atypical worker—those who do not work a normal working day. Our equality laws need to be strengthened, and social security benefits must be improved in order to reinforce the work of the wages councils. These proposals are a vital tool in the attack on poverty and inequality. Those who own companies have proved that their strategy is to keep as much as possible for themselves and to pay as little as possible to those they employ, thus hitting women workers the hardest.
A statutory minimum wage should be an essential part of our economic strategy. It would help to counter the trend of short-termism in the United Kingdom, whereby low pay and low productivity are chosen as low-cost alternatives to investment in training and equipment. A statutory minimum wage would lessen the danger of the United Kingdom becoming a low-wage region in Europe, by acting as an incentive to United Kingdom employers to pursue high-wage, high-investment and high-productivity business strategies.
Finally, a statutory minimum wage would alleviate the poverty and misery of hundreds of thousands of families whose labour is exploited by unscrupulous, unreasonable and unfair employers. I commend the Bill to the House.
Question put and agreed to.
Bill ordered to be brought in by Ms. Dawn Primarolo, Mrs. Alice Mahon, Mrs. Audrey Wise, Mr. Jeremy Corbyn, Mr. David Hinchliffe, Mr. Bob Cryer, Ms. Diane Abbott, Mr. Dennis Skinner, Mr. Tony Banks, Mr. Brian Sedgemore and Mrs. Maria Fyfe.

Statutory Minimum Wage
  STATUTORY MINIMUM WAGE
  Ms. Dawn Primarolo accordingly presented a Bill to make provision for the introduction of a statutory minimum wage; to make provision in respect of related duties and responsibilities of employers and wages councils; and for connected purposes; and the same was read the First time; and ordered to be read a Second time upon Friday 19 October and to be printed.—[Bill 198.]
Orders of the Day

  Law Reform (Miscellaneous Provisions) (Scotland) Bill [Lords]
  As amended (in the Standing Committee), considered.
  Motion made, and Question proposed.
  That the Law Reform (Miscellaneous Provisions) (Scotland) Bill [Lords], as amended, be considered in the following order, namely, new Clauses relating to Part I, Amendments to Part I, new Schedules relating to Part I, new Clauses relating to Part II, Amendments to Part II, new Schedules relating to Part II, new Clauses relating to Part III, Amendments to Part III, new Schedules relating to Part III, other new Clauses, other Amendments, other new Schedules.—[Lord James Douglas-Hamilton.]
  3.48 pm
  Mr. Brian Wilson: Before we get down to a detailed consideration of the Bill as it now stands, I am bound to express on behalf of my colleagues and some of those on the other side of the House extreme concern about the way in which, even at this late stage, the Bill has been handled by the Government. From start to finish, it has been a shambles.
  After the long summer recess, we thought that we were coming back to deal in a reasonably civilised way with what was left of the Bill—a much improved Bill after the changes and the arrangements made in Committee between the Opposition and the Government to remove certain clauses. We thought that we were coming back to consider about 30 new clauses and 150 amendments. I freely accept and welcome the fact that many of the new clauses and amendments were the result of concessions made by the Government to Members on both sides of the Committee. So far, so good.
  There was also some new business that the Government wished to introduce, which again was perfectly acceptable to us. However, as recently as Saturday morning, through the medium of the radio, we learned that the Government had decided to introduce into the Bill at this late stage two major and extremely contentious clauses. They are not contentious in the sense that we wish to oppose the spirit that lies behind them, but the new clauses merit a great deal of debate and they would have been debated had they been introduced in Committee. But they were not; and now, literally days before the Bill returned to the House, we were given notice that the Government intended to introduce two new clauses.
  I refer in particular to the clauses on children's evidence, live television links and supervised attendance orders. We will not oppose those clauses, but at every stage of the progress of the Bill, the legal process in Scotland has been treated with contempt. If the Government accepted that the clauses could not be dealt with fully in Committee—heaven knows, there were enough hours in Committee to debate many matters—how on earth can they logically justify moving them at this stage and saying, "You will now have to consider these matters with 30 new clauses and 150 amendments"? As the Minister well knows, we have at most a day and a half in which to dispense with that business.
  Labour Members will do their best to improve what will go on to the statute book. These are matters of concern, importance and complexity, so it is beyond reason to
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  suppose that we shall deal with the major issue of television evidence from children or the extraordinarily major reform in Scottish criminal proceedings of supervised attendance orders being available for fine defaulters in anything like the detail or seriousness that the subjects demand.
  It is right that we register our protest at this stage and advise the people of Scotland that, once again, important legal reform is being dealt with by the Government in this cavalier manner. They are interested not in passing what is right but in getting the legislation on the statute book in any shape or form. We will do our best tonight, but once again the behaviour of the Government is a disgrace.
  The Parliamentary Under-Secretary of State for Scotland (Lord James Douglas-Hamilton): I can reply quite briefly to the hon. Member for Cunninghame, North (Mr. Wilson) and will do so in the same spirit as he approached the subject.
  We have a substantial task ahead of us, but I am sure that the House will recognise that the bulk of the amendments were tabled as a result of concessions and commitments given to Back Benchers in Committee. We would be failing in our duty if we did not honour those commitments.
  Much of parts I and II of the Bill are complex matters of law, so it is important to take the opportunity on Report to make the drafting as clear and straightforward as possible. We have had to consider carefully the drafting of part II in the light of changes made in Committee. We dropped several clauses in parts III and IV in accordance with the understanding that they would not be reintroduced. Where we have brought forward new issues, the reason has generally been that an issue was raised but not debated in Committee, which was certainly the case in relation to child evidence. The hon. Member for Greenock and Port Glasgow (Dr. Godman) was right to raise that matter in Committee, and he made it clear that he would seek to return to it on Report.
  Dr. Norman A. Godman rose—
  Lord James Douglas-Hamilton: I hope to reply positively to the hon. Gentleman later, when we debate child evidence.
  Dr. Godman: On a point of order, Mr. Speaker. Is the Minister speaking on a point of order?
  Mr. Speaker: It is not a point of order. This is the consideration motion, which is debateable.
  Dr. Godman: I seek an assurance from the Minister in order to save time. Will he confirm that the Government will accept all my new clauses on children giving evidence in criminal proceedings?
  Lord James Douglas-Hamilton: I intend to accept the central point on video evidence. That does not include every aspect of new clause 1, but we shall go into the details later. I am grateful that the hon. Gentleman reintroduced the new clause.
  The dropping of certain provisions on fines had unforeseen effects which made necessary the introduction of the provision on supervised attendance orders. I should be grateful if Opposition Members could exercise a willing suspension of disbelief until we reach new clause 20. For our part, we are ready to debate any of the points that

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  Opposition Members may consider raise large issues and to explain why we regard the provisions as necessary and desirable in the interests of the Scottish people.
  Question put and agreed to.

New Clause 16

  DESIGNATED RELIGIOUS BODIES
  ".—(1) The Secretary of State may from time to time, by order, designate for the purposes of this section such recognised bodies as appear to him—

  (a) to have as their principal purpose the promotion of a religious objective;

  (b) to have as their principal activity the regular holding of acts of public worship; and

  (c) to be bodies which satisfy each of the conditions mentioned in subsection (2) below.

  (2) The conditions referred to in subsection (1)(c) above are—

  (a) subject to subsection (4) below, that the body has been established in Scotland for not less than 10 years;

  (b) that the body can demonstrate to the satisfaction of the Secretary of State that it has a membership of not less than 3,000 persons resident in Scotland who are 16 years of age or more; and

  (c) that the internal organisation of the body is such that one or more authorities in Scotland exercise supervisory and disciplinary functions in respect of the component elements of the body and, in particular, that there are imposed on such component elements requirements as to the keeping of accounting records and the auditing of accounts which appear to the Secretary of State to correspond to those required by sections 3 and 4 of this Act.

  (3) Where a body is, for the time being, designated under subsection (1) above the following provisions of this Part of this Act shall not apply to the body nor to any component or structural element of the body which is, itself, a recognised body—

  section 1(5);

  section 3;

  section 4, other than subsections (6) to (8) and subsection (12);

  section 5(2) and (6);

  section 6; and

  section 7.

  (4) The Secretary of State may determine that the condition mentioned in subsection (2)(a) above shall not be required to be satisfied in the case of a body—

  (a) which has been created by the amalgamation of two or more bodies each of which, immediately before the amalgamation, either was designated under this section or appears to the Secretary of State to have been eligible for such designation; or

  (b) which has been constituted by persons who have removed themselves from membership of a body which, immediately before such removal, was so designated or appears to the Secretary of State to have been eligible for such designation.".—[Lord James Douglas-Hamilton.]

  Brought up, and read the First time.
  Lord James Douglas-Hamilton: I beg to move, That the clause be read a Second time.
  I found this the most difficult issue in the Bill. I will try to sum up quickly our point of view on it. New clause 16, in its former guise as new clause 2, was the subject of prolonged debate in Committee. As a result of the concerns of many hon. Members, I agreed to withdraw new clause 2 for further consideration. Having given the matter further thought, I concluded that the new clause should be part of the Bill with only a minor modification to its former form. New clause 16 seeks to provide a
  1062
  measure of exemption from the supervisory and accounting provisions of Part I for religious organisations with a substantial following in Scotland.
  Forceful representations were made to the Government that charities for the advancement of religion—Churches—are in some respects a special case. Religious freedom is, of course, a fundamental right of people in this country, and we must be careful that, in establishing a system of supervision, we do not prejudice or appear to prejudice that.
  The person concerned with the management and control of a religious charity will frequently be the religious leader of the community. To suspend a religious leader, as the court will be entitled to do for mismanagement of the secular affairs of the religious body, might be viewed as improper interference by the secular authority in spiritual matters. The state is, of course, most anxious not to become involved in any way in the spiritual affairs of the charity.
  A most important consideration is that, if we were to provide a blanket exemption for all bodies established for the advancement of religion, many undesirable, cult-like bodies would escape control. Some unscrupulous people might, indeed, deliberately set up charities with spurious religious purposes to escape the controls contained in the Bill. That must be avoided.
  A distinction also needs to be drawn between taking action to intervene in a Church's affairs or to enforce compliance, on the one hand, and simply including the Churches within the purview of those provisions concerned with disclosure, accounts and the Lord Advocate's right to investigate, on the other.
  Yet a further consideration, and one about which hon. Members who served in Committee were particularly concerned, is that, for obvious reasons, we do not wish to discriminate in favour of one religion over another on grounds of religious doctrine. That is certainly no business of the state.
  New clause 16 affords religious organisations capable of meeting certain criteria the opportunity of opting out from the supervisory and investigatory functions of the Lord Advocate and the courts. It enables them to prepare accounts in the manner in which they have in the past, provided that such accounts are generally of a standard similar to those provided for in clauses 3 and 4. It removes the possibility of sanctions being applied for noncompliance, but retains a right for members of the public to seek copies of accounts and the explanatory document.
  The provisions are necessarily a compromise, but I believe that they strike a reasonable balance between ensuring that there is internal control within the religious body as regards discipline and the requirement for production of accounts, and preserving a right for the public to be informed, while removing from such bodies anxiety, however misplaced it may seem, about interference by the state.
  This is difficult territory, and any solution must be a compromise. The new clause has the support of the Scottish Churches Committee, a body representing all the major Churches in Scotland whose combined membership of people over the age of 16 amounts to 1,600,000. Despite widespread reporting of the Standing Committee's consideration of the original clause and our having since consulted the minor Christian Churches and the non-Christian religions in Scotland, including the Jewish congregations, members of the Islamic and Hindu faiths,

  1063
  Jehovah's Witnesses, the Church of Jesus Christ of Latter-day Saints, the Religious Society of Friends, the Salvation Army and a wide variety of smaller bodies, I have received no representations to the effect that the provisions are unacceptable. On the other hand, I have received strong representations from the Scottish Churches Committee, the Moderator of the General Assembly of the Church of Scotland and various parish ministers to the effect that the new clause should be introduced.
  4 pm
  Mr. Menzies Campbell: I wonder whether the Minister could clarify a matter that is causing me some apprehension. It arises from the justification that he has advanced for the clause. Do I understand that one reason for the clause is to ensure that the Lord Advocate does not have to intervene in the affairs of religious charities in the same way as he might have to intervene in the affairs of non-religious charities?
  Surely the issue concerns the standard of conduct and the standard of behaviour of a charity, whether it is of religious origin or not. It is most curious to say that the exemption is being introduced for the purpose of ensuring that the Lord Advocate does not apply the same standard to religious charities as, by law, he would be obliged to apply to non-religious charities.
  Lord James Douglas-Hamilton: It is necessarily a compromise, and the public would retain the right to be informed. It is important that the larger Churches should be in a position to administer their own affairs and to have a two-tier system of supervision. It is important that they should have the opportunity to administer that system. We have specified the membership figure of 3,000 because an organisation with fewer members might not necessarily be able to form its own supervisory arrangements, and we had to be certain of that point. The hon. Member for Greenock and Port Glasgow (Dr. Godman) said that he wanted the smaller Churches to be properly consulted and many more of them will be included under the present new clause.
  Mr. Donald Dewar: We are starting what I think will be a long journey through this evening, and this will not be the most unimportant of our debates. A great deal of interest was expressed in this subject in Committee and a great many arguments were put to the Minister. The Minister is noted for his courtesy in debate, and perhaps we were misled by that. At the end of our mammoth discussion, he said that he would take away new clause 2, as it then was, and would reconsider it in the light of the many points that had been put to him. I suspect that there will be some disappointment that the changes and adjustments have been made on such a migerly basis—
  Mr. Menzies Campbell: Eh?
  Mr. Dewar: It is a new word. I have just invented it. I am rather good at that. I hope that Hansard will transcribe it accurately, because it represents a nice amalgam of the two words from which it derives.
  As I understand it, the only change that the Minister has been able to offer involves bringing the qualifying
  1064
  mark for membership down from 5,000, as it was originally, to 3,000. If one crosses that mark and meets the other obligations and qualifications set out in the new clause, one may get the advantages off the exemptions that are provided.
  I have some sympathy with the Minister, because I realise that he was attacked from two totally different directions during our earlier exchanges. A number of people took the view that there was no logical case for the exemption. The hon. and learned Member for Perth and Kinross (Sir N. Fairbairn) and perhaps the hon. Member for Eastwood (Mr. Stewart) were among them. The former argued, perhaps in rather extreme terms, that religious bodies were just as prone to wrongdoing as any other body.
  Sir Nicholas Fairbairn: I have always understood that it was an assumption of the Christian Church that we all sin and that the purpose of a church was that we went there to be forgiven. The new clause is based on the assumption that Christians sin less than others. If that is the case, what is the point of the Church?
  Mr. Dewar: Indeed. To answer the hon. and learned Gentleman's question with all the seriousness that it deserves, if he examined the Presbyterian doctrine and in particular the doctrine of predestination, he would see that the Church is extremely useful in explaining to people who sin that they can still get to heaven and continue to sin in the meantime. That is a very comforting theological position, which I offer as worthy of study even to an unreconstructed member of the Scottish Episcopalian Church like the hon. and learned Member for Perth and Kinross.
  To return to the serious matter under discussion, the Minister had to withstand criticism from the hon. and learned Member for Perth and Kinross, who said that religious bodies are just as prone to wrongdoing as any other body. From that, the Minister argued that we should have no exemption for religious bodies. I did not accept that point of view; many of my colleagues and I were more worried about the fact that the exemption did not seem to be worth very much and the hurdles were such, to borrow a phrase from another setting, that it would be as easy for a religious body to gain the advantages of the exemptions as it would be for a rich man to get through the eye of a needle. Many people who should not be excluded would be excluded. That was our worry and that concern remains.
  I do not want to go through all the arguments, but I want to encourage the Minister to comment further on this matter. I am particularly concerned about the worth and practical application of the exemptions. Let us assume that a body has qualified for the exemptions as a religious body. The particularly important points are the accounts records in clause 3 and the annual accounts provisions in clause 4. We are told that a recognised body will not have to conform to those provisions.
  That is a quite substantial concession until, as I said in Committee, we consider new clause 16(2)(c), which states that there must be accounting records
  "and the auditing of accounts which appear to the Secretary of State to correspond to those required by sections 3 and 4 of this Act."
  I do not think that I am being obtuse or difficult when I suggest to the Minister that it is not clear what the exemption is worth. We do not need to accord with clauses

  1065
  3 and 4 or to run our accounts in compliance with those clauses, so long as the Secretary of State is "satisfied" that our accounts and audits correspond to clauses 3 and 4. That is a little puzzling, and the Minister should comment on it.
  Presumably there is a distinction between the two positions. Presumably a Church will be able to say to its auditor—or its board of managers, if it is part of the Church of Scotland—"We can accord to a certain standard which will get past the Secretary of State's scrutiny, but that is a lesser standard than that demanded by sections 3 and 4 of the Act, from which we are exempt."
  What is that gap? I agree that that is difficult for the Minister to answer, because it may not be defined. If the Minister defines it too generously, he will be open to attack by the hon. and learned Member for Perth and Kinross, who will say that he is lowering the standards and allowing the sinner to run away with the Church funds, metaphorically—and perhaps literally. On the other hand, if the Minister says that he will make it so tight that at the end of the day it will be just like clauses 3 and 4, as the new clause states, what on earth is the advantage of this new clause and this provision?
  The nub of the problem is that we do not know what we are being asked to agree to. Even those of us who have been reasonably diligent and have sat through the many hours of debate and have examined the new clause are none the wiser. That is the kernel of the argument. The Lord Advocate's powers of interdict and suspension under clause 5(2) and (6) and the powers of the Court of Session to manage under clause 6 are comparatively minor matters. At the end of the day, they arise only when some form of defalsification has been flushed out. There is a case for saying that, if that has happened in a charity, in any event those powers should apply.
  I ask the Minister to turn his mind to those matters. He warned us that he did not wish in any way to get involved in the spiritual affairs of the nation. His ancestors used to interfere freely in the spiritual affairs of the nation, as I remember from reading 17th-century Scottish history, but I do not want to encourage him in that respect. He started in his usual beguiling way by inviting us all to have a willing suspension of disbelief. My concern is that to accept the new clause or to pretend that we know what it means we must also have a willing suspension of disbelief. I am not very willing in that respect. The Minister must say a good deal more before he can expect hon. Members to nod the measure through.
  I am not in the least bit happy. I recognise that the Minister has a powerful argument and that he wrote to many organisations and that none objected. I must take cognisance of that, of course, but many questions, such as the definition of membership, are still unresolved. I fear that a large number of people in perfectly bona fide religious sects operating in Scotland at the moment may find that they are disqualifed from the advantages, ill-defined though they are, of this new clause. The Minister must be a good deal more specific than he has been so far.
  Mr. Menzies Campbell: I do not want to traverse the ground that was traversed at length in Committee. The new clause comes forward in substantially the same form as was considered by the Committee. I repeat one point that the Minister has not dealt with, and that is that subsection (1)(b) provides that, to qualify a body must
  1066
  "have as their principal activity the regular holding of acts of public worship".
  Certain religious bodies undoubtedly have as their principal purpose the promotion of a religious objective but do not necessarily have as their principal activity the regular holding of acts of public worship. Indeed, by their exclusive nature, some bodies do not permit admission to their ceremonies to people other than those who are already members. Therefore, they cannot be regarded as having as their principal activity the regular holding of acts of public worship, because the public do not have an unfettered right of access.
  That provision is unnecessarily restrictive. If a body is bona fide of a religious nature and has as its principal purpose a religious objective, why should it be subject to the restriction which this provision necessarily provides, that it must reflect that religious objective in the regular holding of acts of public worship? That point was raised in Committee, and so far in our proceedings the Minister has not considered it.
  I also draw to the Minister's attention subsection (2)(b), which reflects an alteration. The figure before the Committee was 5,000, not 3,000. There must be a justification for that change, and no doubt the Minister will tell us what it is.
  One of the effects of setting such a relatively high target is that a religious body that is set up with its principal purpose the promotion of a religious objective, even one that has as its principal activity the regular holding of acts of public worship, will not be able to qualify for the exemption that this new clause provides until it can demonstrate that it has a membership of 3,000 or more. That means that, for small bodies that start up, it may be difficult, if not impossible, to reach the threshold, yet they may be bona fide bodies that have as their principal purpose the promotion of religious objectives.
  Why has that hurdle been created in that way? What is the justification for inserting a threshold in terms of numbers? The new clause is far from satisfactory. I regret to say, bearing in mind what has already been described as the Minister's beguiling approach, that he has not really taken to heart the effective criticism that was advanced against the new clause in Committee. That is a great pity, because the exemption is something that we should introduce into our law for the benefit of religious bodies. It is a great pity if the exemption, as drafted, makes it difficult for certain bodies, which would otherwise justifiably be entitled to claim that exemption, to bring themselves within the embrace of the provision.
  I hope that the Minister will at least consider the matters that I have raised and now tell the House something of the thinking behind the new clause.
  Sir Hector Monro: This will be just a short intervention. Perhaps my hon. Friend the Minister will tell us something about the thinking behind the change to 3,000 members, and about which Churches will now be exempted that were not exempted before. That would give us some idea about the discussions and consultations that he has had since the Committee gave the almost unanimous view that the original clause was not satisfactory. I am sure that my hon. Friend has had discussions with various Churches, so perhaps he could let us know which ones made him change his mind.
  4.15 pm
  Mr. Harry Ewing: I am disappointed that the Minister has brought these provisions back to the House, because they have nothing to do with the right to religious freedom. It is confusing the issue—deliberately, in my view—for the Minister to introduce the new clause by making it clear that everyone has the right to exercise religious freedom. There is no debate about that. There is no difference between any of us participating in this debate on the issue of a person's right to exercise religious freedom.
  I am not saying that I do not believe the Minister when I say that I am surprised that the Scottish Churches Committee has not written to hon. Members on this issue. Scottish Churches are never slow to write to hon. Members on a range of issues—that is quite right, and I am not criticising them for it—but in this debate we are being led to believe that, although this is an issue on which Scottish Churches feel strongly, and although they knew that we would debate the matter today, they have not taken the trouble to write to the right hon. and hon. Members.
  I should like to nail my colours to the mast erected by the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn). Here I part company, to a certain extent, with my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar), because I do not accept that Church charities—religious charities—should be treated separately or differently from the Royal National Lifeboat Institution, the boy scouts, the Boys Brigade or any other reputable charity in Scotland.
  I have not yet heard any explanation for that exemption or difference in treatment. If the Minister is making an exception, I do not understand why it should apply only to a religious body. Furthermore, I honestly cannot see the difference between a religious body that has 3,000 members and one that has 30 members. They are both religious bodies. The new clause is so artificial that it does not bear discussion in this House. However, as the Minister has tabled it, we must discuss it.
  As a member of the Church of Scotland, I know what happens when the Church decides to remove non-communicants from the roll. I suspect—I have no doubt that I shall receive a letter from the Church either rejecting or confirming my comments—that in future, in order to keep the number on the roll above the numerical limit that the Bill seeks to impose, fewer non-communicants will be removed from the register than in the past. I do not believe that that will do religious worship, the Church of Scotland or any other religious organisation any credit.
  What saddens me even more—I shall not say "angers me" because I have never found it possible to get angry with the Minister—is that we could have defeated him in Committee and taken the clause out of the Bill. In those circumstances, the Minister would not have dared to bring it back to the House, but we took the Minister at his word when he told us that he was going to take the clause away and have a rethink. But he has brought it back, and the extent of the rethink is a reduction from 5,000 to 3,000 in the level of qualifying membership.
  I shall not vote against the new clause, because there are other important aspects of the Bill that my colleagues want to discuss. However, I want to place on record my regret that the Minister has chosen to table the new clause. I would love to hear an explanation of why religious
  1068
  charities should be treated differently from the Royal National Lifeboat Institution, the Boys' Brigade, the boy scouts, the Cancer Research Campaign, the Multiple Sclerosis Society or any other charity with national standing that anyone cares to name. There is no difference, because they all serve a marvellous purpose and should all be treated on the same basis. One of them should not be given privileged treatment, as it is in the new clause.
  Mr. Allan Stewart: I do not often agree with the hon. Member for Falkirk, East (Mr. Ewing), but he has put his finger accurately on a number of key points that the House must consider. Like him, I was not only disappointed but astonished when my hon. Friend the Minister, with his customary courtesy, told me last night, when I had not yet read the amendments, that the new clause would be on the Notice Paper for the House to consider today. While the Minister said that he would take away the clause and reconsider it, which he has done—the House should be clear about that—my interpretation of the debate, like that of every other member of the Committee, was that the clause would either be withdrawn completely or radically altered.
  Let us consider the history of the new clause. The Bill has taken a long time to pass through the two houses, and the provisions were not in the original Bill or in the Bill considered by the other House. To my knowledge, the matter was not raised in the other House, although I could be wrong. It certainly was not raised on Second Reading, but suddenly came to the Committee out of the blue, where it was torn apart by both sides of the Committee. The hon. Member for Falkirk, East was undoubtedly correct to say that, if the original clause had been forced to a Division in Committee, it would have been lost.
  Although he has spoken with his customary courtesy, my hon. Friend the Minister must expand his explanation and tell us who are making the representations for the new clause. He has mentioned a committee. Like the hon. Member for Falkirk, East and all Scottish Members, I receive a large number of representations from Churches of all denominations on a wide range of issues. I have not received representations from people arguing for the new clause. My hon. Friend the Minister has referred to the strong representations that he has received, and I have no doubt that the Scottish Office has received strong representations. But if Churches feel so strongly about the matter, why have hon. Members not received strong representations? My hon. Friend the Minister is not at the pearly gates yet and does not answer to the Churches but to the House and to hon. Members.
  The Minister has said that there are no objections from the minor churches—I think that that is the correct term—or the non-Christian Churches. I realised that point in Committee, and I am grateful to him for consulting non-Christian churches. Will he tell the House more about what "no objections" means? It could simply mean that a letter is still sitting in somebody's pile somewhere. There is a difference between people positively saying that they are quite content with something, and not responding to it at all.
  My fundamental objection to the new clause, even as amended, relates to the point made by the hon. and learned Member for. Fife, North-East (Mr. Campbell) in Committee. I should prefer there to be no exemptions, but if there are to be exemptions let them be logical and rational. What is the justification for 3,000? This is not a

  1069
  statutory instrument; the House is considering primary legislation which cannot be changed without a new Bill. What happens if a Church passes the threshold or if it becomes a little less popular and drops just below the 3,000 point? Who is to decide? The House should not readily agree to the idea of a numerical threshold anyway.
  In passing, it is worth pointing out that, if the new clause had been around in Jerusalem in AD 30, our Lord and his disciples would not have qualified—they would not have met the criteria. There was no way in which they could have formed a designated religious body.
  The House is being asked to differentiate between religious bodies on purely arbitrary grounds: the number of years for which they have been established and the number of members that they allegedly have. Dividing Churches into these two categories on the basis of wholly arbitrary criteria is fundamentally wrong.
  Mr. Jim Sillars: Those of us who come in on Report are at a disadvantage compared with hon. Members who took part in the detailed, intimate examination in Committee, but it is interesting to see a consensus developing between the hon. Members for Falkirk, East (Mr. Ewing) and for Eastwood (Mr. Stewart). I go along with them; I see no rational grounds for the new clause. Indeed, the hon. Member for Eastwood took it apart, and if it was taken apart in Committee, the most sensible course of action would be for the Minister to withdraw it this afternoon.
  I agree with the hon. Members for Eastwood and for Falkirk, East that there is no sense in trying to exclude all other organisations by including the religious bodies. Let us examine the new clause in the light of the Minister's argument. Religious bodies are designated, but subsections (1)(a) and (b) contains a serious contradiction, which would probably exclude the adherents of Islam. Subsection (1)(a) reads:
  "to have as their principal purpose the promotion of a religious objective".
  Islam would probably qualify under that, but there is a second condition:
  "to have as their principal activity the regular holding of acts of public worship".
  It does not necessarily follow that that would include Islam. In fact, arguments could be adduced to show that it excludes Islam, which is very different in its theology and practice from the Christian religion.
  Public acts of worship form an important part of the whole ethos of Christianity, but the same is not true of Islam. For example, the adherents of Islam pray five times a day—there is a moving clock as the year progresses. There are no major acts of public worship at 2 am either in Glasgow or in Saudi Arabia. Islam is noted for a fundamental belief that there is a short and direct connection between the adherent and God, whereas in Christianity there are many moderators between the adherent and God. Ministers and priests play a far larger role in the Christian religion than do their counterparts, if such there be, in Islam, particularly among Sunni Muslims.
  If I were a follower of Islam, where would I fit in in those circumstances? It may be an unhappy consequence of putting new clause 16 on the statute book that, somewhere along the line in two or three years' time, an Islamic group comes along, there is a proper reading of the statute and they are told that, unlike their Christian brethren along the road, they are excluded from the
  1070
  provisions of what the hon. Member for Eastwood correctly pointed out is not a statutory instrument that can be easily altered but a fundamental Act of Parliament. I think that we are entitled to hear from the Minister whether I am correct in my interpretation of the potential exclusion of Islam from subsection (1)(a) and (b).
  I noticed that, in the letter that the Minister sent to the hon. Member for Glasgow, Garscadden (Mr. Dewar)—copies of which were received by members of the Committee—he said that he did not receive representations from minority and non-Christian organisations. However, did he specifically raise with the Islamic community in Scotland the problems that might arise under new clause 16?
  4.30 pm
  Dr. Godman: I wish to express disappointment at the conduct of the Minister, who is usually a generous and courteous Member of the House. He has not played the game with Committee members over the new clause.
  As others have said, the new clause might well have suffered defeat as it was originally worded if it had been put to a vote in Committee. The Minister will recall that I expressed serious reservations about its precursor. My concern was that small sects—such as Brethren, which have existed in some of our maritime communities for a considerable time—might well be excluded from the new clause because they had fewer than 3,000 members. Such small religious bodies are increasingly populated by elderly members; as the hon. Member for Eastwood (Mr. Stewart) has said, what happens when their numbers fall below 3,000? The figure of 3,000 is the defining criterion in the new clause.
  I should like to hear from the Minister whether he or his officials contacted any of those small religious bodies in our maritime communities—and other communities—to obtain their views on such a clause. I repeat that he has not played the game, and my advice to him is, "Take the new clause away".
  Where the interests of small and perhaps declining—in terms of numbers—sects are concerned, it is not good enough. The Minister should think again before attempting to bring such a measure to the House.
  Sir Nicholas Fairbairn: I do not want to be contentious on this Bill. I apologise to the Minister if by the slightest chance he feels that I am being duplicitous, but the new clause was not among the many communications that he sent me, with great courtesy and kindness. It therefore came as a surprise to me to discover, at 2.30 pm, that the new clause had got back into the Bill.
  I think that the matter is far more serious than has been suggested by any hon. Member who has spoken so far. We have not been slightly annoyed or partially misled; nor do we think that it is not quite right in detail. We have been totally misled, and it is entirely wrong in principle. As those who were not on the Committee will not know, but those who had the fortune—or misfortune—to be on it will, if we had not been misled, without the slightest question the new clause would have been roundly defeated and would never again have seen the light of day. In a spirit of Christian peace and light, we interpreted the Minister's view to be that he would take the animal out of the stable and that it would have its throat cut out of our

  1071
  view. However, it has come back and that is a rotten trick with which to start the debate on Report. I beg the Minister to do the honourable thing and forget it.
  It is offensive that the new clause again proceeds upon a false principle that was torn apart by hon. Members in all parts of the House. Either out of deference towards what is called religion, whatever that may be—I do not think that one could get agreement on it—or because of some fear of touching the cloth, we divide Christians into non-sinners or presumed non-sinners and those who work for or collect funds for a charity, who are assumed to be guilty.
  We should be clear about some of the exemptions that apply to the so-called religious bodies. To illustrate that, one can do no better than to look at clause 7(1) which says:
  "A person who—

  (a) has been convicted of an offence involving dishonesty;

  (b) is an undischarged bankrupt;

  (c) has been removed, under section 6 of this Act, from being concerned in the management or control of any body; or

  (d) is subject to a disqualification order under the Company Directors Disqualification Act 1986."

  That person is allowed to act for a religious charity but not for any other. I can understand the concepts of compassion and forgiveness of sin, but I cannot understand why a Christian who has committed a crime of dishonesty should not be allowed to raise funds for lifeboats whereas a Christian who is an undischarged bankrupt or who has been convicted of a crime of dishonesty is allowed to raise funds for a priest's retirement. The whole concept is not only confused but basically dishonest.
  Let us look further into the matter. I do not know why it should be assumed that we do not touch the cloth. I have defended a few priests for the most serious offences. I appeared in a case in which the priest said to Lord Wheatley, who was a Catholic, "I suppose you will not expect me to give evidence that breaks the confidentiality of confession." Lord Wheatley said, "No, and I will not expect you to commit perjury either, by breaking the oath that I have just administered. My advice to you, Father, is to bring your toothbrush tomorrow."
  Dr. Godman: I hope that that was not in Greenock.
  Sir Nicholas Fairbairn: There are no lady priests, so this one could not be confined in Greenock.
  I understand that we are all equal in the sight of God. This new clause arises from a ridiculous English concept that the established Church is somehow above the law. It has nothing to do with Scotland. Surely the Christian or the religious person would be the first to put his hand before the fire and the first to say, "Search my pockets, take my records, arrest me, prosecute me, do what you will for I know that I am pure," or "I know that I have sinned"—whichever it is.
  As I said earlier, even with a membership down to 3,000—I do not know whether that is at the Lord Chancellor's behest—half the split Free Presbyterian Church does not qualify. It is split into two parts, one of which consists of about 1,200 members. That is the part that thinks that it has the funds, which is a good reason, if ever there was a good reason, why it should not be exempted. I do not know whether the good Samaritan was an atheist. I do not
  1072
  understand why assumptions should be made about his charity if it were discovered that he was, or was not, a faithful Samaritan.
  This is a most serious matter. The new clause refers to minor religious bodies, whatever a religious body might be. I should have thought that the fervency of those who collect for lifeboat charities—for those in peril on the sea—would make them a religious body. I should have thought that the fervency of those who collect for the Save the Children Fund would make them a religious body. First, the clause is meaningless; secondly, it is hypocritical; thirdly, it is alien to the law of Scotland; and fourthly, it is an affront and wrong to exempt certain people from the activities of the Lord Advocate—when charities have to be subjected to such—on the presumption of holiness.
  I remember a case in Glasgow when the head of the criminal investigation department declined to arrest a priest because he was of the cloth. That priest turned his back until he reached Ireland, where he successfully resisted his extradition to Britain on the ground that the explosives in his possession made his a political crime—yet in the witness box in Glasgow he had given evidence in support of my client and claimed that he had no knowledge of those explosives.
  We should not imagine that the human beings who profess a religious belief—whatever that is—and can persuade 2,999 others to join them are holier than the rest of us. So that he can demonstrate that he is not holier than the rest of us, I suggest that my hon. Friend the Minister withdraws the clause so that we can proceed with the Bill.
  Mr. John McAllion: The Minister said that the purpose of the 3,000 limit was, at least in part, to exclude cult Churches from benefiting under the clause. I hope that he agrees that neither the Society of Friends nor the Unitarian Church could be described as cult organisations. However, their numbers in Scotland may well fall below the 3,000 limit. Has the Minister consulted either of those Churches and does he know specifically what the impact on them will be if the clause is passed?
  My local Unitarian Church in Dundee has asked me to do everything possible to ensure that the clause is not reinstated in the Bill. If that is the flavour coming from Dundee, I suspect that it is the flavour coming from the Quakers and the Unitarian Church throughout Scotland. I hope that the Minister will deal specifically with the question of those two Churches. When he listed the minor Churches that had been consulted, he did not mention either of them.
  Mrs. Maria Fyfe: I do not want to prolong the debate on this issue because there are a great many important aspects of the Bill that we wish to discuss. The Minister's press release referred to the question posed by the hon. Member for Glasgow, Govan (Mr. Sillars) about consultation with the minor Churches, including non-Christian denominations. The Minister nods. Does he recall that that point was pressed vigorously in Committee by several hon. Members, and that he undertook to begin that consultation?
  To which bodies did the Minister write? To which non-Christian denominations did he write? When did he write to them? What length of time did he give them to reply? My hon. Friend the Member for Dundee, East (Mr. McAllion) said that the Unitarian Church had expressed concern about the Bill, but it appears from the Minister's

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  press release that it did not take the opportunity to reply. Perhaps it did not have sufficient time to do so. The Government have a bad record on the way in which they consult—it is often done in a manner designed to create the least possible dissent from their views.
  4.45 pm
  Lord James Douglas-Hamilton: Some hon. Members have questioned the disapplication of the provision for exempted religious bodies. All religious bodies would probably view the question of what criteria should be used in the appointment of their members to offices in their organisations as a matter for them. We felt that it was necessary to recognise the legitimate interest of religious bodies, and we have therefore retained the provision for such bodies. We have incorporated the two-tier supervisory structure. That will provide the public with the necessary reassurance that the religious bodies will apply their own tests of reasonableness within their own structures. We believe that they will make decisions in which their members and the public can have confidence. Any religious body, on the introduction of a two-tier structure, can obtain the benefit of the exemption provisions.
  The hon. Member for Dundee, East (Mr. McAllion) referred to the Unitarian Church. It is ruled out because it does not have a two-tier structure. It is a member of the Scottish Churches Committee, which supports the clause, although the Unitarian Church may not. The Society of Friends would not meet the criteria. It may, however, be a recognised English body. Following consultation, it is clear that the religious bodies, especially the Scottish Churches Committee, strongly support the provision.
  The question posed by the hon. Member for Glasgow, Govan (Mr. Sillars) concerns me. I have every reason to believe that there is no impediment to giving Muslims recognition under subsection (1)(b). We explained to all the bodies consulted exactly what the clause contained.
  The hon. Member for Glasgow, Garscadden (Mr. Dewar) mentioned the keeping of accounts. That is covered in subsection (2)(c), which requires that
  "the internal organisation of the body is such that one or more authorities in Scotland exercise supervisory and disciplinary functions in respect of the component elements of the body and, in particular, that there are imposed on such component elements requirements as to the keeping of accounting records and the auditing of accounts which appear to the Secretary of State to correspond"—
  that is the important word—
  "to those required by sections 3 and 4 of this Act."
  Mr. Dewar: I do not understand the meaning of the word "correspond" in this context. If the Minister is saying that the component elements will have to meet the exact same tests as those included in clauses 3 and 4, by definition the exemption is worthless. If he is saying that they do not have to meet those tests, the word "correspond" appears to have a rather peculiar definition, which he should give us.
  Lord James Douglas-Hamilton: As a rough and ready definition, the word "correspond" means "equivalent to". The point is that the Churches wish to exercise the supervision themselves. The question is whether they can be trusted to do that satisfactorily in the public interest, and I believe that they can.
  Mr. Dewar: The Minister has said something of interest, which I wish to understand. It appears that he is saying that, for the accounts and auditing procedures, he anticipates that the Secretary of State will insist on exactly the same standards as if clauses 3 and 4 applied. If so, it is not a matter of trusting the Churches, because it is the duty of the Secretary of State to be satisfied on that point and to insist upon it. The Minister is giving the Secretary of State the job of insisting that, in effect, clauses 3 and 4 are complied with. That is a distinction without merit.
  Lord James Douglas-Hamilton: I do not see why there should be any concern about the accounts. The Churches are concerned instead about whom they should appoint to the offices in question. They feel that should be a matter for them, that they should have their own supervisory arrangements, and that they can perform those functions at least as well as anybody else. They do not want the state to interfere in their affairs. Whether or not their fears are well founded, they firmly hold the convictions that they do.
  Mr. Menzies Campbell: The Minister's announcement that Quakers will not qualify under new clause 16 will come as something of a surprise to people in Scotland. That apart, the clause introduces a new limit of 3,000 persons, whereas the figure was 5,000 in Committee. Why has that change been made, and what is the purpose anyway of a qualifying figure? If the organisation fulfils the other criteria but has only 1,500 members, why should it be debarred from taking advantage of the exemption in new clause 16?
  Lord James Douglas-Hamilton: The purpose was to avoid the inevitable descent into sects. A line had to be drawn somewhere, but not so low that cults having dubious purposes would be admitted. After due consultation, it was felt that a figure of 3,000 provided a suitable dividing line at this stage—although, in my view, it could be reviewed in due course.
  The bodies that were consulted were the Hebrew congregation, the Islamic faith, Jehovah's Witnesses, the Church of Jesus Christ of the Latter Day Saints, the Society of Friends, the Salvation Army, and a variety of smaller bodies.
  Mr. Sillars: What will happen if there is a cult with 4,000 members?
  Lord James Douglas-Hamilton: That will depend on whether it satisfies the terms of the clause. I use the word "cult" advisedly. The hon. Gentleman may recall that some years ago a person who purported to be a religious leader caused a large number of young people to commit suicide. We must obviously be extremely careful, for that is not the type of activity that should be supported.
  All the Churches that I mentioned have memberships above the 5,000 limit. I remind right hon. and hon. Members that new clause 16 has the support of all the major Churches in Scotland, representing more than 1·5 million members over the age of 16. No body has made strong representations against the provisions.
  Question put and agreed to.
  Clause read a Second time, and added to the Bill.

New clause 23

  DORMANT ACCOUNTS OF CHARITIES IN BANKS ETC
  '(1) The Secretary of State may appoint a person to be the Scottish charities nominee (in this section referred to as "the nominee") who shall have the functions conferred by this section.
  (2) Where the nominee receives from a relevant institution the following information—

  (a) that every account held by the institution in the name of or on behalf of a named body is dormant; and

  (b) the amount of the balance standing to the credit of the body in each such account,

  and he is satisfied that the body is a recognised body, subsection (3) or, as the case may be, subsection (5) below shall apply as regards the body and such accounts.
  (3) Where the aggregate amount standing to the credit of the body in such accounts as are mentioned in subsection (2) above does not exceed £5,000, unless it appears to the nominee—

  (a) that a person is concerned in the management or control of the body; or

  (b) that there are circumstances relating to the body which would make it inappropriate to do so,

  he shall transfer the balance standing to the credit of the body in such accounts to such other recognised body as he may determine, having regard to the purposes of the body in whose name or on whose behalf the accounts are held and those of the body to which it is proposed to transfer the funds; and the body to which the funds are transfered under this subsection or subsection (4) below shall be entitled to apply such funds for its purposes as it thinks fit.
  (4) Where, in the case of a body to which subsection (3) above applies, the nominee is unable to ascertain the purposes of the body in whose name or on whose behalf such accounts are held, he shall transfer the balance standing in the name of the body concerned to such other recognised body as appears to him expedient.
  (5) Where the aggregate amount standing to the credit of the body in such accounts as are mentioned in subsection (2) above exceeds £5,000 or in any case to which paragraphs (a) or (b) of subsection (3) above applies, the nominee shall advise the Lord Advocate of the information received by him in respect of the body and of any other matter which appears to him to be relevant in the circumstances.
  (6) Where the Lord Advocate receives information in pursuance of subsection (5) above he shall inform the nominee—

  (a) in the case of a body which is a trust, whether he intends to exercise his power under section 11(2) of the Act to appoint new trustees to the body; or

  (b) in any case, if he intends to apply to the Court of Session for the appointment of an interim judicial factor under section 6(4)(c) of this Act,

  but if the Lord Advocate informs the nominee that he does not intend to proceed under either paragraph (a) or (b) above, subsection (3) above shall apply as regards the body and such accounts as are mentioned in subsection (2) above as if the aggregate amount of the balance referred to in subsection (3) did not exceed £5,000 and neither paragraph (a) nor (b) of that subsection applied.
  (7) Notwithstanding anything in any enactment or rule of law to the contrary, the nominee shall, by virtue of this subsection, have the right to effect any transaction (including a transaction closing the account) in relation to any account to which subsection (3) above applies; and the receipt of the nominee in respect of any funds withdrawn or transferred from an account by virtue of this subsection shall, as regards the interest of the nominee in respect of such funds, be a full and valid discharge to the relevant institution holding the account.
  (8) No liability (other than liability for a criminal offence) shall attach to the nominee in consequence of any act or omission of his in the performance of his functions under this section.
  (9) The power of the nominee to effect transactions in relation to the accounts of a body shall cease to have effect—

  (a) when the Lord Advocate notifies him of his intention to proceed under subsection (6) above;

  (b) if the relevant institution by which the accounts are held notifies the nominee that the accounts held by or on behalf of the body are no longer dormant; or

  (c) where the nominee becomes aware of the identity of a person concerned in the management or control of the body, when he informs the institution of that fact,

  and in any case to which paragraph (c) above applies, the nominee shall also inform the Lord Advocate of that fact.
  (10) The Secretary of State may, by regulations made under this section—

  (a) make provision as to the procedure to be followed by the nominee in exercising his powers under this section;

  (b) require the nominee to make to the Secretary of State an annual report as regards the exercise of his functions and such regulations may specify the form and content of such report; and the Secretary of State shall lay a copy of such report before each House of Parliament;

  (c) prescribe the circumstances in which and the extent to which the nominee may apply any interest accruing to any account as regards which subsection (3) above applies during any period for which he is entitled to effect transactions in respect of the account for the purpose of defraying his expenses in connection with the exercise of his functions under this section;

  (d) require the nominee to keep accounts as regards his outlays and expenses in connection with the exercise of his functions under this section; and

  (e) amend subsections (3) and (5) above by substituting a different figure for the figure for the time being mentioned in those subsections.

  (11) Where every account held by or on behalf of a body which appears to a relevant institution to be a recognised body is a dormant account, no obligation of confidentiality or requirement of secrecy (whether imposed by any enactment or rule of law or otherwise) shall prevent the institution from supplying to the nominee information such as is mentioned in subsection (12) below.
  (12) Information referred to in subsection (11) above is information relating to any account such as is mentioned in that subsection above which consists of any of the following:—

  (a) the amount of the balance of the account as at the date the information is supplied;

  (b) the last date on which a transaction (other than a transaction consisting only of the accrual of interest to the account) was effected in relation to the account;

  (c) so far as is known to the institution, the terms of the trust deed or other document constituting the body or any information as to the nature of the purposes of the body.

  (13) For the purpose of this section—

  (a) a "relevant institution" is—

  (i) an institution which is authorised by the Bank of England to operate a deposit-taking business under Part I of the Banking Act 1987;

  (ii) a building society which is authorised by the Building Societies Commission under section 9 of the Building Societies Act 1986 to raise money from its members;

  (iii) such other institution mentioned in Schedule 2 to the Banking Act 1987 as the Secretary of State may, by regulations made under this section, prescribe;

  (b) an account is dormant if—

  (i) in the period of ten years preceding the date on which the institution reviews the account, no

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  transaction (other than a transaction consisting only of the accrual of interest to the account) has taken place in respect of the account; and

  (ii) the institution has no knowledge of the identity of any person concerned in the management or control of the body in whose name or on whose behalf the account is held.'.—Lord James Douglas-Hamilton.]

  Brought up, and read the First time.
  Madam Deputy Speaker (Miss Betty Boothroyd): With this it will be convenient to debate Government amendments Nos. 90 and 91.
  Lord James Douglas-Hamilton: In Committee, the hon. Member for Cunninghame, North (Mr. Wilson) tabled an amendment which would have required banks to identify accounts of recognised bodies which had lain unused and to require the Inland Revenue to list such bodies. The object of the hon. Member's clause was for moribund charitable funds to be brought back into use. That principle was warmly supported by Committee members, and I gave the hon. Member an assurance that I would explore with the banks how such moneys might be brought back into charitable use.
  The Committee of Scottish Clearing Bankers and the Building Societies Association have been co-operative in exploring how moribund charitable funds might be brought into use. We propose to remove any duty of confidentiality from the relevant institution in respect of dormant accounts and to enable them to inform an authorised person—the Scottish charities nominee—of such accounts. They will pass to the nominee details of the account holders' funds, and information as to the founding document. The nominee is to be satisfied that the account holders are recognised bodies. He will be concerned only with those which are recognised bodies. The nominee will have a right to effect transactions in respect of accounts.
  The nominee will take different actions according to whether the aggregate amount in the account is £5,000 or less, or more than £5,000. Where the amount is £5,000 or less, subsection (3) procedures provide that the nominee may transfer the balance to such other recognised body as he may determine, having regard to the purposes both of the moribund body and of the body to which he transfers the funds. In many instances, the amounts will be small, and it will not be economically viable to appoint new trustees. Frequently, trust deeds will not be located and therefore there will be no means of appointing trustees. The important consideration is that the money is made available for charitable use, so he is empowered under subsection (4) to transfer funds to such other recognised body as appears to him expedient.
  Subsection (5) relates to accounts with funds amounting to more than £5,000 and to cases under subsection (3)(a) and (b). Under that subsection, the nominee is to advise the Lord Advocate of the information received from the relevant institution about the body together with any other relevant matter. Under the powers of clause 11(2) and clause 6(4), the Lord Advocate is able to appoint trustees or to apply for the appointment of an interim judicial factor. Where the Lord Advocate does not so act, the nominee shall dispense the funds in the same way as those under £5,000.
  Subsection (10) empowers the Secretary of State to make certain provisions by regulations. They include the procedures to be followed by the nominee in exercising his
  1078
  powers, in reporting annually to the Secretary of State. They also require him to keep accounts under subsection (10), and the Secretary of State is to lay a copy of the report before each House of Parliament.
  The functions of the nominee must be paid for. Subsection (10)(c) enables my right hon. and learned Friend to prescribe the circumstances in which, and the extent to which, the nominee may apply any interest accruing during the period when he may effect transactions. Such interest would be used for defraying the nominee's expenses. There will therefore be no public expenditure implications.
  Power for the relevant institutions to report to the nominee are included in subsections (11) and (12). Clause 11 removes any duty of confidentiality while subsection (12) sets out the information to be provided to the nominee. I have received an assurance from the banks that their branches will undertake routine periodical trawls of dormant accounts to identify any that they believe fall within the definition of "recognised body". The institutions have assured me that they will make every effort to identify moribund charitable accounts and will make particular efforts to identify accounts with balances in excess of £50. Below that figure, the cost of the efforts involved in addressing the matters becomes a balancing factor, but they have undertaken to use their best endeavours.
  Given the assurances and co-operation of the relevant institutions, I am confident that this new provision will prove a very worthwhile innovation in ensuring that good use is made of charitable funds.
  Sir Nicholas Fairbairn: The criteria in subsection (13)(b) are very rigid, referring to
  "the period of ten years preceding the date on which the institution reviews the account"
  and to the institution having
  "no knowledge of the identity of any person concerned in the management or control of the body".
  Ten years seems to me to be an arbitrary period. Surely it should be that if the institution has lost contact with any person concerned with the body's management, the funds will be considered dormant in those circumstances.
  Lord James Douglas-Hamilton: I sympathise with the point that my hon. and learned Friend makes. We entered into detailed negotiations with the banks, and new clause 23 is drafted in such a way as to ensure that it can be effectively implemented. The spirit of the amendment proposed by the hon. Member for Cunninghame, North has been honoured; although a slightly different approach has been taken, nevertheless substantially the same objective is achieved in bringing funds into use. I am grateful to the hon. Member for Cunninghame, North for raising the matter and I hope that the House will support the clause.
  Mr. Wilson: This is probably the first evidence I have seen since entering the House of a good idea—if I can claim that for it—being translated into legislation. I am grateful to the Minister and to his civil servants for the work that has gone into producing what I hope is a useful reform, and one that was not conceived of at any stage of the Bill.
  Scotland will be taking the lead with this interesting innovation, and if it proves half as relevant as was suggested in Committee, it may be viewed with envy by other parts of the United Kingdom. In Committee, I

  1079
  qualified the value of my proposal but said that it could be useful in some cases—but as other members contributed their anecdotes, the suspicion grew that perhaps we were on to something much bigger than I had realised at the outset. It remains to be seen just how substantial that innovation will be.
  The basic point, which I shall reiterate for hon. Members who were not on the Committee, is that in my experience and in random contacts and researches in every rural and urban community in Scotland, there are funds which were raised for some specific purpose and which, for all sorts of historical reasons, have fallen into dereliction. In some cases, those funds have lain in banks for many years and no one knows that they are there: their purpose and the people who administered them have become lost in the mists of time.
  I shall follow this matter with considerable interest to see if we shall uncover something big or whether the funds are more modest.
  5 pm
  Sir Nicholas Fairbairn: I congratulate the hon. Gentleman on achieving the amendment. Many private accounts which were set up by or for people who are now dead, must be sitting in the coffers of banks. Perhaps he would like to table another amendment to the next law reform Bill to deal with those.
  Mr. Wilson: I should be so lucky. However that is a good point, and the hon. and learned Gentleman may recall that one of his English colleagues said in Committee that a Select Committee had discovered that literally tens of millions of pounds were being held in accounts on behalf of people who had gone into mental institutions or similar places. Money in bank accounts which to all intents and purposes have become defunct could amount to a great deal. We are taking the first step in Scotland, and I warmly welcome it.
  For my own clarification, as I am sure the Minister has attempted to meet the spirit of the original amendment, I shall ask him two questions—the first about the term "recognised bodies". As more than a few months have intervened, I have perhaps become hazy about all the debates that we had about recognised bodies, but in practical terms, are we talking about the type of organisation established perhaps 100, 50 or 30 years ago—in most cases pre-war—when the definitions of a recognised or non-recognised body were not current, as they have only recently become?
  Within the terms of the clause, will the phrase "recognised bodies" give the nominee access to the type of accounts which I have described? That question is purely for information, as the answer obviously could transform the situation, and I might have to withdraw everything good I said if that is not the case.
  Lord James Douglas-Hamilton: The answer is yes.
  Mr. Wilson: That is excellent; I shall withdraw nothing.
  Secondly, I should like clarification about the public availability of information given to the nominees. I should have thought that to some extent the activities of the nominee should be demand-led. If a village hall is to be built, and folk can check up and find that there is a 50-year-old village hall fund which no-one knew anything
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  about, then that is clearly better than having to wait for the nominee to tell them at some random time that such a fund exists. Will there be public access to the information that the nominee obtains?
  Lord James Douglas-Hamilton: Is the hon. Gentleman aware that the nominee will have to publish an annual report and from time to time may have to advertise information depending upon the situation, and that that matter is currently being looked into?
  Mr. Wilson: I know about the annual report and I welcome it, but it will deal with what has been done in the past year, rather than list funds and give an idea of what the nominee may do. However, I am happy to leave the matter there. Clearly, once a register of such funds is established, there should be public access to it.
  I do not want to delay the House, and I am delighted with what the Minister has done. I am perfectly happy with the mechanisms drawn up to bring this into effect. We shall know within a year or two whether the measure will be substantial. The important thing is the certainty that, in some communities in Scotland, money which would not previously have been available for useful purposes, which was given for useful purposes, will be unlocked because of the new clause. In that spirit, I thank the Minister for his efforts.
  Madam Deputy Speaker: Does the Minister wish to respond before I put the Question? He does not have to, as there seems to be a degree of agreement.
  Lord James Douglas-Hamilton: No.
  Question put and agreed to.
  Clause read a Second time, and added to the Bill.

New clause 7

  DUTIES OF COMMISSIONERS OF INLAND REVENUE
  'If any person requests from the Commissioners the name of any recognised body or other information relating to that body set out in section 1(1)(b) of this Act it shall be the duty of the Commissioners to supply that information in so far as it is in their possession.'—[Mr. Dewar.]
  Brought up, and read the First time.
  Mr. Dewar: I beg to move, That the clause be read a Second time.
  A minute ago, Madam Deputy Speaker, you referred to a degree of agreement. I guess that that will not exist with this new clause. I fear that the gap between myself and the Minister over this clause is unbridgeable.
  I regard this clause as a matter of some importance, because I hate to think how many hours we spend discussing the first 13 clauses of the Bill in Committee. As every hon. Member who has taken even a passing interest in the Bill will know, in those 13 clauses we have erected an extraordinarily complex machinery of control and scrutiny.
  We considered rules for accountants and auditors, and the powers of investigation of the Lord Advocate and the Court of Session, and we immersed ourselves in the world of recognised bodies, non-recognised bodies, registered charities and non-registered charities operating in Scotland, and in the problem of what constituted a Scottish charity, which greatly interested us. Many of those bodies had inescapable duties laid upon them, carrying the full force of the law. All that hung on the peg

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  of a new definition of charity, and a new availability of information about charities existing in Scotland which was to come from the Commissioners of Inland Revenue.
  What astonished me, and no doubt other hon. Members, in Committee was that, although we were laying down duties for members of charitable organisations, we were laying no duty upon the Commissioners of Inland Revenue to make the basic information available about whether a charity was recognised for tax purposes.
  That was a key matter, because the writ of the Charity Commissioners does not run in England. There is no register of charities which one can consult at present. We were going to put that right by giving people the opportunity to obtain information about who or what is registered for tax purposes as a charity by applying for it to the Commissioner of the Inland Revenue.
  I was amazed to discover, in part I, clause 1(i) of the Bill that there is
  "No obligation as to secrecy or other restriction upon the disclosure of information imposed by statute or otherwise shall prevent the Commissioners of Inland Revenue (in this section referred to as "the Commissioners") from disclosing … to any person who requests it, the name of any recognised body and the address last used by the Commissioners for any communication with the body and the year when such communication occurred."
  The Minister explained that he did not wish to make it a duty to give us such information. After all, the Inland Revenue might be in difficulties—presumably it might be in the middle of some cost-cutting exercise or have a difficulty over staff. In theory, because there is no duty to provide information in the Bill, one is merely removing an inhibition that might prevent it from giving such information.
  If I turned up and said that I wanted to find out about body X, and whether it is recognised as such, as defined in part I of the Law Reform (Miscellaneous Provisions) (Scotland) Bill, the Commissioners of Inland Revenue might say that, for various reasons, they had fallen behind with their work in compiling the records, they are hard pressed and, in one way or another, it is not very convenient; and they could ask me to go away and come back at some future date. Legally, there will be no reason why they should not do that.
  The Minister will no doubt say, "It won't be like that; the CIR will carry out their part of the bargain." But there is no legal imperative that they should do so. That is an unsatisfactory state of affairs, which new clause 7 seeks to put right.
  We are erecting a complicated system around the duty to disclose which, it turns out, does not apply to the CIR. For example, let us consider the duty of a recognised body to make available on request to any member of the public an explanatory document setting out its aims and objectives. If it delays for more than one month in doing so, a complaint can be lodged with the Lord Advocate. If such complaint is lodged with him, then it may be noted for the purposes of clause 1(2). That is all posited on the assumption that there will be disclosure by the CIR.
  I take the simple view that it would make this whole construction a good deal more logical and understandable to everyone concerned if we imposed upon the CIR the duty of disclosure, as explained and described in clause 1. I hope, therefore, that the Minister will accept new clause 7. It is simple and straightforward and seems to me to provide justice to both parties to the bargain.
  Mr. Menzies Campbell: I support, as I did in Committee, the observations of the hon. Member for Glasgow, Garscadden (Mr. Dewar). When we create a sophisticated and, in some respects, an extremely onerous system for the regulation of charities in Scotland, a system which contains a number of explicit responsibilities and duties which we have not shrunk from spelling out in substantial—some would say overly substantial—detail, it is ludicrous to send this part of the Bill on its way if it does not contain an express duty to permit disclosure of the information that clause 1 is designed to elicit. As has been forcefully pointed out, if there is no duty, then, for any reason which may appear to be appropriate to the Commissioners of Inland Revenue, they may decline to make available the information that this part of the Bill is designed to give public currency.
  The Minister endeavoured in Committee—in my judgment, hardly successfully—to provide justification for the absence of that duty. He will remember that the way in which the relevant part of the Bill is framed creates a right for the CIR not be be bound by what is otherwise the universal rule of confidentiality. Even that came under scrutiny in Committee. The fundamental and central issue is whether the CIR are obliged to make information available. The absence of a duty of the kind that the new clause seeks to impose would make a substantial part of what this part of the Bill endeavours to bring about unattainable. I hope, therefore, that the Minister will be willing to accept the new clause or, if he is not prepared to do that, to give a better explanation for not doing so than he tendered in Committee.
  Lord James Douglas-Hamilton: Clause 1 rightly overrides the Inland Revenue's confidentiality rules, and empowers the Inland Revenue to disclose to the public the names and addresses of Scottish bodies that it recognised as charities for tax purposes. The new clause tabled by the hon. Member for Glasgow, Garscadden (Mr. Dewar) would place a statutory duty on the Inland Revenue to disclose that information.
  The new clause returns to a point that we discussed in Committee. I undertook then to consider what was practicable. I understand why the hon. Gentleman has raised the point, and I have considered it with great care. However, I am afraid that his new clause would lead to some practical problems. I think that the arrangements already provided for by clause 1 will work satisfactorily.
  It may help hon. Members who were not on the Standing Committee if I explain how the arrangements for public information will work. Once clause 1 comes into operation, members of the public will be able to ask the Inland Revenue's claims branch in Edinburgh whether particular Scottish bodies have been recognised as charities for tax purposes. Inquiries can be made either in writing or by telephone. The public will also be able to go to the claims branch office at Trinity Park house in Edinburgh and inspect a list of Scottish bodies which have been recognised as charities and which have been in contact with the Inland Revenue within the last 20 years. The list is likely to include about 15,000 charities and will be updated regularly.
  The Bill also gives the public the right to obtain further information about the charities direct from the charities themselves. Thus, members of the public will be able to have access to useful information which is not at present

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  publicly available. Furthermore, if there is sufficient demand for the microfiche, it will be made available in other public places.
  5.15 pm
  We have to bear in mind the fact that the Inland Revenue's records of charities date back to the 19th century. They were designed to meet the needs of tax administration, rather than as a public index. There are many cases where a Scottish body asks the Inland Revenue whether it qualifies as a charity for tax purposes, but it seldom, if ever, makes an actual claim to tax exemption later, because it does not receive the particular types of income on which it would need to claim a tax repayment.
  When a charity is wound up, it does not necessarily have to notify the Inland Revenue, so the Inland Revenue's index of charities will include many bodies which were recognised as charities many years ago but which no longer exist, or which have long since moved from their original address.
  Some inquirers may ask the Revenue about only one or two charities, but others may ask about a substantial number, or inspect the whole list. In that case, the new clause would in effect place a duty on the Revenue to provide a list of all Scottish charities ever recognised, which would mean going back very many years.
  Mr. Tam Dalyell: Is the Minister sure that he is right when he says that a charity does not have to inform the Inland Revenue if it is wound up? I recollect a Finance Bill—I cannot put a date on it because I sat on a number of Committees that considered Finance Bills—that discussed charity law in great detail. The Inland Revenue claimed that it found out the very moment when a charity ceased to operate. This is tied up tightly with charity law.
  Lord James Douglas-Hamilton: If registered, that would certainly be the case. I have received briefing not only from Scottish Office officials but also from the Inland Revenue on this point.
  The point that I am making is that much of the information included in such a list would be out of date. That would be unhelpful, and indeed positively misleading, to the public. That is why we propose that the list available for inspection will include only bodies which have had contact with the Revenue within the last 20 years. If an inquiry is made about a particular named body, it will of course be possible for the Inland Revenue to check back to their earlier records; and, of course, charities which are still active but have not been in touch with the Inland Revenue for more than 20 years can contact the Revenue again and ensure that they are included in the list.
  It is also possible that some small local charities will not be recorded in the central list at the claims branch because, at some time in the past, they have been dealt with by a local tax office which has consulted the claims branch informally. If any such bodies come to light, they can of course be added to the claims branch list, but if the Inland Revenue was put under a statutory duty, as the new clause proposes, it would have to make a comprehensive search of all local office files before the system came into operation, in order to ensure that it could comply with the duty. That would involve disproportionate work and expense.
  1084
  For all these reasons, I think that the new clause would be undesirable and would lead to practical problems. I can assure the House that the Inland Revenue will provide the information which clause 1 empowers it to do in the way I have already explained. I therefore hope that the hon. Gentleman will not feel that it is necessary to press his new clause.
  Mr. Dewar: I am sorry to disappoint the Minister, but I cannot say that my doubts have been swept away. He made the point that members of the public have a right, which cannot be defeated, to request information in the form of an explanatory document from a charity. It is odd, therefore, that members of the public should not have the right to request from the Commissioners of Inland Revenue essential information that would establish whether the body from which they might wish to require further information has charitable status.
  I was not impressed by the Minister's remarks. I am sure that the Commissioners of Inland Revenue will attempt to be helpful when they can, but I do not see why they alone should be left with a power of discretion that is not allowed to any of the other parties under part I of the Bill.
  New clause 7 is not immodestly drawn; it merely insists that there should be a duty on the commissioners to give
  "the name of any recognised body or other information relating to that body set out in section 1(1)(b) of this Act."
  We are suggesting not that they produce something that is not available to them on their records but merely that they ensure that the information on those records is available. If a local charity has never been recorded at central headquarters and has slipped through the net, its name cannot be produced. We are laying on them a duty to give information that is available and is on their records, to guard against the possibility that for some reason they will either allow the matter to slip, exercising their discretion, or will not make the information available.
  I cannot say that the Minister has reassured me. I do not think that his objections to the new clause are substantial, and I intend to press it.
  Lord James Douglas-Hamilton: I want to be clear that I did not mislead the hon. Member for Linlithgow (Mr. Dalyell). He asked whether charities have a need to inform the Revenue. The answer is that they do not need to do so for tax purposes, but they must give information on tax as required by the Revenue.
  Question put, That the clause be read a Second time:—
  The House divided: Ayes 141, Noes 184.

  Division No. 317]

  [5.21 pm

  AYES

  Abbott, Ms Diane

  Campbell, Ron (Blyth Valley)

  Allen, Graham

  Campbell-Savours, D. N.

  Archer, Rt Hon Peter

  Canavan, Dennis

  Ashdown, Rt Hon Paddy

  Clark, Dr David (S Shields)

  Banks, Tony (Newham NW)

  Clarke, Tom (Monklands W)

  Barnes, Harry (Derbyshire NE)

  Clwyd, Mrs Ann

  Barnes, Mrs Rosie (Greenwich)

  Cohen, Harry

  Barron, Kevin

  Coleman, Donald

  Battle, John

  Cook, Robin (Livingston)

  Bell, Stuart

  Cousins, Jim

  Bennett, A. F. (D'nt'n & R'dish)

  Crowther, Stan

  Bidwell, Sydney

  Cryer, Bob

  Blunkett, David

  Cummings, John

  Bray, Dr Jeremy

  Cunliffe, Lawrence

  Bruce, Malcolm (Gordon)

  Cunningham, Dr John

  Callaghan, Jim

  Dalyell, Tam

  Campbell, Menzies (Fife NE)

  Darling, Alistair

  1085

  Dewar, Donald

  Michie, Mrs Ray (Arg'l & Bute)

  Dixon, Don

  Moonie, Dr Lewis

  Dobson, Frank

  Morgan, Rhodri

  Doran, Frank

  Morley, Elliot

  Duffy, A. E. P.

  Morris, Rt Hon J. (Aberavon)

  Dunnachie, Jimmy

  Murphy, Paul

  Ewing, Harry (Falkirk E)

  Nellist, Dave

  Ewing, Mrs Margaret (Moray)

  Oakes, Rt Hon Gordon

  Fairbairn, Sir Nicholas

  O'Brien, William

  Fearn, Ronald

  O'Neill, Martin

  Field, Frank (Birkenhead)

  Orme, Rt Hon Stanley

  Fields, Terry (L'pool B G'n)

  Owen, Rt Hon Dr David

  Flannery, Martin

  Patchett, Terry

  Flynn, Paul

  Pike, Peter L.

  Foster, Derek

  Powell, Ray (Ogmore)

  Fyfe, Maria

  Primarolo, Dawn

  Galbraith, Sam

  Radice, Giles

  George, Bruce

  Richardson, Jo

  Godman, Dr Norman A.

  Robertson, George

  Griffiths, Win (Bridgend)

  Robinson, Geoffrey

  Hattersley, Rt Hon Roy

  Rogers, Allan

  Haynes, Frank

  Rooker, Jeff

  Heal, Mrs Sylvia

  Rowlands, Ted

  Hinchliffe, David

  Ruddock, Joan

  Hogg, N. (C'nauld & Kilsyth)

  Salmond, Alex

  Home Robertson, John

  Sheerman, Barry

  Howarth, George (Knowsley N)

  Sheldon, Rt Hon Robert

  Howells, Geraint

  Sillars, Jim

  Howells, Dr. Kim (Pontypridd)

  Skinner, Dennis

  Hughes, John (Coventry NE)

  Smith, C. (Isl'ton & F'bury)

  Hughes, Robert (Aberdeen N)

  Snape, Peter

  Ingram, Adam

  Soley, Clive

  Janner, Greville

  Steel, Rt Hon Sir David

  Jones, Barry (Alyn & Deeside)

  Steinberg, Gerry

  Jones, Ieuan (Ynys Môn)

  Stott, Roger

  Kaufman, Rt Hon Gerald

  Strang, Gavin

  Kennedy, Charles

  Thomas, Dr Dafydd Elis

  Kinnock, Rt Hon Neil

  Turner, Dennis

  Kirkwood, Archy

  Vaz, Keith

  Lestor, Joan (Eccles)

  Wallace, James

  Lofthouse, Geoffrey

  Walley, Joan

  McAllion, John

  Wardell, Gareth (Gower)

  McAvoy, Thomas

  Wareing, Robert N.

  McCartney, Ian

  Watson, Mike (Glasgow, C)

  McKay, Allen (Barnsley West)

  Welsh, Andrew (Angus E)

  McKelvey, William

  Williams, Rt Hon Alan

  McLeish, Henry

  Williams, Alan W. (Carm'then)

  Maclennan, Robert

  Wilson, Brian

  Madden, Max

  Winnick, David

  Mahon, Mrs Alice

  Wise, Mrs Audrey

  Marek, Dr John

  Worthington, Tony

  Marshall, David (Shettleston)

  Young, David (Bolton SE)

  Marshall, Jim (Leicester S)

  Maxton, John

  Tellers for the Ayes:

  Michael, Alun

  Mr. Ken Eastham and

  Michie, Bill (Sheffield Heeley)

  Mr. John McFall.

  NOES

  Alexander, Richard

  Burt, Alistair

  Alison, Rt Hon Michael

  Butler, Chris

  Amess, David

  Carrington, Matthew

  Arbuthnot, James

  Chapman, Sydney

  Arnold, Jacques (Gravesham)

  Clark, Sir W. (Croydon S)

  Arnold, Sir Thomas

  Clarke, Rt Hon K. (Rushcliffe)

  Aspinwall, Jack

  Conway, Derek

  Baker, Rt Hon K. (Mole Valley)

  Coombs, Anthony (Wyre F'rest)

  Batiste, Spencer

  Coombs, Simon (Swindon)

  Bennett, Nicholas (Pembroke)

  Cormack, Patrick

  Bonsor, Sir Nicholas

  Currie, Mrs Edwina

  Boscawen, Hon Robert

  Davies, Q. (Stamf'd & Spald'g)

  Boswell, Tim

  Davis, David (Boothferry)

  Bottomley, Peter

  Day, Stephen

  Bowden, Gerald (Dulwich)

  Devlin, Tim

  Bowis, John

  Dicks, Terry

  Braine, Rt Hon Sir Bernard

  Douglas-Hamilton, Lord James

  Brazier, Julian

  Dunn, Bob

  Browne, John (Winchester)

  Durant, Tony

  Buck, Sir Antony

  Evennett, David

  Budgen, Nicholas

  Fenner, Dame Peggy

  Burns, Simon

  Field, Barry (Isle of Wight)

  1086

  Fishburn, John Dudley

  Mills, Iain

  Fookes, Dame Janet

  Mitchell, Andrew (Gedling)

  Forman, Nigel

  Mitchell, Sir David

  Forsyth, Michael (Stirling)

  Monro, Sir Hector

  Forth, Eric

  Morris, M (N'hampton S)

  Fowler, Rt Hon Sir Norman

  Morrison, Sir Charles

  Fox, Sir Marcus

  Morrison, Rt Hon P (Chester)

  Franks, Cecil

  Mudd, David

  Freeman, Roger

  Neale, Gerrard

  French, Douglas

  Neubert, Michael

  Fry, Peter

  Newton, Rt Hon Tony

  Gardiner, George

  Nicholson, David (Taunton)

  Gill, Christopher

  Norris, Steve

  Glyn, Dr Sir Alan

  Onslow, Rt Hon Cranley

  Goodhart, Sir Philip

  Oppenheim, Phillip

  Goodlad, Alastair

  Paice, James

  Goodson-Wickes, Dr Charles

  Patnick, Irvine

  Gorman, Mrs Teresa

  Patten, Rt Hon Chris (Bath)

  Greenway, Harry (Ealing N)

  Pawsey, James

  Greenway, John (Ryedale)

  Porter, Barry (Wirral S)

  Griffiths, Peter (Portsmouth N)

  Porter, David (Waveney)

  Ground, Patrick

  Price, Sir David

  Grylls, Michael

  Raison, Rt Hon Timothy

  Hamilton, Neil (Tatton)

  Renton, Rt Hon Tim

  Hanley, Jeremy

  Rhodes James, Robert

  Hannam, John

  Riddick, Graham

  Hargreaves, A. (B'ham H'll Gr')

  Ridsdale, Sir Julian

  Hargreaves, Ken (Hyndburn)

  Rifkind, Rt Hon Malcolm

  Harris, David

  Ryder, Richard

  Hayes, Jerry

  Sackville, Hon Tom

  Hayward, Robert

  Sayeed, Jonathan

  Hicks, Mrs Maureen (Wolv' NE)

  Shaw, David (Dover)

  Higgins, Rt Hon Terence L.

  Shaw, Sir Michael (Scarb')

  Hill, James

  Sims, Roger

  Hind, Kenneth

  Skeet, Sir Trevor

  Holt, Richard

  Smith, Sir Dudley (Warwick)

  Hordern, Sir Peter

  Speed, Keith

  Howard, Rt Hon Michael

  Speller, Tony

  Howe, Rt Hon Sir Geoffrey

  Spicer, Sir Jim (Dorset W)

  Howell, Rt Hon David (G'dford)

  Squire, Robin

  Howell, Ralph (North Norfolk)

  Stern, Michael

  Hughes, Robert G. (Harrow W)

  Stewart, Allan (Eastwood)

  Hunter, Andrew

  Stewart, Andy (Sherwood)

  Jack, Michael

  Sumberg, David

  Janman, Tim

  Taylor, Ian (Esher)

  Johnson Smith, Sir Geoffrey

  Taylor, John M (Solihull)

  Jones, Gwilym (Cardiff N)

  Thompson, D. (Calder Valley)

  Jones, Robert B (Herts W)

  Thompson, Patrick (Norwich N)

  Kellett-Bowman, Dame Elaine

  Thornton, Malcolm

  Kilfedder, James

  Tracey, Richard

  King, Roger (B'ham N'thfield)

  Tredinnick, David

  King, Rt Hon Tom (Bridgwater)

  Trotter, Neville

  Kirkhope, Timothy

  Twinn, Dr Ian

  Knapman, Roger

  Viggers, Peter

  Knight, Greg (Derby North)

  Waddington, Rt Hon David

  Knight, Dame Jill (Edgbaston)

  Walden, George

  Lang, Ian

  Walker, Bill (T'side North)

  Latham, Michael

  Ward, John

  Lawrence, Ivan

  Watts, John

  Lester, Jim (Broxtowe)

  Wheeler, Sir John

  Lightbown, David

  Widdecombe, Ann

  Lord, Michael

  Wiggin, Jerry

  McCrindle, Robert

  Wilkinson, John

  MacKay, Andrew (E Berkshire)

  Winterton, Mrs Ann

  McNair-Wilson, Sir Michael

  Winterton, Nicholas

  McNair-Wilson, Sir Patrick

  Woodcock, Dr. Mike

  Malins, Humfrey

  Yeo, Tim

  Mans, Keith

  Young, Sir George (Acton)

  Maples, John

  Marshall, John (Hendon S)

  Tellers for the Noes:

  Martin, David (Portsmouth S)

  Mr. Nicholas Baker and

  Mellor, David

  Mr. Timothy Wood.

  Question accordingly negatived.

New clause 12

  CODE OF PRACTICE
  '(1) It shall be the duty of the Secretary of State, before the end of the period of one year beginning with the passing of this Act, to prepare in draft a code of practice containing such practical guidance as in the opinion of the Secretary of State would be helpful for the purposes of Part I of this Act.
  (2) Such a draft shall in particular contain guidance—

  (a) on the proper procedures and administrative arrangements for a charitable body, and

  (b) on the provision of information to the public by a charitable body regarding its activities and purposes.

  (3) The Secretary of State shall, before the end of the period of one year beginning with the passing of this Act, lay before both Houses of Parliament a draft of the code of practice prepared by him under subsection (1) above, to be approved by resolution of both Houses.
  (4) The Secretary of State may from time to time revise the whole or any part of a code of practice brought into effect under this section, provided that such revisions are laid before, and approved by, resolutions of both Houses of Parliament.
  (5) A failure on the part of any person to observe any provision of a code of practice which is for the time being in force shall not of itself render him liable to any proceedings; but in any proceedings under this or any other Act—

  (a) any such code shall be admissible in evidence, and

  (b) any provision of such a code of practice which appears to the Court to be relevant to any question arising in the proceedings shall be taken into account by the Court in determining that question.'.—[Dr. Godman.]

  Brought up, and read the First time.
  5.30 pm
  Dr. A. Godman: I beg to move, That the clause be read a Second time.
  My code of conduct is designed with the specific aim of giving guidance to those seeking to set up charities, as well as advising them of the need to adhere to the complicated rules and regulations that are outlined in part I. My hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar) said a few minutes ago that we are faced by an extraordinarily complicated structure of rules and regulations for charities. He is right.
  In part I, for example, the topics range from clause 1,
  "Information as to recognised charities",
  to:
  "Duty to keep accounting records",
  "Annual accounts and report".
  and the role of the Lord Advocate in this scheme of things, which is dealt with in clause 5. The role of the Court of Session is outlined in clause 6. Clause 7 is concerned with the disqualification of persons concerned in the management of such bodies. We all know that, occasionally, the odd character happens on a charity and exploits it in his own nefarious interests. There is also an important clause, clause 9, concerned with small charities.
  There is a need for a code of conduct for small charities. I remind the Minister and the House of the Industrial Relations Act 1971. I think that it came into force on 28 February 1972, as you would know, Madam Deputy Speaker. That labour law was dreadful in itself, but its one redeeming feature was the code of practice that was introduced with it. It was aimed largely at small companies that were unfamiliar with the formal processes of collective
  1088
  bargaining. I put it to the Minister that small charities are in a position with this Bill analogous to that of the small firms confronted with the code of practice in 1972. I hope that this provision survives longer than the Industrial Relations Act 1971 did.
  There is an important principle here. I was not in Parliament at that time. Although I was opposed to the Industrial Relations Act 1971, I welcomed the code of practice because it was a fine little document in terms of grievance and disciplinary procedures. I would argue that this legislation concerning charities—especially small charities—needs such a fine little document.
  Some people may say that there is no need for such a code of practice. I can perhaps understand the reason for such reservations, especially, for example, in respect of the fine charity with which I am involved, which was mentioned just now by my hon. Friend the Member for Falkirk, East (Mr. Ewing). Like many large and long-established charities, the Royal National Lifeboat Institution has a strict code of conduct for its various component bodies and strict rules governing its collections and other charitable activities. But often small charities are formed when a number of people come together to give sustenance to those in distress.
  For example, in my constituency, following the tragic death of a couple who died in horrible circumstances in a house fire in Port Glasgow, a number of neighbours came together with the object of raising money to provide the young daughter with sustenance and comfort. In fishing communities, in particular, people come together in the immediate aftermath of a tragedy to raise money for the dependants of those who have been lost; that is also not an unfamiliar experience in mining communities.
  I promise to be brief, Madam Deputy Speaker. I am anxious to hurry along to the new clauses dealing with children giving evidence in criminal proceedings. In passing, let me say that I am delighted with the fine, generous comments that the Minister made when he referred to those new clauses.
  We need to give guidance to small charities, because such bodies may not have the means to obtain advice from lawyers or similar professionals. A code of practice could, I think, give comfort to the individuals involved—particularly in regard to their onerous responsibilities vis-a-vis the Lord Advocate. Some of those responsibilities are entirely right and proper, but the Government must nevertheless give guidance to such bodies. I look forward to a positive response from the Minister to the new clause.
  Lord James Douglas-Hamilton: The new clause tabled by the hon. Member for Greenock and Port Glasgow (Dr. Godman) would provide guidance to charities on how to comply with the requirements of part I of the Bill. The hon. Gentleman proposes that that should be achieved by introduction of a code of practice that would require approval by resolution of both Houses of Parliament. He also proposes that such a code should not be legally binding but that where a person has failed to observe any provisions of the Bill it should be admissible in court proceedings and could be taken account of by the court in its determination.
  I sympathise with the purpose and aim of the hon. Gentleman, which is essentially to provide guidance to charities on how to comply with the requirements laid upon them by part I. I do not, however, believe that the means of providing that guidance should be as proposed in

  1089
  the new clause. I do not consider it necessary to provide a code of practice when adequate provisions are set out in the primary and secondary legislation.
  I also have some doubts about asking the court, as the new clause provides, to have regard to the code of practice in determining a question that will already have been covered in the primary legislation. That strikes me as likely to frustrate, rather than assist, determination by the courts. However, I certainly accept that the charities should have guidance on how to comply with the requirements of part I and I assure the hon. Gentleman that full guidance on that will be provided by the Scottish Home and Health Department by means of publicity, and also by circulars to recognised bodies.
  I should also mention the fact that the Scottish Council for Voluntary Organisations already provides helpful guidance to charities and it will, no doubt, continue to do so. Now that he has been given that assurance, I hope that the hon. Gentleman will not seek to press the new clause.
  Dr. Godman: The Minister is an honourable man and I am perfectly willing to accept his assurance that the provisions will be publicised. On the basis of that assurance, I beg to ask leave to withdraw the motion.
  Motion and clause, by leave, withdrawn.

Clause 1

  INFORMATION AS TO RECOGNISED CHARITIES
  Amendments made: No. 90, in page 2, line 2, leave out from 'body' to end of line 5 and insert
  'such as is mentioned in subsection (1A) below,'.
  No. 91, in page 2, line 9, at end insert:—
  '(lA) A recognised body referred to in subsection (1)(a) above is a body—

  (a) which appears to the Commissioners to be or to have been carrying on activities which are not charitable or to be or to have been applying any of its funds for purposes which are not charitable;

  (b) which is certified by the Lord Advocate as being a body in respect of which information has been provided to the Scottish charities nominee by a relevant institution in pursuance of section [Dormant accounts of charities in banks etc.] of this Act.'.—[Lord James Douglas-Hamilton.]

  Lord James Douglas-Hamilton: I beg to move Government amendment No. 1, in page 2, line 43, leave out 'conclusive' and insert 'sufficient'.
  Clause 1(7) provides that, for the purposes of any proceedings under part 1 of the Bill, a certificate signed by a person authorised to do so by the commissioners of Inland Revenue shall be "conclusive" evidence of the fact that the Revenue has recognised the body as a charity. It was suggested in Committee that the word "sufficient" would be preferable and consistent with other legislation. My hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn) had a lot to do with the amendment.
  Mr. Menzies Campbell: I welcome the fact that the Minister has shown rather more flexibility today than he did during our long passage at arms in Committee, when hon. Members on both sides of the House argued the matter quite forcefully.
  Will the Minister confirm that what is now to be legislated for is a system in which a challenge will be available to someone who seeks to challenge the accuracy of what is apparently purported to be correct by virtue of
  1090
  the provision. The argument in Committee turned on the question whether, if the evidence was conclusive, no challenge would be permitted. By substituting the word "sufficient", the Minister has opened the door to challenge in cases where that may be appropriate. That seems to me a more equitable way in which to dispose of the matter than was originally envisaged in the Bill.
  Sir Nicholas Fairbairn: I will just say that my gratitude is sufficient; it is not conclusive.
  Amendment agreed to.

Clause 2

  NON-RECOGNISED BODIES
  5.45 pm
  Lord James Douglas-Hamilton: I beg to move Government amendment No. 2, in page 3, line 3, leave out subsection (2) and insert—
  '(2) For the purposes of this Part of this Act, any body which is not—

  (a) a recognised body; or

  (b) a body which is—

  (i) registered as a charity in England and Wales under section 4 of the Charities Act 1960; or

  (ii) a charity which is not required to register by virtue of subsection (4) is a non-recognised body.'

  Madam Deputy Speaker: With this we may take Government amendment No. 13.
  Lord James Douglas-Hamilton: Clause 2(2) defines the expression "non-recognised" body. The subsection was criticised by my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn) and by my hon. Friend the Member for Ipswich (Mr. Irvine), who found the double negatives confusing. The amendment is a drafting amendment, the purpose of which is to avoid the use of multiple negatives.
  Mr. Dewar: I am sorry that the hon. Member for Ipswich (Mr. Irvine) is not with us today because, on occasion, he greatly entertained me in Committee. I certainly had a great deal of sympathy with his inability to follow the tortuous double negatives that were built into the Bill.
  Out of curiosity, I should like to engage the Minister's attention on a much smaller matter. By a happy coincidence, amendment No. 13 refers to clause 13, which states:
  "'non-recognised body' has the meaning given by section 2 of this Act".
  Amendment No. 13 would remove the words
  "has the meaning given by"
  and insert the words
  "shall be construed in accordance with"
  Can the Minister explain why that important change is proposed and what practical difference the amendment will make?
  Lord James Douglas-Hamilton: It makes for greater accuracy and clarity and would make the provision easier for the general public to interpret.
  Amendment agreed to.

Clause 5

  POWERS OF LORD ADVOCATE TO INVESTIGATE CHARITIES AND TO SUSPEND TRUSTEES
  Lord James Douglas-Hamilton: I beg to move amendment No. 3 in page 7, line 2 after 'apply' insert 'by summary application'.
  Madam Deputy Speaker: With this it will be convenient to take Government amendments Nos 4 and 5.
  Lord James Douglas-Hamilton: These amendments relate to procedural matters under clause 5. Amendment No. 3 is a simple clarifying amendment which makes it plain that application by a nominated officer to the sheriff for an order under clause 5(6) is by the summary application procedure.
  Amendment No. 4 is also a clarifying amendment. Subsection 5(6)(a) specifies that the nominated officer may apply to the sheriff for an order requiring a person to attend to answer questions and provide information at a time and place specified in the order. The insertion of the word "and" makes it clear that the order requires the person not only to attend, but also to answer questions and provide information.
  Amendment No. 5 inserts a new subsection after subsection (6). It reflects concern in Committee that a person required by a court order to provide answers to the nominated officer might be faced with the choice of obeying the order and incriminating himself by answering the questions or possibly to commit an offence by refusing to make a statement and thus breaching the court order.
  It is important to bear in mind that these are civil and not criminal proceedings. They relate to the investigation of an officer appointed by the Lord Advocate to discover whether there appears to have been misconduct or mismanagement of a charity's affairs. I recognise the concern expressed by several Committee members, including the hon. Member for Glasgow, Garscadden (Mr. Dewar), that there should be no room for doubt. The amendment makes it clear that a person must answer truthfully questions put to him by a nominated officer when an order has been made under subsection (6) and that he may not refuse to answer on grounds that his answer might incriminate him.
  The new provision that amendment No. 5 seeks to insert also makes it clear that no answer to a question under subsection (6) may be used in any subsequent criminal proceedings against the person. I believe that in practice the nominated officer will act more like a Department of Trade and Industry official than a procurator fiscal. If he asks a question and receives an apparently incriminating reply, the nominated officer will normally terminate the interview immediately and refer the matter to the Lord Advocate with a view to the matter being referred to the police for criminal investigation if an incriminating answer gave rise to questions not as to whether there had been a breach of trust, but as to a serious crime.
  Mr. Menzies Campbell: On the occasion of such a transaction as the Minister has described, does he envisage that the nominated officer would put the person summoned on oath and require him to take the oath in conventional terms like that taken by a witness giving evidence in court?
  Lord James Douglas-Hamilton: Statements to the nominated officer will not be under oath.
  Mr. Dewar: Although it is difficult with our time constraints and our inability to amend the Bill now, I would like the Minister to give us a little more help. He has already shed some light on the Government's intentions. As the Minister has said, the concern is that we have a rather cumbersome procedure whereby the Lord Advocate, having decided to inquire into a charity, appoints a nominated officer. If that nominated officer meets a refusal to co-operate, he can go to the sheriff for an order under clause 5(6) which would force the person concerned to answer questions or to furnish information at a time and place specified in the order.
  The concern was that that person might in effect be asked to incriminate himself. The Minister has explained that we are talking about civil proceedings and that nothing that is said will be admissible in evidence in any subsequent criminal proceedings.
  The position is still quite difficult. If I am being interrogated or questioned by the nominated officer, it will cause me some unease if I have to answer a question which, if I answer it honestly—we are talking about the real world here—will be written down and although it may not be used as primary evidence in any criminal proceedings, will be passed to the Lord Advocate who is, after all, instructing the nominated officer. The Lord Advocate has certain other duties of a criminal nature. Obviously I may be prejudicing my future quite considerably if I proceed to follow the advice that the Minister has given and answer the questions honestly.
  I want to be clear about what would happen if I do not answer the questions. If I say that I am very sorry, but I do not want to answer a particular question, am I caught by clause 5(7)? I have complied with the order in the sense that I have turned up and answered questions. Do I have to answer every question? If I say that, in effect, I wish to plead the Scottish equivalent of the fifth amendment, will I be caught by the penalty in clause 5(7) or would I be a person under clause 5(8)
  "who wilfully alters, suppresses, conceals or destroys and record which he may be required to furnish or transmit"?
  I should not have thought so, but what is the sanction? The person is not on oath, as the Minister has explained. He cannot be in contempt because he is not in a court although I suppose that it may be a "once removed" contempt of the order made under clause 5(6) by the sheriff.
  Apart from a sense of scout's honour which may not apply very strongly in the circumstances that I have outlined, what is to stop someone simply saying, "I've told you all that I intend to tell you and I've gone as far as I'm going"? Someone might well want to do that if he was being precognosced about the matter by the Crown Office or anyone else. I am still a little unhappy about a situation in which the Minister glibly states that someone must answer questions which of course are not admissible as evidence but which will be put on a hot line and a quick fax machine back to the Lord Advocate. That person is being placed in a position in which, apparently, he has to incriminate himself.
  Sir Nicholas Fairbairn: I am extremely worried, and the worries that I voiced in Committee have not been allayed by this, I assume, charitable attempt by the Minister to remove them.

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  The hon. Member for Glasgow, Garscadden (Mr. Dewar) has put his finger on a number of important points. With regard to this provision, we are in a nebulous state. I do not know whether the appearance is to be in public or in private, or whether members of the press or the CID are entitled to be present. There is certainly nothing in the statute to prevent their being present.
  I do not believe that the sheriff could say to someone, "You are going to be asked a question," and then have any alternative under the statute but to say, "And you've got to answer it." That is the thrust of the provision. It would take a brave fellow to say, "I have actually read the provision and I know that I've got to turn up, but I equally know that there is no provision telling me that I've got to answer." If someone is dragged along to a star chamber court and put before a judge, there is an assumption that one must answer. If I was a sheriff, I would find it difficult to know whether I was entitled to order the chap either to answer, or be prevaricating on a contempt, or to say that the chap did not have to answer.
  Mr. Menzies Campbell: The hon. and learned Gentleman is right to point to the absence of a clear indication in the Bill of what would happen in the circumstances that he has described. Has he considered the fact that the ambiguity and lack of specification in the Bill may go further than even he has imagined? The sheriff may not necessarily be involved in the proceedings after he has issued an order to a nominated officer. On the face of the Bill, it seems that, once someone becomes a nominated officer, it is up to that person to go off and examine—using the word loosely—the person against whom the order has been made. However, all that seems to be regarded as taking place away from the sheriff court and away from the presence of the sheriff. If I am right about that, the possibility of the precise difficulty to which the hon. Member for Glasgow, Garscadden (Mr. Dewar) eloquently referred seems, if anything, to be yet more likely than the circumstances that the hon. and learned Gentleman has postulated.
  Sir Nicholas Fairbairn: I am obliged to the hon. and learned Gentleman. There are terrible pitfalls which are not cured by the amendment. I had forgotten, of course, that the nominee can take someone off to a hole in the wall and cross-examine him. There is no suggestion that he needs corroboration of what that person is supposed to have said. There is no suggestion of the principles of safeguard against being misled. One has only to be involved in cases concerning customs and excise officers rather than policemen to realise how important such protections are.
  6 pm
  Apart from that, two other matters give me the greatest concern. First, is the nominee allowed to say that the press can be present so that admissions which are not admissible in evidence against the fellow can be published in the press? If that fellow says, "As a matter of fact, my granny was suffering from cancer so I just nicked all the funds before I cut the head off the beagle," and it appears in the press but is not admissible in evidence, I should not have thought that the "not admissible in evidence" provision was very helpful.
  Secondly, I am worried about the presumption of guilt which arises easily, if sometimes properly, in the minds of policemen and prosecutors. If the nominee sends along a
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  document which states that Willie Smith admits that he has been subtracting 50 per cent. of donations over the years, or any other incriminating statement, do not tell me that any prosecution will not proceed on the assumption that that is true when previously there was no evidence to suggest it. The fact that one cannot actually use those words does not help. Heaven knows, there is not an hon. Member present who does not know of cases in Scotland in which evidence was not invented to justify presumed assumptions, particularly of an alleged confession.
  The amendment is dangerous, not because the Minister is not trying to help, but because the provision does not help. The nominee can wear a knuckleduster and say, "You answer my questions or I will hit you." That might be a breach of the law. He might say, "You realise that if you do not give me the answers that I would like, you may be in severe trouble." That is not a breach of the law by a nominee. I suppose that it might he a form of assault, but he is not an officer of the law—he is trying to get the answers that he wants.
  It is a terrible path that the Lord Advocate and the courts of Scotland are being asked to tread. People collecting for charities will be subjected to a third degree from which even the most appalling terrorist would be protected.
  Mr. Harry Ewing: I approach this matter on the basis that the interviews will be held in private and that the press will not be present. Two points worry me. The first is the lack of corroboration. Will the person being interviewed be entitled to have a representative present with him at the interview and whether the person who was nominated by the sheriff will have someone with him to corroborate the interview? The law of Scotland is based on corroboration. The Minister should say something about corroboration.
  Secondly, the Minister explained what would happen in the interview. Once, in the view of the nominated person, the person being interviewed gives an incriminating answer, the nominated person would then, to use the Minister's words, immediately terminate the interview. Whether the Minister likes it or not, that would be a judgment. The nominated person would judge that the person being interviewed has made a statement that may or may not lead to criminal proceedings but which certainly merits being reported to the Lord Advocate for further investigation on the basis that criminal proceedings might follow. That is fraught with difficulties. I am not sure how that matter can be handled, and I am not happy about it.
  It seems that there will be a one-to-one situation—no corroboration. The nominated person will make a judgment the background of a statement by the person being interviewed and will immediately terminate the interview. The matter will then be sent to the Lord Advocate for further investigation. As the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn) said, that is fraught with difficulties. I know that this matter is difficult for the Minister also, but I should he grateful for further explanation of those points.
  Mr. Menzies Campbell: The difficulties that have arisen in short consideration of this matter only serve to underline the fact that, when the provisions were framed and when the additional amendment was sought to be added, there was insufficient analytical consideration of the nature of the transaction between the nominated

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  officer and the person who was summoned by virtue of an order of the sheriff. Ex facie of the Bill, the sheriff, having pronounced his order, is functus—he no longer has part in the proceedings. The nominated officer goes off with the order. It is as though an attempt had been made to add to the procedure known as commission and diligence and specification of documents—the equivalent of discovery in England and Wales.
  It is as though, in addition, something had been added which requires a person to provide information in formal or informal circumstances, depending on the decision of the nominated officer, and which may be public or private because there is no specification of the proper method of proceeding. The circumstances may be formal or informal in the sense that one nominated officer may adopt the wholly informal approach—that of a conversation—and another may treat the matter with greater formality and ask the person who has been summoned to sit in a certain place and to conduct the proceedings in a particular way as though it were a formal investigation.
  Sir Nicholas Fairbairn: Another matter that the hon. and learned Gentleman might care to consider is that he adduced from the Minister the fact that the proceedings would not be under oath. If they are not under oath, on what possible basis could there be a prosecution for an offence under section 2 of the False Oaths (Scotland) Act 1933?
  Mr. Menzies Campbell: I am much obliged to the hon. and learned Gentleman, who has anticipated my next point. It appears that the nominated officer must give some warning when the proceedings commence. If, depending on my answer, I may be liable to prosecution for contravention of the False Oaths (Scotland) Act 1933, albeit perhaps a prosecution that is not founded on what I may have said, surely I should be entitled to a warning that the proceedings before the nominated officer might have that criminal consequence, yet there is no such provision.
  The Minister says—no doubt sincerely—that, when an incriminating answer appears to have been given, the nominated officer will terminate the interview. Whether he does or not is the nominated officer's choice. Nothing in the Bill states that, as soon as an incriminating answer is given, the nominated officer must terminate the interview. Furthermore, neither the nominated officer nor the person being questioned may appreciate at a particular moment that that is an incriminating answer and might have the consequences to which other hon. Members have referred.
  That is why the point made by the hon. Member for Falkirk, East (Mr. Ewing) is so important. If a person is summoned to meet a nominated officer, is he or she entitled to be represented, or is this situation similar to the examination for bankruptcy proceedings about which there was considerable doubt in Scotland for a long time on the question whether the bankrupt was entitled to be represented at his own proceedings?
  Far too many questions have been left unanswered. To return to my earlier point, they remain unanswered because there has not been any rigorous examination of the consequences of inserting such a provision in the Bill. It is perfectly right for the hon. and learned Member for Perth and Kinross to talk with some awe about the powers
  1096
  of the Customs and Excise and of VAT inspectors. The hon. and learned Gentleman knows that, in the case of the Lord Advocate v. Friel, Lord Ross—now Lord Justice-Clerk Ross—took a vigorous view against the method of questioning used by the Customs and Excise inspectors. He held strongly that they were not entitled to conduct themselves in a way that was contrary to the principles laid down in the law of Scotland, stemming from the case of Chalmers v. the Lord Advocate.
  Far too many questions are unanswered. There are far too many opportunities for mistake, confusion and injustice. That is why I believe that the provision does not bear the hallmark of careful and analytical consideration and it certainly does not bear the hallmark of any rigorous
  My final point echoes to some extent what was said by the hon. Member for Glasgow, Garscadden (Mr. Dewar). An answer may be incriminating. It may not be able to be used in criminal proceedings later against that person. It may form the basis upon which other investigations can be carried out, by referring, for example, to the location of a certain piece of evidence. The statement about where the evidence is said to be located may not be admissible, but if someone examines the box in which the papers that have been referred to can be found, those papers and their findings may in turn come to be the incriminating evidence. It is artificial to suggest that there is as much protection as the Minister appears to claim for a person who is asked in response to an order from the sheriff.
  Sir Nicholas Fairbairn: On the hon. and learned Gentleman's point about the False Oaths (Scotland) Act, although a section states that that may not be used in evidence in criminal proceedings, there is no way in which the Act comes into this unless it can be put to the person who is on oath, when subsequently charged with a criminal offence, that he or she previously said something different from the nominee.
  Mr. Menzies Campbell: The hon. and learned Gentleman is quite correct. To establish a conviction under the False Oaths (Scotland) Act 1933, it will be necessary to prove that what was said to the nominated officer was false, and that can be done only by leading evidence in relation to what was said to have been incriminating.
  This is a can of worms. Although it is commonplace in Committee or on Report for hon. Members to complain that the provisions are insufficiently detailed or insufficiently well thought out, in this case such criticisms are more than germane. They go right to the heart of what the Minister is endeavouring to persuade the House to accept. I hope that he will realise that hon. Members of all parties have advanced points of great substance, not mere debating points.
  If, in the light of what has been said, he is not satisfied with what he is trying to persuade the House to accept, he should take the honourable course and withdraw the
  6.15 pm
  Lord James Douglas-Hamilton: Several interesting points have been raised. I begin with the question asked by the hon. Member for Glasgow, Garscadden (Mr. Dewar) about whether the person who is being interviewed would be caught by clause 5(7) if he or she refused to answer the question. The person would be so caught, because

  1097
  subsection (6) requires the person to answer such questions as may be asked under subsection (4). An offence would therefore have been committed.
  The hon. and learned Member for Fife, North-East (Mr. Campbell) asked whether a sheriff would be present at the interview. The hon. Member for Falkirk, East (Mr. Ewing) asked about corroboration. The sheriff will not be involved in the interview. The offence will be required to be proved beyond reasonable doubt in the same way as any other offence and will be subject to the requirement of corroboration.
  Mr. Dewar rose—
  Lord James Douglas-Hamilton: I shall give way to the hon. Gentleman in a moment.
  The hon. Member for Falkirk, East also asked whether a person is entitled to be legally represented at the interview. The Bill does not create a right for a person to be legally represented, but I assure the hon. Gentleman that no objection will be made if a person wishes to be legally represented at the interview.
  The hon. Member for Garscadden—
  Mr. Menzies Campbell: I am grateful to the Minister for giving way, and I do not wish to thrash this point unnecessarily. Suppose the nominated officer said, "I am not prepared to allow you to have the solicitor of your choice present at this examination." The person who has been summoned has no right to the presence of a solicitor or any other person. If the nominated officer takes that decision, the person who has been summoned will have to abide by it. How can that be just?
  Lord James Douglas-Hamilton: I am giving an undertaking that that will not happen. Such a person would be allowed to have a solicitor with him.
  Mr. Dewar: Could the Minister say a little more about the effect of the criminal penalty in clause 5(7)? Obviously, an offence would have to be established by corroborated evidence. One therefore assumes that there will be people in the room other than the interviewee and the interviewer—
  Mr. Menzies Campbell: Such as a shorthand writer?
  Mr. Dewar: Is there, for example—I am being helpfully prompted from the left—likely to be someone such as a shorthand writer present? If there are only two people in the room, corroboration will prove a remarkable difficulty. Perhaps the Minister could say something about that.
  Lord James Douglas-Hamilton: I sincerely hope that in most of the cases that we believe would involve a possible breach of trust, or something of that nature, there will be no question of criminal proceedings. However, if somebody refuses to answer or to provide accounts where they undoubtedly exist, the provisions will prove necessary to ensure that those who have given money to a charity or those who will benefit from it are not disadvantaged or prejudiced in the process.
  Mr. Dewar: Absolutely. However, I am referring to what the Minister helpfully said about clause 5(7)—that, if a person refuses to answer a question, he or she will be open to a fine not exceeding level 5 on the standard scale. That is clearly a criminal prosecution. I am simply trying to establish who the Minister expects to be in the room to provide the corroboration.
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  While the Minister is at it, perhaps he could say more about his guarantee that a solicitor can represent the person being interviewed. It will be an odd situation, because presumably a solicitor is present to give his client advice about his right and might well be tempted to say, "I don't think that you should give that information, because you will incriminate yourself." What would be the solicitor's position if he gave that advice and if the client purported to take it?
  Lord James Douglas-Hamilton: The hon. Gentleman has answered his own question—he said that a shorthand writer or someone of that nature would probably be with the nominated person. If an offence were committed, it would be subject to the normal rules relating to proof and corroboration when it came before a court.
  Sir Nicholas Fairbairn rose—
  Lord James Douglas-Hamilton: I want to answer the question about false oaths, and my hon. and learned Friend can come back on this in a minute if he likes. It is clear that no answer to a question under subsection (6) can be used in any subsequent criminal proceedings. This will operate in the same way as Department of Trade and Industry inspectors, who have not run into tremendous difficulties in this connection. There are precedents for DTI inspectors making investigations. If, when making an investigation, an inspector, instead of finding evidence of breach of trust, runs into a case of serious fraud, he stops immediately and reports it to the Lord Advocate.
  I mentioned that no answer to a question under subsection 6 could be used in any subsequent criminal proceedings against the person, except under section 2 of the False Oaths (Scotland) Act 1933, which relates to the making of false statements without oath. Section 2 states:
  "If any person knowingly and wilfully makes (otherwise than on oath) a statement false in a material particular, and the statement is made—

  (a) in a statutory declaration; or

  (b) in an abstract, account, balancing sheet, book, certificate, declaration, entry, estimate, inventory, notice, report, return or other document, which he is authorised or required to make, attest, or verify by, under, or in pursuance of any public general Act of Parliament for the time being in force; or

  (c) in any oral declaration or oral answer which he is authorised or required to make by, under, or in pursuance of any public general Act of Parliament for the time being in force,

  he shall be guilty of a crime."
  I think that that is quite straightforward, and there is no question of that provision being repealed.
  Amendment agreed to.
  Amendments made: No. 4, in page 7, line 4, after 'attend' insert 'and'.
  No. 5, in page 7, line 12, at end add—
  '( ) A person shall not be excused from answering such questions as he may be required to answer by virtue of subsection (6) above on the ground that the answer may incriminate or tend to incriminate him, but a statement made by him in answer to any such question shall not be admissible in evidence in any subsequent criminal proceedings against him, except in a prosecution for an offence under section 2 of the False Oaths (Scotland) Act 1933.'.—[Lord James Douglas-Hamilton.]

Clause 6

  POWERS OF COURT OF SESSION TO DEAL WITH MANAGEMENT OF CHARITIES
  Amendment made: No. 6 in page 10, line 11, leave out from 'the' where it second occurs to '; and' in line 12 and insert
  'charitable purposes of that body, or the charitable purposes which are purported to be the purposes of that body'.—[Lord James Douglas-Hamilton.]

Clause 9

  SMALL CHARITIES
  Lord James Douglas-Hamilton: I beg to move amendment No. 7, in page 13, line 43, leave out 'intentions' and insert 'spirit'.
  Mr. Deputy Speaker: With this it will be convenient to take Government amendment No. 8.
  Lord James Douglas-Hamilton: These are purely drafting amendments. I am grateful to my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn), who drew our attention to drafting inconsistencies in Committee.
  Amendment agreed to.
  Amendment made: No. 8, in page 14, line 16, leave out 'intention' and insert 'spirit'—[Lord James Douglas-Hamilton.]

Clause 11

  APPOINTMENT OF TRUSTEES
  Amendments made: No. 9, in page 16, line 10, leave out
  'both the Lord Advocate and'.
  No. 10, in page 16, line 13, at end insert—
  '(2) Where in the case of any trust which is a recognised body—

  (a) the number of trustees is less than three; and

  (b) it appears to the Lord Advocate that the trustees will not, or are unable to, exercise their power under subsection (1) above,

  if it appears to the Lord Advocate expedient to do so, he may exercise the power in place of the trustees.'—[Lord James Douglas-Hamilton.]

Clause 13

  INTERPRETATION OF PART I, REGULATIONS AND ORDERS
  Lord James Douglas-Hamilton: I beg to move amendment No. 11, in page 16, line 35, leave out 'an unincorporated body'.
  Mr. Deputy Speaker: With this it will be convenient to take Government amendment No. 12.
  Lord James Douglas-Hamilton: Clause 31 provides a definition for "body" that is intended to make it clear that "body" refers to unincorporated bodies such as trusts or associations. They are purely drafting amendments.
  Amendment agreed to.
  Amendments made: No. 12, in page 16, line 38, after 'court' insert
  'in relation to an unincorporated body'.—[Lord James Douglas-Hamilton.]
  No. 13, in page 16, line 46, leave out
  'has the meaning given by'
  and insert
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  'shall be construed in accordance with'.—[Lord James Douglas-Hamilton.]

New Clause 15

  BOARD'S INTERVENTION POWERS
  '.—(1) The powers conferred on the Board by this section may be exercised if, after such inquiry (if any) as the Board consider appropriate, it appears to them to be desirable to do so for the purpose of protecting the interests of the clients, or prospective clients, of an independent qualified conveyancer or an executry practitioner (each of whom is in this section referred to as a "relevant practitioner").
  (2) The Board may, in particular, exercise any such power where it appears to them that a relevant practitioner—

  (a) is no longer a fit and proper person to provide conveyancing services or, as the case may be, executry services;

  (b) has ceased, for whatever reason, to provide such services; or

  (c) has failed, or is likely to fail, to comply with regulations made under section 15(10A) or, as the case may be, section 16(10) of this Act.

  (3) The Board may direct the relevant practitioner not to dispose of, or otherwise deal with, except in accordance with the terms of the direction—

  (a) any assets belonging to any client of the practitioner and held by or under the control of the practitioner in connection with his business as an independent qualified conveyancer or, as the case may be, an executry practitioner; or

  (b) any assets of the practitioner which are specified, or of a kind specified, in the direction.

  (4) The Board may direct the relevant practitioner to transfer to the Board, or to such persons (in this section referred to as "the trustees") as may be specified in the direction—

  (a) all assets belonging to any client of the practitioner and held by or under the control of the practitioner in connection with his business as an independent qualified conveyancer or, as the case may be, an executry practitioner; or

  (b) any assets of the practitioner which are specified, or of a kind specified, in the direction.

  (5) A relevant practitioner to whom a direction is given may, within 21 days of the date on which the direction is received by him, apply to the Court of Session, which may make such order in the matter as it thinks fit.
  (6) A relevant practitioner to whom a direction is given shall comply with it as soon as it takes effect (and whether or not he proposes to apply to the Court of Session under subsection (5) above).
  (7) If, on an application to the Court of Session by the Board, the court is satisfied—

  (a) that a relevant practitioner has failed, within a reasonable time, to comply with any direction given to him; or

  (b) that there is a reasonable likelihood that a relevant practitioner will so fail,

  the court may make an order requiring the practitioner, and any other person whom the court considers it appropriate to subject to its order, to take such steps as the court may direct with a view to securing compliance with the direction.
  (8) Any assets which have been transferred as a result of a direction given under subsection (4) above shall be held by the Board, or by the trustees, on trust for the client or, as the case may be, the practitioner concerned.
  (9) The trustees may deal with any assets which have been transferred to them only in accordance with directions given to them by the Board.
  (10) If the Board have reasonable cause to believe that a relevant practitioner or an employee of a relevant practitioner has been guilty of dishonesty resulting in pecuniary loss to a

  1101
  client of the relevant practitioner, they may apply to the Court of Session for an order that no payment be made by any bank, building society or other body named in the order out of any bank, building society or other account or any sum deposited in the name of the relevant practitioner without the leave of the court and the court may make such an order.
  (11) Any direction under this section—

  (a) shall be given in writing;

  (b) shall state the reason why it is being given;

  (c) shall take effect on such date as may be specified in the direction (which may be the date on which it is served on the relevant practitioner); and

  (d) may be varied or revoked by a further direction given by the Board.

  (12) In this section—
  "assets" includes any sum of money (in whatever form and whether or not in any bank, building society or other account) and any book, account, deed or other document held by the relevant practitioner on his own behalf in connection with his business as a relevant practitioner or on behalf of the client concerned; and
  "independent qualified conveyancer" and "executry practitioner" respectively include any independent qualified conveyancer or executry practitioner whether or not he was registered as such at the time when the matter in relation to which the Board exercise or propose to exercise their powers under this section arose and notwithstanding that subsequent to that time he has ceased to be so registered.'—[Lord James Douglas-Hamilton.]
  Brought up, and read the First time.
  Lord James Douglas-Hamilton: I beg to move, That the clause be read a Second time.
  Mr. Deputy Speaker: With this it will be convenient to take Government amendments Nos. 38, 51, 53 and 63 to 66.
  Lord James Douglas-Hamilton: The new clause was not heralded during our discussions in Committee, so it may be helpful to the House if I briefly outline its purpose and effect.
  The provision is intended to enhance the regulatory structure under which the board is to operate. It corresponds closely to an amendment brought forward during the Report stage of the Courts and Legal Services Bill. The new clause gives the board the power to intervene in the business of an independent, qualified conveyancer or an executory practitioner where it appears to the board that the interests of the practitioners' clients are likely to be put at serious risk. I do not envisage that that power will be used often, but it could prove valuable if a practitioner were to deviate from acceptable business practice to such an extent as to threaten the interests of clients or prospective clients.
  Under the new clause, the board's powers are backed up by an enforcement mechanism that allows it to go to the Court of Session for an order to secure compliance. I do not believe that the new clause is controversial. It represents the final component of the regulatory regime that we have established for independent qualified conveyancers and executory practitioners.
  Mr. Dewar: I am quite prepared to accept that the new clause is non-controversial, and I am delighted to hear that it is the final component. However, I fear that it may not be the last time that I hear about independent qualified conveyancers. I understand that the new clause deals largely with the winding up of businesses of independent qualified conveyancers—not a particularly cheery subject for those who have faith in the new breed of operator. I am
  1102
  advised that it gives the conveyancing board powers similar, in terms of dealing with their assets, to those allowed to the Law Society of Scotland, in terms of sections 45 and 46 of the Solicitors (Scotland) Act 1980. I certainly do not have strong feelings on that matter, and I am prepared to see it go through.
  Mr. Harry Ewing: Does the Minister envisage that the procedure would be activated on a complaint from the client, or is there some other way that I have not understood?
  Lord James Douglas-Hamilton: It would normally be activated on a complaint from the client, unless some untoward facts were discovered. I sincerely hope that nothing of that nature will ever occur.
  Question put and agreed to.
  Clause read a Second time and added to the Bill.

New clause 22
  MULTI-NATIONAL PRACTICES
  '. Before section 61 of the 1980 Act there shall be inserted the following section—
  MULTI-NATIONAL PRACTICES

    Multi-national practices
    60A.—(1) Subject to the provisions of this section, solicitors and incorporated practices may enter into multi-national practices with registered foreign lawyers.
    (2) The Council shall maintain a register of foreign lawyers, and may make rules with regard to registration; and, without prejudice to the generality of the foregoing, such rules may include provision as to—

    (a) the manner in which applications for registration are to be made;

    (b) the fees payable in respect of such applications;

    (c) conditions which may be imposed in respect of registration; and

    (d) the period for which any such registration is to run.

    (3) Section 34(2) and (3) apply to rules made under subsection (2) as they apply to rules made under that section.
    (4) Any foreign lawyer may apply to the Council to be registered as such for the purposes of this section and the Council shall, if they are satisfied that the legal profession of which the applicant is a member is so regulated as to make it appropriate for him to be allowed to enter into a multi-national practice with solicitors or incorporated practices, enter his name on the register.
    (5) Subject to subsection (6), the Secretary of State may by order made by statutory instrument provide that any enactment or instrument—

    (a) passed or made before the commencement of this section;

    (b) having effect in relation to solicitors; and

    (c) specified in the order,

    shall have effect with respect to registered foreign lawyers as it has effect with respect to solicitors.
    (6) Before making any order under subsection (5), the Secretary of State shall consult the Council.
    (7) An order under subsection (5) may provide for an enactment or instrument to have effect with respect to registered foreign lawyers subject to such additions, omissions or other modifications as the Secretary of State specifies in the order.
    (8) No order shall be made under subsection (5) unless a draft of the order has been approved by both Houses of Parliament.".'—[Lord James Douglas-Hamilton.]
    Brought up, and read the first time.
    Lord James Douglas-Hamilton: I beg to move, That the clause be read a Second time.
    Mr. Deputy Speaker: With this it will be convenient to take Government amendments Nos. 97, 100, 101 and 113 to 115.
    Lord James Douglas-Hamilton: New clause 22 will be welcomed by the whole House. The Bill already provides for the removal of existing statutory barriers to the formation of multinational practices. The new clause makes it clear that Scottish solicitors are entitled to enter into such practices. More significantly, it gives the council of the Law Society of Scotland powers to regulate such practices.
    The House will wish to know that the amendment has been discussed with the Law Society, which indicated its support for the new clause and the policy in general. The new clause places the Council of the Law Society under a duty to maintain a register of foreign lawyers with whom Scottish lawyers are to be permitted to go into partnership. They will be lawyers whose native jurisdiction is regulated to the society's satisfaction.
    The new clause is an enabling power rather than a detailed attempt to regulate multinational practices. It creates a flexible framework within which details can be worked out in the light of developments in national legal practice, and thus the Secretary of State is accorded a regulation-making power under subsection (5) to attach existing statutes and statutory instruments to foreign lawyers practising in Scotland or in partnership with Scottish solicitors where he considers that appropriate. That power is to be exercised only after consultation with the Law Society's council and is subject to affirmative resolution in both Houses of Parliament.
    I believe that the new clause paves the way for the enhancement of business opportunities for the Scottish legal profession and better services for clients.
    The remaining amendments in the group are primarily intended to clarify the position of multi-disciplinary practices in the regulatory framework that governs solicitors. The House will be aware that the Bill already provides for the removal of the existing statutory barriers to the formation of multi-disciplinary practices—those involving solicitors and members of other professional disciplines—and for shifting responsibility for the extent to which multi-disciplinary practices should be permitted to the council of the Law Society of Scotland. That is quite proper, as the solicitor profession in Scotland is very much a self-regulating one, and it should be for the council to decide on practising structures for its members.
    Mr. Dewar: There is no objection from any quarter with which I have been in touch to the proposals on multinational practices in the new clause, but it would be helpful if the Minister said a little more about them.
    I understand that multinational practices contain foreign lawyers who will register with the Law Society of Scotland and who are not necessarily restricted to being lawyers who qualified in another EC country—they can come from any part of the world. Amendment No. 114 defines a foreign lawyer as
    "a person who is not a solicitor or an advocate but who is a member, and entitled to practise as such, of a legal profession regulated within a jurisdiction outwith Scotland".
    Sir Nicholas Fairbairn: Does foreign in this case include England?
    6.30 pm
    Mr. Dewar: I assumed that it does, for these purposes. No doubt the Scottish National party would take an interest in the matter if its members were present, but unfortunately their enthusiasm for law reform in Scotland ran out some hours ago and they are not here to participate in discussing this relevant point.
    For these purposes it is fair to say that a foreign lawyer will be an English lawyer, so an English lawyer can become a partner in a Scottish law firm as long as he is registered with the Law Society of Scotland and it is satisfied with his qualifications and his ability to practise. I am not sure what test the society will apply—perhaps the Minister will tell us.
    The English jurisdiction is fairly close to the Scottish one, but it seems that even a Spanish, Australian or Papua New Guinean—I cast no aspersions—could perfectly well become a partner. Presumably the Law Society of Scotland will apply a test of competence in the law of Scotland before such a lawyer is allowed to join a practice. No doubt those matters have been discussed with the Law Society; perhaps the Minister can tell us more.
    One of the problems with the Bill, of which even Members who are not connected with the measure will have heard, is the extreme danger of reading it in terms of the words that appear within its covers. Sometimes the Government mean the opposite of what the legislation appears to do. That was exemplified in the case of the multidisciplinary practices, which we are defining in the Bill. I am delighted, incidentally, to see the hon. Member for Tayside, North (Mr. Walker) in his place. Not only does he hold the distinguished office of vice-chairman of the Conservative party in Scotland, but I note that he is acting as parliamentary private secretary to the Under-Secretary of State, a responsibility that he bears with distinction. Perhaps it is now one that substitutes for his vice-chairmanship, which dangles by the proverbial thread.
    As the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn) will recall, when we discussed multidisciplinary practices, we were removing the barriers to them. That was the clear message on the face of the Bill, but it emerged that that was not what we were doing at all. We were not inviting the arrival of those practices. The Government had entered into a private agreement with the Faculty of Advocates first, and thereafter rather more publicly with the Law Society of Scotland, to the effect that they would approve any regulations that would ban multi-disciplinary practices. So there were to be none at all in Scotland in the foreseeable future.
    There was a moment of high comedy when we were asked not to defeat a certain part of the Bill on the ground that it prevented the Office of Fair Trading from interfering with our affairs, and because that office was being banned from the field, level or otherwise, it would be even harder for multi-disciplinary practices to enter by the side door or the back door.
    So, despite the defining of multi-disciplinary practices, the Government, the Committee and everyone else have agreed not to have them. I want to find out whether the same will apply to multinational practices. Although we appear to be removing barriers and giving them the green light, perhaps there is already an agreement not to have them. Can the Minister clear up that point and say a word or two about the MDPs that we are so neatly defining in

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    amendment No. 114, sub-paragraph (ab)? That may be something of an academic exercise, in view of the arrangements that have been reached, but although the matter was spelt out in Committee, it might be helpful if it were spelt out again on the Floor of the House.
    Mr. Harry Ewing: I welcome the proposal to have multinational practices. I suspect that one of the great difficulties of pursuing cases on behalf of clients against the background of tragedies such as Piper Alpha and Lockerbie is our lack of experience in working on a multinational basis. But it is also important to warn the people of Scotland of what lies ahead. I look forward to the day when Ross, Harper and Murphy becomes Ross, Harper, Murphy, Ashrap, Gomez and Waleski.
    Mr. Menzies Campbell: I should like to ask the Minister to be forthcoming about what precisely is conveyed by subsection (4), which reads:
    "Any foreign lawyer may apply to the Council to be registered as such for the purposes of this section."
    Some distinguished foreign lawyers may find the prospect attractive.
    "The Council shall, if they are satisfied that the legal profession of which the applicant is a member is so regulated as to make it appropriate for him to be allowed to enter into a multi-national practice with solicitors or incorporated practices, enter his name on the register."
    One can see circumstances in which the legal profession of which the applicant is a member is so regulated as to ensure that he is a person of good character or financial probity, or that he regularly fulfils responsibilities equivalent to those in Scotland under the solicitors accounts rules. Legal professions may prudently impose such tests on these lawyers, but there appears to be no provision here requiring the council to consider whether they are sufficiently expert in and knowledgeable about Scottish law to be able to enter a professional relationship with Scottish lawyers.
    It may be argued that it should not matter whether a person qualified in Spanish law is sufficiently qualified in Scottish law, but partnerships of solicitors attract joint and several liability; so it may equally be argued that before any multinational practice may be created a lawyer coming to it from a foreign jurisdiction should be shown to be well enough versed in the law of Scotland at least to understand the responsibilities of partnership in Scotland.
    As I read subsection (4), it is concerned with the way in which the native or the domestic legal system of which the foreign lawyer is a member may be regulated. It is not concerned with whether any such applicant is sufficiently versed in Scottish law to understand the consequences of entering into a partnership with Scottish solicitors. That seems to me to be an omission. Perhaps it is a deliberate omission; if so, no doubt the Minister will tell us. If he accepts that it is an omission by reason of oversight, however, I hope that he will at least give some consideration to the point that I have made. At the very least, it seems to be desirable that anyone entering into a partnership with a Scottish lawyer should be aware of what the consequences may be, in terms of personal liability and what the responsibilities to the Law Society of Scotland and the provisions of the accounts rules undoubtedly are.
    Lord James Douglas-Hamilton: One of the questions that I was asked was whether the term "foreign lawyer" included English lawyers. Amendment No. 114 defines "foreign lawyer" as
    "a person who is not a solicitor or an advocate but who is a member, and entitled to practise as such, of a legal profession regulated within a jurisdiction outwith Scotland."
    The hon. and learned Member for Fife, North-East (Mr. Campbell) and the hon. Member for Glasgow, Garscadden (Mr. Dewar) asked who would decide which jurisdictions were acceptable for inclusion in the register of foreign lawyers—for example, whether the educational requirements were sufficient. That will be for the Law Society regulations to decide. The test will be the arrangements for training and fitness in the home jurisdiction of the applicant concerned.
    I was also asked whether multi-disciplinary practices would exist. The answer is yes, if the Law Society wants them. The amendments provide for them to be adequately regulated. The hon. Member for Garscadden looks amused, but it is important that we secure the acceptability of the amendments. The Law Society pressed hard for the amendments on multinational practices, and I suspect that there will be more pressure in that regard. The Secretary of State and I both devilled, before being advocates to a QC who is now a European judge—that is a sign of the greater contact between European nations.
    Let me say to the hon. Member for Falkirk, East (Mr. Ewing) that I am surprised that, as the shadow Secretary of State is a partner of Ross, Harper and Murphy, he did not at least mention the name of the hon. Member for Garscadden before mentioning many extra names.
    Mr. Dewar: I wish this point to be put clearly on the record. On multi-disciplinary practices, the Minister is saying that the Government will abide by what the Law Society of Scotland wants—that they will endorse the decision. If the Law Society wants multi-disciplinary practices, so be it, and if it does not, so be it.
    Lord James Douglas-Hamilton: That is exactly what I am saying. I have had very satisfactory meetings with the Law Society, and I can confirm that it finds the amendments acceptable.
    Mr. Menzies Campbell: Is the Minister saying that, if the Law Society of Scotland considers it appropriate that a foreign lawyer should have some knowledge of Scottish law and the consequences and liabilities of entering into partnership with Scottish solicitors, it may impose that as a qualification before admitting any individual to the register that it will maintain?
    Lord James Douglas-Hamilton: Yes, it could regulate multinational practices. We are at an early stage, but obviously it will become an issue in 1992, when there will be more competition between European countries. It is only right that this provision should be included in the Bill so that they can take the necessary action as required.
    Question put and agreed to.
    Clause read a Second time, and added to the Bill.

Clause 14

  THE SCOTTISH CONVEYANCING AND EXECUTRY SERVICES BOARD
  Lord James Douglas-Hamilton: I beg to move amendment No. 21, in page 18, line 31, leave out
  'providing such services in the course of practising as solicitors'.
  Mr. Deputy Speaker (Mr. Harold Walker): With this we may take Government amendments Nos. 22, 34 and 99.
  Lord James Douglas-Hamilton: The amendments are intended to deal with the concerns expressed by a number of hon. Members in Committee about the demarcation of regulatory responsibilities between the Scottish Conveyancing and Executry Services Board and the Law Society. The hon. Member for Glasgow, Garscadden (Mr. Dewar) and the hon. and learned Member for Fife, North-East (Mr. Campbell) both spoke eloquently on this topic. I hope that they will agree that the amendments make it absolutely clear that the jurisdiction of the board does not extend to solicitors, who will be regulated by the Law Society alone. It will not be possible for a solicitor to register as a qualified conveyancer or an executry practitioner without first having had his name removed from the roll of solicitors. I believe that the amendments clarify the position.
  Mr. Dewar: I welcome that. There was considerable concern in Committee about the possible overlap when someone was both a solicitor and an independent qualified conveyancer. There was a feeling that there might be differences in the rules and regulations and problems about jurisdiction.
  As I understand the import of this group of amendments, the conveyancing board will look after the qualified conveyancers and the Law Society will rule supreme with solicitors. The two cannot be combined. That seems a sensible improvement on the rather confused situation that could potentially have existed. I thank the Minister for his efforts.
  Amendment agreed to.
  Amendment made: No. 22, in page 18, line 37, leave out
  'providing such services in the course of practising as solicitors'.—[Lord James Douglas-Hamilton.]

Clause 15

  QUALIFIED CONVEYANCERS
  Lord James Douglas-Hamilton: I beg to move amendment No. 23, in page 19, line 21, leave out '(4)' and insert '(13)'.
  Mr. Deputy Speaker: With this we may also consider the following amendments: No. 136, in page 19, line 24, leave out 'may' and insert 'shall'.
  Government amendments Nos. 24, 25, 35, 36 and 37.
  6.45 pm
  Lord James Douglas-Hamilton: I shall be happy to accept amendment No. 136 when it is moved. It ensures consistency between the rules governing registration of executry practitioners and qualified conveyancers, and I am grateful to the hon. Member for Glasgow, Garscadden (Mr. Dewar) for bringing it before the House.
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  Amendments Nos. 23, 24, 25, 35 and 36 seek to establish a standard time limit for appeals against decisions made by the Scottish Conveyancing and Executry Services Board relating to disciplinary matters and to the refusal of applications for registration as a qualified conveyancer or as an executry practitioner. The House will have noted that clause 18(10) already provides for such a time limit in connection with the disciplinary measures imposed by the board. The amendments aim for a consistent approach throughout part II.
  I am sure that the House will agree that 21 days is a reasonable period within which an aggrieved practitioner can be expected to appeal against a decision made by the board. It corresponds exactly to similar provisions in the Solicitors (Scotland) Act 1980, which is perhaps the most relevant comparable legislation.
  Amendment No. 37 fulfils an undertaking that I gave to my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn) during the Committee's consideration of his amendment No. 253. Its purpose is to place the Secretary of State under a specific duty to include provisions relating to educational qualifications and practical training in the regulations governing the conduct and practice of executry practitioners, which he is required to make under clause 16. While it was always the Government's intention that such matters should be covered in the regulations, the amendment puts the matter beyond question. I wish to make it clear that we have responded to the concern expressed by the hon. Member for Garscadden in Committee.
  Mr. Dewar: There is no time to go over what is obviously an improved position. I can only say that I am grateful to the Minister for accepting amendment No. 136, which I shall move when we come to it. It is important that we give proper attention to educational qualifications and to training qualifications in the area where both qualified conveyancers and executry practitioners operate.
  The amendments that we shall consider this evening go a long way to meet some of the doubts and anxieties that were expressed in Committee, and I am glad to see them on the amendment paper.
  Amendment made: No. 136, in page 19, line 24, leave out 'may' and insert 'shall'.—[Mr. Dewar.]
  Amendments made: No. 24, in page 19, line 31, after 'may' insert
  ',within 21 days of the date on which the Board's decision is intimated to him,'.
  No. 25, in page 19, line 33, leave out
  'if he is not satisfied'
  and insert
  'within 21 days of the date on which the outcome of such review is intimated to him'.
  No. 97, in page 20, line 5, at end insert—
  'or
  (d) a multi-disciplinary practice within the meaning of that section,'.—[Lord James Douglas-Hamilton.]
  Lord James Douglas-Hamilton: I beg to move amendment No. 26, in page 20, line 22, at end insert—
  '(10A) The Secretary of State shall, subject to section 36 of this Act and after consultation with such persons as he considers appropriate, by regulations make such provision as he thinks fit with a view to maintaining appropriate standards of conduct and practice of independent qualified conveyancers, and such regulations shall, in particular, make provision with respect to—

  (a) the manner in which such conveyancers conduct the provision of conveyancing services;

  1109

  (b) conflicts of interest;

  (c) the contractual obligations of such conveyancers;

  (d) the holding of clients' money; and

  (e) the disclosure of and accounting for commissions.

  (10B) Regulations under subsection (10A) above shall be made by statutory instrument and no regulations shall be made under that subsection unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament.'
  Mr. Deputy Speaker: With this we may take Government amendments Nos. 27 to 32, 43, 56 and 57.
  Lord James Douglas-Hamilton: Broadly speaking, the amendments reflect the terms of an amendment that was tabled in Committee—again, by the hon. Member for Glasgow, Garscadden (Mr. Dewar)—with some further consequential amendments.
  The purpose of the amendments is to place responsibility for making rules governing the conduct and practice of independent qualified conveyancers in the hands of the Secretary of State, who will be required to make such rules in the form of regulations that will, in turn, be subject to affirmative resolution in both Houses of Parliament. When our amended conveyancing proposals were brought before the Committee, our initial view was that it should be for the board to make the rules, subject to the approval of the Secretary of State; however, on reflection a further degree of parliamentary scrutiny is considered appropriate, and I am happy to commend the amendments that so clearly reflect the Committee's wishes.
  Mr. Dewar: This is becoming something of a dialogue, but for the best of all possible reasons the Minister has again been helpful. The decision that the Secretary of State should make resolutions that are open to affirmative procedure strengthens parliamentary scrutiny in an area in which there is a degree of public interest. My hon. Friend the Member for Dundee, East (Mr. McAllion) is muttering. I assure him that the whole point is to allow him into the discussion rather than having it confined to the conveyancing board. I hope that he is pleased at that, and I look forward to hearing his many contributions when we debate the regulations that will ultimately be laid.
  Amendment agreed to.
  Amendments made: No. 27, in page 20, line 25, leave out 'subsections (12) and (13)' and insert 'subsection (12)'.
  No. 28, in page 20, line 28, at end insert 'and'.
  No. 29, in page 20, leave out lines 33 to 45.
  No. 30, in page 21, line 5, leave out 'or (11)(c)'.
  No. 31, in page 21, line 11, leave out 'a' and insert 'an independent'.
  No. 32, in page 21, line 11, leave out
  'rules made under subsection (11)(c)'
  and insert
  'regulations made under subsection (10A)'.—[Lord James Douglas-Hamilton.]
  Lord James Douglas-Hamilton: I beg to move amendment No. 33, in page 22, line 4, at end insert—
  '(18A) Where an offence under subsection (17)(a) above is committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of—

  (a) any director, secretary or other similar officer of the body corporate; or

  (b) any person who was purporting to act in any such capacity,

  1110
  he (as well as the body corporate) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
  (18B) Where an offence under subsection (17)(a) above is committed by a partnership and is proved to have been committed with the consent or connivance of a partner, he (as well as the partnership) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.'
  Mr. Deputy Speaker: With this it will be convenient to discuss Government amendments Nos. 39, 83 and 86.
  Lord James Douglas-Hamilton: In a sense, the amendments are technical. They are designed to remove existing doubts about whether the law at present would allow the prosecution of individual partners and managers of organisations involved in the provision of legal services as well as the organisations themselves.
  Amendment agreed to.
  Lord James Douglas-Hamilton: I beg to move amendment No. 98, in page 22, line 4 at end insert—
  '(18C) Any independent qualified conveyancer who provides conveyancing services upon the account of, or for the profit of, any person other than—

  (a) a solicitor;

  (b) an incorporated practice within the meaning of section 65 of the 1980 Act;

  (c) a multi-disciplinary practice within the meaning of that section; or

  (d) another independent qualified conveyancer,

  knowing that person not to be a solicitor, incorporated practice, multi-disciplinary practice or independent qualified conveyancer, shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.'
  Mr. Deputy Speaker: With this it will be convenient to consider the following amendment No. 137, in page 22, line 4 at end insert:—
  '(18C) Any independent qualified conveyancer who provides conveyancing services upon the account of, or for the profit of, any person other than—

  (a) a solicitor;

  (b) an incorporated practice within the meaning of Section 65 of the 1980 Act;

  (c) a multi-disciplinary practice within the meaning of Section 65 of the 1980 Act; or

  (e) another independent qualified conveyancer,

  knowing that person not to be a solicitor, incorporated practice, multi-disciplinary practice, or independent qualified conveyancer, shall be guilty of an offence and liable in summary conviction to a fine not exceeding level 4 on the standard scale.'.
  Government amendments Nos. 110 and 112.
  Lord James Douglas-Hamilton: This group of amendments clarifies the business relationships which can be entered into by independent qualified conveyancers and solicitors. The first amendment fulfils an undertaking that I gave in Committee to my hon. Friend the Member for Eastwood (Mr. Stewart). It prevents an independent qualified conveyancer from acting on an agency basis for persons other than solicitors or other independent qualified conveyancers. The obvious example of such an arrangement—I do not think that it is a likely scenario—would be a large financial institution seeking to use independent qualified conveyancers as agents, thus gaining access to the financial market by the back door. Amendment No. 137, which was tabled by the hon. Member for Glasgow, Garscadden (Mr. Dewar) similarly

  1111
  seeks to prevent such business relationships, and is virtually identical to amendment No. 98, which I hope he will feel able to support.
  Amendment No. 110 clarifies the extent of the provision in section 26 of the Solicitors (Scotland) Act 1980 which makes it an offence for solicitors to act on a similar agency basis for unqualified persons. It makes it clear that solicitors will be able to act on such a basis for independent qualified conveyancers and executry practitioners within their specific areas of legal practice. The amendment also makes it clear that solicitors will be able to work on that basis in law centres. That matter was raised in Committee by the hon. Member for Garscadden and, although we discussed it only briefly, the Committee clearly supported the concept of law centres. I think that the law centre in Castlemilk was mentioned. Therefore, the amendment removes one of the remaining legal obstacles to the establishment of law centres and it has the support of the Law Society.
  Amendment No. 112 disapplies the offence provision in section 32 of the 1980 Act from independent qualified conveyancers preparing writs relating to heritable or moveable estate. I suggest that they relate only to moveable estate connected with the conveyancing transaction concerned. The amendments are concerned primarily with agency arrangements involving solicitors and qualified conveyancers.
  Mr. Dewar: This is a complicated series of amendments and it would not help if I were to plunge into them. At the moment I am not sure that I am competent to do so. I am grateful to the Minister for a series of proposals which largely meet points that were raised in Committee. It is important for the independence of qualified conveyancers to be safeguarded. That is a polite way of saying that this is another move to ensure that the banks and building societies do not get into this field, as originally envisaged. As I understand it, the amendment will prevent conveyancers from being employed by banks or building societies. They will have to work on their own behalf or for solicitors. They cannot work for a financial institution as was at one time envisaged. That is important.
  The law centres are a rather technical matter. A number of points were raised about them in Committee and I shall certainly consider how far the Minister has been able to go. I am glad that he feels that he has been able to meet some of the worries expressed by the law centres. The movement has not had as much positive encouragement in Scotland as it deserves. Perhaps we may return to that on another occasion.
  Sir Nicholas Fairbairn: I welcome the amendments, which I thought that I had suggested.
  Mr. Brian Wilson: You can have them.
  Sir Nicholas Fairbairn: No man is a prophet in his own country. I hope that the message will go from here that it will be a criminal offence for anybody to attempt to get around the exclusion of institutions to do conveyancing by employing them as runners, lackeys or fags—whatever one may call them. It is a criminal matter now, and it is important for that to be known.
  Amendment agreed to.
  Amendments made: No. 34, in page 22, leave out line 9.
  No. 99, in page 22, line 11, leave out 'such' and insert 'conveyancing'.—[Lord James Douglas-Hamilton.]

Clause 16

  EXECUTRY PRACTITIONERS
  Amendments made: No. 35, in page 22, line 44, after 'may' insert
  'within 21 days of the date on which the Board's decision is intimated to it'.
  No. 36, in page 22, line 46, leave out
  'if it is not satisfied'
  and insert
  'within 21 days of the date on which the outcome of such review is intimated to it'.
  No. 37, in page 23, line 16, leave out 'may' and insert 'shall'.
  No. 38, in page 23, leave out lines 22 to 25.
  No. 39, in page 23, line 47, at end insert—
  '(16) Where an offence under subsection (14) above is committed by a partnership or by an unincorporated association (other than a partnership) and is proved to have been committed with the consent or connivance of a partner in the partnership or, as the case may be, a person concerned in the management or control of the association, he (as well as the partnership or association) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.'—[Lord James Douglas-Hamilton.]

Clause 17

  EXECUTRY SERVICES BY RECOGNISED FINANCIAL INSTITUTIONS
  Lord James Douglas-Hamilton: I beg to move amendment No. 40, in page 24, line 1, at beginning insert
  'Subject to subsection (2A) below,'.
  Mr. Deputy Speaker: With this it will be convenient to discuss Government amendments Nos. 41, 42, 124 and 141.
  Lord James Douglas-Hamilton: The most important of these amendments is No. 41 which is again designed to meet the concerns expressed in Committee by the hon. Member for Glasgow, Garscadden (Mr. Dewar) relating to the competence of a recognised financial institution wishing to offer executory services. The amendment requires such an institution to notify the board that it complies with certain standards about the educational qualifications and practical training of its executory staff, which will be prescribed in regulations made by the Secretary of State. The provision ensures that financial institutions recognised under clause 17 employ adequately trained staff for the purposes of offering executory services. I am happy to accept amendment No. 141 in the name of the hon. Member for Garscadden. It should not be confused with amendment No. 41, which is also in this group. That provides that the regulations will be subject to affirmative resolution.
  Amendments Nos. 40 and 42 deal with the possibility that an institution might, for whatever reason, fail to maintain a suitable complaints mechanism or suitable standards of training for its staff, notwithstanding the fact that it was fully up to standard at the time when it notified the board of its intention to offer executory services. In

  1113
  such circumstances, the institution is required by the amendment to stop providing executory services and to notify the board that it is doing so.
  The amendments go a long way towards meeting the concerns expressed in Committee. Amendment No. 124 is technical and clarifies clause 17 in relation to the Insurance Companies Act 1982. Section 16 of that Act specifies the areas of business which, under statute, insurance companies are permitted to undertake. The amendment makes it clear that clause 17 does not extend that area of business. The amendments will introduce additional consumer safeguards for the provision of executory services.
  Mr. Dewar: I thank the Minister for the amendments. As he said, they are in response to worries expressed by me and other hon. Members in Committee. I had better mention other hon. Members in case I stand on the distinguished and learned toes of the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn). I am prepared to share the technicality of this matter with him.
  It is important that financial institutions such as banks and building societies which are already offering executry services to the public should not, because they are already in the field, be exempt from providing qualifications in training and education for those dispensing the service. It would have been an anomaly if anyone registering as an executry practitioner now had to meet certain standards, while the big boys who were in the area earlier were exempt from the same requirement. Amendment No. 41 seems to meet that point. I shall not even complain about my amendment (a) not appearing on the order paper. The main purpose of the Committee has been met.
  7 pm
  I am glad that the Minister has accepted amendment No. 141, which means that regulations laid under clause 17(1) will be subject to positive resolution by the House. That is consistent with what we decided earlier this evening, and it is appropriate. I thank the Minister.
  Amendment agreed to.
  Amendments made: No. 41, in page 24, line 3, after 'so;' insert—
  '(aa) it complies with such requirements as may be prescribed by regulations made by the Secretary of State with respect to the educational qualifications and practical training of those of its employees who are to be engaged in the provision of executry services;'.
  No. 42, in page 24, line 23, at end insert—
  '(2A) Where—

  (a) a recognised financial institution ceases (for whatever reason) to comply with the requirements with respect to educational qualifications and practical training referred to in paragraph (aa) of subsection (1) above;

  (b) a recognised financial institution ceases (for whatever reason) to be a member of, or otherwise subject to, a scheme referred to in a notice given by it under that subsection; or

  (c) such a scheme ceases to comply with the requirements mentioned in paragraph (b)(ii) of that subsection,

  the recognised financial institution shall notify the Board of that fact and shall forthwith cease providing executry services.'
  No. 124, in page 24, line 29, at end insert—
  '(4A) This section, so far as it relates to a body or subsidiary mentioned in subsection (2)(c) or (d) above, is
  1114
  without prejudice to section 16 of the Insurance Companies Act 1982 (restriction of insurance companies to insurance business).'—[Lord James Douglas-Hamilton.]
  No. 141, in page 24, line 30, leave out subsection (5) and insert—
  '(5) Regulations under subsection (1) above shall be made by statutory instrument and no regulations shall be made under that subsection unless a draft of the regulations has been laid before, and approved by a resolution of, each House of Parliament'.—[Mr. Dewar.]

Clause 18

  PROFESSIONAL MISCONDUCT, INADEQUATE PROFESSIONAL SERVICES, ETC.
  Amendment made: No. 43, in page 24, line 39, leave out
  'rules made under section 15(11)(c) or, as the case may be, regulations made under section'
  and insert
  'regulations made under section 15(10A) or'.—[Lord James Douglas-Hamilton.]
  Lord James Douglas-Hamilton: I beg to move amendment No. 44, in page 25, line 20, at end insert——
  '(ee) in a case where the practitioner has provided inadequate professional services, to direct the practitioner to pay to the client by way of compensation such sum, not exceeding £1,000, as the Board may specify;'.
  Mr. Deputy Speaker: With this we may discuss Government amendments Nos. 45, 125, 79 to 81 and 126.
  Lord James Douglas-Hamilton: These amendments fulfil an undertaking that I gave during the Committee's consideration of new clause 12, which was tabled by the hon. Member for Glasgow, Garscadden (Mr. Dewar). I said that I would accept the principle behind that new clause, and I have tabled the amendments to do so.
  The amendments provide the Council of the Law Society, the Scottish Solicitors Discipline Tribunal and the Scottish Conveyancing and Executry Services Board with a power to order the payment of compensation by a practitioner against whom a complaint of providing inadequate professional services has been upheld. It is intended that the compensation will be for distress or inconvenience that the client has suffered, although it will be open to those disciplinary bodies to order the payment of compensation for a specific and quantifiable financial loss. Amendments along these lines have been pressed for by the Scottish Consumer Council since the introduction of the Bill in another place and I am confident that the consumer lobby will give them a warm welcome. The Law Society of Scotland has indicated that it does not dispute the principle on which the amendments are based.
  The House will wish to be aware that a corresponding provision along these lines is included in the Courts and Legal Services Bill—indeed, it was specifically sought by the English Law Society. The amendments also include a further refinement, included after detailed discussions with the Law Society of Scotland, which makes it clear that any decision of the board, the tribunal or the council cannot be founded upon in any proceedings in order to show negligence on the part of the practitioner; that any award of compensation will be totally without prejudice to the client's right of redress under civil law; and that the amount of any award of compensation can be taken into

  1115
  account in the calculation of any award of damages by a court. Those provisos are eminently sensible and will, I hope, meet with the approval of the House.
  The compensation power provides a useful additional remedy to the disciplinary sanctions already available to the board, the council and the tribunal.
  Mr. Dewar: We have been moving along at fair lick and we have dealt with a great many quite important, but on the whole technical, matters.
  The amendment is worth a particular welcome. It has been tabled in response to a new clause that I moved in Committee, but in a sense it is the culmination of a campaign. I join the Minister in paying tribute to the Scottish Consumer Council that lobbied for the amendment. Its chair, Barbara Kelly, was present when these matters were discussed in Committee. The amendment provides an important new power and extends the remedies available to the public in their dealings with solicitors when something has gone wrong. That is useful and important.
  We are all aware that the Law Society rightly takes a stringent view of dishonesty or a failure to abide by the solicitors' account rules. However, the general public have felt for some time that there has been a lack of provisions to deal with problems of shoddy work, delay, inadequacy or incompetence. The Law Society already has the power to instruct that the work be put right either by the solicitor free of charge, or by another solicitor at the expense of the defaulting solicitor.
  I am aware of the problems through my experience in my constituency and through my contacts with the public. Even those who are now somewhat distant from the everyday business of the law profession are often recipients of stories about it and tales of distress. There is no doubt that those who are faced with inadequate professional services, and the delay and the problems that flow from that, suffer inconvenience and distress. It is right that a power should be available to the Law Society, through its disciplinary machinery, to offer some form of compensation.
  The wear and tear on the nerves and the general aggravation that can result from the problem of trying for many weeks, perhaps months, to get a satisfactory answer from the defaulting solicitor can be a considerable burden for those concerned. I think that £1,000 is a fair sum to have available as an upper limit—not as compensation, but as a payment to mark the inconvenience and distress that has been caused.
  Sir Nicholas Fairbairn: The hon. Gentleman said that it was not compensation, but the amendment states, "by way of compensation".
  Mr. Dewar: I understand that, and I know that there was some discussion about whether the word "compensation" should be included. I am interpreting the word as I believe it will be interpreted in practice. It is not compensation for a loss, but the giving of some solace for the inconvenience and distress that has been caused. Had the amendment been tabled in Committee, I would have looked for a different word—
  Sir Nicholas Fairbairn: "Solatium".
  Mr. Dewar: "Solatium" has been suggested by a man of law as a suitable shot at getting the right nuance.
  I am making a distinction of some importance, and whatever the word in the Bill, I suspect that it will be approached more in the terms of solace or solatium by the Law Society when it operates the scheme. It is in that spirit that I welcome the amendment as an important improvement on the current position. Although a minor matter on another level, it is important to those concerned. It is right that the powers should be available, and I am glad that the Minister has given way on that.
  Sir Nicholas Fairbairn: I welcome the amendment, but I want to put certain questions to my hon. Friend the Minister. I am not sure whether I misheard him, but I thought that he suggested that the fine—it is solatium for the client but a fine for the practitioner—could be subtracted from any award given in civil proceedings. That would be wrong.
  I do not like absolutes such as £1,000. People may have suffered appalling experiences and immeasurable losses. There is nothing magic about £1,000, except that it operates on the decimal system. It is idiotic. We just agreed to amendment No. 33, which contains words in the law of Scotland that are new to me:
  "shall be liable to be proceeded against and punished accordingly."
  Is it not the threat of eternal life to be proceeded against and punished accordingly? It does not say, "You will only be burnt for 10 minutes," or "Satan's oven will not be allowed to be turned up above 50 degrees." If we are to introduce into the law of Scotland the concept of according punishment, why not do it here?
  It seems ridiculous to pluck from the air some symbolic, maniacal figure such as £1,000. If an appropriate sum would be £10,000, £50,000 or, as in a recent case in England, £3 million, why should that not be the sum awarded? I see no point to imposing a limit. Why not use instead the words "and punish accordingly"? If we are to introduce marvellous, 16th-century wording of that kind into the law of Scotland, why impose a limit of £1,000? If it is suggested that the award is made by way of compensation, will not the argument be made by the lawyer appearing for the solicitor in future civil proceedings that the complainant has already been compensated? The advocate may argue that, under the Act, the Law Society has awarded compensation of £958.
  While I welcome the right of the board to punish delinquent practitioners, the choice of words is most unfortunate, because the word "compensation" can be used in two senses. In cases of reparations, one often finds that the person suffering an injury only begins to recover when he or she has won their case—even if they are awarded only one penny. I appreciate that the complainer may be compensated in the sense that he or she will be made to feel better, but there is also the punishment of the delinquent practitioner to consider. I ask my hon. Friend the Minister seriously to reconsider whether there needs to be an imaginary limit rather than revert to those wonderful and ancient words of "punish accordingly".
  Lord James Douglas-Hamilton: I first make the point that such compensation cannot be founded upon in the courts if a negligence action is subsequently raised, because it relates to distress or inconvenience arising from inadequate professional services. We are talking not in terms of punishment but of assisting the individual

  1117
  concerned. Compensation paid to the client is not to be regarded as a fine upon the solicitor. There is a maximum of £1,000, and the Law Society can award up to that sum—but it does not set limits on what the courts can award. In any event, negligence actions are completely separate from the provision before us.
  Amendment agreed to.
  Amendment made: No. 45, in page 25, line 43, leave out 'or (b)' and insert ', (b) or (dd)'—[Lord James Douglas-Hamilton.]
  Lord James Douglas-Hamilton: I beg to move amendment No. 46, in page 25, line 47, at end insert—
  '(6A) Where a practitioner—

  (a) fails to comply with a notice under subsection (6) above; or

  (b) complies with such a notice but the Board are not satisfied as to the steps taken by the practitioner to comply with the direction to which the notice relates, the Board may apply to the Court of Session for an order requiring the practitioner to comply with the direction to which the notice relates within such time as the court may order.'

  The amendment provides the board with an additional enforcement power, to enable it to ensure compliance with any disciplinary direction that it may issue under clause 18(6). It allows the board to invoke the power of the court in support of its disciplinary measures, by providing for it to seek an order from the Court of Session requiring the practitioner to comply with a disciplinary direction. A similar power is available to the council of the Law Society, to secure enforcement of its disciplinary decisions by application to the solicitors' disciplinary tribunal. The amendment provides a useful addition to the board's powers, and I commend it to the House.
  Amendment agreed to.
  Lord James Douglas-Hamilton: I beg to move amendment No. 47, in page 26, leave out from the beginning of line 21 to 'refrain' in line 27.
  Mr. Deputy Speaker (Sir Paul Dean): With this, it will be convenient to consider the following: Government amendments Nos. 48 to 50.
  Amendment No. 139, in schedule 7, page 94, leave out lines 13 to 15 and insert:—
  'In paragraph 14 for the words "may be published in such manner as the Tribunal may determine" there shall be substituted the words "shall where the solicitor complained against is found guilty of professional misconduct or of providing an inadequate professional service be published in such manner as the Tribunal may determine and in all other cases every decision may be published in such manner as the Tribunal may determine.".'.
  Government amendment No. 84.
  7.15 pm
  Lord James Douglas-Hamilton: Amendment No. 47 was the subject of considerable debate in Committee. It deals with the extent of the publicity that should be given to the decisions of the Scottish Conveyancing and Executry Services Board and of the Scottish Solicitors Discipline Tribunal. Hon. Members who were on the Committee will recall that, following lively debate, I undertook to reconsider the matter.
  I have reached the view that all decisions of both the board and tribunal should be published, including the names of the practitioners against whom there has been no finding. In doing so, I have taken fully into account
  1118
  representations to the effect that even an acquittal could damage a practitioner's reputation, on the argument that there is no smoke without fire. However, I do not believe that that is likely to be a problem in practice—not least because there is likely to be little public interest in the names of those who have been acquitted. That has proved to be the case south of the border, where the English solicitors' disciplinary tribunal publishes its findings in full. The General Medical Council does likewise.
  I do not accept that any special provisions should be made for Scottish solicitors in that respect. Both the board and the tribunal retain a discretion to refrain from publishing names or any other information that might damage the interest of persons other than the practitioner or his close associates or their families. That proviso was requested by the Lord President of the Court of Session, and is eminently sensible. The drafting amendments seek to remove the uncertainty about the effects of the provision that was expressed in Committee. I am aware that this issue divided the Committee, but I am satisfied that the amendments capture its overall mood.
  Mr. Dewar: I am bound to observe that the amendments do not capture my mood. The Committee was divided—not between parties, but between those in all parts of it, which presented the Minister with a genuine difficulty in reaching his decision. It would not be sensible to pursue my objections at this stage, but I must express my personal regret at the Minister's decision, which I believe is the wrong one.
  It is important that any solicitor held to be guilty of dishonesty or of bad practice, who is the subject of any finding of guilt—to use a shorthand, lay term—in respect of proper professional ethics should have his name and the finding published. However, I have grave reservations about that being done where there has been no finding of fault.
  I am unimpressed by the Minister's arguments. Even in General Medical Council findings of no fault or not guilty, its hearings are held in public and it publishes its findings, but its practice should not bind us in considering the correct procedure in disciplining solicitors. Anyone who followed the recent case of the unfortunate doctor who was found not guilty of having sexual intercourse with one of his patients will know that even the colour of his underwear became the subject of prurient and astonishingly widespread public interest. That doctor would be amazed to hear the Minister say that a finding of not guilty may not necessarily damage the reputation of the individual concerned. Of course it can.
  I accept that the General Medical Council is in a slightly different situation, in that its hearings are public, so that journalists can attend to report the juicy bits of evidence. That will not happen with solicitors' hearings, but even where there is no finding of fault, details of the hearings may still come to the public notice.
  Perhaps I should now put on my own sackcloth and ashes and tell the Minister that such hearings are matters of not only public but professional interest. Although I read the informative articles in each issue of the Law Society of Scotland's journal when I was in private practice, I also checked the records of the disciplinary committee that appeared at the back of that publication. If I learned that one of my colleagues or someone whom I vaguely knew had been up before the committee, and even if that individual had not been found to be at fault,

  1119
  I could not help noting that a charge had been brought at all—and the fact that it had did not do that individual's reputation any good in my mind.
  To be quite honest, his professional reputation suffered. People used to say, "Well, you know, he has been before the disciplinary committee a couple of times. All right, they didn't get anything on him, but!" Solicitors are no more objective about presumptions of innocence than any other group, and they are just as much of a gossipy village as any other vested interest or professional group. It is nonsense for the Minister to say that there will be no damage.
  In amendment No. 84 we have gone to great lengths to say that there need not be publication if it would damage the interests of any person other than the solicitor, his partner or their families. Also, there ought to be some consideration for the inevitable damage that could result for someone who is also worthy of consideration: the solicitor who has been the subject of allegations which have not been proved to be justified.
  Publication is bound to have a damaging effect, for the reasons that I have given. Clearly, my own preference would have been for my amendment No. 139, because it said that there should be no discretion, if there was a finding of fault, which is a big change from the present arrangements. If solicitors were found guilty of the complaint made against them, their names had to be published, subject to the necessary qualifications in amendment No. 84.
  However, if the finding was not guilty, we should at least leave the element of discretion so that, if it was clear that there was no moral turpitude and the allegations made had been held not to be proved, the discretionary committee of the Law Society could decide that, even if there was an interest in ventilating the circumstances of the case because it made a point of practice about which solicitors ought to be aware, it could be done without naming the solicitor concerned. That seems to be a sensible provision, and I am sorry that it has not found favour with the Minister. He is wrong, and individuals may suffer as a result.
  Sir Nicholas Fairbairn: I agree wholeheartedly with the hon. Member for Glasgow, Garscadden (Mr. Dewar) as I can imagine nothing more harmful than publication. As he generously suggested, professional people are no less scurrilous in their suspicions, although there should be a presumption of innocence, than non-professional people. If someone comes up before the disciplinary committee and gets off twice, all they will say is that he has got away with it again. Publication will be a slur on a solicitor's professional reputation and it will be impossible to remove it.
  I was astonished that a Scottish Minister should pray in aid the English section of the General Medical Council as an example to show that people did not suffer. I do not suppose there is any hon. Member in the Chamber who does not remember the name of the doctor the hon. Member for Garscadden mentioned, but the women with whom he was supposed to have had intercourse were protected and known as Mrs. A and Mrs B.
  The General Medical Council presumed guilt before it started, because it said that a couple of women could not be named, although their practices could not be affected as
  1120
  they did not have any. Their livelihoods and their families would not be affected, but the council said that the man who was wrongly accused could be named and the press were able to name him. I would not want the English section of the General Medical Council to be taken for an upholder of morals if that is the way that it behaves.
  Therefore, at the very least there should be the discretion not to disclose the name of a solicitor against whom a complaint has been made. 1 could name many cases—but I shall not—in which a disappointed litigant has made allegations against a solicitor, frequently at the same time as litigation but often years later, for motives which were entirely vindictive, irrational and emotional. There is absolutely no reason why the solicitor's livelihood, or that of his family and his partners, as well as his clients' interests should be put at risk by the publication of such an accusation. People remember accusations, but they rarely remember acquittals.
  Mr. Menzies Campbell: If the Minister seeks to rely on the General Medical Council, one can only assume that he was on holiday throughout the months of August and September. Anyone who had any regard to the nature and degree of publicity which attached to the proceedings referred to by the hon. Member for Garscadden could not but believe that a procedure which resulted in such publicity was thoroughly defective and damaging. The subject of such publicity has little chance of recovering.
  I hope that the individual we are discussing will recover, but the nature of the coverage in the press, on television and radio was such that he will find it a substantial obstacle to overcome. These matters must be assessed against the principle of public interest. It is clearly in the public interest that they should know about solicitors who have contravened the rules and regulations and have been found guilty of so doing.
  One might argue that, for the public's protection, they should know which solicitors have fallen below the prescribed standards of behaviour and conduct, so that they can exercise a choice about going to that solicitor. Also, they can be advised that discipline and behaviour are taken seriously by the Solicitors Discipline Tribunal.
  Where is the public interest in publishing the names of people who have not been found to have contravened the regulations? Hon. Members on both sides of the House and in Committee have accepted that the professional and financial consequences may be substantial for the individual concerned and for his partners and associates.
  The Minister has taken a broad brush, and decided to publish and be damned, but the people who will be damned are those who do not deserve to be. Even at this stage, the Minister should be able to exercise his independent judgment, and take a decision for which he would be praised by both sides of the House—a decision that would reflect an independence of mind appropriate to the office that he holds—and say that he will think the matter over again. If he withdrew the amendment and gave it further consideration, he would earn the respect of the whole House.
  Mr. Harry Ewing: It is a great pity that the example of the General Medical Council has been thrust into the debate. There is no comparison between a medical practitioner who is accused of misconduct and the procedure followed when a legal practitioner is accused of malpractice.

  1121
  In the case of the medical practitioner, whether a consultant or general practitioner, a whole host of procedures are followed before the case finally goes to the General Medical Council. Many cases do not even reach the council, because they are dealt with and disposed of at an intermediate stage. That is not the case with legal practitioners, because there is only one avenue for dealing with their alleged misdemeanors.
  The example of the General Medical Council is a red herring, for the reasons I have already stated and also because the council is constituted differently from the tribunal which considers allegations made against legal practitioners. The General Medical Council includes members of the public. My hon. Friend the Member for Aberdeen, North (Mr. Hughes) was a lay member of the council for a number of years, and a number of lay members sit in judgment on cases. There is no comparison between what happens to a medical practitioner and what happens to a legal practitioner when they transgress.
  The Minister ought to accede to the request by the hon. and learned Member for Fife, North-East (Mr. Campbell) and take this matter away. There is no doubt whatsoever that it would do almost irreparable damage to a solicitor practising in a closely knit community. Anyone who thinks that closely knit communities are to be found only in villages knows nothing of some of Scotland's larger urban areas. In my constituency, all the solicitors who practise in Falkirk, Grangemouth and Bo'ness are well known to every person who lives in those communities. If, after a disciplinary hearing, any one of those solicitors was found not to have transgressed yet had his or her name published, I can give the Minister an absolute guarantee—my hon. Friend the Member for Linlithgow (Mr. Dalyell) is here; he knows the communities that I am talking about as well as I do, and in the case of Bo'ness better than I do—that that solicitor's practice would be damaged beyond repair.
  7.30 pm
  It is a major error for the Minister to suggest that those who are found not to have trangressed should have their names published. I accept what the Minister said about there being no smoke without fire. A balance has to be struck. Do we publish the name of someone who is found not to have transgressed and therefore seek to clear that person's name, or do we withhold the name and hope that people accept that that person has not transgressed?
  I accept that a balance has to be struck, but it is not a fine balance. The heavy balance of probability comes down in favour of not publishing that person's name. Damage will be done in any case, but the damage could be minimised by not publishing the names of those who were found not to have transgressed. The names of those who were found to have transgressed should certainly be published, but those who have not transgressed can do without the ignominy of their names being published, with the statement that they have been found not guilty. There is nothing more damning. The Minister ought therefore to withdraw the amendment.
  Mr. Dalyell: When colleagues have spent many hours on a Bill, those hon. Members who did not spend those many hours upstairs ought to be reticent. Perhaps, however, I may be allowed to break silence on this issue—and briefly.
  1122
  I am strongly in favour of the arguments that were first advanced by my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar). My strong, ferocious feeiing is the result of constituency experience. When my hon. Friend the Member for Falkirk, East (Mr. Ewing) referred to Bo'ness he may have been thinking of a particular case that arose some years before Bo'ness became part of his constituency, when I represented it. The case is indelibly marked on my memory. It demonstrates how vulnerable solicitors can be if someone bears a grudge against them, a grudge that is perhaps completely ill-founded. Doctors are also vulnerable, and the police are becoming more and more vulnerable.
  As my hon. Friend the Member for Falkirk, East said, the trouble is that there is no smoke without fire. Mud sticks in small Scottish communities. This is not a party matter. When it becomes clear that the mood of the House of Commons is such that the Minister ought to think again—this Minister has a reputation, well deserved, in my opinion, for decency and for listening—and since he has heard colleagus on all sides ask him to think again about this matter, as a result of all our experiences, he should do so. Therefore I ask him, please, to do so.
  Lord James Douglas-Hamilton: We have had very interesting debates, both tonight and in Committee. The tenor of the representations made on that occasion was rather different. Powerful speeches were made in Committee on the subject in support of the proposition that there should be no special treatment for lawyers on the question of what publicity should be given to the disciplinary decisions of the relevant regulatory authorities.
  Views on the matter do not divide along party political lines. For example, on that occasion the hon. Member for Falkirk, East (Mr. Ewing) said that he saw no grounds for making a special case for lawyers in this context. On looking into the position with regard to similar professional regulatory authorities, I am of the firm view that the case for giving publicity to the decisions of the council, the tribunal and the board in all cases is conclusive.
  I recognise the strongly held views both inside and outside the legal profession on this question. Nevertheless, I believe that the amendments that I have tabled reflect a sensible and moderate approach. I hope, therefore, that the hon. Member for Glasgow, Garscadden (Mr. Dewar) will not feel that he has to press amendment No. 139 to a Division. I do not see the need for any secrecy in connection with the decisions of the tribunal or the board, whatever the outcome of the case in question.
  Mr. Wilson: We intend to press this matter to a vote because an important point of principle is involved. What both we and the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn) have been asking is: do we believe in smearing people? To publish a verdict of innocence but still to broadcast the fact that the case occurred amounts to stigmatising a person's reputation.
  Sir Nicholas Fairbairn: I advise the hon. Gentleman—I shall not charge for this opinion—that if he wants to defame someone without the risk of having to pay damages, all that he needs to say is, "My dear boy, let me be the first to deny this rumour that is going about that you are a paedophile."
  Mr. Wilson: Perhaps we could have a conference to agree on which rumours about the hon. and learned Gentleman we should deny.
  I am not a lawyer; I have a journalistic background. People have come to see me on many occasions because they were obsessed by what they regarded as a legal grievance. That has occurred particularly in the Highlands. Crofting throws up innumerable cases of that kind. Such people go to every lawyer in the Highlands and Islands and become absolutely convinced that each new lawyer they see is more bent and less interested in their case than the previous lawyer. People who are obsessed in that way take their case from lawyer to lawyer.
  I have spent many hours trying to get to the bottom of complicated cases in order to find out whether someone has been badly treated. As soon as one realises that a person has been to 10 lawyers and that the first nine agree, one's suspicions are aroused. When a person is convinced of his rectitude but when in law he does not have a leg to stand on, the idea that the lawyers should be exposed as having failed their client, or should be suspected of having failed their client by the publication of this material, would be gratuitous, offensive and unnecessary, and would not lead to public satisfaction with the process. It would discredit people who had no cause to be discredited.
  We all agree that wrongdoing and malpractice should be published, but where malpractice and wrongdoing have been found not to have been committed there should be no publication. It is a simple principle. I wish that it could be extended beyond solicitors to many others. There is nothing so damaging as the dirty little paragraph in a local newspaper telling the world that someone has been found not guilty of something. Two wrongs do not make a right. Let us not enshrine in law, by means of the amendment, the principle that solicitors should be treated in the same way.
  Mr. Deputy Speaker: The Question is that the amendment be made—
  Mr. Dewar rose—
  Mr. Deputy Speaker: Order. We are dealing with amendment No. 47.
  Mr. Dewar: On a point of order, Mr. Deputy Speaker. It would save a lot of confusion if I say that I shall recommend to my hon. Friends that we force a Division on amendment No. 139.
  Mr. Deputy Speaker: The hon. Gentleman can do that, but it appears way on in the Order Paper. We cannot take a Division on amendment No. 139 until we reach it on the Order Paper. The hon. Gentleman could certainly divide the House on that amendment, but it would not happen for some time. Perhaps he would like to reconsider his position in the light of that.
  Mr. Dewar: The only way that I could achieve the effect that I wish is either to vote for amendment No. 139 or against Government amendment No. 84. That might have the effect of marking the point that I make. I do not know whether it would be easier to divide on Government amendment No. 84. Unfortunately, it is a mixed bag of amendments, but I am sure that the Chair understands my difficulty.
  Mr. Deputy Speaker: If I could help the hon. Gentleman, I would, but Government amendment No. 84 appears a long way down the Order Paper. It will not be possible to vote on it until we reach it.
  Mr. Dalyell: Further to that point of order, Mr. Deputy Speaker. Might not this be one of the occasions when parliamentary procedure is a bit unhappy in its effects? In the light of what has been said, some hon. Members would like to give the Minister time to consult his ministerial colleagues and advisers and reach a considered decision. I am very much against Ministers being forced, at point blank range, into a decision when, if given more time, they might reach a different decision.
  Mr. Dewar: In the circumstances, I will not divide the House at this point, but I reserve the option to do so on amendment No. 139 when we reach it. That would be common sense. I am attracted to the point made by my hon. Friend the Member for Linlithgow (Mr. Dalyell). I do not know whether the Minister has any room for manoeuvre, but he will have gathered that we feel quite strongly about this point of principle and that our feelings are shared by some Conservative Members.
  I hope that it is not improper to say that I have had conversations with the Law Society on the matter and that in general it supports the point that I am making. There is quite a group of interested people and of people of some expertise, and perhaps in the interval before we reach amendment No. 139, the Minister will consider his position and consult representatives of the Law Society, who are in the building.
  Mr. Deputy Speaker: I understand the difficulty that the House is in, but I can give the hon. Member for Glasgow, Garscadden (Mr. Dewar) an assurance that, when we reach amendment No. 139, if he desires to divide the House, that desire will be conceded by the Chair.
  Mr. Harry Ewing: Further to that point of order, Mr. Deputy Speaker. To clear the mind of hon. Members, the vote on amendment No. 139 is anything but imminent. As I read the Order Paper, it would be the last vote in our consideration. That takes the pressure off the Minister and gives him much more time to reach that sensible conclusion.
  Mr. Deputy Speaker: I hope that we have reached a sensible and happy conclusion.
  Amendment No. 47 agreed to.
  Amendments made: No. 48, in page 26, in line 29, after 'than' insert '(i)'.
  No. 49, in page 26, line 30, leave out 'and' and insert 'or (ii)'.
  No. 50, in page 26, line 31, after first 'or' insert '(iii)'.
  No. 51, in page 26, line 42, leave out 'inquiries under this section' and insert
  'this section and section (Board's intervention powers).'
  No. 125, in page 26, line 42, at end insert—
  '(11A) The Secretary of State, after consulting the Board, may by order made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament, amend subsection (2)(dd) above by substituting for the sum for the time being specified in that provision such other sum as he considers appropriate.
  (11B) The taking of any steps under subsection (2) above shall not be founded upon in any proceedings for the purpose of showing that the practitioner in respect of whom the steps were taken was negligent.

  1125
  (11C) A direction under subsection (2)(dd) above to a practitioner to pay compensation to a client shall not prejudice any right of that client to take proceedings against that practitioner for damages in respect of any loss which he alleges he has suffered as a result of that practitioner's negligence, and any sum directed to be paid to that client under that provision may be taken into account in the computation of any award of damages made to him in any such proceedings.'—[Lord James Douglas-Hamilton.]

Clause 20

  INTERPRETATION OF SECTIONS 14 TO 19
  Amendment made: No. 53, in page 27, line 29, at end insert
  'except where the context otherwise requires'.—[Lord James Douglas-Hamilton.]

Clause 28

  RULES OF CONDUCT ETC.
  Amendments made: No. 100, in page 36, line 35, after 'discipline)' insert—
  '(a) at the end of subsection (1A) there shall be inserted—
  "and
  (f) make such additional or different provision as the Council think fit in relation to solicitors who, or incorporated practices which, are partners in or directors of multi-disciplinary practices."; and
  (b)'.
  No. 101, in page 36, line 39, leave out from 'prohibiting' to 'shall' in line 42 and insert
  'the formation of multi-disciplinary practices'.—[Lord James Douglas-Hamilton.]

Clause 31

  JUDICIAL APPOINTMENTS
  7.45 pm
  Lord James Douglas-Hamilton: I beg to move amendment No. 54, in page 39, line 21, leave out
  'and the High Court of Justiciary'.
  Mr. Deputy Speaker: With this, it will be convenient to consider Government amendments Nos. 55 and 70 to 77.
  Lord James Douglas-Hamilton: There has been considerable support for the principle underlying the new provisions contained in paragraph 4(2)(b) of schedule 4 relating to the filling of vacancies in the Inner House of the Court of Session. Under existing provisions, when a vacancy arises in a division of the Inner House, the most senior lord ordinary is automatically appointed. In many circumstances, it may well be that, not least by virtue of his experience, the most senior lord ordinary is indeed the best-fitted judge to fill the vacancy, but, equally, there is no reason to suppose that that will necessarily be true on each and every occasion.
  The Buggins' turn principle, if I may so describe it, may have worked well enough in the past, but it hardly seems appropriate in modern circumstances. In recent years, there has been a very substantial increase in the work loads of the Supreme Courts, a significant increase in the number of judges and an increased use of extra divisions in the Inner House. Until 1988, judges of the Inner and Outer Houses received identical salaries but in that year, to
  1126
  reflect current circumstances, the Top Salaries Review Body recommended, and the Government accepted, that a salary differential should be introduced.
  To reflect those changes, provision has been made in the Bill for vacancies in the Inner House to be filled by the Lord President and Lord Justice Clerk in consultation, as appropriate, with the other judges. In our deliberations in Committee on these new provisions, it was suggested that it would be appropriate for there to be statutory provision for the Secretary of State also to be involved in these appointments. My hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn) was keen on that amendment. The Secretary of State is, of course, involved in other judicial appointments to the Supreme and Sheriff Courts, and with regard to appointments to the Inner House it would seem to be appropriate for there to be some measure of accountability to Parliament.
  On that basis, the Government have tabled the amendment, which provides that the consent of the Secretary of State will be required for appointments to the Inner house. The Lord President and the Lord Justice Clerk have been consulted about the amendment and have expressed themselves content with it, for their interests. The amendment meets the concern expressed in Committee, and I commend it to the House.
  The purpose of amendments Nos. 54, 55, and 71 to 77 is to put beyond doubt the jurisdiction of temporary judges appointed under the provisions of the Bill. It has been the intention since the outset that judges, whether permanent or temporary, appointed under the new provisions should, like the existing senators, be able to sit in the Court of Session and the High Court, and the amendments are designed to ensure that that will be so.
  Mrs. Fyfe: Will political involvement mean that henceforth the Minister might take the opportunity to monitor the appointment of women judges, whether they be temporary or permanent, Inner or Outer or superior or inferior?
  Lord James Douglas-Hamilton: The principle is that they are appointed on merit.
  Sir Nicholas Fairbairn: I thank the Minister for making these changes, but during the recess I have had a better idea than the one that I suggested to him, and I should like to put it on record in Hansard.
  The Bill provides that the Lord President and the Lord Justice Clerk shall consult such other judges as they think appropriate. It seems proper that they should consult all the judges. One of the greatest Scottish traditions, for judges, peers and other matters, is that those who are part of the fraternity should judge who is appropriate to act on their behalf. The Senate of the College of Justice is a collegiate court. Until the life peerage was introduced, which some of us greatly regret, the peers of Scotland elected from their number those whom they thought worthy to be in the House of Lords, and peers created before 1707—I am not sure whether the Dukes of Hamilton were—are entitled to nominate which of their children shall succeed them. I hope that the Minister appreciates that terrible duty. The concept of democratic selection is an important matter.
  With the greatest respect to my hon. Friend the Minister, I must say that he is not being quite truthful with the House when he says that the purpose of the amendment, which seeks to leave out the words:

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  "and the High Court of Justiciary",
  is to put beyond doubt that the people named are allowed to appear. No judge is appointed as a judge in the High Court of Justiciary. He is appointed as a Senator of the College of Justice, and he takes the oath in the Court of Session and not in the High Court of Justiciary. He is entitled to appear in the High Court of Justiciary, although the amendment does not say that. It says merely that, for the purposes, he is a Lord Commissioner of the Senate. I say with respect through my hon. Friend to his civil servants that they have realised that they got it wrong historically and they have corrected it. However, when we correct a mistake, let us not pretend that we are trying to put matters beyond doubt.
  Mr. Menzies Campbell: It seemed a rather curious provision when it was first put forward that promotion, as I suppose that it would be regarded, from the Outer House to the Inner House should be left to the Lord President of the Court of Session and the Lord Justice Clerk who, after all, are the people who occupy the chairs of the two appellate divisions of the court. What the Minister has now told the House that he is prepared to accept represents a proper compromise, not least because those appointed to the office of Senator of the College of Justice are appointed by the monarch, but on the recommendation of the Secretary of State for Scotland.
  To introduce the Secretary of State into the procedure by which a judge may be promoted from the Outer House to the Inner House seems entirely consistent with the procedure adopted when judges are appointed in the first place. For that reason, I welcome what the Minister has said. It reflects a proper balance of the interests that we have discussed. The Minister has properly reflected the argument in Committee in what he has told the House that he is willing to accept.
  Amendment agreed to.
  Amendment made: No. 55, in page 39, line 32, leave out 'and the High Court of Justiciary'.—[Lord James Douglas-Hamilton.]

Clause 36

  ADVISORY AND SUPERVISORY FUNCTIONS OF THE DIRECTOR
  Amendments made: No. 56, in page 42, line 36, after 'section' insert '15(10A) or'.
  No. 57, in page 42, line 38, leave out 'or (11)(c)'—[Lord James Douglas-Hamilton.]

New clause 13
  RESTRICTION ON NUMBER OF PERSONS IN LICENSED PREMISES
  '.—(1) After section 38 of the principal Act (power of licensing board to make byelaws) there shall be inserted the following section:—
  RESTRICTION ON NUMBER OF PERSONS IN LICENSED PREMISES

    Restriction on number of persons in licensed premises.
    38A.—(1) A licensing board, when granting a licence, may attach a condition to the licence limiting the number of persons to be admitted to the premises in respect of which the licence is granted.
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    (2) The holder of a licence to which a condition under subsection (1) above is attached or any employee or agent of his shall be guilty of an offence if there is a breach of such a condition."
    (2) In section 17(6) of the principal Act (appeal as to conditions attached to licence) after the expression "38(3)" there shall be inserted the expression ",38A(1)".
    (3) In Schedule 5 to the principal Act (offences and penalties) after the entry in respect of section 38(4) there shall be inserted the following entry:—

    "Section 38A(2)

    Breach of condition attached to licence

    Yes Yes level 3 on the standard scale".'.

    —[Lord James Douglas-Hamilton.]
    Brought up, and read the First time.
    Lord James Douglas-Hamilton: I beg to move, That the clause be read a Second time.
    In Committee in another place, an amendment was moved enabling a licensing board, in granting renewal of a licence, and after consulting the fire authority, to fix, in the interests of public safety, the maximum number of persons entitled to be within the premises concerned from time to time and to make that number of condition of the licence.
    On behalf of the Government, the then Minister of State said that he was aware of the problems of overcrowding in public houses in the Borders in the summer months that had given rise to the amendment, notwithstanding that under the Bill the fire authority will be added to the list of competent objectors to applications and that boards will have increased powers to impose restriction orders on licensed premises. He said that the Government would take the matter away and consider it further with a view to returning to it during the later stages of the Bill. I must say to the hon. and learned Member for Fife, North-East (Mr. Campbell) that members of his own party made that proposal.
    Mr. Menzies Campbell: Name them.
    Lord James Douglas-Hamilton: The proposal was put forward on behalf of the noble Lord Mackie of Benshie, who used to be a Member of this House.
    I remember the former Secretary of State, Willie Ross, being asked by an hon. Member who represented a Cunninghame constituency when he had last been in a Scottish pub. His reply was, "Not as long as I can remember."
    I believe that there is a serious safety risk. I could go through the evidence from the police and from the firemasters in certain circumstances. The point was made in the other place that there were similar provisions for restrictions on numbers in other enactments in respect of which similar difficulties could be said to exist in terms of the concentration of people in particular parts of the building. Lord Tordoff doubtless had in mind, among other enactments, section 41 of the Civic Government (Scotland) Act 1982, which provides that a public entertainment licence shall be required for the use of premises as a place of public entertainment, and that a licensing authority may attach conditions to such a licence limiting the number of persons to be admitted to the premises. So far as we are aware, enforcement of that provision has not given rise to any difficulty.

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    A number of licensing boards have already invited the Secretary of State to consent to amendment of byelaws to include a provision that would enable the board to limit the number of persons in licensed premises. However, in our view, such a provision could not be framed in a way that was not ultra vires, and the Secretary of State has been powerless to act.
    I should mention that the chief constables of Grampian and Central, and the firemaster of Grampian have all written to express their concern about the lack of control of numbers in licensed premises. They suggest that, in some cases, it can lead to extreme danger to the public as a result of overcrowding. They are concerned that there are no powers under present licensing legislation to enable them to act.
    The Scottish Office shares that concern and sees the new clause as an important additional public safety measure. In our view, it should not lead to widespread restrictions on numbers being imposed. We should expect licensing boards to consider the circumstances carefully when they have it in mind to impose such a condition, to do so with due regard to any concern of the applicant and to set such a condition only when they are satisfied that the measure is necessary in the interests of public safety. The premises, for example, may be regularly crowded for social events such as birthday parties and discos. The new clause is deliberately widely drawn so that boards will be able to specify the condition in the terms appropriate to a case. It will, of course, be open to the applicant to appeal to the sheriff against the terms if he so wishes.
    Mr. Wilson: I thought for a moment that the Minister was going to give us a wee song, perhaps something like, "I knew a man who knew a man who couldn't get a drink in Peebles". The difference is that the man who could not get a drink in Peebles is a Member of the House of Lords. It is a tradition with these people when there is a slight irritation to think, "We'd better get some legislation through because we couldn't get to the bar at the common ridings."
    This is a foolish and potentially dangerous proposal. If it is generally enforced, it will cause infinitely more problems than it will ever resolve. In his somewhat puzzling closing remarks, the Minister seemed to suggest that he did not want to see it enforced. Why on earth is it being put on the statute book when there are already many other ways of addressing the problem?
    It is worth looking a little more closely at the origins of the new clause and also pointing out that we heard nothing of it in Committee. If we had, it would have received the usual savaging from Committee members of all parties. It was best withheld as a little surprise package for tonight.
    It was not, alas, Lord Mackie of Benshie in person who introduced the new clause. It was Lord Tordoff who, according to the Minister, thinks of little else but the Civic Government (Scotland) Act 1982. I have been asked who Lord Tordoff is. I am sure that the hon. and learned Member for Fife, North-East (Mr. Campbell) will be able to give us copious biographical details. Unfortunately Lord Tordoff had to do the job because Lord Mackie of Benshie, he apologised, could not be present as he had an engagement at the cathedral in Lincoln involving laying up the colours of his old squadron. In the course of researching this matter, I am bound to wonder at the crowded social life that Lord Mackie enjoys.
    Sir Nicholas Fairbairn: I know that we are not supposed to know anything about Members of the other place. Has Lord Tordoff ever been in Scotland and, if so, has he ever been in a pub in Scotland?
    Mr. Wilson: Perhaps he got his title from what he perceived to be the instruction shouted at him when he entered a pub in Scotland.
    The plot thickens because Lord Tordoff informed the House of Lords:
    "The amendment arises out of discussions between my hon. Friend Mr. Archy Kirkwood and the police, and correspondence between my right hon. Friend Sir David Steel and the Ettrick and Lauderdale District Council"—
    this is the exciting bit—
    "following experiences in the Roxburgh district."
    In his peroration, Lord Tordoff declared:
    "It is because of that considerable perturbation in the Borders that I move the amendment."——[Official Report, House of Lords, 17 May 1990; Vol. 409, c. 412–13.]
    8 pm
    I thought to myself, "Perturbation is building up in the Borders, so by the time we reach the new clause, the Liberal Benches will be crowded with perturbed Borderers." Only a few minutes ago, I saw the distinguished former leader of the Liberal party, the right hon. Member for Tweeddale, Ettrick and Lauderdale (Sir D. Steel) entering the Chamber. What is more, he had brought with him the right hon. Member for Yeovil (Mr. Ashdown). I thought to myself, "Here is a true measure of the perturbation in the Borders. The right hon. Member for Tweeddale, Ettrick and Lauderdale not only comes here in person; he brings the leader of his party with him." But then they left. So where is testimony to the source of the disease? Where are the hon. Members ready and willing to support the proposal?
    Mr. Menzies Campbell: It is too crowded.
    Mr. Wilson: I do not think that there is any danger of the Liberal Benches becoming too crowded.
    Where is the first-hand evidence of the circumstances that gave rise to this nonsense in the first place? Alas, we are not to hear from the perturbed representatives of Border constituencies—unless, that is, the hon. and learned Member for Fife, North-East is acting as their surrogate. Perhaps he will be the Lord Tordoff of these proceedings.
    I accept that the power in the new clause is an enabling power. The new clause does not say, "This must happen" but allows licensing boards to set limits if they so wish. But once the power exists, it will be used. The licensing boards are not noted for their coyness. They do not usually say, "There are things that we can do but we decline to do them." If the power exists to set limits, they will set limits.
    Such limits will become part of the normal licensing procedure and the important point is that they will apply on a year-round basis. They will be in force every day of the year. For 360 or even 364 days of the year, they may be perfectly sensible and reasonable limits. What I find irritating and unacceptable about the new clause—and this is why I have referred to its origins and to common ridings and riots in Roxburgh—is that it is aimed specifically at overcrowding in pubs on the big day in the small town. It is aimed at the big day in the local community—the one day in the year, perhaps, when the pubs will be en fête and overspilling and when people will be pouring into them in a general atmosphere of bonhomie.

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    For that one day in the year, there may not really be enough pubs to cope, but everyone adjusts and things go along very well. They certainly go along very well in every community—large or small—that I know in Scotland. If pubs have to observe a limit to avoid being found guilty of a criminal offence, there will have to be a man at the door—like a MacBrayne purser—standing there clicking them in and clicking them out, or perhaps even a turnstile, to ensure that the number of people in the pub does not exceed the legal limit.
    Let me go back to my home town for an example. I am not familiar with the Border ridings, which may, indeed, be riotous occasions, but I think the Cowal games—the ones I know best—are quite a good example. I should not like to be the guy standing at the door of a pub during the games weekend saying, "We can have 150 inside; would the other 500 mind waiting outside in an orderly queue until there is room in the pub?" I am sure that neither Lord Tordoff nor Lord Mackie of Benshie imagined themselves being outside in the queue. No doubt they thought that they would be inside among the 150. The new clause would cause infinitely more problems than exist at present.
    The problem would also arise on the night of the big football match, when pubs near the ground are inundated with people. Of course, people exercise their judgment: if the pub is so crowded that it is clear that they are not going to get a drink, they will not stand there waiting. I know that people should not drink on the way to football matches—it is very wicked—but some of them do. The pubs are crowded when people go in for a quick drink between work and an evening kick-off. Under the new clause they would be told to stand in a queue by a man on the door regulating the number of people in the pub to avoid a criminal offence being committed. I know that I am approaching the matter in a light-hearted way but I say in all seriousness that, in this, I can see the potential for trouble. It is ridiculous to legislate without taking account of the real circumstances that are bound to arise.
    Another objection, raised in the other place by Lord Macaulay of Bragar, is that there may be only one man standing at the door in a pub where there are three bars. Two of those bars might be empty while the other is going like a fair. That would mean that we should have to have three men standing at each pub door to ensure that each space within the same licensed premises fell within the law. The new clause is impractical and unworkable and anyone who has anything to do with the licensed trade will confirm that.
    There are already many ways of countering overcrowding. We already have legislation on the statute book. In the notes that the Minister kindly supplied to us, he points out that, in preparing the new clause, the Government had regard to section 1 of the Civic Government (Scotland) Act 1982 and that they also took account of the fact that, under the present Bill, the fire authority will be added to the list of competent objectors to applications, and boards will have increased powers to impose restriction orders in relation to the hours of opening of licensed premises. I repeat that there are many ways of approaching the matter, although I shall not go into all of them now. The most sensible way of dealing with serious overcrowding is for the police to exercise their right to enter and say, "There are too many people in this pub; please get some
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    of them out." That is how matters function on a practical basis. It would be wrong, foolish and misguided to legislate as is proposed. It gives me no pleasure to do so, but I confidently predict that the new clause would create an awful lot more problems than it would solve. The Minister should take it away and reconsider it.
    Sir Hector Monro: The hon. Member for Cunninghame, North (Mr. Wilson) has put the case for the opposition so well that not a great deal needs to be added. I hope that my hon. Friend the Minister will think twice about proceeding with the new clause. He knows that it would have had no hope of getting through the Standing Committee—for the very good reason that it is impracticable. I am the last chap to want to legislate for something that is practically impossible.
    The new clause seems to have stemmed from Lord Mackie's visits to Border common ridings. As someone who has been to many dozens of common ridings—in the Borders, in Dumfries and Galloway and even in Strathclyde—I know that they are conducted with great good humour, that the police always manage the crowds with great sympathy and that the whole day goes by without any trouble. It is significant that those who advocate the new clause seem to belong to the police forces and fire services in the north-east; they are not from the Borders or from Dumfries and Galloway.
    We should also bear in mind the fact that 20 Lord Mackie of Benshie would have a lot more trouble getting into a pub than 50 Members for Kilmarnock and Loudoun—on grounds of physical presence alone.
    I agree with the point that the hon. Member for Cunninghame, North made about pubs with several doors and several bars. I shall not go into the rugby stories that I could tell about the length of rugby bars and so on. But with the best will in the world, how is a publican to check all his bars and doors while doing his best to sell drams and pints behind the counter?
    In practical terms, the new clause would be impossible to implement, and we should think twice about proceeding with it, given that there seems to be so little evidence in its favour. Those of us with practical experience of the crowding that is alleged to cause offence would disagree with the argument that my hon. Friend the Minister is advancing.
    We should bear in mind the fact that the common ridings take place in each town only once a year. However, we should also consider the many occasions when football and rugby crowds gather after matches. Those people certainly cause overcrowding, but only for a relatively short period. Why should they not do that? Why can we not get together in a huddle and have a drink if we want? There is no reason why we should be prevented from doing that.
    The world may be a great nanny society in which people are not allowed to do anything; sooner or later we will not even be able to eat or drink. It would be very disappointing if the Government, who encourage freedom of choice, were to prevent me from going to the pub of my choice after a good rugby international at Murrayfield, particularly when we have all been so good at the match and have had nothing to drink. It seems very hard for the Government to stop us having anything to drink when we leave the game simply because there are too many people in a pub.

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    It is beyond one's comprehension to imagine the hard-pressed police behaving like Securicor and, as the hon. Member for Cunninghame, North (Mr. Wilson) said, checking people into the pub and then out again and even counting two if they are on a stretcher. The burden that we would be placing on the police force at a time when the police are particularly hard pressed is unimaginable.
    We need more practical evidence from those involved in these affairs before we grant such tough powers to the licensing boards to allow them to tell a publican that he cannot have 100 people in his pub on a Saturday night or 50 people in at any one time while the police, the publican and his staff must also somehow ensure that the law is enforced. There may be good intentions behind the new clause, but it would be bad legislation.
    Mr. Menzies Campbell: I should begin by declaring an interest. If new clause 13 is accepted, it may do much to create work for lawyers and especially work for those who, like me, from time to time practice in licensing law.
    Although the Minister referred to my next point in his speech, and the issue is not reflected in the Bill, it is objectionable that a discretion is to be conferred on licensing boards without any sign of the factors upon which that discretion is to be exercised. The Minister referred to public safety. However, there is nothing in the new clause about public safety, convenience, comfort, nuisance, undue disturbance or anything else which features elsewhere in licensing legislation. It is unreasonable to confer on licensing boards a discretion as unfettered as this.
    A license holder's only remedy to the provision would be to invoke the appeal provisions in clause 39, which provide a fairly restricted basis on which an appeal may be taken. If a board imposes a series of arbitrary limits on the number of people who may be admitted to a licensed premises within its jurisdiction, virtually all such impositions will go to appeal. Apart from creating work for lawyers, the Minister will ensure that the work of the sheriff court in Scotland is severely prejudiced and curtailed.
    One should confer no discretion on an administrative body unless it is essential that that discretion is required in the public interest and no other way of preserving that public interest can be found. In the hands of responsible licensing boards that would create no difficulties, but from time to tune, boards act irresponsibly or unreasonably. They are sometimes motivated by considerations other than the merits of the application before them. The Minister should not confer yet another discretion on licensing boards willy-nilly.
    One of the important changes to the law effected by the Licensing (Scotland) Act 1976, with which the hon. Member for Falkirk, East (Mr. Ewing) had so much to do, took away the unfettered discretion from licensing boards. At that time, Parliament thought it necessary that a new system of licensing should be created in which there was less discretion and in which decisions were more easily understood and more amenable to analysis and explanation. I believe that that was the correct way to proceed and I believe that the new clause contradicts that.
    So far, the evidence in support of the new clause is pretty thin. I respect the views of Lord Tordoff and Lord Mackie of Benshie, because they are as entitled to their views as anyone else. However, their views are worth no more than mine or the views of the hon. Member for
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    Falkirk, East, the hon. Member for Dumfries (Sir H. Monro) or anyone else with any experience of public houses in Scotland—and I include the Minister in that. No doubt, when he should have been reading the newspapers and discovering what was happening in the General Medical Council, he was in public houses around the country considering whether this proposal was necessary to preserve the peace and quiet of the people of Scotland.
    The new clause is not necessary, it is ineptly framed, and it confers a discretion which is not needed and which may be abused. Those seem compelling reasons why we should not accept it.
    8.15 pm
    Mr. Allan Stewart: As the debate progresses, I hope that my hon. Friend the Minister is becoming increasingly convinced that the sensible course of action is to enhance his reputation for independence of mind and withdraw the new clause.
    The House is in great difficulty when the Minister's justification for the new clause is that the subject was raised in another place in the context of a problem arising from the Border common ridings. The House has heard that my hon. Friend the Member for Dumfries (Sir H. Monro), who knows about the Border common ridings, is wholly opposed to this new clause.
    If the justification for the new clause arises from problems at the Border common ridings, it is surprising that my hon. Friend the Minister calls in evidence representations from Grampian police and Central police. We can be reasonably assured that they do not have a particular expertise in what happens at the Border common ridings.
    My hon. Friend the Minister also said that he did not expect there to be many restrictions on numbers in practice, although I may have got him wrong. If he does not expect there to be many restrictions in practice, why has he tabled the new clause? I do not want to labour the point about the Standing Committee. My hon. Friend the Minister has done his best with this Bill and has faced severe difficulties not of his making. However, if the issue was raised in another place and if an assurance was given that the Government would consider this provision, why was it not introduced in Standing Committee? That is where the provision should have been considered in detail. When hon. Members on both sides of the House do not want to stay up late, the House is placed in great difficulty if new provisions are brought forward on Report which are completely unrelated to the discussions that took place in Committee.
    I do not want to detain the House, but I want to repeat a point which has been underlined by hon. Members on both sides of the House. The people in the licensing trade to whom I have spoken believe that the new clause is unnecessary and, for reasons given by hon. Members tonight, that it is impractical and unenforceable. The House should not pass such legislation. I hope that my hon. Friend the Minister will recognise that and that he will greatly enhance his already high reputation by withdrawing the new clause at the end of this debate.
    Mr. Harry Ewing: I am beginning to be seriously worried about the Minister. The new clause reads like something that was said to him as a joke in a pub but which he has taken seriously and translated into the proposed legislation. As the Minister listens to the debate,

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    surely he will come to the conclusion that he should withdraw the proposal. The legislation is founded on a number of points that the Minister put to us.
    Lord Mackie of Benshie and I are very good friends. I have shared a drink with the noble Lord on many occasions. All I can say is that if there is a pub in the Borders in which Lord Mackie could not get a drink, it must be some pub. I have been in his company often in much bigger crowds than we get in pubs in the Borders and I have never noticed Lord Mackie having any difficulty in getting himself a drink, or in getting me one for that matter. I place no great emphasis on the fact that Lord Mackie had difficulty in getting a drink in a pub somewhere in the Borders.
    The Minister told us that his hon. Friend the then Minister of State in another place was anxious to deal with the problem of overcrowding. I am the first to concede—this is the one concession that I shall make to the Minister—that the then Minister of State, Lord Sanderson, certainly knows a thing or two about overcrowding. Since he became chairman of the Tory party, he has fairly cleaned out the office in Chester street. If there was any overcrowding there, the noble Lord cleared it out.
    The Minister told us that he has had two letters, one from the chief constable of Grampian and another from the chief constable of Central.
    Sir Nicholas Fairbairn: It's the same fella.
    Mr. Harry Ewing: I agree with the hon. and learned Gentleman. I have a feeling that it is the same fella. The present chief constable of Grampian took up his post on 1 September—[Interruption.] He was previously the chief constable of Central. I want to see those letters because I honestly believe that it was the same chief constable who wrote both letters.
    Hon. Members are ridiculing the new clause because it deserves to be ridiculed. It is simply not capable of implementation. If there is one thing that we should not do when legislating, it is to introduce provisions that are incapable of implementation. All that we are doing is badly affecting the people in respect of whom the legislation would be applied—that is, the licensing board, licensees and, as the hon. Member for Dumfries (Sir H. Monro) said, the police force. They simply could not enforce it.
    I have been watching the civil servants' Box. I have great affection for the people who occupy the Box. My right hon. and hon. Friends on the Opposition Front Bench will be working with them in a year's time, so I keep in with them. This afternoon the personnel in the Box changed at regular intervals depending on which part of the Bill and which clause we were debating. That is similar to what happens in a pub. A man goes into the pub, has a drink and comes out. Is the Minister trying to tell the House that we shall have someone standing at the door, saying, "There can be 150 in there. There are 149, so whoever is at the top of the queue can go in"? That is absolute madness.
    Licensed clubs operate on a different basis. The licensing board is certainly responsible for granting a licence to a licensed club, but the licensed club is under an
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    obligation to submit a list of members on a three-yearly basis before the licensing board will grant a new licence to a licensed club.
    Mr. Dennis Canavan: To the sheriff.
    Mr. Ewing: I am grateful to my hon. Friend the Member for Falkirk, West (Mr. Canavan).
    Before it will grant a new licence, the licensing board sees the official list of members. What will the licensing board do if the club has a membership of 800 people—every member is entitled to get into the club as that is part of the conditions of membership—but the capacity of the premises is only 300? Will the licensing board refuse a licence because the club has been successful in attracting 800 members but has accommodation for only 300? All those points serve to make the clause look more and more ridiculous. The Minister should say, "I have seen the light. I will withdraw the new clause because I know that it is not practicable."
    Sir Nicholas Fairbairn: It is offensive that such a new clause should be introduced when it was not considered in Committee. That is the first of my propositions. Lest the Minister think that I shall be too serious, I shall give him one promise. I shall give him a way out, but I shall come to that at the end of my speech.
    I am glad to say that the hon. and learned Member for Fife, North-East (Mr. Campbell) denied Christ Benshie before the fire, and Lord whoever-he-was whom I had never heard of who has never been in Scotland.
    I wish to say various things partly in replication of what other hon. Members have said. As my hon. Friend the Member for Dumfries (Sir H. Monro) said, it is idiotic to base the number allowed in a public house on the number of those who use it annually or occasionally. As the hon. and learned Member for Fife, North-East said, it is manifestly unfair to reverse the intention of the 1976 Act to take arbitrary powers from the licensing authority. It has every form of absurdity. I shall point to the practicalities to demonstrate the absurdity.
    The licensing authority—I am arguing for the moment without giving away my secret exit for the Minister—may say, "You may allow only 200 people in." I have in mind that bar at the end of Rose street, where people went on their way to Murrayfield, with that nasty woman, Ma Scott. The licensing authority may say, "You may allow only 200 people in Ma Scott's bar." After being at Murrayfield, 90 per cent. of the people who drink at Ma Scott's bar stand on the pavement outside anyway. Are they part of the people who are supposedly in the bar?
    Along comes diligent Police Constable Brian Wilson, accompanied by Sergeant Harry Ewing. He goes into the public bar and, as everyone sways around saying, "Wasn't that a great game?", he says, "Stand still everybody, I am going to count you." Unfortunately, the pub is already so full that they cannot get around to count them. Eventually they manage to push their way through to the loo entrance at the back in the far corner to make sure that there is nobody in there to be included in the numbers. They manage to count 200 people in the pub.
    One person then says, "I am actually a bartender," "Sorry, we will start again. You go outside. I am just counting the drinkers." He counts all the drinkers—199. He knocks at the locked door of the loo, and there are two people in it—a pair of gays who were not there to have a

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    drink—and he says to Ma Scott, "You have committed a criminal offence; I have counted these people and there are 201 in here. Did you realise that?"
    Can anyone imagine a greater absurdity? Meanwhile, in addition to those to whom I have alluded, there are people waiting outside the pub, like people waiting outside a loo, saying, "Come on, hurry up—I'm desperate." It is fatuous. I have never heard such junk. I have never heard any junk like that being thrown at us at this stage in a debate.
    8.30 pm
    The hon. and learned Member for Fife, North-East (Mr. Campbell) pointed out the important criterion of public safety and the role of fire officers. Mr. Oliver, formerly chief constable of Central Scotland and now the chief constable of Grampian, has written two letters about these serious matters, but when was a chap last burned in a pub? When was a chap last suffocated or asphyxiated in a pub? When was a chap last trampled to death in a pub? I suppose that in the history of Glasgow pubs the answer would be that if the punter realised that the fellow who runs the "Ship Bank Vaults" had one extra fellow in there, he might just stab him to death and say, "You're dead, I've saved you from being prosecuted, mister."
    I should like to give the Minister a way out now. When granting a licence, a licensing board may attach a condition to that licence limiting the number of persons to be admitted to the premises in respect of which the licence is granted. As all hon. Members know, the ultimate lie that a Minister can tell, which is fed to him from the civil servants' Box to get him out of a difficulty, is "Unfortunately, the drafting is defective." The great secret is that nothing here says "at any one time". So the licensing board, when granting a licence, can say, "Until you lose your licence, you are only allowed to admit 100 people into your pub."
    If it wants to be really sadistic, a licensing board could say, "Yes, Mr. Grant, we are granting you your licence and we are very impressed with the money that you have spent to comply with the safety regulations and the fact that you have lavatories for the disabled, the incurable and the blind, and facilities for dogs and cats, but we will only ever allow you to have one person on those premises. Do you still want your licence, Mr. Grant?" It has nothing to do with overcrowding. The provisions state simply that the number of people who will ever be allowed on the premises is limited. The drafting is therefore defective. If that is not a lifeboat into which a Minister can be pushed by those in the Box, there is no other known craft that can save him. There we have it.
    The other thing that I find particularly infuriating is that, essentially, it is an English argument to say that someone is not allowed to enter a pub if a policeman, a fire officer or even a chief constable wearing two different chief constable's hats takes the view that he thinks that you might not enjoy the experience. I do not particularly mind that. I go into pubs—some of which are empty, some of which are full—and I can tell the House that before I have had my first drink, I would have a hell of a job counting the people up to see whether there are more people than there are supposed to be.
    This is nonsense. If the Minister does not withdraw the new clause, he will be a laughing stock. If he does not withdraw this piece of mad Lewis Carroll fantasy, it will be passed into the laws of Scotland by the English majority in this House who have not heard one word of the argument.
    1138
    Furthermore, it will be passed by people who have probably never been in an English pub or any other pub. The day I receive a letter from a constituent stating, "Do you realise, Sir Nicholas, that I had to wait for half an hour for a drink in an overcrowded pub after Celtic beat Rangers?", I shall be very surprised, and the day I find a Scotsman who thinks that there is a danger of his being crushed on the way to get a drink, I shall be even more surprised. Let us throw this new clause in the swill bin where it belongs.
    Mrs. Margaret Ewing: Before the Minister accepts the lifeline that has been thrown to him by his hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn)—at least, I hope he will do so—I must express my own anger that the new clause has been tabled at this stage. We spent many hours in Committee discussing all aspects of the Bill, but only now, at this very late stage, has this particularly ludicrous new clause been tabled.
    The practicalities of trying to implement the provisions have been highlighted by many hon. Members. It almost seems as though we are considering an employment opportunity scheme whereby we could have flying squads of counting agents dashing around the villages and small towns of Scotland when they have their gala days or common ridings.
    I should like to pick up a point made by the hon. Member for Cunninghame, North (Mr. Wilson) and to talk about the importance of the big days for small communities when their pubs are extremely busy and perhaps overcrowded. I remind the Minister that in many small communities in areas such as the one that I represent, the big days or big weeks around an agricultural show are vital in sustaining the economies of those communities.
    If the Minister visits Keith in Banffshire on the two days of the Keith show, he will find not only that the show ground is extremely busy, but that the pubs, the tourist shops, the restaurants, the fish and chip shops and the grocer are all busy because people from all around are buying from other businesses in the town. That is vital to those communities. The same would be true if the Minister were to visit Dallas, Garmouth, Kingston or Spey.
    If the Minister were to visit any of those small communities on their gala day, he would see that that is when the tourists are there and that that is when the pubs and many other small businesses are busy and taking the money that will help to sustain them during the many other weeks when nobody else will be there apart from members of the local community.
    Such businesses deserve our support. If the Minister brings in such a ludicrous new clause, which would detract from many of the fetes and gala days, he will be doing a great disservice to the rural communities of Scotland.
    Lord James Douglas-Hamilton: This has been an interesting and colourful debate. I advise my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn) that the drafting is based closely on the previous Civic Government (Scotland) Act 1982 which my hon. Friend the Member for Eastwood (Mr. Stewart) piloted on to the statute book and on which my hon. and learned Friend himself may have advised on the drafting when he was Solicitor-General for Scotland. [HON. MEMBERS: "Oh!"] However—
    Sir Nicholas Fairbairn: If my hon. Friend the Minister can find any contribution from me to suggest that the number of people in a pub, myself included, should be controlled by a licensing authority, will he please direct me to the relevant part of the Civic Government (Scotland) Act?
    Lord James Douglas-Hamilton: I am certainly not going that far, but I can reassure my hon. and learned Friend that new clause 13 does not apply to registered clubs, which in any case receive their certificate of registration from the sheriff, not the licensing board. It is also clear that boards are not administrative bodies but consist of the democratically elected representatives of local people, and they are the appropriate bodies to decide when the proposed condition should be applied.
    Mr. Harry Ewing: The Minister is wrong. The certificate of registration is given by the sheriff, but the liquor licence is given by the licensing board. The sheriff does not grant liquor licences; the licensing board grants the club's licence.
    Lord James Douglas-Hamilton: The information that I received states that the provision will not apply to registered clubs, but I shall certainly check the point made by the hon. Gentleman. He is correct to say that certificates of registration are granted by the sheriff, not the licensing board. The licensee has a right of appeal under section 39 of the Licensing (Scotland) Act 1976. Section 39(4) provides that the sheriff may uphold the matter on appeal if he considers that the board has exercised its discretion in an unreasonable manner.
    The background to the new clause involved representations from the police and the Grampian fire brigade. I have checked, and the letters that I received are not confidential, so I shall make arrangements to have them placed in the Library. I stress that it was not the same chief constable who wrote on both ocasions, but different ones. [HON. MEMBERS: "Name them."] I am happy to name them. One was from the chief superintendent of central Scotland police and the other from Chief Constable Lynn of Grampian police.
    The most significant letter comes from Grampian fire brigade's fire master. I shall not mention the particular club about which he is concerned and about which he made many points in his letter. He expressed concern about the numbers attending discos. He stated:
    "The club … could not point out a means of escape in case of fire and when this means of escape was identified and followed, it was found to be obstructed."
    Mr. Menzies Campbell: The Minister is reading from a letter that refers to clubs. I understand that the proposal before the House applies not to clubs, but only to licensed premises. Clubs are registered under a separate part of the licensing legislation.
    Lord James Douglas-Hamilton: Yes, but the principal point made in the letter relates to discos—I shall certainly place the letter in the Library. The principal point he makes is:
    "this situation is causing great concern to the Fire Authority and clearly some action must be taken immediately."
    I must make it absolutely clear that the new clause is a permissive provision; it is obviously not mandatory.
    Mr. Dewar: The Minister is concerned about fires, but my impression is that the premises that he says are not
    1140
    covered by the clause—clubs and so on—are those most likely to have fire disasters. I concede that that is anecdotal evidence, but all my memories of newspaper articles suggest that. I take the point made by the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn) that it is not pubs that go up in a blaze but the very premises that the Minister says are being excluded from the provision. Surely there are other ways, through fire regulations, of covering the fire danger.
    In his support, the Minister has advanced two policemen and one fire master. How widespread has his consultation been? What about Strathclyde and the licensing boards? I should have thought that it was the views of the board members who are to have the power wished upon them that should be of importance. I suspect that for most people interested in the matter, the new clause comes as an equally puzzling surprise as it does to hon. Members.
    Lord James Douglas-Hamilton: I shall go back a stage to the point about clubs. The discos to which I referred are not registered clubs, although they call themselves that—they are licensed premises, so the provision would apply to them.
    That issue was raised at an earlier stage of the Bill, we promised to consider it and we received the further representations that I mentioned.
    The new clause deliberately refrains from specifying circumstances in which a condition might be imposed, because we believe that it is right and proper that the licensing board should exercise its discretion against the background of its local knowledge in determining where the condition is appropriate. Any unreasonable exercise of that discretion is challengeable by means of the provisions enabling the applicant to appeal to the sheriff. Similarly, on the question of how the licence holder should ensure that the numbers in his premises are limited in accordance with the condition, we would expect licensing boards to take account of representations that applicants may wish to make during the hearing.
    The 1976 Act already contains provisions imposing duties on licence holders in relation to the good order of their premises. Section 76 makes it an offence to sell alcohol to people who are drunk. The responsible licence holder can reasonably be expected to ensure also that his premises are not overcrowded where there is potential for that problem to occur.
    It has been suggested elsewhere that that would require electronic counting equipment. The advocation of the condition in particular cases would be a matter for the licensing board. It is important to bear in mind that, should proceedings be taken against the licence holder for breach of the condition, the police and the licensing board would no doubt have regard to the seriousness of the breach and the risk to public safety that had occurred or was likely to occur.
    The new clause is intended to reduce significantly the risk to public safety from overcrowding of licensed premises. It is framed in general terms to give licensing boards maximum flexibility in determining when and how its use would be appropriate, taking account of the concerns that the applicants may have.
    8.45 pm
    Sir Hector Monro: Surely my hon. Friend is not going to leave the matter like that. He has not explained how the condition will be breached. Hon. Members on both sides have shown the impossibility of controlling the number of people in a pub on a busy night, surely, as the new clause has received universal opposition, he will think again.
    Lord James Douglas-Hamilton: Let me make it plain that, when somebody applies for a licence—for example, for a wedding party—and intends to invite a large number of people, through the by-laws a restriction may be placed on the numbers involved.
    Mr. Wilson: I seriously begin to wonder whether the Minster has a clue what he is putting through. If we were talking about a specific licence for a specific function, it would be different. It is clear from the new clause that the figure would apply 365 days of the year to the premises and take no account of specific circumstances. The Minister must not put through this ridiculous piece of legislation on the basis of a personal misunderstanding of what it is about.
    Lord James Douglas-Hamilton: The consideration that weighs most heavily with me is that of safety, which has emanated from the Grampian police and fire master. I have concluded my remarks.
    Mr. Wilson rose—
    Mr. Deputy Speaker: Is the Minister giving way?
    Lord James Douglas-Hamilton: No.
    Mr. Deputy Speaker: If the hon. Member for Cunninghame, North (Mr. Wilson) has already spoken, he needs the leave of the House to speak again.
    Mr. Wilson: With the leave of the House, I shall briefly seek to sum up. To put it at its mildest, the balance of the argument has been against the Minister. The points that have been raised from both sides of the House remain conspicuously unanswered. If we were arguing the merits of the case tonight, we should have to cancel the Division because the No Lobby would be overcrowded. I hope that hon. Members from outwith Scotland who have been listening to the debate will at least pass on to their colleagues outside that every Scottish Member who has spoken, including every Conservative Member, apart from the Minister, has not only opposed the provision but ridiculed and roasted it, for excellent reasons. If people troop in to vote the measure through, they bear the responsibility for it.
    Sir Nicholas Fairbairn: The Minister has said that his prime consideration is public safety. He is also in charge of the Scottish Development Department—it is under his authority. It might say that it was not going to put in a pedestrian crossing in a certain place because only 22 people had been knocked down so far, so it did not qualify. How many people have ever been crushed or burned in pubs in Scotland? The answer is none, so why are we passing legislation to protect people from something that has never happened?
    Mr. Wilson: The hon. and learned Gentleman is absolutely right. Another aspect that the Minister has not mentioned is that other crowds will be created by this. They might not be inside the pub but they will be outside,
    1142
    so instead of being happy customers they will be extremely dissatisfied people, perhaps outside in bad weather, and they will see no rational reason why they are not allowed inside the pub.
    The Minister has also not mentioned that we are creating a new criminal offence. It will not result only in a black mark at the next licensing board; the person who administers the pub and allows in a number above the quota will be guilty of a criminal offence. That is outrageous.
    Mr. Menzies Campbell: Is the hon. Gentleman aware that certain licensing boards regard behaviour outside the licensed premises as capable of being relied upon to establish that the premises are not being properly managed? If an artificial limit on the permissible numbers inside is created, and as a result people congregate outside, when reliance may be placed on their conduct as a reason for removing the licence, the consequence of such a proposal may be that innocent people will suffer the loss of their licence, not simply a breach of condition.
    Mr. Wilson: That is another excellent point. If we were playing games, I could go around the Chamber and hon. Members could adduce additional arguments against the proposal. If the measure had been discussed in Committee, it could have been better examined. We are getting no answers and we expect none, but very serious points have been raised.
    Sir Nicholas Fairbairn: There is a perfectly good solution: if anyone in the pub is sober enough to count up to the limit, all he will do is buy pints and pass them out to those standing outside—not a very good idea.
    Mr. Wilson: The hon. and learned Gentleman confirms my point. Football or rugby crowds have never been examined in this context. Does anyone seriously think that in these circumstances—
    Lord James Douglas-Hamilton: I have given further consideration to the matter and, given what has been said, I think that there is a case for consulting more widely than merely with Grampian police. That means that we shall not be able to deal with the matter conclusively in this Bill, but I shall withdraw the new clause and we will consult more widely—
    Mr. Dennis Canavan: Hear, hear.
    Lord James Douglas-Hamilton: The hon. Gentleman had better wait until he gets back to his constituency, where he will find that the police take a view different from him.
    Mr. Canavan: They usually do.
    Lord James Douglas-Hamilton: Indeed. My hon. Friends have validly stated that there should be wider consultation, so the matter cannot be dealt with in the context of this Bill.
    I beg to ask leave to withdraw the motion.
    Motion and clause, by leave, withdrawn.

New clause 14
  WHOLESALE SELLING OF ALCOHOLIC LIQUOR
  '.—(1) After section 90 of the principal Act there shall be inserted the following section—
  WHOLESALE SELLING OF ALCOHOLIC LIQUOR

    Wholesale selling of alcoholic liquor.
    90A.—(1) A wholesaler or his employee or agent who barters, sells, or exposes or offers for sale alcoholic liquor shall be guilty of an offence unless—

    (a) he does so from premises which are used exclusively for wholesale trading (whether solely of alcoholic liquor or not); or

    (b) he does so from licensed premises, a licensed canteen or a registered club during the hours in respect of which it is lawful to sell alcohol by retail from or in these premises, that canteen or that club.

    (2) A wholesaler or his employee or agent who sells alcoholic liquor to a person under 18 shall be guilty of an offence.
    (3) A wholesaler or his employee or agent who causes or permits a person under 18 to sell alcoholic liquor without that sale having been specifically approved by a person of or over 18 shall be guilty of an offence.

    "Section 90A(1)

    Dealing wholesale other than from permitted premises

    Yes

    —

    level 5 on the standard scale

    Section 90A(2)

    Wholesaler selling liquor to person under 18

    Yes

    —

    level 3 on the standard scale

    Section 90A(3)

    Wholesaler permitting person under 18 to sell alcohol without approval

    Yes

    —

    level 1 on the standard scale".'

    Brought up, and read the First time.
    Lord James Douglas-Hamilton: I beg to move, That the clause be read a Second time.
    The new clause seeks to remedy an anomaly that has arisen in the control of the wholesale of alcohol. The Finance Act 1981 removed the excise licence requirements for wholesalers of alcohol and repealed the provisions contained in section 94 of the Licensing (Scotland) Act 1976 with the effect that wholesalers of alcohol are no longer subject to any controls. Thus, anyone can call himself a wholesaler and sell alcohol in quantity without requiring a licence. The licensed trade, licensing profits and the police have expressed concern about the present position.
    We have consulted wholesale and retail interests, the Law Society and the Convention of Scottish Local Authorities on the possibility of introducing appropriate controls, including restrictions on the sale of alcohol to and by persons under 18. All those who responded agreed that there should be controls over wholesale of alcoholic liquor.
    We have, however, no wish to impose unnecessary restraints on the great majority of entirely respectable wholesale operations, but we recognise that the present statutory provision leaves it open to people to deal in wholesale of alcohol from unsuitable premises, such as garages, or to existing licencees to circumvent the restrictions of their licences—for example, by trading in wholesale quantities on Sundays. In Committee there was unanimous opposition to our proposal that off-licences be permitted to open on Sundays, and we therefore consider it right that we should close the loophole which permits wholesale on Sunday under existing statute.
    The new clause creates an offence for a wholesaler, his employee or agent to barter, sell, expose or offer for sale alcoholic liquor unless he does so from premises exclusively used for wholesale trading or from licensed premises, a licensed canteen or a registered club during the hours when it is lawful to sell alcohol by retail in these premises, that canteen or club.
    (4) Section 67 of this Act (penalties for offences) shall apply in respect of offences under this section as if references in that section to a licence-holder were references to a wholesaler.
    (5) Section 71 of this Act (defence of due diligence) shall apply to any person charged with an offence under this section as if the reference in that section to a licence-holder were a reference to a wholesaler.
    (6) In this section,
    "licence-holder" includes the holder of a licence under Part III of this Act; and
    "wholesale" and "wholesaler", insofar as they relate to the sale of alcoholic liquor, have the meaning given in section 4(1) of the Alcoholic Liquor Duties Act 1979 in relation to dealing in alcoholic liquor.".
    (2) In Schedule 5 to that Act, after the entry relating to section 90(c) there shall be inserted—
    —[Lord James Douglas-Hamilton.]
    The new clause makes provision in subsections (2) and (3) for it to be an offence for a wholesaler, his employee or agent to sell alcohol to anyone under 18, or to permit the sale of alcohol by anyone under 18 without the sale being specifically approved by someone over 18. Subsection (4) applies the penalty provisions in section 67 of the 1976 Act, which apply to a licence holder, to a wholesaler, and subsection (5) applies to a wholesaler the defence of due diligence provisions in section 71 which applies to a licence holder. Subsection (6) defines the terms "licence holder", "wholesale" and "wholesaler" which appear in the new clause. Sub-paragraph (2) inserts into schedule 5 of the 1976 Act, which lists the penalties for offences against the provisions of the 1976 Act, the new penalties contained in subsections (1), (2) and (3) of the new clause.
    Mr. Wilson: This is an astute and well drafted clause, as one would expect of the Minister, and we wholly support it.
    Mr. Allan Stewart: I warmly congratulate the Minister. An important loophole has been closed. There was a real problem of abuse, and I hope that the House will agree to the new clause.
    Mr. McAllion: As the Minister said, the new clause makes it an offence to sell alcohol to people under 18 in certain designated places. It also makes it an offence for someone under 18 to sell alcohol in such places, but it does not make it an offence for such a person to consume alcohol in these places.
    As the Minister knows, Dundee district council has instigated a campaign against under-age drinking and has pioneered new byelaws under which it prohibits the consumption of alcohol in designated public places. The council is campaigning for the Government to legislate to make it an offence for under 18-year-olds to consume alcohol in public places. Will the Government listen sympathetically to the council's request and look for the earliest possible opportunity to introduce such legislation?
    Mr. Harry Ewing: I thank the Minister for his sensible decision to withdraw new clause 13. New clause 14 makes

    1145
    much more sense, closing, as it does, the Sunday loophole to which the hon. Member for Eastwood (Mr. Stewart) referred.
    The measure relates primarily to cash-and-carry establishments between Monday and Saturday. I reiterate what I said in Committee about the wholesale selling of alcohol and the retail selling of alcohol by or to persons under 18 years of age. We shall solve the problem only when we introduce provisions that make it compulsory for supermarkets and cash-and-carries to sell alcohol separately from all other goods. People purchasing alcohol should be served separately: the people on the check-outs are far too busy to see whether the person passing through the check-out is over or under 18. I would not blame them if an offence were committed, because they are under tremendous pressure. We should do the same with alcohol as we do with tobacco. One cannot select one's own tobacco; one must be served with cigarettes and tobacco in a supermarket or wholesale outlet. We should deal with the under-18 problem more firmly.
    9 pm
    Lord James Douglas-Hamilton: There are three trial schemes for experimental byelaws operating in Scotland now. In the light of the success or failure of the schemes, which will be reviewed in due course, we shall consider taking the matter further.
    I give way to the hon. Member for Monklands, West (Mr. Clarke), as I know that he is interested in this matter.
    Mr. Tom Clarke: I hope that the Minister will agree that I have not taken up too much of his, the Committee's or the House's time during consideration of the Bill. The Minister was kind enough to give me an interview when I was making representations on behalf of Monklands and Strathkelvin district councils, both of which were interested in the scheme and would have liked to have been the subject of the experiment.
    The Minister has said that, in the three districts where the experiment is taking place, developments are being monitored. He presumably hopes that he will soon be able to make a decision on its success or otherwise. How soon can we look forward to that? Even at this stage, is he in a position to say whether the exercise has been productive or otherwise?
    Lord James Douglas-Hamilton: It will be a few months before I am in a position to say that. However, I shall look into the matter and write to the hon. Gentleman, because I know that he is very interested. The nearest of the schemes is in Motherwell, which is not far from his own constituency.
    Question put and agreed to.
    Clause read a Second time and added to the Bill.

Clause 41

  PERMITTED HOURS
  Lord James Douglas-Hamilton: I beg to move amendment No. 19, in page 47, leave out lines 32 to 36.
  Mr. Deputy Speaker: With this it will be convenient to take Government amendment No. 20.
  Lord James Douglas-Hamilton: After a lengthy debate, the Committee agreed the amendment in the name of my hon. Friend the Member for Eastwood (Mr. Stewart)—
  1146
  who is here tonight—to remove section 64(4) from the Licensing (Scotland) Act 1976, with the intention of enabling licensing boards to grant occasional or regular extensions of the permitted hours of public houses on Sundays, which now run from 12.30 pm to 2.30 pm and from 6.30 pm to 11 pm. At the conclusion of the debate, I explained that the effect of the amendment would be to enable licensing boards to grant extensions of the permitted hours of public houses on Sundays for the periods before 12.30 pm and after 11 pm. I also suggested that a clarifying amendment would be needed on Report.
  Both in the substantive debate and as a result of the changes following my statement, a range of views were expressed about the intentions of the Committee. Several hon. Members referred to the need to put public houses and hotels on the same basis; others argued that public houses should not be open before 12.30 pm. In summing up, the hon. Member for Glasgow, Garscadden (Mr. Dewar) said that he was under the impression that the amendment not only dealt with the afternoon break, but provided also for later opening at the discretion of the licensing board.
  Amendment No. 19 deletes from clause 41 the references to extensions from Saturday night to Sunday morning. This provision is now inserted in amendment No. 20, which introduces into clause 42 an amended section 64(4) to empower licensing boards to grant occasional or regular extensions of permitted hours on Sundays in respect of public houses only to premises to which section 59 of the 1976 Act applies—restaurants in public houses—or after 2.30 pm. That will enable boards to grant late-night as well as afternoon extensions on a Sunday, if they consider it appropriate.
  In considering applications, the licensing board will be required to refuse an application if the grant would cause undue disturbance or public nuisance in the locality. This is on all fours with the test for Sunday opening within the permitted hours, which is specified in clause 42(4).
  Mr. Wilson: I fully support the amendment: it gets the balance right—a balance that the Committee wanted. On the one hand, there is a general tightening up on the granting of late licences, while the Sunday anomaly has been removed. On the other hand, every member of the Committee—indeed, I think, most hon. Members—would support the view that there should not be Sunday-morning opening. If that were accepted, the balance would tilt too far in the other direction. The Minister has the balance about right.
  I should like to place on record the representations that I received at a meeting on Friday with representatives of the Scottish area of the National Association of Licensed House Managers. They are opposed to Sunday opening for the understandable reason that that is the only time at which some of them can be with their families. I respect that consideration. I voted for longer Sunday opening and I shall not renege on that now. The licensed trade will have to address the matter. One cannot deal with the problem faced by that small group of people by a general denial of what is perceived as an extension of other people's freedom of choice. Plainly, that is a problem for that group of people, and I hope that the licensed trade will look at ways of avoiding the need for such managers to be as constantly on the premises as they seem to be at present.
  The managers also said that nobody should be under any illusion about the fact that the consumer pays for the

  1147
  extension of opening hours. As they have said, the extension of opening times throughout the 1980s has been accompanied by an increase in the price of drink that is higher than the increase in the retail prices index. They maintain that that is significantly related to the extension of opening hours. The consumer should be aware of that.
  As I have said, I think that the Minister has struck the right balance. The boards have a special responsibility to ensure that risks of disturbance and intrusion upon other people's rights are taken into account, especially in relation to late opening on Sundays. The boards will have to exercise that power with care. I support the amendment and welcome what the Minister has brought back from the Committee.
  Mr. Allan Stewart: I thank my hon. Friend the Minister for his consideration of this matter following the debate and vote in Committee on my amendment. I did not intend, and I do not think that any Member of the Committee intended, that the debate would result in opening on a Sunday morning. The Minister has struck the right balance, and I hope that the House will support the amendments.
  Mr. Harry Ewing: For the benefit of those outside who will read the report of our proceedings, I should like to place on record my understanding of the position on Sunday. I hope that the Minister will confirm or correct my interpretation. It is that the licence holder has to make an application to the licensing board to open between 2.30 and 6 pm on a Sunday and that the board has a discretion about whether to grant that application. For an extension after 11 pm, the licence holder would make an application against the background of the changes to the principal Act, which rightly introduces restrictions on extended hours after 11 pm. I hope that the Minister will confirm that there will not be automatic opening between 2.30 and 6 pm but that the licence holder has to apply to the licensing board, which will have the power to grant or refuse the application.
  Lord James Douglas-Hamilton: I confirm what the hon. Gentleman says, but the time is not 6 pm—it is 6.30 pm.
  Amendment agreed to.

Clause 42

  SUNDAY OPENING OF LICENSED PREMISES
  Mr. Menzies Campbell: I beg to move amendment No. 92, in page 48, line 29 after '(a)', insert
  'in subsection (1) after the words "applicant or" in line 7, the words "or any partner or director thereof or any person having a substantial interest therein,"
  (ab).'.
  Mr. Speaker: With this it will be convenient to consider amendment No. 93, in page 48, line 41 at end insert:—
  '(4A) In section 31 of the principal Act, (suspension of licence on receipt of complaint), in subsection (2)(a) after "licensed holder" insert the words "or any director or partner thereof or employee or agent with the responsibility for the day to day running of the premises, or any person having a substantial interest therein, or any person on whose behalf or for whose benefit the premises are managed".'.
  Mr. Campbell: I shall begin by again declaring an interest. I have already declared a professional interest in that from time to time I have practised before the licensing board and from time to time I am consulted by those with an interest in licensing matters. It is appropriate to make that declaration of interest because the issue about which I shall speak is one upon which I have been professionally consulted by Dundee district licensing board. However, it is a matter of general application because circumstances have been presented to the Kirkcaldy board and, more recently, before the Renfrew district licensing board. That shows that the issue to which the amendments are directed has application throughout Scotland.
  The issue arises out of the grounds upon which an application may be refused or a licence suspended. Section 17(1) of the Licensing (Scotland) Act 1976 sets out fair grounds upon which a licence may be refused. The first of those is that
  "the applicant … is not a fit and proper person to be the holder of a licence".
  Some controversy has arisen about whether, in the case of a limited company that applies for a licence, the licensing board is entitled to look behind the legal personality of the limited company and at the character of its directors, to determine whether they are fit and proper persons to be the holders of a licence. It is argued by some that, because of the way in which the legislation is framed, the board would be entitled to look at the character of the company and at the character of the manager of the premises, but not at the character of the directors of the company. That has caused some concern in a number of instances.
  It follows from that that, if an application is made under section 17(1) of the principal Act for the suspension of a licence, one of the grounds of which provides that the licence holder is no longer a fit and proper person to be the holder of a licence, if the licence holder is a limited company it is not possible to look at the character of the directors of that company.
  The practical consequence of that is that, although a limited company that applies for a licence and obtains it may have a board of directors comprised of men of total probity and acceptability, the shares of that company might be transferred and the directors of the company changed. It may be that the new directors of the company would not, under any circumstances, be the sort of individuals to whom a licensing board would have been disposed to grant a licence. In some cases, that is perceived by licensing boards to be a considerable restriction on their quite legitimate and, in my view, perfectly proper power to restrict the issue of licences to persons—I use the word in its broad sense—who are fit and proper people to receive such a licence.
  The most recent case, which the Minister may already have to hand, involves Renfrew district licensing board. It was reported in the 1990 Scottish civil law reports on page 436. I shall read from the rubric of that decision. Sheriff Stoddart of Paisley held that
  "the board had misinterpreted ss. 17(1)(a) and 17(3) and were not entitled to look at the characters of any persons other than the company itself and its proposed manager."
  That means that it was and would be quite improper for a board to look at the character of the directors of the company that had applied for a licence.
  There is some controversy about whether that is the correct view, but it is a recorded case in which a sheriff took that view. Consequently, in the minds of a number of

  1149
  licensing boards in Scotland there is a doubt about the precise nature of their powers. The purpose of the amendment and of the related amendment No. 93 is to seek to remove that doubt. The words that we seek to insert at the appropriate place are:
  "any partner or director thereof or any person having a substantial interest therein".
  The phrase, "any partner thereof" relates to the fact that in Scotland a partnership may have a legal personality separate from its partners. That is why it is necessary to make a reference to "any partner". I explained earlier the reason for the words "or director thereof", and the words
  "or any person having a substantial interest therein"
  will deal with the circumstances in which the majority shareholding may be in the hands of an individual who would not otherwise be regarded as a fit and proper holder of a licence.
  9.15 pm
  Amendment No. 93 relates to the circumstances in which, under section 31, an attempt may be made to suspend a licence. At present, the only ground given is that the holder is no longer thought to be a fit and proper person. Amendment No. 93 would insert the words
  "or any director or partner thereof or employee or agent with the responsibility for the day to day running of the premises".
  That harks back to section 11. It refers also to
  "any person having a substantial interest therein, or any person on whose behalf or for whose benefit the premises are managed."
  That refers to the terms of section 17(1)(a).
  I hope that the Minister will feel well disposed towards the amendments, which are meant to reflect substantial judicial uncertainty as to precisely what interpretation section 17(1)(a) will bear and to assist licensing boards, which are worried that a corporate veil may be available to individuals who might otherwise not be considered proper persons to hold licences. By creating a £100 off-the-shelf company having two £1 shares, and by using a person of good character to serve as an employee or agent, people who under no circumstances would be admitted to the onerous responsibilities of holding a licence would be able to subvert the considerable concern that chief constables, licensing boards and members of the public may feel at the fitness of certain individuals to have the responsibility for the sale of exciseable liquor.
  Mr. Ernie Ross: Concern is felt among members of licensing committees when they suspect that, as the hon. and learned Gentleman suggests, an individual has created a company and is hiding behind another person with the clear intention of circumventing the licensing authority's original decision to refuse a licence because of that individual's character.
  Mr. Campbell: The hon. Gentleman makes the point most succinctly.
  The amendments are an attempt to prevent people who would otherwise not be entitled to a licence from obtaining and enjoying the benefits of one by the device of creating a company and employing a person of good character as their manager or employee. Given the sophisticated licensing system that we now have north of the border, such a deception should not be possible. I hope that the Minister is sympathetic to the principle, even if he is not in agreement with the wording of the two amendments.
  Mr. McAllion: I add my words of support to those of the hon. and learned Member for Fife, North-East (Mr.
  1150
  Campbell), because there is growing concern in Dundee that an unwelcome situation could rapidly develop. If the sheriff court appeal decision is upheld—I understand that it has gone to the Court of Session—the licensing board might have to accept that it is not in a position reasonably to refuse licences to individuals who are not fit and proper persons.
  In a recent case in Dundee, the applicant for a licence had a record of theft and drug abuse, but the licence was refused more because it related to premises which had been used for the sale of pornographic material. It was refused, but if those people had set up a shell company and hidden behind it and the people who managed it on their behalf, if the sheriff court decision had been upheld, the licensing board believed that it would have had no alternative but to grant a licence to the shell company, thereby allowing people to gain control of a licence who are not the kind of people who could be considered as fit and proper to hold it.
  It is not merely the licensing board which is concerned. The local authority and the police are also worried about this development. As they pointed out, it is the wording of the 1976 Act which is wrong. It is too loose and is open to interpretation. That loophole has to be closed by the Minister. I hope that he will listen carefully to the amendment and will accept it.
  Lord James Douglas-Hamilton: We have heard an interesting legal argument. The amendments would considerably widen the fit and proper person criterion in section 17 of the 1976 Act to enable the refusal of a licence and, in section 31, the suspension of a licence.
  I understand that the interpretation of the "fit and proper person" criterion, where the applicant or licence holder is a corporation or company, has been raised in particular cases. The hon. and learned Member for Fife, North-East has mentioned one case which bears out what I believe to be the position. The issue has been whether criminal records of directors and companies are relevant to consideration of the criterion.
  The view has been taken that the fact that one partner or director was not a fit and proper person did not necessarily mean that the partnership was not fit and proper to hold the licence, especially if another person was responsible for the day-to-day running of the premises. Also, it has been maintained that a number of factors may be relevant to the consideration of a company's application, such as whether the company has any criminal convictions, whether there is a history of any difficulties with other licensed or unlicensed premises owned or managed by the company, and whether it obeys the law on the health and safety of its employees. In the Government's view, that interpretation and the existing statutory provisions are appropriate and adequate and there is no justification for widening the criteria in the way that the amendments propose.
  The licensing board should be concerned with the operation of the licensed premises, rather than with past actions or reputations of persons with an interest in the company which owns the premises. If, through the subsequent actions of directors or partners, the company acquires convictions or a poor reputation for licensing, those should be relevant considerations in relation to the exercise of powers under sections 17 or 31.
  Mr. Menzies Campbell: I may not have made myself clear. If a certain individual with criminal convictions applies for a licence, the chief constable may object to the application on the ground that he is not a fit and proper person. If the same person buys a company for £100 off the shelf, with two £1 shares, and obtains a reputable person to manage the premises on a day-to-day basis, making himself a director, through the device of the corporate veil he is able to obtain a licence that no licensing board would have given to him. In the face of that, how can the Minister say that the Government are satisfied with the legislation?
  I do not know whether the Minister has had the opportunity to read Sheriff Stoddart's judgment. He said that the board
  "were not entitled to look at the characters of any persons other than the company itself and its proposed manager".
  I know that there is some controversy, but that is the view of one sheriff. In that sheriffdom, Renfrew district licensing board will be bound by that view.
  Is the Minister seriously telling the House that it is right for someone who, by reason of their character, would not be entitled to obtain a licence none the less to be able to create a company for £100 and use that mechanism to obtain a licence? Surely that cannot be the Government's view. If it is, public opinion will be surprised.
  Lord James Douglas-Hamilton: The hon. and learned Member has put his point of view. The relevant considerations are any difficulties that a company might have had with other licensed or unlicensed premises that it owned or managed.
  The criterion used by the hon. and learned Gentleman to amend the sections in the way proposed would widen the criterion beyond what was originally intended, and beyond what we consider to be appropriate or necessary. I hope that the hon. and learned Gentleman will not press his amendment.
  Mr. Ernie Ross: I think that we shall be pressing the amendment to a Division. The Minister did not listen to what was said by the hon. and learned Member for Fife, North-East (Mr. Campbell). We do not want such a company to have a licence in the first place. The Minister suggests that an individual who is unable to get a licence under the normal licensing procedure should be allowed to form a company and that we should then wait and see whether that company turns out to be a good company. We do not want either that person or his company to have a licence. In a number of instances, however, that has happened. The Minister misses the point completely.
  Lord James Douglas-Hamilton: I see the point clearly. If a company is run by several people, the fact that one person may not be a fit and proper person does not necessarily mean that the company is not a fit and proper body to have the licence.
  Mr. Dewar: I have listened with interest to the point made by the hon. and learned Member for Fife, North-East (Mr. Campbell). He made a reasonable and persuasive case. It does not seem to be in the public interest that people who, because of their past record and character, would be laughed out of the licensing court should be able to buy a £100 company which they wholly control, since they own the entire equity, hire a manager of apparent respectability and happily thereafter enjoy the fruits of holding that licence.
  1152
  I suppose that it is possible to argue that, while the manager is in place, everything may be reasonably well run because of his integrity, but that is a matter for argument. One can envisage the pressures that might develop which would make the position less satisfactory. Apart from that speculative point, it is clear that the beneficial owner of the company would pocket the profits. I do not believe that that was ever intended. Certainly we should not wish to defend that position.
  I hope that the Minister will not take it amiss when I say that he is being a little obtuse in misunderstanding a simple point and the thrust of the hon. and learned Gentleman's arguments. I ask him to address the question in its simplest form. Let us assume that two partners who have been in trouble with the licensing courts over the years, who have a bad record and who are unlikely to be regarded by the police as suitable for holding a licence, buy an off-the-shelf company, provide themselves with that fig leaf and the additional cover of a manager of no known bad form and then sit back and enjoy the fruits of holding their licence. Can that be satisfactory? Is it defensible? Yet that is happening. There are precedents for the fears that have been expressed. The Minister ought to think again.
  Mr. Ernie Ross: It is not just that. We have discovered that such companies own more than one public house by means of this procedure. That is even worse. People who are not fit and proper persons to hold one licence now hold a number off licences by means of the shady deal of creating companies.
  Mr. Dewar: My hon. Friend reinforces the point. I hope that I have made it clear that we sympathise with the thrust off the amendment. We hope that the Minister will be able to adopt a more flexible view than that which he has adopted in the past few minutes.
  Lord James Douglas-Hamilton: The amendments might deal with the problem, but they are widely drawn. For example, they require the board to consider what constitutes a substantial interest. At this stage, we cannot agree to amendments which raise important and difficult legal issues of that nature.
  Mr. Menzies Campbell: I do not know whether I was wrong to detect a sudden burst of reasonableness in what the Minister has just said. Is he saying that he is willing, having heard what has been said fairly vociferously on the Opposition side of the House, to take the matter away and consider it? He should remember that the Bill must be considered by another place. If he is not saying that—he shakes his head to show that he is not—I shall feel compelled to press the amendment to a vote.
  I give the Minister one last chance. It will look pretty peculiar to the public of Scotland if the Minister is not willing to take the opportunity to prevent the abuse that the hon. Members for Dundee, East (Mr. McAllion) and for Dundee, West (Mr. Ross) have outlined in such stark and eloquent terms.
  9.30 pm
  It cannot be sensible to allow people who as individuals would not be allowed the responsibility of running licensed premises to create, through the corporate veil, a wholly dud mechanism to deceive the licensing board, for that is effectively what it is. The deception may be understood by the licensing board, but deception it undoubtedly is. It drives a horse and cart through the efforts of licensing

  1153
  boards to control the fitness, propriety and character of those who make applications before them. I urge the Minister, who has shown a willingness to respond to the force of argument, to give one last consideration to the point, because I assure him that if he does not give the sympathetic consideration for which we are arguing, public opinion in Scotland, and perhaps opinion on licensing boards, will find it difficult to understand his position.
  Question put, That the amendment be made:—
  The House divided: Ayes 102, Noes 154.

  Division No. 318]

  [9.30 pm

  AYES

  Abbott, Ms Diane

  Jones, Barry (Alyn & Deeside)

  Ashdown, Rt Hon Paddy

  Kaufman, Rt Hon Gerald

  Barnes, Harry (Derbyshire NE)

  Kennedy, Charles

  Barnes, Mrs Rosie (Greenwich)

  Leadbitter, Ted

  Barron, Kevin

  Lofthouse, Geoffrey

  Bennett, A. F. (D'nt'n & R'dish)

  McAllion, John

  Bidwell, Sydney

  McAvoy, Thomas

  Blunkett, David

  McCartney, Ian

  Boateng, Paul

  McFall, John

  Callaghan, Jim

  McKay, Allen (Barnsley West)

  Campbell, Menzies (Fife NE)

  McKelvey, William

  Campbell-Savours, D. N.

  McLeish, Henry

  Canavan, Dennis

  Madden, Max

  Carlile, Alex (Mont'g)

  Mahon, Mrs Alice

  Clarke, Tom (Monklands W)

  Marshall, David (Shettleston)

  Clay, Bob

  Marshall, Jim (Leicester S)

  Clwyd, Mrs Ann

  Maxton, John

  Cohen, Harry

  Michael, Alun

  Coleman, Donald

  Michie, Bill (Sheffield Heeley)

  Cook, Robin (Livingston)

  Moonie, Dr Lewis

  Cousins, Jim

  Morgan, Rhodri

  Crowther, Stan

  Murphy, Paul

  Cryer, Bob

  Nellist, Dave

  Cunliffe, Lawrence

  O'Brien, William

  Dalyell, Tam

  Orme, Rt Hon Stanley

  Darling, Alistair

  Patchett, Terry

  Dewar, Donald

  Powell, Ray (Ogmore)

  Dixon, Don

  Primarolo, Dawn

  Dobson, Frank

  Rogers, Allan

  Duffy, A. E. P.

  Ross, Ernie (Dundee W)

  Dunnachie, Jimmy

  Skinner, Dennis

  Eastham, Ken

  Smith, C. (Isl'ton & F'bury)

  Ewing, Harry (Falkirk E)

  Steel, Rt Hon Sir David

  Ewing, Mrs Margaret (Moray)

  Steinberg, Gerry

  Fearn, Ronald

  Strang, Gavin

  Flynn, Paul

  Turner, Dennis

  Foot, Rt Hon Michael

  Vaz, Keith

  Foster, Derek

  Wallace, James

  Fyfe, Maria

  Walley, Joan

  Galbraith, Sam

  Wardell, Gareth (Gower)

  George, Bruce

  Wareing, Robert N.

  Godman, Dr Norman A.

  Watson, Mike (Glasgow, C)

  Harman, Ms Harriet

  Welsh, Andrew (Angus E)

  Haynes, Frank

  Williams, Alan W. (Carm'then)

  Hogg, N. (C'nauld & Kilsyth)

  Wilson, Brian

  Home Robertson, John

  Winnick, David

  Howarth, George (Knowsley N)

  Wise, Mrs Audrey

  Howell, Rt Hon D. (S'heath)

  Worthington, Tony

  Hughes, John (Coventry NE)

  Young, David (Bolton SE)

  Hughes, Robert (Aberdeen N)

  Illsley, Eric

  Tellers for the Ayes:

  Ingram, Adam

  Mrs. Ray Michie and

  Janner, Greville

  Mr. Malcolm Bruce.

  NOES

  Alison, Rt Hon Michael

  Bennett, Nicholas (Pembroke)

  Amess, David

  Biffen, Rt Hon John

  Arbuthnot, James

  Bonsor, Sir Nicholas

  Arnold, Jacques (Gravesham)

  Boscawen, Hon Robert

  Ashby, David

  Boswell, Tim

  Aspinwall, Jack

  Bottomley, Mrs Virginia

  Baker, Nicholas (Dorset N)

  Bowis, John

  Batiste, Spencer

  Braine, Rt Hon Sir Bernard

  Bendall, Vivian

  Brazier, Julian

  1154

  Browne, John (Winchester)

  Kirkhope, Timothy

  Bruce, Ian (Dorset South)

  Knight, Greg (Derby North)

  Buck, Sir Antony

  Knight, Dame Jill (Edgbaston)

  Budgen, Nicholas

  Lang, Ian

  Burns, Simon

  Latham, Michael

  Burt, Alistair

  Lee, John (Pendle)

  Butler, Chris

  Lightbown, David

  Carrington, Matthew

  Lord, Michael

  Carttiss, Michael

  Macfarlane, Sir Neil

  Chapman, Sydney

  MacKay, Andrew (E Berkshire)

  Clark, Sir W. (Croydon S)

  McNair-Wilson, Sir Michael

  Clarke, Rt Hon K. (Rushcliffe)

  McNair-Wilson, Sir Patrick

  Conway, Derek

  Malins, Humfrey

  Coombs, Anthony (Wyre F'rest)

  Mans, Keith

  Coombs, Simon (Swindon)

  Maples, John

  Cormack, Patrick

  Marshall, John (Hendon S)

  Davies, Q. (Stamf'd & Spald'g)

  Martin, David (Portsmouth S)

  Davis, David (Boothferry)

  Mellor, David

  Day, Stephen

  Meyer, Sir Anthony

  Dicks, Terry

  Miller, Sir Hal

  Douglas-Hamilton, Lord James

  Mills, Iain

  Dover, Den

  Mitchell, Sir David

  Dunn, Bob

  Monro, Sir Hector

  Evennett, David

  Morris, M (N'hampton S)

  Fairbairn, Sir Nicholas

  Morrison, Sir Charles

  Fenner, Dame Peggy

  Moss, Malcolm

  Fookes, Dame Janet

  Neubert, Michael

  Forman, Nigel

  Newton, Rt Hon Tony

  Forsyth, Michael (Stirling)

  Nicholson, David (Taunton)

  Franks, Cecil

  Norris, Steve

  Freeman, Roger

  Paice, James

  French, Douglas

  Patnick, Irvine

  Fry, Peter

  Pawsey, James

  Gardiner, George

  Porter, David (Waveney)

  Glyn, Dr Sir Alan

  Price, Sir David

  Goodlad, Alastair

  Renton, Rt Hon Tim

  Goodson-Wickes, Dr Charles

  Riddick, Graham

  Greenway, Harry (Ealing N)

  Ridsdale, Sir Julian

  Greenway, John (Ryedale)

  Rifkind, Rt Hon Malcolm

  Gregory, Conal

  Shaw, David (Dover)

  Griffiths, Peter (Portsmouth N)

  Skeet, Sir Trevor

  Grylls, Michael

  Smith, Sir Dudley (Warwick)

  Hamilton, Hon Archie (Epsom)

  Stewart, Allan (Eastwood)

  Hamilton, Neil (Tatton)

  Stewart, Andy (Sherwood)

  Hanley, Jeremy

  Taylor, Ian (Esher)

  Hannam, John

  Taylor, John M (Solihull)

  Hargreaves, A. (B'ham H'll Gr')

  Thatcher, Rt Hon Margaret

  Hargreaves, Ken (Hyndburn)

  Thompson, D. (Calder Valley)

  Harris, David

  Thompson, Patrick (Norwich N)

  Hawkins, Christopher

  Thornton, Malcolm

  Hayward, Robert

  Thurnham, Peter

  Hicks, Mrs Maureen (Wolv' NE)

  Tracey, Richard

  Hill, James

  Tredinnick, David

  Hind, Kenneth

  Trotter, Neville

  Hordern, Sir Peter

  Twinn, Dr Ian

  Howard, Rt Hon Michael

  Waddington, Rt Hon David

  Howarth, G. (Cannock & B'wd)

  Walden, George

  Howell, Ralph (North Norfolk)

  Walker, Bill (T'side North)

  Hughes, Robert G. (Harrow W)

  Watts, John

  Hunt, Sir John (Ravensbourne)

  Wheeler, Sir John

  Hunter, Andrew

  Widdecombe, Ann

  Jack, Michael

  Wilkinson, John

  Janman, Tim

  Winterton, Nicholas

  Johnson Smith, Sir Geoffrey

  Woodcock, Dr. Mike

  Jones, Gwilym (Cardiff N)

  Yeo, Tim

  Jones, Robert B (Herts W)

  Young, Sir George (Acton)

  Jopling, Rt Hon Michael

  Kellett-Bowman, Dame Elaine

  Tellers for the Noes:

  Kilfedder, James

  Mr. Tom Sackville, and

  King, Roger (B'ham N'thfield)

  Mr. Timothy Wood.

  Question accordingly negatived.
  Amendment made: No. 20, in page 48, leave out line 50 and insert—
  '(7) In section 64 (extensions to permitted hours), for subsection (4) there shall be substituted the following subsections—
  "(4) A licensing board shall not grant an application from the holder of a public house licence for an occasional or regular extension of permitted hours on Sundays except—

  (a) as respects premises to which section 59 of this Act applies and for the purposes of that section; and

  (b) in the case of other premises, as respects any period or periods after half-past two in the afternoon,

  and the board shall refuse to grant such an application if it finds that the extension of permitted hours would cause undue disturbance or public nuisance in the locality.
  (4A) Nothing in subsection (4) above shall prevent the granting of an application for an occasional or regular extension of permitted hours on a Saturday for a period which continues into Sunday morning.".'.—[Lord James Douglas-Hamilton.]

New Clause 20

  SUPERVISED ATTENDANCE ORDERS AS ALTERNATIVES TO IMPRISONMENT ON FINE DEFAULT
  '.—(1) A court may make a supervised attendance order in the circumstances specified in subsection (3) below.
  (2) A supervised attendance order is an order made by a court with the consent of an offender requiring him—

  (a) to attend a place of supervision for such time, being 10, 20, 30, 40, 50 or 60 hours, as is specified in the order; and

  (b) during that time, to carry out such instructions as may be given to him by the supervising officer.

  (3) The circumstances are where—

  (a) the offender is of or over 16 years of age; and

  (b) having been convicted of an offence, he has had imposed on him a fine which (or any part or instalment of which) he has failed to pay and either of the following sub-paragraphs applies—

  (i) the court, prior to the commencement of this section, has imposed on him a period of imprisonment under paragraph (a) of subsection (1) of section 407 of the Criminal Procedure (Scotland) Act 1975 (power of court, when imposing a fine, to impose also imprisonment on default) but he has not served any of that period of imprisonment;

  (ii) the court, but for this section, would also have imposed on him a period of imprisonment under that paragraph or paragraph (b) of that subsection (power of court to impose imprisonment when a person fails to pay a fine or any part or instalment thereof); and

  (c) the court considers a supervised attendance order more appropriate than the serving of or, as the case may be, imposition of such a period of imprisonment.

  (4) Where, in respect of an offender, a court makes a supervised attendance order in circumstances where sub-paragraph (i) of paragraph (b) of subsection (3) above applies, the making of that order shall have the effect of discharging the sentence of imprisonment imposed on the offender.
  (5) Schedule (Supervised attendance orders: further provisions) to this Act has effect for the purpose of making further and qualifying provision as to supervised attendance orders.
  (6) In this section—
  "local authority" means a regional or islands council;
  "place of supervision" means such place as may be determined for the purposes of a supervised attendance order by the supervising officer; and
  "supervising officer", in relation to a supervised attendance order, means a person appointed or assigned under Schedule (Supervised attendance orders: further provisions) to this Act by the local authority whose area includes the locality in which the offender resides or will be residing when the order comes into force.'.—[Lord James Douglas-Hamilton.]
  Brought up, and read the First time.
  Lord James Douglas-Hamilton: I beg to move, That the clause be read a Second time.
  Mr. Speaker: With this, it will be convenient to take Government amendments Nos. 95, 94 and 96.
  Lord James Douglas-Hamilton: The need for the new clause and the amendments arises as a consequence of clause 51(3), which restricts the use of community service orders to cases in which the court would otherwise have imposed a custodial sentence. Although cheaper than imprisonment, community service is still a relatively scarce resource and, if it is to make a real impact on the numbers sent to prison, it needs to be targeted effectively on more serious offenders. Research has shown that, in many cases, community service has been used in place of other non-custodial disposals in circumstances where imprisonment would have been unlikely.
  Dr. Godman: What consultations have taken place with social work departments about the implementation of the proposal? Presumably social workers will play a key role. Do they need further training, or does the Minister believe that they are now entirely competent to perform the task that they will be called upon to perform?
  9.45 pm
  Lord James Douglas-Hamilton: Consultation took place in April and there was strong support for the proposal. About 10,000 people go to prison for fine default and it was felt not only that it would be better if they paid, but that it would be better if those who could not pay had a supervised attendance order of this type.
  One likely result of the restriction of the use of community service is an increase in the number of offenders who receive fines and hence in the number of fine defaulters. At present, imprisonment is the only penalty available to the courts for fine default. As I said, some 10,000 people are imprisoned every year in Scotland for that reason. If we are trying to encourage the use of non-custodial penalties, such as community service for offences serious enough to justify imprisonment, it would be inconsistent to countenance an increase in the numbers going to prison for fine default when the original offence did not merit custody.
  We believe that the solution is to offer the courts a limited alternative to prison for use in fine default cases. We have called this a supervised attendance order, which would be used only for fine default and would be the only penalty other than imprisonment available to the courts in default cases.
  The supervised attandance order is intended to punish by imposing a fine on the offenders' free time and by the imposition of regular discipline through punctual attandance and satisfactory behaviour with a sanction throughout of return to court and, ultimately, the possibility of imprisonment for non-compliance.
  The new order has several features in common with community service orders and the schedule follows closely the procedures laid down in the Community Service by Offenders (Scotland) Act 1978, but there are important distinctions. Supervised attandance orders will be of short duration. They will last for between 10 and 60 hours rising in discrete units of 10 hours while community service orders have a minimum of 40 hours and a maximum of 240.

  1157
  Offenders on community service perform unpaid work of benefit to the community often organised on an individual placement basis. The intention is that offenders on supervised attendance orders will be placed on group activity that can be provided at low cost. As well as unpaid work, sessions will be devoted to tackling anti-social behaviour such as alcohol misuse and to drug education and responsibilities to society.
  It is intended to introduce supervised attandance orders on an incremental basis commencing with sheriff courts and subsequently to extend their availability to the stipendiary magistrates court and the district courts. We propose that the orders be supervised and managed by local authority social work departments in accordance with agreed national standards and that local authorities should be reimbursed in full for the agreed costs of provision. I can tell the hon. Member for Greenock and Port Glasgow (Dr. Godman) that I have every confidence in social workers and that this is something that they will welcome and be able to implement with great efficiency and effectiveness.
  Dr. Godman: Like the Minister, I have every confidence in social workers, although he might suggest that I have to say that, given that I am married to one. In each and every case, will the supervising officer mentioned in new clause 20(2)(b) he a fully qualified social worker?
  Lord James Douglas-Hamilton: I shall answer that when I reply to the debate. It is better that the hon. Gentleman should have a correct answer in a few minutes than that I should give an answer off the top of my head.
  Dr. Godman: This is an important question.
  Lord James Douglas-Hamilton: Of course it is. I believe that in most cases it would be a social worker, but I want to confirm whether that will be so in all cases.
  Mr. Ernie Ross: The Minister said that the cost of activities carried out under the supervised orders would be wholly reimbursed to the local authority. Will it get the money beforehand or will it have to claim it afterwards?
  Lord James Douglas-Hamilton: I shall check that, but I imagine that the authority will get the full funding beforehand. I shall let the hon. Gentleman know the answer.
  In line with our present initiative in respect of other services such as probation, parole and social inquiry reports, we propose to form a consultative group, including representation from local authorities, the judicial and other relevant interests, to draw up guidelines to supervised attendance orders and to discuss the administrative and financial aspects involved. I should expect the point that the hon. Member for Dundee, West (Mr. Ross) mentioned to be looked at specifically by the group drawing up the guidelines.
  Mr. Ian McCartney: As an English Member, I am interested in the point that the Minister is making, in the sense that what happens in Scotland usually eventually finds its way to England. I do not think that the Minister adequately answered the point that was raised by my hon. Friend the Member for Dundee, West (Mr. Ross). Does the measure, for example, meet the needs of retraining or additional employment? A social work department in Scotland may require to employ one or two additional social workers to deal specifically with referrals
  1158
  under the system and, because of that, it will have revenue consequences for the employment or retraining of staff specifically to deal with the issues raised in the new clause. Will there be new resources to deal with that?
  Lord James Douglas-Hamilton: The hon. Gentleman is quite right to raise that specific point. That precise issue will be looked at by the consultative group that is discussing the financial aspects involved. It also bears on the question that I was asked by the hon. Member for Greenock and Port Glasgow, about whether the supervising officer would always be a social worker. The answer is, not necessarily. Community service supervision is provided by non-qualified staff under the general management and control of social workers.
  During the passage of the Bill in another place, various amendments were tabled which were intended to simplify and standardise the level of proof in respect of breaches of probation and community service orders. At that time the Lord Advocate advised that he was in sympathy with the intention of the amendments and that the Government would consider bringing forward an amendment that would meet their objectives at a later stage. Our proposals for supervised attendance orders in corporate such intentions by specifying that the evidence of one witness shall be sufficient to prove failure to comply with an order. The proposed amendment to schedule 7 achieves the same effect in relation to the Community Service by Offenders (Scotland) Act 1978.
  The hon. Member for Dundee, West asked whether 100 per cent. funding would be made before or after expenditure was incurred. I am informed that an allocation will be made in advance, based on the projected number of orders, and then adjusted in the light of outturn numbers. The answer is exactly what the hon. Gentleman would wish.
  I commend the amendments to the House as a practical and humane alternative to the present provisions for dealing with fine default. I believe that they will be widely welcomed in Scotland.
  Mr. Dewar: This is an important debate which fear, if no other arrangements for our business can be made, will take a considerable period. Therefore, I hope that the House will bear with me if I set out some of the considerations fairly fully. I am sure that arrangements could be made for a more sensible disposal of the business, but I am awaiting news about that.
  Of course I appreciate the intentions behind the new clause as the Minister has explained them, but I am still a little surprised that we are facing the new clause. I discovered the proposals because I happened to be listening to early morning radio last Saturday when the ever efficient British Broadcasting Corporation's Scottish arm—I do not mention any particular individual—happened to comment upon the matter. That comment also included the suggestion that it was all part of the implementation of the thoroughly unpleasant speech made by the right hon. and learned Member for Ribble Valley (Mr. Waddington) at the Conservative party conference—
  Dame Elaine Kellett-Bowman: It was a splendid speech.
  Mr. Dewar: The hon. Lady may well think that it was a splendid speech, but she will not be surprised to know

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  that that confirms all my prejudices. It is a happy state of affairs when we reinforce each other's prejudices so completely and with such enthusiasm.
  I have read the speech that the Home Secretary made at the Conservative party conference. It does not seem to throw much light on this new clause. I therefore exonerate him from that charge.
  In passing, however, I must add that the matter of the prison population which is, of course, connected with this new clause, is also bound up with the changes in parole that we shall presumably face as a result of the Kincraig report. When the Minister replies to the debate, I very much hope that he can say something about that. I further hope that we shall not see any legislation in the spirit of the Home Secretary's speech, and that the Kincraig report recommendations will not be a Scottish insert in the penny dreadful which is what I expect next Session's criminal justice Bill for England to be if the right hon. and learned Member for Ribble Valley has his way. If there is to be a major piece of legislation on parole, with all the ramifications for the courts and the prison system, I shall expect it to be taken as a Scottish measure in a Scottish setting. I hope that the Minister can reassure me on that point.
  Having made those preliminary points, I now turn to the new clause in some detail. I was interested in what the Minister said. The notes that he was good enough to circulate to me two or three days ago referred to the research suggesting that community service orders, which are analogous to the supervised attendance orders that we are discussing, were often imposed where a fine would be the appropriate alternative. The point was made—and was reinforced in statutory form in this Bill—that the Government intend that community service orders should be imposed only where the alternative would be imprisonment. I do not for a moment dissent from the general value of that and believe that it is sensible that the community service orders should be used for the purpose for which they were designed.
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  The Minister's theory, as I understand it—I hope that I am not misrepresenting him—is that, because a number of community service orders were used where the proper alternative would have been a heavy fine and as, in future, that heavy fine will be imposed rather than a community service order, we shall have more heavy fines and more non-payments as a result of clause 51(3). As I understand it, that is the mainstream of the Minister's argument to justify the new clause.
  Dr. Godman: I am concerned about something that the Minister said earlier—that those supervising such offenders when carrying out attendance duties may not be social workers. Given my hon. Friend's wide experience, where does he think that such supervisors will be found? Paragraph 3 of the Minister's explanatory memorandum states that such attendance would cover constructive use being made of time and activities, alcohol and drug education, employment seeking and application, and responsibility to society. Who on earth will supervise someone in those circumstances other than the social worker who has had some training and experience in probation work. I say that because it is important, and I am sure that my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar) has not overlooked it.
  Mr. Dewar: I am grateful to my hon. Friend. I have not overlooked the matter, and shall come to it later in my speech. I may say in passing that I have a voyeur's experience of social work. [Interruption.] It may be that, as someone who is married to one, my hon. Friend the Member for Greenock and Port Glasgow (Dr. Godman) has had a voyeur's experience of social work as well.
  Dr. Godman: My experience is legitimate.
  Mr. Dewar: I will not go into that, but I was a professional observer—
  It being Ten o'clock, the debate stood adjourned.
  Ordered,
  That the debate be resumed tomorrow.

Health Authorities (Membership)
10 pm
Mr. Robin Cook: I beg to move,
That an humble Address be presented to Her Majesty, praying that the Family Health Services Authorities (Membership and Procedure) Regulations 1990 (S.I., 1990, No. 1330) dated 2nd July 1990, a copy of which was laid before this House on 5th July, be annulled.
I understand that it will be convenient to discuss also the second motion,
That an humble Address be presented to Her Majesty, praying that the Regional and District Health Authorities (Membership and Procedure) Regulations 1990 (S.I., 1990, No. 1331), dated 2nd July 1990, a copy of which was laid before this House on 5th July, be annulled.
To save time, I propose to confine my remarks to the regulations relating to regional and district health authorities. For the convenience of the House, I state that we intend to divide the House on those regulations at the end of the debate.
The debate's shortness is not a measure of its importance. The regulations provide for the creation of health authorities across England and Wales and give those countries health authorities explicitly modelled on the board of directors. Each health authority is to have five executive directors and five non-executive directors. There is no room within that small scope for representatives of the local authorities. At the very time when every progressive writer on health policy is urging us to break down the barriers between the health service and the social services, the Government have chosen to break the link between social service authorities and health authorities.
There is no prospect of community care ever succeeding if the local authorities which provide the community services are kept outside the doors while the health authorities decide which patients to put into the communities. In addition, no room has been found within those health authorities for the representatives of the people who work for them.
For the first time, so far as I am aware, the regulations write into law the offensive principle that, if one is a paid employee of a trade union, one will be debarred from that civic office. The full flavour of the regulations is contained in regulation 13, on which it is worth dwelling. Regulation 13(a) provides that one is disqualified for appointment if one has within the preceding five years been convicted; sub-paragraph (b) provides that a person is disqualified if he or she has been bankrupt; sub-paragraph (c) provides that someone is disqualified if he or she has been dismissed; and sub-paragraph (h) provides that someone is disqualified if he or she holds any paid appointment or office with a trade union. Convicts, bankrupts and trade unionists are clearly an unsavoury bunch.
Such institutionalised discrimination is thoroughly repugnant. People who work for trade unions are entitled to the same chance as anyone else of serving their communities on their local health authority. They should not be penalised because they work for an organisation of which the Government disapprove. Even more worrying is the fact that there is precious little room on the health authorities for the representatives of the people who use the hospitals.
This debate is not a theoretical one about how the regulations might work in the abstract. Characteristically, the Government did not wait until after the debate before going ahead with the appointments. They have already
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appointed people to almost every place on both regional and district health authorities. If the prayers are carried this evening, the Parliamentary Under-Secretary of State will tomorrow be in the embarrassing position of signing a thousand letters to appointees explaining what has happened.
I have the evidence of the people whom the Government want to run the authorities and I should like to share some of that evidence with the House. The most remarkable feature of those who have been appointed to the new health authorities is that they come from a dramatically narrow occupational base. I have completed a survey of 700 new members of these health authorities. There are exceptions to the rule. There are occasional areas in which it would appear that progressive chairs of district health authorities have succeeded in retaining a balance on health authorities, but the overwhelming majority of health authorities look more like local chambers of commerce than a public service.
The single largest professional group among non-executive members are company directors. Of the 700 whom we have surveyed, no fewer than 400 have a commercial background as industrialists, business men, accountants and lawyers.
Mr. David Ashby: Not enough.
Mr. Cook: In fairness to the Secretary of State, I must defend him against that claim by saying that, after a decade of decline in Britain's manufacturing base, he is to be congratulated on finding so many industrialists with whom to stuff the health authorities. I thank the right hon. and learned Gentleman for his honesty. He has given a clear signal to the House and to the nation that he intends the NHS to be run as just another commercial business. The notion that he frequently puts about—that the health authorities will be the voice of the consumer—is singularly droll, given the evidence of the people who have been appointed to the health authorities.
This clutch of businessmen have spent their entire working lives on the opposite side of the fence from the consumers. It is not even obvious that they are consumers of the very health services that they are now appointed to run. There are some interesting conflicts of interest which would have bothered a previous Government, whether Labour or Conservative. East Hertfordshire health authority now contains a marketing manager of Glaxo, a retired manager of International Computers Limited and a director of Blue Arrow. All three of those companies are major contractors to the NHS. Why is it all wrong that paid employees of staff unions should be on the health authorities, because there would be a conflict of interest, but all right for paid employees of suppliers to the NHS to serve on the same boards?
I concede that there may be a case for having a representative of the local business community on the local health authority—
The Secretary of State for Health (Mr. Kenneth Clarke): Very good.
Mr. Cook: I would not go so far as to suggest that they should command a clear majority of places, but I would concede a case for having a representative of the local business community.

1163
A remarkable feature of the appointments is that many of them are not even local business men. In Hull, none of the non-executive members lives in Hull. In Leicester, none of the non-executive members lives in the city of Leicester. In Lancaster, four out of the five non-executive members do not live in Lancashire. In Greenwich, the local authority representatives have been replaced by a double glazing executive from Bromley and a computer executive from Chislehurst—[Interruption.] If the Secretary of State is interested in speaking in the debate, I am sure that he will succeed in catching the Chair's eye at the appropriate time. He seems to have overlooked the fact that it is not customary in this House to make one's speech while another hon. Member is on his feet.
This House insists—Conservative Members have themselves insisted in recent legislation—that all members of local authorities must live in the area covered by those local authorities. Why should it be so different for the health authorities that the Government appoint?
There are of course a few stragglers surviving from the local councils, not because they are dominated by those councils but because they have been picked by the Secretary of State—or, if he wishes to be pedantic, picked by those whom he has picked on the regional health authorities. I hope that Conservative Members will forgive me for reminding them that, despite the wonderful illusions of presentation, Conservative councillors are currently a minority on local authorities throughout Britain. However, one would not know that from the councillors selected for appointment to the health authorities, which contain a healthy majority of Conservatives. Indeed, three fifths of all councillors appointed to the health authorities are Conservatives. In addition to those councillors, we have counted five chairs of Conservative constituency associations and one vice-chair of the Bow group.
At the very time when eastern Europe is booting out the party nomenclatura, the Secretary of State is busy filling health authorities with new Conservative nomenclatura. In some cases, the appointments are almost designed to promote conflict with the local authority. In Shropshire, the Conservatives are in opposition, and the chair of the social services authority is Labour. Of the five non-executive members appointed to the Shropshire health authority, three are councillors and all three are Conservative. Such appointments are an abuse of patronage—an abuse all the more serious because the posts are no longer filled out of a sense of duty: they are now paid posts, with part-time salaries of £5,000 for 20 days' work. Ministers cannot treat that patronage as a private pork barrel for friends of the Conservative party.
I wish to make it clear that the next Labour Government will not regard itself as bound by those appointments. [Interruption.] If the Secretary of State cares to listen, rather than lecture as I know is his preference in all circumstances, he may hear what the Labour party's position is. In the short term, we will replace many of the appointments with people who represent the local community, live in the local community and use the national health service.
In the longer term, we will scrap those health authorities, restore the representatives of local authorities and rebuild the partnership between the health authorities
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and the social services authorities. We will drop the ban on people who work for those who work for the health authorities. We will create health authorities that will be there to serve the local communities, not to serve a Secretary of State in Whitehall, and who are therefore accountable to their local communities and not to a Secretary of State.
The Labour party would bury the regulations with the short shrift that befits such an abuse of central power.
10.12 pm
Mr. Michael Morris: I want to contrast the two statutory instruments.
I do not share the concern of the hon. Member for Livingston (Mr. Cook) about the employment of business people and business techniques in the running of the health service; for a long time some of those disciplines should have been there and used, and the employment of some of those people is therefore entirely appropriate. However, I do share his feeling that there should not be appointees—especially on the district health authorities or the family health services authorities—who are not local. It seems entirely wrong for us to appoint such people to those authorities, although I do not share his view in relation to a regional health authority. I reserve judgment on the operations of the regional health authorities: I want to see how they settle down, and whether they perform better than their predecessors.
I welcome the changes that have been made to the district health authorities, which are generally welcomed in my constituency by those who take an interest in the health service—apart from those who lost their seats. I shall contrast that with what is happening in the family health service authorities in my constituency and in the other area that I know well, which is where I live in Bedfordshire. Things are not going well on the ground in either of those areas. It appears that the chairmen do not know their areas very well. Why have I still not been briefed about the identity of "Mr. Mustard" in the family health services authority in my county? I wrote asking about that three weeks ago and it seems strange that I have not yet been told. Perhaps no one in Northampton has heard of him, but I am sure that he is an accomplished gentleman in the field of business. We wish him well in his assignment.
The original briefing on family health services authorities stated:
"The previous statutory framework for sub-committees within which FPCs worked has been largely removed."
That may be so, but the family health services authorities are now appointing hosts of associate members. What on earth is the difference between sub-committees, which on the whole were reasonably effective, certainly in my constituency, and this host of associate members? The matter seems to be getting out of hand and I hope that my right hon. and learned Friend the Secretary of State will take to task any family health services authority that appoints many associate members.
I hope that the war between the Department of Health and the medical profession is over. Our health service cannot be run without the good will of the medical profession, especially at family health service level. One of the problems is representation on the FHSAs. We must listen to medical professionals who are prepared to give time and energy and who know their areas exceedingly well. They are not listened to at the moment but I hope that in future they will be.
10.16 pm
Mr. David Hinchliffe: First, I should like to raise a couple of technical points. The National Association for Mental Health, MIND, is concerned about the implications of recent changes. It has made it clear to me that it is worried about the accountability of the new-style DHA members and the decisions taken about detained patients under the Mental Health Act 1984. I should like the Minister to comment on that. MIND says that the new regulations will remove the link that health authority members must have with the Mental Health Act Commission. MIND sees that as a retrograde step because it reduces the accountability which is healthy in relation to psychiatric patients who may be compulsorily detained by regulation.
MIND says tha the new regulations meean that the new-style health authorities and hospital trusts are not required to have health authority or trust members represented on the committee that decides on issues about detained patients. I am sure that the Minister is aware of the seriousness of that, especially for patients who have had their liberty removed by the exercise of the legal provisions of the Mental Health Act. MIND says that there is no doubt accountability by the Mental Health Act Commission to the DHA or the trust. Even at this late stage, I hope that the Government will consider that technical point.
I should like to restate the concern expressed in Committee by Opposition Members about the way in which the regulations will completely remove the formal links between local authorities and district health authorities on the issue of joint planning for community care. That is strange at a time when we see good examples in many parts of the country of local authorities and health authorities working together on community care. We are trying to refoirm community care and many Opposition Members support some aspects of the legislation on community care. However, the arrangements now before the House will destroy the formal liaison that exists.
I shall now refer to democracy in the national health service. I am proud to have spent all my life in a society that has enjoyed the tremendous achievement of the Labour Government of the 1940s. The NHS is supported by the vast majority of the electorate. From the word go, however, one of the major failures of the NHS has been the lack of any real democratic accountability to the patients, its users. Under this and previous Conservative Governments, there have been moves away from the limited accountability that existed in the organisation prior to 1974. The reorganisation in 1974 moved accountability further away from the patients; the 1983 changes added to that problem, and the 1990 changes remove any element of local accountability in the NHS.
I am a supporter of community health councils: indeed, I am a former vice-chairman. However, if they posed any challenge or threat to Government policies and were a bulwark of defence of the NHS, I am sure that the Government would have abolished them in recent legislation. I shall continue to support CHCs, but their powers were emasculated some considerable time ago.
I want to be parochial and deal with the problems of Wakefield and question the sort of people who have been appointed to the new health authority. I speak as someone who served on a health authority for a number of years and, as I said, on a community health council. I take a
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close interest in health issues in my constituency. It has always struck me as strange that since the Wakefield district health authority came into existence, it has never appointed a chairperson who has lived within the area. Is there a problem with Wakefield? Are our people unsuitable to be chairpersons of health authorities? Why cannot someone who lives in the area be appointed? The chair of a health authority is an important job. What is so wrong with my constituents that they are not suitable for and do not have the ability to hold the chair of the local health authority?
It is interesting that, including the chair, one third of the non-executive members live outside the area served by the health authority. That is not an academic point; it is important. If someone is in the position to make important decisions about the treatment of patients in the NHS, occasionally it might be useful for that person to be a patient and to sample the facilities available. I recently attended a clinic with a member of my family and I was appalled to see the number of people crammed into it. Large numbers of elderly people were standing because no chairs were available.
I am not attacking the consultants or the nursing staff, who do their level best to ease the problems, but there is something radically wrong with a management that fails to provide chairs for people in their 70s, 80s and 90s while they are waiting for treatment. Sometimes they have to wait two or three hours before receiving basic treatment. I should like those who are making the decisions to sample the facilities, because they would then realise what people have to tolerate. I suspect that a number of those who serve on the health authority in Wakefield would never go anywhere near the NHS.
Another issue, which was a problem with the previous structure of health authorities and will be an even bigger problem now, is when such very busy people, with all their commercial and business interests, will find the opportunity to visit hospital wards and clinics, as they should, to see what is happening at the grassroots level. I do not suggest, nor do I need to suggest, any political bias in the appointments in Wakefield, but half the non-executive members who live in the area live in one electoral ward. I am sure that it is a coincidence, but it is the only ward in the entire Wakefield district to elect Conservative councillors. People who know the area will appreciate that Sandal is not representative of the Wakefield district, but it is very well represented on the new health authority.
One third of the people of Wakefield live on council estates. Would it be unreasonable to expect at least one member of the health authority to live on a council estate and therefore have some insight into the problems of the working class?
We should have health authorities that are composed entirely of people who live in the areas that they serve and who actually use health service facilities that are, or are not, available, as the case may be. The membership of the authorities should genuinely reflect the aspirations, needs and views of the local community. Why should not they include a few working-class mums who have experience of sitting in a clinic for two or three hours, waiting for treatment? Such people would properly be able to express the views and real concerns of the service users.
Why should there not also be direct democratic accountability? Why shy away from health authority elections? I would go further even than my own party and

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suggest that we should go from door to door, telling people that they should vote for a particular health authority candidate. We would also be able to learn what the public want, in the way that we do when canvassing in local or general elections.
My plea, more to the next Labour Government and to my right hon. and hon. Friends on the Front Bench than to the present Tory Government, is that we should move towards direct elections, for I am sure that they would be welcomed by the vast majority of our constituents.
10.25 pm
Dame Elaine Kellett-Bowman: In Lancaster we are lucky in the calibre of our district health authority, whose members include people of wide experience who know the area well. They are led by our exceedingly able existing district chairman, who has piloted huge improvements and innovations so that our local health service is at or near the top of any list of criteria or league table that one cares to use.
I am a great believer in encouraging the state of marriage, and I feel sure that the Government share my views. I am therefore puzzled by the regulations, because, while the Government have removed the advantage of unmarried couples living together in respect of mortgages, and the advantage of unmarried couples living together for social security purposes, they have reinstated in the regulations the disadvantage for a married couple living together in respect of the declaration of interest.
I refer to regulation 13(6) of SI 1330, and to the words
"the interest of one of a married couple living together"
and to regulation 20(5) in SI 1331, which refers to the situation
"in the case of married persons living together."
Why should they be at a disadvantage? I should like an answer.
10.27 pm
Mrs. Alice Mahon: In Committee stage on the National Health Service and Community Care Bill, my hon. Friend the Member for Newcastle upon Tyne, Central (Mr. Cousins) referred to the new district health authorities as a system of management that Queen Victoria would have recognised when she surveyed the crowned heads of Europe, and he was absolutely right. Everything leads back to the Secretary of State, and my hon. Friend the Member for Livingston (Mr. Cook) was also correct when he said that the new set-up is centralisation in an extreme form.
In the case of Calderdale district health authority, off go the two council representatives, who happen to be elected Labour councillors, and the trade union representative, and on come the business men, with only one exception. We have the same chair as before in Alan Templeton, an ex-director of the Halifax Insurance Company. During his chairmanship, he has presided over every cut that the Government have proposed, even using his casting vote to get rid of the NHS's own laundry service, a decision which was followed by a few disastrous years.
The newly appointed vice-chair, Barry George, was vice-chair of the previous district health authority. From
1168
the positions that he takes, he is obviously a Thatcherite. Until recently, he was employed as an architect. A new member of the authority, Clifford Fee, is a long-time Tory party member. He is a former chair of Halifax Conservative Association and recently retired from the family business. His new post should pay about £250 per meeting, which is a nice little earner for a recently retired business man. We have Dr. Hughes, who was previously a board member and is a fairly reactionary, right-wing medic. When I was a member of the district health authority, he only came alive when there were cuts to be made. He always voted for them.
Another new member of the board is a solicitor, and not someone whom I have heard had any interest in or knowledge of the national health service until his recent election to the board, which has already met and voted through a round of cuts which will lead to the loss of 99 beds. I imagine that the solicitor is a Government supporter because he voted for the cuts without any previous experience, as far as anyone can tell, of the national health service.
The one saving grace is that a woman, Jackie Stark, has been elected to the board. She was the only person to vote against the cuts, and she has spent most of her life working for the voluntary sector. Apart from that one exception, we have middle-aged men with business backgrounds who will slavishly follow any cuts that the Secretary of State suggests.
Today I learned that the latest infant mortality rates in Calderdale were shocking. In Calderdale the rate is 12·6 per cent., in Yorkshire and Humberside it is 9·1 per cent., and in the rest of England and Wales it is 8·4 per cent. The perinatal statistics—deaths in first week or stillbirths—were 12·9 per cent. in Calderdale, 8·5 per cent. in Yorkshire and 8·3 per cent. for England and Wales as a whole. Given those statistics, I must ask myself what on earth this Tory-appointed group of people were doing voting for cuts in beds and cuts in maternity services.
I know that the Secretary of State and his Ministers have received representations from a group of people in Calderdale about planning permission for a 40-bed private home for people with learning difficulties. I mentioned the issue when I was on the Committee on the National Health Service and Community Care Bill. That plan is totally at odds with the district health authority's philosophy of care for such people. The group making representations came out of hospital recently and are speaking up on behalf of their friends in Stansfield View, who are totally opposed to the home.
I think that there is a hidden agenda and that Stansfield View will be emptied while 40 people with learning and physical difficulties are still waiting to come out. If planning permission is given—it seems that it will be—they will end up in a totally unsuitable home, situated between a canal and a river, on a rat-infested industrial site. The business men appointed by the Secretary of State will happily go ahead with that, but it bodes ill for the people of Calderdale.
I am disgusted at the deliberate way in which the Government have put their friends into lucrative part-time jobs. I hope that the rest of the country and the people of Calderdale realise that those whom the Secretary of State has placed on the board will earn about £250 an hour and they will make all the wrong decisions.
10.33 pm
Mr. David Evennett: I support the regulations, and do not share the concerns that have been expressed by Opposition Members this evening.
Change for change's sake is never a good idea, but change to improve the system should be supported. Following the hon. Member for Halifax (Mrs. Mahon) is always an experience, but her view of democracy in the health service is totally wrong. Democratic control over the NHS is represented by Parliament and by the Secretary of State. That has always been the case and it always will be. We are the guardians of the national health service.
The Opposition spokesman, the hon. Member for Livingston (Mr. Cook), is living in the past. He and the hon. Member for Halifax seem to want to see their old friends, the Labour councillors and the trade union members, restored to the health authority—people who were not elected but nominated on a political basis. By means of the regulations, the Government intend to introduce better management and more management experience into the national health service.
Mrs. Mahon: Will the hon. Gentleman give way?
Mr. Evennett: No. The hon. Lady has had her opportunity to speak. It is high time that she listened to some common sense.
If the management of the national health service is to be improved, new people with management and business skills must be persuaded to offer their services. The NHS is a much valued and much loved national institution. However, we hear much criticism of the NHS in our constituency surgeries. The criticism that is most generally voiced, in both general and specific terms, relates to the local management of the NHS.
Unfortunately, there have been many examples of poor management. Although more money has been poured into the NHS, so that more patients can be treated, the criticism that is expressed—it is a valid criticism in certain areas—is that there has not been more effective and efficient utilisation of resources in the interests of patients. We need good management at all levels in the NHS to ensure that patient services are, and continue to be, first class.
How can good management be achieved? Local councillors were not elected to the district health authorities; they were appointed. Why should local authorities appoint health authority representatives? Of course there must be liaison between local authority social services and the NHS, but we need better management. Therefore, if we can appoint people who are better qualified to serve NHS management at local level, we should do so.
Mr. Geoffrey Lofthouse: Will the hon. Gentleman give way?
Mr. Evennett: Yes, I shall give way to the hon. Gentleman.
Mr. Lofthouse: If we accept that better management is required and that better management should be provided by people with experience of management in manufacturing industry, why is it necessary to go miles away from local health authority areas to pick such people? Does it mean that no suitable people can be found in the area?
Mr. Evennett: The point is that we want the best people, wherever they may come from, so that they can provide expertise for the management of the NHS.
In conclusion—
Mr. Bob Cryer: Will the hon. Gentleman give way?
Mr. Evennett: No, I shall not give way. The hon. Gentleman never listens. If he did so, he might learn something. We have had too many sedentary interventions from him over many years.
We want to improve the NHS. We have put more money into it, and more patients have been treated. What we need now is a better management structure in the interests of patients.
10.37 pm
Mr. Charles Kennedy: I echo the concern expressed during the passage of the Bill, both on the Floor of the House and in Committee, and also tonight about regulations of this nature that are the consequence of the Bill having been passed.
The hon. Member for Livingston (Mr. Cook) referred to the number of business men who have been appointed. We should not be surprised about that. The thrust of the reforms is to put the NHS on a more business-cum-private footing. From the Government's point of view, therefore, it is entirely consistent that business men should be put in charge of the NHS. As has been acknowledged, however, certainly on this side of the House and to a certain extent by Conservative Members, the sad thing is that all too often the business men and others who have been appointed have no direct local contacts. That is inappropriate when we are talking about the management of the NHS.
Why is it, one wonders, that people have so often been moved in from other parts of the country to serve on district health authorities? I suspect that the reason is partly that, in some parts of the country, the political complexion is such that it may not be as easy as the Secretary of State would wish to find people of both his and his Government's cast of mind to serve on the authorities. Therefore, people have to be shipped in from elsewhere.
There is a more practical reason. If someone lives in a local community and is facing pressures and having to take difficult decisions—if he is the subject of letters in local newspapers, of people phoning him at home and of people making their concerns known to him when he is shopping—that is something of a strain. It is much easier to take cold-blooded decisions resulting in cuts, closures and a diminution of the health service when someone does not have to face the people whom his decisions will adversely affect. That is one of the reasons why the thinking of the Secretary of State in making these appointments is so clear.
Mr. Cryer: Is there a possible third reason—that if, as is unlikely, the Tories are re-elected, they have in place, free from any local accountability, a remote character ready to take the next step of privatising the national health service?
Mr. Kennedy: I would be straying a bit wide of the regulations if I answered that, but given the motives and the means that this legislation have given rise to, one

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cannot, being as generous as possible to the Government, dismiss the possibility of such a change following under a future Tory Administration. That should be said loud and clear; I welcome the hon. Gentleman's intervention.
It is regrettable that, in addition to the other examples that have been given of the trade unions and local authorities, the Government resisted an amendment moved in Committee—their track record on these appointments confirms how useful that amendment would have been—to improve the comparatively meagre number of nurses who have been appointed. At the time of the original Griffiths management report and the recommendations that flowed from it, the Government were reluctant to concede a central role in the management of the health service to the nursing profession. They conceded it in due course, which was welcome.
Further down the line of management, that absence of guaranteed or direct nursing input has been replicated in the appointments that have been made. The Secretary of State was given lists of nominees by the regions from which to choose non-executive members. Nurses appeared on those lists, and some of the executive members are nurses, but the regions of Wessex, Yorkshire, South West Thames and North West Thames have no nursing representatives on the new bodies.
That is not good for the health service, especially when the thrust is towards a business or management-orientated health service to deal with such items as throughput, which, as any nurse could advise those bodies, is not a mark of success. If people are discharged from the hospital sector into the community before they have recovered, their chances of recovery may be damaged and another statistic may be added to the admissions column a few weeks later. Throughput is not a categoric or sufficiently illuminating indication of success in the health service. Nobody would be better advised to tell a health authority that than a nurse, but all too often nurses have not been appointed.
The classic example of a lack of local knowledge occurred recently. We all know the very tragic circumstances that gave rise to the by-election campaign in Eastbourne. The Conservative candidate is known to us as the former Member for Glanford and Scunthorpe. He was recently adopted, and at this stage his knowledge of Eastbourne is not full and detailed. That was borne out by his statement during the campaign pointing to the success of one of the local hospitals. A photograph of that hospital was subsequently produced which showed it to be a pile of rubble.
That highlights the dangers of having people who do not have sufficient local knowledge expounding the virtues of the health service in a given locality. It was a classic example which considerably embarrassed the local campaign and, I suspect, the Conservative party nationally.
Mr. Rhodri Morgan: It was a successful demolition.
Mr. Kennedy: As the hon. Gentleman says, it was a successful demolition. It remains to be seen whether a phoenix will rise from the ashes. One lives in some doubt about that.
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The new system is unrepresentative and undemocratic. It will put more and more power in the hands of central Government at the expense of local communities. For that reason, we shall be joining the Labour party in opposing the regulations.
10.45 pm
Sir Michael McNair-Wilson: I welcome the revision of the membership of the regional and district health authorities, and of the family health services, as much as anything because the previous membership of those bodies, even if drawn from a wider catchment, were remarkably out of touch with the areas and the populations that they claimed to represent. How rarely do I remember any of those authorities holding a public meeting in my constituency to explain the problems they were up against. The whole question of public accountability by those bodies has not left much of a mark on me.
One of the weaknesses of these authorities always seemed to lie in the fact that, apart from the officers, most of the members were not sure what job they were meant to perform or whom they represented. In those terms, to have a more businesslike approach or, as my right hon. and learned Friend the Secretary of State said, to make a more effective decision-making team seems to make good sense and to be wholly welcome.
However, business efficiency and effective decision-making, although important—no one would dispute that every health authority requires that expertise—may be too narrow an approach. Nobody disputes the need for the NHS to be able to draw on business acumen and, as the internal market develops, that ability will become ever more important. However, what requirement is there for the new, non-executive officers to be NHS patients? That question has already been asked by the Opposition.
I believe that the members should be not only directors but consumers of the authorities if they are to have a valuable input into the discussions of those authorities. The regulations seem to have the single drawback that they lay too little stress on the voice of the consumer or on how the new bodies are to be accountable to the communities they serve. They are appointed for four years, but not by local people. Is their sole remit business efficiency? if so, what proposals are there for giving the voice of the patient some way of being heard?
Community health councils have also been mentioned. I suggest that, up to a certain point, they can fulfil the job of being the consumer's voice. However, if we want them to succeed as the consumer's voice in the newly shaped national health service, surely one of the non-executive members should be the chairman of the local CHC or there should be room for co-opted members on the new bodies. After all, if we are concerned with business acumen, and with restructuring and reshaping the national health service to give it a more businesslike approach to its massive task and to the huge funds it handles, we should follow big business down the road of having either a customer relations director or a customer relations manager among those who are non-executive, co-opted members.
In welcoming the changes, I believe that there is still a gap in what has been proposed. We should give the patient's voice rather more time to be heard than seems to be possible with these proposals.
Mr. Ian McCartney: I promise you, Mr. Deputy Speaker, that I shall take only a couple of minutes. I saw you raise your eyebrows when I rose, and I know that a number of hon. Members wish to participate. I am glad that you can take a joke.
I am probably one of the few hon. Members who knows the wrath of the Secretary of State. In his earlier office of Minister for Health, he sacked me from my local family practitioner committee. Conservative Members will probably say, "That is the only good decision that he has made at the Department of Health." I was sacked purely and simply because I had been put on the committee by the local authority and was asking pertinent but awkward questions about the administration of the committee. The right hon. and learned Gentleman could not find a local authority member with whom to replace me because there were no elected Conservative representatives in our area at the time. He left the position vacant rather than making a fresh appointment from among the local authorities.
The Secretary of State has a long history of attempting to remove from authorities people with political views that he does not like, including some of the most efficient and hard-working people in the national health service, who have been withdrawn from service over the years.
The present regulations represent the final nail in the coffin of public accountability and public and local representation in the national health service. My authority, which looks after 340,000 people, has the following criteria: one must not live or work in Wigan, and if one is a member of the local authority or a community group that has comments to pass about the running of the health authority one will be excluded. Amazingly, when the present chairman of the health authority was appointed he said that he knew nothing about the running of the authority but that he was a quick learner.
Since then, Mr. Hague has, indeed, learnt quickly. He has learnt about hospital closures because he is constantly closing hospitals. He has learnt about privatisation through his wholesale closure of hospitals and as he has privatised care for the elderly and the mentally ill. He knows something about contracts. At almost every health authority meeting, when the first item on the agenda is reached, the "public interest" is invoked, a resolution is passed and the public are thrown out. The authority then proceeds to talk about contracts for companies such as Takare. In privacy, the authority may change the whole system of contracts so that Takare is the only company that can apply for and obtain contracts. In private, the authority consistently acts against the public interest.
A Mr. Robertson, the retired chief executive of Robertson's jam, is to be appointed to the family health services authority. At least the health service in Wigan can look forward to jam tomorrow. Mr. Robertson is somewhat coy when it comes to whether he lives in the borough. The press statement sent to local Members of Parliament says that he lives somewhere in Cheshire. The members of the health service authority representing the professions also live anywhere but Wigan—in Cheshire, in Lancashire, in Bolton and in other parts of Greater Manchester but not in the local community.
I should have no personal objection to the Conservatives even controlling the health services authority if they lived in the borough and if they used, and were accountable for, its services. But that is plainly not the case. The Government are a centralising Government who are taking for themselves complete political control of
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the health service by means of appointees who do not live in or care for the local community and who do not care for the national health service. Many of those appointed have been appointed for one reason—their sole objective during their two or four-year term is to privatise as much of the health service as they can, preferably before the next general election. That is why I welcome the statement by my hon. Friend the Member for Livingston (Mr. Cook), that at the earliest possible opportunity Messrs. Robertson and Hague et al will be sacked and replaced by people who live and work in the community and who have a commitment to the national health service.
10.54 pm
Mr. Frank Haynes: I am a bit surprised that the Secretary of State for Health has left the Chamber. He should be ashamed of himself. He should be here listening to what we are saying because the Opposition totally disagree with his proposals. Indeed, one or two observations have also been made by Conservative Members—[Interruption.] Ah, the Secretary of State must have heard me because he has just returned to the Chamber.
We know what is going on. We know what the Secretary of State is doing. He frittered around with transport before he came to social services and I remember well what happened. The Secretary of State has made a mess since he took over his flaming job. He is now moving towards more closures for the national health.
The Secretary of State need not frown because I shall put him in the picture. He is coming to my constituency on Saturday for "Europe Week" and he will stand on a platform with the Conservative candidate for the next general election. [Interruption.] That is not a big joke. It is a serious matter. I warn the Secretary of State that he is going to get an earbashing on Saturday.
The Secretary of State obviously has some influence on cuts and the way in which a local health authority should spend its money. The Secretary of State knows where the King's Mill hospital is because he lives just down the road in Rushcliffe. I do not know what his constituents think about him there, nor do I know what people think of him in the city of Nottingham after what the Secretary of State has done there.
The Secretary of State must be aware of the finances that have been made available for Central Nottinghamshire district health authority. He has appointed people to carry out his dirty work. That is what it is all about. There will be no come-back. They sit around the table and tell the manager what she has to do—and the manager is a lady in Central Nottinghamshire. That wonderful lady has done a first-class job since she was appointed, but she will not be able to do the job that she should be doing because the Secretary of State has appointed all those bosses from all over the damn place and has sacked the real link with the community.
The Secretary of State talks about community care and he gets the Prime Minister to say the same things. They say that they care about the facilities that are provided in the community. At the Victoria hospital in Mansfield there are a number of bungalows provided for the mentally handicapped. They were built so that the parents of mentally handicapped children could have some respite. The children could move into the bungalows to allow the parents some freedom, a change and a rest. Two of those

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bungalows are to be closed, yet the Government talk about caring for the community. They could not care less. One of my colleagues made a good point earlier: every step that the Secretary of State has taken with regard to the NHS has been a step towards privatisation.
Mr. Kenneth Clarke: I am sure that the hon. Member for Ashfield (Mr. Haynes) will agree that I cannot leave it to my hon. Friend the Under-Secretary of State for Health to answer all that.
I am glad that I shall be meeting the hon. Gentleman in the Asda carpark at Sutton in Ashfield on Saturday. The hon. Gentleman's predecessor used to campaign with me for Europe and I hope that the hon. Gentleman will join me on Saturday. I hope that he has heard that the Labour party has undergone a conversion and the party's policy is now also in favour of "Europe Week". I look forward to visiting King's Mill again. I know it extremely well.
Mr. Haynes: On a point of order, Mr. Deputy Speaker.
Mr. Clarke: No, after the hon. Gentleman has heard me out on King's Mill.
Mr. Haynes: On a point of order, Mr. Deputy Speaker. In my contribution I have not mentioned Europe—[Interruption.] Wait a minute—except for "Europe Week." That is all. That is what the Secretary of State is coming to. That is all I have said about Europe.
Mr. Deputy Speaker (Mr. Harold Walker): Order. I very much—
Mr. Clarke: The last time I visited King's Mill hospital was to open a major extension that the Government had financed. I look forward to the expansion of services in Central Nottinghamshire health authority. To which of the new appointments to Central Nottinghamshire health authority does the hon. Gentleman really object? He is a fair man. He is not as partisan as he likes to make out on the Floor of the House. He knows perfectly well that we have appointed people who are interested in a better health service in central Ashfield. Would he please not lark about trying to claim that he seriously objects—[Interruption.] The hon. Member for Livingston (Mr. Cook) has to go in for jobbery because he needs votes to be elected to the national executive. The hon. Member for Ashfield (Mr. Haynes)—I nearly said my hon. Friend the Member for Ashfield—knows perfectly well that he does not really object to any of the people whom I have appointed to Central Nottinghamshire district health authority.
Mr. Haynes: He has got a bloody neck. He really has got a neck to make a comment of that sort.
Mr. Deputy Speaker: Order. That sort of coarse language is uncharacteristic of the hon. Gentleman.
Mr. Haynes: I withdraw it, but I still mean it. I have not been laughing. The Secretary of State is still laughing—he has been laughing throughout the debate. He thinks that this a damn joke. This is a serious matter. We are all complaining about the rundown of the national health service in our own areas, and now the Secretary of State has appointed bosses who jump to attention when he says so. He is pouring money into their pockets. No doubt they
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will get an increase pretty soon—[Interruption.] A part-time job with a damn good salary to go along with it, but to do his dirty work.
The reason why ward closures are taking place is that people are frightened of overspending by the end of the financial year. The reason why people are overspending is that this Secretary of State has cut services in the Central Nottinghamshire district. That is having a serious effect on the Ashfield constituency. I wanted to get up and say it, and I have said it.
11.2 pm
Ms. Joan Walley: I shall be very brief, as time is passing by all too quickly in this important debate. My points are about North Staffordshire district health authority. We do not want business men who have no knowledge of the local area or of local services wheeled in to deal with the management of the national health service. My hon. Friends have made it quite clear that there is a hidden agenda—that the changes are taking us one step nearer to the privatisation of the national health service.
Nurses who have been recruited in north Staffordshire and nurses on Project 2000 ask me whether I realise that they are afraid that there will be no jobs by the time they finish their training. What do business men know about decisions that are made behind the scenes by the Government? It is absolutely impossible to train the number of nurses who are needed.
A further point to which I object very strongly is that, having reduced the numbers on the district health authority, we now have to wheel in ex-members of the district health authority to deal with nurse regradings. They are paid in the region of £40 a day. Why cannot some concern be introduced? Why could we not have had people who are prepared to do that work, have knowledge, put in the time and visit all the different facilities in the area?
The community health council in north Staffordshire has made it clear that it thinks that it is totally out of order that it can no longer as of right sit on the district health authority. That is entirely wrong. We have heard so much about the interests of consumers, or patients, but there are moves afoot for the health authority to meet behind closed doors and for business men to run the NHS.
In north Staffordshire, a health profile report has been commissioned by the Stoke-on-Trent city council. It has identified huge amounts of ill health within Stoke-on-Trent. How can key decisions on health be made if there is no link between those who have been democratically elected? How are we to deal with the great problems posed by ill health under such undemocratic arrangements? I do not want the NHS to be run on entirely commercial lines.
11.5 pm
The Parliamentary Under-Secretary of State for Health (Mr. Stephen Dorrell): Although no one would realise it after listening to the contributions of Opposition Members, the regulations are designed to demonstrate the Government's commitment to improving the delivery of the national health service and to ensure that the health care that the British people enjoy from the NHS will continue to improve. The regulations are part of the programme which gives effect to the Government's commitment to more effective management within the NHS. That is understood by my hon. Friends the

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Members for Erith and Crayford (Mr. Evennett) and for Newbury (Sir M. McNair-Wilson), and I thank them for their support.
The NHS is a vast organisation—it is the largest employer in Europe. It is not a business, and we do not pretend that it is. It is, however, a huge organisation, and it can and should benefit from more business-like management, more effective management and by securing the best use of the resources that are devoted to it by the taxpayer on behalf of the patient. That is the purpose to which the motions are directed.
Mr. Lofthouse: If that expertise is required, why is it that a member of the Pontefract health authority is the managing director of the Rockware glass group—his factory is on the border of my constituency and an adjoining one and he lives in Rotherham—and another is a doctor's wife who lives in Wetherby, which is 20 miles away? I do not have the full list of the members at my disposal. Is there not a doctor's wife or a business man within the Pontefract health authority who has the expertise to do the job?
Mr. Dorrell: The hon. Gentleman is advancing an argument which was introduced on several occasions by one or two of his hon. Friends. If the purpose of the health authority is to secure the good management of health resources within its area, why does he consider it vital that every member of it should have what he deems to be the right postcode? That would not seem to be the critical factor when someone is nominated to serve on the health authority.
I must tell Opposition Members who feel so strongly about postcodes that their view is not shared by the majority of those who are involved daily with the management of the NHS. I have heard less adverse comment about the commitment to a more effective, slimmer and more efficient health service than about all the other principles that come within the NHS reforms. It is hardly a secret that the reforms have generated a degree of interest and controversy. Even the hon. Member for Livingston (Mr. Cook) could not make a leak out of that.
Within the national health service, this set of proposals is almost entirely uncontroversial. It is only Opposition Members, who are so consumed by the conviction that every decision in the NHS management should be regarded as political, who see this as a controversial initiative.
The hon. Member for Livingston has not answered in his mind the fundamental question—what a health authority is there for: is it a political forum or a management organisation? Is it there to hold an interesting debate about the quality of health care and the ideas of its members about health care in a particular area, or is it an organisation charged with the effective use of health service resources in a particular locality to produce the best health care it can for the patients who live there? I have no doubt what the answer is, but the hon. Gentleman does not seem to have sorted it out in his mind.
Let us consider the charges that he levied against the regulations this evening. He said that there was no representation as of right on the health authorities for the local authority of the district. That is correct, but there is no representation on the health authorities for anyone else
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either. They are not there as representational organisations—that is not their function, but the function of the community health council within the context of the health service.
When we are asked to whom the health service is accountable, the answer, as my hon. Friend the Member for Erith and Crayford correctly said, is that, since the day of its inception, the health service has been accountable to Health Ministers, not local bureaucracies, in whatever form they have existed during the history of the service.
Mr. Morgan: That is splitting hairs.
Mr. Dorrell: To talk of parliamentary accountability is not splitting hairs; it is an important matter.
Mr. Morgan: When the Minister describes the health authorities as management organisations, he surely forgets that health authority members also acted a s lay representatives when anybody was appointed to a senior position in a hospital. They were also asked to take particular care of one hospital and acted as lay representatives on grading appeals for nurses. Surely, if they are management organisations, numbers on them are suddenly reduced from 20 plus to five and the position is not thought through, we are then confronted with the problem of what to do with functions other than those of the business whizz kid management organisations, that the previous health authority members carried out.
Was there ever better evidence of a Government proposal that had not been thought through than this evidence that they are going back to the ex-members of health authorities that they have just sacked and asking them to do for money what they previously did for nothing when sitting on grading appeals for nurses?
Mr. Dorrell: Never have I heard better evidence of the tail wagging the dog. Are the authorities there in order to provide a quarry for people to perform those important, valuable functions, or are they there as a group of people whose job it is to manage the health service within a locality? I have already made clear my answer to that question.
Mr. Cook: I shall carry the Under-Secretary back to the comment that he made a moment ago—that it is not his intention that the health authorities should be representative. I would certainly agree that the Government have achieved that objective through the appointments. But he made the case that the job of representation is a task for the community health councils. If he is to rely on them to inject a note of representation into decision making in the health service, will he now issue an instruction to all those health authorities which, since August, have withdrawn observer status from the community health council at their meetings and simultaneously refused to send members of the new authorities along to community health council meetings?
Mr. Dorrell: Certainly not because the purpose of representational organisations such as CHCs is to have sufficient roots in the community to be aware at all times of the community's needs and represent those to the health authority. Through the local Member of Parliament or whatever organisations they wish to approach, they should ensure that their views about the health authority's policies are known and understood. That is the legitimate function

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of the CHC. It is not part of its function to second-guess and become involved in the management process. The two functions are separate and should be seen as such.
The second point made by the hon. Member for Livingston was not dissimilar from the one that he made in his intervention a moment ago. He took us to task for debarring from membership of health authorities paid officials of unions whose members are employees of the health authority in question. The straightforward reason for that is that it clarifies whose task is that of representation—whether it be CHCs representing patients, or paid union officials representing employees—and whose that of management. The two tasks are separate and can be better discharged if they are understood by all parties to be separate.
Thirdly, the hon. Gentleman said that members of the health authorities were overwhelmingly business men. His mathematics was interesting. He quoted the percentage of business men as 52, a figure that included laywers. As a lapsed business man, I am bound to say that I do not regard lawyers as business men.
We make no apology for having sought to introduce to the structure of the health authorities people with experience of managing large organisations. We believe that that will provide more efficient management of our public health service.
Once the hon. Gentleman had got those three weak arguments off his chest, he degenerated into wild accusations about political bias. That was when he showed himself in his true colours. He left behind the measured tones of his initial arguments and began accusing us of all sorts of political malpractice—including the introduction to this country of the principles of nomenclatura. He showed that he understood those principles so well that he intends to apply them in reverse in the unlikely event of a Labour Government being elected.
My hon. Friend the Member for Northampton, South (Mr. Morris) asked why the associate membership—in the context of FHSAs—should continue to contribute to the work of the authority in addition to the slimmed down authority itself. I believe that that is a more efficient way to proceed than past methods. The narrow, smaller group will have the responsibility for evolving the policy of the authority in the area, but that does not stop its members calling on the wider group of associate members to discharge some of the less central functions of the authority.
That has always been explicit in the model that we have advanced for health authorities' discharge of their functions. To some extent, it also answers the point made earlier by the hon. Member for Cardiff, West (Mr. Morgan)—
Mr. Michael Morris: If the associate members are to discharge such a valuable function, am I to understand that they are not to be paid? Are they supposed to do the work on a voluntary basis?
Mr. Dorrell: They will continue to do the work on the same basis as before. The smaller group will be paid for the additional responsibilities of full membership of an authority.
The hon. Member for Wakefield (Mr. Hinchliffe) said that he was proud of the NHS, and had always regarded
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himself as a lifelong supporter of its principles and the way in which it had been introduced; he then said that he felt that our proposals represented inadequate democratic accountability in the running of the service. He has not reconciled himself to the fact that those two statements are fundamentally contradictory.
The NHS that was introduced in 1947 was a national service, accountable to Parliament, whose democratic accountability was—through Ministers—to the House of Commons. It is not, and never has been, a system of different local health services accountable to a local elected body. If the hon. Gentleman can persuade his hon. Friends that that is what Labour policy should be, I shall watch with interest—and I shall be very pleased to argue against it, because I do not believe that it represents either an efficient way in which to use resources or a just way in which to provide health care. But the hon. Gentleman cannot claim to be a supporter of a national health service and then, in his next breath, argue for the disintegration of the NHS into a series of locally democratically accountable health services.
Mr. Hinchliffe: Will the Minister give way?
Mr. Dorrell: I will give way once more, but I cannot engage in a debate on every point.
Mr. Hinchliffe: Throughout its history, the NHS has involved local people—either councillors or members of hospital management committees—who live among people who use the service, and who use it themselves. My objection to the structure set up by the Government is that there is no accountability to local people; the Government's model involves people who do not live in the area concerned, and who have nothing to do with activities such as visiting hospitals and clinics and seeing the problems that face the NHS daily—nothing to do with participation. The Minister has not responded to that point.
Mr. Dorrell: Several Opposition Members have convinced themselves that the health authorities are being staffed with people who—almost to a man—have no connection with the area in which they work. That is a travesty of the truth. Certainly we have not insisted on what I call the postcode test; but the vast majority live either in or very close to the health authority districts in which they will serve, and all will quickly develop a deeper knowledge of the authorities in their areas than any previous generation of health authority members.
My hon. Friend the Member for Lancaster (Dame E. Kellett-Bowman) raised an interesting point about whether we were discriminating against married couples. If we had listed every conceivable relationship that could lead to a conflict of interests which should properly be declared, these measures would be enormously lengthy. There is a specific requirement for the interest of the spouse of a health authority member to be regarded in the same way as the interest of the member himself, or herself. Beyond that, however, it depends on the understanding, or desire to act properly, of each member of the health authority, whom we expect to declare any commercial activity that might give him or her an interest. The provision to which my hon. Friend referred is not intended to give carte blanche to anyone whose relationship falls outside that test not to consider whether he has an interest that he should declare.

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The hon. Member for Ross, Cromarty and Skye (Mr. Kennedy) asked whether nurses should be represented on health authorities. He should remember that, under the reforms to be introduced in April, health authorities will be the bodies purchasing health care on behalf of a resident population. The Government continue to think it important that there should be a medical input into the management of units within the NHS: that is, that the management of hospitals—whether they are trusts or directly managed units—should involve such input. It is not obvious to me, however, that it is essential to have a "nurse input" into what is basically a contracting organisation.
My hon. Friend the Member for Newbury asked whether there should be a stronger voice for the patient in the form of a customer relations director. My hon. Friend does not seem to place as much emphasis as I do on the fact that the health authority itself is customer/patient-centred. After April, the whole purpose of a health authority will be to look at the health needs of everyone in a defined geographical area and to devote all its efforts to trying to secure the best possible health care for the resident population for which it is responsible. The idea of a customer relations director in an organisation that is totally directed to that purpose is somewhat otiose.
Sir Michael McNair-Wilson: Many organisations that do nothing but serve the customer for commercial purposes think that it is best to have a customer relations manager. Why should the health authorities be different? If they did not have to take it upon themselves to assume that they know what the customer wants and that they are always right, they would listen to what the customer says.
Mr. Dorrell: The difference lies in the phrase "for commercial purposes". A commercial organisation serves the customer, but also has to serve shareholders. That is not the case with a health authority, whose sole task is to use public money to secure the best quality health care for its resident population.
The House heard an interesting discussion between the hon. Member for Makerfield (Mr. McCartney), the hon. Member for Ashfield (Mr. Haynes) and the absent hon. Member for Bradford, South (Mr. Cryer). They convinced themselves that the Government had embarked upon a programme of privatisation of the national health service. None of the hon. Gentlemen explained why, if that was the case, we did not take the opportunity in our White Paper on the future of the NHS to explain such a policy and the reasons for it.
Mr. McCartney: Will the Minister give way?
Mr. Dorrell: I have given way a great deal.
Mr. McCartney: On a point of order, Mr. Deputy Speaker. Surely the Minister should not be allowed to attack hon. Members and then to refuse to allow interventions. Let us have a free debate.
Mr. Deputy Speaker: Order. Mr. Dorrell.
Mr. Dorrell: Those three hon. Members satisfied themselves, although I think no other hon. Member, that there was a paper tiger lurking in the bushes—the privatisation of the NHS. They then had a heroic battle in which no doubt they convinced themselves that they were the victors. It was not instructive for any of us.
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The regulations represent a major improvement in the way in which the health service is run and everyone who works in the service knows that. The argument about the future of the service is not just about the level of spending. It is also about how best we can provide for the efficient management of the NHS in order to ensure that that money buys the best possible health care for the patient. The Opposition have not taken a single step into that part of the argument. We have heard no proposals from them about how they would ensure maximum improvement and efficiency in the service. The Government proposals will improve efficiency, and I commend them to the House.
Mr. Robin Cook: I beg to ask leave to withdraw the motion.
Motion, by leave, withdrawn.
Motion made, and Question put,
That an humble Address be presented to Her Majesty, praying that the Regional and District Health Authorities (Membership and Procedure) Regulations 1990 (S.I., 1990, No. 1331), dated 2nd July 1990, a copy of which was laid before this House on 5th July, be annulled.—[Mr. Robin Cook.]
The House divided: Ayes 94, Noes 158.

Division No. 319]

[11.29 pm

AYES

Abbott, Ms Diane

McAvoy, Thomas

Allen, Graham

McCartney, Ian

Barnes, Harry (Derbyshire NE)

McFall, John

Barnes, Mrs Rosie (Greenwich)

McKay, Allen (Barnsley West)

Barron, Kevin

McKelvey, William

Bennett, A. F. (D'nt'n & R'dish)

Maclennan, Robert

Blunkett, David

Mahon, Mrs Alice

Boateng, Paul

Marshall, David (Shettleston)

Callaghan, Jim

Marshall, Jim (Leicester S)

Campbell, Menzies (Fife NE)

Maxton, John

Campbell, Ron (Blyth Valley)

Meale, Alan

Campbell-Savours, D. N.

Michael, Alun

Canavan, Dennis

Michie, Bill (Sheffield Heeley)

Clarke, Tom (Monklands W)

Moonie, Dr Lewis

Clay, Bob

Morgan, Rhodri

Cohen, Harry

Morley, Elliot

Coleman, Donald

Murphy, Paul

Cook, Robin (Livingston)

Nellist, Dave

Cousins, Jim

O'Brien, William

Crowther, Stan

Orme, Rt Hon Stanley

Cryer, Bob

Patchett, Terry

Cummings, John

Pike, Peter L.

Cunliffe, Lawrence

Powell, Ray (Ogmore)

Dalyell, Tam

Primarolo, Dawn

Darling, Alistair

Robertson, George

Dewar, Donald

Ross, Ernie (Dundee W)

Dixon, Don

Salmond, Alex

Dunnachie, Jimmy

Skinner, Dennis

Ewing, Harry (Falkirk E)

Smith, C. (Isl'ton & F'bury)

Ewing, Mrs Margaret (Moray)

Steinberg, Gerry

Flynn, Paul

Strang, Gavin

Foster, Derek

Thomas, Dr Dafydd Elis

Fyfe, Maria

Turner, Dennis

George, Bruce

Vaz, Keith

Griffiths, Win (Bridgend)

Wallace, James

Harman, Ms Harriet

Walley, Joan

Heal, Mrs Sylvia

Wardell, Gareth (Gower)

Hinchliffe, David

Wareing, Robert N.

Home Robertson, John

Watson, Mike (Glasgow, C)

Hughes, John (Coventry NE)

Welsh, Andrew (Angus E)

Hughes, Robert (Aberdeen N)

Williams, Alan W. (Carm'then)

Illsley, Eric

Wilson, Brian

Ingram, Adam

Winnick, David

Jones, Barry (Alyn & Deeside)

Wise, Mrs Audrey

Jones, Ieuan (Ynys Môn)

Young, David (Bolton SE)

Kennedy, Charles

Leadbitter, Ted

Tellers for the Ayes:

Lofthouse, Geoffrey

Mr. Ken Eastham and

McAllion, John

Mr. Frank Haynes.

1183

NOES

Adley, Robert

Hordern, Sir Peter

Alison, Rt Hon Michael

Howarth, G. (Cannock & B'wd)

Amess, David

Howell, Ralph (North Norfolk)

Arbuthnot, James

Hughes, Robert G. (Harrow W)

Arnold, Jacques (Gravesham)

Hunt, Sir John (Ravensbourne)

Arnold, Sir Thomas

Hunter, Andrew

Ashby, David

Jack, Michael

Aspinwall, Jack

Janman, Tim

Atkins, Robert

Johnson Smith, Sir Geoffrey

Baker, Nicholas (Dorset N)

Jones, Gwilym (Cardiff N)

Batiste, Spencer

Jones, Robert B (Herts W)

Bellingham, Henry

Jopling, Rt Hon Michael

Bennett, Nicholas (Pembroke)

Kellett-Bowman, Dame Elaine

Bevan, David Gilroy

King, Roger (B'ham N'thfield)

Biffen, Rt Hon John

King, Rt Hon Tom (Bridgwater)

Boscawen, Hon Robert

Kirkhope, Timothy

Boswell, Tim

Knapman, Roger

Bottomley, Peter

Knight, Greg (Derby North)

Bottomley, Mrs Virginia

Knight, Dame Jill (Edgbaston)

Bowis, John

Lang, Ian

Brazier, Julian

Latham, Michael

Bruce, Ian (Dorset South)

Lawrence, Ivan

Budgen, Nicholas

Lee, John (Pendle)

Burns, Simon

Lightbown, David

Burt, Alistair

Lord, Michael

Butler, Chris

Macfarlane, Sir Neil

Carrington, Matthew

MacKay, Andrew (E Berkshire)

Carttiss, Michael

McNair-Wilson, Sir Michael

Chapman, Sydney

McNair-Wilson, Sir Patrick

Chope, Christopher

Malins, Humfrey

Clark, Sir W. (Croydon S)

Mans, Keith

Clarke, Rt Hon K. (Rushcliffe)

Maples, John

Conway, Derek

Martin, David (Portsmouth S)

Coombs, Anthony (Wyre F'rest)

Mellor, David

Coombs, Simon (Swindon)

Meyer, Sir Anthony

Cormack, Patrick

Miller, Sir Hal

Currie, Mrs Edwina

Mills, Iain

Davies, Q. (Stamf'd & Spald'g)

Mitchell, Sir David

Davis, David (Boothferry)

Monro, Sir Hector

Day, Stephen

Morris, M (N'hampton S)

Devlin, Tim

Morrison, Sir Charles

Dicks, Terry

Moss, Malcolm

Dorrell, Stephen

Neale, Gerrard

Douglas-Hamilton, Lord James

Neubert, Michael

Dover, Den

Newton, Rt Hon Tony

Dunn, Bob

Nicholson, David (Taunton)

Evennett, David

Norris, Steve

Fairbairn, Sir Nicholas

Onslow, Rt Hon Cranley

Fenner, Dame Peggy

Paice, James

Fishburn, John Dudley

Pawsey, James

Forsyth, Michael (Stirling)

Porter, David (Waveney)

Forth, Eric

Price, Sir David

Fox, Sir Marcus

Renton, Rt Hon Tim

Franks, Cecil

Ridsdale, Sir Julian

Freeman, Roger

Shaw, David (Dover)

French, Douglas

Shephard, Mrs G. (Norfolk SW)

Fry, Peter

Skeet, Sir Trevor

Gardiner, George

Taylor, Ian (Esher)

Glyn, Dr Sir Alan

Taylor, John M (Solihull)

Goodhart, Sir Philip

Thompson, D. (Calder Valley)

Goodlad, Alastair

Thompson, Patrick (Norwich N)

Goodson-Wickes, Dr Charles

Thornton, Malcolm

Greenway, Harry (Ealing N)

Thurnham, Peter

Greenway, John (Ryedale)

Tracey, Richard

Gregory, Conal

Tredinnick, David

Griffiths, Peter (Portsmouth N)

Trotter, Neville

Grylls, Michael

Twinn, Dr Ian

Hamilton, Hon Archie (Epsom)

Waddington, Rt Hon David

Hamilton, Neil (Tatton)

Walden, George

Hanley, Jeremy

Walker, Bill (T'side North)

Hannam, John

Ward, John

Hargreaves, A. (B'ham H'll Gr')

Watts, John

Hargreaves, Ken (Hyndburn)

Wheeler, Sir John

Harris, David

Widdecombe, Ann

Hawkins, Christopher

Wilkinson, John

Hayward, Robert

Winterton, Mrs Ann

Hill, James

Winterton, Nicholas

Hind, Kenneth

Wood, Timothy

1184

Yeo, Tim

Tellers for the Noes:

Young, Sir George (Acton)

Mr. Irvine Patnick and

Mr. Tom Sackville.

Question accordingly negatived.

PROCEDURE
Motion made,
That this House agrees with the recommendations contained in the First Report of the Select Committee on Procedure of this Session (House of Commons Paper No. 379).—[Mr. Wood.]
Hon. Members: Object.

QUESTIONS TO MEMBERS, ETC.
Motion made,
That with effect from the beginning of the next Session of Parliament Standing Order No. 17 (Questions to Members) and Standing Order No. 18 (Notices of motions, amendments and questions) be repealed and the following Standing Orders be made—

QUESTIONS TO MEMBERS, ETC.

  Time for taking questions
  (1)—Questions shall be taken on Monday, Tuesday, Wednesday and Thursday, after private business has been disposed of.
  (2) No question shall be taken after half-past three o'clock, except questions which have not appeared on the paper but which are in Mr. Speaker's opinion of an urgent character and relate either to matters of public importance or to the arrangement of business.
  (3) Any questions tabled for written answer on a day on which the House does not sit by reason of the continuance of a previous sitting shall be deemed to be questions for written answer on the next sitting day and shall appear on the Order Paper for that day.

  Notices of questions, motions and amendments
  (1)—Notices of questions shall be given by Members in writing to the Table Office.
  (2) A notice of a question, or of an amendment to a motion standing on the Order Paper for which no day has been fixed or of the addition of a name in support of such a motion or amendment, which is given after half-past ten o'clock in the evening shall be treated for all purposes as if it were a notice handed in after the rising of the House.
  (3) A Member shall indicate on the notice of any question whether it is for oral, written or priority written answer.
  (4) Where a Member has indicated that a question is for priority written answer the Minister shall cause an answer to be given to the Member on the date for which notice has been given, provided that the requirement of notice shall be the same for such questions as that prescribed in this order for questions for oral answer.
  (5) Notice of a question for oral answer may not be given on a day earlier than ten sitting days before the day for answer, provided that, where that earliest day would otherwise fall on a Friday, the earliest day on which such notice may be given will instead be the previous sitting day.
  (6) Notice of any question for oral answer must appear at latest on the notice paper circulated two days (excluding Saturday and Sunday) before that on which an answer is desired.
  (7) When it is proposed that the House shall adjourn for a period of less than four days, any day during that period (other than a Saturday or Sunday) shall be counted as a sitting day for the purpose of calculating the period in paragraph (5) of this order.
  (8) When notice shall have been given of a Motion for the adjournment of the House for more than three days Mr. Speaker may cause to have printed and circulated with the Vote a memorandum superseding the provisions of paragraphs (5) and (6) of this order and instead setting out the earliest day on which notice of questions for oral answer may be given for each of the first ten sitting days after that adjournment, provided that each such day shall as far as practicable fall on the same day of the week as that on which the question is to be answered and shall not be fewer than fourteen days before the day for answer; and also setting out the latest day for notice of questions for oral answer on each of the first two sitting days following that adjournment

  1185
  provided that each such day shall not be fewer than two days (excluding Saturday and Sunday) before the day for answer.—[Mr. Wood.]
  Hon. Members: Object.

  Disabled Children (Mobility Allowance)
  Motion made, and Question proposed, That this House do now adjourn.—[Mr. Wood.]
  11.40 pm
  Mr. Terry Patchett: I am most grateful for the opportunity of raising this issue on the Floor of the House as there has been burning contention in my constituency and nationwide about the great injustice whereby sufferers under the age of five are denied mobility allowance.
  A lot of money has dribbled through the Government's fingers, and many rich people have got richer. The Government had the money and, with a little effort, could have provided for the sad cases in which young couples have disabled children under the age of five but are denied benefit.
  In July I asked the Secretary of State if he would bring forward proposals to amend the Social Security Act 1990 to grant disabled under-fives the right to mobility allowance. As expected, the Government announced that they had no plans to do so. I am bitter about that. When reading the document, "The Way Ahead", I noticed that once again those children are denied that benefit.
  While I appreciate that this is a national issue, a case in my constituency highlights the seriousness of the problem. Mr. and Mrs. Jow in Bolton on Dearne were blessed with triplets, but unfortunately two of them suffer from cerebral palsy, which denies Mrs. Jow the chance to go out to earn a living to supplement her husband's income as she is a full-time carer for the children. As they suffer from different degrees of the problem, the two children go to separate schools, which creates a transport problem and extra expense. Five or six times each month, they have to go to hospital, and—believe it or not—while there is a guideline of five years of age for benefits, it costs just as much to run a car for a three-year-old as it does for a five-year-old.
  I am pleased that in recent months the Government have set a precedent in relation to attendance allowance and have wiped out the age limit there. I am therefore hopeful that the Minister will think carefully about this matter when she responds to my comments.
  I do not intend to go on at length as 1 am sure that all hon. Members present, including the Minister, are aware of the problem. It is a crying shame that so many rich people have benefited while other people suffer this terrible financial burden and the country cannot help them out. It is a disgrace that the Government will allow them to live in such hardship when a few pounds could help them out and make a great deal of difference to the quality of their lives.
  I have explained the case of the triplets, two of whom are disabled. Mr. and Mrs. Jow have another child—four children in all—and the two invalids should be receiving mobility allowance. They are not the only case in my constituency. I know of at least a dozen similar cases.
  I cannot understand the hard and fast stance that the Government have taken on this matter, given that they relented and recognised the problem for attendance allowance. I see no difference with mobility allowance. Nor can I see any difference in the price of petrol to run a three, four or five-year-old kiddie to hospital.
  I hope that we can convince the Government that They ought to recognise that this is a problem. To solve it would

  1187
  not break the bank. It would help many young couples who suffer this heavy financial burden. It is the Government's duty to assist those people.
  11.44 pm
  The Parliamentary Under-Secretary of State for Social Security (Mrs. Gillian Shephard): I congratulate the hon. Member for Barnsley, East (Mr. Patchett) on raising this subject so soon after our return from the summer recess and for the responsible way in which he has put the case. I know that he tried to raise the subject during the debate on the Consolidated Fund Bill before the summer recess but was unsuccessful because his name was too far down the list. However, both of us were briefed on that occasion, too.
  The hon. Gentleman generously referred to the fact that the Government have made changes in the arrangements for disabled children and for disabled people in general. The Government are very much aware of the difficulties faced by disabled people and by the people who look after them. I am particularly conscious of the problems faced by the parents of severely disabled young children.
  I was interested to hear which case the hon. Gentleman would raise to highlight his concern. The problem has concerned him for some time as he has tabled a number of parliamentary questions about it. The case that he raised relates to triplets, two of whom are disabled. The hon. Gentleman raised specifically the question of entitlement to mobility allowance, but he also referred to other areas of disability provision. Therefore, I should like to place mobility allowance in the wider context of the total social security provision that is made for disabled people and their carers.
  In the past few months there has been an increase in the amount of help provided for families with disabled children. The social security system offers a network of provision for families with disabled children, in addition to mobility allowance. Extra help is available in the premiums which are paid with the income-related benefits—income support, housing benefit and community charge benefit. Help for carers is given through the invalid care allowance. The main benefit for disabled children, however, is attendance allowance, which provides £37·55 per week for people—children as well as adults—who need attention or supervision both during the day and at night, and £25·05 per week for those with lesser attendance needs.
  When attendance allowance was introduced in 1971 the lower age limit was set at the age of two. The Government have been aware of the case that has been made on behalf of families with disabled children—that many handicapped children have additional attendance needs.
  Mr. Dave Nellist: The Minister may remember that my hon. Friend the Member for Preston (Mrs. Wise) and I pressed her colleague, the Minister of State, to review the decision that children under the age of two were not, until recently, entitled to attendance allowance. When the Government decided to conduct a review and then to give about 3,000 families entitlement to the £37 attendance allowance for children under the age of two, why did they not also take the opportunity to consider what my hon. Friend the Member for Barnsley, East (Mr. Patchett) has advocated—a review
  1188
  of the age limit which bars those same familes from entitlement to mobility allowance for young children? That is the nub of this Adjournment debate.
  Mrs. Shephard: I shall deal later with the distinction between the criteria used for attendance allowance and for mobility allowance. With the hon. Member for Coventry, South-East (Mr. Nellist), I was a member of the Committee which considered these matters in great detail. I am sure that he is as glad as I am that the Government were able to make the change in the attendance allowance. I shall deal later with what the Government believe is the essential difference between the criteria for the two allowances. The hon. Gentleman is right to say that some 3,000 families have gained from the change.
  Invalid care allowance may also be payable where a person has given up work to look after a child who is receiving attendance allowance. A family with a very severely disabled baby can qualify for as much as £65 a week extra. If there are two severely disabled babies, they qualify for £65 a week extra and £37·55 for the other baby. At a time when there are many pressing demands on the social security budget, the House will agree that that represents a significant improvement for families with disabled babies.
  When my right hon. Friend the Secretary of State announced the abolition of the lower age limit for attendance allowance on 25 October last year, he also announced some other changes to the benefit system to help families with disabled children. First, the child's disability premium, which is paid with income support for families with a disabled child, was aligned with the adult rate. That meant an increase from £6·50 to £15·40 a week. It took effect in April and it is estimated that it will help 20,000 families.
  A further change that will help families with disabled children came into effect at the beginning of this month. From October, we have introduced a carer's premium of £10 a week into income support for those receiving invalid care allowance. We hope that that will help 30,000 carers. The premiums in income support carry through into the calculations for housing benefit, giving help with rent, and community charge benefit.
  I should like to draw the House's attention to the surveys undertaken by the Office of Population Censuses and Surveys into disability and its effects on expenditure for families with disabled children. Its findings showed that the extra expenditure as a result of disability was obviously affected by the severity and type of disability, but the relationship was less clear for children than for adults. Children require a certain amount of care and attention, and the amounts of extra expenditure varied little in the lower categories—about £4·55, rising to a peak of an average of £12·53 a week in the highest severity category. The higher rate of attendance allowance is £37·55 a week and the lower rate is £25·05 a week. There is a considerable gap between those figures.
  The abolition of the lower age limit for attendance allowance showed that the Government were concerned about the needs of families with young handicapped children. What I wish to say about mobility allowance must be considered in the light of the full range of social security provisions and the improvements that we have made rather than in isolation.
  To explain that, it would be helpful to remind the House of the background to mobility allowance, which

  1189
  was introduced in 1976 as a cash benefit to help severely disabled people with the extra costs that they incur in getting out and about. The Government of the day decided that, in the light of the resources available, the main medical eligibility criteria for the allowance should be inability or virtual inability to walk due to physical disablement. That means, in practical terms, that entitlement to the allowance is based on an assessment of walking ability.
  Since mobility allowance was introduced, the lower age limit has remained at the age of five. The choice of the lower age limit is a matter of judgment, in which two important factors must be borne in mind. The first is the walking ability of young children and the second is the deployment of finite resources. All of us are born unable to walk and all healthy children require supervision and guidance for a few years to make use of their walking ability. There is a case, therefore, to place a lower age limit on mobility allowance.
  The assessment of walking ability involves difficult judgments. Children acquire walking ability from 10 months upwards, but it may be difficult to pinpoint an age below five at which one could make a simple and dispassionate judgment about walking ability. I quote the words of the right hon. Member for Manchester, Wythenshawe (Mr. Morris) when he was introducing the allowance in a debate in 1975. He said:
  "very young children are given mobility help whether able-bodied or disabled."
  The choice of age five represents the judgment of successive Governments on where it is reasonable to draw the line. To reduce the lower age limit—or to abolish it—would cost several million pounds. All decisions to spend money are a matter of competing priorities—more money here means less money to spend elsewhere. The cost of reducing or abolishing the lower age limit for mobility allowance might well be a lower priority for social security spending than some of the other measures that have already been introduced by the Government specifically to help families with young, disabled children.
  Mr. Nellist: I am grateful for a second opportunity to intervene. Does not the Minister have a sense of déjà vu? She reminded the House that she served on the same Committee as I was on. We got the same arguments about the attendance allowance and the need to wait until two years before one could assess whether a disabled baby would need the additional help of the attendance allowance. My hon. Friend the Member for Barnsley, East (Mr. Patchett) has given a family case in his constituency. We are talking about people about whom doctors say that, from an early age, their parents will have many problems in trying to cope. If the children were put into the care of local authorities, or of a hospital, we should be talking not about £30, £50 or £60 a week, but about £150, £200 or £250 a week of the nation's resources to look after them. Cannot the Minister see that this is the same argument as we got on the attendance allowance?
  Mrs. Shephard: I certainly have a sense of déjà vu. To quote again from the right hon. Member for Wythenshawe, he said:
  "we are trying to spread the finite resources as equally and as well as we can.—[Official Report, 11 June 1975; Vol. 893, c. 503.]
  1190
  I could not put it better than the hon. Member for Coventry, South-East when he says that there is a sense of déjà vu.
  Mr. Patchett: On assessment, I recognise the Minister's argument to a certain extent. However, surely we are speaking about cases that are confirmed and that require hospital treatment. That means that transport is needed. I thought that the intention of the mobility allowance was to assist couples with the problem of transport. The issue of assessment does not come into it when it can be confirmed, by doctors and from medical evidence, that the cases require hospital treatment and, therefore, transport, which the children would get if they were five years of age. As I said earlier, I do not follow the logic of saying that the cost of petrol for the journey to the hospital is negligible when, if the children were five years of age they would have some assistance. I am arguing about confirmed cases.
  Mrs. Shephard: I understand that the hon. Gentleman feels strongly about these particular cases, as everybody would. However, I have tried to demonstrate that that particular family and others in a similar position are given extra resources to meet the extra needs of those children when they are very young through the attendance allowance and through other help such as income support and invalid care allowance, which I have already outlined. That is the way in which the extra needs are provided for financially through the social security system.
  We have, of course, extended the upper age limit for the payment of mobility allowance from 75 to 80—because the oldest recipients were due to reach the original upper limit. The extension was an interim measure introduced while we were considering the findings of the OPCS surveys of disabled people. I do not want to belittle the concern for the family that the hon. Member for Barnsley, East feels, but I must remind him of my earlier quotation from the OPCS survey about the level of extra expenditure for disabled children. I have tried to illustrate the fact that the expenditure that the survey found necessary is far exceeded by what is given through attendance allowance and through the other allowances available through income support.
  Let me say something about the other responses to the OPCS surveys and about "The Way Ahead", the basis for the Government's new structure for benefits for disabled people. Mobility and attendance allowance are to be subsumed by the new disability allowance. I believe that I am right in saying that the hon. Member for Barnsley, East has a copy of "The Way Ahead". He will therefore have seen that, while we intend to remove altogether the upper limit of 80 for the payment of mobility allowance when that allowance is incorporated in the disability allowance, we do not have any plans to extend the age limit downwards.
  In the past 10 years, we have spent a great deal on developments for disabled people. The proposals that we outlined in "The Way Ahead", along with the changes that we announced last October, will add about £300 million to our expenditure on benefits for the long-term sick and disabled by 1993. We estimate that about 850,000 people will receive extra help.
  In addition to the extension of the upper age limit for the mobility allowance from 75 to 80, we further extended the allowance in the changes that we announced last October. We introduced special arrangements from last

  1191
  April to help deaf-blind people who need to be accompanied when they are out of doors because of their dual handicaps. We have estimated that that change will help about 3,000 people, including quite a large number of children.
  Mr. Geoffrey Lofthouse: I greatly appreciate the benefits that are already available to such unfortunate families. But surely the main reason for the debate is this. The two children to whom my hon. Friend the Member for Barnsley, East (Mr. Patchett) referred are aged four. What is the difference between taking two children aged four to hospital and taking two children aged five to hospital? There is none, and some families might find it extremely difficult to purchase a motor vehicle to transport their children without the mobility allowance. If we accept that the mobility allowance is necessary, should not we reduce the lower age limit? I realise that there are financial constraints, but I should have thought that only a small amount would be required to reduce the age from five to two.
  Mrs. Shephard: I appreciate the concern of the hon. Member for Pontefract and Castleford (Mr. Lofthouse) who often takes part in debates on disability and who speaks with much knowledge of families with such difficulties.
  I had hoped that I had made the position clear. We are faced with a combination of the difficulty of assessing young children for mobility allowance, given that they would anyway need some help in being mobile and the lack of resources. That was stated clearly by the right hon. Member for Wythenshawe when mobility allowance was introduced. I cannot put it better than the right hon. Gentleman, who said that there were two constraints—the difficulty of assessing young children and the question of finite resources.
  All the hon. Members who have spoken have given a sympathetic account of their concern for young children with disabilities. I hope that I have tried to express the Government's concern and the ways in which we have tried to help families with disabled children with the undoubted extra expenses that they incur as a result of having disabled children.
  Mr. Allen McKay: Will the hon. Gentleman give way?
  Mrs Shephard: I think that I am an hon. Lady, but I shall certainly give way.
  Mr. McKay: I am sorry. It must be my bifocals.
  Surely the Minister's argument about why the age limit cannot be reduced from five falls when we consider that the allowances given to children at the age of three are also given to children aged four, five and six. At five an additional allowance, the mobility allowance, is available. Is the Minister trying to tell us that the assessment arrangements and the ability of people to assess have not changed since 1974?
  Mrs. Shephard: No, of course I am not saying that. I am saying that perhaps children have not particularly changed since 1974. I refer the hon. Gentleman to the debate that took place at that time and the right hon. Member for Wythenshawe stated then that he thought that school age was about the right age at which to set the mobility allowance.
  However, all Opposition Members tonight, including those wearing bifocals, which is obviously a particular handicap in recognising Members on the other side of the House, have demonstrated their sympathy for disabled children. I have tried to explain the network of provision that we are trying to extend through social security to families with a disabled child.
  I have explained how the allowances have been brought in, slightly changed and increased. It might be worth while stating that over the past 10 years expenditure on the long-term sick and disabled has risen by £4 billion in real terms. There has been an increase of 98 per cent. in those receiving invalidity benefit; an increase of 77 per cent. in those receiving non-contributory disability benefits; a 200 per cent. increase in those receiving attendance allowance; and a 547 per cent. increase in those receiving mobility allowance.
  I recognise that the line that I am taking is a disappointment to the hon. Member for Barnsley, East because I know that he feels strongly about this particular case. I just want to remind him of the improvements that we have been able to make and I thank him again for making such a serious and responsible presentation of his case to the House.
  Question put and agreed to.
  Adjourned accordingly at seven minutes past Twelve o'clock.

ATTORNEY-GENERAL

  Advisory Committee on Education and Conduct
  Mr. Arbuthnot
  To ask the Attorney-General whether the Lord Chancellor has decided whom he proposes to appoint as chairman of the Lord Chancellor's advisory committee on education and conduct.

  The Attorney-General
  I am pleased to say that, subject to the Courts and Legal Services Bill receiving Parliament's approval, the right hon. the Lord Griffiths MC has accepted the Lord Chancellor's invitation to serve as chairman of the Lord Chancellor's advisory committee on legal education and conduct.

TRANSPORT

  A249
  Mr. Moate
  To ask the Secretary of State for Transport what is the date for the public inquiry into the dualling of the A249.

  Mr. Chope
  A public inquiry into my Department's proposals for the A249 Iwade bypass—Bobbing to Kingsferry Bridge—is to start at 10 am on 20 November at Kemsley concert hall, Ridham avenue, Kemsley, near Sittingbourne. A pre-inquiry meeting is fixed for 23 October at the same venue. All those who have expressed an interest will receive personal notification.

  Mr. Moate
  To ask the Secretary of State for Transport when he intends to publish the draft orders for the dualling of the A249 from the M2 Stockbury viaduct to the A2 at Bobbing.

  Mr. Chope
  My Department hopes to publish formal proposals for the A249—M20 to Bobbing improvement—on 19 October 1990.

  Personal Data
  Mr. Cohen
  To ask the Secretary of State for Transport whether his Department will take positive steps to discuss with the Data Protection Registrar all his Department's legislation that impacts on the use, collection, processing or holding of personal data; and whether he will make a statement.

  Mr. Chope
  The Department's officials are aware of the need to consult the registrar about proposed legislation which might affect or be affected by the Data Protection Act 1984.

  British Rail
  Mr. Wray
  To ask the Secretary of State for Transport how many British Rail trains operated by fuel-burning locomotives use each day on average the railway systems of(a) the north London link line, (b) Greater Glasgow and (c) the Strathclyde region.

  Mr. Freeman
  This is an operational matter for British Rail.

  Waterloo—Exeter Line
  Sir David Mitchell
  To ask the Secretary of State for Transport what information he has about progress in re-equipping the Waterloo-Exeter line.

  Mr. Freeman
  I understand that British Rail is considering the use of some of the class 158 vehicles currently in production, with suitable modifications, for this line in order to replace the present rolling stock as quickly as possible. It might thus be possible to have vehicles in service in about 18 months' time.

  A13 (Newham Intersection)
  Mr. Spearing
  To ask the Secretary of State for Transport by what date he expects to publish one or more plans for public consultation for a grade intersection between Prince Regents lane and Newham way (A13); and from what date he expects to be able to purchase affected property by voluntary agreement.

  Mr. Chope
  [holding answer 15 October 1990]: A public consultation on options for placing Newham way in an underpass beneath Prince Regents lane was held at Newham leisure centre on 12 and 13 October. A questionnaire was available there, and from Newham council offices and the borough library. Respondents have been asked to comment by 9 November. A preferred option will be selected in the light of these comments and it is hoped to publish draft orders by the autumn of next year.

  Any requests to purchase property in cases involving hardship will be considered by the Department.

  Holloway Road, London
  Mr. Corbyn
  To ask the Secretary of State for Transport when he plans to introduce red routes to the A1 Holloway road; and what has been the response to his consultation exercise on this.

  Mr. Chope
  [holding answer 15 October 1990]: The consultation exercise brought helpful responses from many individuals, businesses, interested groups, and organisations, and they are now being considered. I hope to make an announcement shortly.

ENVIRONMENT

  Chemical Industry
  Mr. Ted Garrett
  To ask the Secretary of State for the Environment if his Department has considered an application for an exhibition in the Upper Waiting Hall in the Palace of Westminster relating to "The Chemical Industry: Yesterday, Today and Tomorrow".
  767
  Mr. Trippier
  I understand that, under procedures agreed by the Services Committee, arrangements have been made with the authorities of the House for the exhibition to be held in the Upper Waiting Hall from 15 to 19 October.

  Sport and Recreation
  Mr. Sayeed
  To ask the Secretary of State for the Environment when he will publish a draft planning policy guidance note on sport and recreation.

  Mr. Atkins
  My right hon. Friends the Secretary of State and the Secretary of State for Wales have today published a planning policy guidance note on sport and recreation in draft for public consultation.

  The Government attach great importance to the retention of adequate recreational open space in urban areas. The planning system needs to ensure that adequate land is and continues to be allocated for organised sport and informal recreation. The draft PPG asks local planning authorities to ensure that their policies address local needs, protect valuable sites and identify suitable sites for new provision.

  It is particularly important to retain sufficient recreational open space in urban areas to avoid "town cramming". The draft advises local authorities about means of safeguarding open spaces while providing for necessary development.

  The PPG also addresses the issues raised by Lord Justice Taylor in his report on the Hillsborough stadium disaster. It is the Government's intention that all first and second division grounds shall be all-seated by the 1994–95 season and third and fourth division grounds by the 1999–2000 season. The draft requests local planning authorities to give sympathetic consideration to development proposals designed to meet these objectives.

  Tree Preservation
  Mr. Arbuthnot
  To ask the Secretary of State for the Environment whether he will make a statement on the review of tree preservation policies and legislation.

  Mr. Heathcoat-Amory
  On 2 October we published a report by Mr. James Batho commissioned by us as part of that review. I have arranged for copies of the report to be placed in the Library of the House, together with my statement which accompanied its issue.

  The Government accept that the tree preservation order system should be maintained in broadly its present form. We plan to issue a consultation paper later this year with detailed proposals to clarify and streamline current procedures, aimed at enhancing their general effectiveness. We also welcome the report's recommendation that local authorities should have a new power to make hedgerow management orders to protect important hedgerows in their areas, with payments to owners to assist upkeep. Further details will be given in the forthcoming consultation paper.

  Oxides of Nitrogen
  Mr Bendall
  To ask the Secretary of State for the Environment when the United Kingdom will ratify the Sofia protocol on emission of oxides of nitrogen.

  Mr. Trippier
  The Government have today ratified the NOx protocol. This commits the United Kingdom to 768
  return overall emissions of oxides of nitrogen to 1987 levels by 1994 from all sources. It also commits us to develop further programmes for longer-term reductions based on critical loads. This important step emphasises our determination to deal with both acid rain and ground-level ozone.

  Museums and Galleries (Property Transfer)
  Mr. Summerson
  To ask the Secretary of State for the Environment why a Treasury minute was not laid before Parliament before the transfer of freehold and leasehold property to the trustees of certain museums and galleries took place.

  Mr. Key
  In 1986 the Office of Arts and Libraries conducted a review into the relationship between the Property Services Agency and certain museums and galleries. This concluded that these organisations should be untied from PSA for their works services. When the recommendations of this report were being implemented it was decided that the most logical way forward would be for transfers to be made to the trustees of these organisations of the freehold and leasehold properties that they were then occupying rent free. This would remove any remaining element of PSA control. Ministers agreed that these transfers should take place at nil charge as the trustees were not being presented with any assets that they did not already have the use of. The trustees' powers to dispose of property are of course subject to legislative and other constraints.

  During 1988–89 and 1989–90, 16 such properties were transferred. The value of 13 of these is approximately £53 million; the other three properties have not yet been valued. Two further properties have been transferred in the current financial year. However, under established procedures, transfers at less than market value, which technically constitute gifts, should be notified to Parliament before they are made. It is normal practice in such cases for the Department proposing to make the gift to arrange with the Treasury for a minute to be presented to the House of Commons giving the particulars of the gift and explaining the circumstances in which it is being made and for the Treasury's assent to the gift to be withheld for 14 days, excluding Saturdays and Sundays, after the issue of the minute except in cases of special urgency.

  I very much regret that the correct procedures were not observed in making the transfers of these properties. A further 40 or so properties remain to be transferred to the relevant trustees. Since 1 April 1990 these transfers have become the responsibility of the Office of Arts and Libraries which will arrange for the Treasury minutes to be presented to the House before any further transfers are made.

WALES

  Mid-Wales Development
  Mr. Barry Jones
  To ask the Secretary of State for Wales if he will make a statement concerning his policies for mid-Wales.

  Mr. David Hunt
  Government policies are directed towards the establishment of a thriving and self-sustaining economy in mid-Wales. The Development Board for Rural Wales has the principal responsibility for the
  769
  economic regeneration of the area, and its "Strategy for the 1990s" sets out the board's future intentions for mid-Wales. Apart from the DBRW, other sources of economic and industrial assistance are available to mid-Wales through the WDA, WTB and central Government.

  Laura Ashley
  Mr. Barry Jones
  To ask the Secretary of State for Wales if he will meet the Development Board for Rural Wales concerning the proposed job losses at the Laura Ashley company.

  Sir Wyn Roberts
  I refer the hon. Gentleman to the reply that my right hon. Friend gave him on 15 October.

  Job Losses (Clwyd)
  Mr. Barry Jones
  To ask the Secretary of State for Wales what measures he will take in Clwyd to counteract the loss of jobs at Brymbo steelworks, Corning at Wrexham and Laura Ashley at Leeswood; and if he will make a statement.

  Sir Wyn Roberts
  The WDA will take these job losses in Clwyd into account in planning its future activities. We are in close and regular touch with the chairman of the agency on this and other matters.

OVERSEAS DEVELOPMENT

  Tibet
  Mr. Kirkwood
  To ask the Secretary of State for Foreign and Commonwealth Affairs what plans he has to assist environmental protection in Tibet.

  Mrs. Chalker
  To date the Government have received no official request for assistance with environmental protection in Tibet.

HOME DEPARTMENT

  Peacetime Emergencies
  Mr. Hague
  To ask the Secretary of State for the Home Department if he has received the report from the civil emergencies adviser, Mr David Brook, on the role of local authorities in planning for peacetime emergencies; and if he will make a statement.

  Mr. Waddington
  I have received Mr Brook's advice and will be considering it in conjunction with the review I have initiated of the options for the future of civil defence arrangements in the light of developments in east-west relations. This will enable me to consider whether a more coherent approach to emergency planning for the protection of the public in both peace and war can be achieved. I shall—together with my right hon. and learned Friend the Secretary of State for Scotland, who has also received Mr Brook's report—announce proposals in due course.

TRADE AND INDUSTRY

  Trade Statistics
  Mr. Austin Mitchell
  To ask the Secretary of State for Trade and Industry whether he will publish in the Official Report a list of finished consumer goods whose exports have more than doubled since 1985, together with the percentage increase in imports and in United Kingdom output.

  Mr. Sainsbury
  On the basis of trade analysed in terms of the industries of which they are the principal product, consumer goods industries whose exports have more than doubled in value since 1985 are shown in the table, together with the corresponding percentage increase in imports and output.

  Industry

  Exports

  Percentage Imports

  Increase Output

  Gramophone records and tapes

  108

  159

  90

  Electronic consumer goods

  128

  33

  130

  Domestic electric appliances

  116

  22

  50

  Caravans

  183

  57

  130

  Vietnam
  Mr. Mullin
  To ask the Secretary of State for Trade and Industry if he will list the quotas on the import of goods from Vietnam.

  Mr. Sainsbury
  The import of those goods, which are normally restricted from state trading countries, are totally restricted from Vietnam. The products covered by the embargo are matches, footwear, TV sets, gloves, headgear, some agricultural products and a wide range of textile products.

  The United Kingdom has however quotas on imports on a number of products as shown in the table.

  The import of any other goods from Vietnam is not restricted.

  Product

  Quota Level (1990)

  Tableware of porcelain, china or pottery; ornaments or statuettes

  £23,100

  Bedlinen, tablelinen, curtains; synthetic yarn and woven fabrics of synthetic yarn

  7 tonnes

  (MFA categories: 20, 23, 34, 35, 36, 39, 40)

  Rover Group
  Mr. Jack
  To ask the Secretary of State for Trade and Industry whether he has yet replied to the Commission's decision of 17 July on the terms of the sale of Rover Group to British Aerospace.

  Mr. Lilley
  A reply was sent to the Commission on 14 September setting out the measures taken by the Government to comply with the Commission's decision. The Commission had earlier agreed to extend the deadline for reply by one month to 17 September 1990. The Government informed the Commission that they had issued demands for payment by 17 August 1990 of £42·9 million by BAe and £1·5 million by Rover Group and that,
  771
  as no payment had been made, they had served writs on both companies to enforce repayment of the principal sums and payment of interest from 18 August 1990. The formal demands for payment were dated 16 August 1990 and the writs were issued and served on 10 September 1990.

  The Government then went on to reply to the other points raised by the Commission by giving the specific assurances requested. In particular, the Government assured the Commission that no tax concessions had been given and:

  (i) that the tax treatment of BAe and the Rover Group was strictly in accordance with United Kingdom tax law;

  (ii) that the statement made by the then Chancellor of the Duchy of Lancaster on 4 May 1988 about the operation of the on-sale penalty was now superseded and that the penalty would not be set aside in any circumstances except by a subsequent decision of the Commission;

  (iii) that there was no question of BAe having any preferential access to Government assistance and that it would be treated as would any other applicant.

  Next Steps
  Mr. John Greenway
  To ask the Secretary of State for Trade and Industry if he will make a statement on the progress of the "next steps" initiative in his Department.

  Mr. Lilley
  On 5 October, I launched the national engineering laboratory as the ninth executive agency within the DTI. The launch of NEL means that more than half my Department's staff now work in executive agencies. As a result, the DTI is able to improve further its ability to deliver cost-effective services.

  I am placing a copy of the NEL framework document in the Library. The document explains that the primary aim for NEL is to attain commercial viability by 1994–95. I have also set NEL a number of efficiency targets as follows:
  to recover its full economic costs through arm's-length contracts from customers by 1994–95.
  non-DTI income as a proportion of full economic cost to grow by 12 per cent. in 1991–92 compared with 1990–91, and to continue to grow so that by 1994–95 two thirds of NEL's total income is non-DTI.
  fee-earning hours on arm's-length contracts as a proportion of all hours to increase by 10 per cent. in 1991–92 compared with 1990–91.
  5 per cent. increase in average fee-earning hours on arm's-length contracts as a proportion of engineer hours possibly available in 1991–92 compared with 1990–91. Ratio to reach 80 per cent. by 1994–95.
  to reduce average per capita office space occupied by 25 per cent. in 1991–92 compared with 1990–91.
  to complete development of a commercial accounting system by 1 October 1991.

  Hawk Aircraft (Kenya)
  Mr. David Davis
  To ask the Secretary of State for Trade and Industry whether Export Credits Guarantee Department cover will be provided for the sale by British Aerospace of Hawk aircraft to Kenya.

  Mr. Lilley
  In view of the importance that the Government attach to this contract, I have instructed ECGD to provide cover under the provisions of section 2(1) of the Export Guarantees and Overseas Investment Act 1978 and under the procedures set out in the answer 772
  given by the then Minister for Trade, my hon. Friend the Member for Plymouth, Sutton (Mr. Clark) on 28 June 1988 at columns 164–65.

  Trade Statistics
  Mr. Austin Mitchell
  To ask the Secretary of State for Trade and Industry whether he will publish a table showing the import penetration and export performance ratios for the electrical and electronic engineering industry as a group in 1968, 1973, 1977, 1985 and 1989 together with the import/export ratios by value and volume for the European Economic Community and for the rest of the world based on 1973 =100.

  Mr. Sainsbury
  [holding answer 15 October 1990]: The available information is in the table. The figures in the table are based on the NACE (1970) class 34. No information is available for years before 1975 for the European Community.

  In 1987, the equivalent ratios for import penetration, export performance and import/export for the current membership of the EC were 16·4 per cent., 16·5 per cent. and 105·4 per cent. respectively.

  No information is available for "the rest of the world". The figures in the table are based on current price data. There are no constant price data available.

  Import Penetration, Export Performance and import/export ratios1 for the Electrical Engineering Industry2 within the European Community percentages

  Import Penetration

  Export Performance

  Import/Export

  Year3

  1975

  8·8

  15·5

  52·8

  1977

  11·3

  19·0

  54·2

  1985

  17·7

  20·6

  82·5

  1987

  16·3

  17·0

  95·2

  1 Figures are based on the extra-EC exports, extra-EC imports and EC production by those nine countries which were members of the European Community in 1980.

  2 Electrical Engineering as defined by NACE (1970) class 34.

  3 There are no data available for years before 1975. The latest year for which data are available is 1987.

  Source: Eurostat

  Mr. Austin Mitchell
  To ask the Secretary of State for Trade and Industry whether he will publish a table showing the import penetration and export performance ratios for the textile, clothing, leather and footwear industries as a group in 1968, 1973, 1977, 1985 and 1989 together with the import/export ratios by value and volume for the European Economic Community and for the rest of the world based on 1973 = 100.

  Mr. Sainsbury
  [holding answer 15 October 1990]: The available information is in the table. The figures in the table are based on the NACE (1970) class 43. No information is available for years before 1975 for the European Community.

  In 1987, the equivalent ratios for import penetration, export performance and import/export for the current membership of the EC were 16·7 per cent., 16·0 per cent. and 105·4 per cent. respectively.

  No information is available for "the rest of the world". The figures in the table are based on current price data. There are no constant price data available.
  773

  Import Penetration, Export Performance and import/export ratios1 for the Textile, Clothing, Leather and Footwear Industries2 within the EEC percentages

  Year3

  Import penetration Index

  Export performance Index

  Import/export ratio

  1975

  11·8

  13·0

  90·0

  1977

  14·1

  14·1

  99·7

  1985

  19·0

  19·1

  99·1

  1987

  18·3

  16·8

  110·8

  1 Figures are based on the extra-EC exports, extra-EC imports and EC production by those nine countries which were members of the European Community in 1980.

  2 Textile, Clothing, Leather and Footwear industries as defined by NACE (1970) class 43.

  3 There are no data available for years before 1975. The latest year for which data are available is 1987.

  Mr. Austin Mitchell
  To ask the Secretary of State for Trade and Industry whether he will publish a table showing the import penetration and export performance ratios for the mechanical engineering industry less groups 320 and 329 in 1968, 1973, 1977, 1985 and 1989 together with the import/export ratios by value and volume for the European Economic Community and for the rest of the world based on 1973 = 100.

  Mr. Sainsbury
  [holding answer 15 October 1990]: The available information is in the table. The figures in the table are based on the NACE (1970) class 32 less the NACE group 352. No information is available for years before 1975 for the European Community.

  In 1987 the equivalent ratios for import penetration, export performance and import/export for the current membership of the EC were 16·6 per cent., 33·1 per cent. and 40·0 per cent.

  No information is available for the rest of the world.

  Import penetration, export performance and import/export ratios1 for the mechanical engineering industry2 within the European Community percentages

  Year3

  Import penetration index

  Export performance index

  Import/export ratio

  1975

  10·5

  31·9

  25·1

  1977

  11·7

  34·5

  25·2

  1985

  17·1

  37·6

  34·3

  1987

  16·1

  33·4

  38·3

  1 Figures are based on the extra-EC exports, extra-EC imports and EC production by those nine countries which were members of the European Community in 1980.

  2 Mechanical Engineering as defined by NACE (1970) class 32 less group 325.

  3 There are no data available for years before 1975. The latest year for which data are available is 1987.

  Source: Eurostat.

  Mr. Austin Mitchell
  To ask the Secretary of State for Trade and Industry whether he will publish a table showing the import penetration and export performance ratios for the motor vehicle industry in 1968, 1973, 1977, 1985 and 1989 together with the import/export ratios by value and volume for the European Economic Community and for the rest of the world based on 1973 = 100.

  Mr. Sainsbury
  [holding answer 15 October 1990]: The available information is in the table. The figures in the table are based on the NACE (1970) group 351. No information is available for years before 1978 for the European Community.
  774
  In 1987 the equivalent ratios for import penetration, export performance and import/export for the current membership of the EC were 8·8 per cent., 17·1 per cent. and 47·1 per cent. respectively.

  No information is available for "the rest of the world". The figures in the table are based on current price data. There are no constant price data available.

  Import penetration, export performance and import/export ratios1 for the motor vehicle industry2 within the European Community percentages

  Year3

  Import penetration index

  Export performance index

  Import/export ratio

  1978

  13·5

  33·3

  31·2

  1985

  12·5

  23·7

  46·0

  1987

  9·1

  18·1

  45·5

  1 Figures are based on the extra-EC exports, extra-EC imports and EC production by those nine countries which were members of the European Community in 1980.

  2 The motor vehicle industry as defined by NACE (1970) group 351.

  3 There are no data available for years before 1978. The latest year for which data are available is 1987.

  Source: Eurostat.

  Iraq
  Mr. Austin Mitchell
  To ask the Secretary of State for Trade and Industry what is his estimate of the scale of export guarantee losses arising from the invasion of Kuwait by Iraq.

  Mr. Sainsbury
  [holding answer 15 October 1990]: It has not been the policy of this or previous Governments to disclose the details of ECGD's claims experience with individual countries. It would not in any case be possible at this time to estimate the Department's loss on Iraq and Kuwait, since the full extent of insured costs of manufacture in respect of frustrated contracts will not be known for some time. Claims payments will be made over a number of years, and the eventual loss will be reduced by any recoveries made under arrangements which might follow if and when Iraq eventually seeks to restore normal international relations. For these reasons, the eventual loss which ECGD might face should not be deduced from the value of credits made available to Iraq under the various financial protocols.

FOREIGN AND COMMONWEALTH AFFAIRS

  Yanomami People
  Mr. Wray
  To ask the Secretary of State for Foreign and Commonwealth Affairs what recent contacts he had with the leaders of the Yanomami people; and what support Her Majesty's Government are giving to them(a) aimed at the protection of their environment and traditions and (b) otherwise.

  Mr. Garel-Jones
  Overseas Development Administration officials met Chief Davi Yanomami, a Yanomami leader, in December 1989 and April 1990. The ODA last month granted £88,000 to Oxfam for a health care project for the Yanomami in the state of Roraima. This project should provide medical benefits and help the Yanomami to care for themselves in future.

  Iran
  Mr. Nelson
  To ask the Secretary of State for Foreign and Commonwealth Affairs if he will make a statement on relations with Iran.

  Mr. Waldegrave
  Diplomatic relations with Iran were resumed on 27 September on the basis of mutual respect and non-interference in each other's internal affairs. We and the Iranians will re-open our embassies in Tehran and London by 27 October. There will be further discussion of the outstanding problems between the two countries. It is the Government's view that these problems will more easily be resolved with diplomatic relations than without them.

  BA Flight (Kuwait)
  Ms. Abbott
  To ask the Secretary of State for Foreign and Commonwealth Affairs what efforts were made to contact the passengers of flight BA 199 immediately after their detention on 2 August; and when the ambassador in Kuwait first visited them.

  Mr. Waldegrave
  [holding answer 15 October 1990]: Although the embassy telephones were cut following the Iraqi invasion and movement around town was difficult for several days, the embassy made contact with British Airways shortly after the flight was detained and was able to establish that all the BA 149 passengers were fit and well. As soon as freedom of movement was restored the passengers were visited regularly in their hotels by consular staff.

  Ms. Abbott
  To ask the Secretary of State for Foreign and Commonwealth Affairs what steps were taken to inform British Airways of the situation in Kuwait immediately prior to the landing of flight BA 199 on 2 August.

  Mr. Waldegrave
  [holding answer 15 October 1990]: The captain of BA 149 checked the position with BA staff in Kuwait, who in turn checked with the British embassy, before take-off from Heathrow on 1 August. Three hours before landing he was told by the pilot of a BA plane which had just left Kuwait that all was well there. The aircraft landed without incident, well before Kuwait airport was closed as a result of the invasion.

NORTHERN IRELAND

  Personal Data
  Mr. Cohen
  To ask the Secretary of State for Northern Ireland whether his Department will take positive steps to discuss with the Data Protection Registrar all his Department's legislation that impacts on the use, collection, processing or holding of personal data; and whether he will make a statement.

  Mr. Cope
  I am reminding officials in the Northern Ireland Office and Northern Ireland Departments of the need to consult the registrar about proposed legislation which might affect or be affected by the Data Protection Act 1984.

  Fair Employment Commission
  Mr. Kilfedder
  To ask the Secretary of State for Northern Ireland whether he will make a statement on progress made to date by the Fair Employment 776
  Commission towards achievement of fair employment as between Protestants and Roman Catholics within its own organisation.

  Mr. Needham
  I have placed in the Library a copy of a press release issued on 16 October by the Fair Employment Commission which deals with the religious composition of its staff.

  Drainage Costs
  Mr. Kilfedder
  To ask the Secretary of State for Northern Ireland what was the estimated cost to the Department of Agriculture of drainage works arising from new building developments in 1989–90.

  Mr. Brooke
  A total of £1·8 million.

  Meat Industry
  Mr. John D. Taylor
  To ask the Secretary of State for Northern Ireland what examination he has made of the implications for the Northern Ireland beef and meat industry of the recent changes in the circumstances of Goodman International; what proposals he has to safeguard Ulster beef producers; and if he will make a statement.

  Mr. Brooke
  [holding answer 15 October 1990]: The Goodman slaughter plants in Northern Ireland are continuing to trade normally and producers who sell to these plants are not experiencing difficulties. Should there be any disruption or discontinuation of trading by these plants the Government believe that sufficient alternative outlets in Northern Ireland are available to handle all the stock to be slaughtered. I do not anticipate, therefore, the need for any Government action to protect the interests of producers.

  Students
  Mr. John D. Taylor
  To ask the Secretary of State for Northern Ireland from what date income support for students was withdrawn; when local social security offices were advised of this date, in what manner students were advised in advance of this date; whether the students who applied before this date will continue to receive this benefit after this date until they resume their studies; and if he will make a statement.

  Mr. Needham
  [holding answer 15 October 1990]: Most students ceased to be eligible for income support from 1 September 1990. However, any student who was entitled before 1 September 1990 did not lose entitlement until the resumption of his course of study. Initial guidance was issued to social security offices on 20 August 1990. Information about the new arrangements for student support was contained in a leaflet, copies of which were issued in June 1990 to universities, colleges of education, further education colleges and secondary schools. I have placed copies of the leaflet in the Library.

SOCIAL SECURITY

  Child Benefit
  Mr. Kirkwood
  To ask the Secretary of State for Social Security if he will make it his policy to uprate child benefit annually in line with inflation.
  777
  Mrs. Gillian Shephard
  I refer the hon. Member to the reply given to the hon. Member for Orkney and Shetland (Mr. Wallace) on 15 October at columns 920–21.

  Resettlement Units
  Mr. Conway
  To ask the Secretary of State for Social Security whether the current business plan of the resettlement units executive agency, and the accounts of its first year of operation, are yet available.

  Mrs. Gillian Shephard
  The current business plan has been placed in the Library today and it is proposed to place the agency's accounts there on 31 October, once audit is complete.

NATIONAL FINANCE

  Football Clubs (Safety)
  Mr. Pendry
  To ask the Chancellor of the Exchequer when his Department will make the necessary changes in taxation regulations to ensure that capital expenditure incurred by football clubs on safety improvement work on football stands in complying with the recommendations of Lord Justice Taylor's report into the Hillsborough disaster becomes eligible for tax relief.

  Mr. Maude
  Expenditure incurred by clubs to comply with the requirements of a safety certificate already attracts tax relief. The Government do not consider it right to single out football stands for a specific relief when other commercial premises do not generally qualify. Moreover, such a relief would not help the large majority of clubs which are not profitable and do not pay tax. The Government believe that the cash injection of £100 million over five years from the reduction in pool betting duty is a better way of helping league football clubs carry out the improvements recommended by Lord Justice Taylor.

  Exchange Rates
  Mr. Allen
  To ask the Chancellor of the Exchequer what mechanisms exist for revaluing or devaluing currencies in the ERM; and when such a mechanism was last used.

  Mr. Maude
  The central exchange rates of currencies in the exchange rate mechanism of the European monetary system may be changed by agreement of the members. The last realignment of central rates took place on 8 January this year when the lira moved from wide to narrow bands in the system.

  Mr. Allen
  To ask the Chancellor of the Exchequer what estimate he has made of when the Madrid conditions originally laid down for entry into the ERM will be met.

  Mr. Maude
  The conditions for entry into the ERM have been met.

  Mr. Allen
  To ask the Chancellor of the Exchequer if he will make a statement on the reasons it was decided to modify the Madrid conditions for entry into the exchange rate mechanism.

  Mr. Maude
  The Madrid conditions have not been modified.

  European Community
  Mr. Allen
  To ask the Chancellor of the Exchequer what is his current policy on European monetary union.

  Mr. Maude
  The Government are fully committed to stage 1 of the Delors report recommendations; a commitment underlined by our decision to enter the exchange rate mechanism. We remain opposed to the imposition of a single currency as prescribed in stage 3 of the Delors report. On 20 June my right hon. Friend the Chancellor of the Exchequer set out alternative proposals for a "hard ecu" and a European monetary fund. We shall be arguing forcefully for our approach in and during the intergovernmental conference on EMU which opens on 13 December.

  Interest Rates
  Mr. Allen
  To ask the Chancellor of the Exchequer if he will state his current policy on interest rates.

  Mr. Maples
  Interest rates will continue to be set at an appropriate level in order to bear down on inflation.

  Eastern Europe
  Mr. Allen
  To ask the Chancellor of the Exchequer, pursuant to his answer of 19 July,Official Report, column 655, what assessment he has made of the implications for the Treasury's policies of the book "End of the Cycle", by Morgan Stanley; and if he will make a statement.

  Mr. Maples
  This report is an informative assessment of the economic situations and investment opportunities within the countries of western and eastern Europe. The analyses of these countries show a great deal of insight.

  Retail Prices Index
  Mr. Speller
  To ask the Chancellor of the Exchequer when his Department first used the Laspeyres-based formula for the retail prices index.

  Mr. Maples
  [holding answer 15 October 1990]: The retail prices index and its predecessor, the cost of living index, have always been based on the Laspeyres formula. These figures were first compiled in 1914. Since 1962 a variant known as the "chain Laspeyres" formula has been used, whereby the weights, while remaining fixed for 12 months at a time, are brought up to date at the beginning of each calendar year.

DEFENCE

  Housing Statistics
  Mr. Wray
  To ask the Secretary of State for Defence how many Government-owned empty dwellings of(a) one, (b) two, (c) three and (d) four or more bedrooms there are in (i) Glasgow, (ii) Strathclyde region and (iii) Scotland.

  Mr. Archie Hamilton
  As at 30 June 1990, the latest date for which figures are available, 1,576 MOD-owned dwellings were vacant in Scotland, of which seven were in Glasgow and 388 were in the Strathclyde region. Many of these properties were either undergoing or awaiting major
  779
  maintenance work or modernisation, some were already allotted to service families who were due to move in shortly and others were in the process of disposal. A breakdown according to the number of bedrooms could be obtained only with disproportionate effort.

AGRICULTURE, FISHERIES AND FOOD

  Plum Orchards
  Mr. Moate
  To ask the Minister of Agriculture, Fisheries and Food what representations he has received about serious frost damage suffered by United Kingdom plum orchards; if he has received representations for maintenance aid to help growers who have modernised orchards and marketing and who are now at risk; and if there is any European Economic Community assistance in this respect.

  Mr. Curry
  I have received representations from the NFU and individual growers on the possibility of aid for plum producers affected by severe frosts earlier this year. I naturally sympathise with the difficulties experienced by some producers but the Government do not normally offer compensation for the effects of adverse weather. EC assistance is not available for growers in these circumstances.

  Farm Incomes
  Sir Richard Body
  To ask the Minister of Agriculture, Fisheries and Food if he will estimate the cost of supporting existing farm incomes by a system of guaranteed prices instead of import levies.

  Mr. Curry
  The Organisation for Economic Cooperation and Development has estimated the value of total transfers to European Community farmers to be some 48 billion ecu in 1989: this gives an indication of the cost of administering all forms of support, including border protection, through a guaranteed price-deficiency payment system. This estimate covers the main products, which account for 75 per cent. of agricultural output, and is based on many assumptions, notably about "world" prices. Details are set out in "Agricultural Policies, Markets and Trade: Monitoring and Outlook 1990": OECD, Paris 1990.

LORD PRESIDENT OF THE COUNCIL

  German Unification
  Mr. Page
  To ask the Lord President of the Council if he will list the documents relevant to the debate on Friday 19 October on the transitional measures relating to the EC consequences of German unification.

  Sir Geoffrey Howe
  European Community documents Nos. Com(90)400 on transitional measures consequent upon German unification and 8782/90 on revision of the Community's financial perspective in the light of German unification, the fourth report from the Foreign Affairs Committee on "German Unification: Some Immediate Issues"—House of Commons paper No. 335, the observations by the Government on the report—Cm. 1246—and the seventh report from the Treasury and Civil Service Committee on "International Monetary 780
  Arrangements: Eastern Europe"—House of Commons paper No. 431—so far as it relates to German economic and monetary union.

HEALTH

  Land Sales
  Mr. Win Griffiths
  To ask the Secretary of State for Health what assessment he has made of the impact of reduced receipts from land sales on the national health service capital programme.

  Mr. Graham
  To ask the Secretary of State for Health what assessment he has made of the impact of reduced receipts from land sales on the national health service capital programme.

  Mrs. Heal
  To ask the Secretary of State for Health what assessment he has made of the impact of reduced receipts from land sales on the national health service capital programme.

  Mr. Henderson
  To ask the Secretary of State for Health what assessment he has made of the impact of reduced receipts from land sales on the national health service capital programme.

  Mr. Dorrell
  The state of the property market is one of the many factors that health authorities have to take into account in managing their capital programmes.

  Nursing Staff
  Mr. McCartney
  To ask the Secretary of State for Health when he last met representatives of the Royal College of Nursing to discuss recruitment and levels of nursing staff.

  Mr. Tony Lloyd
  To ask the Secretary of State for Health when he last met representatives of the Royal College of Nursing to discuss recruitment and levels of nursing staff.

  Mr. Loyden
  To ask the Secretary of State for Health when he last met representatives of the Royal College of Nursing to discuss recruitment and levels of nursing staff.

  Mrs. Virginia Bottomley
  We attach great importance to the need to recruit and retain sufficient numbers of nursing staff. A wide range of issues relating to this objective are discussed in the various meetings which Ministers and officials regularly hold with representatives of the Royal College of Nursing.

  Health Care
  Mr. Flannery
  To ask the Secretary of State for Health what action he is taking to achieve a reduction in inequalities in access to health care between regions and socio-economic groups.

  Mrs. Fyfe
  To ask the Secretary of State for Health what action he is taking to achieve a reduction in inequalities in access to health care between regions and socio-economic groups.

  Ms. Gordon
  To ask the Secretary of State for Health what action he is taking to achieve a reduction in inequalities in access to health care between regions and socio-economic groups.
  781
  Mr. Dorrell
  We are committed to providing a national health service, free at the point of access, that is geographically comprehensive. The NHSCC Act provides the machinery to improve the targeting of NHS resources towards identified needs.

  District Health Authorities
  Mr. McWilliam
  To ask the Secretary of State for Health what is the latest estimate of the likely cumulative deficit levels for district health authorities in England during the current financial year.

  Mr. Martlew
  To ask the Secretary of State for Health what is the latest estimate of the likely cumulative deficit levels for district health authorities in England during the current financial year.

  Mr. Bill Michie
  To ask the Secretary of State for Health what is the latest estimate of the likely cumulative deficit levels for district health authorities in England during the current financial year.

  Mr. Meale
  To ask the Secretary of State for Health what is the latest estimate of the likely cumulative deficit levels for district health authorities in England during the current financial year.

  Mr. Dorrell
  The NHS management executive is engaged in continuing discussions with regional health authorities. It is not yet possible to identify the number of district health authorities that will have an underlying deficit in 1990–91.

  NHS Hospitals
  Mr. Knox
  To ask the Secretary of State for Health how many patients were treated in national health service hospitals in the most recent year for which figures are available; and what were the comparable figures for 1978.

  Mr. Dorrell
  Provisional figures for 1989–90 show almost 7·5 million in-patient cases were treated as compared with some 6 million in 1978—a rise of 23 per cent. Day cases rose even more sharply by 103 per cent. from 562,000 to over 1 million. Over the same period there has been a 10 per cent. rise in new out-patient attendances and a 7 per cent. rise in total out-patient attendances.

  Capital Charges
  Mr. George Howarth
  To ask the Secretary of State for Health what assessment he has made of the impact of capital charges on long-stay hospital provision.

  Mr. Lambie
  To ask the Secretary of State for Health what assessment he has made of the impact of capital charges on long-stay hospital provision.

  Mr. John Hughes
  To ask the Secretary of State for Health what assessment he has made of the impact of capital charges on long-stay hospital provision.

  Mr. Martyn Jones
  To ask the Secretary of State for Health what assessment he has made of the impact of capital charges on long-stay hospital provision.

  Mr. Dorrell
  The introduction of capital charges will give managers of long-stay units, as with all other health service hospitals, information which will help them to use 782
  their assets more efficiently. Management and accountability of long-stay units will be improved by the increased awareness of the costs of capital.

  NHS Trusts
  Mr. Winnick
  To ask the Secretary of State for Health if he will make a statement on the latest position in respect of hospitals becoming self governing.

  Mr. Cohen
  To ask the Secretary of State for Health if he will make a statement on the progress made on public consultation following proposals for the formation of self-governing hospital trusts.

  Mr. Fatchett
  To ask the Secretary of State for Health if he will make a statement on the progress being made on public consultation following proposals for the formation of self-governing hospital trusts.

  Mr. Cunliffe
  To ask the Secretary of State for Health if he will make a statement on the progress made on public consultation following proposals for the formation of self-governing hospital trusts.

  Mr. Kenneth Clarke
  I refer the hon. Members to the reply I gave the hon. Member for Easington (Mr. Cummings) earlier today.

  Mr. Nellist
  To ask the Secretary of State for Health how many formal applications have now been received for national health service trust status; and if he will make a statement.

  Mrs. Virginia Bottomley
  A total of 66 applications for trust status have been received from units which wish to become operational on 1 April 1991.

  Mr. Dykes
  To ask the Secretary of State for Health if he will make a statement on progress by the Royal National Orthopaedic hospital in developing national health service trust status.

  Mr. Kenneth Clarke
  The North East Thames regional health authority is currently consulting on the application from the Royal National Orthopaedic hospital to become a national health service trust.

  Mr. Pawsey
  To ask the Secretary of State for Health if he will list the principal benefits that will attend trust status for national health service hospitals.

  Mrs. Virginia Bottomley
  Units that are established as national health service trusts will have the freedom to manage their own affairs. They will be able to acquire, own and dispose of assets to ensure the most effective use is made of them; make their own cases for capital developments direct to the national health service management executive; borrow money, within annually agreed limits; establish their own management structures; employ their own staff, determine their own staffing structures, and set their own terms and conditions of employment; and advertise their services, within the guidelines set down by professional codes of practice on such advertising. Trusts will be able to use these freedoms to achieve better, faster decision-making to the benefit of patients, their community and their staff.

  Mr. Atkinson
  To ask the Secretary of State for Health how many hospitals have indicated an interest in
  783
  becoming self-governing trusts; and how many general practices have indicated an interest in applying for their own funds to date.

  Mrs. Virginia Bottomley
  A total of 66 units have applied to become NHS trusts in the first wave, which will become operational in April 1991. We will be able to announce the number of units which have expressed an interest in becoming NHS trusts in April 1992 by the end of this month. As far as general practices are concerned, I refer my hon. Friend to the reply my right hon. and learned Friend the Secretary of State gave my hon. Friends the Members for Isle of Wight (Mr. Field) and for Gravesham (Mr. Arnold) earlier today.

  Mr. Fearn
  To ask the Secretary of State for Health what representations he has received from health workers and the general public in the north-west, on the need for balloting to occur before hospitals become self-governing national health service trusts.

  Mrs. Virginia Bottomley
  A number of representations from interested parties in the north-west have been received. We have consistently made clear that ballots are not appropriate. Mersey and North Western regional health authorities are responsible for statutory consultation on proposals to establish NHS trusts in their regions. It is for the regional health authority concerned to determine the manner in which it carries out such consultation and reports the results to my right hon. and learned Friend the Secretary of State.

  Mr. Matthew Taylor
  To ask the Secretary of State for Health what representations he has received from health workers and the general public within the South Western regional health authority on the need for balloting to occur before hospitals become self-governing national health service trusts.

  Mrs. Virginia Bottomley
  A number of representations from interested parties within the South Western regional health authority have been received. We have consistently made clear that ballots are not appropriate. The South Western regional health authority is responsible for statutory consultation on proposals to establish NHS trusts in its region. It is for the regional health authority concerned to determine the manner in which it carries out such consultation and reports the results to my right hon. and learned Friend the Secretary of State.

  Mr. Alan W. Williams
  To ask the Secretary of State for Health what is his estimate of the total amount of interest-bearing debts facing proposed self-governing hospital trusts which is now to be written off.

  Mr. Worthington
  To ask the Secretary of State for Health what is his estimate of the total amount of interest-bearing debts facing proposed self-governing hospital trusts which is now to be written off.

  Mr. Watson
  To ask the Secretary of State for Health what is his estimate of the total amount of interest-bearing debts facing proposed self-governing hospital trusts which is now to be written off.

  Mr. Dorrell
  I refer the hon. Members to the reply I gave to the hon. Member for Preston (Mrs. Wise) on 23 July at column 77.

  Hospital Treatment
  Mr. Beith
  To ask the Secretary of State for Health what assessment he has made of the extent to which contracts being made by health authorities for hospital treatment take account of established patient and general practitioner preference for hospital treatment outside district boundaries, particularly in respect of non-budget holding practices.

  Mr. Kenneth Clarke
  I have made it clear that district health authorities should place contracts in line with GPs' preferences. DHAs are consulting GPs now on referral patterns and analysing their own information on existing patient flows. I expect DHAs to be discussing their contracting intentions with local GPs throughout the autumn.

  NHS Reform
  Mr. Leadbitter
  To ask the Secretary of State for Health what representations he has received from voluntary organisations regarding the implementation of the National Health Service and Community Care Act 1990.

  Mrs. Virginia Bottomley
  We have received many such representations.

  Mr. Sims
  To ask the Secretary of State for Health if it is his intention to implement in full in April 1991 that part of the National Health Service and Community Care Act relating to the national health service; and if he will make a statement.

  Mrs. Virginia Bottomley
  Yes. It is important that patients and national health service staff reap the benefits of these changes as soon as possible.

  Mr. McAvoy
  To ask the Secretary of State for Health when he last met representatives of the British Medical Association to discuss implementation of the National Health Service and Community Care Act 1990.

  Mr. McLeish
  To ask the Secretary of State for Health when he last met representatives of the British Medical Association to discuss implementation of the National Health Service and Community Care Act 1990.

  Mr. McKelvey
  To ask the Secretary of State for Health when he last met representatives of the British Medical Association to discuss implementation of the National Health Service and Community Care Act 1990.

  Mr. McAllion
  To ask the Secretary of State for Health when he last met representatives of the British Medical Association to discuss implementation of the National Health Service and Community Care Act 1990.

  Mr. Kenneth Clarke
  My last formal meeting with representatives of the BMA specifically to discuss the implementation of our reforms of the NHS took place on 18 October 1989.

  Community Care
  Mr. Pendry
  To ask the Secretary of State for Health what progress has been made on the implementation of the community care proposals contained in the National Health Service and Community Care Act 1990.
  785
  Mr. Patchett
  To ask the Secretary of State for Health what representations he has received regarding funding arrangements for the Government's community care proposals.

  Mr. Home Robertson
  To ask the Secretary of State for Health what representations he has received from local authorities regarding the Government's proposed changes in the organisation of community care.

  Mr. Macdonald
  To ask the Secretary of State for Health if he has revised his timetable for the implementation of his community care proposals.

  Mr. Hinchliffe
  To ask the Secretary of State for Health what representations he has received from local authorities regarding the Government's proposed changes in the organisation of community care.

  Mr. Orme
  To ask the Secretary of State for Health what progress has been made on the implementation of the community care proposals contained in the National Health Service and Community Care Act 1990.

  Mrs. Margaret Ewing
  To ask the Secretary of State for Health what representations he has received from organisations on the new arrangements for community care; and if he will make a statement.

  Mr. Sillars
  To ask the Secretary of State for Health what representations he has received from organisations on the new arrangements for community care; and if he will make a statement.

  Mr. Livsey
  To ask the Secretary of State for Health if he will make a statement on the time scale for the introduction of the community care reforms.

  Mr. James Lamond
  To ask the Secretary of State for Health what representations he has received from voluntary organisations regarding the implementation of the National Health Service and Community Care Act 1990.

  Mr. Morley
  To ask the Secretary of State for Health what progress has been made on the implementation of the community care proposals contained in the National Health Service and Community Care Act 1990.

  Mr. Leighton
  To ask the Secretary of State for Health what representations he has received from voluntary organisations regarding the implementation of the National Health Service and Community Care Act 1990.

  Mr. Hood
  To ask the Secretary of State for Health what representations he has received from local authorities regarding the Government's proposed changes in the organisation of community care.

  Mr. Morgan
  To ask the Secretary of State for Health what representations he has received from voluntary organisations regarding the implementation of the National Health Service and Community Care Act 1990.

  Mrs. Virginia Bottomley
  I refer the right hon. and hon. Members to the reply I gave the hon. Members for Barnsley, Central (Mr. Illsley) for Normanton (Mr. O'Brien), for Cumbernauld and Kilsyth (Mr. Hogg) and for Angus, East (Mr. Welsh) earlier today.
  786
  Mr. Andrew Smith
  To ask the Secretary of State for Health what representations he has received concerning the timetable for the implementation of his community care proposals.

  Mrs. Virginia Bottomley
  Many such representations have been received, from local authorities, health authorities, voluntary organisations and other interested bodies.

  Mr. Wigley
  To ask the Secretary of State for Health how many representations he has received from local authorities on the implementation of community care arrangements since the commencement of the Parliamentary summer recess.

  Mrs. Virginia Bottomley
  We have received many such representations.

  Indicative Prescribing
  Mr. Sumberg
  To ask the Secretary of State for Health what progress is being made in implementing the measures outlined in his further working paper on the indicative prescribing scheme for general practitioners; and if he will make a statement.

  Mrs. Virginia Bottomley
  Since the publication of "Improving Prescribing" on 23 May further progress has been made towards implementation of the scheme. Arrangements have been made to hold a series of six seminars in different parts of the country for key NHS personnel who will be closely involved in operating the scheme. Their purpose is to update these personnel on the development of the scheme. The first two seminars were held at Leicester on 5 October and Birmingham on 12 October.

  We propose to issue to regional health authorities and family health services authorities later this month further detailed guidance on the financial framework of the scheme and the setting of indicative prescribing amounts.

  The introduction and development of the necessary information systems at the Prescription Pricing Authority is also progressing smoothly.

  Consultants
  Mr. David Evans
  To ask the Secretary of State for Health how many of the 100 additional consultant posts announced in the White Paper, "Working for Patients", are now in place or have been allocated; and when he expects the process to be complete.

  Mrs. Virginia Bottomley
  All the 100 new posts have now been allocated. I announced the first 35, to be appointed in 1989–90, on 30 October 1989 at column 124 and I announced the allocation of the remaining 65 posts, for appointment in 1990–91 and 1991–92, on 27 February 1990 at columns 125–26. Districts are expected to complete the appointment process for the last of the new consultants by early in 1991–92.

  NHS Inflation
  Mr. Vaz
  To ask the Secretary of State for Health what were the levels of health service inflation for each of the last five financial years.

  Mr. Stott
  To ask the Secretary of State for Health what were the levels of health service inflation for each of the last five financial years.
  787
  Mr. Turner
  To ask the Secretary of State for Health what were the levels of health service inflation for each of the last five financial years.

  Mr. Dorrell
  Changes in input unit costs in the national health service over the last five financial years are as follows:

  Changes

  1984–85

  6·0

  1985–86

  5·2

  1986–87

  6·4

  1987–88

  7·9

  1988–89

  9·9

  1989–90

  17·2

  1estimate

  Children Act
  Mr. Buckley
  To ask the Secretary of State for Health what progress has been made on the implementation of the Children Act 1989.

  Mr. Bradley
  To ask the Secretary of State for Health what progress has been made on the implementation of the Children Act 1989.

  Mr. Boyes
  To ask the Secretary of State for Health what progress has been made on the implementation of the Children Act 1989.

  Mrs. Virginia Bottomley
  I refer the hon. Members to the reply I gave the hon. Member for Middlesbrough (Mr. Bell) earlier today.

  Junior Doctors
  Mr. Dunnachie
  To ask the Secretary of State for Health what progress has been made in negotiations on proposals for a reduction in the hours worked by junior doctors.
  788
  Mr. Doran
  To ask the Secretary of State for Health what progress has been made in negotiations on proposals for a reduction in the hours worked by junior doctors.

  Mr. Terry Fields
  To ask the Secretary of State for Health what progress has been made in negotiations on proposals for a reduction in the hours worked by junior doctors.

  Mrs. Virginia Bottomley
  The Government are very concerned to reduce the hours worked by some junior hospital doctors. For this reason I held a meeting earlier this year with representatives of the medical profession at consultant and junior level, the royal colleges, and NHS management to discuss the way forward. A working group was set up at that meeting to take forward a detailed examination of the issues.

  After a second meeting on 20 September, I am delighted to report that excellent progress is being made. The working group has covered a considerable amount of ground in examining both the precise nature of the problem and what can be done further to reduce the long hours still being worked by some junior hospital doctors. As work loads and staffing patterns vary so much between different hospitals, specialties and grades of doctor, the intention is to produce a package of practical measures from which those concerned locally can choose the solutions best suited to their particular circumstances. All parties are aiming to reach broad agreement in principle on specific changes by the end of the year. This will then be followed by a detailed plan for implementation.

  All those concerned should face up to the true nature of the problem so that further progress can follow.

  Eye Tests
  Mr. Ronnie Campbell
  To ask the Secretary of State for Health what is his latest information on the impact of charging for eyesight checks on attendances for examinations.

  Mr. Clay
  To ask the Secretary of State for Health what is his latest information on the impact of charging for eyesight checks on attendances for examinations.

  Mr. Caborn
  To ask the Secretary of State for Health what is his latest information on the impact of charging for eyesight checks on attendances for examinations.

  Mr. Clelland
  To ask the Secretary of State for Health what is his latest information on the impact of charging for eyesight checks on attendances for examinations.

  Mrs. Virginia Bottomley
  The independent NOP survey, supported by evidence from other similar surveys, suggests that demand for sight tests is now broadly in line with the expected trend.

  Patient Care
  Mr. Franks
  To ask the Secretary of State for Health what steps are being taken to promote quality of care for patients.

  Mr. David Davis
  To ask the Secretary of State for Health what assessment he has made of the effects of the National Health Service and Community Care Act on the quality of services to patients; and if he will make a statement.

  Mrs. Virginia Bottomley
  I refer my hon. Friends to the reply I gave to my hon. Friend the Member for Gedling (Mr. Mitchell) earlier today.

  Hospital Facilities (North-west)
  Mr. Favell
  To ask the Secretary of State for Health if he will make a statement on plans to improve hospital facilities in the north-west.

  Mr. Dorrell
  The North Western regional health authority has recently published a statement of its plans to improve hospital services in 1990–91 in the region, a copy of which has been placed in the Library.

  Family Planning
  Ms. Short
  To ask the Secretary of State for Health if he will bring forward proposals to improve family planning services.

  Mrs. Wise
  To ask the Secretary of State for Health if he will bring forward proposals to improve family planning services.

  Mrs. Virginia Bottomley
  I refer the hon. Members to the replies I gave my hon. Friend the Member for Bournemouth, East (Mr. Atkinson) on 19 June at column 508 and on 27 June at columns 249–50.

  Communicable Diseases
  Mr. Knapman
  To ask the Secretary of State for Health what progress has been made in implementing the recommendations on the management of communicable diseases contained in the chief medical officer's report, "Public Health in England".

  Mr. Dorrell
  In December 1988, circular HC (88) 64 was issued to health authorities. The circular asked health authorities to review the arrangements for the discharge of their responsibilities to improve the health of the population including the control of communicable disease and infection. Health authorities were reminded of the need for effective measures to prevent and control infection and, for example, asked to move towards management arrangements which assigned executive responsibility for the surveillance, prevention and control of communicable disease and infection to a named medical practitioner of consultant status, the consultant in communicable disease control—CCDC.

  A survey of training needs for CCDCs was commissioned in 1989 and the resulting report was issued to health authorities. A total of £164,000 has been allocated to health authorities to meet the cost of course fees for CCDC training in the 1990–91 financial year. In addition £119,000 has been made available to the communicable disease surveillance centre to enable it to develop a practical communicable disease control training module for CCDCs.

  A consultation document "Review of the Law on Infectious Disease Control" was published in October 1989 inviting comments on proposals to change the relevant legal provision in England and Wales. The responses to this consultation document are currently being considered.

  Copies of documents mentioned are available in the Library.

  Social Work
  Ms. Armstrong
  To ask the Secretary of State for Health what steps are taken by his Department to monitor the ability of individual local authorities to carry out their statutory social work functions.

  Mr. Battle
  To ask the Secretary of State for Health what steps are taken by his Department to monitor the ability of individual local authorities to carry out their statutory social work functions.

  Mr. Bidwell
  To ask the Secretary of State for Health what steps are taken by his Department to monitor the ability of individual local authorities to carry out their statutory social work functions.

  Mrs. Virginia Bottomley
  I refer the hon. Members to the reply I gave to the hon. Member for Derbyshire, North-East (Mr. Barnes) earlier today.

  Regional Health Authorities
  Mr. Colin Shepherd
  To ask the Secretary of State for Health what advice he gives to regional health authorities in planning their capital expenditure programmes.

  Mr. Dorrell
  Regional health authorities plan their capital expenditure programme according to their needs
  791
  within the resources available to them. Advice is available centrally to health authorities on the integration of service provision, manpower, finance and estate management in the planning of capital programmes.

  Community Health Councils
  Mr. Steinberg
  To ask the Secretary of State for Health if he will bring forward proposals to increase the powers of community health councils.

  Mr. John P. Smith
  To ask the Secretary of State for Health if he will bring forward proposals to increase the powers of community health councils.

  Mr. Rees
  To ask the Secretary of State for Health if he will bring forward proposals to increase the powers of community health councils.

  Mr. Rogers
  To ask the Secretary of State for Health if he will bring forward proposals to increase the powers of community health councils.

  Mrs. Virginia Bottomley
  There are no plans to change the fundamental role of community health councils. Their main interest should be the quality of care and personal attention given to patients by the health service in their locality. The NHS management executive issued guidance on the role of CHCs in the post-reform NHS on 19 September with departmental press notice 90/462, a copy of which is in the Library.

  Competitive Tendering
  Mr. David Martin
  To ask the Secretary of State for Health what are the estimated annual savings generated from competitive tendering within the national health service.

  Mr. Dorrell
  Up to 1988–89, health authorities in England had achieved savings worth £110 million from competitive tendering of domestic, catering and laundry services. In 1989–90, authorities reported a further £10 million worth of savings from these and other services put out to tender. The anticipated new savings for 1990–91 are £10 million.

  Hospital Construction
  Mr. Irvine
  To ask the Secretary of State for Health how many hospitals have been built in the past 11 years; and how many more are being planned.

  Mr. Dorrell
  Almost 500 health building schemes, each costing over £1 million, have been completed in the national health service in the last 11 years. A further 462 schemes are currently at various stages of planning, design and construction in a programme worth about £5 billion. This represents the largest sustained building programme in the history of the NHS.

  Nurse: in-patient Ratio
  Mr. David Porter
  To ask the Secretary of State for Health what was the nurse: in-patient ratio in 1979 and the latest date for which figures are available.

  Mrs. Virginia Bottomley
  Manpower statistics cover staff working in hospitals and are collected at a particular 792
  time; they do not show what activities within the hospital the staff engaged upon—for example, whether they are providing treatment to in-patients, out-patients, or accident and emergency patients. By contrast, activity statistics show the number of cases treated during the year in national health service hospitals. It is possible however, to give a ratio in terms of the population being served. At 30 September 1979, the number of qualified nursing and midwifery staff, measured in whole-time equivalents, was 438·6 per 100,000 population for England. At 30 September 1988, the number of qualified nursing and midwifery staff, measured in whole-time equivalents, was 508·9 per 100,000 population. These ratios have been adjusted to take account of the change in nurses' working hours, from 40 to 37·5 hours per week, during 1980–81. The average number of in-patients treated in a week was 103,848 in 1979 and 126,654 in 1988.

  Out-patient Departments
  Mr. Janman
  To ask the Secretary of State for Health whether any initiatives are being taken to improve out-patient departments.

  Mrs. Virginia Bottomley
  I refer my hon. Friend to the reply I gave my hon. Friend the Member for Wyre Forest (Mr. Coombs) on 1 May at column 532. A further series of projects to be set up in 1990–91 has recently been announced. They will be at Hillingdon, Stockport, Canterbury and Carlisle.

  Liver Transplants
  Mr. French
  To ask the Secretary of State for Health how many liver transplants were carried out in the United Kingdom in each year from 1979 to 1989.

  Mr. Dorrell
  According to information provided by the United Kingdom transplants service the number of liver transplants performed in NHS hospitals in the United Kingdom each year from 1982, the first year that figures were available, was as follows:

  Numbers

  1982

  21

  1983

  20

  1984

  51

  1985

  88

  1986

  127

  1987

  172

  1988

  241

  1989

  295

  NHS Management
  Mr. Hague
  To ask the Secretary of State for Health what progress is being made in the streamlining of management within the national health service.

  Mrs. Virginia Bottomley
  Our aim is to streamline the management of the national health service to ensure that it is better able to bring about improvements in health of the population, through services provided effectively, efficiently and economically. Our reforms have ensured a maximum devolution of functions and NHS authorities are now smaller, lines of accountability are clearer and primary health care is becoming better integrated with the hospital and community health service. Under the
  793
  leadership of its chief executive, Duncan Nichol, the NHS management executive is working closely with health service managers to clarify and simplify their tasks, so that they focus on their core functions and on outcomes. The national programme of health targets which my right hon. and learned Friend the Secretary of State announced on 9 October underlines this new focus.

  Dentists
  Mr. John Greenway
  To ask the Secretary of State for Health what recent discussions he has held with the British Dental Association about the future for general dental practitioners' services.

  Mr. Kenneth Clarke
  I met the general dental services committee of the British Dental Association on 12 July, when we agreed that the new contract for general dental practitioners would be introduced on 1 October, and that the proposals were in the best interests of patients, dentists and dentistry.

  Family Doctors
  Mr. Hardy
  To ask the Secretary of State for Health if he will take steps to ensure that the reimbursement rate for the cost of baby sitters whose employment is necessary to allow a family doctor to attend to his patients is set at a level which takes account of the prevailing level of charges made for such services.

  Mrs. Virginia Bottomley
  No specific payment can be claimed by a family doctor for employing a baby sitter.

  Mr. Hardy
  To ask the Secretary of State for Health what is his estimate of the hourly cost of employment of a locum to assist or to substitute for a family practitioner; and if the cost is fully reflected in the financial arrangements made by his Department.

  Mrs. Virginia Bottomley
  As independent contractors, general medical practitioners make their own arrangements for locum cover. Where a locum is employed due to specific circumstances such as sickness or confinement, family health services authorities may make a direct contribution to the cost of a locum up to £328 for a five-day week. Similar payments can be made in certain circumstances where the GP is absent from the practice for educational purposes. Locum costs in addition to this direct payment, or incurred for reasons unconnected with the circumstances described above, are reimbursed indirectly through the generality of fees and allowances payable in respect of all patients on the GP's list. By these means all locum costs are reimbursed to the profession.

  Mr. Hardy
  To ask the Secretary of State for Health if allowances and capitation fees paid to family doctors under the new arrangements are more or less than the previous out-of-hours allowances.

  Mrs. Virginia Bottomley
  The only fee payable for out-of-hours services is the night visit fee. Since April 1990, this fee has been split into two with a much higher fee—£43·35 compared to £20·25—payable if the family doctor does the visit himself and a lower fee—£14·45—payable if a deputising service doctor makes the visit. This change was made as part of the performance-related pay introduced under the new contract.

  Before April 1990 supplementary capitation fees and a supplementary basic practice allowance were paid for
  794
  out-of-hours services. These have been abolished and the money redistributed amongst other fees and allowances, in particular by way of capitation fees. These have gone up by some 30 per cent. for patients under 75 and by some 110 per cent. for patients aged 75 and over.

  Mr. Hardy
  To ask the Secretary of State for Health what reimbursement is permitted for family doctors for service between 7 and 10 pm in weekdays or during the period to 10 pm on Saturdays, Sundays and bank holidays.

  Mrs. Virginia Bottomley
  Family doctors are responsible for their patients 24 hours a day for seven days a week. In recognition of this responsibility family doctors receive a capitation fee for each patient on their NHS list. This amounts to £11·95 per annum for each patient under 65, £15·75 per annum for each patient aged 65 to 74 and £30·35 for each patient aged 75 and over. These amounts are to be increased, from 1 January 1991, to £12·40, £16·30 and £31·45 respectively. Home visits between the hours of 10 pm and 8 am attract additional payments of £43·35—£45 from 1 January 1991—if the doctor undertakes the visit himself or the visit is made by another doctor in the same group, and £14·45—£15 from 1 January 1991–if a deputising service doctor makes a visit.

  Accident and Emergency Units
  Mr. Janman
  To ask the Secretary of State for Health what is the population served of each district health authority; and how many accident and emergency centres each district has.

  Mr. Dorrell
  [pursuant to his reply, 24 May 1990, c. 341–46]: I regret that the tables published contained inaccuracies.

  The corrected infromation is as follows:

  Resident population estimates, by District Health Authority, as at 30 June 1988, and numbers of NHS hospital sites having Accident & Emergency Departments, by Health Authority, as at 31 March 1989

  Health Authority

  Resident population (thousands)

  Number of hospital sites having A and E departments

  Northern RHA

  Hartlepool

  88·4

  1

  North Tees

  176·8

  1

  South Tees

  287·9

  5

  East Cumbria

  179·4

  5

  South Cumbria

  172·6

  2

  West Cumbria

  137·2

  4

  Darlington

  124·5

  1

  Durham

  233·9

  1

  North West Durham

  85·9

  1

  South West Durham

  152·5

  1

  Northumberland

  301·4

  7

  Gateshead

  206·2

  1

  Newcastle

  279·6

  2

  North Tyneside

  192·9

  2

  South Tyneside

  155·7

  2

  Sunderland

  296·1

  2

  Yorkshire RHA

  Hull

  297·6

  3

  East Yorkshire

  198·8

  3

  Grimsby

  157·5

  1

  Scunthorpe

  196·6

  3

  Northallerton

  117·2

  3

  York

  264·7

  3

  Scarborough

  145·8

  3

  Harrogate

  135·8

  2

  795

  Health Authority

  Resident population (thousands)

  Number of hospital sites having A and E departments

  Bradford

  337·0

  2

  Airedale

  176·7

  2

  Calderdale

  195·9

  1

  Huddersfield

  211·5

  1

  Dewsbury

  163·8

  1

  Leeds Western

  365·3

  2

  Leeds Eastern

  344·3

  2

  Wakefield

  145·2

  1

  Pontefract

  166·4

  2

  Trent RHA

  North Derbyshire

  363·2

  4

  Southern Derbyshire

  530·8

  5

  Leicestershire

  885·5

  8

  North Lincolnshire

  273·2

  5

  South Lincolnshire

  309·4

  6

  Bassetlaw

  104·8

  1

  Central Nottinghamshire

  289·2

  2

  Nottingham

  613·7

  1

  Barnsley

  220·9

  1

  Doncaster

  291·6

  2

  Rotherham

  251·8

  1

  Sheffield

  528·3

  3

  East Anglian RHA

  Cambridge

  275·6

  1

  Peterborough

  208·5

  3

  West Suffolk

  228·1

  2

  East Suffolk

  322·6

  3

  Norwich

  472·4

  5

  Great Yarmouth and Waveney

  200·1

  4

  West Norfolk and Wisbech

  191·4

  3

  Huntingdon

  135·7

  1

  North West Thames RHA

  North Bedfordshire

  251·6

  1

  South Bedfordshire

  279·1

  1

  North Hertfordshire

  186·0

  2

  East Hertfordshire

  294·6

  1

  North West Hertfordshire

  261·4

  2

  South West Hertfordshire

  243·9

  1

  Barnet

  301·4

  3

  Harrow

  197·1

  1

  Hillingdon

  231·7

  2

  Hounslow and Spelthorne

  276·6

  3

  Ealing

  297·3

  1

  Riverside

  276·0

  4

  Parkside

  373·7

  4

  North East Thames RHA

  Basildon and Thurrock

  282·0

  2

  Mid Essex

  290·8

  1

  North East Essex

  311·6

  3

  West Essex

  249·9

  5

  Southend

  325·3

  1

  Barking, Havering and Brentwood

  453·1

  2

  Hampstead

  108·4

  1

  Bloomsbury

  126·7

  1

  Islington

  169·2

  1

  City and Hackney

  193·3

  2

  Newham

  207·0

  1

  Tower Hamlets

  161·8

  2

  Enfield

  260·9

  1

  Haringey

  192·3

  1

  Redbridge

  230·8

  1

  Waltham Forest

  213·3

  1

  South East Thames RHA

  Brighton

  308.2

  4

  Eastbourne

  235.2

  2

  Hastings

  169.3

  3

  South East Kent

  268.4

  3

  Canterbury and Thanet

  309.3

  5

  796

  Health Authority

  Resident population (thousands)

  Number of hospital sites having A and E departments

  Dartford and Gravesham

  217.2

  2

  Maidstone

  199.3

  2

  Medway

  330.2

  2

  Tunbridge Wells

  196.0

  6

  Bexley

  220.4

  1

  Greenwich

  214.5

  2

  Bromley

  298.2

  2

  West Lambeth

  158.6

  1

  Camberwell

  210.5

  1

  Lewisham and North Southwark

  316.3

  3

  South West Thames RHA

  North West Surrey

  206.9

  3

  West Surrey and North East Hants

  277.6

  1

  South West Surrey

  181.1

  4

  Mid Surrey

  165.2

  2

  East Surrey

  182.6

  4

  Chichester

  182.6

  na

  Mid Downs

  276.8

  3

  Worthing

  244.0

  2

  Croydon

  317.2

  2

  Kingston and Esher

  177.2

  2

  Richmond, Twickenham and Roehampton

  229.7

  1

  Wandsworth

  188.2

  2

  Merton and Sutton

  332.3

  4

  Wessex RHA

  East Dorset

  451.7

  5

  West Dorset

  203.9

  6

  Portsmouth and South East Hampshire

  527.9

  6

  Southampton and South West Hampshire

  419.7

  2

  Winchester

  212.3

  2

  Basingstoke and North Hampshire

  220.9

  1

  Salisbury

  121.0

  2

  Swindon

  234.2

  2

  Bath

  407.0

  12

  Isle of Wight

  129.8

  1

  Oxford RHA

  East Berkshire

  362.1

  2

  West Berkshire

  454.2

  3

  Aylesbury Vale

  145.4

  2

  Wycombe

  268.2

  3

  Milton Keynes

  177.6

  1

  Kettering

  258.3

  1

  Northampton

  312.0

  1

  Oxfordshire

  545.9

  12

  South Western RHA

  Bristol and Weston

  367.7

  4

  Frenchay

  221.8

  2

  Southmead

  232.3

  2

  Cornwall and Isles of Scilly

  460.6

  9

  Exeter

  308.6

  10

  North Devon

  135.6

  7

  Plymouth

  334.3

  8

  Torbay

  242.6

  11

  Cheltenham

  212.4

  7

  Gloucester

  315.1

  6

  Somerset

  405.0

  7

  West Midlands RHA

  Bromsgrove and Redditch

  167.1

  2

  Herefordshire

  157.3

  6

  Kidderminster and District

  102.6

  2

  Worcester and District

  243.9

  5

  Shropshire

  400.8

  14

  Mid Staffordshire

  313.8

  2

  North Staffordshire

  461.5

  3

  797

  Health Authority

  Resident population (thousands)

  Number of hospital sites having A and E departments

  South East Staffordshire

  257·6

  4

  Rugby

  86·3

  1

  North Warwickshire

  175·1

  1

  South Warwickshire

  223·2

  3

  Central Birmingham

  180·2

  2

  East Birmingham

  196·9

  1

  North Birmingham

  164·0

  1

  South Birmingham

  246·1

  2

  West Birmingham

  206·6

  2

  Coventry

  306·2

  2

  Dudley

  304·3

  1

  Sandwell

  296·3

  1

  Solihull

  204·9

  1

  Walsall

  262·3

  1

  Wolverhampton

  249·4

  2

  Mersey RHA

  Chester

  176·7

  1

  Crewe

  248·5

  2

  Halton

  143·6

  1

  Macclesfield

  179·9

  4

  Warrington

  187·7

  1

  Liverpool

  469·6

  7

  St· Helens and Knowsley

  346·0

  2

  Southport and Formby

  120·1

  1

  South Sefton

  177·5

  2

  Wirral

  354·3

  2

  North Western RHA

  Lancaster

  131·1

  1

  Blackpool, Wyre and Fylde

  320·0

  4

  Preston

  128·1

  1

  Blackburn, Hyndburn and Ribble Valley

  264·8

  2

  Burnley, Pendle and Rossendale

  228·3

  1

  West Lancashire

  105·4

  1

  Chorley and South Ribble

  196·8

  1

  Bolton

  263·6

  2

  Bury

  175·0

  2

  North Manchester

  139·7

  2

  Central Manchester

  122·4

  4

  South Manchester

  183·8

  2

  Oldham

  219·5

  1

  Rochdale

  214·2

  1

  Salford

  235·6

  1

  Stockport

  290·9

  1

  Tameside and Glossop

  247·0

  1

  Trafford

  215·8

  2

  Wigan

  307·6

  2

  Special Health Authorities

  The Hospitals for Sick Children

  —

  1

  Moorfields Eye Hospital

  —

  1

  Bethlem Royal and Maudsley Hospitals

  —

  1

  Hammersmith and Queen Charlotte's

  —

  1

  The Eastman Dental Hospital

  —

  1

  Sources: Population estimates, Office of Population, Censuses & Surveys.

  A & E depts, KH03 return.

  na = not available

  GPs (Budgets)
  Mr. Butler
  To ask the Secretary of State for Health if he will make a statement on the progress of the general practitioners' budget-holding initiative.
  798
  Mr. Kenneth Clarke
  I refer my hon. Friend to the reply I gave my hon. Friends the Members for Isle of Wight (Mr. Field) and for Gravesham (Mr. Arnold) earlier today.

SCOTLAND

  Local Government Finance
  Mr. Kirkwood
  To ask the Secretary of State for Scotland how many people in Scotland and the Borders who are currently paying the community charge did not previously pay the rates.

  Mr. Lang
  We estimate that about 1·9 million more people in Scotland are liable to pay the community charge than were liable to pay domestic rates. The information for Borders region is not available centrally.

  Sandeels
  Mr. William Ross
  To ask the Secretary of State for Scotland how many tonnes of sandeels have been taken in Scottish coastal waters by commercial fishermen in each of the last five years; and what is his estimate of the annual sustainable yield.

  Mr. Michael Forsyth
  Sandeel catches, in tonnes, landed into Scotland from Scottish inshore waters in the last five years are:

  tonnes

  1985

  35,809

  1986

  36,429

  1987

  21,705

  1988

  35,283

  1989

  24,585

  Sandeels are short-lived, so the stocks sizes are very dependent on recruitment which is neither predictable nor constant. The concept of annual sustainable yield is therefore not appropriate for species such as sandeels.

  Fishing Vessels
  Mr. Morley
  To ask the Secretary of State for Scotland how many vessels crossed the 4 deg. line in June 1989; and what percentage radioing in were called in for inspection.

  Mr. Michael Forsyth
  In June 1989 a total of 514 calls were received from vessels indicating that they were intending to cross the 4 deg W line. None of these vessels was called in for physical inspection.

  Arrestment of Wages
  Sir David Steel
  To ask the Secretary of State for Scotland whether he will seek to confer powers of arrestment of wages on local authorities in Scotland similar to those available to local authorities in England and Wales in respect of the collection of poll tax from persons evading payment but able to pay.

  Mr. Rifkind
  The powers available to local authorities to pursue arrears of community charge from a debtor by means of an earnings arrestment are those which are already available to a range of creditors under the terms of the Debtors (Scotland) Act 1987. I do, of course, keep all aspects of the community charge under review, but I have no plans at present to amend these provisions as they relate to community charge arrears cases.

  Personal Data
  Mr. Cohen
  To ask the Secretary of State for Scotland whether his Department will take positive steps to discuss with the Data Protection Registrar, all his Department's legislation that impacts on the use, collection, processing or holding of personal data; and whether he will make a statement.

  Mr. Rifkind
  I am reminding my officials of the need to consult the registrar about proposed legislation that might affect or be affected by the Data Protection Act 1984.

  Public Rented Housing
  Sir David Steel
  To ask the Secretary of State for Scotland, what financial help the Government propose to give to councils to build new public sector rented accommodation in areas where there is a shortage of such accommodation.

  Mr. Rifkind
  The housing capital allocations which the Government make available to local authorities may be used to fund the building of new council housing if this is seen by local authorities as a priority in their areas. It is for local authorities to determine their own policies and priorities, based on their assessment of housing needs in their districts, and to programme capital expenditure accordingly within the resources made available. If councils consider that additional council housing is necessary, they should in the first instance include proposals in the housing capital programmes they are due to submit to my Department by 2 November. Capital allocations for 1991–92 will be determined, as in previous years, in the light of the aggregate resources available and the competing requirements of all 56 housing authorities.

  Hospices
  Mr. Wigley
  To ask the Secretary of State for Scotland how many hospices there are in each of the counties of Scotland; and what is his policy regarding the expansion of hospice provision.

  Mr. Michael Forsyth
  The numbers of hospices within each regional and islands council area are as follows:

  Area

  Number

  Borders

  1 (Independent)

  Central

  1 (Independent)

  Dumfries and Galloway

  1 (NHS)

  Fife

  Nil

  Grampian

  1 (NHS)

  Highland

  1 (Independent)

  Lothian

  3 (Independent)

  Orkney

  Nil

  Shetland

  Nil

  Strathclyde

  8 (Independent)

  Tayside

  2 (NHS)

  Western Isles

  Nil

  18

  With effect from 1 April 1990, the 12 independent hospices in Scotland that require no contribution from patients have received Government funding of at least 50 per cent. of their running costs. This initiative is designed to ensure that the partnership which exists between the NHS and the hospice movement is fostered and the hospices enabled to grow and develop.

  Scottish Development Agency
  Mr. Dewar
  To ask the Secretary of State for Scotland what was the annual budget for the Scottish Development Agency in real terms in each year since its establishment to the most recent year for which figures are available.

  Mr. Rifkind
  The information is set out in the table.

  £ million at 1989–90 prices

  1976–77

  54·6

  1977–78

  126·2

  1978–79

  150·3

  1979–80

  161·7

  1980–81

  165·5

  1981–82

  150·5

  1982–83

  176·5

  1983–84

  159·3

  1984–85

  154·3

  1985–86

  162·9

  1986–87

  157·3

  1987–88

  154·5

  1988–89

  152·0

  1989–90

  158·3

  1990–91

  1169·0

  1 Estimated.

  Health Minister
  Mr. Dewar
  To ask the Secretary of State for Scotland how many meetings the Minister in his Department with responsibility for health has had with hon. Members in each of the past five years.

  Mr. Rifkind
  Information on the number of official meetings that my hon. Friend the Minister for education and health has had with hon. Members to discuss health matters is as follows:

  Number

  11987

  6

  1988

  19

  1989

  17

  21990

  10

  1After 15 June.

  2To 30 September.

  Crime
  Mr. Wray
  To ask the Secretary of State for Scotland what are the figures of crime rates in Scotland for each year since 1974.

  Lord James Douglas-Hamilton
  The information is set out in the table.

  Crimes recorded by the police, Scotland 1974–89

  Year

  Number

  Rate per 100,000 population

  1974

  233,552

  4,456

  1975

  281,485

  5,380

  1976

  317,877

  6,074

  1977

  363,382

  6,953

  1978

  334,957

  6,426

  1979

  346,680

  6,662

  1980

  364,587

  7,020

  1981

  408,204

  7,880

  1982

  435,081

  8,421

  1983

  448,260

  8,703

  1984

  474,914

  9,229

  801

  Year

  Number

  Rate per 100,000 population

  1985

  461,970

  8,994

  1986

  463,837

  9,058

  1987

  481,230

  9,413

  1988

  469,986

  9,226

  1989

  493,385

  9,692

  Notes:

  1. The figures for recorded crime in this table are based on the revised classification of crimes and offences which was introduced at the beginning of 1980.

  2. Following the reorganisation of local government in Scotland in 1975, there was greater consistency in recording crimes.

  3. Prior to 1980, the figures include crimes reported to the Procurator Fiscal by agencies other than the Police (for example the Department of Health and Social Security) in which a prosecution was taken.

  Community Care
  Mr. Wray
  To ask the Secretary of State for Scotland if he will make a statement on the full implementation of community care schemes in Scotland.

  Mr. Michael Forsyth
  I have nothing of substance to add to the written reply given by my right hon. and learned Friend to my hon. Friend the Member for Tayside, North (Mr. Walker), on 18 July 1990. The implementation of the arrangements referred to in this reply is proceeding. A timetable for issuing of guidance circulars and related initiatives was sent by my Department to local authorities and health boards on 26 September and a copy has been placed in the Library.

  Junior Doctors
  Mr. Wray
  To ask the Secretary of State for Scotland what studies have been carried out by Her Majesty's Government in Scotland(a) about health problems produced by working hours of junior doctors and (b) about the effect of such problems on junior doctors' performance.

  Mr. Michael Forsyth
  None, but it is Government policy to improve the working arrangements of junior doctors.

  Eye Tests
  Mr. Wray
  To ask the Secretary of State for Scotland how many eye tests were carried out in the first seven months of each year since 1983 in Scotland.

  Mr. Michael Forsyth
  Information about NHS sight tests carried out under the general ophthalmic service in Scotland is collected centrally on a quarterly basis only. Information for seven-month periods is not centrally available.

  Dental Tests
  Mr. Wray
  To ask the Secretary of State for Scotland how many dental tests were carried out in the first seven months of each year since 1981 in Scotland.

  Mr. Michael Forsyth
  Information about NHS dental examinations carried out under the general dental service in Scotland is collected centrally on a quarterly basis only and published annually in "Scottish Health Statistics". Information for seven-month periods is not centrally available.

  Second Homes
  Mr. Maxton
  To ask the Secretary of State for Scotland if he will give the number of second homes for each district and island council in Scotland on the basis of information collected for the community charge.

  Mr Lang
  [holding answer 15 October 1990]: Information on second homes as such is not collected for the purpose of levying the community charge. The number of premises liable for the standard community charge for each district and islands council area as at 1 July 1990—figures which include holiday homes and certain vacant houses as well as second homes—is set out in the table.

  Authority

  Number of standard charge premises July 1990

  Berwickshire

  303

  Ettrick and Lauderdale

  276

  Roxburgh

  303

  Tweeddale

  161

  Clackmannan

  469

  Falkirk

  1,723

  Stirling

  1,249

  Annandale and Eskdale

  612

  Nithsdale

  841

  Stewartry

  780

  Wigtown

  750

  Dunfermline

  346

  Kirkcaldy

  398

  North East Fife

  1,359

  Aberdeen

  5,173

  Banff and Buchan

  1,753

  Gordon

  1,706

  Kincardine and Deeside

  1,390

  Moray

  2,158

  Badenoch and Strathspey

  1,113

  Caithness

  1,075

  Inverness

  1,464

  Lochaber

  923

  Nairn

  298

  Ross and Cromarty

  2,057

  Skye and Lochalsh

  984

  Sutherland

  1,140

  East Lothian

  2,420

  Edinburgh

  15,912

  Midlothian

  1,629

  West Lothian

  2,759

  Argyll and Bute

  3,826

  Bearsden and Milngavie

  138

  Clydebank

  738

  Clydesdale

  518

  Cumbernauld and Kilsyth

  340

  Cumnock and Doon Valley

  304

  Cunninghame

  2,130

  Dumbarton

  991

  East Kilbride

  418

  Eastwood

  301

  Glasgow

  12,920

  Hamilton

  675

  Inverclyde

  965

  Kilmarnock and Loudoun

  652

  Kyle and Carrick

  1,039

  Monklands

  874

  Motherwell

  1,164

  Renfrew

  2,278

  Strathkelvin

  290

  Angus

  1,943

  Dundee

  5,275

  Perth and Kinross

  4,049

  Orkney

  553

  Shetland

  833

  Western Isles

  3,199

  All Scotland Total

  99,937

  Capercaillie
  Mr. Dalyell
  To ask the Secretary of State for Scotland if he will make a statement on the conference convened by the Nature Conservancy Council, at his request, on the capercaillie.

  Lord James Douglas-Hamilton
  [holding answer 15 October 1990]: As yet, no date has been set for the meeting, to which scientific, land use and sporting interests will be invited. Its purpose will be to identify the information which is required to develop a conservation strategy for capercaillie.

  Hypertension
  Mr. Dunnachie
  To ask the Secretary of State for Scotland what provision is made within Scotland for research into hypertension and treatment of cardiac failure; and if he will make a statement.

  Mr. Michael Forsyth
  [holding answer 15 October 1990]: A wide range of research into hypertension and cardiac failure has been supported by the Scottish Home and Health Department throughout the 1980s at a cost of £239,000. In addition the Medical Research Council's blood pressure unit in Glasgow is conducting research in this field.

  Multiple Sclerosis
  Mr. Dunnachie
  To ask the Secretary of State for Scotland if he will list research projects currently being undertaken in Scotland into multiple sclerosis; and if he will make a statement.

  Mr. Michael Forsyth
  [holding answer 15 October 1990]: The Scottish Home and Health Department is not currently supporting research into multiple sclerosis, but favourable consideration would be given to any application for funding for soundly based research projects.

PRIME MINISTER

  Monetary Developments (EC)
  Mr. Teddy Taylor
  To ask the Prime Minister what representations and views she has received from member states of the EEC about United Kingdom proposals on monetary developments to be considered by the intergovernmental conference; and if she will make a statement.

  The Prime Minister
  The United Kingdom's proposals for a "hard ecu" have been widely welcomed by our Community partners as a positive, constructive contribution to the on-going debate on what should follow stage 1 of economic and monetary union. We will continue to advance our proposals before and during the intergovernmental conference which opens on 13 December.

  Natural History Museum
  Mr. Dalyell
  To ask the Prime Minister if she will pay an official visit to the natural history museum.

  The Prime Minister
  I have at present no plans to do so.

  General Elections
  Mr. Allen
  To ask the Prime Minister if she will bring forward proposals for a fixed-term Parliament with set dates for general elections.

  The Prime Minister
  No.

  EC Intergovernmental Conference
  Mr. Allen
  To ask the Prime Minister if she will list the items which Her Majesty's Government have asked to be discussed at the European Community intergovernmental conference.

  The Prime Minister
  The paper prepared by Foreign Ministers and endorsed by the June Dublin European Council, the conclusions of which were deposited in the Library of the House, covers all the areas which Her Majesty's Government would like to be discussed. The United Kingdom is playing an active part in the preparations for the intergovernmental conferences and is making specific suggestions as appropriate within the broad lines set down by that document.

  Mr. Allen
  To ask the Prime Minister if she will list the officials and Ministers who will represent Her Majesty's Government at the forthcoming European Council's intergovernmental conference.

  The Prime Minister
  No decisions have yet been taken on who will represent Governments at the intergovernmental conferences on economic and monetary union and on "political union". The size and composition of national delegations will be decided nearer the time for each meeting.

  Economy
  Mr. Allen
  To ask the Prime Minister if she will make a statement on the changes in the economy and exchange rate mechanism which have occurred since her reply on 30 January 1986,Official Report, column 1091.

  The Prime Minister
  Since the first quarter of 1986 the underlying improvement in the economy seen since this Government took office in 1979 has continued. Up to and including the second quarter of 1990, output rose by 15·5 per cent., business investment increased by 44 per cent. and real personal disposable income was 23 per cent. higher. By March this year there were over 2·5 million more people in work and in August unemployment was over 1,400,000 lower. A period of over-rapid demand growth in 1987 and 1988 led to a resurgence of inflationary pressures, but tight monetary policy has now slowed demand, and a fall in inflation will shortly follow. Since 30 January 1986 both the peseta and the pound sterling have joined the exchange rate mechanism. The lira moved from wide to narrow bands within the mechanism earlier this year. Between January 1986 and January 1987 there were three other realignments of central rates within the system.

  Engagements
  Mr. Robert G. Hughes
  To ask the Prime Minister if she will list her official engagements for Tuesday 16 October.

  Mr. Skinner
  To ask the Prime Minister if she will list her official engagements for Tuesday 16 October.
  805
  Mr. Harry Greenway
  To ask the Prime Minister if she will list her official engagements for Tuesday 16 October.

  Mr. Burns
  To ask the Prime Minister if she will list her official engagements for Tuesday 16 October.

  Mr. Hind
  To ask the Prime Minister if she will list her official engagements for Tuesday 16 October.

  Mr. Pike
  To ask the Prime Minister if she will list her official engagements for Tuesday 16 October.

  Mr. Stern
  To ask the Prime Minister if she will list her official engagements for Tuesday 16 October.

  Mr. Ron Davies
  To ask the Prime Minister, to list her official engagements for Tuesday 16 October.

  The Prime Minister
  This morning I had meetings with ministerial colleagues and others. In addition to my duties in the House, I shall be having further meetings later today. This evening I hope to have an audience of Her Majesty the Queen.

  Eastern Europe
  Mr. Allen
  To ask the Prime Minister, pursuant to her answer of 19 July,Official Report, column 674, what assessment she has made of the implications for her policy of the book "End of the Cycle", by Morgan Stanley; and if she will make a statement.
  806
  The Prime Minister
  This report is an informative assessment of the economic situations and investment opportunities within the countries of western and eastern Europe.

  Demographic Trends
  Mr. Wray
  To ask the Prime Minister what specific measures Her Majesty's Government are taking in order to address the economic and social effects of the changes in demographic trends, in particular the reduction of births.

  The Prime Minister
  Each Minister in charge of a Government Department takes due account of changes in demographic trends when putting current policies into effect and when formulating proposals for the future.

  Sanctions
  Mr. Wray
  To ask the Prime Minister if she will make a statement on the Government's policy in respect of the use of sanctions in international or foreign affairs.

  The Prime Minister
  Where there is flagrant violation of international law such as the Iraqi occupation of Kuwait, comprehensive sanctions, collectively and effectively implemented, may be an appropriate response. Each case must, however, be examined individually, bearing in mind the objectives of our policy and the likely effectiveness of sanctions in achieving those objectives.

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

Iraq: Nuclear Capability
Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
Whether there is evidence of a French offer to rebuild Iraq's nuclear reactor, bombed by Israel in 1981, and if so, whether they have discussed this wits the French Government and what developments there have been since that time.
The Minister of State, Foreign and Commonwealth Office (The Earl of Caithness): My Lords, no.
Lord Jenkins of Putney: My Lords, is the noble Earl aware that it was widely reported in the French press that work had started on rebuilding the reactor? Have the Government no knowledge of that? Is it not in the interests of our forces in the Gulf that the Government should have that knowledge even if they are not ready to express it? I understand that the Minister may not wish to give an answer, but the House is entitled to know whether the Government are aware of what is going on.
The Earl of Caithness: My Lords, we are aware of media reports that Iraq may be attempting to develop a nuclear weapons system. However, as I said in my original Answer, we have no firm evidence of that.
Lord Cledwyn of Penrhos: My Lords, will the noble Earl confirm that exports of nuclear materials and technology to Iraq have ceased? Will he also confirm that the visit by the International Atomic Energy Agency to verify Iraq's stockpile of nuclear materials which is scheduled for November will still take place? There is a good deal of concern that that visit, which would be of considerable importance, should continue?
Thee Earl of Caithness: My Lords, I assure the noble Lord that we rigorously observe our obligations under the NPT not to transfer nuclear weapons technology to any recipient whatever. Regarding the noble Lord's second point, we are aware that there is a small amount, around 25 kilograms, of enriched uranium held in Iraq Regular inspections are undertaken by the International Atomic Energy Agency. At the last inspection earlier this year it confirmed that no diversion of materials had occurred, and it is hoped that there will be an inspection in the near future.
Lord Mellish: My Lords, if there is any truth in the story is that not further evidence that it is essential for Britain to retain its own nuclear capability?
The Earl of Caithness: My Lords, the noble Lord is right We need our own deterrent.
Lord Mayhew: My Lords, did I understand the Minister to say that the British Government had no evidence that the Iraqis are attempting to build nuclear weapons?
The Earl of Caithness: My Lords, I said that we had seen press reports but we had no firm evidence.
Lord Hatch of Lusby: My Lords, is it not the case that Britain, France, Germany, the United States and other countries assisted the Iraqis by providing them with arms during their war with Iran? Did that assistance include any form of nuclear technology or devices that could be used in the building of nuclear weapons?
The Earl of Caithness: My Lords, I answered that question. We abide and have abided by the articles of the NPT.
Lord Bottomley: My Lords, is it not a fact that Israel, since its beginning, has been threatened by Arabic countries? It has been attacked four or five times Should we not be thankful that it destroyed the potential of Iraq to make a possible war more serious than it may otherwise be?
The Earl of Caithness: My Lords, I know the House understands the interest of the noble Lord in the matter However, the question he asked is slightly wider than that on the Order Paper.
Lord Jenkins of Putney: My Lords, does the Minister not agree that, although there is inspection of the international spread of nuclear energy and some attempt to control the spread of nuclear weapons, there is an inadequate connection between the two? Is he aware that material which is ostensibly related to nuclear energy is being used in relation to the production of nuclear weapons? Is it not therefore desirable that more adequate international inspection should be focused on that area?
The Earl of Caithness: My Lords, the existing NPT has served us extremely well I believe it was Deng Xiaoping who said, "Seek truth from facts" I hope that the noble Lord will seek truth from rumours
Lord Glenamara: My Lords, is the Minister aware of an item on Channel 4 News last Saturday which showed a satellite picture of a uranium processing plant in a mountainous region of Iraq? Is it not correct that Iraq is now self-sufficient in uranium and no longer dependent on supplies from outside?
The Earl of Caithness: My Lords, it has been known for many years that a small quantity of uranium is mined in Iraq. As the noble Lord is aware, uranium mined is not at that stage covered by a treaty because it is unenriched.

Japanese Knotweed
242 pm
Baroness Sharpies Baroness Sharpies asked Her Majesty's Government:
What progress has been made in reducing the spread of Japanese knotweed.
The Parliamentary Under-Secretary of State, Department of the Environment (Baroness Blatch): My

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Lords, Japanese knotweed is a troublesome pest which grows in much of Wales and parts of England Control by a combination of rigorous cutting and grazing has met with some success. More significantly, however, chemical control appears to offer the most likely chance of success.
Baroness Sharpies: My Lords, I thank my noble friend for that comparatively satisfactory reply. Is she aware that a lot of research is being conducted by the Welsh Development Agency in association with the National Rivers Authority? Can the Minister say whether there is any co-operation with the French in the matter as they are experiencing a similar problem?
Baroness Blatch: My Lords, I am aware of the considerable amount of work taking place to find a biological solution rather than a chemical one. I am not able specifically to answer about the European damage. I shall write to my noble friend.
Baroness Strange: My Lords, is the Minister aware that I have seen quantities of Japanese knotweed marching up the embankment of the Piccadilly Line towards central London? Is she also aware that I observed considerable quantities in central France near Dijon? Could it possibly be a secret agricultural weapon?
Baroness Blatch: My Lords, the mind boggles at the thought of Japanese knotweed marching anywhere. The serious point is that anybody who suffers from having this weed in their garden has a nasty beast to contend with. It grows to about nine feet tall and its roots go down many feet There may be those who do not like chemical solutions to these problems, but I have to say that a chemical called glyphosate has been used on Japanese knotweed with some success at Ruislip and at another site in Cheshire. Reasonable success has been achieved there; and at a place called Bay Pond total success has been achieved. I suspect that the degree of the establishment of the knotweed has a lot to do with the level of success of the chemical.
Lord Kilbracken: My Lords, cannot the weed be eliminated just as competently without using any chemicals by cutting it two or three times every year for two or three years?
Baroness Blatch: My Lords, the noble Lord is referring to control of the weed. Cutting annually and grazing will only control the weed All the evidence shows that cutting, grazing and even cutting annually will not eliminate it.
Lord Leatherland: My Lords, can the noble Baroness tell the House what Japanese knotweed looks like? We want to search our gardens to discover if it is there.
Baroness Blatch: My Lords, my limited information tells me that it has a stalk rather like rhubarb; that it is pale in colour and hollow in the centre. It grows
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tall with clusters of leaves, and at certain times in the year it produces a white flower. That makes the weed sound attractive, but I assure your Lordships that if it is in your gardens you would not find it attractive.
Baroness Sharples: My Lords, is my noble friend aware that one of the problems with knotweed is that it can force its way through tarmacadam?
Baroness Blatch: My Lords, my noble friend is right That is of concern because knotweed is found on much of the derelict land in this country which is being developed. Therefore, finding a solution for its elimination rather than its control is important.

Wages Councils
246 pm
Lord Rochester Lord Rochester asked Her Majesty's Government:
Whether in their view wages councils are operating effectively.
The Parliamentary Under-Secretary of State, Department of Employment (Viscount Ullswater): My Lords, the councils are empowered to set minimum rates of pay in certain industries. Compliance with their orders is running at a very high level
Lord Rochester: My Lords, I first wish the noble Viscount well on what I believe is his first appearance at the Dispatch Box as the Minister responsible in this House for dealing with employment matters.
What is the Government's response to the report published recently by the Low Pay Unit which claims that one in three companies covered by the wages councils are not paying statutory wage rates? The unit accuses the Government of seeking to abolish the system by the back door In particular, is there any truth in the allegation that the number of inspectors has been so drastically reduced that, on average, individual companies may now expect a visit from an inspector only once every 20 years?
Viscount Ullswater: My Lords, I thank the noble Lord for his kind words However, returning to the subject, I think that the report from which the noble Lord quoted uses the statistics in a way to highlight what it intends to highlight. The best yardstick of the general state of compliance is the proportion of workers found to be paid at least the statutory minimum in all checks carried out by the inspectorate, which embrace a fair cross-section of the establishments on the register This figure is consistently around 96 per cent. to 97 per cent.
In regard to the number of inspectors, since the Wages Act 1986 the number of inspectors has been reduced to 71. However, it has been found over the past three years that with the use of these inspectors —they inspect about 300,000 workers in 32,000 establishments—the figure of 96 per cent to 97 per cent remains consistent.
Lord Boyd-Carpenter: My Lords, I also congratulate my noble friend on his admirable maiden performance at the Dispatch Box Will he say whether, under the present situation, wages councils

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have fully served their term and are now out of date in an era when one of our major problems is wage inflation?
Viscount Ullswater: My Lords, I thank my noble friend for his remarks. It is the Government's intention to keep the wages councils under strict review. A decision has been taken not to abandon them at present; but their usefulness is being regularly considered.
Baroness Turner of Camden: My Lords, I follow the noble Lords, Lord Rochester and Lord Boyd-Carpenter, in welcoming the noble Viscount to the Dispatch Box on this first occasion However, I should like to ask him whether he is aware that of over 5,000 companies found to be illegally under-paying, only eight have been prosecuted? Is that not a rather poor record of law enforcement? As for the noble Viscount's comment about the wages now being paid, is he further aware that in some instances workers are being paid as little as £1 an hour? Does not that refute what the noble Lord, Lord Boyd-Carpenter, had to say about wage inflation?
Viscount Ullswater: My Lords, the number of companies that have been prosecuted has remained at the sane level for a number of years. There has been no drop in the number of companies which have been prosecuted. The inspectorate sees its task as largely to inform and advise employers exactly what the wages council rates are and also to assist them in the employment of the workers in these industries. I do not think it is right to look at the number of prosecutions and say that there should be more. As I have said, 96 per cent. to 97 per cent. of those covered by the wages councils are paid at the minimum rate.
Lord McCarthy: My Lords, does the noble Viscount not agree that the Question asks whether the wages councils are operating effectively? That is asking the Government to say what they think those councils are for. Can the noble Viscount say whether the wage councils are to eliminate low pay? If that is the case, can he say why more and more British workers fall into a low-pay situation? Do not the Government really want to abolish the wages councils, but do not dare to do so because of the social consequences?
Viscount Ullswater: My Lords, the elimination of low pay is another matter. That problem is not necessarily addressed by the wages councils themselves. They are a hang-over from 1909 when they first started There are only 26 councils left They have not achieved the results that the noble Lord suggests in raising rates of pay.
Lord Mackie of Benshie: My Lords, is it not a fact that the wages councils normally apply in industries where there are low wages, but wage inflation comes from the industries which pay high wages?
Viscount Ullswater: My Lords, it is a fact that two-thirds of those involved in the trades covered by the wages councils are paid in excess of the minimum wage. Therefore, it is not true to think that all those covered by the councils are paid the minimum.

Water Storage: Levels
252 pm
Lord Nugent of Guildford Lord Nugent of Guildford asked Her Majesty's Government:
What are the levels in surface storage reservoirs and aquifers in the southern half of Britain compared with normal levels for this time of year, and whether they are satisfied with their present capacity.
Baroness Blatch: My Lords, in the southern half of Britain reservoirs are between 30 per cent and 75 per cent full In aggregate that represents about 25 per cent below normal for the time of year Aquifers are generally only marginally below normal in the South West, but they are well below normal in the South East The prime responsibility for ensuring adequate supplies lies with the water companies However, I understand that they expect to continue to maintain supplies this winter, with only selective restrictions on less essential use in some eastern areas In these areas above-average rainfall is required to recharge aquifers and avoid the risk of shortages next year
Lord Nugent of Guildford: My Lords, I thank my noble friend for that very informative Answer Is she aware that the low levels of storage now indicate the probability of a further shortage next summer? Is she also aware that there is very little prospect of storage levels being restored by next spring to the full normal levels unless we have exceptionally heavy rain in every single month for the five months that remain of the winter? In the light of this prospect of another water shortage next summer, and bearing in mind the water shortage of the past two summers, does my noble friend not agree that the time has come when the Government should set up a survey to investigate the supply and demand for water throughout the country in order to determine whether additional storage reservoirs are required over the next 10 years? It takes at least 10 years to commission and build a new reservoir Does my noble friend not agree that such steps should be taken in order to meet the normal growth in demand and to avoid the serious shortages which are fairly widespread throughout the country?
Baroness Blatch: My Lords, it is too early to say what the position will be. However, the water resources are at about the same level now as they were this time last year. The National Rivers Authority estimates, as my noble friend has said, that above-average rainfall is required to restore the levels I understand that the range is from 125 per cent in the Thames area and parts of the South West, to between 175 per cent and 200 per cent in parts of the South East However, I have good news for my noble friend on his suggestion concerning a survey. A few weeks ago the NRA began a survey, similar to the one suggested by my noble friend, under its powers and governed by Section 143 of the new Water Act. It will assess actual and prospective resources against demand for all regions of England, giving priority to those areas which are critically short of water I am

725
also happy to tell the House that the results of that survey will be published. I hope I shall not be pressed as to when that will be.
Lord Zuckerman: My Lords, perhaps I may reinforce what the noble Lord, Lord Nugent, has said The situation is bound to get worse next year unless we have phenomenal rainfall in the months ahead On the basis of past records, is it possible to say exactly what amount of rainfall we need from now until, let us say, next spring, in order to be certain that we shall not be in a worse situation this time next year than we are now? Otherwise, so far as I can make out, the situation is bound to become worse each year for some time to come.
Baroness Blatch: My Lords, the figures that I gave in answer to my noble friend Lord Nugent a moment ago were in connection with the requirements to restore the levels fully to the aquifers. In order to provide normal levels of water resources next year, full restoration would not be required. Therefore, the need would be for something less than 125 per cent. in the Thames area and parts of the South West, and something less than 175 per cent in other parts of the South East We need above-average levels of rainfall in order to remove the difficulties of providing water next year, otherwise we shall have to resort again to management techniques which are all aimed at restricting demand.
Lord McIntosh of Haringey: My Lords, is the Minister aware that there will be widespread support for the proposal made by the noble Lord, Lord Nugent of Guildford, who has enormous experience in these matters? There should be a survey into the relationship between supply and demand Is she also aware of the pleasure that will be given by the news about the survey which the NRA has just started? Does the Minister not also agree that the prospects of the results of such a survey being implemented effectively must have been diminished by the fact that the water companies have now been privatised and that they are under less direct control?
Baroness Blatch: My Lords, I believe that almost the opposite is the case It is my view that when the results of the survey appear, the NRA will do two things: first, it will direct investment where it is properly needed; and, secondly, the ability of the water companies to raise money to meet those requirements will be much greater than they were when they were public authorities.
The Earl of Halsbury: My Lords, can the noble Baroness phrase her replies slightly differently? It is not a question of the percentage extra of water that we need, but how often, in terms of years, does that occur? Can the Minister say whether it is once in 10 years, 25 years, 50 years or 100 years, and so on?
Baroness Blatch: My Lords, we have looked at the records to see how long ago it was that we had a sustained period of difficulty. I understand that the longest sustained period was in the 1650s, which is a very long time ago. That was for a period of upwards of six years. There were six successive difficult years in
726
a row. Since then there have been periods when we have had one, two or, at the very most, three years of difficulty together. We shall be faced with difficult choices when we see the results of the survey. We shall either have to provide for the extremes, which will be prohibitive in terms of cost and the environmental impact will be very serious, or strike a balance Nevertheless, the survey will produce a very useful direction for targeting investment funds.
Lord Renton: My Lords, is my noble friend aware that in the part of the valley of the Great Ouse in Huntingdonshire where she lives, there are very large pits which were excavated for sand and gravel and that, strangely enough, they are now remarkably full of water? Can she say whether those pits are or will be under the control of the newly-formed water companies so that those pits can be regarded as reservoirs for the future?
Baroness Blatch: My Lords, I am not able to answer that question because I simply do not know the answer. My suspicion is that they are under the control of the NRA, but I shall have to confirm that to my noble friend.
Lord Tordoff: My Lords, does the noble Baroness observe that the Benches of the Lords Spiritual have been emptied? Perhaps they have gone to try to assist us in this matter.
Baroness Blatch: My Lords, any help that they can give will be appreciated.
Lord Cledwyn of Penrhos: My Lords, will the noble Baroness confirm that the situation is critical in the South East and in the South West? What is the position in the North of England, Scotland and Wales? Is it not the case that we have a surplus in those areas? Can she confirm that there has been a study into the possibility of constructing pipelines from those areas where water is abundant to the unfortunate areas of the South East and the South West? In Wales, we would be extremely glad to arrange that provided the financial terms were appropriate. Does she not agree that this is something that should be looked at again?
Baroness Blatch: My Lords, considerable thought is being given to distribution methods, but I have to come back to the difficulties of whether one provides extensively for the extremes An extension of the distribution network may be necessary to some degree but whether it is done to the extent that the noble Lord is suggesting I am not sure. Those are the kinds of arguments that need to be balanced when all the information from the survey is made available.
Lord Harmar-Nicholls: My Lords, my noble friend said in answering questions that it was too early to heed the point made by my noble friend Lord Nugent When would be the time if it is that conditions are roughly as they are now?
Baroness Blatch: My Lords, in the sense that there is a problem, it is not too early We know there is a problem and that is being well pre-empted. However, we have no idea how wet a winter we shall have We can but hope and pray.
Lord Winstanley: My Lords, can the noble Baroness tell the House whether the situation which she has described now means that Kielder reservoir, which she will recollect was constructed to cope with an expected demand for water from industries in the North East that have now closed, will now become useful instead of being the white elephant which it has turned out to be?
Baroness Blatch: My Lords, I suspect that piping from the Kielder reservoir down to the parts of the South East which require water poses the very question of the cost of redistribution. All these ideas will be fed in, determinations will be made and plans drawn up. Where there is excess water and where there is a need for water, distribution methods will have to be considered.
Lord Nugent of Guildford: My Lords, is my noble friend aware that her information that a report has already been set in hand is very good news which we should all welcome? Does she agree that when the report is received action will be urgent in some areas? It takes at least 10 years when starting to commission a reservoir to get through all the hoops of town planning consent; and then there is the vast business of construction and the filling of the reservoir.
Baroness Blatch: My Lords, my noble friend again makes a very important point He knows to his cost the difficulties of scaling the heights of the planning system in regard to this kind of investment Perhaps I may end on a positive note With the way in which the Water Act is working and the way in which the NRA is approaching its work, the hope that these problems will be tackled in the long term is very real.

Human Fertilisation and Embryology Bill [H.L.]
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the Commons amendments be considered in the following order—

Commons amendment 20,

Commons amendment 26,

Commons amendments 1–19,

Commons amendments 21–25,

Commons amendments 27–31—(The Lord Chancellor)

On Question, Motion agreed to

Broadcasting Bill
33 pm
The Minister of State, Home Office (Earl Ferrers): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report —(Earl Ferrers)
On Question, Motion agreed to.
Baroness Birk Baroness Birk moved Amendment No 209A:
Before Clause 82, insert the following new clause:

PART IIA

  Listed events
  Certain events not to be shown on pay-per-view terms
  (1) The Independent Television Commission shall do all that they can to secure that any programme which consists of or includes the whole or any part of a listed event shall be available for live reception by a substantial majority of the total television audience of the United Kingdom and shall not be included on pay-per-view terms in any service provided by the holder of a licence granted by the Commission under Parts I and II of this Act.
  (2) Any such programme as is mentioned in subsection (1) shall be available for live reception by a substantial majority of the total television audience of the United Kingdom and shall not be included on pay-per-view terms in any service provided by the BBC or the Welsh Authority.
  (3) For the purposes of this section—

  (a) a listed event is a sporting or other event of national interest which is for the time being included in a list drawn up by the Secretary of State for the purposes of this section; and

  (b) a programme is included in any service on pay-per-view terms if any payments falling to be made by subscribers to that service will or may vary according to whether that programme is or is not actually received by them.

  (4) The Secretary of State shall not at any time draw up, revise or cease to maintain such a list as is mentioned in subsection (3) unless he has first consulted—

  (a) the BBC;

  (b) the Welsh Authority;

  (c) the Commission; and

  (d) in relation to a relevant event, the person from whom the rights to televise that event may be acquired;

  and for the purposes of this subsection a relevant event is a sporting or other event of national interest which the Secretary of State proposes to include in, or omit from, the list.
  (5) As soon as he has drawn up or revised such a list as is mentioned in subsection (3), the Secretary of State shall publish the list in such manner as he considers appropriate for bringing it to the attention of—

  (a) the persons mentioned in subsection (4); and

  (b) every person who is the holder of a licence granted by the Commission under Part I of this Act.

  (6) Neither subsection (1) nor subsection (2) above shall apply in relation to the inclusion in such a service as is mentioned in that subsection of a programme which consists of or includes a recording of the whole or any part of any listed event where the programme is so included more than 48 hours after the original recording was made.
  (7) In this section "national interest" includes interest within England, Scotland, Wales or Northern Ireland").
  The noble Baroness said: My Lords, in moving this amendment I shall speak also to Amendment No 264 We are dealing now with the rather vexed question of listed events, on which there was a very lively discussion in Committee. At that time the amendment moved by the noble Lord, Lord Thomson, and supported by noble Lords on these Benches was lost by only eight votes It secured a great deal of support from all around the Chamber which was expressed in many of the speeches made on that occasion.
  Ever since ITV began in 1955 the principle has been enshrined in law that no broadcaster should have exclusive rights in broadcasting sporting or other events of a special national interest. Those are known

  729
  as listed events. This principle was laid down in the Broadcasting Act 1981 and in the Cable and Broadcasting Act 1984. One wonders at this stage why the Government should think it necessary to repeal such a provision What indeed will be the effect of repealing it? Potentially, under the terms of the Bill as it now stands, any satellite channel could acquire exclusive rights This would have the unfortunate effect of disenfranchising the poor, many old age pensioners and others who could not afford satellite dishes.
  Even if one can afford the equipment, satellite television cannot yet be received in 20 to 25 per cent of homes in the United Kingdom due to the technical problem of direct line of sight. If the Bill remains in its present form the national interest in this area—I stress that this is a matter of the national interest; it is not just a question of sport or individual games—will no longer be protected The question we ask is whether the national interest would be better served by market forces That is the effect of the Government's proposal in the Bill before us. Those with dishes or cable equipment amount to only 6 per cent. of the total television audience Those who receive only terrestrial television—the great majority—would be unable to receive these programmes. That would be grossly unfair.
  We accept that amendments may be necessary to take account, as times goes on, of the increase in the number of channels. That is why the amendment before the House today is rather different from the one before us in Committee. It is more flexible than the one that was moved and voted on on that occasion. We accept that with the large increase in the number of channels different arrangements may have to be made There should be a certain amount of flexibility. Therefore we are not seeking to replicate the provisions of the 1981 Act which prevent exclusive ownership of any of the listed events. It is not the ownership of the broadcasting rights with which we are concerned What is most important in this context is the right of anyone with a television set to have access to listed events.
  If in future a satellite service is available for reception by a substantial majority of the audience, the satellite channel need not be prevented from exclusive ownership as it should be at the moment At present they do not have the capacity to reach a substantial majority Therefore, in the interim period, when the great majority of people would continue to receive their television programmes via the BBC or the commercial companies, it means that there would have to be co-operation between the broadcasters in order to maintain the current system. Our only concern is the public interest.
  The ITC should ensure that the majority of viewers have access to live coverage of listed events, whatever may be the means of delivery. I stress the word "live" Perhaps your Lordships can imagine what would have happened if, for example, in the case of the World Cup the terrestrial viewers had been told that they would
  730
  have to wait until the next day or until some other time to receive the results of the matches. In my view there would have been a revolution in this country.
  It is essential that the viewing public should be the first priority I believe that that is the first priority of Parliament when it frames these rules A Gallup poll which was carried out in August found that 77 per cent of the public would be very positively concerned if at least one of the 10 listed sporting events were only available via satellite or cable. The results indicated that 90 per cent. of those surveyed had watched at least one listed event, and of those 83 per cent were positively concerned about the potential restriction on viewing these events.
  Cable and satellite channels have already entered into agreements with terrestrial broadcasters to share coverage of listed events. The most notable example is the co-operation between the BBC and BSB in respect of Wimbledon and with Sky in relation to the West Indies cricket coverage. That form of co-operation should be encouraged. There is no reason why it should not continue and expand. The amendment proposed would initiate a system of listed events which would achieve that aim.
  The main point is that if our amendment was carried today—I hope that it will be—the Secretary of State would no longer be able to make regulations to prevent the exclusive ownership or broadcasting of listed events. The only proviso would be that listed events would have to be available to,
  "a substantial majority of the total television audience",
  including satellite, cable and terrestrial television services. It would have the virtue of providing the necessary protection for 90 per cent. of the viewing audience; it would open up the market for the broadcasting rights for listed events to cable and satellite operators; and it would introduce greater competition thereby increasing the revenue to sporting bodies which could be ploughed back into sport. As I understand it, the BBC is prepared to make efforts to compromise in the matter, even if it means losing some of its sporting programmes to ITV, so that the basic argument—which I hope is the one that I have been expounding—is accepted.
  We have heard a great deal about the fact that there should be choice in respect of these services—quite fairly, as this is the Government's policy During the course of debates on the Bill we have heard that it is thought that viewers should have much more choice than they have had in the past. Indeed we now have more channels and different systems of broadcasting. However, it does not seem to me that that aim can be fulfilled because if the provision remains as it stands in the clause many potential viewers would literally be prevented from seeing the programmes in which they are especially interested.
  In this country there is a great interest in sport; indeed, great passion is expressed in this respect. People who may not be interested in tennis may nevertheless want to watch football. It is one of our national characteristics. Therefore the whole issue goes rather further than the question of broadcasting,

  731
  techniques, rights and so on; it is something which is very much attached to our national life and characteristics.
  I believe that the concept that I am proposing on behalf of these Benches, which has the support of the Liberal Democrat Benches, is reasonable, fair and ought in my view to be accepted by the Government. I beg to move.
  315 pm
  Lord Bonham-Carter: My Lords, I rise to express my support for the amendment moved by the noble Baroness, Lady Birk. However, before I do so, I cannot help but remember that when we discussed an analogous amendment in Committee it was in fact the last occasion upon which Lord Swann intervened in this House He supported the amendment. I should just like to say, and I am sure that your Lordships will agree with me, that, as a result of his sad and untimely death, we shall miss his presence not only in these proceedings but also in future debates on other legislation.
  Noble Lords: Hear, hear!
  Lord Bonham-Carter: The effect of the Bill has been to shift radically the focus of British broadcasting. It has shifted it from a system of broadcasting which was dedicated to the service of the public interest to one which is dedicated to delivering audiences to advertisers. The object of all the amendments which have been moved from this side of the House has been to claw back some of those changes which we feel are detrimental to the public interest. In my view this amendment is an extremely good example of the way in which we have approached the provisions of tie Bill.
  The noble Earl, Lord Ferrers, very wisely explained to the House the implications and the meaning of Section 14 of the Cable and Broadcasting Act 1984 when we discussed the matter in Committee He pointed out to us that it did not provide the guarantee of exclusive right to the BBC or ITV to broadcast these listed events I think that most people believed that those two bodies did have some such guarantee and therefore his explanation was salutary. I can only say that I think most people would like them to have a guarantee, if they do not already have one. That is one of the things which this amendment would provide.
  Most people believe when they pay the licence fee that they have, in the words of Paul Fox, "bought a ticket to these great occasions" and that that is part and parcel of the bargain. I do not think that the public should have to buy a Sky dish or a BSB squarial in order to see these listed events They are a matter of general interest and of some public importance.
  The noble Baroness explained very clearly the nature of the compromise which the BBC has proposed which preserves the right of any broadcaster who can reach a substantial majority of the nation to bid for these events and which also makes allowance for sub-contracting for highlights and so on. That seems to me, and to those on this side of the House, to be an extremely reasonable proposal.
  732
  In supporting the amendment, one cannot neglect the point made by the right reverend Prelate the Bishop of Liverpool on the last occasion we discussed the matter. He pointed out that this is not merely a broadcasting matter but something that affects the fabric of the country Seeing those great events is a shared experience for people. That is a matter of considerable importance.
  Broadcasting is one of the things which unites, or can unite, a nation by providing the opportunity to share a great experience. The listed events are an example of that concept. If we abandon them and merely put them up for auction, and if they are used as loss leaders so that only a minority of the people see them, we shall be not merely depriving people of something they greatly enjoy; we shall be depriving the nation of an experience which it enjoys and which brings it together. I support the amendment.
  Lord Orr-Ewing: My Lords, before the noble Lord sits down, many of us would like to see the listed events retained, but surely the danger is that the Home Secretary will come under pressure to enlarge the list. It was six; it is now 10. There will be a world heavyweight boxing championship somewhere, and then I can see the list expanding. Should we not think about that point? There are extra terrestrial channels —Channel 5 is one, and possibly in the future further inventions will double the number of terrestrial channels—so it would not be right to expand both those bases and thus deprive the new channels of the opportunity to expand their audiences.
  Lord Bonham-Carter: My Lords, I see no reason why we should not think about that issue. I see no reason why any Home Secretary should be so foolish as to expand listed events indefinitely. I would trust his judgment not to do so.
  Earl Ferrers: My Lords, on a technical point, the noble Baroness, Lady Birk, said that she was speaking to Amendment No 264 I believe she meant Amendment No 366A I see that the noble Baroness signifies assent I join the noble Lord, Lord Bonham-Carter, in his observations about the late Lord Swann He was a knowledgeable expert on broadcasting matters He contributed considerably to the earlier stages of the Bill. We shall miss his interventions not only on the Bill but on future broadcasting occasions.
  The amendments deal with an important and contentious issue which has been debated at all stages of the Bill's passage through Parliament We heard again the views on the subject held strongly by the noble Baroness and the noble Lord, Lord Bonham-Carter It is important that I should briefly rehearse the position of the existing law and explain how the proposals contained in the Bill relate to it. That should demonstrate to your Lordships that the protection in existing law is often exaggerated, and make clear that substantial safeguards still remain.
  Section 14 of the Cable and Broadcasting Act 1984 provides two safeguards. First, it provides that listed events may not be shown on cable television and on a pay-per-view basis. That is where viewers are charged

  733
  an additional sum for watching a special event Secondly, it provides that where a channel which is carried on cable systems proposes to show a listed event the BBC and ITV have to be offered the right to acquire the rights on comparable terms. If they accept, they can have them If not, the other applicants can broadcast them. This means in effect that a satellite or cable channel such as Sky or BSB could show listed events on an exclusive basis now and only if the BBC and ITV had not taken up the opportunity to match their bid.
  Many people believe that the BBC and ITV have at the moment an absolute right to show sporting events That is not so. The noble Baroness said that that right was enshrined in the law, and asked why we sought to change it. The BBC and ITV have less protection than is often imagined.
  The Bill retains and extends the prohibition of showing listed events on pay-per-view terms. That restriction will now apply to all channels and not just those carried on cable. That, I suggest, is a most significant and additional safeguard. Only a small proportion of homes can receive satellite and cable television and that is likely to remain the case for some time That means that the only way such channels could afford to show listed events profitably would be to make an individual charge for doing so The Bill will stop them from doing so However, the Bill removes the matching-bid safeguard That is merely because in an increasingly competitive broadcasting industry we consider that the ITC would find it increasingly difficult and almost impossible to enforce. Indeed, I doubt whether that safeguard would ever have been practically implemented. Our proposals merely simplify and update the safeguards in the 1984 Act.
  The effect of the amendments would be that a listed event could be shown live on a universally available channel only and not on pay-per-view terms. In effect, that would limit the possibility of organisers selling live rights to the BBC, Channel 3 and Channel 4. That would be a significant extension of the limited restrictions imposed by existing legislation and should be viewed as such. On a technical point, the new clause is defective.
  As I sought to explain in Committee, there is an important point of principle here. Only if there are compelling reasons to do so should Parliament constrain the rights of people to do as they wish with their property. Sporting rights are a form of property, and the sale of those rights is one of the principal means by which sporting bodies generate their income. The amendments would severely limit the opportunity for sporting bodies to raise revenue, which could have great implications for the future of sport.
  The noble Lord, Lord Bonham-Carter, said, understandably, that those programmes should not be used as loss leaders and we should not deprive people of what they enjoy seeing. However, he omitted to say that those rights are the property of others by which they can make more money for the betterment of their
  734
  sport. It has been said from time to time that those events will soon be available on satellite television only. I wonder whether that is realistic As I have explained, the Government intend to maintain, and indeed extend, the scope of the pay-per-view restriction. That would mean that listed events could be shown only on satellite or cable television at a substantial loss. I doubt that the channel would recoup that loss through increased dish sales.
  Contrary to what the noble Lord, Lord Airedale, said in Committee, I suggest that few people would purchase a satellite dish merely to watch a 90-minute football match or a horse race lasting little more than 10 minutes Furthermore, I believe it unlikely that a satellite service would overbid the terrestrial services to encourage people to purchase dishes for those limited occasions.
  Of greater significance is the fact that money is not the only relevant factor involved. The All England Lawn Tennis Club has said that audience reach and levels of coverage are also important. Indeed that club demonstrated its commitment to that view only recently by concluding a deal with the BBC to cover Wimbledon for yet another four years. At the same time competition from other broadcasters has meant that the BBC is paying substantially more for those rights. I suggest that that is to the long-term benefit of English tennis. Other sporting bodies have also made clear that the level of coverage is of major importance and I suggest that for many years to come it is unlikely that the list of events will be available only on satellite television.
  Joint arrangements, such as those which the BBC and BSB have agreed with the Football Association for coverage of the FA Cup and with the Test and County Cricket Board for cricket coverage, whereby BSB provides a complementary service to that provided by the BBC, are the pattern for the future.
  Understandable though it is that the noble Baroness and the noble Lord, Lord Bonham-Carter, wish to see those events relayed only on terrestrial television, I do not believe that they have made out their case If their amendments are accepted, there would be a strictly limiting effect on the sale of the property rights of those organisers. I do not believe that that would be to the long-term benefit of sport or indeed of viewers.
  330 pm
  Baroness Birk: My Lords, I thank the Minister for that explanation It goes without saying that if there is a technical error in the amendment I should be grateful to have that put right if the amendment is accepted.
  With great respect, I do not believe that the Minister is right on the question of protection. Protection is accorded under the 1981 Act because that prevents the exclusive ownership of broadcasting rights as regards listed events It is not the power from the 1984 Act which is being removed We are trying to encourage the broadcaster to co-operate in the presentation of listed events. Importantly, it is the viewer and not the terrestrial broadcaster who is

  735
  favoured. We are anxious that the viewers should have the best deal. I am not very concerned about property rights. Those matters seem to arise on discussion of every Bill.
  The amendment provides a compromise between broadcasters and the sporting bodies. At present I do not believe that sporting bodies are keen to sell their rights because, due to the comparatively small number of satellite owners in this country, they will not be paid as much as they would like We are dealing with this interim period. In the last debate the noble Lord, Lord Thomson, said that he was quite certain that that period would last at least until the end of the century, and I am sure he is right. Viewers should be quite safe in the knowledge that they will be able to see all these listed events on their terrestrial television sets without being pressed into buying dishes or squarials or installing cable, which may be a matter of choice or finance.
  The Minister quite rightly referred to arrangements being made between the BBC and Wimbledon. At the same time, it works the other way The BBC was not able to provide live coverage of the Benson & Hedges Cup Final this year for the first time since the competition began because of a deal between the TCCB and BSB. The matter is not as clear-cut as the noble Earl would have us believe. In this interim period it is much better and safer for the country as a whole if we stick to what we are used to and do not start making changes while broadcasting is developing new techniques. Therefore I must test the feeling of the House.
  However, before I do so, I should like to add my voice to that of the noble Lord, Lord Bonham-Carter. The noble Lord, Lord Orr-Ewing, asked about pressing the Home Secretary to add to the list. Home Secretaries and other Secretaries of State, if they are worth their salt, can withstand pressure about arty number of issues. Therefore I do not believe that these lists will be greatly enlarged unless there is a very good reason. That could happen at any time, but I agree with the noble Lord, Lord Bonham-Carter, that it is highly unlikely. I commend the amendment to the House.
  336 p m
  On Question, Whether the said amendment (No209A) shall be agreed to?
  Their Lordships divided: Contents, 109; Not-Conte its, 142.

  Division No. 1

  CONTENTS

  Addington, L.

  Briginshaw, L.

  Airedale, L.

  Broadbridge, L.

  Ampthil, L.

  Bruce of Donington, L.

  Annan, L.

  Callaghan of Cardiff, L.

  Ardwick, L.

  Campbell of Eskan, L.

  Aylestone, L.

  Carmichael of Kelvingrove, L.

  Balfour of Inchrye, L.

  Carter, L. [Teller.]

  Bancroft, L.

  Cledwyn of Penrhos, L.

  Birk, B.

  Clinton-Davis, L.

  Blease, L.

  Cocks of Hartcliffe, L.

  Bonham-Carter, L.

  Crook, L.

  Boston of Faversham, L.

  Cudlipp, L.

  Bottomley, L.

  David, B.

  Donaldson of Kingsbridge, L.

  Mackie of Benshie, L.

  Dormand of Easington, L.

  Marsh, L.

  Ennals, L.

  Mason of Barnsley, L.

  Ewart-Biggs, B.

  Mayhew, L.

  Ezra, L.

  Morris of Castle Morris, L.

  Falkland, V.

  Mulley, L.

  Fisher of Rednal, B.

  Nicol, B.

  Fitt, L.

  Northfield, L.

  Gallacher, L.

  Ogmore, L.

  Galpern, L.

  Parry, L.

  Gladwyn, L.

  Peston, L.

  Glenamara, L.

  Plowden, L.

  Goodman, L.

  Porritt, L.

  Graham of Edmonton, L.

  Prys-Davies, L.

  Grey, E.

  Richard, L.

  Hampton, L.

  Ritchie of Dundee, L.

  Hanworth, V.

  Robson of Kiddington, B.

  Hatch of Lusby, L.

  Rochester, L.

  Houghton of Sowerby, L.

  Ross of Newport, L.

  Howie of Troon, L.

  Sainsbury, L.

  Hunt, L.

  Seear, B.

  Hunter of Newington, L.

  Seebohm, L.

  Hylton, L.

  Shaughnessy, L.

  Irvine of Lairg, L.

  Shepherd, L.

  Jay, L.

  Soper, L.

  Jenkins of Hillhead, L.

  Stallard, L.

  Jenkins of Putney, L.

  Stoddart of Swindon, L.

  Kilbracken, L.

  Strabolgi, L.

  Killanin, L.

  Taylor of Blackburn, L.

  Kissin, L.

  Taylor of Gryfe, L.

  Leatherland, L.

  Tordoff, L. [Teller.]

  Listowel, E.

  Turner of Camden, B.

  Llewelyn-Davies of Hastoe, B.

  Underhill, L.

  Lloyd of Hampstead, L.

  Wallace of Coslany, L.

  Lockwood, B.

  Walpole, L.

  London, Bp.

  Wedderburn of Charlton, L.

  Longford, E.

  White, B.

  Lovell-Davis, L.

  Williams of Elvel, L.

  McCarthy, L.

  Willis, L.

  McFarlane of Llandaff, B.

  Winchilsea and Nottingham, E.

  McGregor of Durris, L.

  Winstanley, L.

  Mcintosh of Haringey, L.

  NOT-CONTENTS

  Ailesbury, M.

  Dormer, L.

  Alexander of Tunis, E.

  Eccles of Moulton, B.

  Allerton, L.

  Eden of Winton, L.

  Alport, L.

  Effingham, E.

  Astor, V.

  Ellenborough, L.

  Balfour, E.

  Elliot of Harwood, B.

  Belhaven and Stenton, L.

  Faithfull, B.

  Beloff, L.

  Fanshawe of Richmond, L.

  Belstead, L.

  Ferrers, E.

  Bessborough, E.

  Flather, B.

  Birdwood, L.

  Fraser of Kilmorack, L.

  Blatch, B.

  Gainford, L.

  Blyth, L.

  Gainsborough, E.

  Borthwick, L.

  Gibson-Watt, L.

  Boyd-Carpenter, L.

  Geddes, L.

  Brabazon of Tara, L.

  Gridley, L.

  Brightman, L.

  Grimston of Westbury, L.

  Brougham and Vaux, L.

  Haddington, E.

  Butterworth, L.

  Hardinge of Penshurst, L.

  Caithness, E.

  Harmar-Nicholls, L.

  Caldecott, V.

  Havers, L.

  Campbell of Alloway, L.

  Henley, L.

  Campbell of Croy, L.

  Hives, L.

  Carnegy of Lour, B.

  Holderness, L.

  Cavendish of Furness, L.

  Hood, V.

  Cawley, L.

  Hooper, B.

  Clanwilliam, E.

  Howe, E.

  Clitheroe, L.

  Hylton-Foster, B.

  Colnbrook, L.

  Jenkin of Roding, L.

  Colwyn, L.

  Johnston of Rockport, L.

  Constantine of Stanmore, L.

  Killearn, L.

  Cottesloe, L.

  Kinloss, Ly.

  Cox, B.

  Kinnaird, L.

  Cullen of Ashbourne, L.

  Knollys, V.

  Davidson, V. [Teller.]

  Lauderdale, L.

  Denham, L.

  Lawrence, L.

  Layton, L

  St. John of Fawsley, L.

  Lloyd-George of Dwyfor, E.

  Sandys, L.

  Long, V.

  Savile, L.

  Lucas of Chilworth, L.

  Selkirk, L.

  Luke, L.

  Selsdon, L.

  Lyell, L.

  Shannon, E.

  McColl of Dulwich, L.

  Sharples, B.

  Mackay of Clashfern, L.

  Skelmersdale, L.

  Macleod of Borve, B.

  Stanley of Alderley, L.

  Manchester, D.

  Stockton, E.

  Mancroft, L.

  Strange, B.

  Mar, C.

  Strathclyde, L.

  Margadale, L.

  Strathmore and Kinghorne, E.

  Merrivale, L.

  Strathspey, L.

  Mersey, V.

  Suffield, L.

  Middleton, L.

  Swansea, L.

  Monk Bretton, L.

  Swinton, E.

  Mountevans, L.

  Terrington, L.

  Mowbray and Stourton, L.

  Teviot, L.

  Munster, E.

  Thomas of Gwydir, L.

  Murton of Lindisfarne, L.

  Thorneycroft, L.

  Nelson, E.

  Torphichen, L.

  Newall, L.

  Tranmire, L.

  Norfolk, D.

  Trefgarne, L.

  Nugent of Guildford, L.

  Trumpington, B.

  Orkney, E.

  Tryon, L.

  Orr-Ewing, L.

  Ullswater, V.

  Oxfuird, V.

  Vaux of Harrowden, L.

  Palmer, L.

  Wade of Chorlton, L.

  Pender, L.

  Westbury, L.

  Reay, L. [Teller.]

  Whitelaw, V.

  Rippon of Hexham, L.

  Wise, L.

  Rodney, L.

  Wyatt of Weeford, L.

  Romney, E.

  Wynford, L.

  Roskill, L.

  Young, B.

  344 p.m.
  The Earl of Stockton The Earl of Stockton moved Amendment No 210:
  After Clause 82 insert the following new clause:
  Establishment of endowment fund
  —() The Secretary of State shall, for the financial year beginning with 1st April 1991, establish an endowment fund for the benefit of the Authority for such amount as he, with the approval of the Treasury, shall determine to be appropriate for the purposes of this section.
  (2) Any amount received by the Authority under subsection (1) shall be credited by them to a fund established by them under this section to be known as the Radio Fund.
  (3) The Fund shall be under the management of a committee appointed by the Authority for the purpose of this section, to be known as the Radio Fund Committee and shall be applied by the Committee in the making of grants for the following purposes, namely to support and encourage—

  (a) training for the benefit of independent radio;

  (b) the making of arts programmes ethnic minority interest programmes programmes to support voluntary action, programmes with an educational purpose, creative and innovative programmes.

  (c) the establishment of new transmission facilities in remote rural or other difficult areas;

  (d) research and development work for the benefit of independent radio.

  (4) When making any grant out of the Fund in pursuance of subsection (3) the Committee may impose such conditions as they think fit.
  (5) The Authority shall so exercise their power under subsection (3) to appoint members of the Committee as to secure that a majority of the members are persons who appear to them to possess a knowledge of the purposes to which, under subsection (3) above the Committee may apply the Fund.
  (6) Any sums required by the Secretary of State under subsection (1) shall be paid by money provided by Parliament.
  (7) In this section "the Authority" means the Radio Authority; "the Committee" means the body established under subsection (3) above").
  The noble Earl said: My Lords in moving Amendment No. 210 I wish to speak also to Amendment No. 219 standing in the names of the noble Lord Lord Thomson of Monifieth and the noble Baroness Lady Birk. I also wish to pay tribute to my noble friend Lord Colwyn who moved an amendment on this point in Committee and whose efforts on behalf of independent radio are well known. In reply to my noble friend the Minister left the matter open. It appeared that he might yet be convinced of this case. Therefore I have decided to put before him a version of the amendment which I believe takes account of the reservations he expressed in Committee. I hope therefore he will look more favourably on this case now.
  The Bill rightly ends the system of cross-subsidy for independent radio stations by which the cost of renting transmitters from the IBA was levied differently on smaller and larger stations according to their means. In 1988 the IBA effectively discontinued the second rental levied on profits. It was right that this rigging of the market should end but the time has come to acknowledge that the consequence has been much less cash in the system.
  The smaller stations, on whose expansion in the next decade the Government's vision for independent radio so strongly depends, have lost, in 1989 prices, about £1.75 million. Much of this was in the form of support for the kind of diverse and imaginative programming that the Government, and indeed all of us want to hear, including projects such as the highly successful "Canterbury Tales". Support has also been lost for training, networking and, dare I say it, parliamentary broadcasting. To cope with this reduction in resources, the smaller stations have had to retrench. Recent research has shown that local news and speech based programmes, such as drama and programmes on voluntary action, have been drastically cut.
  The chief executive designate of the Radio Authority has admitted that the financial climate prevents the IBA from insisting on the kinds of diverse programming that it would normally want to see Most of the new incremental stations are now in financial difficulties because advertising revenue has not come their way. Trained staff are being made redundant and training has been abandoned. Some stations are now facing closure and new stations are not coming on to the market because profit margins are so low and the start-up costs are so great.
  In Rutland the IBA was unable to find any takers for its proffered franchise. The loss of supply capacity means that it is hard to believe that independent radio can fulfil our hopes for it without an extra push. Against that my noble friend on the Front Bench cited the 860 or so letters of intent received from those interested in running new stations. However, a letter of intent is just that; it commits no one. A

  739
  proportionate number of letters was received during the incremental exercise, but that has not prevented most of those concerned from getting into trouble.
  My noble friend the Minister said in Committee that local authorities and other public bodies would have powers to make some funds available. However, in practice few will have the resources or the will to do so Moreover as the right reverend Prelate the Bishop of Liverpool astutely noted in Committee, local authority funding carries with it the dangers of political strings of which the independent radio world is rightly chary. Training and networking are industry-wide needs and local authorities have no powers to fund them.
  My proposal is a modest one and it now has wide support in the world of independent radio. I envisage that a radio fund established on the lines of my amendment would provide specific project support for training creative programming, start-up costs in rural areas and research and development In Committee my noble friend the Minister said that established independent local radio stations might reasonably resent the Government providing funds to subsidise new competition. I agree with my noble friend on that point. However, in the amendment that I am moving the clause targeting benefit to new radio enterprises has been dropped. Instead I am simply advocating project based funding to which all independent radio enterprises, whether new or not will have equal access.
  Lest it be misunderstood let me say immediately that I do not envisage its use for long-term subsidy, and still less for cross-subsidy by the back door. To take account of the doubts of my noble friend as expressed in Committee, my amendment makes clear that all independent radio stations may apply for this assistance. The purposes of the fund have been carefully drafted to exclude any possibility that the fund might turn itself into a long-term revenue subsidy.
  It is proposed that the fund be established with a one-off endowment of £10 million of public money. I am confident that it could attract additional private sponsorship or finance once the initial magnet is in place Grants would be subject to conditions, which might include raising some external finance in addition.
  The Government have accepted the case that they should provide funds to stimulate the market in Gaelic television, and there they are offering a year-on-year contribution of £8 million. The Treasury will be in receipt of revenues from the auction of franchises for national radio and tax revenues from independent radio generally. Set against those resources, the radio fund is surely a modest but prudent investment to secure much greater tax revenue for the public purse while stimulating the market and greater private investment. The Radio Authority has said that it would be willing to administer such a fund were it to be established.
  The Government have done this on a number of occasions when they have deregulated the market. The
  740
  Gaelic Broadcasting Fund is but one example. Again, when the Government sought to stimulate the privately rented housing market they used a mix of tax reliefs through the business expansion scheme for landlords and a restructuring of funding to housing associations to get that market moving. I hope that my noble friend will accept that my amendment is entirely in line with the Government's approach.
  If independent radio is to flourish it must attract audiences for then it will attract advertising revenues which will finance further expansion. To attract audiences, as the Home Office's own research has shown, speech based programmes are needed, because that is what many potential listeners want. Drama, news, current affairs, programmes linked to local voluntary activities and the like all make heavier demands on investment and training than music programming. It is that area that is most under threat and yet most crucial to the innovation, choice and diversity which the Government have set as the objectives of their reform. The danger is of a vicious circle of declining creative programming, declining audiences, declining revenues and declining investment. My proposal is to promote a virtuous circle by stimulating the market in the most carefully targeted way. I beg to move.
  Lord Bonham-Carter: My Lords, I take it that the amendment is to be taken with Amendment No. 219. I should like to speak to the amendment moved by the noble Earl, Lord Stockton, and to Amendment No. 219 which stands in the name of my noble friend Lord Thomson of Monifieth.
  I support wholeheartedly the principle behind the amendment of the noble Earl, Lord Stockton. Ours has the same objectives but it is rather simpler than the noble Earl's amendment. In the light of the fact that the noble Earl, Lord Ferrers, said in reply to the noble Lord, Lord Colwyn, in Committee that he could not justify such a fund coming from taxation, I point out that our proposal does not involve new money. It merely allows the Radio Authority to use its revenues if a service worthy of being established or maintained would otherwise fail.
  We have two types of service in mind. One is the specialist ethnic station, such as those which have recently been established in London and elsewhere. The London Greek Radio and Sunset in Manchester are typical examples. They serve particular communities but are not community services as they have a commercial element built into them and are subject to the requirements of the IBA relating to equipment, training and so on.
  We propose that the Radio Authority should use some of its revenues as a prop for those stations, which in their early days often encounter severe difficulties in building an audience and attracting advertising. The authority could provide interest-free loans, help with training and perhaps a subsidy over a strictly limited period of time to assist a station which is providing a new and specific service and which has not as yet attained commercial viability.

  741
  An example of a different type of station which would also be open to such help is the proposed Radio Parkland in Perthshire. A service is proposed because of the poor reception due to the terrain in that part of the world and the cost of improving services is too costly for a commercial venture as the population is a mere 12,500. The station is committed to being locally owned and to drawing its programming from local sources to reflect the diversity of the local population. To use its own words:
  "In many ways it will be like a campus or hospital radio made by and for a special group of people, the people of Highland Perthshire"
  The kind of service which that station intends to provide, and for which it is raising funds, could be of benefit throughout rural areas whether in Scotland, parts of Wales the South West or places such as Northumberland or Cumbria. Stations of that kind cannot expect to be commercially viable initially. They perform an extremely important social service. They require support and Amendment No. 219 offers a means whereby that support could be provided.
  Lord Ardwick: My Lords, I have the greatest sympathy with the new clause proposed by the noble Earl, Lord Stockton It is obvious that there will be good services in need of support. I am thinking particularly of national services. I have never seen how it is possible for a speech based national programme to make a living. I have never seen how it is possible for a non-pop music station to be sure in its opening years of being able to exist.
  The noble Earl's proposition was shot down heavily by the noble Earl, Lord Ferrers, in Committee. I dare not hope that it can succeed. However, the much more modest proposal that the authority may use its own revenues,
  "for the purpose of establishing or maintaining services pursuant for the purpose of subsections 2 and 3"
  makes a good deal of common sense. The amendment does not propose the establishment of a fund specifically for non-commercial services but requires the authority to assist those services by providing funds as and when necessary to initiate or maintain them. Without some form of public funding, high quality and diverse national and local community radio services cannot be sustained.
  While there may be many people interested in operating new radio services there simply is not sufficient revenue to go round. That is no truer than at this moment with the dearth of advertising revenue. One hopes that in a few years' time advertising revenue will have swollen to the agreeable proportions that it had a year or two ago. I speak as an ex-newspaper man. However, for the time being things are very tight and some form of help from the authority would be very useful.
  Lord Boyd-Carpenter: My Lords, the amendment moved by my noble friend Lord Stockton proposes a new head of public expenditure. I believe that your Lordships will feel that for that reason it requires very careful examination. As your Lordships will be aware, when dealing with a proposal for public expenditure
  742
  one is not so much concerned with whether its intentions are good or well meaning—I am sure that in this case they are—but, given the fact that there is a limit to the amount of public spending which is economically possible, with whether the proposal is entitled to priority over all the other claimants for public spending.
  Particularly at this moment, when I understand that the Star Chamber is likely to go into action fairly soon on various proposals and when, apart from that, public expenditure is a very real problem, noble Lords have to be cautious before advocating a new head of public expenditure. No one can sincerely advocate further public spending unless he is prepared to give that public spending priority over the many other claims which are made.
  With great respect to my noble friend I ask whether it is possible to suggest that, against so many claims under the heads of education social security, war widows and the rest, one can justify spending public money for the purposes which he so eloquently outlined. Because of my old Treasury background I may perhaps be inclined to look at matters a little in that way but I suggest that it is a way that a responsible House of Parliament must look at proposals for public spending.
  In the circumstances, although my noble friend's intentions are admirable and I am sure that if put into operation this proposal would do a certain amount of good, I do not feel that it is entitled to priority over the many other urgent claims that we have. Therefore I hope that your Lordships will reject it.
  4 pm
  Lord Jenkins of Putney: My Lords at this stage in the Bill we are bound to consider what the Government might conceivably accept rather than what we might like best. From that point of view alone I feel that we must come down in favour of Amendment No. 219, rather than Amendment No 210 for the reasons put forward by the noble Lord. It is not that I believe the noble Earl's reasons to be valid but I fear that they are the kind of reasons that may impress the Front Bench. Although from many points of view the more comprehensive approach of the noble Earl has much to commend it and although I personally always hesitate to mix public and private money under a single control because of the problems which can arise under those circumstances, I should have gone along with the proposal if I felt that it had a chance.
  When the matter was considered earlier the noble Earl did not rule out the proposal. He said that he might be impressed with it at some future date. Let us hope that that future date has arrived and that this afternoon he will find it possible—not to accept the more comprehensive amendment proposed, although he might look at it at a later stage—to accept this proposal as a paving operation if nothing else. After all, it amounts to no more than the authority being given as it were, the ability to use part of its funds in a creative fashion.

  743
  The effect of this amendment would be to subsidise or support the efforts of the BBC. In terms of radio most people who have attempted to listen in other parts of the world where they can understand it, would agree that the BBC is almost unapproachable. There are other countries which achieve excellence. I am no authority on the matter but I am reliably informed that some of the German radio programmes are extremely good. However, the popularity of for example the World Service demonstrates that we have an asset in the hands of the BBC.
  I am sure that many noble Lords will be disappointed at the failure of ITV in terms of creative policy to come anywhere at all near the BBC. Certainly it serves a useful purpose but there is no comparison. It seems to me that this would be an opportunity for independent radio to move a little in the direction of asking, "Can't we compare creatively with the BBC rather than being merely an alternative news organisation?" Certainly it is very useful and the sporting programmes are useful. But it is high time that action is taken and this is the opportunity.
  For example, the BBC drama radio programmes fulfil an enormously useful role in terms of social purpose and enjoyment. There are quite a large number of fans of drama writing. I must here declare an interest. I am not a professional writer, as is my noble friend Lord Willis. However, I have recently acquired an interest in writing radio plays. Although my plays are by no means the most popular, an audience of around one million is not unusual. In theatrical terms, it is quite a large number of people. They ought not to be neglected.
  Why should not independent radio also try to compete on that level? I do not believe that it can be done without some encouragement. We have an opportunity here for the noble Earl to accept that encouragement on their behalf. I hope that he will do SO.
  Lord Chalfont: My Lords I must declare, as I always do, my interest as chairman designate of the Radio Authority. Perhaps I may remind the House that, when we speak of the revenues of the Radio Authority, the sole source of revenue of the Radio Authority will be the programme companies themselves. Therefore were the Radio Authority to use some of those revenues to prop up unsuccessful stations (which seems to be the thrust of this amendment) it could only be at the expense of the programme companies, and logically the successful programme companies.
  Therefore I think it important that noble Lords should recognise that this amendment implies that unsuccessful or struggling stations will have to be put right at the expense of the successful ones. I make no comment on the propriety or otherwise of that. I simply point out that it is the inevitable consequence of this amendment.
  Earl Ferrers: My Lords, I am grateful to my noble friend for his helpful explanation of the way in which this amendment is intended to work and in particular for clarifying the changes which have been made to it
  744
  since we last considered the matter in Committee. I am bound to say that I can understand the attraction of the idea of a fund of that sort. However, noble Lords will realise that there are many skilful and sincere people who are very good at devising worthwhile new initiatives which will work beautifully provided that they can be funded by the taxpayer.
  The noble Lord, Lord Chalfont, immediately rose up like a cobra because he thought that the Radio Authority would have to provide the money. I rise up like a cobra because under the amendment it will be the Government who have to provide the money.
  It is perfectly true that under Amendment No. 219 the money might come from the Radio Authority. But from whichever way it comes it will have to come from somebody. My noble friend Lord Stockton mentioned the mystic sum of £10 million as if it were a small amount. I believe that my noble friend Lord Boyd-Carpenter was entirely right when he said that any funds that come from government have to come in competition with other departments which may possibly have a greater call on public funds.
  It may be a slightly unpopular remark but we should soon be in fairly deep trouble if in those sorts of cases we did not ask ourselves whether what is proposed is worthwhile, and not only that but whether it is absolutely necessary. Our position is this We suggested in the Green Paper in 1987 that radio stations in future should stand on their own feet. That suggestion was widely accepted.
  We have made every effort in this Bill to lighten the burden on independent radio services so that they will have every chance to achieve self-sufficiency. New stations will be able to open for business without incurring the kind of heavy outlay which was a feature of the operation of the 1981 Act. Transitional arrangements have been made to assist the present incumbents as they move into the new form of environment. In future stations will have much greater freedom than before in their operational programming and transmission arrangements. That means that they will be able to exercise considerably more control over their expenditure so as to keep within their available resources.
  My noble friend Lord Stockton said that the shadow Radio Authority has had expressions of interest from 900 groups or individuals wishing to run radio stations. That suggests that even if the 900 groups do not materialise, nevertheless there is no lack of optimism or shortage of people who believe that they can successfully operate such a business without being subsidised.
  The other important point is this. The amendment provides that the Radio Authority has to appoint a body of people who would work at the taxpayers' expense to set up radio stations in places where the demand would not otherwise support a service. Those stations would operate without fear of competition since they would be securely funded by public money. I am not sure that that would be consistent with the authority's duty to try to ensure fair and effective competition.

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  I am not persuaded that other radio stations would view the prospect of subsidised competition with equanimity. It is perfectly true that existing stations would be eligible for money from the fund. However, another purpose of the fund is to get new stations started. Despite what my noble friend said, such a position would be subsidised competition.
  Noble Lords will recall that under Schedule 2 radio stations will be permitted to accept contributions from local authorities and public bodies within guidelines that the Radio Authority is drawing up to safeguard against political influence. The probability is that these guidelines would allow funding for many of the initiatives listed in subsection (3) of the amendment, if the stations concerned can persuade public bodies such as health authorities that they would be worth while and give value for money. The Government announced in December 1988 that we proposed that public authorities should be permitted to give reasonable support to local radio stations for training purposes, to promote the arts and for projects intended to provide a specific benefit to the community. Radio stations will therefore have this option available. Central funding would duplicate these possibilities, which I believe would be better dealt with locally. But the Government do not consider that new stations should be reliant on any form of public funding, whether central or devolved, for their very existence.
  My noble friend said that it may be difficult for radio stations to start up. There are areas at present which are not served by independent radio. It may be that they will continue in that state. However, it must be remembered that under the new regime it will be possible for new stations to start up much more cheaply and readily than at present. Frequency availability is usually a lesser problem in rural or remote areas than it is in a big city.
  With regard to the amendment in the name of the noble Lord, Lord Thomson of Monifieth, the noble Lord, Lord Bonham-Carter, argued that it would have the same results but without calling upon the taxpayer. Nevertheless, it would unfortunately mean a form of cross-subsidy. That system would reappear since the authority's only source of income is the licence fees.
  I hope noble Lords will understand that my reluctance to accept either of these amendments does not mean that I necessarily disagree with the broader aims behind them. But I am not persuaded that it would be a proper use of taxpayers' money or would justify the reintroduction of a cross-subsidy system. I do not believe that such an arrangement needs to be, or indeed should appear, on the face of the Bill. I know that the broadcasting consortium is working hard to set up a committee on a non-statutory basis to operate in line with the Radio Authority's guidelines on public funding. I wish the venture every success.
  The Earl of Stockton: My Lords, having listened to the reply of the Minister, the arguments advanced by the noble Lords, Lord Bonham-Carter and Lord Ardwick, and the rebuke by my noble friend Lord
  746
  Boyd-Carpenter, I accept that Amendment No. 219 offers a simpler and perhaps more acceptable solution to the problem. I beg leave to withdraw the amendment.
  Amendment by leave withdrawn.
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  Schedule 6 [The Radio Authority: Supplementary Provisions]:
  Earl Ferrers Earl Ferrers moved Amendments Nos. 211 to 213:
  Page 186 line 30 after ("or) insert:

  ("(a)")

  Page 186 line 30 after ("capital") insert (" or

  (b) enabling them to meet any capital expenditure")

  Page 187 line 6 after ("the") insert ("Chartered")
  The noble Earl said: My Lords, the amendments have been spoken to at an earlier stage of the Bill in debating Amendments Nos. 3 and 5. I beg to move.
  Clause 83 [Regulation by Authority of independent radio services]:
  Lord Bonham-Carter Lord Bonham-Carter moved Amendment No. 214:
  Page 71 line 37 leave out ("or locality") and insert ("locality or community").
  The noble Lord said: My Lords, I speak also to Amendments Nos. 217 and 258. The amendments provide the Government with their last opportunity to achieve something radical in the provision of radio. The amendments are primarily concerned with community radio. Although the Government have frequently spoken in favour of community radio and the benefits it brings to the community which it addresses, they have never willed the means by which community radio can get off the ground or survive in the rather harsh climate in which we live.
  However, behind the problem lies another one which we discussed at Committee. I do not apologise for raising it once more today. If one has community radio one must distinguish it from local radio. One must define it in such a way that its modus vivendi its way of operating is recognised and understood. We believe that a definition for community radio needs to be written into the Bill. The definition that we would write into the Bill comes from a speech given by the chairman of the shadow Radio Authority, the noble Lord, Lord Chalfont. He defined community radio as,
  "non-profit distributing services which broadcast minority appeal socially purposive, open access programmes".
  The Radio Authority does not believe that there is any future for community radio in this country without it having specific powers to promote and to fund it. In its view commercial considerations will always win in competition.
  If the Radio Authority is anxious for a definition of community radio to be written into the Bill in order for it to do its job it is difficult to understand the Government's objections. That is precisely what we propose in the amendment. Moreover, an increase in community radio would increase consumer choice. That is one of the purposes behind the Broadcasting Bill.
  Amendments Nos. 214 and 258 distinguish between a local commercial and community service. They ensure that the authority can designate such a service not just for the locality but for a community also. It gives authority and strength to the wish to take community radio seriously.
  The Government can see the potential benefits and dangers from other countries. We discussed that issue in Committee. The experience of other countries shows abundantly that where community radio has been Protected, as in Australia and the United States, it thrives. Where it has to exist in a wholly unregulated market, such as in France and Italy, it is simply smothered. The need for a separate designation and definition is now widely accepted. I hope that the Government will be able to accept that.
  The chairman designate of the Radio Authority has strongly backed separate measures. He said:
  "I do have one remaining concern; it concerns community radio. I would really like the Government's intentions about community radio to be made much more clear than they are at the moment on the face of the Bill".
  All we are asking is for that which the chairman designate of the Radio Authority has asked.
  I understand that the Government are not opposed in principle to treating community radio differently. However, they do not appear to be convinced of the need. In February the Minister said:
  "If I felt any of the Bill's provisions would prejudice the proper development of community radio I would not hesitate to change it as I am an advocate of community radio".
  We are trying to persuade the Government of a simple proposition: that a definition of community radio should be written on to the face of the Bill. We argue that on the basis of experience abroad, the advice of the chairman designate of the Radio Authority and the verbal support of the Government. That is not asking a great deal. I hope that in reply the Minister will show that he has listened to the arguments and has moved his position in the matter. Without separate treatment and some additional resources, community radio will not get off the ground. I beg to move.
  Lord Ardwick: My Lords, I agree with all that the noble Lord, Lord Bonham-Carter, said and I give him my complete support. We have returned to our old quest of ensuring that there is radio broadcasting of quality not only at a national level but also at a regional and local level. In these amendments we are concerned in particular with the local level.
  It is only too easy to believe that there is a small, tin-pot station which cannot do too much harm to anybody. That is almost true but not entirely. There can be nothing more mushy than poor quality local commercial radio It is the junk food of the mind. For a moment the taste is all right on the palate, but it is harmful because it fails to nourish. We are worried not about the small amount of harm that is done, but the wasted opportunities which may occur at local level.
  Above all, we are concerned about the type of local radio which is called community radio. In Amendment No. 217 we attempt to define that as:
  "non-profit distributing services which broadcast minority appeal socially purposive open access programmes".
  748
  That sounds very off-putting to audiences and potential subscribers. Nevertheless, community radio can reflect the events and thoughts of an area which regards itself as a community. That community could be a small town or a suburb with its own characteristics. Its community station could inform and encourage local life as may a good local newspaper; or community radio may embrace a community of interests—for example, an ethnic minority living within a certain area. Whichever it is it should be encouraged and financial help should be available.
  At the same time we are trying to give the Radio Authority a role requiring high-quality broadcasting balanced over the whole range of services. Today radio broadcasting is overshadowed by television but it remains a useful and influential service. We must not let it be swamped by the cruder type of commercial radio which flourishes in some countries.
  Baroness David: My Lords, Amendment No. 217 stands in my name, too. I wish to refer specifically to an area of broadcasting not named in the Bill. That is student radio. There are at present 22 student radio stations operating in universities and polytechnics around the country. They broadcast using an induction-looped system at low power covering small areas of a campus such as a hall of residence and various blocks. Most of the broadcasting is on the medium wave AM system although some stations have experimented with FM through special licences. The stations play music and also have various news and discussion programmes. For their income most rely on a mixture of advertising revenues and grants from student unions.
  The anxieties that I wish to raise are those shared by the National Union of Students and the co-ordinating body for student radio stations, the National Association for Student Broadcasting. The first anxiety is financial The student radio stations pay a single licence fee of about £100 per year. In the first year of operation that is much higher. I understand that from 1st January next student radio stations will, together with other radio operators require not one but three separate licences; one under the Wireless Telegraphy Act 1967; one from the Department of Trade and Industry; and another from the Radio Authority. I ask the Minister to clarify that situation. Will his department endeavour to keep the cost to a minimum especially regarding the small student radio stations often surviving on shoestring budgets?
  My second anxiety is more long term. Some student radio stations may be interested in bidding for the new community licences that will become available to cover areas local to the college. I ask for an assurance that if any student radio station is bold enough to make such a bid it will be treated in the same way as any other applicant for such a licence.
  I understand that the shadow Radio Authority is considering whether there may be frequencies that could be used for low-powered local services that fall outside the full local licence areas that will be advertised by the Radio Authority. Will the Minister clarify the matter? If such frequencies are identified,

  749
  will they be made available to student radio stations or must they too bid in the same way as other local licences?
  I am grateful for the opportunity to raise the subject of student radio today because there has been little opportunity to do so. Often student radio stations are a training ground for young and enthusiastic broadcasters to take their first steps in the field It is important that the service should continue and where possible, be allowed to expand. I hope that the Minister will give some comfort and reassurance on the matter.
  430 pm
  Earl Ferrers: My Lords, the fact that the Bill does not refer explicitly to community radio should not lead people to believe that the services have been overlooked The Green Paper which was published in 1987, envisaged community radio as playing a full part in the expansion of radio services which is now beginning to take place. We suggested then that there is no need to draw artificial distinctions between local and community services. The Government's view has always been that that would be harmful and counterproductive. That is because there is no reason why it should not be perfectly legitimate for people to propose radio services that combine commercial and community elements. In fact, there are existing stations which do exactly that. In our view, there is no need to force them into being either a commercial or a community station and thereby putting them into a straitjacket. In any case, opinions quite legitimately differ on how the two terms would be defined.
  It is important to bear in mind that a very strong impetus for community radio is written into the Bill. Clause 104 has the effect that the Radio Authority must take strong account of the extent to which a proposed service would add something new and extend listener choice. In other words, an applicant who wants to compete head-on with an existing pop-based station will be much less likely to win a licence than an applicant to run a community station which would add to listener choice. Noble Lords may have seen government amendments Nos. 260 and 261 to Clause 104. Those were prompted by my noble friend Lord Colwyn, and they would have the effect of further strengthening this boost to community radio contained in the licensing criteria.
  The amendments to Clauses 83 and 84 which we are discussing now seek to include community services under the broader heading of local services. This is unnecessary since it is already clear that the community services will be licensable as local services But in Clause 103 the amendment would require the authority to distinguish between community and local services. In our view, either a community service is a local service, as the Bill provides, or it is a separate entity. The combination of these amendments would simply make the Bill self-contradictory. For the reasons which I have outlined, I do not believe it would be beneficial to try to provide separately for community radio services, nor specifically to try to define them. The noble Lord, Lord Bonham-Carter,
  750
  wishes to define the difference between those stations, and in his amendment to Clause 84 he offers his definition of a community service.
  The main problem with attempting any such definition is that it tends to place the service in a straitjacket when a degree of flexibility may prove vital if the service is to survive. The aim of re-investing profits in the service or the community which it serves can certainly be realised under the Bill as it stands but I do not see why all community-type stations should be forced to do that. Nor do I accept that such stations should be required to broadcast programmes which would not have wide appeal.
  I am bound to say that I was confused over Amendment No. 217 and the language it used. I do not know what a socially purposive programme is, nor what an open access programme is. We all have our ideas of what an open access is, but I am bound to say that even my imagination gets stuck over "socially purposive" Whatever our own views may be I do not think that is quite what you might call statutory language There is nothing to preclude applications which propose any or all of the things we have discussed, but we will handicap the growth of independent radio services if we make them mandatory requirements.
  The noble Baroness, Lady David, referred to students and student radio. The Bill certainly does nothing to hinder student radio. Amendment No. 217 is about local radio, and I can assure her that every effort will be made to keep students' radio licence fees as low as can reasonably be justified, but that will be a matter for the Radio Authority. She asked me a number of specific questions about student radio. If she will permit me, I should like to find out about those in detail and write to her about them.
  The Government fully support the concept of community radio, which we believe will be given ample opportunity to take its place on the broadcasting scene as a result of this Bill, but I do not consider that these amendments would enhance the position of community radio. I hope that the noble Lord, Lord Bonham-Carter, will see it that way too.
  Lord Bonham-Carter: My Lords, I am grateful to the noble Earl for what he has said about these amendments and I am sorry that I failed to persuade him of the importance and significance of defining community radio separately and distinct from local radio. This is not just a bee in my bonnet. I am acting on the experience of community radio not only in this country but in America, Australia, Italy and France. In all cases experience has indicated that special treatment and a special definition of community radio is desirable and, in the view of some people essential if it is to survive.
  I am resting not only on the experience of those countries. I am resting also on the advice given to the Government by the shadow chairman designate of the Radio Authority, who says the same thing. It is therefore rather disappointing if I failed to persuade

  751
  the noble Earl that my view is not eccentric. It is his view which is slightly eccentric when he thinks that this is a load of unnecessary verbiage.
  As for the definition of community radio which I used and which he found so difficult to understand —that is, the meaning of socially purposive and open access—I suggest that he should discuss the meaning of those words with the shadow chairman of the Radio Authority whose words they are and whose definition of community radio it is.
  Earl Ferrers: My Lords, if I may interrupt the noble Lord I shall be delighted to discuss this matter with the noble Lord who is the shadow chairman of the Radio Authority, but what one discusses in conversation does not necessarily make for good statutory language.
  Lord Bonham-Carter: My Lords, I am not saying that it should be written into the statute. I am saying that that definition is a good working definition of community radio However, I am sorry if I have failed to persuade the Minister. In the light of having failed in this second attempt to move him, I beg leave to withdraw the amendment.
  Amendment by leave, withdrawn.
  Earl Ferrers Earl Ferrers moved Amendment No 215:
  Page 71 line 39 leave out ("within a particular institution, or at") and insert ("for a particular establishment or other defined location or").
  The noble Earl said: My Lords, this amendment fulfils an undertaking which was given by my right honourable friend Mr. Mellor in another place to look again at the definition of a restricted service. We have also taken account of representations from the shadow Radio Authority on this matter. We have concluded that the definition which the Bill currently offers would not be wide enough to allow the Radio Authority to deal with the full range of applications which might reasonably be considered for restricted service licences. At the same time, the Bill needs to maintain a clear distinction between restricted services and local services since restricted services may be licensed more readily without advertisement or the need for the full extent of regulation which the Bill provides for local services. We believe that this amendment will provide the necessary flexibility without blurring the distinction between local and restricted radio services. I beg to move.
  Clause 84 [Licensing functions of Authority]:
  Earl Ferrers Earl Ferrers moved Amendment No. 216:
  Page 72 line 23, leave out ("other than") and insert ("which in the opinion of the Authority is not").
  The noble Earl said: My Lords, in moving Amendment No. 216 I shall speak also to Amendments Nos. 220, 220A and 220B.
  The policy in the Bill is that the three new national radio stations should genuinely be different from one another, and that one of the three should be mainly speech based and another should consist wholly or mainly of genuinely non-pop music. This policy was
  752
  introduced into the Bill in response to points raised in Committee in another place, and has been widely welcomed both there and in your Lordship's House.
  The government amendments simply seek to give more complete effect to that policy by spelling out what counts as pop music for the purposes of deciding which proposals would not be eligible to be considered for the non-pop licence. Curiously enough, the need to spell this out has been highlighted by an argument that a service which is based on the broadcasting of rock music as opposed to pop music would be eligible to apply for the non-pop licence.
  It has been argued that rock music is not the same thing as pop music. I do not know whether it is or is not. But I do know that it would be an odd result—and not, I am sure what your Lordships intended—if a rock music or similar application were able to win the licence for the non-pop service. Apart from the fact that that would be a perverse outcome, the result would also almost certainly be that two of the new national services were not genuinely different from each other, given that a rock or pop-based service will be well placed to win the third, unrestricted licence.
  It is important to be clear that we are not in this amendment seeking to victimise either rock music bids or rock music fans. We are not saying that a rock-based proposal will not be eligible for any national radio licence. It would in fact be well placed to bid for the one out of the three licences for which eligibility is unrestricted. All we are saying is that a rock or pop-based application should not try to pretend to be eligible for a licence specifically designated as non-pop.
  We have consulted the chairman and director of the shadow Radio Authority about the definition of pop music contained in the amendment and have modified it slightly to take account of their comments. I understand that they are content with it.
  The somewhat intricate style of the amendment was thought appropriate because the parliamentary draftsman thought that my definition of "pop" which was thump, thump, thump, would not be parliamentary or statutorily adequate.
  It will be clear from what I have said that I cannot recommend acceptance of the amendments in the name of the noble Lord, Lord Cobbold. They would have the effect that an application could be considered for the non-pop licence, even if it concentrated on rock or other pop music, provided that that was not Top Forty music. I do not believe that that is what either most of your Lordships or the other place had in mind for the non-pop service. Such a definition would not be a move in the direction of genuine diversity of national radio services. For those reasons, I cannot advise your Lordships to accept Amendments Nos. 220A and 220B, but I can advise your Lordships to accept the amendments that stand in my name. I beg to move.
  The Deputy Speaker (Lord Nugent of Guildford): My Lords, as the noble Earl wanted to move

  753
  Amendment No. 220, perhaps we should discuss the first amendment of the noble Lord, Lord Cobbold —Amendment No. 220A.
  The Viscount of Falkland: My Lords, perhaps I may speak to Amendments Nos. 220A and 220B on behalf of my noble friend Lord Cobbold who is a considerable expert on the subject that we are discussing. My name has been left off Amendment No. 220B as a result of a printing error, but the two amendments go together.
  The definition of what is pop music and what is not pop music is difficult. It is probably a very British problem that we have a generic name for a certain type of music, known as pop music, which clearly derived originally from the words "popular" and "music". Pop music means something rather different. The Government have quite rightly put down a definition of pop music. The music industry and music lovers were surprised at the duties that were originally proposed to be laid out in statute for the authority under Clause 84. It was clear that a clarification of the definition of pop music was needed.
  The amendments that I put before your Lordships today seek to amend the new definition which has been tabled by the Government and described by the Minister. I am always amused and charmed by the noble Earl's clear explanations but on this occasion he has led us into more confusion. I would not say that there was a machiavellian intention here, but there is some intention to fog the issue.
  In his brief notes to me my noble friend Lord Cobbold indicated that the age of 55 was perhaps the upper limit for those who might be interested in rock music. As I am 55 years old and am interested in rock music I wonder whether some transformation will take place over the next 12 months. I do not think that age is of any importance here.
  Pop music, as is understood by the music industry in this country and in the United States, now has a clear definition. There is a clear understanding that pop music as such is music which is recorded in single versions mainly for a teenage market and which forms part of what is generally known as the Top of the Pops table It is generally accepted that pop music is a single which is part of a market-based table or chart of 40. That may be even more esoteric to your Lordships, but those are the facts of the matter.
  It is well known that in this country there are other forms of music which have been grouped by the Government, or those who are helping draw up the legislation, with those singles in the charts that I have described. That includes rock music to which the noble Earl referred. I believe that his description of rock music was thump, thump. I agree that there is an element of thump, thump—
  445 pm
  Earl Ferrers: My Lords, I must interrupt the noble Viscount. He is wrong. I said thump, thump, thump.
  The Viscount of Falkland: My Lords, I sympathise with the noble Earl. I live in an area where there can sometimes be even more thumps during the evening
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  which helps to create opposition to that kind of music. There is a thumping element in that kind of music. That is reflected by the words in the government amendment:
  "characterised by a strong rhythmic element and a reliance on electronic amplification for their performance".
  In this country the creative side, particularly of what is generally known as rock music, is a successful industry. It has earned many millions of dollars for this country in terms of exports. Rock music is growing in popularity here and abroad, including outside the English-speaking area. I believe that I can say without contradiction that we in the United Kingdom lead the way in that type of music.
  Noble Lords may wonder about the kind of music to which I refer. I shall simply mention two names. In this country there is an artist, who is I believe very popular with the Royal Family, called Phil Collins. He is an extremely successful rock artist and something of a film actor. His albums come within the term "rock". They are extremely successful and popular. In the United States there is a recording artist called Bruce Springsteen, known popularly as The Boss, who is a world-renowned artist in this kind of music. Sales of his records continue to boom.
  Rock goes into other areas some of which are perhaps more limited in appeal. However, there is a world of difference between pop music and rock music and indeed many other forms of music which have the same thump, thump element.
  Earl Ferrers: Thump, thump, thump, my Lords.
  The Viscount of Falkland: My Lords I apologise; a thump, thump, thump element. That includes a great deal of ethnic music such as music of West Indian origin.
  The Government's definition of pop music excludes all music except classical music for the purposes of granting the franchise or licence. If that is the intention, why did they not just say, "In terms of consumer choice, we need a classical commercial station"? However, I do not have to remind noble Lords who are, like me, interested in classical music that we have perhaps one of the finest classical music stations in the world—Radio 3—which serves classical music well. It may well be that there is room for a further channel.
  It must be said that the kind of music I described, which is so successful and popular, is very poorly exposed on the radio waves in this country. I do not believe that there is another country in the English-speaking world and perhaps not in Europe where rock music and music of the kind I have described has so little performance on the radio waves.
  If the amendment were to be incorporated into the Bill and pop music included all those other kinds of music and any bidder for the franchise was not eligible, it would have a devastating effect on one of our major cultural and commercial activities. I urge the noble Earl to consider that and I shall be interested to hear his reaction to my remarks. I hope I have made my meaning clear. In terms of the economic performance, the increase in sales one could

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  expect from radio exposure are considerable. An already successful export from this country could expect to become even more successful.
  If it is the intention of the Government to introduce another classical commercial station I should say that there is no record of a classical commercial station ever being viable or successful. That is a fact of life. It does not mean that there should not be such a station, but I ask noble Lords to bear that in mind.
  If choice and the wishes of the consumer are to be taken into account, why do the Government not allow the tender to go to the best offer? If the Government accept my definition of the difference between pop music and other kinds of music which are not strictly pop, there would be no harm in extracting what I described as chart music. After all, anybody who listens to commercial radio in their car or at home will find disc jockeys introducing mostly pop singles, which fall into the category I described.
  The driving force behind these amendments is the desire to correct the definition which the Government gave. To incorporate a definition so loose and inaccurate which does not represent the reality of what is happening in the world is undesirable and extremely bizarre. It must be strange to young people—although not al I young people like that kind of music—to feel that behind government legislation are people who have what might be described as an old fogey attitude towards popular music and who actually believe that pop music includes all the kinds of music I described —West Indian and all the other kinds including that referred to as "rock".
  That is all I wish to say. There is a great gap between the noble Earl and myself, but I hope we may come closer as a result of this exchange.
  The Deputy Speaker: My Lords as the noble Viscount has already engaged in his very interesting speech I shall allow the debate to continue. What has happened is that the House is debating the group of amendments to which the noble Earl, Lord Ferrers, addressed himself, Amendments Nos. 216, 220, 220A and 220B. I shall put those amendments formally later, but the first vote will be taken on Amendment No. 216.
  Lord Birkett: My Lords, I hope noble Lords will forgive me for saying that I regret any amendment to this Bill being necessary at all. I hoped that the barriers were breaking down between pop and rock, rock and jazz, jazz and classical music; between all kinds of music. I hoped that those borders were no longer necessary.
  Recently we experienced the amazing fact that Pavarotti was top of the charts with a great classical aria by Puccini. That astounded everybody. I am happy to say that Domingo and Carreras were also top of the charts with the same aria. A few years ago that would have been thought impossible. If that is not a breaking down of the barriers, I do not known what is.
  I hope that whoever obtains the licence described in Clause 84(2) (ii) will pay scant attention to definitions. They do not help music at all. I doubt that I shall
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  single-handedly be able to persuade your Lordships not to support either the amendment of the noble Earl or the amendment of the noble Viscount, but that is my view.
  Lord Ardwick: My Lords, this great movement which inspires so many of us is eloquent about most current controversies but has not ventured to take part in the one concerning rock and pop. I am therefore only able to speak personally.
  I completely support the noble Earl, Lord Ferrers. I do not see why it is not possible to have a channel which incorporates pop, jazz rock, Latin American and African music all mixed up. The object of such a channel is not to be a fillip for any specific record or music industry; the intention is to please listeners.
  The suggestion that a non-pop channel must be like Radio 3 is a false argument. There are scores of books and records of music which cannot strictly be defined as classical; there are programmes which are not classical. There has always been "end-of-the-pier" music. There have always been popular concerts such as the Brand-Lane concerts we used to have in Manchester where gems of opera would be sung. That was entirely different to the high class, highbrow, small minority audience of Radio 3. That channel should be kept as the Government intend.
  The authority should encourage a good mix of modern popular music in its broadest sense for the channel which has been wrongly described as "pop". There is nothing worse than a channel entirely devoted to the top pop 40. I would not wish the ears of my grandchildren to be assaulted by that. I like rock, but find that a very little of it goes a long way.
  Lord Selsdon: My Lords, I am probably the least qualified Member of your Lordships' House to intervene on the subject of music. It was by accident rather than design that for a brief moment I strayed into the world of concerts and concert promotion to find that all my prejudices were turned upside down. I do not understand why at this time my noble friend Lord Ferrers is seeking to define something so obviously Indefinable.
  I believe that there are 87 different definitions of music. The first definition is "early"; the second is "first classical of the Viennese school". Some time later when popular music began, there came "classical of the second Viennese school". We are speaking of things that endure the test of time. It is a matter of tests and time and tastes.
  If I remember correctly, what usually happens when one begins listening to music is that one listens to something that has already come of age. Those of us brought up in the impoverished 'fifties and who were bachelors in the swinging 'sixties were forced initially to listen to the music of the 'thirties and 'twenties on old poor quality 78 records. My own ended up as substitute clay pigeons out of some top floor window many years later.
  Those of your Lordships who were brought up in the 'thirties will undoubtedly remember that Stravinsky's "Rite of Spring" was disrupted in 1913 during its first concert but then became extremely

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  popular music. I believe that Tchaikovsky's piano concerto had the same reception. It was rejected by the pianist on the occasion of its first performance.
  What I am trying to say is that I believe it is utterly impossible to define in legislation what is a changing, shifting taste. Some of us have had the privilege—I did not think I would use the word "privilege"—of going to observe mass gatherings, a form of political rally, at Wembley. I saw there someone I thought was a boxer but who turned out to be a singer. I thought that he was aged 20 but it transpired he was older than myself. It has been amazing watching the change in the people who go to these places and obtain enjoyment.
  When does classical music become popular or popular music classic? We have been given the example of Pavarotti. It is amazing how one man singing an old aria can change people's attitude overnight. For a government to attempt to define music leads one to think of when Nazi Germany banned jazz because it was associated with black people. Perhaps we are forgetting the ethnic minorities. I would not dare to attempt such a definition. One reason why authorities are created is to distance government from embarrassing situations that might even lose votes. The creation of the authority is such that we should leave this matter of definition to the authority and not to government.
  5 p.m.
  Lord Donaldson of Kingsbridge: My Lords, I support the noble Lord who has just spoken. It seems to me as one who has never, and never intends, to listen to pop or rock music that people should listen to what they want to hear. Nobody should tell them what it is called. The noble Lord said that in the 'fifties people were unlucky to have to listen to the music of the 'thirties. Well, I come from the 'thirties and I think we were jolly lucky to be able to listen to Chicago school jazz, and so on, which is now quite dead.
  There cannot be any laying down of music in definitions. Surely a music programme will state that it is going to broadcast, say, Beethoven, Bach, Haydn and so on, or another programme will state that it will be broadcasting—I cannot remember any of the names—music that is pop, rock or whatever it chooses. It would appear to me that we are going into the sort of detail that is absolutely not the business of government and never should be.
  Lord Colwyn: My Lords, I speak as a director of Jazz FM, the radio jazz station in London, and as perhaps a rather ageing musician who still plays a little rock and roll. Jazz music is becoming much more popular. It does occasionally go thump, thump, thump and is certainly recognised at times by strong rhythmic elements and reliance on electronic amplification, but I should like the Minister to confirm that jazz will not be prevented from making a bid for one of the new national radio franchises.
  Lord Jenkins of Putney: My Lords, I think I understand the reasons why the noble Earl has tabled this amendment. I am not absolutely sure, but I think I do. My understanding of the position is that the aim
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  of the clause is admirable and that the object of the exercise is to ensure that there are some openings, some facility or arrangement to resist the inexorable march of the most popular types of music and to preserve an area in which some classical music and other programmes will be heard. The clause provides that the authority shall ensure that,
  "one is a service the greater part of which consists in the broadcasting of spoken material".
  That is quite clear and that caters for one section. The clause then states that,
  "another is a service which consists, wholly or mainly, in the broadcasting of music other than pop music".
  That, too, is quite clear because if one did not have such legislation there would be nothing but pop music. That is obvious.
  However, why do we go to the further stage of defining pop music? Here I believe that we run into difficulties. I listened to the noble Earl but I am not sure whether I actually got the point. For what reason has he decided to include the definition? I believe that the answer is that within the range of pop music there are elements who no longer consider themselves to be pop. Therefore, they want to be free from the exclusion, so to speak, which is made for pop music generally. For example, I agree that jazz is not pop music in the sense that it is the most popular but is perhaps the taste of a declining minority.
  Music goes into popular areas and then declines, but revivals take place. One cannot be sure at any time as to what is and what is not pop. That is where we run into the difficulty of definition. We have in the Bill a definition which is current at the moment. On the whole, provided one is sure that the purpose of the Bill is served—in other words, that there are two areas which are preserved for the less popular tastes, as I believe is already the case—I should have thought that the original definition of pop is best left as it is and the interpretation left to the authority. That would appear to me to be the right decision. Therefore, I still do not understand—it is possible that the noble Earl may yet convince me—why it has been felt necessary to include the definition in the Bill and why it could not be arranged either that this could be done by secondary legislation or left to the authority. Perhaps when the noble Earl replies he will explain a little further to my ageing and uncomprehending mind what it is that forced him to introduce the amendment.
  Earl Ferrers: My Lords, I knew that we would run into the sands on this amendment. The noble Lord, Lord Birkett, said that he wished to goodness we did not have to define pop music. My noble friend Lord Selsdon said the same and the noble Lord, Lord Jenkins of Putney, said that he could not understand it. Frankly, we wish that we did not have to define it because we knew the trouble that it would cause.
  However, the main reason is that of the three national stations one will be speech based, one non-pop based and one other. The chances are that the other will turn out to be pop because it is popular. It transpired that there were those who thought that they could bid for the non-pop station with rock music. To many people rock is similar to pop. There

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  are those who have rock music, soul music or heavy metal—that is another form of music; there are many types of music—and if those people are going to bid for the non-pop licence we would end up with two stations broadcasting what is virtually pop music. Therefore, much to our regret we found it appropriate to seek to define pop.
  My noble friend Lord Selsdon said in an empirical way that it is impossible to define pop, but all I can say to that is that we have done it. If my noble friend asks how we have done it I can tell him that we consulted Collins English dictionary. Therefore, we are not treading new ground.
  The noble Viscount, Lord Falkland, hoped that we would be able to lessen the distance between us. I do not know that there is all that much distance between us. We have nothing against pop music. All we are saying is that it should be restricted to the third channel and not be broadcast on other channels which are supposed to be for non-pop music.
  I was a little surprised when the noble Viscount said that there would be nothing but classical music on the station. Musically speaking, his mind must be a cultural desert if he thinks that there is nothing between classical music and pop. In fact there are many forms of light music—easy listening music, operettas, jazz, and so on—all of which are different gradations between strict classical and pop music. That is why we believe that it is not desirable to have that sort of music on two of the three channels.
  The noble Viscount, Lord Falkland, also referred to Phil Collins and Bruce Springsteen as examples of rock musicians. That highlights the problems with Amendments Nos. 220A and 220B since both those gentlemen have also regularly had pop singles in the top 40 records. So any amendment that is based on this definition is on weak ground. The noble Lord, Lord 13irkett, referred to the fact of how wonderful it was that Domingo and others have appeared in the top 40 record charts. That is fine and that is what we have tried to avoid defining; namely, that pop music does not mean those who are in the top 40. It means the curious arhythmical arrangement which is expressed in the amendment which I tabled.
  I hope your Lordships will realise that there is nothing sinister in this amendment. We are merely trying to preserve the ears of the grandchildren of the noble Lord, Lord Ardwick. If they wish to have their ears assaulted they can easily do so by turning on the Third Programme, but they will not have to turn on the Second and the Third Programme. I hope with that definition—or at least an explanation—your Lordships will agree that this amendment is regrettably desirable.
  Baroness David Baroness David moved Amendment No. 217:
  Page 72, line 24, at end insert (", including community services, which under this part shall be defined as non-profit distributing services which broadcast minority appeal, socially purposive, open access programmes.").
  The noble Baroness said: My Lords, the noble Earl very kindly said that he would write to me in answer
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  to some of the questions that I raised when I spoke about student radio in connection with this amendment. Will he be kind enough to let me have that letter in good time before the next stage of the Bill? I beg to move.
  Earl Ferrers: My Lords, I shall certainly do my best to achieve that. If I may use a Midlands expression, I shall have to make haste. I shall do my best to see that that is done.
  Baroness David: My Lords, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Birk Baroness Birk moved Amendment No. 218:
  Page 72, line 29, after ("whole")") insert ("are of high quality and").
  The noble Baroness said: My Lords, in moving this amendment, I wish to speak also to Amendment No. 262. We return to the question of quality which was discussed both at Second Reading and at Committee stage. At Committee stage Amendments Nos. 231 and 232 proposed that national and local services separately should be of high quality. This amendment eases the situation because it proposes the provision of licensed services which, taken as a whole, are of high quality. That would cover both national and local radio. It will also balance out the high quality requirement over the whole range of services rather than requiring all services specifically to be of high quality.
  The wording of the amendment matches that contained in Clause 2(2)(b) almost exactly in requiring high quality services for television taken as a whole. Therefore, we feel that the Radio Authority should be under the same general duty as the ITC. Listeners are entitled to high quality in the same manner as viewers. While high quality may not be achieved in every radio service, the principle of high quality in broadcasting across a range of services should be maintained for radio as well as television. Though there are clearly differences in the need for regulation between radio and television, the principle of high quality is something which listeners demand and deserve as much as viewers. It is a matter which some of us have been trying to have included in the Bill, sometimes with a modicum of success and sometimes not.
  I now turn to Amendment No. 262. It asserts that licence conditions should ensure that the quality as well as the character of licensed services is maintained. The authority should be placed under a duty to secure that the quality of radio services is kept up. That would supplement the need for the authority to secure high quality national and local radio services taken as a whole. Even if earlier amendments to secure a high quality requirement in independent radio services are unacceptable, this amendment reasserts that the maintenance of quality should be a primary responsibility of the authority. I find it hard to see how anyone can disagree with that reasonable proposition.
  If the authority is only under an obligation to maintain the character of radio services, it suggests that it merely has to monitor the services and not judge whether they continue to be good, bad or

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  indifferent. For the authority to be able to monitor services effectively, it must be able to apply some form of judgment, however subjective, as to the maintenance of the quality of radio services. In the end, it comes down to the fact that all these judgments must have an element of subjectivity in them.
  It is interesting to note that in the latest draft of the Bill, as amended in Committee, there is an interesting amendment which was not debated by noble Lords. In the heading in the margin relating to Clause 105 the word "character" appears. That word replaces the word "quality" which appeared. The three previous versions of the Bill all contained the heading:
  "Requirements as to quality and coverage of national and local services".
  The heading in the Bill now reads:
  "Requirements as to character and coverage of national and local services".
  Is that a small error or has it been determined? Is there something even more sinister to it? I beg to move.
  5.15 p.m.
  Lord Bonham-Carter: My Lords, I support the noble Baroness, Lady Birk, in moving this amendment. We debated similar amendments at some length at Committee stage. It seemed that on that occasion there were two misunderstandings as to what we were talking about. One misunderstanding was that, in some way or other, quality meant highbrow. The noble Earl, Lord Onslow, said:
  "Members of the Committee opposite say that people must have quality forced down their throats. Surely people are capable of knowing the difference between what is quality and what is not".—[Official Report, 24/7/90; col. 1397.]
  I wish to put it on record that in my view, and I think that of most noble Lords on this side of the House, quality does not mean highbrow, but high quality of whatever order we are concerned with. For example, the debate which we have just had I found somewhat mystifying. There can be high quality jazz and high quality pop besides high quality rock and high or low quality opera. Therefore, this amendment has nothing to do with the kind of elitist definition of quality. That is important.
  The second misunderstanding was not resolved when it was discussed before. It related to the question of why one should be able to define quality in television which could be included in legislation, but it was impossible to define it or include it in legislation concerned with radio. The noble Earl, Lord Ferrers, said:
  "We must be wary of assuming too quickly that arguments which hold good for television hold equally good for radio. They are not the same. Radio is different. The impact of the spoken word is different from the impact of the screen". [Col. 1398]
  That was in response to a question which I put to him. I asked him: if the ITC can define exceptional quality, why was it impossible for the Radio Authority to define quality?. I am still confused as to why that should be so. The spoken word can be classified as of high quality or of low quality just as much as the visual image that one sees on television. Now that
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  radio is no longer enjoined, as it was in the past, by the public service duties of the 1981 Act, it is all the more important that radio should be enjoined to pursue an objective of high quality. It is primarily for that reason, whether it be local radio or national radio, that we support the amendment.
  Lord Jenkins of Putney: My Lords, I support this highly desirable amendment. It seems to be clear, which is a great merit, and desirable, which is another one. I can see nothing against the amendment and everything in favour of it. I hope the noble Earl will find it possible to accept it.
  Earl Ferrers: My Lords, I always do my best to be as helpful as I can. I can give the noble Baroness some good news and a little bad news. Perhaps I may give the bad news first. For reasons which I shall try to explain, I believe that the good news is rather more significant than the bad news.
  I am afraid that I would not be able to recommend acceptance of the second of the two amendments, Amendment No. 262, which would reinsert a reference to quality in subsection (1) of Clause 105. The noble Baroness wondered whether this was a mistake or whether the words had been smuggled in. At an earlier stage the Government secured deletion of the words "quality and" from this very line of the Bill. We did so on the basis that a reference to quality here added nothing and was misleading. It is important to remember that this subsection is concerned not with the licensing criteria to be followed by the Radio Authority, or even with the general duties of the authority, but simply with the means of ensuring that a licensed radio service lives up to its promise of performance and does not depart from its proposed programming remit. The reference to quality in the original version of this subsection of the Bill therefore meant no more than that a station had to go on being the sort of station which it had promised to be. It therefore did not add anything significant to the words "the character of the licensed service". This conclusion is reinforced by the fact that there are no quality criteria—as opposed to diversity criteria—in the licensing tests for radio stations. It therefore continues to be the case that no useful purpose would be served by reinstating the reference to quality in this subsection. Indeed, it would be misleading. I know that this point of view is shared by the shadow Radio Authority.
  I am happy to say that I can accept the proposed amendment in line 29 on page 72 to Clause 84. The Government have consistently been reluctant to import subjective quality criteria into the licensing tests for either national or local radio. We have been influenced by the considerations that radio is different from television; that there would be problems in introducing subjective regulatory judgments about quality into a licensing process which is based instead on the idea of diversity and expanding listener choice; that the Radio Authority itself has no wish to be put in a position of making such judgments; and that excessive quality requirements could seriously impede the growth of independent radio, for which there is great potential. This amendment, however, does not

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  seek to introduce a first order quality criterion into the licensing process. Instead it operates on the general duty c f the Radio Authority as to how it discharges its licensing functions. It would require it to facilitate the provision of licensed services which, taken as a whole, are of high quality and offer a wide range of programmes calculated to appeal to a variety of tastes and interests. Such a general duty could not override the specific licensing criteria for national and local radio contained in Clauses 97 and 104 respectively, and both these clauses would continue not to include a quality requirement.
  That does not mean that the proposed amendment would not have significant effect. If, for instance, the Radio Authority were to consider that two or more applications for a particular local radio licence satisfied the local radio licensing criteria equally well, it would be able, if this amendment were made, to settle the issue by opting to license the proposed service which it considered was best in terms of the across-the-board quality of radio services. The amendment would also mean that exceptional quality differences could be regarded by the Radio Authority as a relevant factor in any consideration of whether exceptional circumstances applied in the licensing of national radio services.
  The Government naturally see force in the argument that it would be strange if, in carrying out its general duties, the Radio Authority had no obligation to have a care for the quality of independent radio services taken as a whole. In the light of my acceptance of the first amendment, I hope that the noble Baroness will feel able to withdraw the second one.
  Baroness Birk: My Lords, I am quite delighted that the Minister has been able to accept the first amendment, which is by far the most important of the two as it deals plainly and centrally with the concept of quality. In that event I shall not move Amendment No. 2.52 when we come to it.
  Lord Bonham-Carter Lord Bonham-Carter moved Amendment No. 219:
  Page 72, line 32, at end insert:
  "(3A) The Authority may use any of its revenues for the purpose of establishing or maintaining services pursuant for the purpose of subsections 2 and 3 above, if otherwise a service worthy of being established or maintained would not be so established or maintained.").
  The noble Lord said: My Lords, the House will remember that the noble Earl, Lord Stockton, withdrew his amendment in favour of Amendment No. 219, which was our version of the "radio fund", if I may put it that way. It allows the Radio Authority to use its revenues if a service worthy of being established or maintained would otherwise not be so established or maintained. The amendment gives the Radio Authority that right; it does not instruct it to do so.
  Secondly, it does not propose a permanent subsidy. It seeks to offer help in getting over a difficult moment. Thirdly, the noble Lord, Lord Chalfont, said that if the money came from the Radio Authority's funds, struggling stations would be helped by successful stations. That is indeed true. That is the only way it
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  can work. Almost all public funding means that the more successful help the financially less successful. I see nothing wrong with that any more than I see anything wrong in principle in a cross-subsidy.
  If indeed we want to will the end, which is a thriving local radio network, we must will the means, especially at this time, by helping them to get over initial difficulties. In view of the noble Earl's response to the proposal, I feel that I must test the opinion of the House.
  Earl Ferrers: My Lords, we discussed this amendment fairly fully with Amendment No. 210. I am disappointed that the noble Lord says that he wants to test the opinion of the House. However, he is perfectly entitled to do so if that is what he wishes. We must be perfectly clear what he is doing. He is suggesting that the Radio Authority should appoint a body of people who would work at the taxpayers' expense to set up radio stations in places where the demand would not otherwise support a service. These stations would operate without fear of competition since they would be securely funded by public money. That would not be consistent with the authority's duty to try to ensure fair and effective competition.
  The House will also know that the noble Lord, Lord Chalfont, the chairman of the shadow Radio Authority, has himself said that he would not welcome this. Where will the money come from? It will come from the licence holder because the Radio Authority has no money. That will mean, as the noble Lord, Lord Bonham-Carter, quite openly admitted, that the successful licensees will be obliged to pay money—almost, as it were, a tax—into this fund which will then be distributed, by this body of people set up at the taxpayers' expense, to those proposed licensees who could not manage without it and for whom, in a straightforward commercial transaction, there would be no call. That would not be suitable and I cannot advise the House to accept the amendment.
  5.30 p.m.
  On Question, Whether the said amendment (No. 219) shall be agreed to?
  Their Lordships divided: Contents, 76; Not-Contents, 124.
  Resolved in the negative and amendment disagreed to accordingly.
  5.38 p.m.
  Earl Ferrers Earl Ferrers moved Amendment No. 220:
  Page 72, line 45, at end insert:
  (5A) In subsection (2) (a) (ii) "pop music" includes rock music and other kinds of modern popular music which are characterised by a strong rhythmic element and a reliance on electronic amplification for their performance (whether or not, in the case of any particular piece of rock or other such music, the music in question enjoys a current popularity as measured by the number of recordings sold).").
  The noble Earl said: My Lords, I spoke to this amendment when moving Amendment No. 216. I beg to move.
  The Viscount of Falkland The Viscount of Falkland had given notice of his intention to move, as amendments to Amendment No. 220, Amendments Nos. 220A and 220B;
  Line 5, leave out ("whether or not") and insert ("so long as").
  Line 6, leave out ("enjoys a current popularity as measured by the number of recordings sold") and insert ("has at any time attained a position in the top forty of a sales-based singles chart selected by the Authority.").
  The noble Viscount said: My Lords, I have already spoken to these two amendments; indeed, we had a very useful debate on the topic. Despite the fact that we have not moved any further forward in the matter, I have no intention of dividing the House because I do not think that many noble Lords understood the arguments. However, I reserve the right to return to the matter at a later stage of the Bill's proceedings if we manage to find a way of getting through that morass. Therefore, I shall not move the amendments.
  [Amendments Nos. 220A and 220B, as amendments to Amendment No. 220, not moved.]
  On Question, Amendment No. 220 agreed to.
  Earl Ferrers Earl Ferrers moved Amendment No. 221:
  Page 73, line 24, after ("87(1)") insert ("or (2) (b) or (c)").
  The noble Earl said: My Lords, this is a minor technical amendment to make clear that nothing in Part III of the Bill should be taken as affecting the Radio Authority's operation of Clause 87(2) (b) and (c). I beg to move.
  On Question, amendment agreed to.
  Clause 86 [General licence conditions]:
  Lord Bonham-Carter Lord Bonham-Carter moved Amendment No. 222:
  Page 74, line 7, at end insert:
  ("() conditions requiring that the costs incurred in respect of the broadcasting services (taken as a whole) are shared by the licence holders in such manner as may be approved by the Secretary of State:").
  The noble Lord said: My Lords, the amendment is another attempt on our part to ensure that the rural areas do not lose out as a result of the privatisation of the transmission system. The Bill will end the cross-subsidy arrangements by which the larger and cheaper to run stations such as Capital provided funding for the smaller stations serving far-flung areas

  767
  such as the Highlands. When my noble friend Lord Thomson spoke to a similar amendment in Committee, the Minister said:
  "The noble Lord is on to a fair point. I shall consider what he and other noble Lords have said".—[Official Report, 24/7/90; col. 1425.]
  I therefore look forward anxiously to hearing to what conclusions the Minister's considerations have led him.
  As I understand it, the Government have accepted the fact that stations in areas such as the Highlands, Cumbria or the South-West are more expensive to provide television services for than, for instance, the City. My noble friend gave the example of London which is dealt with by one transmitter and an area in Scotland which had to have 17 transmitters so that the smaller population could receive a decent service.
  Therefore the Government in their wisdom - I say that in all seriousness—agreed to a mechanism whereby the transmission system in those areas could be assisted to provide a service to the public which the public deserve. They have not done that in the case of radio. For the life of me, I cannot understand why, became they admit, as I understand it, that unless something of that type is arranged large parts of the country will be unable to receive local radio. National radio stations will not cover more than 70 per cent. to 80 per cent. of the country. There will not be the kind of universal radio coverage that the BBC provides.
  At present, if one looks at a radio map of the South -West, Mid-Wales, Cumbria or much of rural Scotland, one will find that they are without local stations and are known as what are called white areas. Increased costs following the privatisation of the transmission services and the ending of subsidies will have two results. First, it will make some existing stations cease to be viable: they will go out of business; and, secondly, it will mean that those white areas will not b filled in. No one disputes either of those propositions. The dispute is about how important that is and whether those people deserve, as a public service, to receive a better service than they will.
  In the amendment we propose a way to deal with that problem. Unless the Government accept that in this case a cross-subsidy is necessary in the public interest, the great radio revolution that they have launched will, for rural areas, be a revolution in the sense that in some cases they will be deprived of services which they have been receiving and in other cases they will never receive the services that they might receive. It is for that reason I feel that the amendment is a reasonable one. Having examined the points made in Committee, which I have not on the whole repeated, I hope that the Minister has come to a positive and constructive conclusion. I beg to move.
  5.45 p m.
  Baroness Birk: My Lords, I support the noble Lord, Lord Bonham-Carter. There is a real problem, especially in rural and outlying regions, because once the transmission is privatised the cost will be disproportionately high for many of those areas. The amendment would help to guarantee maximum coverage for listeners in all areas and ensure—this is
  768
  most important—that a minority of the audience is not disadvantaged by the fact that some radio services would have to pass on excessively high transmission costs.
  It is a difficult problem. Everything possible must be done to minimise the high costs that might be fastened on to some people merely because of the area in which they live.
  Earl Ferrers: My Lords, I did say in Committee that the noble Lord was on a fair point. I have considered it. The amendment would reintroduce a radio cross-subsidy system of a type which has proved unpopular, even under the present legislation, and which had been consistently opposed by much of the radio industry.
  There will be much less justification for having such cross-subsidy under the new regime proposed in the Bill than there has been until now. In future there will be many more services, and some areas and localities will have a whole range of independent local and community radio stations. In a more competitive environment, in which new entrants can enjoy lower start-up costs as a result of the lighter touch regulation, it would be that much more unfair to expect some stations to subsidise others. It would run contrary to the Green Paper proposals and to the Government's wider philosophy to force certain radio stations to prop up stations which would not otherwise be viable. That does not mean that areas which at present have no independent radio must continue in this state and will never have it. They can start up much more easily and cheaply than they can now. Of course frequency availability is a great deal better—the noble Baroness will take this point into account—in rural areas than it is in urban areas.
  It has been argued that radio and television should be treated similarly for the purposes of transmission cross-subsidy; but the differences greatly outweigh the similarities. There is scope for many more radio than terrestrial television services. The need for relay transmitters is nowhere near as great for radio as for television, and radio transmission costs are far lower. Independent radio has historically not achieved, or even aspired to, universal geographical coverage of the UK in the way that ITV has. Radio stations will have much greater freedom to determine their own transmission costs than Channel 3 companies.
  Our approach is to give radio stations greater freedom to fix their costs, while at the same time providing an agreed transitional package to enable existing stations to adjust to the new world in which they will be. This package has been carefully worked out and agreed by the Government, the shadow Radio Authority and the industry. The existing stations will have the opportunity of entering into transitional transmission contracts with the IBA's privatised transmission successor. During the transitional period, those stations whose transmission costs will exceed what would have been their rentals will not have to pay any more than that latter amount.
  Stations will have the opportunity of buying from the IBA transmitting equipment such as transmitters

  769
  and aerials. That is for the transitional period. I suggest that once we get into the new period and new regime, it would be undesirable to perpetuate a system which, as I said, has been fairly unpopular.
  Lord Bonham-Carter: My Lords, I thank the noble Earl for his reply, but I am naturally disappointed that his considerations have led to such a negative response.
  He must bear in mind the fact that in remote rural areas local radio is particularly important. That is one reason why this amendment has a genuine and constructive approach. The noble Earl referred to the fact that cost subsidy was somewhat unpopular. I assume that he was speaking of its unpopularity with the more prosperous radio stations rather than with the listeners who received local radio and who will not in the future have an opportunity of receiving it because of the abandonment of this principle.
  As I understand it, the noble Earl's objection to cross-subsidy is one of principle. That being the case, I find that the differences which he draws between the transmission arrangements for radio and television are somewhat tenuous arguments against providing the same kind of cross-subsidy for radio. Of course, it would be much cheaper for radio than for television. Therefore, it is with disappointment that I listened to the Minister's reply; but in the light of it, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Colwyn Lord Colwyn moved Amendment No. 222A:
  Page 74, line 11, at end insert ("and requiring the licence holder to reimburse to the Authority any costs incurred by the Authority in connection with, or resulting from, a breach of any condition in the licence").
  The noble Lord said: My Lords, I am in some difficulty with Amendment No. 222A. It was tabled in a great hurry last week as I expected it to be discussed last Thursday. Since then, after discussions with the IBA and the Association of Independent Radio Contractors, the amendment has been found to be incomplete and I intend to make some minor changes to it. I seek the permission of the House to withdraw the amendment this afternoon and to reintroduce it on Third Reading.
  However, I feel it may be beneficial to briefly explain the aim of my amendment so that I can have the benefit of advice from my noble friend Lord Ferrers. The amendment concerns the payment of fees to the Radio Authority. Clause 86(4) provides that a tariff fixed by the authority may specify different regulatory fees in relation to different cases or circumstances. Not all the cost elements which need to be taken into account in calculating a general tariff of fees can be quantified with equal certainty. To be specific, the costs of special investigation into programme output in languages other than English and possible contraventions of transmitted signal strength would be relevant to this provision.
  Without the amendment, the Radio Authority might have to inflate the tariff unreasonably to allow for those eventualities in such a way that that would
  770
  compel law-abiding stations to subsidise the costs of policing miscreants. My amendment is designed to permit a general condition in licences entitling the Radio Authority to reimbursement of any costs incurred in connection with or resulting from a breach of the conditions which I have described in the licence.
  Although I intend to withdraw this amendment—and I apologise to the House for taking up a few moments this afternoon—I should be grateful if the Minister could indicate whether he is willing for me to move this amendment on Third Reading. The new words will be available for examination tomorrow afternoon. I beg to move.
  Earl Ferrers: My Lords, my noble friend has explained that he wishes to withdraw this amendment and come back with a modified form of words on Third Reading. We have no difficulty with the aim behind the amendment. If a technically acceptable revised form of words is tabled on Third Reading which has the same effect as this amendment, I expect that I shall have no difficulty in recommending acceptance of such an amendment.
  Lord Colwyn: My Lords, I am very grateful to the Minister and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 87 [Restrictions on the holding of licences]:
  Earl Ferrers Earl Ferrers moved Amendment No. 223:
  Page 76, line 4, after ("shall") insert ("(subject to subsection (3A))").
  The noble Earl said: My Lords, Amendments Nos. 223 and 225 were discussed with earlier Amendments Nos. 11 and 13. I beg to move.
  On Question, amendment agreed to.
  Earl Ferrers Earl Ferrers moved Amendments Nos. 224 and 225:
  Page 76, line 5, at end insert:
  ("(3A) Those provisions shall not so have effect if the Authority decide that it would be desirable to publish a fresh notice under this Part in respect of the grant of a licence, or (as the case may be) a further licence, to provide the service in question.").
  Page 76, line 12, leave out from ("(5)") to ("a") in line 13 and insert ("The Authority shall not serve any such notice on the licence holder unless they have given him").
  On Question, amendments agreed to.
  Clause 89 [General requirements as to licensed services]:
  Earl Ferrers Earl Ferrers moved Amendment No. 226:
  Page 76, line 47, leave out ("and").
  The noble Earl said: My Lords, in moving Amendment No. 226, I shall speak also to Amendment No. 227. These amendments insert a consumer protection requirement relating to the possibility that techniques may be developed for broadcasting subliminal messages in sound transmissions. I have no reason to suppose that any subliminal messages are being broadcast on the radio at the moment. However, it seems sensible to provide a safeguard against any future abuse in the same way as the Bill already does in the case of television. I beg to move.
  On Question, amendment agreed to.
  Earl Ferrers Earl Ferrers moved Amendment No. 227:
  Page 77, line 2, at end insert ("; and
  (c) that its programmes do not include any technique which exploits the possibility of conveying a message to, or otherwise influencing the minds of, persons listening to the programmes without their being aware, or fully aware, of what has occurred.").
  On Question, amendment agreed to.
  Earl Ferrers Earl Ferrers moved Amendment No. 228:
  Page 77, line 7, leave out from ("(a)") to end of line 10 and insert ('the appropriate requirement specified in subsection (2A);").
  The noble Earl said: My Lords, with Amendment No. 228, I shall speak also to Amendments Nos. 229, 230 and 231. I spoke to Amendments Nos. 228, 229, 230, 231, 234 and 235 with Amendment No. 85 which the noble Baroness, Lady Birk, moved last Thursday. With your Lordships' consent, I withdrew Amendment No. 89 and the other associated amendments to Clause 6 which were in my name and the noble Baroness withdrew Amendment No. 85.
  Your Lordships will recall that Amendment No. 89 set out the areas which the ITC's impartiality code should cover. There is no equivalent amendment with a contents list for impartiality for radio. Therefore, I shall move the radio amendments to Clause 89 which were included in the group with Amendment No. 85.
  Amendment No. 230 requires that a national radio service shall be subject to the due impartiality rule rather than the lighter undue prominence test. Amendment No. 231 makes provision for due impartiality to be achieved in a national radio service over a series of programmes rather than the service as a whole. The remainder are consequential amendments. I beg to move.
  Baroness Birk: My Lords, I want to be quite clear on this matter. The Minister's Amendment No. 89 and its consequentials were withdrawn while awaiting the new amendments which the Government wish to put forward on Third Reading. I want to be sure that there is nothing in the amendments which he has just moved regarding radio which is equal to the amendment withdrawn as regards television.
  Earl Ferrers: My Lords, the noble Baroness will recall hat we were discussing the contents list which was to go into the ITC's code of practice. In the general flurry after that debate, a number of amendments which were grouped together were not moved. Those amendments do not refer to the contents list of any code. In other words, the Radio Authority will draw up a code but there will not be a contents list such as suggested by the ITC. Therefore, Amendment No. 89 which was withdrawn does not have a bearing on these amendments.
  On Question, amendment agreed to.
  Earl Ferrers Earl Ferrers moved Amendments Nos. 229 to 231:
  Page 77, line 11, after ("that") insert ("(without prejudice to the generality of subsection (1) (b) or (2A) (a))").
  Page 77, line 22, at end insert:
  ("(2A) The appropriate requirement referred to in subsection(2) (a) is—
  772

  (a) where the licensed service is a national service, that due impartiality is preserved on the part of the person providing the service as respects matters of political or industrial controversy or relating to current political policy;

  (b) where the licensed service is a local, satellite or licensable sound programme service, that undue prominence is not given in its programmes to the views and opinions of particular persons or bodies on such matters.").

  Page 77, line 23, leave out ("(2) (a) to any licensed") and insert ("(2A) (a) to a national service a series of programmes may be considered as a whole; and in applying subsection (2A) (b) to a local, satellite or licensable sound programme").
  On Question, amendments agreed to.
  [Amendments Nos. 232 and 233 not moved.]
  6 p.m.
  Earl Ferrers Earl Ferrers moved Amendments Nos. 234 and 235:
  Page 77, line 26, leave out from ("guidance") to ("and") in line 29 and insert:

  ("(i) as to the rules to be observed in determining what constitutes a series of programmes for the purposes of subsection (3),

  (ii) as to the rules to be observed in other respects in connection with the application of subsection (2A) (a) in relation to a national service, and

  (iii) as to the rules to be observed in connection with the application of subsection (2A) (b) in relation to a local, satellite or licensable sound programme service;").

  Page 77, line 31, at end insert:
  ("and the Authority may make different provision in the code for different cases or circumstances.").
  The noble Earl said: My Lords, Amendment No. 234 was spoken to with Amendment No. 85. I also added some further remarks to Amendment No. 234 just now. I beg to move Amendments Nos. 234 and 235 en bloc.
  On Question, amendments agreed to.
  [Amendments Nos. 236 to 238 not moved.]
  Earl Ferrers Earl Ferrers moved Amendment No. 239:
  Page 77, line 33, at end insert:
  ("(6) Nothing in this section or in sections 90 to 95 has effect in relation to any licensed service which is an additional service.").
  The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 84. Government Amendment No. 93 was also spoken to with Amendment No. 84. Unfortunately, after the excitement of the amendment on impartiality, I regrettably and inadvertently omitted to move Amendment No. 93 when we reached it on the Marshalled List. I should like to take this opportunity to apologise to the House for that oversight and to seek the leave of the House to retable the amendment on Third Reading.
  As your Lordships will recall, Amendment No. 93 fulfilled a commitment which was made in Committee to my noble friend Lord Swinfen to apply the provisions of Clauses 7 to 12 of the Bill to a designated teletext service, but not to other additional service licences. Amendment No. 239 has the same effect for radio. I beg to move.
  On Question, amendment agreed to.
  [Amendment No. 240 not moved.]
  Clause 94 [Monitoring by Authority of programmes included in licensed services]:
  Earl Ferrers Earl Ferrers moved Amendments Nos. 241 and 242:
  "Page 81, line 2, leave out ("make and").
  Page 81, line 3, leave out ("any matter included by him in any") and insert ("every").
  The noble Earl said: My Lords, in moving these amendments, I wish to speak also to Amendments Nos. 243 and 244. These subject matters were discussed earlier under Amendments Nos. 99 and 101. I beg to move Amendments Nos. 241 and 242 en bloc.
  On Question, amendments agreed to.
  Clause 95 [Audience research]:
  Earl Ferrers Earl Ferrers moved Amendments Nos. 243 and 244:
  Page 81, line 17, leave out from beginning to ("and") in line 18.
  Page 81, line 19, leave out ("(c)") and insert ("for the purpose of assisting them to perform their functions under Chapter II in connection with the programmes to be included in national and local services, for ascertaining").
  On Question, amendments agreed to.
  Clause 97 [Applications for national licences]:
  Baroness Birk Baroness Birk moved Amendment No. 245:
  Page 82, leave out lines 37 to 39.
  The noble Baroness said: My Lords, in moving Amendment No. 245 I wish to speak also to Amendment No. 246. Amendment No. 245 removes the economic viability test to be applied by the authority but retains the requirement to make the best use of the frequencies available. I said at the beginning that in the parallel areas relating to television the viability test is implicitly but not explicitly stated. We feel that this is something which should be taken into account when licences are allocated.
  If these new independent channels are to compete effectively with the BBC services, the coverage must be as great as is technically possible. It should not be governed by strict economic criteria. This does not mean that the new national channels should be subject to exactly the same coverage requirements as the BBC, particularly as some of the spectrum may be needed for new community radio services.
  Amendment No. 245 interlocks with a subsequent amendment, Amendment No. 246, requiring national services to be available throughout the UK. However, the authority should still aim to achieve universal coverage for national radio services to compete with BBC national public service channels. We recognise, however, that there may be technical reasons why the new FM channel and possibly the two AM channels taken from the BBC may not be able to achieve 99.8 per cent. coverage.
  Amendment No. 246 obliges the authority to set a minimum area of coverage for the national radio services which can be received by the overwhelming majority of the population within the necessary technical and commercial constraints. I beg to move.
  Earl Ferrers: My Lords, I believe that when the noble Baroness said that she was also speaking to Amendment No. 246, she meant to include also Amendment No. 265 as they are grouped together.
  It would, of course, be excellent if radio services were able to serve everyone within their coverage area from the moment they came on the air. In reality, however, this is quite impracticable. The BBC has been providing national radio services for many years and is subject to universality obligations. But even its coverage is not yet complete. The BBC plans to spend about £26 million over the next few years building new transmitters at the rate of about 20 per year, and even that will not result in 100 per cent. coverage. Radio 1, for instance, now has its own FM frequencies but currently reaches less than 90 per cent. of the population on FM and will not reach 97 per cent. before 1993.
  Building transmitters is an expensive and time consuming business. If new stations had to ensure that their transmissions would reach everyone in their licensed area as soon as they began broadcasting, few would ever come on the air and we would probably never have any independent national radio stations. The Bill accordingly provides a degree of flexibility for services to grow over a period. Clause 105(3) which would become redundant as a result of these amendments, puts the rate of growth under the Radio Authority's control. I believe that that is the right approach. Obviously every new station will want and will try to reach as much of its service area as possible as quickly as it can. But we cannot oblige it to achieve the impossible.
  Amendment No. 245 would delete Clause 97(2)(b) which is an important element in the introduction of independent national radio. We have to face the fact that imposing a universality requirement on the new FM operator in particular would virtually ensure that the service never gets started. The clause spells out the Government's policy that the independent national services should reach as much of the country as they can without damaging their prospects for sustaining the service. It also provides for a balance in the use of the frequencies, as any which are not used for the national station will be available for new community radio services. What this means in practice is that the Radio Authority will determine the minimum coverage area for the national licensees, leaving it open to applicants to propose a greater degree of coverage if they consider it appropriate and possible within their resources. The authority has not yet finalised its requirements in this respect, but I understand that it may be looking for at least 85 per cent. as the minimum coverage area, which would include a reasonable proportion within each of the national regions and not just concentrate on England. We have to understand that beyond a certain point each transmitter adds only about 0·1 per cent. to the total coverage but is as expensive as the previous transmitter. At that rate I think noble Lords will appreciate that there must be a point at which it becomes quite uneconomic to extend any further. The Bill provides for the Radio Authority to judge when

  775
  that point is reached. I believe that is the proper way to proceed and I hope the noble Baroness agrees with me.
  Baroness Birk: My Lords, I thank the Minister for that explanation. The amendments I have referred to are partially probing amendments. In the light of that, I shall beg leave to withdraw the amendments. However, if there is anything further that I wish to consider, I shall return with a further provision on Third Reading. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 246 not moved.]
  Lord Airedale Lord Airedale moved Amendment No. 247:
  Page 82, line 46, after ("programmes") insert ("including original productions").
  The noble Lord said: My Lords, the amendment draws its inspiration from the amendment moved in Committee by the noble Baroness, Lady Birk, who made a plea for live music. There must be a temptation for radio stations to rely heavily on past recordings because that is so much cheaper, but it is a dismal prospect if that occurs on a wide scale and no contribution whatever is to be made to the living arts.
  The amendment extends beyond music and indeed beyond "live". There can be no objection if the original production is recorded to be broadcast at some future time which is convenient to the radio station. The types of programme that I have in mind as original productions are programmes that we are, already familiar with such as chat shows, quizzes, discussions and concerts.
  In Committee the noble Earl seemed to think that all this would be much too expensive for the radio stations to contemplate. I readily admit that a symphony concert might be too expensive for one radio station, but an enterprising radio station could no doubt search for sponsors to defray the expenses of ambitious productions. In any event, a concert ranges from a piano recital to a symphony concert or an opera.
  Incidentally, the next word in the Bill after the amendment is "calculated". That is an unwise word for draftsmen to use because "calculated" can mean one or two very different things. It can mean intended or it can mean likely. The draftsmen ought to decide whether he means intended or whether he means likely and use that word and never use the word "calculated". I beg to move.
  Baroness Birk: My Lords, I should like to support the amendment in general terms. I believe that the noble Lord, Lord Airedale, is right that there should be some way of ensuring that original creative material is produced rather than everything being bought in.
  However, I am not sure whether this is the right way to achieve that. The noble Lord has not specified any percentage or amount of original material, which would leave the decision open to the new Radio Authority. Nevertheless, I believe that the motivation should be included in the Bill in some form or another. If the Government feel that the noble Lord's drafting
  776
  is not quite what is required, I hope that they will accept the spirit of the amendment and perhaps come back with something different. I believe that the principle on which the amendment is based is tremendously important. We have had the same discussion in relation to television, and the opportunities for creative writing, new music and a myriad of other matters is just as great or even greater in the field of radio.
  6.15 p.m.
  Earl Ferrers: My Lords, I am glad that the noble Lord, Lord Airedale, drew some inspiration for the wording of his amendment from what the noble Baroness, Lady Birk, said in Committee, although it threw me into confusion and I did not draw the same inspiration from it. Nor am I quite sure what the noble Lord's amendment means. The concept of original productions is not a familiar one under the Bill. We all have a vague idea of what it may mean, but the Radio Authority may not find it an easy concept to define in practice.
  I was amused by the noble Lord, Lord Airedale, being unable to resist a parliamentary rocket to the parliamentary draftsman on the use of the word "calculated". It does not come into his amendment, so the noble Lord introduced a red herring when he referred to it. I have no doubt that the parliamentary draftsman will take note of what the noble Lord said, and I also have no doubt that he will disagree with him.
  The important point about the noble Lord's amendment is that it is not needed. The majority of radio in this country is live and in that sense it is original. That is part of its attraction. A pop music station will not want to buy in a tape of a disc jockey when it can broadcast a disc jockey live in its own studio, where incidentally he will probably also be the engineer, researcher and producer rolled up into one.
  The concept of independent productions which the noble Lord, Lord Airedale, probably has in mind is largely foreign to radio. That may well change in future as more and more services come on the air looking for good quality programmes. However, I believe that the operators have to have as much freedom as we can reasonably give them to set their programme schedules, particularly in national radio where they will have to compete with the very well-established and popular service run by the BBC in a variety of different forms.
  For those reasons, I hope that the noble Lord will consider that his amendment would place an undesirable onus on Radio Authority licensees.
  Lord Airedale: My Lords, the intention of the amendment was simply that in his application, the applicant should specify some what I call original and the noble Earl calls independent productions that he would broadcast in addition to past recordings. That would give the authority the opportunity to look at the application and ask "what are you going to do about originating programmes of your own?" Whether or not the applicant succeeded in his application would depend partly upon his answer to

  777
  that question. I considered that this was something that ought to be put before the authority in considering applications. However, I do not want to press the matter further and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Earl Ferrers Earl Ferrers moved Amendment No. 248:
  Page 83, line 33, leave out from ("Authority") to end of line 35 and insert ("a specified amount of money in respect of the first complete calendar year falling within the period for which the licence is in force (being an amount which, as increased by the appropriate percentage, is also to be payable in respect of subsequent years falling wholly or partly within that period).").
  The noble Earl said: In moving Amendment No. 248, I should also like to deal with Amendments Nos. 249 to 257. These amendments have already been spoken to with Amendments Nos. 11, 52, 54 and 67. I beg to move.
  On Question, amendment agreed to.
  Clause 98 [Procedure to be followed by Authority in connection with consideration of applications for national licences]:
  Earl Ferrers Earl Ferrers moved Amendment No. 249:
  Page 83, line 45, leave out from ("that") to ("he") in line 46.
  On Question, amendment agreed to.
  Clause 99 [Award of national licence to person submitting highest cash bid]:
  Earl Ferrers Earl Ferrers moved Amendments Nos. 250 to 252:
  Page 84, line 48, leave out ("instalments of the amount specified in his cash bid") and insert ("any amounts payable by him by virtue of section 101(1)").
  Page 85, line 3, after ("shall") insert ("(subject to subsection (11))").
  Page 85, line 29, at end insert:
  ("(11) Subsections (1) to (6) shall not have effect as mentioned in subsection (7) if the Authority decide that it would be desirable to publish a fresh notice under section 97 in respect of the grant of the licence; and similarly, where any of the following provisions of this Part provides, in connection with the revocation of a licence, for this section to have effect as if the former holder of the licence had not made an application for it, this section shall not so have effect if the Authority decide that it would be desirable to publish a fresh notice under this Part in respect of the grant of a further licence to provide the service in question.").
  On Question, amendments agreed to.
  Clause 100 [Revocation of national licence where holder refuses to begin providing promised service]:
  Earl Ferrers Earl Ferrers moved Amendment Nos. 253 and 254:
  Page 85, line 40, after ("shall") insert ("(subject to section 99(11))").
  Page 86, line 2, leave out ("section 110,") and insert ("any other provision of this Part,").
  On Question, amendments agreed to.
  Clause 101 [Additional payments to be made in respect of national licences]:
  Earl Ferrers Earl Ferrers moved Amendments Nos. 255 and 256:
  Page 86, leave out lines 20 and 21 and insert:

  ("(a) in respect of the first complete calendar year falling within the period for which the licence is in force, the amount specified in his cash bid;

  778

  (aa) in respect of each subsequent year falling wholly or partly within that period, the amount so specified as increased by the appropriate percentage; and").

  Page 87, line 37, at end insert:
  ("(10) In this Part "the appropriate percentage", in relation to any year ("the relevant year"), means the percentage which corresponds to the percentage increase between

  (a) the retail prices index for the month of November in the year preceding the first complete calendar year falling within the period for which the licence in question is in force; and

  (b) the retail prices index for the month of November in the year preceding the relevant year;

  and for this purpose "the retail prices index" means the general index of prices (for all items) published by the Central Statistical Office of the Chancellor of the Exchequer.").
  On Question, amendments agreed to.
  Clause 102 [Restriction on changes in control over holder of national licence]:
  Earl Ferrers Earl Ferrers moved Amendment No. 257:
  Page 88, line 36, after ("shall") insert ("(subject to section 99(11))")
  On Question, amendment agreed to.
  Lord Colwyn Lord Colwyn moved Amendment No. 257A:
  Leave out Clause 102.
  The noble Lord said: My Lords, there are three outstanding issues in this Bill affecting radio which call for reconsideration, one of which I have already spoken to with a previous amendment. At this stage of the Bill one would not expect them to be major matters of principle; they are more matters of fine tuning. Rather, they have to do with the workability of the new legislation and the degree to which the Radio Authority will be able to operate effectively in serving the best interests of radio listeners.
  Amendments Nos. 257A and 261A concern ownership. Clause 102 of the Bill very sensibly provides for a one-year moratorium on the takeover of national radio licences, but no such rule applies to local radio. That means that the outcome of long and detailed assessment by the Radio Authority to establish which of a number of licence applicants is best able to provide a particular radio service for a particular area could be overturned by a marketplace transaction even before the winner on merit was on air —even, in fact, the day after the Radio Authority's decision had been announced.
  I am not persuaded by the argument that the type and quality of programme output is safeguarded by the promise of performance that any new buyer would have to inherit, nor are all features of a licence application precisely measurable. I cannot agree with the argument that ownership makes no difference at all.
  The absence of a moratorium could enable a failed applicant, or indeed someone who had made no application at all, to buy or buy back into access to the airwaves. What is less likely, but still a possibility, is that it could encourage a cottage industry to develop whereby licences are sold on by experienced and plausible licence application writers who have never had any intention to broadcast at all. That has happened across the Atlantic. In both cases, neither the validity of the process nor the credibility of the

  779
  regulator is best served. I therefore urge noble Lords to support the amendments in my name which seek to apply the same moratorium on takeovers to local radio that applies to its national counterpart.
  My noble friend will have noticed that I have omitted a section dealing with "associated programme providers" which was in Clause 102. I did so because I do not believe that that term is relevant to radio. I believe that it was mistakenly carried across from the moratorium amendments for Channels 3 and 5.
  I must make quite clear that the moratorium will not apply where existing franchise holders take up their new licences under the transitional arrangements. Nor will it apply to existing licence holders being granted a renewal, whether or not it is the subject of a competitive reapplication. This amendment comes directly from the IBA. I beg to move.
  Earl Ferrers: My Lords, I have listened carefully to what my noble friend said. I do not deny that there is some force in his argument. I know that, as he said, the Radio Authority favours this amendment. We looked at this matter in some detail when deciding to extend the moratorium to national radio. We concluded that the situation for local radio was different and that a moratorium would not be right.
  Perhaps I could explain the distinction. First, noble Lords will be aware that there will be only three national radio licences. The shadow Radio Authority's recent letter-of-intent exercise revealed that there could be more than 20 applications for each licence. So it is perfectly conceivable that some may see ad vantage in staying out of the tender process until the licence has been awarded. The case of local radio is different. Several hundred licences will be on offer over the next few years, and more than one licence could be offered in some areas.
  Secondly, I understand that the moratorium proposed in this amendment would apply to all the existing independent local radio stations, which will be able to obtain licences from the Radio Authority under the transitional arrangements without facing any competition. At present they are subject to takeovers—to the extent that the IBA permits—and a moratorium would be a windfall protection for them.
  Thirdly, the licensing of local radio services will be a gradual process over a number of years, with licences being readvertised, in the normal course, every eight years. Also, there will be more frequencies coming in later in the 1990s. If my noble friend's amendment were to be accepted, there would therefore be a rolling set of moratoria extending indefinitely into the future. That prospect is very much at variance with the Government's general philosophy of encouraging commercial disciplines.
  Fourthly, there will be a much wider range of programme choice available to listeners at the local level; and they will be likely to support the service which most appeals to them in terms of character and content. I question whether listeners will be unduly concerned about who provides the service so long as it continues to provide the programmes they want to hear and which were promised in the application. The
  780
  requirement for new licence holders to observe the promise of performance which is given by their predecessors should be a powerful safeguard in this respect.
  For that reason, I hope that my noble friend will understand why I cannot advise your Lordships to accept this amendment.
  Lord Colwyn: My Lords, I was under the impression that my amendment did not apply to existing franchise holders or existing licence holders who were being granted renewal. However, I shall read with great care what my noble friend the Minister said. At this stage I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 103 [Applications for other licences]:
  [Amendment No. 258 not moved.]
  Lord Bonham-Carter Lord Bonham-Carter moved Amendment No. 259:
  Page 89, line 46, at end insert:
  ("(8) Where the Authority have awarded a local licence to any person in accordance with this section and section 104 they shall, as soon as reasonably practicable after awarding the licence, publish—

  (a) the Authority's reasons for the licence having been so awarded; and

  (b) such other information as the Authority consider appropriate".).

  The noble Lord said: My Lords, this amendment, which stands in my name and the name of the noble Baroness, Lady Ewart-Biggs, is about openness. It seems desirable that bodies with regulatory functions assigned to them by Acts of Parliament should, where possible, conduct their business as openly as possible and make the reasons for their actions known as widely as possible.
  In Committee I moved an amendment which proposed that the Radio Authority should publish in detail its reasons for an award or for refusing the award of a local licence. The noble Earl, Lord Ferrers, said that he was unwilling to concede the amendment, although he found it attractive, because he did not wish to burden the authority with the obligation of setting out its reasons to every applicant in respect of several hundred licences.
  In order to relieve the authority of that burden I then proposed that it might be easier if the authority explained its reasons when it granted a licence. First, I believed that, as I said, public authorities should conduct their affairs as openly as possible; secondly, this provides people who are thinking about applying with evidence of the kind of criteria that the authority applies when granting licences. A policy is therefore produced by means of a series of precedents which in the public interest should be made known.
  The amendment tabled today once more puts forward that proposal. It does not require the authority to write letters to hundreds of people. It merely asks the authority to write one letter to the successful applicant and to publish that letter. Publishing the letter will compose the kind of

  781
  historical record and picture of the criteria by which the licences are provided. I do not believe that it will put any unnecessary burden on the authority.
  Given the fact that the noble Earl, Lord Ferrers, greeted my original proposal in a fairly positive fashion, I hope that he will be able to accept this amendment. I beg to move.
  Baroness Ewart-Biggs: My Lords, for the reasons that he has given, I should like to support the remarks made by the noble Lord, Lord Bonham-Carter, when he moved this amendment. I too would like to remind the Minister that he admitted that he found attractive the original amendment moved in Committee although he offered practical reasons for not being able to accept it. We have removed the problems and difficulties to which the Minister pointed at Committee stage and I hope therefore that he will regard the amendment in a more positive way.
  I should like to add to what the noble Lord, Lord Bonham-Carter, said about openness. Surely it is true that we are now moving, if perhaps rather slowly, in the direction of a new philosophy, finding it more normal that information regarding certain people should be passed to them. That is not now thought to be completely unthinkable in such a big way. We are moving in that direction.
  This amendment is in the same spirit. There is no reason for withholding the information and there are reasons for giving it. As the noble Lord said, there is the practical reason that it would give unsuccessful applicants the necessary information against which to compare their own application. I am sure that that is useful.
  The Minister's reservations concern difficulties which are no longer part of this amendment. I also remind him that the authority is under a parallel duty to publish its decisions when awarding a national licence but only when it is to an applicant other than the one who has submitted the highest bid. If the Minister accepts this redrafted amendment, it will be a significant extension of public accountability over the decisions of the Radio Authority.
  6.30 p.m.
  Lord Harmar-Nicholls: My Lords, it would be asking for trouble to try to implement the provision. It is one thing to have a decision as to whether or not one will have an award. One accepts that that is the referee's decision. But if he has to give reasons, those reasons may cause hackles to rise. It is not a practical proposition; it is a theoretical one which has certain attractions. But one cannot ask the people who give the award to detail reasons without those who have had the award turned down quarrelling about the reasons.
  Earl Ferrers: My Lords, the noble Lord, Lord Bonham-Carter, returns to the matter of openness over licences. He said that I found the previous amendment attractive and he has ingeniously altered this amendment. The noble Baroness, Lady Ewart-Biggs, hoped that I would consider the matter in a more positive way. I can assure her that I always look
  782
  at amendments in a positive way. It is simply that regrettably I cannot always come to the same conclusion as those who propose the amendment.
  I undertook to consider the matter further. I have done so. I have also consulted the shadow Radio Authority for its views. It re-emphasised the argument that I raised in Committee that a duty to publish the reasons for awarding a licence to an applicant—and therefore by implication the reason it did not award licences to other applicants—would add considerably to its costs and therefore impose an extra burden upon its licensees. It also pointed out that any reasons that it gave would have to take account of the possibility of judicial review. I also referred in Committee to the likelihood that an obligation on the authority to give reasons in every case would slow down the licensing process.
  There are also some other considerations. Clause 104 sets out the criteria of which the authority will take account when considering local licence applications. Under Clause 103(4) the authority must make an applicant's proposals available for public scrutiny on request. As a result, it will be open to applicants, once a licensing decision has been reached, to look at their competitors' applications in the knowledge of the criteria being held by the authority. They will therefore be able to see for themselves why the authority decided in favour of the successful applicant and against the unsuccessful applicants. It is unlikely that the Radio Authority will be able to add anything very useful in explanation. Certainly the authority would not wish to say anything, in giving reasons to an unsuccessful applicant, which might damage that applicant's reputation or willingness to try again in a later competition. In any close contest the decision will be a matter for the authority's judgment and the losers will have to accept that the authority decided that their applications did not fit the licensing criteria quite as well as that of the winner.
  We have tried to make the process as open and objective as possible. However, in the final analysis there will be decisions for the authority to take against known statutory licensing criteria. Any reasons that they were obliged to give for preferring one application to another would not necessarily add much to the conclusions which an applicant would be able to draw for himself.
  That does not mean that the authority would refuse to try to give an explanation in individual cases if an applicant requested it. If there were an obvious deficiency in an application the authority would I am sure be ready to point it out to an applicant who wanted the information.
  The Radio Authority will license several hundred new radio stations. In addition, it will issue many licences to restricted services and other such broadcasters where no competitive process will be involved. I believe that it would add considerably, and in my view unnecessarily, to its burden to have to give reasons in every case.
  Lord Bonham-Carter: My Lords, I thank the noble Earl for that reply. I find it deeply disappointing and

  783
  somewhat unconvincing. It appears that when he considers a proposal carefully he comes to a negative conclusion with considerable regularity. He tells me that he cannot accept the amendment because it would add to the cost and work of the Radio Authority, and might provoke judicial review. However, he states that the authority would not refuse to give an explanation if asked.
  He referred to certain difficulties with regard to unsuccessful applicants. I begin with that. We are not talking about unsuccessful applicants. The amendment omits reference to the unsuccessful applicants. I agree that there was such reference in the amendment at Committee. However, in this amendment it has been removed altogether. I therefore cannot understand what trouble would be incurred regarding the unsuccessful applicant.
  If the Radio Authority is not unwilling to give an explanation to those who ask, I cannot understand why it should not give an explanation to those who succeed. The idea that one will have a judicial review of a successful application seems to me extremely remote. One can have judicial review of an unsuccessful application. The noble Earl wishes to ask me something.
  Earl Ferrers: My Lords, I became a little agitated. Perhaps I may interrupt the noble Lord with the leave of the House. He referred to an applicant who can go to the Radio Authority and ask why a successful applicant obtained the licence. The inference is that he asks why he did not obtain it. The noble Lord says that he is not talking about those who are unsuccessful. But it will be those who are unsuccessful who will be inquiring why they are not successful. One cannot make that distinction and pretend that unsuccessful applicants do not come into it. If the noble Lord wishes the Radio Authority to give the reason why the successful applicant was successful, it could simply state that it was because he was the best applicant. That would add nothing.
  Lord Bonham-Carter: My Lords, it is correct to say that could, but it would be deeply unsatisfactory. The objective is to provide the public with criteria upon which the Radio Authority was providing licences. I cannot see that such provision would add much to its work or costs or would incite judicial review. That is all that I suggest.
  However, for reasons that I find difficult to follow, the noble Earl has rejected the amendment. I regret that. It is a pity. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 104 [Special requirements relating to grant of local licences]:
  Lord Colwyn Lord Colwyn moved Amendment No. 259A:
  Page 90, leave out line 5.
  The noble Lord said: My Lords, it is the last of the three amendments that I move on behalf of the IBA and the shadow Radio Authority. There is a requirement in the Bill which I believe needs further consideration. It is called the viability test for local licences. Clause 104 paragraph (a) requires the Radio
  784
  Authority, before granting a local licence, to have regard to the ability of the applicant to maintain the service for the full term of the licence. That would probably amount to eight years.
  I submit that that imposes an undue burden on the licence applicants and the Radio Authority. The viability of licence holders will depend on a number of variables which it is unrealistic to expect either the applicant or the regulator to predict with any useful degree of accuracy over such a time span. Applicants themselves could argue with some validity that many of the detailed projections they might be asked to provide were dependent on events resulting from subsequent Radio Authority decision-making—for example, the rate at which and the areas in which the Radio Authority offered new licences. I might add that no such long distance crystal ball gazing is required by the present broadcasting legislation. I am not aware that the IBA has found that a problem.
  I submit that we should leave it to the regulator to decide how far it and licence applicants realistically should have to look ahead in considering the latter's viability. I therefore urge the Government to delete the requirement to consider viability across the full eight-year term of the licence. I beg to move.
  Earl Ferrers: My Lords, I know that the shadow Radio Authority fears that its duty to examine the likely viability of the applicants' plans will be an onerous task. But I believe that it need not be so. There is no reason for them to scrutinise an applicant's budget in fine detail using financial forecasts, computer predictions or any other elaborate forms of economic modelling. All that the Bill requires in that respect is that the authority should have regard to an applicant's ability to maintain his proposed service for the length of his licence on the basis of the information that the applicant has provided. In other words, it has to look at the applicant's financial position and consider whether his future projections look reasonable. This should not be a great burden. But it has one of the key aspects mentioned in the Green Paper for the authority's role in selecting licensees. I believe it would be unwise to dispense with it. It is surely the right policy for account to be taken at the licensing stage of whether the proposal looks viable and sustainable. If the application is clearly financially unsound it is surely right that it should be weeded out. That means that the Radio Authority will have to sift out the obvious duds.
  Perhaps it would help my noble friend if I differentiate between sifting out the duds and the case of an applicant who subsequently finds the going harder than he had expected and has to surrender his licence before it expires. No one is asking the shadow Radio Authority for some kind of certificate of viability, nor is it suggested that it would be in breach of its responsibilities if the applicant subsequently failed.
  It is a proper part of the authority's licensing procedures to assess an applicant's likely ability to bring his proposed service on air and to continue then to provide that service for the period of his licence. We

  785
  believe the authority should be able to devise a sensible light-touch and uncomplicated approach to the task.
  Lord Colwyn: My Lords, although I am improving rapidly I do not pretend to be an expert on the subject. I am grateful for what my noble friend has said. I should like to put his comments before the shadow Radio Authority for its further advice and in the meantime beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Earl Ferrers Earl Ferrers moved Amendment No. 260:
  Page 90, line 18, after ("provided") insert (", and, in particular, the extent to which the service would cater for tastes and interests different from those already catered for by local services provided for that area or locality;").
  The noble Earl said: My Lords, I shall speak also to Amendment No. 261. During Committee I gave my noble friend Lord Colwyn an undertaking to consider amending this clause so as to reinforce the expectation that the authority should favour applicants who seek to do more than replicate existing services. Clause 104(c) already refers to a broadening of the range of programmes and Clause 84 gives the authority a general duty to secure a range and diversity of local services. I agree with my noble friend that an element is still missing which this amendment aims to correct. The amendment requires the authority to take account of the extent to which an application would serve tastes and interests different from those served by the local services already available in the area. I hope that my noble friend will agree that, with this amendment, the Bill will give a fuller and more complete effect to the policy intention that there should be a genuine diversity of local radio services in an expanding independent radio sector. I am sure that the authority will be guided by this aim in carrying out its licensing task. I beg to move.
  Lord Colwyn: My Lords, in Committee my noble friend agreed to look at the matter. I am happy with the words that he has tabled at this stage and I support the amendment.
  On Question, amendment agreed to.
  Earl Ferrers Earl Ferrers moved Amendment No. 261:
  Page 90, leave out line 20 and insert ("persons living in that area or locality").
  On Question, amendment agreed to.
  [Amendment No. 261A not moved.]
  Clause 105 [Requirements as to character and coverage of national and local services]:
  [Amendment No. 262 not moved.]
  Earl Ferrers Earl Ferrers moved Amendments Nos. 263 and "'64:
  Page 90, line 27, after ("grounds") insert:

  ("(a).

  Page 90, line 29, at end insert (", or

  (b) that it would not substantially alter the character of the service.").

  The noble Earl said: My Lords, as it stands Clause 105 would permit the authority to consent to a departure from the proposed service only on the
  786
  ground that this would not narrow the range of programmes available by way of independent radio services to persons living in the area or locality. The shadow authority has made the point to us that this is in effect would mean that it could consent to a licensee's dropping particular kinds of programmes only if satisfied that those programmes were being provided in the same area by another licensee. That is too restrictive. Particular types of programmes may become unpopular or otherwise go out of fashion. The amendment would accordingly allow such developments in programming but only if the authority were satisfied that the character of the service would not be substantially altered. The amendment therefore preserves the principle that stations must live up to the general thrust of the programming promises which they have made. I beg to move.
  On Question, amendments agreed to.
  6.45 p.m.
  Lord Bonham-Carter Lord Bonham-Carter moved Amendment No. 265:
  Page 90, line 31, leave out from ("serves") to end of line 33 and insert ("the area, locality or community for which it is licensed to be provided.").
  The noble Lord said: My Lords, the amendment relates to what appear to be contradictions in government policy. On the one hand the Government appear to be committed to an expansion of local services in a particular area but on the other they do not believe that the market will support the new services after the privatisation of the transmission service. Hence, it is the desire of the Government to allow the Radio Authority to sanction a service which provides for only part of the area.
  We are worried about the situation because, for example, a franchise may be awarded to a semi-rural area with a town in the middle. It may be that the applicant finds that it is more economical to serve the town and not the rural area surrounding it. Therefore, the town will receive the service and the rural area will never be served with the facilities of the radio station. The company applying knows that it will not be forced to live up to the franchise conditions. Is that situation a possibility? If so what steps can be taken to stop companies behaving in such a way as a regular tactic? I beg to move.
  Baroness Birk: My Lords, the noble Lord has pointed out a relevant issue and I should like to hear the Minister's reply. There could be a problem as regards coverage and it may be that the provision needs strengthening rather than leaving as it is. There would be a weakening of the whole system.
  Earl Ferrers: My Lords, the noble Lord has led me into mild confusion because I had thought that the amendment was dealt with when speaking to Amendment No. 245. We must bear in mind that it is impossible to provide a complete and total coverage by local and independent radio services because the transmitters do not exist. If they are to be built or if an imposition is to be put on the Radio Authority to guarantee a large coverage of various areas the services will never get off the ground. We must try to allow them to do so with the facilities that already exist. Gradually the transmitting facilities will increase

  787
  and expand as will the number of people covered. It is difficult to put a particular form of instruction or onus on a licensee to cover a specific area. Of course, initially a number of areas in the country will be prejudiced because no transmitters are in place. Howeser, I suspect that in time that will be overcome.
  Lord Bonham-Carter: My Lords, I thank the noble Earl for his reply and beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Earl Ferrers Earl Ferrers moved Amendment No. 266:
  Page 90, line 40, after ("(4)") insert ("Subject to subsection (5).").
  The noble Earl said: I beg to move Amendment No. 266 and would like to speak to Amendments 267 and 268. These amendments address some concerns which were raised by the noble Lord, Lord Bonham-Carter, in Committee. I am sure he will be glad to know that they have been addressed with a constructive and positive attitude, as the noble Baroness, Lady Ewart-Biggs, would say.
  Clause 105(4) was included in the Bill in order to deal with awkwardness which arose under the Broadcasting Bill 1981. A number of communities around the country were deprived of satisfactory independent radio reception which they might otherwise have been able to have because the IBA was unable to amend contracts so as to allow stations to cater for such communities without readvertising the whole contract. It is intended that the Radio Authority should not face the same difficulty.
  Nevertheless, the noble Lord, Lord Bonham-Carter, quite properly drew our attention to the fact that Clause 105(4), as it stands, would, in principle at least, permit large extensions of local radio coverage areas. The objection to that is that it might in such circumstances be better and fairer to advertise a separate, new licence for which any eligible group could apply. I am sure that the Radio Authority would not in practice have authorised large extensions in circumstances where it would have been better to have an extra station. But we agree that the clause should be tightened up, although not in a way which takes us back to the undesirable restrictions in the 1981 Act. These amendments accordingly require; first, that any additional area must adjoin the existing licence area; secondly, that it must not amount to a substantial increase in the licence area; and, thirdly, that the e authority must publish a notice giving details of the new area which it has included in the licence.
  I should emphasise that it will remain the authority's primary goal to license each area individually. But it should be open to it to allow minor extensions of coverage areas. Where, for instance, reception could be improved for a station's existing listeners or perhaps the additional area could not support its own service, that should be done.
  I am grateful to the noble Lord, Lord Bonham-Carter, for bringing this matter to our notice and I trust that these amendments satisfactorily answer his concern and go some way to answering the other concerns that he has also expressed. I beg to move.
  Lord Bonham-Carter: My Lords, I must thank the noble Earl for meeting our suggestions. We are most grateful. This is an improvement which we welcome.
  On Question, amendment agreed to.
  Earl Ferrers Earl Ferrers moved Amendments Nos. 267 and 268:
  Page 90, line 42, leave out ("falling outside") and insert ("adjoining").
  Page 90, line 44, at end insert:
  ("(5) The Authority shall only exercise the power conferred on them by subsection (4) if it appears to them that to do so would not result in a substantial increase in the area or locality for which the service in question is licensed to be provided.
  (6) As soon as practicable after the Authority have exercised that power in relation to any service, they shall publish, in such manner as they consider appropriate, a notice—

  (a) stating that they have exercised that power in relation to that service; and

  (b) giving details of the additional area or locality for which that service is licensed to be provided.").

  On Question, amendments agreed to.
  Clause 111 [Licensable sound programme services]:
  Earl Ferrers Earl Ferrers moved Amendment No. 269:
  Page 95, line 5, at end insert:
  ("(3A) It is hereby also declared that where

  (a) any service constitutes such a service as is mentioned in subsection (1), and

  (b) the sound programmes in respect of which the service is provided are provided for transmission in the course of the provision of any additional service,

  that service is licensable under section 112 as a licensable programme service, and not otherwise; and in this subsection "additional service" means an additional service within the meaning of this Part or Part I.").
  The noble Earl said: My Lords, I beg to move Amendment No. 269. This amendment was debated earlier, along with Amendments Nos. 270 to 277, when we dealt with Amendments Nos. 11, 52, 54, 142, 146 and 184.
  Lord Airedale: My Lords, is the noble Earl proud of the word "licensable"? If a service being licensable means that the service qualifies for a licence, why not say so? Brevity is not everything. We have inherited a statute book expressed in elegant language on the whole, and I make a plea for keeping out of the statutes hideous words such as that.
  Earl Ferrers: My Lords, I am immensely proud of the word "licensable". As the noble Lord, Lord Airedale, said, it is very much shorter than the words he suggested and, if I may say so, it is much more explicit than the words he suggested in his earlier amendment.
  On Question, amendment agreed to.
  Clause 113 [Additional Services]:
  Earl Ferrers Earl Ferrers moved Amendment No. 270:
  Page 95, line 26, leave out ("telecommunication service which is provided") and insert ("service which consists in the sending of telecommunication signals for transmission").
  On Question, amendment agreed to.
  Earl Ferrers Earl Ferrers moved Amendment No. 271:
  Page 96, leave out lines 17 and 18 and insert
  (""telecommunication signals" means").
  On Question, amendment agreed to.
  Clause 116 [Procedure to be followed by Authority in connection with consideration of applications for, and awarding of, licences]:
  Earl Ferrers Earl Ferrers moved Amendments Nos. 272 to 274:
  Page 98, line 38, leave out from ("that") to ("the") in line 39.
  Page 99, line 4, after ("licence") insert:

  ("(a) subsection (6) shall have effect with the substitution in paragraph (a) of a reference to section 117(1) for the reference to section 101(1); and

  (b)").

  Page 99, line 17, after ("shall") insert (", subject to section 99(11),").
  On Question, amendments agreed to.
  Clause 117 [Additional payments to be made in respect of additional services licences]:
  Earl Ferrers Earl Ferrers moved Amendment No. 275:
  Page 99, leave out lines 31 and 32 and insert:

  ("(a) in respect of the first complete calendar year falling within the period for which the licence is in force, the amount specified in his cash bid;

  (aa) in respect of each subsequent year falling wholly or partly within that period, the amount so specified as increased by the appropriate percentage; and").

  On Question, amendment agreed to.
  Clause 121 [Certain receipts of Authority to be paid into Consolidated Fund]:
  Earl Ferrers Earl Ferrers moved Amendment No. 276:
  Page 101, line 37, at end insert:
  ("(5) The Authority shall, in respect of each financial year, prepare an account showing—

  (a) all such amounts falling within subsection (1) as have been received by them, and

  (b) the sums paid into the Consolidated Funds of the united Kingdom and Northern Ireland respectively under that subsection in respect of those amounts,

  and shall send that account to the Comptroller and Auditor General not later than the end of the month of November following the financial year to which it relates; and the Comptroller and Auditor General shall examine, certify and report on the account and lay copies of it, together with his report, before each House of Parliament.").
  On Question, amendment agreed to.
  Clause 125 [Interpretation of Part III]:
  Earl Ferrers Earl Ferrers moved Amendment No. 277:
  Page 102, line 22, at end insert:
  (""the appropriate percentage", in relation to any year, has the meaning given by section 101(10);").
  On Question, amendment agreed to.
  Clause 126 [Division of assets of IBA and their dissolution]:
  Earl Ferrers Earl Ferrers moved Amendment No. 278:
  Page 103, line 38, at end insert:
  ("(4A) If requested to do so by the chairman appointed under subsection (4) (a), the Commission shall furnish the IBA with any assistance required by them for the purpose of carrying out any of those functions.").
  The noble Earl said: My Lords, this is almost a technical amendment. I also speak to Amendment No. 282.
  The purpose of these amendments is to ensure that the residual IBA and Cable Authority, provided for in Clauses 126 and 127, will have sufficient support to carry out any remaining functions which may be left to them after their main functions have been transferred under Schedules 7 and 8 of the Bill. Provision for a residual body—where immediate allocation of all functions to one or other of the successor bodies may not be possible—is a common feature of privatisation statutes. We do not expect any substantial responsibilities to be vested in the residual authorities but, for various technical reasons, some limited functions will remain with them for a period, for instance the preparation of a final set of accounts. The amendments place a duty on the ITC to provide such staff or other assistance as the chairman of the rump bodies may require for the purpose. It will not be an onerous duty but it is a necessary one. I commend the amendments to your Lordships accordingly. I beg to move.
  On Question, amendment agreed to.
  Schedule 7 [Scheme Providing for Division of Assets of IBA]:
  Earl Ferrers Earl Ferrers moved Amendment No. 279:
  Page 189, line 11, at end insert C', or with respect to any liabilities of the IBA which—

  (a) have not yet become enforceable against the IBA, and

  (b) are not specifically and exclusively referable to any particular part or parts of the undertaking of the IBA which is or are transferred in accordance with any such scheme to one or more of the relevant transferees.").

  The noble Earl said: My Lords, I beg to move Amendment No. 279 and speak to Amendment No. 281. These are technical amendments. They refine the provisions of Schedule 7 in order to make allowance for liabilities which would have fallen to the IBA, but which become known only after the transfer date and which are not plainly attributable to one or other of the successor bodies. An example of what we have in mind might be some future award of damages arising in connection with a former IBA function, but which is not identifiable as either a transmission company or a regulatory activity.
  Clause 126 already provides for the continued existence of the IBA for a period after the division of its assets by a scheme made under Schedule 7. The difficulty is that contingent liabilities such as I have described may not be able to be known before vesting day and they could only be allocated in an arbitrary fashion. What the first amendment does is to enable liabilities which are not clearly attributable either to the ITC or to the transmission company to remain with the residual IBA. We do not expect such liabilities to be substantial. If any could be identified they would have been allocated by the scheme, but it would be wrong to ignore the possibility altogether. The residuary IBA would not have the resources to meet any such liabilities. That is why the second amendment enables such costs to be reimbursed by the

  791
  Perhaps I may take this opportunity to apologise for the fact that we shall need to introduce a further small refinement in connection with the residuary IBA at Third Reading. It will enable certain existing rights and liabilities in respect of access to IBA and BBC sites and masts to remain with the residuary IBA when the assets themselves are transferred to the transmission company. I regret that it has not proved possible to prepare and table the amendment, which required some detailed technical consideration, at an earlier stage. I beg to move.
  On Question, amendment agreed to.
  Earl Ferrers Earl Ferrers moved Amendment No. 280:
  Page 192, line 47, at end insert:
  ("Power of Secretary of State to control division of IBA's pension fund
  8A.—(1) If the Secretary of State so determines, the trustees of the Independent Broadcasting Authority Staff Pensions Plan shall refer to him, before such date as he may specify, the division and distribution of the relevant assets which is to be made by them for the purpose of making a transfer payment to a pension scheme established by the nominated company for its employees; and, if he does so, any such division and distribution of those assets and liabilities shall not be made by the trustees except—

  (a) with his consent, or

  (b) in accordance with an order made by him under sub-paragraph (2).

  (2) Where any such division and distribution is referred to the Secretary of State under sub-paragraph (1), he may by order direct that the relevant assets shall be divided and distributed by the trustees in such manner, and at such time, as is specified in the order.
  (3) In this paragraph—

  "the relevant assets" means the assets held by or on behalf of the trustees; and

  "the trustees" means the trustees of the Plan referred to in sub-paragraph (1).

  (4) An order under sub-paragraph (2) shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
  The noble Earl said: My Lords, I beg to move Amendment No. 280 and to deal with Amendments Nos. 280A and 280B at the same time.
  The government amendment builds on the Schedule 7 powers in respect of the division of the IBA's assets and liabilities to include an additional reserve power in relation to the division of the IBA staff pension plan. Because the pension fund does not belong to the IBA—it is in fact held by a body of trustees who are nominated by the IBA—it is not an asset which can be transferred by a scheme made under paragraph 2 of Schedule 7.
  This amendment seeks essentially to do two things. First, new paragraph 8A(1) enables the Secretary of State, if necessary, to require the trustees of the IBA scheme to refer to him their proposals for apportioning the fund on the dissolution of the IBA. Secondly, if the Secretary of State requires that, subparagraph (1) also places a duty on the trustees to apportion the pension scheme's assets in accordance with an order made by him under paragraph 8A(2). Paragraph 8A(4) makes any such order subject to the negative resolution procedure.
  We are bringing forward this amendment very much as a long-stop provision. Our discussions with the IBA about the division of the scheme have been thorough and constructive.
  I should emphasise that we have no intention of activating the provision unless for some reason it proves impossible otherwise to secure the equitable division of the pension fund which all parties desire. The trustees do not foresee any difficulties revising the terms of the scheme and allocating the fund equitably between those past and present IBA employees remaining with the existing scheme and those transferring to the transmission company and its new scheme. The purpose of the reserve power is simply to put it beyond doubt that the Government's undertakings about the preservation of the pension rights of all current IBA employees and pensioners on the dissolution of the IBA can be fulfilled. A reserve power along those lines has become a standard feature of privatisation statutes. In the unlikely event of the Government needing to invoke the power to modify the proposed division of the pension scheme, it would be subject to parliamentary approval. I beg to move.
  7 p.m.
  Baroness Birk Baroness Birk moved, as an amendment to Amendment No. 280, Amendment No. 280A:
  Line 17, at end insert ("and any provision of

  (a) the plan referred to in sub-paragraph (1), or

  (b) any enactment relating to occupational pension schemes including transfer values,

  shall not have effect to the extent that it is inconsistent with the division and distribution of those assets in accordance with any such order.").
  The noble Baroness said: My Lords, Amendment No. 280A in my name seeks to amend Amendment No. 280 moved by the noble Earl. In moving Amendment No. 280A, I shall speak also to Amendment No. 280B.
  The Government have tabled an amendment to Schedule 7 giving the Secretary of State powers to intervene in the transfer value to be paid to the IBA scheme for the new transmission company scheme. That caused a certain amount of distress and concern, both on the part of the IBA and on the part of many noble Lords who are concerned about the matter.
  Although we do not think that the Secretary of State should take such powers at all, the Government clearly appear determined to do so. We have therefore suggested that the amendment could be improved in two respects; first, to ensure that the Secretary of State has regard to the interests of all the scheme members and beneficiaries; and, secondly, to ensure that, if the Secretary of State intervenes, the trustees are not left liable to the scheme members and beneficiaries if the decision of the Secretary of State is different, as it no doubt would be, from that that the trustees would have made.
  The Home Office has accepted that the amendment could be further amended and parliamentary counsel are drafting two amendments. As I understand it, Amendments Nos. 280A and 280B have the blessing of the Home Office.
  To put matters on the record, the IBA staff pension plan has some 1,200 contributing members, 450 pensioners and 650 former staff with preserved rights in the scheme. The Welsh Fourth Channel Authority is a participating employer in the scheme. With the abolition of the IBA and the creation of three successor bodies—the ITC, the Radio Authority and the privatised transmission company—it was necessary to determine the future of the IBA staff pension plan.
  In order to provide continuity of pension rights and benefits and to protect the position of plan beneficiaries, it has been decided that a new pension scheme should be established for the transmission company. That scheme will be a mirror image of the IBA scheme and IBA staff transferring to employment with the company will be able to transfer their IBA pensionable service to the new company scheme which will have the same benefit structure as the IBA scheme.
  As we all know, the ITC will replace the IBA as the principal employer of the IBA scheme and continuity of pension arrangements will also therefore be preserved for IBA staff who become employed by the ITC. The Radio Authority has indicated that it wishes to become a participating employer in the IBA/ITC scheme, thus preserving continuity of pension arrangements for IBA staff who are employed by the Radio Authority.
  In order to preserve continuity for pensioners and preserved pensioners, it was decided that existing pensioners would continue to belong to the IBA/ITC scheme. I am sure that I am among a number of noble Lords who have received letters expressing great concern from IBA pensioners and widows of pensioners who are worried that their pensions will be affected by that change. Although I have written in the interim to try to reassure them, it will help greatly once this matter is on the statute book and made clear to them.
  The effect of the changes will be that the ITC scheme will have some 300 contributing members, some 600 pensioners and some 750 preserved pensioners. The transmission company scheme will have some 800 contributing members, but no pensioners in the initial years.
  The trustees of the IBA staff pension plan will need to determine a transfer value to be paid to the newly established transmission company scheme representing the value of the pension benefits accrued by IBA staff transferring to the transmission company. The trustees, who are under a duty to have regard to the interests of all scheme members, will aim to ensure when determining the transfer value to be paid to the transmission company scheme that the IBA's successor bodies will have pension arrangements and funding broadly similar to that which exists in the IBA scheme.
  The Government have tabled an amendment to the Broadcasting Bill giving the Secretary of State power to intervene in the determination of the transfer value to be paid to the transmission company scheme.
  794
  Neither the trustees of the IBA staff pension plan nor the IBA believes that it is desirable or necessary for the Government to take such powers. The trustees are bound in law to have regard to the interests of all the scheme members and legal remedies are available in situations where trustees fail in that duty.
  Having said that—I apologise for having spoken at some length, but it is important that the points should be fully reported in Hansard—I should like to put three questions to the Minister. Will he give an assurance that the real value of increases in the benefits paid to IBA pensioners will continue after the abolition of the IBA? Does he share the concern of IBA pensioners about the reduction in the number of contributing members to the new ITC pension scheme? If so, how do the Government intend to ensure that the rights and benefits of IBA pensioners are protected? Will he indicate whether the Government intend to privatise the transmission services of the IBA by trade sale or public flotation and, if that decision has not been taken, whether Parliament will be able to scrutinise the form of sale before it occurs? There is another question which I have not asked the Minister because I asked him in Committee and received a letter from him.
  I am sorry to ask the questions at this late stage, but the amendments appeared only recently on the Marshalled List. I should be grateful if the Minister would clarify those points on this technical and difficult matter.
  Lord Boyd-Carpenter: My Lords, these are important matters to the people concerned. I am sure that the noble Baroness, Lady Birk, is right to raise those issues and to ask my noble friend to clarify the position.
  There are only two points that I wish to put to my noble friend. First, will he give an assurance that it is intended that existing pension rights will be fully maintained, notwithstanding the different structure of the scheme and particularly the different relationship, as I understand it, between the number of contributors and the number of beneficiaries? Secondly, can the Minister say whether the European decision about having the same age for members of pension schemes of both sexes is to be applied, or what the situation is in that regard?
  Perhaps my noble friend will deal with those matters as well as the other important matters put to him by the noble Baroness.
  Earl Ferrers: My Lords, the noble Baroness and my noble friend raised some important points. I accept, as the noble Baroness said, that the IBA does not believe the provision to be necessary and would prefer not to see it added to the Bill. As I said earlier, it is well precedented in other privatisation statutes, including the Airports Act 1986, the Water Act 1989 and the Electricity Act 1989. We have been careful to circumscribe the provision and there is nothing sinister about it. Its purpose is simply to ensure that we are in a position to honour our public undertakings.

  795
  That is the first answer I give to my noble friend Lord Boyd-Carpenter. We said all along that those involved in the Independent Broadcasting Authority should have their pensions honoured in the future. That is the reason for the legislation. I assure the noble Baroness that we shall be as reluctant to use the provision as the IBA will be reluctant to see us use it. It is only for a long stop position.
  I am grateful to the noble Baroness for tabling Amendments Nos. 280A and 280B to my amendment. The first one will ensure that, should it be necessary to make an order, the trustees will be discharged from their existing liabilities where these may conflict with the order. That is an eminently sensible provision. Amendment No. 280B places an additional duty on the Secretary of State, in making an order under paragraph 2, to have regard to the interests of all the pension scheme's present and future beneficiaries. As I explained, that accords precisely with the Government's intention. We welcome the opportunity to confirm that fact. I am therefore pleased to accept both the amendments of the noble Baroness.
  The noble Baroness also referred to pension rights. I understand from the IBA that its pension scheme guarantees index linking for inflation up to 5 per cent. It gives the IBA discretion to index link above that figure. I also understand that in practice the IBA has given its pensioners full index linking, although those pensioners have no automatic right to such an additional payment, and that is important.
  We made it clear that the pension rights of current IBA employees will be preserved on the dissolution of the IBA. The payment of pension benefits over and above those rights will be at the discretion of the successor bodies in the same way as it is for the IBA at present. Ministers cannot commit the ITC or future owners of the company to exercise their discretion in any specific way.
  The noble Baroness asked about the sale of the transmission companies. No final decision on the method of sale has yet been taken. That will be determined in the first half of next year, but a flotation appears to be most unlikely.
  My noble friend Lord Boyd-Carpenter asked about the recent European decision. I understand that the IBA pension scheme already complies fully with that decision. I hope that I have answered the queries raised. As I said, I am content to recommend that the amendments of the noble Baroness be accepted.
  Baroness Seear: My Lords, before the noble Earl sits down perhaps I could ask a question. I may have been stupid in listening to him and should like to understand his position. Is it a right to have the pension indexed to 5 per cent. or is that at the discretion of the company? The noble Earl said that the company had always done that. It is a very important point. I take it that it is 5 per cent. or the level of the RPI, whichever is the less. That is usually the case. What is the right of which they are assured as distinct to what they may be lucky to get if the company is in a good mood?
  7.15 p.m.
  Earl Ferrers: My Lords, I do not believe the noble Baroness is wrong to intervene if she does not understand what I said. It is an important point. She is correct that the rights include the 5 per cent. or less, whatever the RPI may be. That is the right that continues. The benefit is anything above 5 per cent.; that is discretionary. It is discretionary at present, and such discretion will move over to those people operating in the future. The right of up to 5 per cent. will be a right which continues.
  Baroness Birk: My Lords, I find myself in a difficult situation. One further question has arisen on the points I made. What may sound extremely strange, what has never happened before and what may never happen again is that if the noble Lord, Lord Boyd-Carpenter, is satisfied with the answers given by the Minister, I too may be satisfied. The noble Lord is much more a specialist on pensions than I and this is not a party political matter.
  I should like to know whether Parliament will be able to scrutinise the form of sale of the IBA transmission. It is an extremely important point. The Minister said that it would be either by trade sale or public flotation. When I asked the question he said that he thought it would be by public flotation. I believe I asked—if I did not I meant to—whether Parliament would be able to scrutinise the form of sale before it occurred.
  Earl Ferrers: My Lords, with the leave of the House perhaps I may make a further intervention. It is correct that the sale of the transmission will not require parliamentary approval, though Ministers may like to inform Parliament regarding the way the sale is proposed.
  Baroness Birk: My Lords, we are speaking of public bodies and Parliament should certainly be informed. I am sure that the other place would feel the same way. The point has not been put before them because it has just entered this debate. It will be contained in the Lords' amendments that go back to the Commons. I should like to feel that we shall receive an affirmative answer. Perhaps the Minister will note my comments.
  On Question, Amendment No. 280A, as an amendment to Amendment No. 280, agreed to.
  Baroness Birk Baroness Birk moved, as an amendment to Amendment No. 280, Amendment No. 280B:
  Line 17, at end insert:
  ("(2A) When making an order under sub-paragraph (2) the Secretary of State shall have regard to the interests of all classes of persons who are for the time being beneficiaries or potential beneficiaries under the plan referred to in sub-paragraph (1).").
  On Question, Amendment No. 280B, as an amendment to Amendment No. 280, agreed to.
  On Question, Amendment No. 280, as amended, agreed to.
  Earl Ferrers Earl Ferrers moved Amendment No. 281:
  Page 192, line 47, at end insert:
  ("Discharge by IBA of contingent etc. liabilities
  8B.—(1) This paragraph applies to any liabilities to which the IBA are subject on or after the transfer date, being liabilities which—

  (a) had not become enforceable against the IBA before that date, and

  (b) are not specifically and exclusively referable to any particular part or parts of the undertaking of the IBA which has or have been transferred in accordance with a transfer scheme to one or more of the relevant transferees.

  (2) Any sums required by the IBA for the purpose of discharging any liabilities to which this paragraph applies shall be paid to them by the Secretary of State out of money provided by Parliament.
  (3) Any payments made to the IBA under sub-paragraph (2) may be so made subject to such conditions as the Secretary of State may determine with the approval of the Treasury.").
  The noble Earl said: My Lords, in moving Amendment No. 281 I shall speak also to Amendment No. 282. These amendments were spoken to with Amendments Nos. 278 and 279. I beg to move.
  On Question, amendment agreed to.
  Clause 127 [Vesting in Commission of assets of Cable Authority and dissolution of Authority]:
  Earl Ferrers Earl Ferrers moved Amendment No. 282:
  Page 104, line 11, at end insert:
  ("(3A) If requested to do so by the chairman appointed under subsection (3) (a), the Commission shall furnish the Cable Authority with any assistance required by them for the purpose of carrying out any of those functions.").
  On Question, amendment agreed to.
  Clause 128 [Transitional arrangements relating to IBA's broadcasting services]:
  Earl Ferrers Earl Ferrers moved Amendments Nos. 283 to 291:
  Page 105, line 1, after ("4") insert ("and S4C respectively").
  Page 105, line 4, after ("company") insert:

  ("(a) in the case of the programmes broadcast on Channel 4,").

  Page 105, line 6 at end insert (", and

  (b) in the case of the programmes broadcast on S4C, in pursuance of such a contract made between the nominated company and the Welsh Authority as is mentioned in subsection (5A).").

  Page 105, line 7, after ("(3)") insert ("(a)").
  Page 105, line 24, at end insert:
  ("(5A) The contract referred to in subsection (3) (b) is a contract which makes provision for and in connection with the transmission by the nominated company during the interim period of the programmes to be broadcast on S4C during that period, and in particular makes provision for specified standards relating to technical quality, coverage and reliability to be attained in connection with the transmission of those programmes by that company.").
  Page 105, line 38, after ("subsections") insert ("or subsection (5A)").
  Page 106, line 12, at end insert (", but excluding so much of that service as consisted, immediately before the transfer date, in the broadcasting of programmes for reception wholly or mainly in Wales").
  Page 106, line 14, at end insert:
  (" "on S4C" has the same meaning as in Part I of this Act.").
  Page 106. line 15, after ("(4)") insert ("or (5A)").
  The noble Earl said: My Lords, I speak also to Amendment No. 292. These are technical amendments which clarify the arrangements for the transition of Channel 4 and S4C during 1991. I beg to move.
  On Question, amendments agreed to.
  Schedule 9 [Transitional Provisions Relating to IBA's Broadcasting Services]:
  Earl Ferrers Earl Ferrers moved Amendment No. 292:
  Page 195, line 17, at end insert (", but excluding so much of that service as consisted, immediately before the transfer date, in the broadcasting of programmes for reception wholly or mainly in Wales, and "on Channel 4" means in the said service;").
  On Question, amendment agreed to.
  Earl Ferrers Earl Ferrers moved Amendment No. 293:
  Page 196, line 34, at end insert:
  ("(6A) Section 9 of the 1981 Act shall have effect in accordance with sub-paragraph (3) above as if—

  (a) in subsection (1) (a), after "standards and practice in advertising" there were inserted "and in the sponsoring of programmes";

  (b) in subsection (1) (b), there were inserted at the end "and as regards the sponsoring of programmes so broadcast"; and

  (c) after "methods of advertising" (wherever occurring) there were inserted "or sponsorship";

  and the Commission may give effect to paragraph (a) above by making modifications to the code in force under section 9 immediately before the transfer date.").
  The noble Earl said: My Lords, in moving this amendment, I speak also to Amendments Nos. 296, 297 and 302. These amendments simply enable the ITC for the interim period until the end of 1992 to extend the advertising code laid down under Section 9 of the 1981 Broadcasting Act also to sponsorship. I beg to move.
  On Question, amendment agreed to.
  Earl Ferrers Earl Ferrers moved Amendments Nos. 294 to 300:
  Page 197, line 39, at end insert:
  ("(3A) The Commission shall do all that they can to secure that during the interim period no TV programme contractor—

  (a) holds any local licence, or

  (b) controls any body which holds any such licence, or

  (c) is a participant with more than a 20 per cent. interest in a body corporate which holds any such licence,

  in a case where the area or locality for which the licensed service is to be provided is to a significant extent the same as the area for which television programmes are to be provided under the TV programme contractor's contract; and paragraph (c) above shall be construed in accordance with Part I of Schedule 2 to this Act.").
  Page 199, line 25, at end insert:
  ("(5) Where any service provided by a DBS teletext contractor constitutes such a service as is mentioned in section 45(1) of this Act, that service is licensable under section 46 of this Act as a licensable programme service, and not otherwise.").
  Page 200, line 36, at end insert ("and in relation to the sponsorship of programmes so broadcast").
  Page 200, line 38, after ("advertisements") insert ("and other programmes").
  Page 200, line 52, after ("(3)") insert ("and (5)").
  Page 201, line 43, leave out ("to make a recording") and insert ("in the case").

  799
  Page 201, line 45, leave out ("and to retain that recording") and insert ("to retain a recording of that programme").
  The noble Earl said: My Lords, these amendments were spoken to with Amendments Nos. 17, 99, 142, 174 and 293.
  On Question, amendments agreed to.
  Earl Ferrers Earl Ferrers moved Amendment No. 301:
  Page 204, line 5, at end insert ("; and "additional services licence", "domestic satellite licence" and "spare capacity" have the same meaning as in Part I of this Act.").
  The noble Earl said: My Lords, this is purely a drafting amendment. I beg to move.
  On Question, amendment agreed to.
  Earl Ferrers Earl Ferrers moved Amendments Nos. 302 to 305:
  Page 206, line 40, at end insert:
  ("(6A) Section 9 of the 1981 Act shall have effect in accordance with sub-paragraph (3) above as if—

  a) in subsection (1) (a), after "standards and practice in advertising" there were inserted "and in the sponsoring of programmes";

  (b) in subsection (1) (b), there were inserted at the end "and as regards the sponsoring of programmes so broadcast"; and

  (c) after "methods of advertising" (wherever occurring) there were inserted "or sponsorship";

  and the Authority may give effect to paragraph (a) above by making modifications to the code in force under section 9 immediately before the transfer date.").
  Page 207, line 50, at end insert:
  ("(4A) The Authority shall do all that they can to secure that, so long as any contract continues in force by virtue of sub-paragraph (1), the programme contractor under the contract neither—

  (a) holds any local licence, nor

  (b) controls any body which holds any such licence, nor

  (c) is a participant with more than a 20 per cent. interest in a body corporate which holds any such licence,

  in a case where the area or locality for which the licensed service is to be provided is to a significant extent the same as the locality for which local sound broadcasts are to be provided under the programme contractor's contract; and paragraph (c) above shall be construed in accordance with Part I of Schedule 2 to this Act.").
  Page 208, line 18, leave out ("to make a recording") and insert ("in the case").
  Page 208, line 20, leave out ("and to retain that recording") and insert ("to retain a recording of that programme").
  The noble Earl said: My Lords, these amendments were spoken to previously with Amendments Nos. 17, 99 and 293. I beg to move.
  On Question, amendments agreed to.
  Earl Ferrers Earl Ferrers moved Amendments Nos. 306 and 307:
  Page 210, line 16, leave out from ("until") to end of line 18 and insert ("31st December 1994.").
  Page 210, leave out lines 35 to 37.
  The noble Earl said: My Lords, the first of these amendments is purely technical but the second perhaps needs some explanation. It is the intention in the Bill that the Radio Authority should examine the financial viability of an application for a local licence with a view to considering whether the service is capable of being sustained for the whole period of the licence. That remains the effect of Clause 104(a).
  The shadow authority has suggested, however, that it would be a meaningless and unnecessary task for it to examine the financial status of the present IBA contractors before converting their contracts to licences under the transitional arrangements. Most of these stations have been broadcasting for a number of years and have managed to continue through difficult periods. There is no reason to suppose that they would not survive for the period of their initial Radio Authority licences. The other stations, which are mostly those introduced during the incremental scheme, have not been operating long enough to make any fresh study of their finances a worthwhile exercise. In the circumstances we agree with the authority that this duty is an unnecessary task at a time when it will have its hands full with other more important matters. I beg to move.
  On Question, amendments agreed to.
  Earl Ferrers Earl Ferrers moved Amendment No. 308:
  Page 211, line 5, at end insert:
  ("(2) Where any such contract is so terminated but the programme contractor is granted a local licence as from the date of its termination, any agreement—

  (a) made before that date between the contractor and any other person, and

  (b) framed (whether expressly or by implication) by reference to the contract or to the contractor's status as a programme contractor,

  shall (unless it expressly provides otherwise) have effect as from that date with such modifications as are necessary to take account of the replacement of the contract by the licence or of the contractor's new status as the holder of the licence (as the case may require).
  (3) References in sub-paragraph (2) to an agreement include references—

  (a) to an oral agreement, and

  (b) to a deed, bond or other instrument.").

  The noble Earl said: My Lords, in moving this amendment, I speak also to Amendment No. 313. These are technical amendments which are needed to ensure that, where an existing independent local radio contractor or cable operator opts under the transitional arrangements to be licensed under the new regime, existing agreements and obligations with third parties remain in force. I beg to move.
  On Question, amendment agreed to.
  Clause 131 [Disposal by IBA of DBS transmitting equipment etc.]:
  Earl Ferrers Earl Ferrers moved Amendment No. 309:
  Page 109, line 28, leave out from ("services") to end of line 31.
  The noble Earl said: My Lords, this is a drafting amendment which removes a redundant definition. I beg to move.
  On Question, amendment agreed to.
  Clause 132 [Functions exercisable by IBA before transfer date in connection with local sound broadcasting]:
  Earl Ferrers Earl Ferrers moved Amendments Nos. 310 to 312:
  Page 109, line 41, leave out ("for and").
  Page 109, line 41, leave out ("by the nominated company").

  801
  Page 109, line 44, at end insert (", which may include provision for the transmission of those programmes by the nominated company.").
  The noble Earl said: My Lords, these are purely technical amendments which raise no point of substance. I beg to move.
  On Question, amendments agreed to.
  Schedule 10 [Transitional Provisions Relating to Existing Cable Services]:
  Earl Ferrers Earl Ferrers moved Amendment No. 313:
  Page 221, line 21, at the end insert:
  ("(2) Where any such licence ("the existing licence") so ceases to have effect but the licence holder is granted in its place a licence ("the new licence") in pursuance of any provision of this Part of this Schedule, any agreement—

  (a) made between the licence holder and any other person before the time when the existing licence so ceases to have effect, and

  (b) framed (whether expressly or by implication) by reference to the existing licence or to the licence holder's status as the holder of that licence,

  shall (unless it expressly provides otherwise) have effect as from that time with such modifications as are necessary to take account of the replacement of the existing licence by the new licence or of the licence holder's new status as the holder of the new licence (as the case may require).
  (3) References in sub-paragraph (2) to an agreement include references—

  (a) to an oral agreement, and

  (b) to a deed, bond or other instrument.").

  The noble Earl said: My Lords, I spoke to this with Amendment No. 308. I beg to move.
  On Question, amendment agreed to.
  Earl Ferrers Earl Ferrers moved Amendments Nos. 314 to 322:
  Page 221, line 26, after ("(1)") insert ("Subject to sub-paragraph (2B) below,").
  Page 221, line 38, after ("except") insert:

  ("(a)").

  Page 221, line 39, at end insert ("or

  (b) in the case of Part I, in consequence of sub-paragraph (2A) (b) below.

  (2A) In section 78 of this Act—

  (a) subsection (1A) shall apply to the holder of a relevant licence and the service authorised to be provided under such a licence ("a licensed diffusion service") as it applies to the holder of a local delivery licence and his local delivery service; and

  (b) subsections (1) and (2) shall apply to a licensed diffusion service as they apply to a licensed local delivery service.

  (2B) The holder of a relevant licence shall be taken to be authorised by his licence to include in his licensed diffusion service advertisements which are inserted by him and are not included in any service falling within section 71(2) of this Act; hut, if any such advertisements are so included by him, sections 8 and 9 of this Act shall have effect as if the delivery of those advertisements constituted the provision of a service licensed under Part I of this Act and he were the holder of a licence in force under that Part.
  (2C) Section 79 of this Act shall apply to the holder of a relevant licence as it applies to the holder of a local delivery licence.").
  Page 221, line 41, leave out ("provided under the authority of a relevant licence") and insert ("a licensed diffusion service").
  Page 221, line 42, at end insert:
  ("2.—(1A) It shall be the duty of the Commission to discharge their functions under this Schedule as respects the
  802
  licensing of diffusion services in the manner in which they consider is best calculated to ensure fair and effective competition in the provision of such services and services connected with them.").
  Page 222, line 35, leave out ("5(5)") and insert ("5(4)").
  Page224, line 30, at end insert ("and").
  Page 224, line 32, leave out from ("Authority") to end of line 33.
  Page 225, line 5, at end insert:
  ("Inclusion of local material in prescribed diffusion services
  4A.—(1) In the case of a licence which continues in force by virtue of paragraph 1 in Part 11 of this Schedule, nothing in this Schedule shall be construed as prejudicing the operation of any conditions included in the licence which—

  (a) were included in it in pursuance of section 4(5) (a) of the 1984 Act, and

  (b) relate to the inclusion of such programmes, or to assisting such organisations, as are mentioned in section 7(2) (f) of that Act.

  2) Where—

  (a) any licence ("the new licence") is granted under paragraph 3 in Part II of this Schedule, and

  (b) the licence to provide the existing service (within the meaning of that paragraph) included any such conditions as are mentioned in sub-paragraph (1) above,

  the new licence shall include conditions corresponding to those conditions.").
  The noble Earl said: My Lords, these are all technical amendments to the transitional arrangements for the existing cable systems. I beg to move.
  On Question, amendments agreed to.
  Schedule 11 [The Broadcasting Complaints Commission: Supplementary Provisions]:
  Earl Ferrers Earl Ferrers moved Amendment No. 323:
  Page 227, line 18, leave out (", with the approval of the Secretary of State,").
  The noble Earl said: My Lords, this amendment was spoken to earlier. I beg to move.
  On Question, amendment agreed to.
  Earl Ferrers Earl Ferrers moved Amendments Nos. 324 and 325:
  Page 227, line 47, leave out sub-paragraph (1) and insert:
  ("(1) The BCC may appoint such number of employees as they may determine.
  (1A) The remuneration and other conditions of service of the persons appointed under this paragraph shall be determined by the BCC.").
  Page 228, line 4, at end insert:
  ("(2A) Any determination under sub-paragraph (1), (1A) or (2) shall require the approval of the Secretary of State given with the consent of the Treasury.").
  The noble Earl said: My Lords, I speak also to Amendments Nos. 329A and 329B. These are mainly technical amendments. They confirm and clarify the Secretary of State's powers to determine, with the consent of the Treasury, the number of staff to be employed by the Broadcasting Complaints Commission and the Broadcasting Standards Council, together with their pay and conditions. I beg to move.
  On Question, amendments agreed to.
  Earl Ferrers Earl Ferrers moved Amendment No. 326:
  Page 228, line 42, after ("the") insert ("Chartered").
  The noble Earl said: My Lords, this amendment has been spoken to with Amendments Nos. 25 and 99. I beg to move.
  On Question, amendment agreed to.
  Clause 144 [Consideration of complaints]:
  Earl Ferrers Earl Ferrers moved Amendments Nos. 327 and 328:
  Page 117, line 17, leave out ("make") and insert ("retain").
  Page 117, line 18, leave out ("and to retain that recording").
  The noble Earl said: My Lords, these amendments have already been spoken to with Amendments Nos. 25 and 99. I beg to move.
  On Question, amendments agreed to.
  Schedule 12 [The Broadcasting Standards Council: Supplementary Provisions]:
  Earl Ferrers Earl Ferrers moved Amendment No. 329:
  Page 230, line 30, leave out (", with the approval of the Secretary of State,").
  The noble Earl said: My Lords, this amendment was spoken to with Amendments Nos. 25 and 99. I beg to move.
  On Question, amendment agreed to.
  Earl Ferrers Earl Ferrers moved Amendments Nos. 329A and 329B:
  Page 231, line 11, leave out sub-paragraph (1) and insert:
  ("(1) The Council may appoint such number of employees as they may determine.
  (1A) The remuneration and other conditions of service of the persons appointed under this paragraph shall be determined by the Council.").
  Page 231, line 16, at end insert:
  ("(2A) Any determination under sub-paragraph (1), (1A) or (2) shall require the approval of the Secretary of State given with the consent of the Treasury.").
  The noble Earl said: My Lords, both these amendments were spoken to with Amendment No. 324. I beg to move.
  On Question, amendments agreed to.
  The Earl of Strathmore and Kinghorne: My Lords, I beg to move that further consideration on Report be now adjourned until 8.30 p.m.
  Moved accordingly, and, on Question, Motion agreed to.
  [The Sitting was suspended from 7.30 to 8.30 p.m.]
  Clause 153 [Consideration by Council of complaints relating to broadcasting standards]:
  Baroness Birk Baroness Birk moved Amendment No. 330:
  Page 123, line 15, leave out subsection (7).
  The noble Baroness said: My Lords, this amendment deals with the Broadcasting Standards Council, a subject about which, in Committee, we had a long and lively debate. Most of the views expressed on that occasion were, if I remember correctly, not in favour of the council. The amendment is quite narrow. It seek s to remove a power which we feel the council should not have.
  The Government claim that the Broadcasting Standards Council was set up in response to public concern about standards of taste and decency. They
  804
  claim at the same time to be bringing a lighter touch to regulation in broadcasting. However, in regard to the Broadcasting Standards Council, the evidence does not bear out either of those claims. There has been no outcry to which the setting up of this body, another quango, should be a response. The lighter touch of regulation should go entirely the opposite way and should prevent the setting up of such a body. We already have the Broadcasting Complaints Commission and it seems more than likely, unfortunately, that we shall have a Broadcasting Standards Council. I have nothing personal against those involved—the chairman, the noble Lord, Lord Rees-Mogg, or the director, Colin Shaw—but they should not be doing this job at all.
  Perhaps I may refer to the council's remit. Like the Broadcasting Complaints Commission, it should be restricted to considering complaints brought by members of the public. As the IBA said in a briefing paper dated 26th February 1990:
  "It does appear to be giving the BSC an ability to act as informant, policeman, prosecuting counsel, jury and judge".
  That is because, under the plans at the moment and as the provision stands in the Bill at this stage, the BSC will have the power to initiate complaints. That is not what it was supposed to be about. Such a power was not proposed when the case was made for setting up the BSC.
  Like the Broadcasting Complaints Commission, the BSC should be restricted to the consideration of complaints brought by members of the public. The right to initiate complaints will involve the BSC in lengthy and expensive monitoring of programmes as it will have to be able to make judgments on programme standards. The Government's intention was clearly not to give the BSC the previewing powers which they have just taken away from the IBA. However, if the Broadcasting Standards Council is entitled to initiate complaints, it will have to be able to monitor a fair range of programming in the public interest. When it starts on that road it is difficult to see how it will be able to continue without getting the agreement of the Government to allow it to preview as well.
  The BSC should not be given greater powers than other regulators or the arrogant expectation that its judgment is equal to or better than that of a member of the public. If a programme causes real public concern in relation to standards, a complaint will be made. People take different views about things and some will write in, especially at the beginning when the new body is set up. However, the council has no business to be initiating complaints itself. It is a way of inviting the council to meddle in everyone else's business. We all like to think of ourselves as being highly objective but in many areas of our lives and at different times we take a subjective view. There is nothing wrong with that but it should be recognised. But if the BSC initiates complaints itself and takes a subjective view it may become a dangerous busybody. If we remove subsection (7), the council will still be there in all its glory and with its powers to deal with complaints from the public but at least many of us will feel easier about it. I beg to move.
  Lord Bonham-Carter: My Lords, I support the noble Baroness, Lady Birk, in her amendment which does something to clip the wings of this totally redundant body. My views on the existence of the Broadcasting Standards Council are known to the noble Earl. It is an unnecessary censoring group. The provision offends against almost every law of administration that has ever been invented. It disperses responsibility instead of concentrating it. The Government who claimed—and we believed them, although we no longer can—that they would govern broadcasting with a lighter touch have created an array of regulatory authorities the like of which has never been seen before in this country.
  To start with we have the law; we have the Home Secretary who introduced the Sinn Fein ban; we have the boards of the ITC and the BBC; we have the Broadcasting Complaints Commission; and now we have the Broadcasting Standards Council. If that is a light touch, what in God's name do the Government think of is a heavy touch? It makes one wonder what else they would superimpose on the broadcasting authorities to ensure that they toed the line. I can tell the House of one regulation which they would impose; indeed, they have already done so. I refer to self-censorship. That is a most dangerous measure to introduce into a journalistic organisation.
  I do not know whether noble Lords are aware of what happened to Eric James, who used to present the "Thought for the Day" programme for the BBC. He has resigned because at the time of the Labour Party Conference he proposed to feature on the programme a very distinguished and interesting East End pastor called Groser. He introduced into his discussion on Groser, who was very relevant to the talk as well as to the thought for the day, the spirituality of revolt—this in the present climate of the times which have been brought about by the Government submitting to the pressure of people like the noble Lords, Lord Wyatt of Weeford and Lord Orr-Ewing, not to speak of 10 Downing Street. They have introduced into the broadcasting scene a spirit of self-censorship which I find extremely alarming.
  I think that the Broadcasting Standards Council is just one among other elements which is a dangerous addition to the regulatory apparatus overseeing broadcasting in this country. The trouble with the council is that it has no real job because other people are already doing it. Therefore, it is in the process of creating a job for itself. It wanted to preview programmes and I congratulate the Government on stopping it from so doing. However, it now wants to be able to initiate complaints. I do not congratulate the Government on submitting to its desire to do so. Why should the council initiate complaints? People initiate complaints if they have something to complain about.
  Therefore, why set up a statutory body composed of an odd assortment of individuals—a fairly classically composed assortment of individuals—who will go around drumming up complaints? It is a totally unnecessary organisation. The best we can do at this
  806
  stage of the Bill's proceedings is to limit its powers. Therefore, I wholly support the amendment moved by the noble Baroness.
  Lord Lloyd of Hampstead: My Lords, I believe that there is some objection in principle to subsection (7) as it now appears in the Bill, although I do not necessarily associate myself with everything that has been said by the noble Lord, Lord Bonham-Carter. To my mind the objection is of a much more general character in that here you have a body which is set up to assume what I imagine to be a more or less quasi-judicial role. When complaints are made, its job is to adjudicate on those matters in a dispassionate way after considering all the evidence, and so on.
  When it is said that such a body, if it is so moved, should be entitled to make complaints of its own, it seems to me that you are putting it in a somewhat equivocal position. I say that because what is being said is that the body will be able to turn itself around and become a kind of prosecutor and presumably refer the issue to itself, when it will arbitrate upon it in a totally impartial way.
  Therefore, whether this subsection is properly included in the clause is an issue deserving of thought on the part of the Government. That does not necessarily seem to me to involve an attack on the council as such; it goes to the principle of the function of such a council and may well confuse its role in a way which will weaken its force vis-á-vis the public.
  8.45 p.m.
  The Lord Bishop of Peterborough: My Lords, I hesitate to speak as I am a member of this "worthless body"—thus described by the noble Lord opposite. We make our points not from our own views but from the vast amount of inquiry and research which we carry out among the British public. During the course of these long debates on the Broadcasting Bill I have observed that the people who are the least noticed are the viewers and the listeners.
  I have listened to the arguments put forward on behalf of the broadcasters and on behalf of every private and public interest involved, but I have not noticed that those who watch and listen are much regarded. We have spent two years talking to people and making inquiries of them. The point of the exercise is that we believe that over a given period certain opinions emerge from the public which would be worth airing.
  I served on the Press Council for six unhappy years. That is indeed a worthless body. In fact we had the same principle; namely, that there were certain issues to do with the press which we would raise. We were ineffective. I am grateful to Her Majesty's Government for the fact that we might in this new dispensation which I share have the possibility of being effective. It seems to me that in many ways the ordinary people of this country have been betrayed by those who handle the media and who, by and large, should be their servants. We are concerned that, if issues emerge from inquiries we make which people have not raised, we should have the right to do so.

  807
  Of course it would be quite easy for us to find our friends and ask them to raise issues. Undoubtedly I could ask several people from my own diocese to write in to the council. Indeed, such people are most agreeable to me and they would certainly do so. However, it is much more honourable that the council should say that it is bothered about a particular programme. We would not go to the stake on this issue; it is not the fundamental point of our lives. However, it seems to me that, having really listened to the people to whom we have talked, who are not simply the producers of programmes but who are also the receivers of them, there comes a time when we should take note of what they say and use it as a means to present before the broadcaster and the British public some of the genuine issues which have come to light. I believe that we are doing our duty and I am sorry that the noble Lord opposite should regard us in this worthless way.
  I have studied the research we have carried out and I have talked to the people. We are one group which is without any commitment to any established place in the whole broadcasting world; indeed, we are one group which is trying to listen to what the ordinary person is saying to us.
  Lord Bonham-Carter: My Lords, before the right reverend Prelate sits down, is he aware that for years and years the BBC and the IBA have taken weekly polls of public opinion; that each of them keeps a book of every complaint that comes in; and that when I was there they conducted open meetings throughout the country to find out what people had to say? Is he aware that their polls cover a far wider spectrum than the 750 selected persons with whom he has been in touch? When he says that no one listens to what the viewers say, is he aware that journalist broadcasters are constantly listening to them?
  The Lord Bishop of Peterborough: My Lords, I am aware of that. We have been received most courteously by the BBC and the IBA, in contrast to the way I was received by the press barons when I was on the Press Council. But the complaints are bound to be sieved through the central authority of the BBC and the IBA, which have a job to do. Our job is different.
  Earl Ferrers: My Lords, it is difficult to find a meeting point between the noble Baroness, Lady Birk, and the noble Lord, Lord Bonham-Carter, on the one side and ourselves on the other, because they do not like the idea of a Broadcasting Standards Council, as they have made clear. One sometimes forgets why the council was set up. It was set up because there was genuine anxiety about the standards of taste and decency emanating from television. The noble Lord, Lord Bonham-Carter, said that that was imposed self-censorship. I can only say to him that if the broadcasters conduct themselves in such a way as to create enormous concern throughout the country it is not surprising that the Government take some action.
  Any body which broadcasts has a responsibility to ensure that what goes out measures up to certain standards. I could not help but be amused when the noble Lord said that the amendment clips the wings of
  808
  a redundant body. If the body is so redundant, I cannot think why he waxed so eloquent in his attack upon it. It seemed to me that he considered that it was anything but redundant. He disliked what it was going to do. He implied that we have more regulatory bodies than any other country.
  It is important to keep the matter in the right perspective and not to go over the top. The noble Baroness referred to the previewing powers which the BSC would have. It has no previewing powers; it has the power to monitor. I was pleased that the right reverend Prelate the Bishop of Peterborough supported the BSC. He was right when he said that, if the amendment were passed and the BSC was not able to act upon that which it had monitored, its members would only have to give one of their friends a prod and ask, "Will you please write in and then we can take action?" That is an absurd state of affairs. We believe there to be sound reasons why the council should bring its own complaints to the attention of the broadcasters.
  As a result of Clause 152, the council has a monitoring role over programmes which are broadcast. That is partly to enable it to assess trends and patterns in broadcasting in connection with its research functions, but it will also enable it to consider whether acceptable standards of taste and decency are being achieved. In view of the general public concern about standards, it is important for the council to exercise that role.
  Given the need for the council to monitor programmes, not to review them——
  Baroness Seear: My Lords, I am sorry to interrupt the Minister, but what is the scientific evidence which shows that there is a great volume of concern? That is what we should like to know. We have been told about it in general terms.
  Earl Ferrers: My Lords, I cannot tell the noble Baroness whether there is scientific evidence, but there is sufficient evidence throughout the country for the Government to be concerned and to take some action. All we are doing is to set up a council which will do no more than monitor. If broadcasters broadcast programmes which keep within the reasonable bounds of taste and decency, they have nothing to worry about.
  It would not make sense if the BSC could not take action when it became clear that offensive material had been broadcast. In such circumstances, it seems only fair that it should draw its concern, by means of a complaint, to the broadcaster's attention. That would then enable the broadcaster to provide his reasons for broadcasting such material. The council could reach a finding on the matter and decide how it should be reported. That may not always be by means of a broadcast on television or radio. On some occasions, it may consider it sufficient to record it in the general reports it will publish on the monitoring of programmes.
  The alternative would be for the council to monitor programmes, arrive, without having obtained the broadcaster's comments, at a view on what it

  809
  considered to be offensive material and then publish that one-sided view in its monitoring reports. I am sure that no one would consider that to be a desirable arrangement.
  The noble Lord, Lord Lloyd of Hampstead, was worried that if the amendment were carried the BSC would be unable to take its own complaints to the broadcaster. Complaints from members of the public only would be permitted. As the right reverend Prelate has said, in those circumstances the members of the BSC would only need to suggest to one of their friends that they wrote in.
  The fair method is for the council to make its views known to the broadcaster if potentially offensive material is being broadcast, to ask the broadcaster to give his views, and to obtain his response, following which the BSC could arrive at a finding. It is absurd to suggest that the BSC can monitor but then should wait for a member of the public to complain.
  If the amendment were passed, it would truncate the complaints procedure. It removes the fair element, which is the provision to consult the broadcaster. If the amendment were accepted, the BSC could nevertheless give vent to its views without having heard the other side of the story.
  I do not know whether I can ever persuade the noble Baroness and the noble Lord—I try my best periodically—to understand that the BSC is not a stringent body which will be out to be unduly curtailing or offensive to broadcasters. It is there to protect the public and to ensure that, should the broadcasters overstep the mark and broadcast material that offends the standards of taste and decency, action can be taken.
  There is a variety of ways in which the council can do that. It can talk to the broadcasters. It can offer a reprimand or eventually of course it can suggest that its reports should be published in a newspaper or at worst on television. It is merely a check, and a reasonable check, upon what is portrayed on the television screens. I hope therefore that your Lordships will not agree to the amendment.
  Lord Bonham-Carter: My Lords, before the Minister sits down, does he agree that that check upon the broadcasters, that defence of the public interest, is the responsibility which is laid upon the Board of Governors of the BBC by Royal Charter? Why should not that responsibility remain there, where it is clearly defined? Why should it be dispersed to other bodies?
  Earl Ferrers: My Lords, because it is reasonable that any material that is broadcast, be it via the BBC or ITV, should have a common denominator—the body that considers whether complaints are justified.
  Baroness Birk: My Lords, I listened carefully to everything that was said by the right reverend Prelate and by the Minister. I do not know whether the right reverend Prelate was referring to me when he said that the Broadcasting Standards Council had been described as worthless. I did not say that it was worthless. I said that it was unnecessary.
  The Lord Bishop of Peterborough: My Lords, it was not the noble Baroness to whom I was referring.
  Lord Bonham-Carter: My Lords, I plead guilty.
  Baroness Birk: My Lords, I said that it was quite unnecessary, which may be interpreted in the same way. I still believe that it was unnecessary and nothing has been said to change my mind. I cannot believe that the right reverend Prelate would go to the lengths—and I hope that other members of the council would not do this either—of asking somebody to write in if he thought that something was wrong. If the right reverend Prelate thought that something was wrong, and if the right to initiate complaints was taken out of the Bill, he would have to accept that his judgment was not quite right. He should accept that there should be a subjective judgment. I should be very surprised and shocked if I thought that the right reverend Prelate would play tricks like that. I do not believe that he would do anything like that.
  As regards keeping this matter in the right perspective, I thought that the noble Earl was in serious difficulties. I wrote down exactly what he said. He mentioned "enormous concern around the country." The noble Baroness, Lady Seear, asked him on what basis he said that. I must repeat that it is quite wrong and dangerous for a Minister in particular to talk in that way about "enormous concern around the country" without producing any hard evidence. All the evidence goes entirely the other way. As we discovered when we were discussing impartiality, there are not masses of complaints and the public are not writing in in droves or demonstrating about this matter.
  Earl Ferrers: My Lords, if there is no concern, then nobody has anything to worry about.
  Baroness Birk: My Lords, I did not say that there was no concern. The noble Baroness, Lady Seear, and I wanted the Minister to explain on what basis he said that there was "enormous concern" around the country. Those were the words he used. He has been unable to give us an answer. We must accept that the council has been set up. However, the point made by the noble Lord, Lord Lloyd of Hampstead, is valid about this area of initiating complaints which is a very small and narrow part of the council's job. If it has to take up complaints from other people, then that is quite enough to keep it busy for some time.
  The noble Lord, Lord Bonham-Carter, was right when he listed all the other bodies which are dealing with exactly the same issue. The IBA has the right to investigate and to look at the way in which its own programmes go out, as does the BBC under its Royal Charter. What is the Broadcasting Complaints Commission supposed to do? Is there to be a race between who can get in with the most complaints? This is over-egging the complaints pudding.
  It is quite clear that the Government will not move on this issue. Therefore, although it is late at night, many of us feel so strongly about this issue that I intend to divide the House.
  9.4 p.m.
  On Question, Whether the said amendment (No. 330) shall be agreed to?
  Their Lordships divided: Contents, 33; Not-Contents, 70.

  Division No. 3

  CONTENTS

  Airedale, L.

  Mackie of Benshie, L.

  Ardwick L.

  Mason of Barnsley, L.

  Birk, B.

  Monson, L.

  Blease, L.

  Morris of Castle Morris, L.

  Bonham Carter, L.

  Parry, L.

  Boston of Faversham, L.

  Peston, L.

  Carter, L. [Teller.]

  Plowden, L.

  Clinton-Davis, L.

  Rochester, L.

  Cocks of Hartcliffe, L.

  Ross of Newport, L.

  Darcy (de Knayth), B.

  Seear, B.

  Grey, E.

  Shackleton, L.

  Hooson, L.

  Shepherd, L.

  Jay, L.

  Tordoff, L.

  Jeger, B.

  Vernon, L.

  Lloyd of Hampstead, L.

  Willis, L.

  Lockwood, B.

  Winstanley, L. [Teller.]

  McGregor of Durris, L.

  NOT-CONTENTS

  Allerton, L.

  Jenkin of Roding, L.

  Astor, V.

  Johnston of Rockport, L.

  Balfour, E.

  Kimball, L.

  Barber, L.

  Kinnoull, E.

  Beaverbrook, L.

  Lindsey and Abingdon, E.

  Belstead, L.

  Long, V. [Teller.]

  Blatch, B.

  Lyell, L.

  Boardman, L.

  Mackay of Clashfern, L.

  Borthwick, L.

  Mackintosh of Halifax, V.

  Boyd-Carpenter, L.

  Macleod of Borve, B.

  Brabazon of Tara, L.

  Mancroft, L.

  Brougham and Vaux, L.

  Masham of Ilton, B.

  Butterworth, L.

  Merrivale, L.

  Caithness, E.

  Monk Bretton, L.

  Carnegy of Lour, B.

  Mountevans, L.

  Carnock L.

  Oxfuird, V.

  Cavendish of Furness, L.

  Peterborough, Bp.

  Coleraine, L.

  Platt of Writtle, B.

  Colnbrook, L.

  Reay, L.

  Colwyn, L.

  Rodney, L.

  Davidson, V.

  Sandford, L.

  Denham L. [Teller.]

  Sandys, L.

  Downshire, M.

  Skelmersdale, L.

  Elliot of Harwood, B.

  Stanley of Alderley, L.

  Elliott of Morpeth, L.

  Stockton, E.

  Elton, L

  Stodart of Leaston, L.

  Faithfull, B.

  Strange, B.

  Ferrers, E.

  Strathclyde, L.

  Glenarthur, L.

  Strathmore and Kinghorne, E.

  Goold, L.

  Swinton, E.

  Greenway, L.

  Thomas of Gwydir, L.

  Halsbury, E.

  Thorneycroft, L.

  Harvington, L.

  Trumpington, B.

  Henley, L.

  Ullswater, V.

  Hives, L

  Wynford, L.

  Resolved in the negative, and amendment disagreed to accordingly.
  9.11 p.m.
  Clause 154 [Consideration of complaints]:
  [Amendments Nos. 331 and 332 not moved.]
  Clause 160 [Interpretation of Part VI]:
  Lord McGregor of Durris Lord McGregor of Durris moved Amendment No. 333:
  Page 126, line 13, at end insert:
  (" "programme" does not include an advertisement;").
  The noble Lord said: My Lords, the purpose of this amendment is to redefine the word "programme" as used in the Bill so that it will exclude advertisements and thus remove the power of the Broadcasting Standards Council to intervene in radio and television advertisements. I moved the same amendment in Committee. In reply to that amendment, the noble Earl, Lord Ferrers, said:
  "I do not wish to be obstinate on the matter. Members of the Committee have expressed much concern. I should like to consider what has been said, without commitment".—[Official Report, 25/7/90; col. 1592.]
  Unhappily little progress has been made. Noble Lords who supported the amendment feel that the issue is so important that it is right to go over the ground again. The noble Earl also said, again at col. 1592, that he could understand,
  "that some noble Lords do not like the Broadcasting Standards Council".
  He made that comment in Committee and he repeated it a few moments ago. I wish to emphasise that this amendment does not in any way stem from dislike of the council. It stems from the inappropriateness of adding the power to regulate advertising to its chief functions. The amendment will not alter those functions in any way.
  Further, it is essential to grasp at the outset that advertisers accept, and indeed welcome, regulation of advertising on television. The chairman of the council, the noble Lord, Lord Rees-Mogg, wholly misunderstood their attitude when at Second Reading he referred to, as he put it, my request:
  "that we should exclude advertisers from the consideration of standards. That has been a substantial lobby. The advertisers are undoubtedly keen that they should be excluded. My own judgment is that that is not wise of them and that they are not in a position to come forward and say, 'Look, we are people who should be let off, but ordinary broadcasters who appear in the time which occurs between our advertisements should be subject to the standards provisions'. That seems to be a false position for advertisers to take up".—[Official Report, 5/6/90; col. 1292.]
  That never was the position of advertisers. As in the case of the broadcasting and advertising industry organisations, as well as of the Advertising Standards Authority, which regulates print advertising, their anxiety arises not from a fear of control but from dismay that the existing machinery of control will be weakened by the power of the Broadcasting Standards Council to intervene in advertising, thus reducing public confidence in advertising to the detriment of the industry.
  There are almost no complaints about television advertisements on grounds of sex, violence or bad language, the issues which the Minister told us a few minutes ago are the chief concerns of the Broadcasting Standards Council. I am not aware of criticism of the present system of controls for television advertising or of the code which regulates it. Currently some 30 to 40 per cent. of all scripts are vetted. All new television commercials are previewed at a daily viewing session, after which they are formally approved for transmission.
  I understand that, from the beginning of next year until the end of the current ITV contracts in 1992, the

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  essential nature of the regime as it affects present IBA contractors will remain unchanged. The transitional provisions of the Bill effectively transfer to the ITC the powers and responsibilities of the IBA under the 1981 Act for those purposes. From 1993 the ITC's role will be that of a regulatory body rather than a publisher. However, that does not mean that pre-vetting will cease or that the ITC will be removed from decisions about the preparation of advertising.
  I am informed that it will be a condition of all ITC licences that the licensee has adequate machinery and procedures for checking advertising against the requirements of the ITC code. That will require the employment of suitably qualified people and the retention of suitable consultants.
  I have not come across anyone who doubts that much of the television industry believes that the most satisfactory way of discharging that obligation will be to participate in joint copy clearance arrangements on the lines provided by the ITV association. Mr. George Russell, chairman of the ITC, has made it clear to the advertising industry that the ITC will remain accessible in order to minimise the risk of expensive misunderstandings in the production of commercial advertisements. The ITC will be empowered to take swift action to withdraw advertising in breach of the code in those cases where, for one reason or another, the pre-vetting machinery breaks down.
  Pre-vetting and prior approval before transmission are the prerequisites of an advertiser's willingness to invest in the advertisements which finance the whole system. Such investments, in the case of any one set of advertisements, may range from £40,000 to over £1 million.
  Consider what this Bill can do. Under it the Broadcasting Standards Council can require its comments on an advertisement to be screened by the television company. Most programmes are one-off productions. Many advertisements have a large number of showings. That creates a disturbing anomaly. The council can compel a television company to give air time to its view of a programme on a single occasion. In that sense its power over programmes is largely hortatory.
  In the case of an advertisement the cost of paying for scarce air time to screen the council's opinion of that advertisement every time that it appears as part of an advertising promotion—which may extend to a number of areas of the country and which may include not only television but also the press and promotion in stores and the like—will be so high that the television company will have to withdraw it. The advertiser will suffer the losses that result from the disruption of his advertising programme and promotions.
  Given that financial situation, a power which is hortatory in respect of programmes will in fact be mandatory when used against an advertisement. In my view such power should not be available to a body which cannot give security to advertisers because it possesses no means to pre-vet and therefore to approve advertisements before they are transmitted.
  I hope that the Minister will tell the House how the Government propose to remove that discrimination against advertisers. Will they finance a second pre-vetting system to be operated by the council? I understand that it is said that the Broadcasting Standards Council will not use the powers contained in the Bill. That is cold comfort to the advertising industry. After all, people change their jobs and the power in the Bill cannot in any way be removed by a statement of the unwillingness to use it by those who for the time being are in office in that council.
  Again, the exercise of that power—I presume that it would not be in the Bill if it were not intended that it should be exercised—will lead to further fragmentation of the regulatory bodies dealing with advertising. That has a series of consequences with which I shall not weary your Lordships save to say that there is already considerable confusion among consumers as to where lie the responsibilities for regulating television and print advertising. With a great deal of effort and not a little expenditure such confusion has been largely sorted out. People know where to take their complaints. The Bill will introduce new confusion and further muddle. As the right reverend Prelate said, it is important that the public should be considered. One does not consider the public by muddling them as to where they should take their complaints, as will happen under the Bill.
  The present system works excellently. There are no complaints about it. No bodies have been formed to replace it or to challenge its incompetences or inefficiencies. There is no logical connection between the Broadcasting Standards Council's power over programmes and its power over advertisements. The two are different in nature. They are different in the commentary that the council can make upon them and in the consequences of the exercise of the council's powers.
  The case for removing that power from the council is very strong indeed. I hope that on this occasion the Minister will feel able to be more forthcoming than he was in Committee.
  Lord Plowden: My Lords, I wish to make clear the reason that I have put my name to the amendment. I was appalled at the interpretation of the Bill with regard to advertising. The provision can do nothing but add confusion, and worse, in that field. I have no personal knowledge of the way in which the system of the IBA works. However, I have considerable knowledge of regulatory bodies in other fields.
  I am in full agreement with everything that the noble Lord, Lord McGregor, said. Advertisements are different from programmes. They are repeated—sometimes many hundreds of times. As the noble Lord said, they can cost up to £1 million. It is therefore essential that they should be approved before they are broadcast. Advertisers would then know that unless something very strange happens, the advertisement will be broadcast. As I understand it, the BSC will have the power to intervene to make complaints about advertisements after they have been broadcast. As the noble Lord pointed out, we know what the likely result will be.

  815
  The purpose of advertising is to increase business; but there are many ways of advertising and not all are on television. We are running the risk of antagonising the advertising industry. We must remember that the industry pays for the television service that we are discussing. If reasonable arrangements are made on an ad hoc basis in order to make the system work it will be essential to incorporate them in the Bill so that when the people who carry out the arrangements leave, their successors will continue.
  I feel strongly about the issue. I cannot believe that a government who attaches great importance to business should permit such a provision which I can assure noble Lords will put the system in jeopardy. I have consulted many business friends and all are most apprehensive. They hold grave doubts about whether the proposed system can work. I hope that the noble Earl will accept the fact that I make my comments in the interests of the industry and business generally and not with a political motive.
  Lord Boston of Faversham: My Lords, I support the amendment moved by the noble Lord, Lord McGregor of Durris, and supported so persuasively by the noble Lord, Lord Plowden, with all his experience. I do not propose to cover in detail the main arguments raised in Committee by various noble Lords. Some have been mentioned tonight by the noble Lord, Lord McGregor, and others by the noble Lord, Lord Plowden. However, it is important to underline some of the major arguments.
  The prime point is that the machinery which already exists for controlling television advertisements and for ensuring that a high standard is maintained is more than adequate and has proved itself. It is the case that under the new system greater reliance will be placed upon the judgment of licensees. However, no one, certainly not the Government, has suggested that that will cause any problems. If the Government had thought otherwise, they would hardly have put forward proposals which they considered inadequate.
  Moreover, under the system as it will be operated by the ITC the commission will have a powerful weapon at its disposal, if needed. As we know, and as was mentioned by the noble Lord, Lord McGregor, tonight, the ITC is to make it a licence condition that licensees must have the adequate pre-vetting machinery as now exists. Therefore, if a franchise-holder fails to maintain suitable arrangements, the commission can call it to account and, if necessary, use its power to impose sanctions. Indeed, failure could amount to breach of contract by the licensee.
  The next most powerful argument against involving the Broadcasting Standards Council is that it would add another layer of regulatory machinery, which is unnecessary. The Government have made a point of going for a lighter touch and less regulation—a point which the noble Lord, Lord McGregor, has explored in detail, so I shall not do so. Not only is that machinery unnecessary but it would also be disadvantageous, for it would be confusing for viewers and complainants, who would not know to whom to complain.
  816
  Moreover, there would be the added problem that it would place the advertiser and the licensee in double jeopardy. It is hardly an attractive course to abandon a fundamental principle of this country: in this country we do not like to place a person in double jeopardy.
  Before dealing with matters which have arisen since your Lordships debated these matters in Committee, there is another point which I should like to mention in connection with an argument raised by the noble Lord, Lord McGregor. It concerned the power of the BSC to require the publicising on television, if necessary, after an offending advertisement has appeared of the adjudication upon that advertisement by the Broadcasting Standards Council. As your Lordships will know, there is no power at all in the Bill as it stands—nor, indeed, has anybody suggested that it should contain one—for the BSC to ban advertisements. However, it has power to require the carrying by the company concerned of an adjudication, if necessary after every time an offending advertisement is shown.
  The noble Lord, Lord McGregor, has indicated that if that were to happen no advertiser and no television company would continue to persist in carrying the advertisement because for one thing it would devalue the advertisement itself and for another it would do no good at all to the reputation either of the advertiser or of the television company. Therefore —and this is a point which I wish to add to the argument raised by the noble Lord, Lord McGregor of Durris, on this matter—what that power amounts to in the council is a power to ban the advertisement. If there were intended to be such a power in the Bill, the Bill would say that. Therefore, that is a very powerful reason for not continuing to have advertising included among the remits of the Broadcasting Standards Council.
  The only other point I wish to make so far as the pre-vetting question is concerned is the following. The chairman of the IBA shadow ITC, Mr. George Russell, has told the advertising industry that the ITC will remain accessible to give guidance on request to licensees to interpret the code to minimise the risk of costly misunderstandings over the production of advertisements. I understand that the BSC will not do that, and I should like to ask whether that is so. Perhaps the Minister might be able to tell us that later. Will there be any BSC pre-vetting system at all or any advance warning system for advertisers and licensees? I have not gone through all the arguments. Obviously, there are others, but those are some of the main ones.
  Since the Committee stage, my noble friend Lord McGregor of Durris and I have met the noble Earl's right honourable friend, the Minister for the Arts, Mr. David Mellor, and I have since had a letter from the noble Earl, Lord Ferrers. It was most helpful of Mr. Mellor to see us and to give us a generous amount of time, and it was very helpful of the noble Earl to write to me as he did.
  The letter dealt with one particular point that I raised with Mr. Mellor at our meeting. I wish to refer to that now and am grateful to the noble Earl for

  817
  saying that I may quote the letter. The letter dated 4th October 1990 refers to the meeting with Mr. Mellor on 24th September and suggests that I:
  "expressed concern that the Broadcasting Standards Council would be 'corralled' by a succession of complainants or an organised lobby into taking up complaints which lacked real substance".
  The point that I was making was that I accepted the good intentions and good faith of the council and its chairman, the noble Lord, Lord Rees-Mogg, in saying that it would be able to disregard complaints where it thought fit. However, what would happen if there was a persistent complainant who insisted and believed that his complaint was justified and he then tried to force the council to consider it fully? The letter goes on:
  "We have examined this point with the Broadcasting Standards Council and we find that this will not be a problem. There is already provision in the Bill (Clause 153 (5) (c) and (d)) which requires the Council not to entertain, or to proceed with, the consideration of complaints if they are frivolous or if it appears to the Council that for any other reason it is inappropriate for them to proceed. There is, therefore, no doubt about the Council's powers to rule out complaints".
  That is helpful, but we knew that at Committee stage. The letter continues:
  "As to their intentions, Lord Rees-Mogg"—
  I shall omit some words for the sake of time, but that will not alter the sense, as I am sure the noble Earl will appreciate—
  "pointed out during the Committee Stage … (Official Report, 25 July 1990, Column 1590) that Clause 153 (5) (d) could be regarded as a means of securing the reasonable treatment of advertising matters. Moreover, during the Second Reading Debate (Official Report, 5 June 1990, Column 1292–3) he emphasised that the Council's approach was to try to support the best existing practice. As he said then, the Council is 'not in the business of trying to intervene for the sake of intervention where there is already good existing practice—.
  Again, although helpful, those are matters that we had taken into account in Committee in the first place and, with regard to the other point, on Second Reading. I return to the point: surely it is not solely up to the council? What if the complainant persists with a complaint that he feels is justified and challenges the council? Is a flat statement by the council that it is inappropriate to consider the complaint sufficient? Does it not have to give reasons and are they not open to challenge in the courts?
  The letter concludes:
  "The Council has made it clear that it recognises that there is a distinction between programmes and advertisements, and that this may need to be reflected in the procedures. The Council has always been prepared to discuss the fears of advertisers in order to ensure that they are not peculiarly disadvantaged under its proposed procedures, and I am quite sure that it will proceed in a fair and sensible way. I hope that, in the light of the position which I have outlined, you will feel reassured on this point".
  The general approach of the letter is helpful and is plainly intended to be reassuring, as are the stated intentions of the chairman of the BSC, the noble Lord, Lord Rees-Mogg. However, there are three considerable problems on this matter. First, if the council intends to use the requirement in Clause 153(5) (d) to
  818
  rule out the vast bulk of complaints on advertisements, as it seems to be planning on quite reasonable grounds—I use the word "reasonable" in its legal sense—that process becomes the rule rather than the exception. That surely means that there is no point in having provision for the council to intervene in advertising matters. That is another reason why we feel that the amendment is right.
  The next point is that we have had no full statement of the way the council will operate; no full statement of any guidelines. There has been no indication of any agreement with the IBA/shadow ITC or details of consultations on the way those bodies will operate and co-operate to ensure that, as intended, the ITC remains the regulatory body for these purposes. There has been no definition of the term "appropriate" to show how the council intends to decide what it is likely to regard as appropriate or otherwise.
  The final problem is this. However well intentioned the present chairman and members of the Broadcasting Standards Council are, how can they bind their successors? How can we be sure that the successor of the noble Lord, Lord Rees-Mogg, will be as reasonable and well intentioned as he is and as I believe him to be? How can the Minister provide us with the reassurance with which he plainly seeks to provide us, that in the event of a dispute those statements of intent will prevail and that the letter of the law will uphold them even though they are not on the face of the Bill?
  It is on those two considerable problems as we see them that we feel we need undertakings. I feel sure that the Minister will acknowledge that we are entitled to seek those undertakings in time to consider them before Third Reading, unless he is now able to accept the amendment. I ask the Minister to undertake at the very least to spell out those various points plainly. I hope that he will agree that that is owed to the viewer, to the industry and to your Lordships and is a long way from being too much to ask.
  Lord Colwyn: My Lords, I spoke on this point at Second Reading and intended to support the noble Lord, Lord McGregor, at Committee stage, which regrettably I missed due to a misunderstanding over timings. I am not sure that there is much I can usefully add to the speech of the noble Lord, Lord Boston. However I promise to speak for only 60 seconds.
  Part VI of the Bill does not specifically mention advertising. As the Bill stands the Broadcasting Standards Council has the power to impose decisions on individual advertisements over the heads of the other regulatory bodies which will have the primary responsibility for that work. I agree with the IBA that that is likely to cause confusion and does not take account of the important differences between advertisements and programmes.
  Most programmes are broadcast once, whereas advertisements usually run for several weeks or months. Any complaint concerning a programme is usually a retrospective disapproval. A specific complaint concerning an advertisement usually requires immediate action to prevent its further

  819
  showing or have it amended before the next transmission. It is that essential difference which will draw the BSC far more directly into advertising regulation than will be the case for programmes.
  As the Bill stands the BSC will have a statutory duty to consider, investigate and decide on all complaints made to it. Those investigations will be in parallel to those of the ITC and the Radio Authority as regulators. That duplication and practical regulatory overlap will be confusing to viewers and listeners, who will not know who to complain to, and to advertisers, who will face the possibility of investigation from more than one regulatory body.
  The amendment, for which my noble friend showed a great deal of sympathy at Committee stage, effectively removes advertising from the remit of the BSC and should be welcomed.
  The Lord Bishop of Peterborough: My Lords, I should reveal for the benefit of those who were not here when I last spoke that I am a future member of the Broadcasting Standards Council. I say that because we have no existence until after the Bill is enacted, although we appear to be rather busy.
  I thank the noble Lord, Lord McGregor, for his great courtesy towards us; it made a pleasant change for me. I should like to try to express our point of view on the matter. I turn to the viewer. The viewer does not distinguish between advertising and programmes; they all come out of the box in the corner. Some people prefer the programmes and make tea while the advertisements are on; other people actually prefer the advertisements and are less interested in the programmes; but for both it all comes out of the box. They do not distinguish between the two. Therefore, to the viewer the advertiser and the normal director or producer of a programme is the same sort of person.
  I find it hard that it should be said that the amendment is to the detriment of the advertising industry. This is an extremely successful and enormously rich industry. It has survived enormous changes in English life. It has a great spirit of adaptability. When the rules are changed it will adapt. We have no intention of imposing on the advertisers, if we were allowed to do so, any more than we impose on the maker of programmes—nothing more than the code of practice which is concerned with sex, violence, taste and decency; nothing further than that. We are not going to push anything further upon them. We are going to say that matters come before us because viewers are uneasy about what they see in the terms I have described.
  Viewers are not going to distinguish subtlely between the different channels, and they are not going to distinguish subtlely between ordinary programmes and advertisements. It is all television and viewers merely want somewhere to take their complaints and discuss what disturbs them. We feel that with all our faults, which have been placed before your Lordships we are the place for them to go.
  Lord McGregor of Durris: My Lords, will the right reverend Prelate give the House his evidence that
  820
  viewers have clearly expressed their desire to go somewhere to make complaints about sex, violence and obscene language in advertisements?
  The Lord Bishop of Peterborough: My Lords, as I have journeyed the country viewers have expressed to me a deep unhappiness about these matters, as anyone who appears on any platform anywhere will also know. They are not bothered about whether they come from programmes or advertisements. By and large advertisers probably have a good record. I am not arguing about that. I am arguing about what the viewers see. If they see programmes and advertisements as a whole, it is easier for them. If they are told that there is a subtle difference, it is more difficult.
  I move on to the question of air time. The use of television air time to carry adjudication is the absolute end of the road. It is the intention of the council to produce a monthly digest of any findings it may have. It is the intention of the council on particular issues to set these before the press. The press may or may not use them. It is the final sanction to require the companies to broadcast them. That would be evidence of the deepest offence.
  We must not live in a fantasy world. Before I served on the council I was on the Video Consultative Council. I saw videos which shocked me beyond measure. They were unseemly, and they came from the United States and Europe. When they actually shocked Claire Rayner as well, I knew I was on to the right sort of thing! There are some very nasty things available in society. We are saying that we do not want them. I do not for one moment believe that J. Walter Thompson will produce them, but every viewer has a right to protection should be so choose.
  I now refer to pre-vetting. We are not allowed to pre-vet; that has been agreed. Other people pre-vet. Pre-vetting can fail. If a viewer feels that pre-vetting is not protecting him, he has a right to speak. It seems to me that we open the doors to that right. My young accountancy friends refer to the bottom line. The bottom line is not the television companies. They have done very well. It is not the television producers. The bottom line is certainly not the advertisers. The bottom line is the viewer, who features so little in this debate as I keep saying. This gives the viewer a chance to go somewhere to complain. He or she may be right or wrong but that does not matter; he or she has the right to do so. We believe that that right should be available across the board on television. I asked noble Lords to resist this amendment.
  Lord Boston of Faversham: My Lords, before the right reverend Prelate sits down, I wish to put this point to him. Throughout our debates both in Committee and on Report repeated references have been made by the noble Earl, Lord Ferrers, by my noble friends on the Front Bench, Lady Birk and Lady Ewart-Biggs, by my noble friend Lord Ardwick, by the noble Lords, Lord Thomson of Monifieth and Lord Bonham-Carter, and other noble Lords in all parts of your Lordships' House both on the Government Benches, the Cross-Benches and by Members on this side of the Chamber, to the plain and simple fact, which I have also joined in pointing out,

  821
  that paramount in our thoughts at all times is that we serve the interests of the viewer. He is foremost in our minds. I hope that the right reverend Prelate will accept that.
  Lord Boardman: My Lords, I had not intended to enter into this debate until the noble Lord, Lord McGregor of Durris, referred to it as being a discrimination against the advertising industry. It was put in similar terms by those who have supported him in this amendment. To my mind the discrimination is the other way round: it is the amendment that asks for discrimination in favour of the advertising industry. I agree with the right reverend Prelate when he said that this Bill is concerned with the viewer and the ultimate consequences to him. The problems that the advertising industry and others may have in meeting the terms of the Bill may be of concern to them. The Bill is directed at providing certain standards for the viewer. I find it difficult to see why we should discriminate in favour of the advertising industry when so much of the viewer's time is inevitably spent looking at the advertisements.
  One of the points made by noble Lords speaking in favour of the amendment is the problem of advertisements which are repeated time and time again. That being so, it is all the more important that those advertisements should be scrutinised and be subject to the same standards as those which apply to programmes which are seen only once. Having heard the speeches so far, I feel unable to support this amendment.
  Baroness Seear: My Lords, I ask the noble Earl this question: who will appoint this great body that is to look after our morals on television? How are the members of that body appointed? How can the public complain against its judgment if they so wish? Perhaps I may also make the blindingly obvious point that if people do not like what is on the screen they can always turn off the television.
  The Earl of Stockton: My Lords, I cannot agree with the right reverend Prelate. I am a viewer and a consumer and, in common with most viewers and consumers, I have no trouble in distinguishing the programmes from the advertisements. The right reverend Prelate underestimates the discrimination, common sense and intelligence of the viewing public. I am aware, as are most viewers, of the "tick" promotion which has been successfully run by the advertising industry. Through it we, the public, know how to complain about advertisements whether they appear in the press, on hoardings, radio or television. Of all the regulatory authorities, that is certainly the one of which I and, I am sure, most members of the public, are the most aware.
  The existing machinery and the implementation of the code at present seems to be entirely satisfactory. Why do we not leave it well alone?
  10 p.m.
  Earl Ferrers: My Lords, I know that the Broadcasting Standards Council and its role in relation to advertising is a matter which has exercised
  822
  your Lordships and those who are responsible for the regulation of advertising besides the advertising industry as a whole. Everyone is exercised about this matter.
  I realise that the concerns which have been expressed this evening are very real. It was as a result of the concerns expressed at the end of the debate on this subject in Committee that I undertook without commitment to consider what had been said. It was the least that I could do and it was wholly appropriate. I have looked at the matter again and I have considered it a great deal. Following that consideration, the Government continue to believe that it is right for advertisements to form part of the Broadcasting Standards Council's remit.
  The noble Lord, Lord McGregor of Durris, said that the provision would regulate advertising. With respect to the noble Lord, that is going too far. It does not regulate advertising. He said that the existing machinery would be weakened. I see no reason why it should be weakened. At present, advertisements are cleared by the ITV association and the IBA. In future they will be cleared by the broadcasters themselves —in other words, by the ITV companies—and not by the regulatory body, which is the ITC. In that respect, the same principles will obtain in the future as have in the past.
  The noble Lord, Lord Boston, asked whether there would be pre-vetting. There will not be pre-vetting. That is not the business of the Broadcasting Standards Council. The noble Lord also asked about the interpretation of the ITC code. There will not be pre-vetting; nor will it be for the Broadcasting Standards Council to interpret the ITC code on advertising. That is entirely a matter for the Independent Television Commission.
  Lord Boston of Faversham: My Lords, I am most grateful to the noble Earl and I hesitate to interrupt him. I was asking not about the interpretation of the ITC code, but about the way in which the BSC proposes to work, and, in particular, about the interpretation of the word "appropriate". How will it give guidance and interpret whether or not a complaint is appropriate or inappropriate when it comes to considering it or ruling it out from its consideration?
  Earl Ferrers: My Lords, perhaps I may be allowed to come to that—I was going to say "in the fullness of time" but I hope that it will not be quite as full as that —a little later on.
  In one of her characteristically trenchant interventions, the noble Baroness, Lady Seear, asked who will appoint the Broadcasting Standards Council. It will be appointed by the Home Secretary. She also asked whether people would be able to complain about the complaints made by the Broadcasting Standards Council. We can go on complaining about complaining about complaining. The Broadcasting Standards Council's job is to consider the programmes. It can then take various courses of action. Anyone can complain to the Broadcasting Standards Council. It does not necessarily have to take action.

  823
  Many noble Lords do not like the idea of the Broadcasting Standards Council. If we are to have a Broadcasting Standards Council it would be absurd to allow it to monitor programmes but not advertisements. The central issue is whether the Broadcasting Standards Council's remit should extend to advertising. I agreed with my noble friend Lord Boardman when he said that this amendment would discriminate in favour of the advertisers. The Government believe that the provision should cover both programmes and advertisements.
  The House will be aware of the Government's reason; for establishing the council. I do not believe that I need rehearse them again. It should be sufficient to say that standards of taste and decency are matters which concern us all. How we achieve those standards is open to different views. A viewer's or a listener's sensibilities about standards of taste and decency do not begin and end with programmes; they do not lessen during natural breaks for advertising. Advertising amounts to some 10 per cent. of air time, and in our view it would be neither logical nor defensible to have a situation in which the public could complain to the Broadcasting Standards Council about objectionable material in programmes, but not about the same kind of material in advertisements. It has been argued that the continued existence of the present system for the regulation of advertisements will mean that viewers will not be offended by them. However, we should not assume that this will always be the case.
  The noble Lord, Lord McGregor of Durris, said that the present system was excellent, that there had been no complaints and that some of the advertisements had cost up to £1 million. That is perfectly true. But if the present system is so good and the advertisements are so good, there is not much likelihood that there will be complaints about them. The only point in having such a council is that if standards do not remain as they have been, then action will be able to be taken.
  The council has given a great deal of thought to the procedures which it will follow in the handling of complaints about advertisements. It is very sensitive to the distinctions between programmes and advertisements, and to the role of the regulatory bodies. The Broadcasting Standards Council does not intend to work in isolation from those bodies. The council has no sanctions beyond publication of its findings. It has already made it clear that in arriving at its findings it would carefully take into account any action which the regulatory body or the licensee had taken, or proposed to take, in respect of a particular advertisement. In some cases, this might mean that the council could simply report that action to its complainant.
  In cases where the regulatory body or the licensee had yet to complete its considerations of a complaint, the council has indicated that, provided the delay was not unreasonable, it would be prepared to await the outcome of that consideration before completing its
  824
  own examination of the issue. In this way, it would take care not to pre-empt any action by the ITC or the licensee.
  Apart from these procedures, the council will, under the terms of the Bill, be required to send a copy of any complaint it entertains to the broadcaster and to the broadcasting regulatory body. That will give both the licensee and the ITC the opportunity to comment on a complaint. If they are taking action, or are making further inquiries—for example, about public attitudes to an advertisement—they can say so at that stage. This also emphasises the point I have been trying to make, which is that the council will neither act in isolation from the regulatory bodies, nor attempt in any way to undermine their responsibilities. Consultation will be a proper and important part of the procedures of the Broadcasting Standards Council.
  What action therefore can the Broadcasting Standards Council take? The noble Lord, Lord Boston of Faversham, asked whether I can confirm that the council has no power to ban advertisements. That is correct; it has no power to do so. I think he also said that if an advertisement contained a mention of a rebuke from the Broadcasting Standards Council that would in effect ban it and would be a very substantial power. In fact, I am not sure whether it was him or the noble Lord, Lord McGregor of Durris, who raised that issue.
  Lord McGregor of Durris: My Lords, it was both of us.
  Earl Ferrers: My Lords, I am most grateful. I thought that the noble Lord, Lord Boston, was generously nodding his head in dissent. However, I am quite happy to give credit to both noble Lords for having raised the issue. Of course, it is perfectly true. If advertisers were obliged to put a note at the bottom of the screen stating that what is shown has "offended the Broadcasting Standards Council", clearly that would be a fairly strong deterrent. I have no doubt that they would ensure that this would not happen. Moreover, according to the noble Lord, Lord McGregor of Durris, the standards are so high at present that that would not happen.
  Perhaps I may move on to deal with a point about which the noble Lord, Lord Plowden, expressed concern. I must make it clear that the BSC is not obliged to publicise its findings on every occasion a complaint is made or even in every case where it may have made an adverse finding. Where the BSC considers publication, it has announced that it has in mind three separate forms of publication of its findings. The first is that there will be a regular summary of findings on complaints published by the council. The second is an insertion in the press, either at national or local level; and the third is a broadcast announcement of its findings. I agree that that is a hefty power, but it would be wrong for your Lordships to consider that that is the kind of power that would be used on each and every occasion. That would be its final and greatest power.

  825
  The council has made it clear that it envisages broadcast announcements being used only for matters invoking major principles or about which there has been great public controversy. It is most unlikely therefore in the light of information that the IPC or a licensee is publicly taking action about an advertisement that the council would find it necessary to exercise the option for publicising its own findings.
  There is a stage before that which has also been the subject of concern; that is, the council's discretion not to entertain complaints. That is a matter about which the noble Lord, Lord Boston, was worried. Fears have been expressed that the council will be forced into entertaining complaints which have no merit merely by pressure of weight of numbers or through sustained lobbying.
  Perhaps the noble Lord, Lord Boston, would be good enough to look at Clause 153. He will see that it makes provision for that discretion. I refer him to Clause 153(5) (c) and (d) which provide that,
  "The council shall not entertain, or proceed with the consideration of, a complaint if it appears to them—that the complaint is frivolous, or that for any other reason it is inappropriate for them to entertain, or proceed with the consideration of, the complaint".
  There is no doubt therefore that the council has a necessary discretion not to proceed with a complaint. As a responsible body, it will be expected to exercise that discretion. It has also made it clear that it is not in the business of intervening purely for the sake of intervention.
  As I have explained, the council does not have to give its reasons. The noble Lord, Lord Boston, asked how the new BSC members would interpret discretion on complaints. By the time the new members join the council, there will be an established practice for dealing with complaints and there will be continuity of practice which will enable sensible procedures to take place. The noble Lord referred to the council's reasons for not entertaining complaints. That of course is a matter for the council to decide. It must consider whether to deal with the complaint, and the circumstances in which it would not be appropriate to pursue it. It must decide what is appropriate and what is not. It would not be right for me to fetter it by suggesting what those circumstances might be.
  I accept that this is a difficult and controversial issue. I know that your Lordships feel strongly about it, but I do not see that advertisers need have anything to worry about provided that the standards are reasonable. It has been said by a variety of people, including the noble Lord, Lord McGregor, that their standards are high and that they go through a procedure now to ensure that their standards are high. That system will continue in the future in a modified form. If that happens, it is unlikely that the council would have cause to concern itself, but if a member of the public complains to it it would be unreasonable to say, "Yes, you can complain about this if it is in a programme, but you cannot complain about it if it is in the advertising slot". I hope therefore that your Lordships will agree to leave the Bill as it is.
  Lord McGregor of Durris: My Lords, it is late but I wish to make a few very brief comments on one or two speeches which have been made by noble Lords.
  First, the right reverend Prelate said how necessary it was that the public should have the means of complaining right across the board, the board to include complaints about advertising. One would think that that power did not exist at present. Not only do people complain regularly but the IBA publishes a monthly booklet setting out all the complaints which it has received and its response to them. It really cannot be maintained that that power for the Broadcasting Standards Council is necessary to enable the public to complain.
  The noble Lord, Lord Boardman, said that it was discriminating against the public if the power of the Broadcasting Standards Council to deal with advertisements was removed because he said that it was essential that standards should be the same. However, standards are very different. The standards applied to advertisements are much higher than standards applied to programmes and those which will be applied to programmes by the Broadcasting Standards Council. I believe that there is" a touch of perversity in that argument.
  I appreciate the courtesy with which the Minister dealt with the points raised. He said that the BSC would not regulate. However, the Bill endows it with the power to regulate and there is no doubt about that. It does that for the reason pointed out by the noble Lord, Lord Boston of Faversham, and myself, because in practice its powers against programmes are hortatory: its powers against advertisements can and must remove them from the screens. That is a genuine power. It may be true, as the noble Earl said, that it has no sanctions other than to publish its findings but the publication of its findings has radically different results depending on whether the publication deals with programmes or advertisements.
  Those noble Lords who have tabled this amendment believe that the issue is of very great importance and that the conferring of these powers will potentially damage an admirable working institution. For that reason, I regret that we must ask the House to give its opinion on the amendment.
  10.19 p.m.
  On Question, Whether the said amendment (No. 333) shall be agreed to?
  Their Lordships divided: Contents, 22; Not-Contents, 54.

  Division No. 4

  CONTENTS

  Ardwick, L.

  Lockwood, B.

  Birk, B.

  McGregor of Durris, L.

  Bonham-Carter, L.

  Mackie of Benshie, L.

  Boston of Faversham, L.

  Monson, L.

  Carter, L. [Teller.]

  Parry, L.

  Clinton-Davis, L.

  Peston, L.

  Cocks of Hartcliffe, L.

  Plowden, L.

  David, B.

  Seear, B.

  Grey, E.

  Tordoff, L. [Teller.]

  Hacking, L.

  Willis, L.

  Lloyd of Hampstead, L.

  Winstanley, L.

  827

  NOT-CONTENTS

  Abinger, L.

  Carnock, L.

  Astor, V.

  Cavendish of Furness, L.

  Balfour, E.

  Coleraine, L.

  Beaverbrook, L.

  Colnbrook, L.

  Belstead L.

  Davidson, V. [Teller.]

  Blatch, B.

  Denham, L. [Teller.]

  Boardman, L.

  Downshire, M.

  Borthwick, L.

  Elton, L.

  Boyd-Carpenter, L.

  Ferrers, E.

  Brabazon of Tara, L.

  Glenarthur, L.

  Brougham and Vaux, L.

  Goold, L.

  Butterworth, L.

  Harvington, L.

  Caithness, E.

  Henley, L.

  Carnegy of Lour, B.

  Hives, L.

  828

  Jenkin of Roding, L.

  Reay, L.

  Johnston of Rockport, L.

  Rodney, L.

  Kimball, L.

  Sandys, L.

  Lindsey and Abingdon, E.

  Skelmersdale, L.

  Long, V.

  Stanley of Alderley, L.

  Lyell, L.

  Stodart of Leaston, L.

  Mackay of Clashford, L.

  Strange, B.

  Mancroft, L.

  Strafhclyde, L.

  Monk Bretton, L.

  Strathmore and Kinghorne, E.

  Mountevans, L.

  Thomas of Gwydir, L.

  Oxfuird, V.

  Trumpington, B.

  Peterborough, Bp.

  Ullswater, V.

  Platt of Writtle, B.

  Wynford, L.

  Resolved in the negative, and amendment disagreed to accordingly.
  10.26 p.m.
  Schedule 14 [Amendments of the Marine, &c. Broadcasting (Offences) Act 1967]:
  Lord Monson Lord Monson moved Amendment No. 333A:
  Page 237, line 13, at beginning insert ("Insofar as permitted under international law").
  The noble Lord said: My Lords, although the two amendments in my name have been grouped together, they deal with distinct and separate issues and I shall therefore, if I may, speak to them separately.
  Amendment No. 333A provides that the very draconian powers conferred by Schedule 14, namely the powers to board foreign ships forcibly on the high seas, possibly employing our Armed Forces to do so, and then to search the ship and all those on it, seizing equipment, documents and the like, can be brought into play only provided that there is no conflict with international law.
  When we debated the matter in Committee in July my noble and learned friend Lord Wilberforce, with all his enormous experience, very much doubted that all the powers conferred by Schedule 14 were in accordance with international law. His doubts are shared by a number of other legal experts. On the other hand, the noble Earl, Lord Ferrers, with all the expertise and resources of his department at his disposal, as well as those of the DTI, thinks otherwise —even though the Government concede that they are not relying on the effects doctrine, notwithstanding that the noble and learned Lord, Lord Wilberforce, maintained that the effects doctrine was the only conceivable justification for what the Government were trying to do.
  Since then the Gulf crisis has arisen and we have been able to see how cautious and reluctant member states of the United Nations are about permitting the stopping and boarding of vessels on the high seas even when it involves matters which are, objectively speaking, several hundred times as grave as the mere transmission of unauthorised broadcasts. Indeed, the degree of force permitted in the course of stopping ships that may be carrying arms and vital strategic supplies to Iraq appears to be much more restricted and limited than the degree of force that Schedule 14 permits in order to stop the essentially harmless albeit illegal transmission of unauthorised broadcasts.
  Under international law we would still appear to be governed by the global radio regulations of the International Telecommunications Union adopted in 1959, the 1958 Geneva Convention and the 1965 Strasbourg Convention, none of which permits the boarding of foreign-registered vessels on the high seas merely for the purposes of stopping unauthorised broadcasting.
  On 18th June 1964, the noble Lord, Lord Newton, speaking in your Lordships' House, told noble Lords that:
  "The Wireless Telegraphy Act, 1949, … does not extend to foreign-registered or unregistered ships on the high seas, and it could not be amended so as to purport to extend to them without raising serious issues affecting the concept of freedom
  830
  of the seas—and that is a concept which Her Majesty's Government are anxious to preserve". [Official Report, 18/6/64; col. 1376.]
  On 15th February 1967, Mr Ted Short (as he then was), speaking in his capacity as Postmaster General, said in the House of Commons:
  "Obviously, we cannot legislate directly against broadcasting on the high seas in circumstances which would be outside the jurisdiction of our courts. Nor can other countries. It would not be consonant with international law in its present state". [Official Report, Commons, 15/2/67; col. 634.]
  It is true that since then we have had the 1982 United Nations Convention on the Law of the Sea, which permits such action in certain circumstances. Unfortunately for the Government, hinging their case on the 1982 convention has two snags. The first is that the United Kingdom is not a signatory to that convention. The second and more important snag is that the convention has only been ratified by 41 countries and its provisions can only come into effect 12 months after at least 60 countries have done so. Obviously that will be some time off.
  The question appears to remain wide open therefore. Hence the vital necessity of this amendment or something like it. I beg to move.
  10.30 p.m.
  Earl Ferrers Earl Ferrers: My Lords, I have some sympathy with the noble Lord's concern that the new enforcement powers should be exercised in accordance with international law. I can give him the assurance that the powers will be exercised in accordance with international law. But to require the United Kingdom courts to consider the state of international law, which is what Amendment No. 333A would do, would be unprecedented. I suggest that that is neither necessary nor in that case desirable.
  Interpretation of international law is properly a matter for international courts, which already provide a remedy should enforcement action be taken which did not comply with international law.
  Lord Monson Lord Monson: My Lords, the statement by the noble Earl to the effect that the insertion of such a phrase in legislation would be without precedent casts a slightly different light on matters. I am reassured by his statement from the Dispatch Box. It will go down in Hansard and will be available to those who may wish to take note of it on future occasions.
  I should like to study the matter a little further and ask other people who are interested in this matter to study it as well. For the time being I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Monson Lord Monson moved Amendment No. 333B:
  Page 237, line 52, at end insert:
  ("(5A) Searches of persons carried out under the provisions of subsection (5) above shall be subject to the constraints imposed by the Police and Criminal Evidence Act 1984, notwithstanding that such searches may take place outside the United Kingdom or its tidal waters").
  The noble Lord said: My Lords, the purpose of this amendment is fairly straightforward and self-explanatory. It ensures that any personal searches carried out under the provisions of Schedule 14, which

  831
  include strip searches and intimate body searches, shall be subject to the safeguards, limited though those may be, to the rights and dignity of individuals which are enshrined in the Police and Criminal Evidence Act 1984. The only safeguard that is missing is that requiring an annual report to be laid before Parliament listing the statistics for searches carried out. I have not been able to devise a form of words that would allow that provision to be incorporated, but perhaps something can be added at a later stage to cover that omission.
  The noble Earl, Lord Ferrers, was good enough to write a id assure me that it would indeed be the case that searches of persons would be carried out in conformity with the provisions of the 1984 Act. Unfortunately, while the Police and Criminal Evidence Act extends to vessels and off-shore installations within territorial waters, it does not appear to extend extraterritorially, any more than does the bulk of our legislation. Without the inclusion of this amendment, or something very similar, it would appear that civilians could be searched by members of the armed forces, women could be strip searched by men and the other way round, and both sexes could be intimately searched by someone with no medical knowledge or qualifications. I am sure that noble Lords would regard such a provision with abhorrence. Accordingly, I beg to move.
  Earl Ferrers: My Lords, the noble Lord Lord Monson, has a vivid imagination over these matters. I assure him that the PACE Act code of practice will apply with the present drafting even if the powers are exercised outside the United Kingdom or the United Kingdom's territorial waters. What is important from the point of view of the applicability of the PACE Act code is where the proceedings take place and not where the enforcement powers are exercised. I hope that the noble Lord will be content with that explanation.
  Lord Monson: My Lords, I am not entirely satisfied. The noble Earl implies that no searches will be carried out on the high seas. If that is the case, it helps matters. However, there is nothing in the Bill as drafted to provide that searches shall be carried out only within the United Kingdom or its territorial waters. That is the sole reason for my amendment. I would not have brought the issue up if I had thought that the Bill provided that all searches should be carried out within the UK. That does not appear to be the case. Can the noble Earl give me some reassurance on that point?
  Earl Ferrers: My Lords, I find it difficult to give the noble Lord more reassurance. I said that the PACE Act code of practice will apply with the present drafting even if the powers are exercised outside the United Kingdom or the United Kingdom's territorial waters.
  Lord Monson: My Lords, I am not a legal expert, as the noble Earl is well aware. The position seems strange, and I shall have to have someone consider it with an eagle eye. I beg leave to withdraw the amendment but reserve the right possibly to bring it back at another stage.
  Amendment, by leave, withdrawn.
  Clause 171 [Amendments of provisions of 1949 Act relating to penalties and forfeiture]:
  Earl Ferrers Earl Ferrers moved Amendment No. 334:
  Page 134, line 27, leave out ("5(b) or").
  The noble Earl said: My Lords, in moving this amendment, it might be for the convenience of the House if I also speak to Amendments Nos. 335 to 338. They all relate to forfeiture when a person is convicted of certain offences under the Wireless Telegraphy Act. Clause 171 extends the forfeiture provisions so that the court can order the forfeiture of any equipment or apparatus used to make illegal broadcasts. It is an important element in enforcement against pirate radio.
  The new subsection (3AA) at the top of page 135 exempts apparatus which can be used only for receiving from forfeiture, reflecting the fact that unlicensed reception is a less serious offence than transmission. However, the more sophisticated pirate stations are increasingly using receivers in their operations. For example, they set up links between studios and remote transmitters to make detection more difficult. It would be anomalous if pirates' receivers were therefore not liable to forfeiture in the same way as other equipment would be. The amendments ensure that that is the case. They also make some other minor drafting improvements. I beg to move.
  On Question, amendment agreed to.
  Earl Ferrers Earl Ferrers moved Amendments Nos. 335 to 338:
  Page 134, leave out line 41 and insert ("in relation to which the offence was committed or which was used in connection with the commission of it;").
  Page 134, line 43, leave out ("which was not so used but") and insert ("not falling within paragraph (ii) above").
  Page 135, line 4, leave out from ("or) to end of line 7 and insert ("subsection (3) (a) above does not apply in a case where the offence is any such offence as is mentioned in subsection (1A) (a) or (aa) above.").
  Page 135, line 17, at end insert:
  ("(5) In subsection (3E), for the words from "(whether" to "provision" there shall be substituted ", shall be treated as an offence committed under the same provision, and at the same time,".").
  On Question, amendments agreed to.
  Lord Lloyd of Hampstead Lord Lloyd of Hampstead moved Amendment No. 339:
  After Clause 173, insert the following new clause:
  ("Offence of unauthorised dealing with apparatus, etc.
  In Part VII of the Copyright, Designs and Patents Act 1988 (Miscellaneous and General), there shall be inserted after section 298—
  "Offence of unauthorised dealing with apparatus, etc.
  298A. (1) A person who makes, imports or sells or lets for hire any apparatus or device designed or adapted to enable or assist persons to decode—

  (a) encrypted programmes included in broadcasting or cable programme service provided from a place in the United Kingdom where any charge is applicable to the reception or decoding of the programmes, or

  (b) encrypted transmissions of any other description sent from a place in the United Kingdom

  833
  without the authority of the person making the charges or sending the transmissions with intent to enable or assist any person to do so commits an offence.

  (2) A person guilty of an offence under subsection (1) is liable—

  (a) on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum, or both;

  (b) on conviction on indictment to a fine or imprisonment for a term not exceeding two years, or both.

  (3) The provisions of sections 108 to 112 shall apply in relation to any apparatus or device of the kind described in section (1) as if—

  (a) the apparatus or device were an infringing copy of a copyright work;

  (b) the person making the charges or sending the transmissions referred to in that subsection were the owner of the copyright in such work;

  (c) the reference to offences under section 107 in sections 108 to 110 were references to offences under this section;

  (d) the person referred to in subsection 3(b) was a person entitled to give notice under section 111(3).") .

  The noble Lord said: My Lords, in moving Amendment No. 339, I wish also to refer to Amendments Nos. 340 and 362. Perhaps I may remind noble Lords that in Committee I moved Amendments Nos. 339 and 340 in precisely the form in which they are repeated here. The noble Lord, Lord Sanderson, on behalf of the Government, expressed agreement in principle with the objective of my amendments. However, he expressed reservations about the second amendment and indicated that he would propose his own amendment on Report. On that understanding I withdrew my amendment.
  The Government have tabled Amendment No. 362. However, I venture to repeat my amendments because, with great respect, there appear to be deficiencies in the Government's new amendment. In view of the lateness of the hour I shall not go over the ground in detail. My amendments have the support of a number of semi-public bodies, including the BBC and Sky Television.
  The purport of the amendments is to strengthen the position of broadcasters of encrypted programmes so as to prevent unauthorised persons decoding them without making payment to those charging for the broadcasting of such programmes. As I pointed out in Committee, the issue was raised in a case which went as far as the Court of Appeal and an appeal is pending to your Lordships' House sitting in its judicial capacity. In that case an attempt was made to invoke Section 298 of the Copyright, Designs and Patents Act to deal with the situation. The argument prevailed in the Court of Appeal, which reversed the judgment of the High Court. Even if the appeal to this House is upheld I venture to suggest again that the position will remain unsatisfactory because Section 298 provides only a civil remedy and does not provide for criminal sanctions. It is generally agreed—and this was the principle accepted by the noble Lord, Lord Sanderson —that criminal sanctions are more appropriate. The
  834
  use of civil courts would be clumsy, expensive and inappropriate in many situations.
  I refer your Lordships to Amendment No. 362 tabled by the Government and draw attention to what appear to be certain deficiencies which I ask them to reconsider. First, your Lordships will observe that the new offence is to be made punishable only by a fine. There is no alternative of imprisonment as provided by my amendment. It is thought—and I suggest that it is the correct view—that a mere fine in such a case will not afford an adequate deterrent against people who are determined to deal with unauthorised decoders in this way.
  Secondly, Amendment No. 362 provides specifically for a defence based on either lack of knowledge or no reasonable ground for knowing that the decoder was unauthorised. That is a considerable weakening of the proposal to make the offence a criminal matter because such a defence can be raised easily. Once raised it is extremely difficult to rebut as is agreed by most lawyers who are concerned with cases involving the knowledge of various matters. Therefore my suggestion would be that this is a considerable weakening of the proposal.
  Thirdly, my amendments provide for the supplementary remedies in Sections 108 to 112 in the copyright Act to be made applicable, but the new proposal does not cover that ground and does not embody those supplementary remedies.
  It is a matter of considerable importance that the vital phrase in Section 298—which was the subject of conflicting decisions in the High Court and the Court of Appeal, and which led to all the doubts—namely, the phrase "when they are not entitled to do so", was proposed to be substituted by the words in my amendments:
  "without the authority of the person making the charges or sending the transmissions".
  That would make it perfectly clear that the argument which was put forward in the BBC Enterprises case to which I referred could not possibly avail. However, unfortunately in the amendment that the Government propose there is no reference to this change. That is particularly surprising because in Committee the noble Lord, Lord Sanderson, appeared to agree with my proposal on this point and said that he intended to amend Section 298 to confirm the broadcasters' proprietary rights and ensure that they are protected. Yet notwithstanding that indication, there appears to be nothing in the present amendment which covers that ground.
  For those reasons I suggest that the amendment put forward is not fully adequate. I would therefore ask the noble Earl, Lord Ferrers, whether he would be prepared to reconsider those aspects of the matter and possibly embody further changes in any amendment that the Government wish to rely upon at Third Reading. I beg to move.
  10.45 p.m.
  Earl Ferrers Earl Ferrers: My Lords, I realise that the amendment of the noble Lord, Lord Lloyd of Hampstead, goes somewhat further than mine.
  My noble friend Lord Sanderson made clear during the Committee stage of the Bill that the Government shared the concern of the noble Lord, Lord Lloyd, and other noble Lords over satellite signal theft. We undertook to bring forward amendments to the Copyright, Designs and Patents Act 1988 in this Bill to create a criminal offence for the making, importing, selling or letting for hire of unauthorised decoders. The Government's new clause, which is Amendment No. 362, fulfils that undertaking. It follows closely in intent and purpose the new clause proposed by the noble Lord, Lord Lloyd, in Amendment No. 339. The only substantive difference between the two is that the noble Lord, Lord Lloyd, seeks maximum penalties for those offences of up to two years' imprisonment, whereas we consider that a maximum penalty of a fine up to level 5 on the standard scale is more appropriate.
  The amendments of the noble Lord, Lord Lloyd, also make provision for Sections 108 to 112 of the copyright Act to apply. I understand the noble Lord's concern, and indeed I share it, but I am not sure that it would be necessary for all those sections to apply.
  I regret that I cannot advise noble Lords to accept the noble Lord's new clause as it stands and at this stage o the Bill's consideration I cannot in fairness tell the noble Lord, Lord Lloyd, that I shall undertake to consider the matter further. I hope that our new clause in Amendment No. 362 will enable the noble Lord to withdraw Amendment No. 339.
  The government new clause also gives effect to the commitment given during Committee stage to extend the protection already offered to United Kingdom television services under the Copyright, Designs and Patents Act to services from abroad, regardless of whether the country of origin offers reciprocal protection for United Kingdom broadcasters, in circumstances where it appears to the Secretary of State that the reception of those services in the United Kingdom is materially affecting United Kingdom broadcasters. We believe that that will be a useful measure which will deter the piracy of foreign satellite television services at the expense of British satellite broadcasters. The amendment will effectively mean that, by order, any person who dishonestly receives a programme included in a broadcasting or cable programme service provided from a place outside the United Kingdom with intent to avoid payment of any charge applicable to the reception of that programme would also commit an offence.
  My noble friend Lord Sanderson also indicated at Committee stage that we would bring forward proposals to deal with a potential difficulty in Section 298 of the Copyright, Designs and Patents Act 1988 which has come under scrutiny as a result of a recent judicial comment. Briefly, an electronics company made decoders which were adapted to decode BBC TV Europe, a satellite service which sends coded transmissions of BBC programmes to other Western European countries. That was done without the authority of the BBC. Proceedings were brought
  836
  under Section 298 of the Copyright. Designs and Patents Act 1988. It was held in the High Court that the section did not apply because it could not be said that the persons receiving the programmes were not entitled so to do. Subsequently, that decision was reversed by the Court of Appeal and an appeal is pending to this House in its judicial capacity.
  We recognise the nature of the difficulty here. I understand why the noble Lord, Lord Lloyd, has tabled his Amendment No. 340 which to a large extent seeks to overcome this particular problem. However, I hope that noble Lords, including the noble Lord, Lord Lloyd, will agree that it would be premature to try to revise Sections 297 to 299 to cover this instance, when it is not yet clear whether Section 298 of the Act will be held to be appropriate for the circumstances at issue in this case.
  These are complicated matters and I hope that the noble Lord, Lord Lloyd, will agree that the amendment in my name covers the majority of his concerns, but I accept, for the reasons that I have given, that it does not cover them all.
  Lord Lloyd of Hampstead Lord Lloyd of Hampstead: My Lords, I am much obliged to the noble Earl for the courteous manner in which he has dealt with my proposals. I feel a little disappointment because it seems to me that this was an excellent opportunity to clear up a number of doubts and obscurities which are perhaps unlikely to be given an opportunity to be aired for a great many years. Accordingly, it seems a lost opportunity.
  On the other hand, I recognise that much of that difficulty flows from the incredible pressure on time to which we are subjected at the end of a Session when the Government must get this complicated legislation through and are therefore resistant to any amendments which will possibly hold things up. One can feel some sympathy for that, but, on the other hand, some considerable regret that our parliamentary process works in such a way that we are here at five minutes to 11 discussing what the noble Earl has himself said are complicated matters which need adequate time to be dealt with.
  However, having said that, I do not propose to take up any more of noble Lords' time, especially at this advanced hour and I beg leave to withdraw my amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 340 not moved.]
  The Earl of Stockton The Earl of Stockton moved Amendment No. 340A:
  Before Clause 174, insert the following new clause:
  ("Responsibility for transmission
  . In Chapter I of Part I of the Copyright, Designs and Patents Act 1988 (subsistence, ownership and duration of copyright), there shall be inserted after section 6(3)—
  "(3A) It is hereby declared that a person shall not be regarded as having any responsibility for the contents of a programme for the purposes of subsection (3) (a) by reason only that he transmits the programme in the course of the provision of a service consisting in the conveyance by means of a telecommunication system of anything falling within paragraphs (a) to (d) of section4(1) of the Telecommunications Act 1984 (meaning of "telecommunication system".).").
  The noble Earl said: My Lords, I must apologise to the House for tabling this amendment at a late stage and for explaining it in perhaps more detail than I would normally impose on the House at this late hour.
  The problem arises under Section 6 of the Copyright, Designs and Patents Act 1988. That section defines the meaning of "broadcast" and related expressions for the purposes of the Act. Among other things, it defines who is the person who is to be treated as broadcasting a copyright work. Under subsection (3), the persons who are to be so treated are, first, the person transmitting the programme, if he has responsibility to any extent for its contents; and, secondly, any person providing the programme who makes, with the person transmitting it, the arrangements necessary for its transmission. Thus, for example, in the ITV network both the IBA and the individual ITV companies are treated as broadcasters. The problem arises where persons other than the IBA transmit the programmes, and it is necessary to determine whether they have the responsibility to any extent for their contents.
  An account of the purpose of subsection (3) of the 1988 Act was given by the Minister in another place, Mr. Butcher, when it was being considered as a Bill in Committee in another place. It is apparent that "responsibility" was intended to mean legal responsibility, and although Mr. Butcher did not explain what he meant by that, it seems unlikely that he had anything other than the IBA's duties under the Broadcasting Act in mind. At all events, at col. 48 of the Committee proceedings he said that the purpose of the "responsibility" test was,
  "to ensure that common carriers such as British Telecom, who operate radio or television transmission services but have no legal responsibility for contents, are excluded".
  The Broadcasting Act 1981 is not the only Act under which legal responsibility for the content of programmes may arise. In particular, it is an offence under the Wireless Telegraphy Act 1949 to transmit unacceptable material. I shall not go into the details of that. The regulations do not apply to British Telecom, although they apply to certain new entrants into the market for transmission services. That is where the mischief arises.
  In 1988, to bring about effective competition to British Telecom and to encourage the development of new satellite-based telecommunications services, the DTI announced that it would award licences to six operators to provide specialised satellite services within the UK. That enabled them to operate satellite uplinks carrying a wide range of services ranging from private business communications to broadcasts.
  The problem is that, unlike British Telecom, the operators of the uplinks who transmit the programmes will be subject to the regulations under the 1949 Act, and may therefore be treated as broadcasters for copyright purposes even though they may act merely as common carriers in uplinking the programmes to the satellites. Judging from what the honourable
  838
  gentleman, Mr. Butcher, said in another place, that is not the intention but it may be the effect of Section 6(3) of the 1988 Act.
  If the operators, commonly known as specialised satellite service operators, or SSSOs for short, were treated for copyright purposes as broadcasting the services that they carry, they would be jointly, or perhaps severally, liable with the service provider for copyright infringement. That would lead not only to administrative inconveniences but in practice would produce one real hazard for the SSSOs—that is, the possibility of infringement claims when a service provider, especially a film channel, got into financial difficulties. If the copyright proprietors could pursue claims against the SSSO, which no doubt they would do if the service provider had insufficient assets and there were an arguable case under Section 6(3), the SSSO would be in great difficulties.
  Subjecting the SSSOs to that kind of hazard would appear not only to be contrary to Government policy but also to introduce an element of discrimination into the market if the provision applied to SSSOs and not to British Telecom. The amendment is designed to remove the risk of Section 6(3) being construed in that way.
  The amendment I place before your Lordships declares in effect that a person is not to be treated as "responsible" for the purposes of Section 6(3) if all he does is to transmit the programme in the course of a common carrier business. I submit that it would be in the public interest if a brief clarificatory amendment to the legislation to that effect were adopted. I beg to move.
  11 p.m.
  Earl Ferrers: My Lords, I have to tell my noble friend that the amendment is both irrelevant to the Broadcasting Bill and unnecessary in copyright legislation. The amendment is concerned with the definition of "broadcast" for the purposes of copyright legislation and not this Bill. I do not think it would be appropriate to amend copyright legislation here.
  As I understand it, the fear is that a broadcaster who buys time on, say, a satellite transponder may go into liquidation having failed to pay copyright royalities in respect of his programmes. It is said that the copyright owners would then turn to those who merely provide the service of transmitting the signal to get their money and that such satellite operators could find themselves caught by the definition in the Act and be regarded as a broadcaster.
  My noble friend Lord Stockton took an active part in our debates on the Copyright, Designs and Patents Bill and he may recall that the wording of what is now Section 3 was amended, albeit in another place, to avoid just this possibility and to remove liability for copyright infringement from those whose only involvement in the broadcast is the transmission of the signal. It may be that in other legislation the person transmitting the signal is responsible for its contents; but if that is the full extent of his involvement he is not under copyright law.

  839
  The amendment may be regarded as an avoidance of doubt provision. I would say the amendment introduces doubt where none currently exists. Section 178 of the 1988 Act already contains definitions of "wireless telegraphy" and "telecommunications sys-tem" and this is without reference to the Wireless Telegraphy Act 1949 or the Telecommunications Act 1984. The definitions in the 1988 Act are not coterminous with those in the 1949 and 1984 Acts and the introduction of a wider definition into Section 6 would cause many difficulties.
  The introduction of a reference to the Telecommunications Act would apply the provisions of Section 6 to matters not considered to be a broadcast, which is limited to wireless telegraphy. It would affect references to telecommunications systems elsewhere in the Act, most notably in Section 7 dealing with cable transmission. There are doubtless other knock-on effects which we have not had time to identify.
  In the light of what I have said, I hope that the noble Lord will feel able to withdraw his amendment.
  The Earl of Stockton: My Lords, I thank my noble friend the Minister for his reply. I shall read it in detail in the Official Report and may come back to the matter at the next stage. Pending that possibility I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 174 [Use as of right of sound recordings in broadcasts and cable programme services]:
  Earl Ferrers Earl Ferrers moved Amendment No. 341:
  Page 136, line 31, leave out from ("licence") to ("terms") in line 32 and insert:
  ("(a) whose").
  The noble Earl said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 342, 342A, 343, 344 to 346, 346A, 347 to 351, 351ZA and 351ZB.
  When we discussed the question of needle time at Committee stage my noble friend Lord Sanderson said that we would look into certain matters and return with amendments on Report. My amendments fulfil that commitment. They fall into three groups. In discussing them, it will also be convenient to consider the amendments standing in the name of my noble friends Lord Colwyn and Lord Jenkin of Roding.
  At Committee stage my noble friend Lord Colwyn argued that the clause should be amended to prevent a licensing body proposing a needle time restriction except on request. There was an undeniable logic behind his amendment but, as was indicated at the time, the amendment could have had the undesirable consequence of preventing a licensing body publishing a tariff for various levels of needle time. Amendments Nos. 341 to 347 and 350 will, I trust, meet the concerns of my noble friend without deterring the publication of tariffs and transparency of licensing. The effect of these amendments, some of which are drafting matters, is that the statutory licence is available if a licensing body proposes a licence or licensing scheme which does not provide for unlimited needle time.
  The next issue in my group of amendments concerns the question of costs when a case goes to a tribunal. The clause presently provides for costs to be awarded against the licensee only. My noble friend Lord Sanderson accepted in Committee that that did not provide the right balance. Amendments Nos. 348 and 349 put this right. The tribunal will be able to award costs against either party under the powers given it by Section 151 of the Copyright, Designs and Patents Act 1988.
  It may be convenient to consider Amendments Nos. 342A and 346A which stand in the name of my noble friend Lord Colwyn. Amendment No. 342A would make it explicit to the order of the copyright tribunal referred to as one which is made under Section 135D. As the clause currently stands, if a broadcaster is offered a licence which is satisfactory to him in every respect, except in respect of the rate which is payable, and that rate is the one determined by the copyright tribunal under the existing law, the broadcaster cannot have recourse to the statutory licence. He must refer the matter to the tribunal in the ordinary way.
  My noble friend's amendment would mean that the broadcaster could have the benefit of the statutory licence in these circumstances pending a tribunal decision under Section 135D. I am bound to tell my noble friend that we see merit in this but we should like to pause before accepting the amendment to allow any contrary arguments to be assessed. However, at present I am minded to accept the amendment in principle. If my noble friend will withdraw his amendment, we shall return at Third Reading with an amendment to meet this point.
  Amendment No. 346A refers to Clause 174 which, as drafted, allows the person exercising the statutory licence to comply with any reasonable condition notified by the licensing body: indeed, he has to comply with it. My noble friend's amendment would restrict the scope of conditions which the licensing body may seek to impose to those relating to conditions intended to prevent or deter unauthorised home taping of sound recordings.
  I do not think it would be right to limit the licensing body in this way. It is undoubtedly the case that, in its report, the Monopolies and Mergers Commission said that the user should comply with any code of conduct approved by PPL for the purpose of preventing unauthorised copying. But I find it difficult to imagine that the MMC thought that the broadcaster should not be subject to reasonable conditions. No one would argue, least of all my noble friend, that broadcasters should be given a licence to behave unreasonably with the PPL.
  To take an example, it seems to the Government that it would be reasonable for PPL to require the broadcaster to desist from associating a particular sound recording or recordings with a product or service being advertised on the radio station. If my noble friend's amendment were accepted, that would not be possible and the licensing body would be left without remedy if a radio station were to behave in this untoward fashion.
  The fear of the radio stations is, I believe, less with the condition per se but the fact that an injunctive right remains in place to enforce them. But I think this fear is misplaced. First, the broadcaster is only required to observe reasonable conditions. He can challenge the reasonableness of any condition before the tribunal under Section 135E. Secondly, if he fails to observe a condition because he believes it to be unreasonable, he may feel at risk until the tribunal arbitrates. The very worst that could happen would be that the court would grant PPL an injunction to require the broadcaster to observe an unreasonable condition until the tribunal decision. I think your Lordships will agree it is most improbable that PPL would ever obtain an injunction to enforce an unreasonable condition.
  But to accept my noble friend's amendment would deprive the licensing body of the possibility, except in one limited area, of protecting their interests against unreasonable behaviour. In my view, this would tip the balance unfairly in favour of the broadcasters.
  I turn now to the most important of the subjects addressed by this group of amendments; namely, the criteria to be considered by the copyright tribunal in reaching its decisions on the royalty to be paid for any given amount of needle time. As your Lordships may know, the tribunal, in its previous incarnation as the performing right tribunal, has made an order relating to the broadcasting of sound recordings, and set a royalty rate. This was at a time when there was a needle time limit of nine hours.
  It has been put to us that the tribunal, in assuming rates under the new legislation, might simply look at its earlier decision as it related to nine hours' needle time and simply extrapolate, to determine a rate for extra hours. We think it unlikely that the tribunal would adopt such a simplistic approach. Nevertheless, we want to be sure that the tribunal comes to consider these matters afresh, not bound by previous decisions. Amendment No. 351 will achieve this. Subsection (2) of new Section 135G requires that the tribunal shall not be guided by orders made under the old legislation. The parties, and the tribunal, start with a clean sheet. In the event of dispute, both parties must produce their evidence and the tribunal must assess it on its merits, without regard to what it decided under the old law.
  I wish to make it clear that my amendment is not intended to prevent the tribunal from reconsidering evidence brought before its predecessor, the performing right tribunal. Nor is it to be precluded from considering any precedents that the parties in any dispute may wish to cite. My amendment simply ensures that the tribunal is not guided by rates set at a time when the statutory licence was not available, but determines the matter afresh. That appears to be the sense of Amendment No. 351ZB in the name of my noble friend Lord Jenkin. I believe my amendment gives him what he wants but I am prepared to confirm this with parliamentary counsel and return with clarifying amendments if need be.
  Amendment No. 351ZA, standing in the name of my noble friend Lord Colwyn, would go further and would require the tribunal to disregard all rates paid under licences or licence schemes operating under needletime restrictions. This would be going too far. Existing licences and licensing schemes not referred to the tribunal must be taken to have been voluntarily entered into by the parties concerned. They could be referred to the tribunal at any time. The fact that a user did not refer the rate would suggest that he was content.
  In setting a rate for any copyright licence it is clearly very helpful to the tribunal to see what is the market rate for comparable licences agreed voluntarily between copyright owners and licensees before it imposes a rate on a licensing body and licensee which may be in dispute. It will be said that the licences which are agreed under the regime of needletime restrictions were scarcely voluntary and that they were imposed by PPL abusing its monopoly position; and it will be open to the broadcasters to argue this before the tribunal.
  It seems that the independent radio stations, whose case has been so eloquently argued by my noble friend Lord Colwyn on various occasions during the passage of the Bill, could be disadvantaged by the amendment. It would mean that the tribunal could not be guided by rates which are favourable to the independent radio contractors if the relevant licence included a needletime limit. That would apply to such licences as the BBC's and certain foreign agreements whose rates are said by AIRC to be lower than their own. The tribunal is best placed to consider all the factors and to decide what weight to attach to the various arguments. But it will be placed in a difficult position if it is denied any kind of benchmark against which to assess, in the light of the evidence and the changed circumstances of the new legislation, what is an appropriate royalty. I hope that the noble Lord will consider his amendment and may feel able to withdraw it.
  I realise that I have spoken at some length on a complicated matter, which is not a very popular thing to do at this hour of the night. It is important, and even if it may not have been all that easy for noble Lords to have imbibed straight away, no doubt they will have the privilege and pleasure of reading it in Hansard where its purpose and various implications may become more apparent. I beg to move.
  Lord Jenkin of Roding: My Lords, my noble friend indicated that the most significant issue dealt with in this group of amendments is the relevance of previous decisions by licensing authorities to any proceedings for a statutory licence. My noble friend has gone a very long way to meet the case. As drawn, the subsection was open to misinterpretation in that it effectively sterilised the whole of the previous history surrounding these businesses. This is what has been feared. My noble friend has made clear that it is the Government's intention that the only matter which the tribunal is precluded from considering and being influenced by is the actual amount of payment. That is precisely the point that my amendment was

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  intended to secure. My noble friend has been kind enough to say that he is prepared to look again at the drafting. In those circumstances, therefore, I have no intention of moving my amendment.
  I turn now to Amendment No. 342A, to which my noble friend Lord Colwyn will wish to speak. If indeed it is the intention of the subsection to which I referred a moment ago that this should be restricted only to the question of the actual payment under previous proceedings, what is proposed in this amendment (which) my noble friend indicated the Government may be prepared to accept in substance, although it would require redrafting) may be acceptable to the licensing authority.
  11.15 p.m.
  Lord Colwyn: My Lords, I am extremely grateful for all that my noble friend the Minister has said. However, before I begin, I must declare an interest as I am a non-executive director of Jazz FM. I look forward to reading my noble friend's remarks in Hansard tomorrow because they are of immense importance to all the amendments tabled in my name. He suggested that we put forward the arguments and I shall therefore spend two or three minutes in outlining the arguments in favour of my amendments.
  As I said at the Committee stage, the matters covered by these amendments are complex and I believe that the House will share with me an unwillingness to be regaled with these complexities yet again. I should remind your Lordships that the details of these arguments concerning the rights of monopoly licensing bodies have been exhaustively considered by the Monopolies and Mergers Commission, and by the Government in consultation with interested parties and indeed on the Floors of both Houses of Parliament. In moving these amendments, I find myself in something of a curious position in that the case made by the broadcasting industry, upon which these amendments are based, has already been accepted by the Government. Indeed the wording of my amendment, Amendment No. 346A, was actually based on the wording recommended by the Government.
  I Should like to speak briefly to my amendment, to the Government amendment, Amendment No. 351ZA, and then briefly cover my two other amendments, Amendments Nos. 342A and 346A, which are also concerned with Clause 174. Noble Lords may recall that when these matters first came before your Lordships' House I argued, with a good measure of support from all sides of the House, that, as the Monopolies and Mergers Commission had condemned and called for the abolition of PPL's practice of imposing needletime restrictions, it would have been wrong for there to have been a device in this Bill by which the PPL could have abolished the needletime restriction and then subsequently claimed compensation by way of increased royalty rates. If this had been allowed, it would have provided a bounty to record companies solely for stopping an abuser of the British broadcasting industry—something which your Lordships would wish to prevent.
  844
  The Government recognised these dangers and agreed to put forward amendments that would oblige the copyright tribunal to disregard the previous existence of needletime restrictions as having been relevant to the rates charged at the time. The measure was intended to block the possibility of any price increase resulting from the abolition of needletime. This process has now become known as extrapolation and should have been prohibited by the government amendments.
  I warmly welcome the government amendment, but am concerned that it makes no specific mention of needletime and contains a serious loophole in that it only calls for the tribunal not to be guided by previous tribunal orders thus, by omission, conferring a relevance upon previous needletime contaminated licences that were not the subject of a tribunal order. I have sought to clarify the matter by adding to the Government's amendment in a way that I hope the Minister will recognise as being a correct and honest interpretation of the Government's aim and undertakings in this matter.
  Amendment No. 346A is altogether more straightforward. The Monopolies and Mergers Commission concluded that, as a price of its monopoly, the PPL should be relieved of its injunctive rights. Therefore, upon an application by a broadcaster for a statutory licence, it should be entitled to broadcast on the basis of self-assessed royalties—free from the threat of an injunction until the tribunal had settled the dispute. However, the commission considered activity designed to induce home taping to be unacceptable and therefore recommended that qualification for a statutory licence should depend on compliance with conditions designed to prevent such home taping.
  An acceptance by the Government of this most specific requirement resulted in a preferred form of wording being suggested by the DTI which is now the exact wording of my amendment. Unfortunately, as it stands, the Government's amendment contains no mention of home taping and requires compliance with any—I repeat the word "any"—reasonable conditions. Surely any conditions should be tested by a tribunal before being imposed upon a broadcaster under threat of injunction. Therefore the clause, as it stands, is inconsistent with the MMC recommendations and even with the Government's own understanding and suggested treatment.
  The argument has been put forward that as the Government are engaged in the limitation of property rights, they should do so only with sufficient justification. I must point out that such justification was sought from the MMC and was received in the form of its report of December 1988. The wording of its recommendations leaves no room for misunderstanding and moreover I must also stress that the rights of individual copyright owners are not affected by the amendments. It is solely the position of rights exercised collectively that is being restricted, something from which the House seldom shrinks when faced with conclusive evidence such as has been provided by the MMC.

  845
  The House would naturally have a concern for the rights of individuals in those matters, and I am assured that the rights of individual copyright owners, including those of injunction, could be exercised to the full simply by withdrawing from the monopoly licensing body concerned.
  Finally, Amendment No. 342A proposes wording that would clearly show that, when a broadcaster evokes a statutory licence, one of the conditions that might prevail is one which concerns compliance with an order of the tribunal and that the order referred to means an order made under the new provisions of the Bill—not orders made under the old system. I am advised by greater legal minds than mine that the current wording leaves room for misunderstanding and therefore I hope my amendment will be acceptable as a point of clarification.
  The honouring of commitments made to the House and elsewhere, together with the weight of supporting argument, should make all three of my amendments entirely consistent with Government policy. However, in view of what my noble friend the Minister has said, it is not my intention to move the amendments this evening. I shall continue to hear the arguments as they are put forward.
  Lord Clinton-Davis: My Lords, first, with reference to Amendment No. 342A, I am glad that the Minister has so far resisted it, but it would be premature for me to comment further upon it, save to say that I am concerned in the light of the statement he made tonight, which I shall have to consider.
  Before I go any further I should declare an interest in this matter because I am a consultant with a firm of solicitors, S. & J. Burwen & Co., which has been consulted over a period of years now by the BPI.
  In relation to Amendment No. 346A, I am pleased that the Minister thought it inappropriate that that matter should be proceeded with, and evidently it will not be. The same applies to Amendment No. 351ZA. I am pleased too that the Minister was able to accept the amendment tabled by the noble Lord, Lord Jenkin of Roding, in relation to Amendment No. 351, which is the critical amendment so far on these issues. Some of the mischief—as I would see it—that that amendment imports has been mitigated, but not wholly.
  I hope that the Minister will be able to give me some reasonable replies to the questions I asked. I support the view expressed earlier by the noble Lord, Lord Lloyd of Hampstead, which was in a sense echoed by what the Minister said: that these are important matters. He apologised for the fact that they were being debated so late at night. They are complex matters. That is a criticism of the Government. It is no one else's fault. The Government have chosen to introduce Amendment No. 351 late in the day. I am not now referring to the lateness of the hour. It is wrong that that should have been done, because the matter is important.
  I am advised that the amendments were not the subject of any prior consultation with the BPI or any
  846
  other part of the recording industry. I hope the Minister can say why that was the case. It is extremely unusual, is it not, for that situation to prevail? After all, the Government have consulted previously and in this case, for some reason best known to themselves, although the recording industry has had very close relations with the Department of Trade and Industry, I am advised that no consultation has taken place. No doubt the Minister will be able to take instructions on that point because that is very serious and disturbing indeed. I hope that in all future cases the opinion of the industry will be sought before changes are discussed.
  The industry is of enormous importance to this country. In 1989 it had sales of a net worth of something like £2,500 million and there are 25,000 people employed in it. It stands very high in the world ratings. Its invisible earnings were worth well over £1 billion in 1988. It is contended by the industry that Clause 174 and the amendment in particular have the effect of diminishing the protection which it has felt to be of considerable value in its dealings across the world.
  If the United Kingdom substantially downgrades the protection which it gives to sound recordings, there is a danger that the rest of the world will follow to the detriment of the industry as a whole.
  I believe that I should leave the matter there particularly at this stage although I should have liked to have said more. I know that the damage cannot be rectified now. The Government are set upon pursuing this amendment, but at the very least the Minister might make an apology to the industry and undertake that it should be properly consulted on all future occasions.
  Lord Birkett: My Lords, like the noble Lord, Lord Jenkin, I was very worried by Amendment No. 351 because it seemed to me to place unwarranted restrictions on a tribunal which, after all, in Section 135G, is supposed to consider the matter and make such order as it may determine is reasonable in all the circumstances. That is an all-embracing provision which seems to me to be entirely sensible.
  Indeed I thought that the original amendment in the name of the noble Earl was wiping the tape with a vengeance. Surely any tribunal should be able to consider history in some shape or form. Therefore, I was very relieved to hear the noble Earl make some promises to the noble Lord, Lord Jenkin, about considering his amendment and perhaps incorporating it in some way at a later stage. I am very reassured by that.
  I was rather surprised to hear the noble Lord, Lord Colwyn, reassure the House that none of this affected the performers or the people in the middle. It is true that behind these amendments stands a history of debate and squabble even between broadcasting organisations and record companies. Of course, it is tempting to believe that it is rich broadcasters fighting rich record producers. Sooner or later, whatever the technicalities, in the middle are the performers, who may very well not be rich. The returns which come to

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  them should concern us more than anything else. There fore, I was very relieved to hear what the noble Earl said about the various amendments and I shall look Forward with great interest to Third Reading.
  Earl Ferrers: My Lords, I am glad that my noble friends Lord Jenkin and Lord Colwyn and the noble Lord. Lord Birkett, felt reassured by much that I said. I daresay that some of your Lordships who are not deeply familiar with the intricacies of the subject matter which we are now considering might have obtained an equally clear understanding of the debate had it been conducted in ancient Greek. I accept that this is a complicated matter. The noble Lord, Lord Clinton-Davis, castigated me slightly when he said that was the fault of the Government because the amendments had been tabled late and there had been no consultation. Throughout the whole of the Bill we have tried to consult as much as possible. We have tried to take into account all the criticisms that have been made, and I think most noble Lords would agree that we have amended the Bill substantially to take account of those criticisms.
  It is perfectly true that my noble friend Lord Sanderson made a clear statement of the Government's intentions in Committee and we then tabled these amendments. They have been on the list since 28th September. People who are concerned about this matter have therefore had plenty of time to make their representations.
  I hope in the light of what I have said, your Lordships will feel minded to accept the Government amendments. I have given an undertaking that we shall certainly consider the remarks which have been made and consider to what extent—I can put it no higher than that—if any, we can meet any of the points which have been made. Your Lordships will realise that we are up against a time limit, and the noble Lord, Lord Clinton-Davis, might care to blame the Government for that. However, he will realise the practical difficulties that that poses. As I have said, I shall ensure that the points are considered without commitment.
  11.30 p.m.
  Lord Clinton-Davis: My Lords, before the noble Earl sits down, will be indicate whether the recording industry was consulted at all, most particularly by the Home Office, since the time the amendments were tabled? Is he also aware that attempts were made to consult Ministers, but nothing came of that?
  Earl Ferrers: My Lords, I am not familiar with those details, nor am I familiar with the fact that attempts were made to speak with Ministers but the Ministers did not make themselves available for meetings. So far as I know, no one tried to contact me. Had they done so, I would have been content to meet them. I realise that a noble Lord is trying to intervene.
  Lord Jenkin of Roding: My Lords, before my noble friend sits down, he may care to remind the House that when I, on behalf of the recording industry, sought an interview, I had no difficulty whatever in obtaining a
  848
  meeting with Mr Douglas Hogg. I kept my noble friend informed of that contact by sending him copies of the correspondence.
  Earl Ferrers: My Lords, with the leave of the House, I should say that I am grateful to my noble friend for refreshing my memory of that incident. Those comments serve to refresh my memory further. I recall that I also had meetings with my noble friend Lord Colwyn and others whose names I cannot recall. However, there were a number of them. The noble Lord, Lord Clinton-Davis, was not among them. However, if he is being fair, he will accept that he did not ask to see me about this matter.
  On Question, amendment agreed to.
  Earl Ferrers Earl Ferrers moved Amendment No. 342:
  Page 136, line 34, leave out ("be included pursuant to an order of the") and insert ("comply with an order of the Copyright").
  On Question, amendment agreed to.
  [Amendment No. 342A not moved].
  Earl Ferrers Earl Ferrers moved Amendments Nos. 343 to 346:
  Page 136, leave out lines 38 and 39 and insert:

  ("(b) allowing unlimited needletime or such needletime as he has demanded.").

  Page 136, line 44, leave out ("as to needletime that would be acceptable to him") and insert ("allowing unlimited needletime or such needletime as he has demanded").
  Page 137, line 3, leave out from ("substitute") to ("terms") in line 4 and insert ("or procure the substitution of").
  Page 137, line 39, leave out ("Copyright").
  On Question, amendments agreed to.
  [Amendment No. 346A not moved.]
  Earl Ferrers Earl Ferrers moved Amendments Nos. 347 to 351:
  Page 137, line 49, leave out ("sound").
  Page 138, line 31, leave out from ("circumstances") to end of line 38.
  Page 139, leave out lines 13 and 14.
  Page 139, line 20, at beginning insert ("Copyright"). Page 139, leave out lines 38 to 41 and insert:
  ("Factors to be taken into account.
  135G.—(1) In determining what is reasonable on an application or reference under section 135D or 135E, or on reviewing any order under section 135F, the Copyright Tribunal shall—

  (a) have regard to the terms of any orders which it has made in the case of persons in similar circumstances exercising the right conferred by section 135C, and

  (b) exercise its powers so as to secure that there is no unreasonable discrimination between persons exercising that right against the same licensing body.

  (2) In settling the terms of payment under section 135D, the Tribunal shall not be guided by any order it has made under any enactment other than that section.
  (3) Section 134 (factors to be taken into account: retransmissions) applies on an application or reference under sections 135D to 135F as it applies on an application or reference relating to a licence.").
  On Question, amendments agreed to.
  [Amendments Nos. 351ZA and 351ZB not moved.]
  On Question, Amendment No. 351 agreed to.
  [Amendment No. 351A had been withdrawn from the Marshalled List.]
  Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 351 B:
  After Clause 174, insert the following new clause:
  ("Licences
  (1) The Copyright, Designs and Patents Act 1988 is amended as follows.
  (2) The following subsection is added at the end of section 116—
  "(5) References in this Chapter so far as regards broadcasting to "the operator" shall, if appropriate, include any operator of a scheme of which there is more than one operator."
  (3) The following sub-paragraph is added after subparagraph (iii) of sections 117(a) and 124(a)—

  "(iv) issuing copies of the work broadcast to the public;".").

  The noble Lord said: My Lords, I can be very brief. The first part of the amendment is directed towards the issue which has emerged during the British Phonographic Industry's tribunal hearing with the Mechanical-Copyright Protection Society, the MCPS. There appears to be some confusion as to whether or not the MCPS may be classified as an operator of the scheme, of which there is more than one operator, or whether only schemes with one operator are licensing schemes within the meaning of the Copyright, Designs and Patents Act 1988. In my submission, the proposed amendment to Section 116 of that Act would clarify the position and define the role of the operator much more satisfactorily.
  The second part of the amendment is prompted by a further problem which emerged during the hearing to which I have referred at the Copyright Tribunal. It would appear from the discussion so far that the jurisdiction of the tribunal may not extend to the issuing of copies of the work to the public. The MCPS alleged that the 1988 Act makes it necessary for record companies to obtain two licences, one for copying and the other for the issue of records to the public. It is claimed by the MCPS that that second licence, which is by far the more important to the record companies from the commercial point of view, is not subject to the jurisdiction of the Copyright Tribunal. Technically that means that the Copyright Tribunal can review the terms of the MCPS licences in so far as they relate to copying but not in so far as they relate to distribution. That makes something of a nonsense of the current litigation and would severely prejudice the commercial interests of the BPI. I beg to move.
  Earl Ferrers: My Lords, I must confess that when we first saw the amendment we could see little connection with broadcasting or the subject matter of the Bill. The noble Lord's revision of the amendment has made it more relevant to the Bill, but I am afraid that it has not made it one that I can accept.
  There are two main points. The first is that it is suggested that the legislation should recognise that there may be more than one operator of a licensing scheme. If the noble Lord's amendment merely restates the rule of the Interpretation Act, which provides that the singular includes the plural unless the contrary intention appears, then the amendment states the obvious and, I suggest, is unnecessary. However, we find the notion of a scheme with more than one operator a difficult concept to accept. Each
  850
  scheme can only have a single operator. For a scheme to have more than one operator could be a recipe for things to go wrong.
  The second point concerns the lack of tribunal jurisdiction over the restricted act of issuing copies of the work to the public. That right is conferred on the copyright's owner by Section 18 of the 1988 Act. The noble Lord has made an attempt to bring the amendment within the scope of the Bill by referring to the issue of copies of the "work broadcast to the public". I fear that it introduces obscurities and would create a very artificial dividing line between areas covered by tribunal jurisdiction and those that are not.
  I hope that what I have said may be sufficient to enable the noble Lord to consider the matter in a little more detail and to withdraw his amendment.
  Lord Clinton-Davis: My Lords, before the noble Earl sits down, I did not hear the last paragraph of what he had to say and I wonder whether he would mind repeating those few words.
  Earl Ferrers: My Lords, in the last paragraph I said that I hoped that what I had said was sufficient to satisfy the noble Lord.
  Lord Clinton-Davis: I meant the penultimate paragraph!
  Earl Ferrers: My Lords, as for the penultimate paragraph, I shall try to use the same words, but as I spoke ad libitum it may not be quite so easy to produce exactly the same words as before. The second point to which I referred was about the lack of tribunal jurisdiction over the restricted act of issuing copies of the work to the public. That right is conferred on the copyright owner by Section 18 of the 1988 Act.
  I suggested that the noble Lord made a valiant attempt to bring his amendment within the scope of the Bill by referring to the issue of copies of the work broadcast to the public. But I said that I feared that his amendment introduced obscurities and would create a very artificial dividing line between the areas covered by the tribunal jurisdiction and those that are not.
  I hope that I gave as nearly accurate a description the second time that I referred to the problem as I did the first time.
  Lord Clinton-Davis: My Lords, I am much obliged to the noble Earl. Frankly, I am as unimpressed with the arguments that he adduced in the penultimate paragraph as with those in the ultimate paragraph. But having said that, I shall read very carefully what he said. In the circumstances I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 175 [Duty to provide advance information about programmes]:
  The Earl of Stockton The Earl of Stockton moved Amendment No. 351C:
  Page 140, line 8, after ("person") insert ("or duly authorised agent").
  The noble Earl said: My Lords, for the convenience of your Lordships' House in moving this amendment I should also like to speak to Amendments Nos. 352, 355 and 357A which also stand in my name and

  851
  Amendment No. 358. The two amendments in my name cover two slightly differing points around the same issue. The first is that it is the intention of the Home Office that a publisher should be allowed to appoint a nominee for the purposes of publishing TV listings. But as with so many clauses in the Bill, what the Home Office intend and what is in the Bill do not necessarily seem to correspond. This amendment would allow the Minister an opportunity to clarify the position of listing bureaux.
  The regular and daily press need to be able to require copyright holders to supply either the publisher direct or the publisher's nominee. It is current practice for the Press Association to compile TV and radio listings from data supplied by all the broadcasters. Those are then sent via land line or satellite to every national newspaper and to all but two regional dailies and Sundays. Some 55 of those use the Press Association directly in their publications and another 30 or 40 take a customised version direct to page. Considerable savings are made on the cost of each newspaper having to compile its own listings. Another 10 newspapers take a similar service from a competitor company.
  The Press Association is well used to handling others' copyright material, adding value, transmitting it to the newspaper industry and collecting both the licence fee for the copyright data and, if necessary, additional fees.
  Under Clause 175(1) at present there is no obligation on the broadcasters to supply such agencies. Newspapers fear that they will be obliged either to carry the expense of compiling the listings themselves or to subscribe to the bureau service being offered by the BBC itself. The Bill as put would enable broadcasters to deny publishers the opportunity of choosing a service from a competitive market place, which is precisely what they are able to do at the moment.
  Turning to the other issue, the Government announced on 4th June that publishers should be allowed to publish the listings on 1st March 1991. The Home Office therefore intends to bring the section on programme listings into force on 1st January 1991, with a proviso that nobody can publish until the later date. In practice two months is not a long time in which to negotiate complex licence fees. My main worry is that the existing publishers may claim that two months is not a reasonable time in which to settle a licence fee and that they could serve an injunction and prevent a rival publisher from publishing on 1st March.
  This amendment has been suggested by the Home Office, which agrees that the publishers and the broadcasters should be encouraged to start negotiating as soon as possible after Royal Assent. It is my hope that my noble friend the Minister will have an opportunity to express the Government's intention that parties should start to negotiate before 1st January 1991. It would put many minds at rest if the Government were able to assure us that a "reasonable
  852
  time" should mean two months in this instance and that negotiation should start after Royal Assent. I beg to move.
  11.45 p.m.
  Earl Ferrers: My Lords, the amendment which my noble friend has moved is connected with Amendments Nos. 352 to 355, 357A and 358. My Amendments Nos. 354 and 355 modify the table in Clause 175 to cover the interim period. The other amendments to Clause 175 are essentially drafting improvements. My amendment to Schedule 15 removes paragraph 5(b) of that schedule, which gave the copyright tribunal power to award costs against a listings publisher who had set a less than reasonable figure for payment of the broadcaster. Its removal ensures that both publisher and broadcaster can be treated equally by the copyright tribunal in terms of cost.
  My noble friend's Amendment No. 357A is, I believe, intended to ensure that where a publisher served a notice on a broadcaster on 1st January 1991 that he intended to publish listings information if no agreement had been reached between the licensee and the licensor the publisher should be in a position to publish information on 1st March 1991. I certainly accept the spirit of my noble friend's amendment, but I cannot accept the amendment because it is technically defective. For example, as drafted it is not clear whether the provision refers to the publishers serving notice on the copyright tribunal or on the broadcaster himself.
  It would be difficult to include a provision of this type in the Bill. But perhaps I may set out the way we see things working. The Government have made clear that their policy intention is that publishers should be in a position to publish TV listings information from 1st March 1991. We are currently considering how best to give effect to that intention. Our present view is that we shall implement Clause 175 and Schedule 15, both of which relate to TV listings information, on 1st January 1991. We shall make clear in the commencement order that broadcasters would not be obliged to provide information relating to any programmes that they intended to broadcast before 1st March 1991.
  Accordingly, on 1st January 1991 publishers would be able to give notice under paragraph 3(1)(a) of Schedule 15 to a broadcaster of their intention to publish listings information. I would hope that negotiations could be completed to mutual satisfaction in order for publishers to be in a position to publish by 1st March 1991. But if that were not to happen, I believe that a publisher who had not received proposed terms from the broadcaster, or who was dissatisfied with those terms at the end of January 1991, would be deemed to have waited a reasonable period of time, as is required in paragraph 3(1)(b). He could at that stage serve notice on the broadcaster and the copyright tribunal simultaneously of his intention to begin publication on 1st March. The one-month period of notice which this would entail could also be regarded as the reasonable period specified in paragraph 3(1)(b).

  853
  I would hope that broadcasters would be amenable to approaches from publishers before 1st January 1991. Although the statutory provisions themselves would not be in place, I would hope that broadcasters would not seek to be obstructive in entering into preliminary negotiations with publishers.
  Amendment No. 351C in the name of my noble friend is similarly defective. It would imply that the nominated agent would himself wish to publish information in the United Kingdom. I understand what the amendment is intended to achieve. It is that where a publisher made a direct contractual arrangement with a broadcaster he could ask that the listings information be supplied to a nominated agent. I hope that I can set my noble friend's mind at rest on that.
  The intention of Clause 175 is to ensure that there is a direct contractual relationship between the broadcaster and the person who intends to publish the information. But there is nothing to stop the publisher from nominating a person to receive the information on his behalf and to tailor it for his purposes. Provided that it was quite clear that the agency acting in this way could use the information only for the purposes of those publishers who had contractual relationships with broadcasters there would be no difficulty. Indeed such an arrangement is likely to be in the commercial interests both of broadcasters and of the publishers. Broadcasters might find that they would have to send information to a far smaller number of outlets and the publishers would benefit by having information which would be tailored to their own requirements. I hope that I have been able to set my noble friend's mind at rest regarding his anxieties.
  The Earl of Stockton: My Lords, I thank my noble friend for the reassurance and apologise for the flaws in my drafting technique. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Earl Ferrers Earl Ferrers moved Amendments Nos. 352 to 355:
  Page 140, line 25, leave out ("A statutory instrument containing").
  Page 140, line 28, leave out ("That duty") and insert ("The duty imposed by subsection (1)").
  Page 141, leave out lines 2 to 22. Page 141, line 34, at end insert:

  ("Services provided during interim period only)

  Television broadcasting services provided by the Independent Television Commission in accordance with Schedule 9, other than Channel 4

  The programme contractor

  Channel 4, as so provided

  The body corporate referred to in section 12(2) of the Broadcasting Act 1981").

  On Question, amendments agreed to.
  [Amendment No. 356 had been removed from the Marshalled List.]
  Lord Willis Lord Willis moved Amendment No. 356A:
  After Clause 175, insert the following new clause:—
  ("Rights in formats
  .—(1) Subject to the provisions of this section and of section (Rights in formats: supplementary), the owner of the
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  rights in a format which amounts to an original format shall have the same rights and remedies against a person who copies or includes in a broadcast or cable programme a substantial part of that format as he would have if the format were a literary or dramatic work and he were the owner of copyright in it; and accordingly the provisions of Part I of the 1988 Act shall apply in relation to the rights in formats conferred by this section as they apply in relation to copyright in literary or dramatic works.
  (2) For the purposes of this section and of the provisions of Part I of the 1988 Act in their application to formats, "copying", in relation to a format, means making another format with format features which (taken together) substantially reproduce those of the first mentioned format; and a combination of format features may be taken substantially to reproduce another such combination even if some or all of the features have been translated into a different language or have been modified to suit a different society.
  (3) The rights conferred by this section in relation to a format—

  (a) shall expire at the end of the period of 25 years from the end of the year in which the author dies, and for all other purposes of determining whether the owner of those rights has any cause of action references in the 1988 Act to any period of 50, 75 or 100 years shall be treated as being references respectively to a period of 25, 50 or 75 years;

  (b) are transmissible by assignment, by testamentary disposition or by operation of law as personal or moveable property in the same way as copyright.

  (4) Sections 159 and 160 of the 1988 Act (which enable provision to be made by Order in Council applying provisions of Part I of that Act to countries to which that Part does not extend or restricting the rights conferred by that Part in relation to works of authors connected with countries not giving adequate protection to British works) shall apply in relation to the provisions of this section and section (Rights in formats: supplementary) as they apply in relation to the provisions of that Part.
  (5) Nothing in this section shall affect any copyright or any other right in the work in which the format is first recorded, whether it is so recorded in writing or otherwise.
  (6) The rights conferred by this section shall apply in relation to formats whether made before or after this section comes into force; but no act done before this section comes into force shall be actionable by virtue of this section.").
  The noble Lord said: My Lords, I make no apology about the lateness of the hour because it is not my fault or that of your Lordships; it is the fault of the Government. I must make a mild protest because this is an important Bill. It should not be debated at this hour of night and I do not see why the Government could not have conceded a fourth day for the Report stage. I shall speak also to Amendment No. 357ZA.
  The matter was debated in Committee and the Government promised to look at it again. I am grateful for the care and consideration that the noble Earl, Lord Ferrers, has given it. I cannot say as much for the DTI which, in considering the matter, made the cardinal mistake of referring it to the lawyers. Of course, they muddied the waters considerably. There is only one thing worse than referring matters to lawyers and that is referring them to an academic mafia. The result is that we received a negative reception from the Government; hence the reappearance of my amendment.
  Perhaps I may remind the House as briefly as possible of the background. The situation arose through a case that happened in New Zealand. Mr. Hughie Green, the inventor and owner of a show

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  called "Opportunity Knocks", was suddenly confronted by the Inland Revenue of this country and asked to pay tax in respect of his show that had been running in New Zealand for some time. He was completely ignorant of the fact and spent some months and a great deal of money trying to pursue the matter. He won the case in New Zealand but the New Zealand Broadcasting Corporation appealed to the Privy Council here which ruled against him on a number of grounds that I shall explain later.
  I emphasise that Mr. Green did not demand a monopoly on the idea of a talent show. In fact, a number of talent shows existed alongside "Opportunity Knocks"; notably "New Faces". Mr. Green was happy with that situation. He took action only because the New Zealand producer stole his format, his method of presentation, the distinctive features that he had developed over many years and capped it all by using the title "Opportunity Knocks". When challenged in the courts and asked, "Have you stolen Mr. Green's show lock, stock and barrel?", the producer admitted it. That was a most brazen act of piracy.
  The result of the Privy Council decision means that the question of the rights of ownership of quiz and game shows has been thrown into confusion. That may seem unimportant to many people. No one would argue that game shows are high art but, putting aside all snobbish considerations, there are three points that your Lordships should remember. First, such shows give innocent pleasure to millions of people. Secondly, they are relatively cheap to produce and therefore provide an indirect subsidy to more prestigious drama and documentary programmes. Thirdly, they often take years and considerable investment to develop, usually by the owners of small independent companies. Surely, these people have as much right to protection of their property as a film producer or a dramatist.
  Perhaps I may give your Lordships an example of the problems that the Privy Council ruling has raised. Mr. Green asked for the dramatic format of his show to be protected. He cited several distinctive features which were his invention, such as a clapometer, the method of introducing and judging the contestants, certain questions and catch phrases which were a regular part of each show and other features which had been established, polished and worked at for many years. The Privy Council ruled that those features were not related to one another; were simply accessories; and had no dramatic unity and no strength.
  On the basis of that ruling, what would happen to a show like "Mastermind"? It is basically a general knowledge quiz show. It cannot, by its very nature, have scripts. It has the black chair, the invited audience, the dramatic lighting, and a questionmaster who has certain well established catch phrases, just the same as "Opportunity Knocks". The Privy Council ruling means that "Mastermind" could be stolen tomorrow by anybody. All those features add up to no
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  more than the permanent features invented by Mr Green for his show. That is clearly wrong, and the uncertainty should be removed.
  The Government's objections to the amendment appear to fall into two categories. First, they take the view that the "Opportunity Knocks" case is a one-off — a kind of legal aberration. I take this to mean that the originators or owners of other game shows must, if necessary, face the same test in law as Mr. Green. If their property is stolen, they must sue in order to establish their rights. That does not offer much satisfaction to the people and companies who invested a great deal of money and time in the development of their shows. They are being asked to take an unacceptable risk: to work for months, even years, to develop a show and to put it on, and then it can be stolen. If it is stolen they have recourse to law. They have to test the law. I can tell your Lordships that it has cost Mr. Green a quarter of a million pounds to pursue his case through the New Zealand courts and over here, and he has lost.
  Is any other person going to put their money on the line like that and take a risk in developing a new game show? Is it not true that by suggesting there could be similar cases the Government are implicitly admitting that there is a hole in the law? My question is: why not fill it now? Why put those producers at such risk?
  The Government's second main argument appears to be that the amendment would create a monopoly in game shows. This is a horse that will not run. I have already indicated that there have been other talent shows to which Mr. Green did not object. I could sit down with the producers, and the noble Lord, Lord Harmar-Nicholls, and I could sit down together and produce half a dozen shows on themes similar to those on television at the moment. They would then take a lot of time and money to produce, but they would not infringe the copyright controls set out in my amendment. It is quite possible to develop a show like "Mastermind" but in a different way. In fact, I can give you an example.
  There has been running on BBC an immensely popular show called "A Question of Sport", which is a fantastic show. ITV was a little jealous of this, so they developed a show called "Sporting Triangles", which is essentially a very similar show, but it has certain distinctive features which make it different from "A Question of Sport", and therefore it is safe. There is no question of suing, no question of monopoly. So I think that the idea that my amendment would create a monopoly in game show or quiz show ideas is nonsense.
  What is left of the Government's arguments? They say that there has been no public debate on this issue and that there is no public concern. That may well be so, but I can tell your Lordships that there is great anxiety among broadcasters who are worried because they are putting money into these shows and they fear that they will lose them. They are operating now in a minefield with the danger of costly court actions exploding around them. Even if there is an absence of public anxiety, is that any reason for refusing to put right an obvious wrong?
  The Government suggest that those shows, in certain circumstances, may find protection in patent law, trademark law, design law, copyright law, passing-off and the law of confidence. I only say that none of those was very helpful to Mr. Green, who lost his show and £250,000. I make the point I made earlier. By pointing producers in the direction of those protective laws, the Government are acknowledging that a danger exists. Why do they not take this opportunity to eliminate that danger?
  The Government's advisers said that the most fundamental objection to the amendment is that it is impossible to establish with any degree of certainty what would be protected in any given situation. I know and the producers know what we want protected: we want game shows and quiz shows to be afforded the protection which we innocently thought they had before the ruling of the Privy Council. The Government were quite happy with the situation before that time. There was no talk of monopoly or court cases. If the Government have reservations regarding the scope or wording of the amendment but concede that there is a case for protection, I shall be content to consult with their advisers and bring back a mutually agreed amendment to Third Reading.
  I should like to read to the House a letter which came to me from the head of programme legal services of Thames Television. It shows a double standard on the part of the Government. The letter reads:
  "I write to you on the subject of the recent payment to Universal of approximately £100,000 in respect of the use of the Frank N. Stein character in the current electricity privatisation advertisement.
  The fact is, of course, that this character in its various forms … was created by Mary Shelley more than 150 years ago and is therefore out of copyright. In this business we are all accustomed to bullying claims by American showbiz lawyers. In my capacity here I have just fought off such a claim by an American lawyer for £10,000 in respect of the use of music which was already covered by [other agreements]. In this kind of situation American lawyers are unbelievably aggressive but in a situation of that kind I owe a duty to my employers … I should have thought that a similar duty to the public arose in the case of the electricity advertisements".
  We there have a situation in which the Government paid what is estimated to be between £50,000 and £100,000 for a character which they used in their electricity advertisments, which is out of copyright. My friend from Thames Television ends his letter as follows, which I believe says it all:
  "One final thought. It does seem astonishing does it not that Universal can be paid for the use of a character created by Mary Shelley [which is out of copyright] but that Hughie Green does not own 'Opportunity Knocks"'.
  I beg to move.
  12 Midnight
  Lord Lloyd of Hampstead: My Lords, my name appears as a supporter of this amendment and I should like to make one or two brief comments. The matter has been argued with such eloquence and knowledge by the noble Lord, Lord Willis, that it is unnecessary to repeat any of the arguments illustrating that this is the sort of situation which calls for more adequate legal protection. If the Privy
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  Council case in question showed anything, it showed that such adequate protection does not appear to exist under the present state of the law.
  I only propose to repeat a suggestion that I made when the matter was discussed at Committee stage. If the Government have set their face against introducing any change in the law in this area, this is an eminently suitable issue to be referred to the Law Commission. I remind noble Lords that at Committee stage the noble Lord, Lord Sanderson, in answer to my suggestion, said that he would consider it.
  I observe that in a memorandum just issued by the Department of Trade and Industry, and of which they were good enough to send me a copy, in paragraph 26 there appear these words:
  "A change in the law cannot be ruled out. But it would need to be preceded by a fuller consideration of the adequacies of the present law and the implication of any change than has been possible so far".
  I should have thought that is the sort of matter eminently appropriate to be considered by the Law Commission. I have great sympathy for the case put by the noble Lord, Lord Willis, and would welcome any move by the Government to take more immediate action. At any rate, if such action be not the case, perhaps the Government will say that they are ready to go along with the proposal to put the matter before the Law Commission. If the Government cannot agree to that suggestion and the opinion of the House is to be taken—which is a matter for the noble Lord, Lord Willis—for my part I am prepared to support the amendment.
  Lord Harmar-Nicholls: My Lords, I am happy to have my name on this amendment for the reasons so effectively set out by the noble Lord, Lord Willis. The first point I make is that if there is anything in his suggestion that the Government are saying that there is no concern about this matter, they should take into account the eminence of the noble Lord, Lord Willis, himself in the field we are discussing. There is no doubt that if his speech can be looked upon as evidence, we have an expert witness giving the most effective evidence which should not be disregarded.
  I hope that whatever feelings the Government may have had in the past, the experience of Mr. Hughie Green has put them clearly in a position of endeavouring to deal with that gap in the law. Until that case arose I thought that what we are asking for in this amendment was in fact the law. Everything operated in the belief that the people who produced these ideas and invented special games, which have brought so much pleasure to people, had the protection of ownership.
  If the amendment or something similar is accepted we would merely be bringing the law to the point that everyone thought existed before that sad case came forward. My noble friend and his colleagues have a duty to do that. It has been done in the past when similar situations have arisen. I remember a Private Member's Bill that I brought before this House dealing with licensing. A judgment had been given in a court in the South which made it illegal for anyone at a dance or a function to collect their own drink

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  from the counter; it had to be taken to them by a waiter, with all the added expense and problems that that entailed.
  Until that time everyone thought that it was lawful to collect their own drinks and enjoy their evening in the normal way, but the judgment showed that that was not the position. Through a Private Member's Bill that I was allowed to bring forward the government put that right and changed the law to match the position that was thought to exist before the case disclosed a weakness in the law.
  Therefore, there is a precedent which I hope my noble friend will take into account. If there is a gap in the law it is Parliament's job to assist the judiciary by making the position clear and as Parliament intended it to be; and I believe that Parliament intended the position to be as we have always thought it was before the Privy Council decision in the Hughie Green case.
  There is no purpose in repeating the points which the noble Lord, Lord Willis, made so effectively and with such authority, particularly at this late hour. I believe that any reasonable person would accept the validity of every point that he made and would also follow the advice which the noble Lord, Lord Lloyd of Hampstead, gave by taking the earliest opportunity of seeing that those who have to set out the words that form our law take these matters into account.
  I should like to have the attention of my noble friend because I want to talk about him as a person quite apart from the great authority which he has in being a spokesman for the Government on this important issue. My noble friend has a reputation for being consistent. I think his middle name is consistency. It is within the recollection of this House that today, in relation to the first Amendment, No. 209A. moved by the noble Baroness, he was able to win the day against her by arguing that anyone who has a claim to the ownership of anything is entitled to the rights that go with it. The noble Baroness did not agree with that. She said that she did not think that ownership should come into it. It is the satisfaction given to the customer or the consumer which really matters.
  My noble friend said that someone who had bought or who, by giving their skill, ingenuity and time, had invented something new, was entitled to compensation if that item was copied or taken by someone else. The argument that my noble friend used most effectively to win the point against the noble Baroness's amendment is four-square and on the same basis as the argument which the noble Lord, Lord Willis, is asking us to accept. I am asking my noble friend to live up to his name of being a consistent Minister in terms of the points that he makes.
  On this occasion the noble Baroness is not left out. The point on which she based her amendment earlier in the debate was that the customer or consumer should have all the benefits that can be given. She was emphasising that. We can have her support on this. If the amendment which the noble Lord, Lord Willis, instigated, and which we are now supporting, is accepted, it is the customer or consumer who will
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  benefit. There is no doubt that, unless we make it crystal clear that the inventors of these ideas in the field of theatre and broadcasting are to have the kind of protection which they thought they had in the past, and which the Privy Council's decision has shown they have not got, people will stop following their example.
  We shall be making a grave mistake if at this time we do anything that weakens the contribution that the people of this country can make to effective broadcasting. The noble Lord quoted the figures of what we earn by exporting the benefit of these ideas and their presentation. It is a considerable amount of money. We have a responsibility to protect it. At the moment this country is at the head in being able to produce ideas which go to make up programmes. The world is taking those programmes. The surface of the opportunities available has only been scratched in developing the markets for the programmes that are produced.
  We are on the way towards being the Hollywood of the broadcasting world, just as Hollywood was the centre for the film world. I am asking my noble friend to be consistent. I should like his attention if he does not mind.
  Earl Ferrers: My Lords, you have it.
  Lord Harmar-Nicholls: My Lords, I am all in favour of conversations but this is an important amendment. I would like to feel that it is being properly considered. I ask my noble friend to recognise that there is a gap. I ask him to accept the evidence given by the noble Lord, Lord Willis, who is a world authority in this field. He said that there was concern about this matter. I ask him to follow the same argument that he used so effectively when he defeated the introduction of Amendment No. 219A earlier today. If in his view and the view of his advisers the words of the amendment do not fit in, perhaps he will indicate that he will produce other words to achieve the same objective. It is with confidence that I ask him to take all those matters into consideration and to tidy up a loophole which has now shown itself.
  12.15 a.m.
  Baroness Birk: My Lords, before the noble Lord sits down, I feel I should remind him that when the vote on the listed events took place it was won by the battalions on that side of the House who had not even heard what I and the Minister had to say. I do not think it had anything to do with reason.
  Lord Harmar-Nicholls: I heard.
  Baroness Birk: But how many times could the noble Lord vote?
  Lord Peston: My Lords, we are indebted to my noble friend Lord Willis for introducing the amendment and to the two noble Lords who have spoken. I say with great regret that my opening remarks must be ones of complaint. In Committee I asked whether, because the matter was highly technical and because it was very late at night, I could see the relevant Minister. I did not wish then to delay matters by going into great detail. I was given an

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  unequivocal assurance by the Government that they would do that. They have failed to meet that commitment.
  Originally I was just rather annoyed about it—but only "rather" and I was not going to press the point —but a few minutes ago, as I was sitting innocently on the Front Bench, there was a great deal of to-do in connection with the amendment of my noble friend Lord Clinton-Davis. I learnt that all kinds of people had been welcomed and seen by the noble Earl's honourable friend. But he was too busy to see me despite an unequivocal assurance from the Government. I do not believe in a conspiracy view of politics but those noble Lords whom the noble Earl's honourable friend had time to see all seem to sit on the government side of the House. He had time to see them. However, despite the Government's complete assurance that they would see me, they have had no time to do so.
  The matter goes further. When I expostulated with the Minister's private secretary—I have not yet been privileged to meet the Minister—I was told that he is extraordinarily busy. Although the Government had given a pledge that they would see me before the Report stage, they could not do so. On Monday of this week I received a letter from the Minister himself saying that he would certainly see me before Third Reading. The House will be interested to know that I picked up the telephone and spoke to the Minister's private office. I said that although Third Reading was not as good as Report stage I would see him before Third Reading. I was told, "Oh, you have received that letter but I am afraid that that too does not apply. The Minister will be out of the country, in his constituency or carrying out various visits and will not be able to see you before Third Reading".
  I have no personal concern in this matter. I am used to the world having its tough times as well as its good times. However, I have two objections in addition to the fact that it has somewhat annoyed me to find that the Minister has had time to see noble Lords from the government side of the House who did not have such an assurance given in public. The first is the discourtesy to your Lordships' House. It is a discourtesy quite independent of anything to do with politics. It is a straight discourtesy. When the Government make such a commitment, that should be it. Secondly, there was an actual reason for going to see the Minister. This is a highly technical matter. It is not of enormous interest to all noble Lords. It would have been useful to go through the detail earlier. In addition, because we were in Committee then but are on Report stage now, I and other noble Lords can speak only once at this point. Therefore the type of toing and froing which would enable us to rebut arguments, to clarify arguments and so on is also denied us.
  I am sorry that I have taken up some time in raising this issue. However, I feel that it is a serious matter and one which cannot now be put right. There is no time left for the Government to meet their commitment, and in my view it is a disgraceful state of
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  affairs. I do not believe for one moment that this has anything to do with the noble Earl personally; indeed, I would find that impossible to believe. Nevertheless, it is not a satisfactory position.
  I have spoken thus far with a heavy heart, but I should say that I had no intention of pursuing that line unless I was obliged to do so. I shall now move on to the substance of my argument. I shall start with something which is still a puzzle to me. I was delighted to hear the noble Lord, Lord Harmar-Nicholls, on the matter. We are discussing property rights. We are not discussing who owns what; we are discussing the rewards available to enterprise, to skill, to innovation and to imagination.
  Throughout the proceedings I have been extremely puzzled to note that this is a matter which concerns me, sitting as I do on this side of the House, whereas the Government do not seem to consider it to be important. Therefore, I am delighted that at least someone from those Benches has spoken on the matter, pointing out that property rights used to be an important consideration for the noble Lord's party. The paradox is that I seem to be pressing the point. I would find this amusing if one was not discussing large sums of money. One cannot just brush this matter aside and say that it is academic; we are discussing a fundamental issue here.
  How has the Department of Trade and Industry approached the matter? It seems to me that the department has approached it in a totally nit-picking and unconstructive way. I have a document from the department, as, I believe, does my noble friend Lord Willis—although I am not sure whether other noble Lords have been privileged to see it. It is a document which, so to speak, rebuts many of the arguments which noble Lords have tried to put forward.
  The arguments put forward in the document are in most cases, far-fetched, to say the least. They are often so extreme that the department, in being willing to argue why it will not deal with the matter, almost calls into question the whole foundation of copyright law. I shall give noble Lords one or two examples of this in a moment. I find that situation extremely disturbing and I believe that I find it so in exactly the same way as the noble Lord, Lord Harmar-Nicholls: one had expected exactly the reverse from the department. I have no amour proper when it comes to the amendment which we are discussing. I do not care about the amendment tabled by my noble friend Lord Willis per se—nor does he. What we are concerned about is the substance.
  I should have been delighted if the Department of Trade and Industry had come, as the noble Earl, Lord Ferrers, has on other matters, and said, "We do not like your amendment". Indeed, a few words were said to the noble Earl, Lord Stockton, accusing him of not being able to draft properly, and so on. I have no views on that aspect. I should have loved to support a government amendment which dealt with the issue. My concern is that we are trying to deal with it and, I may add, at great personal cost, as it is a difficult

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  matter and consequently time-consuming. All one receives is this very small-minded approach from the Government.
  The Government's approach has also been rather illogical. I say that because in the documents which I have received from the department it seems to put forward two arguments simultaneously. For example, the department sometimes argues that protection for formats is not necessary, that this was, as was said, a one-off case and no other problems arise. However, in the very same document the department switches its arguments in other paragraphs and says that it cannot do anything about the matter of protecting formats because of all sorts of problems of definition. In other words, on the one hand the department says that there is no problem, while on the other hand it says, "Yes, there is a problem but it is an insoluble one". It seems that the department cannot make up its mind. That is an example of the attitude which it has taken when approaching this matter.
  I am in difficulty here because I do not believe that most noble Lords are terribly interested in the subject. Certainly the way they are chatting to each other does not suggest to me that they are interested in this issue. However, there are many detailed points which ought to be made. One reason why they must be made is precisly the point I made to your Lordships—namely, that all this could have been dealt with if I had been afforded the courtesy of being able to see the relevant people. I must, therefore, outline a few of those points of detail, though I do not like doing so at this time of night, especially to an audience which is not interested.
  I shall give your Lordships an example of the kind of documentation which I have received from the Department of Trade and Industry. The department seems to count as a point against the view of my noble friend Lord Willis the fact that in the Privy Council judgment the case was decided on the facts. When one reads a sentence like that one thinks what a profound sentence it is. So I consulted my legal advisers and they said, "Don't you know. All cases are decided on their facts." That is no contribution to the subject. That is an example of someone trying to pretend that they have rebutted an argument when they are making a trivial point. As all cases are decided on their facts, what matters is what one infers from the decision. The key point that one infers from the Privy Council decision - that is why it is important and as I see it the DTI has not faced up to the matter - is that uncertainty and doubt have been created where we all believed that there was certainty. Others have said the same, and the noble Lord, Lord Harmar-Nicholls, put it eloquently! What we believed to be the law turns out not to be the law.
  As I argued in Committee, as we all believed it to be the law and believed it to be satisfactory, why do we not make it the law? That is the beginning and the end of the matter. When the DTI tried to refute the view I put Forward originally - what we believed to be the case should be the case - it reverted to the Hughie
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  Green case and regarded it as a one-off case. It ignores the fact that everyone is full of doubt and does not know what is what.
  The fact that the DTI has introduced doubt is important. It also used another kind of argument, and one which is worrying when we are discussing matters of this kind. They look at matters ex post facto when they should be looked at ex ante facto. That is a problem in the whole area of copyright. Someone has an imaginative work and makes a leap forward, but when it is looked at many years later it looks commonplace. Let us take "Opportunity Knocks" and Mr. Green. The DTI asks why he should have any copyright, because it is an obvious way of doing things. It was not obvious when he did it. It was not obvious that it would be successful and a money spinner when he did it, only ex post facto. That is typical of the DTI argument.
  I have two more points to put forward. One is that the Minister argued that to introduce what is considered to be a new right - - we all believed that it was not a new right, and I do not believe that it is —would lead to harassment. I argued that if one was to say that in this case, one would be saying it for the whole of copyright. One would he arguing that there should not be any copyright. The department then sort of wriggles away. I cannot describe the preposterous way in which the department has approached the problem. If any attempt is made to beat it, it just wriggles away into something else. It says, "Well, yes, of course that is right, but here there would be much more legal abuse. There would be much more harassment if we had that right." Given that we believed we had the right before, and that until the Hughie Green case had no examples of harassment to worry about, again I am completely perplexed.
  The final argument to which I should like to avert is the international one. I argued that there was nothing substantially novel in all of this. I have the statement:
  "The Government has stated that to its knowledge there is no right of the kind proposed anywhere in the world".
  That again seems to be a profound statement until one looks at the facts. The facts are of course that there are such rights throughout the rest of the world, but they are not defined in the way that we define them, because the rest of the world's legislation is different from ours. For example, many courts in other countries have dealt with what they call the law of developed ideas. Others have much more powerful unfair competition laws under which this type of problem can be dealt with. It is not a fact—I find it disturbing that the DTI would try to mislead in that way—that the idea is uniquely British and that other countries do not legislate for the right in some way.
  I appreciate that I have tried the patience of your Lordships' House on matters in which not all your Lordships are interested. I am interested in them, as are at least three other noble Lords. Even if that were not the case, I repeat my point that there are two matters here about which I am most concerned: the first is the substantive issue that there is a problem which is solvable and should be solved; the second is

  865
  —and I echo other noble Lords, and notably the noble Lord, Lord Harmar-Nicholls—that this is not a problem which either my noble friends or I should have been put to solving.
  This is a problem in which the Government should have taken the lead and I do not believe that it is too late for them so to do. I believe that they have a duty —another word used by the noble Lord, Lord Harmar-Nicholls—to do something about it. Despite the lateness of the hour, the lateness of the day and the fact that this Session of Parliament is now coming to an end, the time has come for the noble Earl to tell us that he will deal with this matter and, on this issue at least, we can all go home happily.
  12.30 a.m.
  Earl Ferrers: My Lords, I am sorry that the noble Lord, Lord Peston, felt so needled by the Government as regards this amendment. He was clearly distressed about it and distressed that, as he said, the Government had not met their commitment. My noble friend Lord Sanderson gave an undertaking that he would be prepared to consider this matter with the noble Lord. The noble Lord, Lord Peston, said that we on this side of the House had time to meet noble friends on these Benches and not noble Lords opposite. I believe that he was being rather ungenerous over that. I do not need to tell him the basis of lobbying. If a Minister gives an undertaking that he will see a noble Lord—and that undertaking can be given at a number of stages throughout the Bill —the onus is on the person to whom the undertaking is given to telephone and say that an undertaking has been given and that he wishes to see the noble Lord concerned. I am not aware that the noble Lord, Lord Peston, asked to see me or my noble friend.
  Lord Peston: My Lords, I am sure that the noble Earl does not wish to impugn my honour on this matter or suggest that I am not telling the truth. I telephoned his office and was told that his office was not dealing with this issue because the noble Earl is not an expert in the matter. Therefore, I have certainly telephoned his office and I am most upset if that information was not communicated to him. I was told that the relevant office to ring, of which I was well aware, was the Department of Trade and Industry. I hope that he will take my word that I rang that office on more than one occasion. Therefore, if I am in a resentful mood, I am resentful at his suggestion that I did not do exactly what I said I did.
  Earl Ferrers: My Lords, the last thing I wish to do is to impugn the noble Lord's honour. I was merely making the point that I understood the noble Lord to be saying that we had not undertaken what we had agreed to do. However, the noble Lord, Lord Willis, complained that this is a late hour at which to take this amendment. It is true that it is late. He then said that that is the Government's fault. I do not wish to argue about this but I should point out that we had hoped to reach Clause 110 by the end of last Thursday's debate and it was suggested by the Benches opposite through the usual channels that we should go only to the end of Clause 81. We accepted that and therefore
  866
  we did not reach the point which we hoped to achieve last Thursday. That meant that there was more work to be completed today. I do not wish to make too much of that.
  My noble friend Lord Harmar-Nicholls is always very plausible. He said that I am always consistent. I was very flattered by that because I feel that intellectually I go backwards and forwards like a metronome as the arguments are put one way and the other. Therefore, to say that I am consistent is a degree of flattery to which I am not accustomed. He castigated me for not paying attention to him. It was merely that when he said that this is the Hollywood of the broadcasting world, I turned to my noble friend and said, "Well, if that is the case, then I am Joan Collins!"
  I assure my noble friend that Her Majesty's Government are concerned about what has happened. The inference was that the Government are not concerned about the case to which the noble Lord, Lord Willis, has correctly drawn attention. This is a matter of considerable concern. As usual in these kinds of cases, there is more than one side to the problem.
  It is undoubtedly the case that a considerable amount of skill and effort, not to mention financial investment, goes into the production of television shows such as game shows, quizzes and the like. Understandably, those who have invested time, money and effort in the creation of such shows want to be assured that their investment is secure and that others cannot merely take and use what they have produced.
  It has always been assumed in the industry that the law does give proper protection. However, the recent judgment of the Privy Council in the Hughie Green case has caused this assumption to be questioned and has generated concern among the devisers of television shows and some—but apparently not all—broadcasters. That has come out this evening in the speeches of noble Lords.
  The refusal of the Privy Council to grant copyright protection in New Zealand to "Opportunity Knocks" means, so it is said, that the format of a television programme, which is a valuable piece of intellectual property, is unprotected by the law. These new clauses seek to remedy this alleged deficiency in the law by creating a new species of intellectual property right akin to, but distinct from, copyright.
  We discussed this matter in Committee and, as I have explained, my noble friend Lord Sanderson outlined the difficulties that the Government see in providing for format rights of the kind proposed by the noble Lord, Lord Willis. In response to a request by the noble Lord, Lord Peston, for a meeting, my noble friend Lord Sanderson made it clear that the Government were willing to discuss these matters further before Report. The noble Lord, Lord Willis, indicated that the proponents of format rights would take up that offer. I can only tell the noble Lord, Lord

  867
  Peston, my version of the story, so to speak. I hope he will treat that with equal courtesy to that I afforded to him.
  My honourable friend the Minister for Industry and Enterprise at the Department of Trade and Industry is responsible for these questions. In the expectation of an approach by advocates of the new right, his department re-examined the issue in some depth. A discussion paper was prepared in anticipation of further debate with the interests. We heard nothing and were beginning to think that the proponents of a format right were having second thoughts in the face of the formidable difficulties which we foresaw. At the end of September, the noble Lord, Lord Willis, wrote to my honourable friend Douglas Hogg, who replied enclosing a copy of the paper to which I have referred.
  I do not propose to go over the ground we covered in Committee, or to go through all the arguments set out in the DTI paper. The most fundamental objection to these new clauses is that it is impossible to establish with any degree of certainty what would be protected in any given situation. There are also uncertainties as regards what would infringe such a right. This is not a sound basis on which to legislate. I do not rule out a change in the law at some point, but it needs to be preceded by a fuller consideration of the adequacies of the existing law and the implications of any change than has been possible so far. Certainly the issue needs to be considered by a much wider range of copyright interests than have been involved to date and has been possible to date. In this connection, I should perhaps mention that we are looking into the helpful suggestion of the noble Lord, Lord Lloyd of Hampstead, regarding a Law Commission study, but this does not seem a likely solution. There is little evidence that copying of formats in the United Kingdom is a significant problem or is likely to become one in the near future.
  I understand that the noble Lord, Lord Willis, and other noble Lords will be disappointed. I am not suggesting by any means that there is no problem here; I accept that there is. I should not be seen either to be locking the door for all time. The noble Lord, Lord Peston, asked why, if the law was not what we thought it was, we did not put it back to what we thought it was. It is easy to be persuaded by one's own convictions, but that tends to be only one side of the problem.
  Lord Peston: My Lords, we cannot have all this to-ing and fro-ing, but I do not understand the noble Earl's argument. He has put his finger, as I thought I did, on the absolutely central view that we know what the law was supposed to mean. There was never any argument about it. Before the case no one was writing articles saying that there was a problem; it has only arisen after the case.
  My difficulty, and the reason I am so annoyed about all this, is that I would like to hear a straightforward argument as to why the position cannot be as it was. There was never any doubt about that. There may be reasons, but we cannot deal with them in this way at this time. That is why I have been
  868
  so concerned at our inability to get to grips with the matter. I am not affected personally: I do not write programmes - I do not like game shows. However, it is an important matter.
  Earl Ferrers: My Lords, the noble Lord asked why we cannot go back to what we thought was the position. I am saying that if one changes the law it has implications that one does not necessarily want; it affects other people. That is why I suggested that the matter is not quite that simple.
  If the interests involved—and there are many who have not been involved in the debate—can establish that there is a problem that can be resolved only by legislation and that a proper legal framework can be established to protect formats, we can certainly return to the matter. However, I believe that it would be wrong at this time to introduce into our law a completely new intellectual property right, one which is untried anywhere in the world, which cannot be defined with any degree of legal certainty and which may have adverse effects on the cross-fertilisation of ideas.
  That is the position as I see it. I know that the noble Lord, Lord Peston, is disturbed about the matter. If he wishes to come to see me or to talk to me about the matter, or if I can help him in any way, of course I should be delighted to do so. If he cares to get in touch with me I shall do the best I can to help him. However, I cannot assure him that we will be able to produce an alteration of the type he wants at Third Reading of what is a complicated issue. If the noble Lord is concerned I shall do my best to try to allay his concerns and at least try to understand them.
  Lord Willis: My Lords, I cannot say that I am disappointed by that reply. I am rather appalled by it. It seems to me that the noble Earl, courteous as ever, has not added one whit to the arguments that he made at Committee stage. The arguments that he has advanced against the amendment have been shot through with holes by the noble Lord, Lord Harmar-Nicholls, and my noble friend Lord Peston, and I hope that I have fired one or two rounds.
  I know that it is very late but I ask my noble friends and others to stiffen their sinews and summon up their blood and support the amendment.
  12.43 a.m.
  On Question, Whether the said amendment (No. 356A) shall be agreed to?
  Their Lordships divided: Contents, 6; Not-Contents, 28.

  Division No. 5

  CONTENTS

  Birk, B.

  Peston, L.

  Carter, L. [Teller.]

  Stockton, E.

  Harmar-Nicholls, L.

  Willis, L. [Teller.]

  NOT-CONTENTS

  Astor, V.

  Brougham and Vaux, L.

  Balfour, E.

  Carnock, L.

  Belstead, L.

  Cavendish of Furness, L.

  Blatch, B.

  Craigmyle, L.

  Bonham-Carter, L.

  Davidson, V. [Teller.]

  Borthwick, L.

  Denham, L. [Teller.]

  Brabazon of Tara, L.

  Downshire, M.

  869

  Ferrers, E.

  Reay, L.

  Hives, L.

  Seear, B.

  Johnston of Rockport, L.

  Stodart of Leaston, L.

  Long, V.

  Strathmore and Kinghorne, E.

  Mackay of Clashfern, L.

  Tordoff, L.

  Mountevans, L.

  Trumpington, B.

  Oxfuird, V.

  Ullswater, V.

  Resolved in the negative, and amendment disagreed to accordingly.
  12.50 a.m.
  [Amendment No. 357ZA not moved.]
  Schedule 15 [Information about Programmes: Copyright]:
  [Amendment No. 357A not moved.]
  Earl Ferrers Earl Ferrers moved Amendment No. 358:
  Page 240, line 12, leave out from ("circumstances") to end of line 18.
  The noble Earl said: My Lords, I beg to move Amendment No. 358. This amendment was spoken to with Amendment No. 352.
  On Question, amendment agreed to.
  Clause 176 [Orders proscribing unacceptable foreign satellite services]:
  [Amendments Nos. 359 to 361 not moved.]
  Earl Ferrers Earl Ferrers moved Amendment No. 362:
  After Clause 177, insert the following new clause:
  Unauthorised decoders for encrypted services etc
  (".—(1) In the Copyright, Designs and Patents Act 1988 the following section shall be inserted after section 297—
  Unauthorised decoders.
  297A.—(1) A person who makes, imports, sells or lets for hire any unauthorised decoder shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
  (2) It is a defence to any prosecution for an offence under this section for the defendant to prove that he did not know, and had no reasonable ground for knowing, that the decoder was an unauthorised decoder.
  (3) In this section—

  "apparatus" includes any device, component or electronic data;

  "decoder" means any apparatus which is designed or adapted to enable (whether on its own or with any other apparatus) an encrypted transmission to be decoded;

  "transmission" means any programme included in a broadcasting or cable programme service which is provided from a place in the United Kingdom; and

  "unauthorised", in relation to a decoder, means a decoder which will enable encrypted transmissions to be viewed in decoded form without payment of the fee (however imposed) which the person making the transmission, or on whose behalf it is made, charges for viewing those transmissions, or viewing any service of which they form part."

  (2) In section 299 of the Act of 1988 (fraudulent reception of programmes broadcast from countries or territories outside the United Kingdom)—

  (a) subsection (2) shall cease to have effect; and

  (b) in subsection (5), after "297" there shall be inserted "297A".")

  The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 339. I beg to move.
  On Question, amendment agreed to.
  [Amendment No. 363 not moved.]
  Clause 180 [Certain events not to be shown on pay-per-view terms]:
  [Amendments Nos. 364 to 366 had been withdrawn from the Marshalled List.]
  [Amendment No. 366A not moved.]
  Schedule 17 [The Gaelic Television Committee: Supplementary Provisions]:
  Earl Ferrers Earl Ferrers moved Amendment No. 367:
  Page 245, line 17, after ("the") insert ("Chartered").
  The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 5. I beg to move.
  On Question, amendment agreed to.
  Clause 183 [Contributions towards maintenance of national television archive]:
  [Amendments Nos. 367A to 367D not moved.]
  Clause 185 [Information to be furnished by BBC for purposes of reports under section 184]:
  Earl Ferrers Earl Ferrers moved Amendment No. 368:
  Page 150, leave out lines 8 to 35.
  The noble Earl said: My Lords, with this amendment, I speak also to Amendment No. 373. The new clause imposes a general rule of business confidentiality for information obtained under the Bill. Specifically, it prohibits, subject to certain exceptions, disclosure of information obtained under or as a result of the Bill without the consent of the business or company to which it relates, and creates a criminal offence for unauthorised disclosure with a maximum penalty of up to two years' imprisonment on conviction. I beg to move.
  On Question, amendment agreed to.
  Clause 187 [Application of provision of Fair Trading Act 1973 to broadcasting and telecommunication services]:
  Earl Ferrers Earl Ferrers moved Amendment No. 369:
  Transpose Clause 187 to after Clause 190.
  The noble Earl said: My Lords, this amendment was spoken to with Amendment No. 113. I beg to move.
  On Question, amendment agreed to.
  Clause 190 [Revocation of class licence to run broadcast relay systems]:
  Earl Ferrers Earl Ferrers moved Amendment No. 370:
  Page 153, line 34, leave out ("(power to license telecommunication systems)").
  The noble Earl said: My Lords, this amendment is a minor drafting improvement. I beg to move.
  On Question, amendment agreed to.
  Earl Ferrers Earl Ferrers moved Amendments Nos. 371 to 373:
  Before Clause 191, insert the following new clause:
  ("Restrictive Trade Practices Act 1976 not to apply to networking arrangements
  —(1) The Restrictive Trade Practices Act 1976 shall not apply, and shall be deemed never to have applied, to any relevant networking arrangements which are specified, or are of a description specified, in an order made by the Secretary

  871
  of Stale (whether before or after the making of those arrangements), and which satisfy such conditions as may be so specified.
  (2) In subsection (1) "relevant networking arrangements" means—

  (a) any arrangements entered into as mentioned in section 38(4) or (7) (b) above, or

  (b) any agreement not falling within paragraph (a) but made for the purpose mentioned in section 38(1) above.

  (3) Before making an order under subsection (1) the Secretary of State shall consult the Independent Television Commission and the Director General of Fair Trading; and such an order shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
  Before Clause 191, insert the following new clause:
  Modification of networking arrangements in consequence of reports under competition legislation
  (".—(1) The Secretary of State may, in any of the circumstances in which this subsection has effect, by order provide for any networking arrangements specified in the order to have effect with such modifications as appear to him to be appropriate.
  (2) Subsection (1) shall have effect in the following circumstances, namely—

  (a) where the circumstances are as mentioned in section 56(1) of the Fair Trading Act 1973 (order on report on monopoly reference) and the monopoly situation exists in connection with the provision of programmes for broadcasting in regional Channel 3 services;

  (b) where the circumstances are as mentioned in section 73(1) of that Act (order on report on merger reference) and one or more of the enterprises which ceased to be distinct enterprises was engaged in the provision of such programmes; and

  (c) where the circumstances are as mentioned in section 10(1) of the Competition Act 1980 (order on report on competition reference) and the anti-competitive practice was pursued in connection with the provision of such programmes.

  (3) An order under subsection (1) shall be subject to annulment in pursuance of a resolution of either House of Parliament.
  (4) In this section—

  "networking arrangements" means any such arrangements as are mentioned in section 38(1) above;

  "regional Channel 3 service" has the meaning given by section 14(6) above;

  and any expression used in this section which is also used in the Fair Trading Act 1973 or the Competition Act 1980 has the same meaning as in that Act.").
  After Clause 192, insert the following new clause:
  Restriction on disclosure of information
  (" .—(1) Subject to subsections (2) to (4), no information with respect to any particular business which has been obtained under or by virtue of this Act shall, so long as that business continues to be carried on, be disclosed without the consent of the person for the time being carrying on that business.
  (2) Subsection (1) does not apply to any disclosure of information which is madeߞ

  (a) for the purpose of facilitating the performance of—

  (i) any functions of the Independent Television Commission, the Welsh Authority or the Radio Authority under this Act or the 1988 Regulations, or

  (ii) any functions of the Director General of Fair Trading, the Secretary of State or the Monopolies and Mergers Commission under the Fair Trading Act 1973 (excluding Parts II,
  872
  III and XI of that Act), the Restrictive Trade Practices Act 1976, the Competition Act 1980 or this Act or the 1988 Regulations;

  (b) in connection with the investigation of any criminal offence or for the purposes of any criminal proceedings or a report of any such proceedings;

  (c) for the purposes of any civil proceedings brought under or by virtue of the Fair Trading Act 1973 (excluding Part III), the Restrictive Trade Practices Act 1976 or this Act or the 1988 Regulations, or for the purposes of a report of any such proceedings; or

  (d) in pursuance of any Community obligation.

  (3) Nothing in subsection (1) shall be construed—

  (a) as limiting the matters which may be included in, or be made public as part of, a report under section 184 above or under Schedule (References with respect to networking arrangements) to this Act, or

  (b) as applying to any information which has been made public as part of such a report.

  (4) Subsection (1) does not apply to any information obtained as mentioned in section 192(4) above.
  (5) The following provisions, namely—

  (a) section 133(1) of the Fair Trading Act 1973,

  (b) section 41(1) of the Restrictive Trade Practices Act 1976, and

  (c) section 19(1) of the Competition Act 1980,

  shall not apply to any disclosure of information which is made for the purpose of facilitating the performance of any functions of the Independent Television Commission, the Welsh Authority or the Radio Authority under this Act or the 1988 Regulations.
  (6) Any person who discloses any information in contravention of subsection (1) shall be guilty of an offence and liable—

  (a) on summary conviction, to a fine not exceeding the statutory maximum;

  (b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or both.

  (7) In this section "the 1988 Regulations" means the Control of Misleading Advertisements Regulations 1988.").
  The noble Earl said: My Lords, these amendments have been spoken to with Amendments Nos. 113 and 368. I beg to move.
  On Question, amendments agreed to. Clause 197 [General interpretation]:
  Earl Ferrers Earl Ferrers moved Amendment No. 374:
  Page 156, line 34, leave out ("means the twelve months ending with 31st March;") and insert ("shall be construed in accordance with subsection (1A);").
  The noble Earl said: My Lords, I speak also to Amendment No. 376. These are technical amendments to allow the bodies established by the Bill to determine their own financial year for their accounts. I beg to move.
  On Question, amendment agreed to.
  Earl Ferrers Earl Ferrers moved Amendment No. 375:
  Page 156, line 36, at end insert:
  (" "pension scheme" means a scheme for the payment of pensions, allowances or gratuities;").
  The noble Earl said: My Lords, I shall speak also to Amendment No. 377. They are essentially drafting amendments. They clarify the definition of pensions and similar payments. The intention is to make clear that the ITC and other statutory bodies have the

  873
  power to pay pensions and other benefits in other circumstances where it would be appropriate for them so to do. I beg to move.
  On Question, amendment agreed to.
  Earl Ferrers Earl Ferrers moved Amendments Nos. 376 and 377:
  Page 156, line 44, at end insert:
  ("(IA) In any provision of—

  (a) section 147 or 159, or

  (b) Schedule 1, 2, 3, 4, 6, 11, 12 or 17,

  "financial year" means a financial year of the body with which that provision is concerned; and in any other provision of this Act "financial year" means the twelve months ending with 31st March.").
  Page 156, line 44, at end insert:
  ("(1B) In this Act—

  (a) references to pensions, allowances or gratuities include references to like benefits to be given on death or retirement; and

  (b) any reference to the payment of pensions, allowances or gratuities to or in respect of any persons includes a reference to the making of payments towards provision for the payment of pensions, allowances or gratuities to or in respect of those persons.").

  The noble Earl said: My Lords, both amendments were spoken to earlier with Amendments Nos. 374 and 375. I beg to move.
  On Question, amendments agreed to.
  Schedule 18 [Minor and Consequential Amendments]:
  Earl Ferrers Earl Ferrers moved Amendments Nos. 378 to 388:
  Page 252, line 35, at end insert:
  ("(2) In section 71 (reports of domestic proceedings), for subsection (1) substitute—
  "(1) In the case of domestic proceedings in a magistrates' court (other than proceedings under the Adoption Act 1976) it shall not be lawful for a person to whom this subsection applies—

  (a) to print or publish, or cause or procure to be printed or published, in a newspaper or periodical, or

  (b) to include, or cause or procure to be included, in a programme included in a programme service (within the meaning of the Broadcasting Act 1990) for reception in Great Britain,

  any particulars of the proceedings other than such particulars as are mentioned in subsection (1A) below.
  (1A) The particulars referred to in subsection (1) above are—

  (a) the names, addresses and occupations of the parties and witnesses;

  (b) the grounds of the application, and a concise statement of the charges, defences and counter-charges in support of which evidence has been given;

  (c) submissions on any point of law arising in the course of the proceedings and the decision of the court on the submissions;

  (d) the decision of the court, and any observations made by the court in giving it.

  (1B) Subsection (1) above applies—

  (a) in relation to paragraph (a) of that subsection, to the proprietor, editor or publisher of the newspaper or periodical, and

  (b) in relation to paragraph (b) of that subsection, to any body corporate which provides the
  874
  service in which the programme is included and to any person having functions in relation to the programme corresponding to those of an editor of a newspaper.";

  and in subsection (2), for "subsection (1)" substitute "subsection (1A)".").
  Page 253, line 19, at end insert ("for reception in Northern Ireland").
  Page 253, line 19, at end insert:
  ("(2) In Article 90 (reports of domestic proceedings), for paragraph (1) substitute—
  "(1) A person to whom this paragraph applies shall not—

  (a) print or publish, or cause or procure to be printed or published, in a newspaper or periodical, or

  (b) include, or cause or procure to be included, in a programme included in a programme service (within the meaning of the Broadcasting Act 1990) for reception in Northern Ireland,

  any particulars of any domestic proceedings other than such particulars as are mentioned in paragraph (1A) below.
  (1A) The particulars referred to in paragraph (1) above are—

  (a) the names, addresses and occupations of the parties and witnesses;

  (b) the grounds of the application, and a concise statement of the charges, defences and counter-charges in support of which evidence has been given;

  (c) submissions on any point of law arising in the course of the proceedings and decisions of the court on the submissions; and

  (d) the decisions of the court, and any observations made by the court in giving its decision.

  (1B) Paragraph (1) above applies—

  (a) in relation to sub-paragraph (a) of that paragraph, to the proprietor, editor or publisher of the newspaper or periodical, and

  (b) in relation to sub-paragraph (b) of that paragraph, to any body corporate which provides the service in which the programme is included and to any person having functions in relation to the programme corresponding to those of an editor of a newspaper.".").

  Page 257, line 18, at end insert:
  ("(aa) section 11(1), 94(1), 144(4), (5) or (7), 154(3) or 166(1) of the Broadcasting Act 1990;").
  Page 257, line 19, leave out ("in accordance with any provision of the Broadcasting Act 1990") and insert ("by virtue of section 11(2) or 94(2) of that Act").
  Page 257, line 33, leave out ("which is provided to them in accordance with") and insert ("requested or required to be provided to them, and so provided, under").
  Page 257, line 34, leave out ("(as the case may be)") and insert ("(7) or").
  Page 257, line 39, at end insert:

  ("(aa) section 11(1), 94(1), 144(4), (5) or (7), 154(3)or 166(1) of the Broadcasting Act 1990;").

  Page 257, line 40, leave out ("in accordance with any provision of the Broadcasting Act 1990") and insert ("by virtue of section 11(2) or 94(2) of that Act").
  Page 258, line 4, leave out ("which is provided to them in accordance with") and insert ("requested or required to be provided to them, and so provided, under").
  Page 258, line 5, leave out ("(as the case may be)") and insert ("(7) or").
  The noble Earl said: My Lords, despite its length, this, aeries of amendments makes minor and consequential amendments to the Bill. I beg to move.
  On Question, amendments agreed to.
  Schedule 19 [Repeals]:
  Earl Ferrers Earl Ferrers moved Amendment No. 389:
  876
  Page 263, line 26, column 3, at end insert: (" Section 299(2).")
  The noble Earl said: My Lords, the amendment was taken with Amendment No. 339. I beg to move.
  On Question, amendment agreed to.
  House adjourned at three minutes before one o'clock.

  ADVISORY COMMITTEE ON LEGAL EDUCATION AND CONDUCT; CHAIRMAN
  ADVISORY COMMITTEE ON LEGAL EDUCATION AND CONDUCT; CHAIRMAN
  SPORT AND RECREATION: PLANNING POLICY GUIDANCE NOTE
  SPORT AND RECREATION: PLANNING POLICY GUIDANCE NOTE
  TREE PRESERVATION: REVIEW
  TREE PRESERVATION: REVIEW
  OXIDES OF NITROGEN: RATIFICATION OF SOFIA PROTOCOL
  OXIDES OF NITROGEN: RATIFICATION OF SOFIA PROTOCOL
  WILD BIRDS: CONSERVATION AREAS
  WILD BIRDS: CONSERVATION AREAS
  NINETEEN YEAR-OLDS IN SCHOOL: FINANCIAL SUPPORT
  NINETEEN YEAR-OLDS IN SCHOOL: FINANCIAL SUPPORT
  CROWN SERVANTS' DEPENDANTS: SEVERE DISABLEMENT ALLOWANCE ENTITLEMENT
  CROWN SERVANTS' DEPENDANTS: SEVERE DISABLEMENT ALLOWANCE ENTITLEMENT
  IRAQ: NUCLEAR WEAPON CAPABILITY
  IRAQ: NUCLEAR WEAPON CAPABILITY
  IRAQ: BALLISTIC MISSILE CAPABILITY
  IRAQ: BALLISTIC MISSILE CAPABILITY
  MIDDLE EAST: NUCLEAR AND CHEMICAL WEAPON BAN PROPOSAL
  MIDDLE EAST: NUCLEAR AND CHEMICAL WEAPON BAN PROPOSAL
  IRAQ: URANIUM ENRICHMENT CAPABILITY
  IRAQ: URANIUM ENRICHMENT CAPABILITY
  WARSAW: IMPROVED VISA APPLICATION PROCEDURES
  WARSAW: IMPROVED VISA APPLICATION PROCEDURES
  FOREIGN AFFAIRS COUNCIL, BRUSSELS, 17th SEPTEMBER
  FOREIGN AFFAIRS COUNCIL, BRUSSELS, 17th SEPTEMBER
  M.25: LIGHTING REPAIRS
  M.25: LIGHTING REPAIRS
  MOTORWAY LIGHTING: POLICY
  MOTORWAY LIGHTING: POLICY
  THE SHIPPING INDUSTRY
  THE SHIPPING INDUSTRY
  EMERGENCY PLANNING: BROOK REPORT
  EMERGENCY PLANNING: BROOK REPORT
  IRAQ: NUCLEAR TRIGGERS
  IRAQ: NUCLEAR TRIGGERS
  ST. THOMAS'S HOSPITAL WARD CLOSURES: JOB LOSSES
  ST. THOMAS'S HOSPITAL WARD CLOSURES: JOB LOSSES